[Reader-list] a kiss is just a kiss. or is it?

[Lawrence Liang]

Hi all

Apologies for a long post, but hope it is of some interest to those of us
invested in the physical and smbolic acts of kissing, as well as of the law.

I think given the current atmosphere of moralpolicing, this is a very
welcome order, (the judge begins by acknowledging the troubling nature of a
case like this being brought t cout, and ends by saying that it is
inconceiveable how an expression  of love, albeit between a married couple,
could be obscene)

I think the question of whether it is radical or not is a misdirected one.
It instead might be more useful to use the order as a way of thinking about
the relationshiop of law to diverse states of being, of emotional expression
and the limits of the law.


The question is not whether it is a radical act or not, rather it may be
understood in terms of how is that the law comes to judge a kiss, and in
doing so, what conceptions of the kiss does it evoke: Does it  have a rich
understanding of the kiss or a poor one? If the entire issue is indeed
decided on the basis of the appropriate space of intimacy, whether it should
be conducted publicly or privately, then where do we turn to even understand
the Laws of intimacy? If the kiss is the object of objection, then what are
the ways in which we deal with this object?

For instance do we deal with it, on its own terms ( a good kiss v, a bad
one, a real kiss v. a fake one) or do we have to constantly mobilize other
resources (Public v. private, married v. non married?)  If kissing in public
is against the idea of Indian culture, what are the sources beyond some
general invocation of Indian culture that is being relied on? Because given
the publicness of our erotic temples, surely it cant be the case that public
display of erotic affection is a civilizational anomaly.



I would like to draw your attention to a marvelous article which addresses
many of these questions.



*Peter Goodrich, The Laws of Love: Literature, History and the Regulation of
kissing: 24 N.Y.U Rev. L & Soc. Change, 183(1998)*



For the benefit of those who may not have access to the article, I am
summarizing and  extracting from the article which opens out exciting ways
in which we can think of the relationship between the kiss and the law.



Goodrich argues that the while the law is often called upon to address the
appropriateness of intimate erotic acts occurring in public and quasi-public
spaces, we must acknowledge that the lawyers are also not, by any training
or special knowledge the best legislators of kissing. As a result, when such
disputes do arise, the consequences are that the results that emerge are
usually couched in negative terms. Thus certain forms of affection are
banned from public spaces; The ability to determine these matters suggest
that the law has a theory of the role of eros and intimacy in making of a
public world;



But if the law is a specific body of knowledge that derives its authority
over the world through memory ( as enshrined as precedent), then the
question is where do such precedents lie?



Goodrich argues that the common law may not be the best site for
understanding the kiss, but it is not an act whose regulation is beyond
comprehension or even historical evidence.



Goodrich then lays out a fascinating history of the regulation of kissing,
particularly as it developed in the history of Christianity, and then in
medieval  Europe in the courts of love and literature.



According to him, Christianity, which was a religion of the 'logos' or word
and connected Truth with the "sermo humilis" and the pentecostal speaking in

tongues, and knowledge came from the lips. On of the early Christian
commentaries speaking on the Song of Songs, says that the kiss was the
principal form of salvation in that it was through the kiss of knowledge
that the word would be passed from Christ to his followers. Thus, when the
Song of Songs famously importunes "[l]et him kiss me with the kisses of his
Mouth", it is illumination of the soul, divine grace, for which the
supplicant pleads."



The kiss was thus the union of the word and the soul. In the exchange of
breath that takes place in kissing, two souls would intermingle and unite.
The insufflation of the kiss was an inhalation of knowledge, and constituted
an exchange that was spiritual rather than sexual, and institutional rather
than carnal. Si in early Christianity, the kiss aided in the development and
intensification of community which leads the faithful eventually to a
knowledge of God.



Goodrich then traces the rather elaborate doctrinal history that accompanies
this idea of the sacred character of the kiss. He shows us of rinstance a
taxonomy of kissing which ranges from the osculum pads, or kiss of
brotherhood, which was a physical kiss, a kiss on the mouth, but one which
was exchanged as a sign of truth and of peace. Then you have the spiritual
kiss, a kiss that took place not by virtue of the meeting of mouth or
contact of lips but by the joining of the affections of the mind, and it was
this kiss that enabled believers to mingle and unite in the single body of
the Church. Finally, the highest level of the kiss, the intellectual
embrace, was in a sense the prolongation of the spiritual kiss. A spiritual
kiss of sufficient intensity and duration would transcend the bodies of
those that embraced and rather than being the friend or Christian brother
that was kissed and being kissed it was now Christ who was kissed and being
kissed through the

creature or lips of the believer.







But here comes the catch, stages of the Christian kiss, could be mimicked by
the unfaithful and so lead not to salvation or knowledge but to a corporeal
desire marked by ignorance and deceit. The false kiss treated the lips of
the other not as the sign of, and means of access to, an invisible grace,
but rather as an end in

themselves, as sensual presence and the means of a purely carnal embrace.

the sin of idolatry was depicted as being that of allowing sight to
terminate upon the physical representation or plastic form of faith, so too
the plain kiss which when used by non believers, it became a false kiss,
which ended its quest for satisfaction upon the body of the
subject kissed. The face of the other here became a false image, an idol
upon which desire in the form of the kiss both doted and fed.





Goodrich's interest in laying out he history of the regulation of kissing as
it emerges in Christianity is also to understand the development of the
language from where kisses are understood, and what kind of inheritances,
the modern legal system may have drawn from in their understanding of the
regulation of amorous activities.







He says



*"In contemporary and more pluralistic doctrinal contexts, the specific
resonances of impurity, heresy, or paganism, attached to false kisses is
less
important than the language and classificatory schemata through which the
art and practice of kissing was made accessible and available to some
species of judgment. This early law on kissing had a remarkable and
peculiarly
radical theoretical perspicuity. Specifically, it recognized and
acknowledged an erotic charge, a substrate of desire or indeed libidinal
economy,' that not simply underpinned but literally constituted community.
Desire pervaded the social, and eros, as motive or as expression, was
acknowledged to be present in all institutional relationships as a dimension
not only of power but of speech as such. The importance of the early law
of kissing thus lies primarily in its ability to acknowledge and address the
role of desire in all forms of social contact or institutional intercourse.
So
too, rather than attempting to deny or exclude public expressions of erotic
desire, the doctrine of kissing attempted rather to understand and map an
art and practice of embrace that both acknowledged the pervasive value of
desire and limited inappropriate forms of its expression through a code, an
epistemic, of the relation of kissing to truth. Love, in other words,
required
expression, and this was recognized to be as true of the polity as of the
domestic sphere. It remains to point out that in the literary tradition of
the
courts of love, this insight into the relation between desire, community and
knowledge, gains further and vivid elaboration. In kissing, in tasting the
other,124 we come to know them in their difference and in their desire, and
we come also to know what is possible, what lies in the future of our love".
*



Goodrich then goes on to examine the regulation of the kisses in courtly
love, in literature and in the fascinating courts of love.









He writes of a mid-fifteenth century case reported in Martial d'Auvergne,
Les Arréts D 'Amour, which was heard before the Court of Flowers, where a
woman complained that she had been amongst friends in a public garden when
her lover had happened to come upon her and had joined her. According to her
complaint, he had come up beside her and "pretending to want to say
something private in her ear, he had lifted the hood of her cape and
suddenly had kissed her.""'



Her complaint was that this kiss had embarrassed her in front of her

friends. It was, at least in her argument, to be treated as if it had been

stolen in public: it was larrecin publique or public larceny of a kiss. Her

request to the Court was that in the future her lover should be forbidden to

approach her or touch her in public."' For his part, the impugned lover

claimed that when he chanced upon his lover he took the opportunity to

whisper declarations of love in her ear and while doing so had slipped. In

consequence his lips had brushed against her ear and her cheek. This could

hardly, in his view, be regarded as a kiss."'



Upon deliberation the Court held that the complaint was badly made.

It could not be public theft of a kiss for a lover to surprise his beloved
with

so innocent and amorous a declaration and act. A lover should not be

embarrassed by a public kiss but should rather welcome the attention and

the honesty of the expression. It was ordered that when the couple next

met in public the woman should kiss her lover openly and freely.



In his commentary on that case, Benoit de Court argues that the laws

of love had always recognized the finely marked differences between
different types of kiss. Thus a kiss between lovers in an open place was a
legitimate and desirable expression of affection, provided that the kiss was
not

overlong or too salacious. It was not theft, he concluded, publicly to kiss
a

lover, "so long as the hands did not wander lasciviously, and so long as

there was no biting of the lips."



The kiss was thus held to belong quite properly within the public

sphere, as also within the institution, and should not be hidden or furtive

but rather declared and indulged. The domain of love, therefore, did not

recognize arbitrary divisions between private and public, or between
intimacy and institution. The kiss belonged to an economy of desire that
both subtended and exceeded the public domain of secular or venal
interaction.



Kissing was the usual form not only of entry into the domain of love but
more formally of sealing the agreement of love or alliance d'amour whereby
lovers committed themselves to each other and publically declared an undying
allegiance to the cause and space of their mutual desire.



Goodrich's argument is simply, that the questions of love are best judged

according to laws of love. Simple, and indeed alliterative, though this
proposition might appear, its implications for legal thought are radical.
That love should have its laws means at the very least that the ailing
modern concept of a single jurisdiction and uniform agonistic procedure for
all legal cases should be abandoned explicitly. At its simplest, it does not
make sense to litigate emotions as if they were proprietary benefits or
duties. Nor does it speak well of the legal enterprise to assume that a
substantive law that historically has ignored the emotions and left the
sphere of intimacy to the private realm, to the law of the father, is the
appropriate or only source of precedents for the development of the rules
that are to govern the expressions of desire in the public world.      -