Editorial #46: We Need A Queerer Legal Imagination

This past winter, I went on something of a science fiction/fantasy (SF/F) binge, perhaps in the search for comfort during dark times in my tried and trusted favorite genre of fiction. This culminated in me, on a friend’s recommendation, reading the Mistborn trilogy by Brandon Sanderson over the span of something like 1.5 months (there will be some major spoilers for the series in this text). The experience left me strangely dissatisfied. I appreciated the epic scale of Sanderson’s saga, the themes of trust, hope, and rebellion, the genuinely innovative plotline about rebuilding a state and a society after the evil power is overthrown, and the breathtaking way in which the narrative’s various strands are all joined together over more than 2000 pages. However, I realized one thing: I have been too spoilt in recent years to fully enjoy writing which (by Sanderson’s own admission) passes the Bechdel test on a technicality only, and, much more importantly, offers little to no in-universe explanation for the presence of the same heteropatriarchy we know from the “real world” in a world where people can also “burn” ingested metals to achieve super human abilities. This began to bug me even more when, shortly after finishing the Mistborn books, I read The Sapling Cage by Margaret Killjoy, a novel which, in contrast, shows how the high fantasy genre can (and perhaps should) be used to truly imagine worlds and societies that are by no means utopian but still differ from ours not just through the presence of rather more swords and magic.

A few years ago, I attended a lecture evening where a professor of literature was invited to talk about gender transgressions in literary works. I no longer recall the exact texts she used as examples, but I do remember that they centered around extremely painful experiences of intersex individuals written by cis authors. During the Q&A, I asked what had led the speaker to focus on stories in which the transgression of gender boundaries remained a traumatic and ultimately impossible journey and not on works such as, for example, Virginia Woolf’s Orlando or Ursula K. LeGuin’s The Left Hand of Darkness. If I remember correctly, the speaker’s answer had something to do with what she thought was “realistic” in terms of gender, in literature and in the “real” world.

Imagination is one of humanity’s most powerful tools, and one we expect and admire especially in the authors of so-called speculative fiction. And yet, the author behind the most successful fantasy series of the past decades recently gloated about having used the wealth she accumulated by writing about magic and the power of love to bankroll the successful mobilization of UK courts in service to her and others’ long-running persecution of trans women. It’s frankly not hard to see why Ursula K. LeGuin had presciently found this author’s work “imaginatively derivative” (as well as “stylistically ordinary … and ethically rather mean-spirited”) as early as 2004.

What does all of this have to do with international law? Well, to put it one way, aren’t we all – writing about international law in the year of Audre Lorde 2025 – engaging in “speculative fiction”? In this sense, what we accept to be the limits to which we are willing and able to stretch our individual and collective imaginations matters immensely.

We do not need to go as far as talking about international law as utopia – I feel like somebody somewhere must have already done that? These days, even asking for basic respect for seemingly well-established basic rules of international law and the requisite academic freedom to discuss these can resemble an epic quest against the odds on par with dragon slaying missions.

Yet we should not allow ourselves to be limited to fantasizing about a return to a slightly more rational status quo ante where, supposedly, most international law was observed by most states most of the time. Rather, not just during Pride month, we can look to our queer history for inspiration.

Queers through time have only ever been able to survive by imagining into being a world in which they are considered people. But beyond visualizing sheer survival, queerness involves dreaming states of being that currently do not exist outside of small, contested utopian pockets, of re-thinking and re-imaging, vulgo queering, established practices, and transforming conventional stories of gender, family, intimacy, and overall societal and political structures.

The boundaries of “realism” are drawn by those with the most power, while the limits of the imagination cannot be contained. In speculative fiction, it is therefore usually the most unlikely “hero”, the person with the least power – the hobbit, the female skaa urchin, the goat-herding son of a smith – who goes on to do the things no-one thought possible (and they do not manage these things on their own). Similarly, when protesting, in writing and on the streets, genocide, autocratic backsliding, mass deportations, and the same shit Pride has rioted against since 1969, we are already not sticking to what’s “realistic”. Contrary to calls for realism, the important lesson from our SF/F favorites and from decades of queer activism is that change does not come about by imagining transferring this power to us (or a Queen instead of a Dark Lord, beautiful and terrible, etc.), but by finding ways to dismantle it altogether.

In times when even baselines such as the prohibitions on genocide and aggression, respect for international courts, habeas corpus, and the rights of trans people to access life-saving care are defied openly, queering our (legal) imaginations becomes more vital than ever. While our trusty comfort reads can provide a valid and oftentimes necessary form of escapism, it is clear that sticking to the old scripts is not working. Imagining other possibilities – especially from inside a subject like law with its inherently conserving tendencies – is intimidating and at the same time the most natural human instinct. If the human affinity for fairy tales, epic sagas, and SF/F literature demonstrates anything, it’s that we cannot help imagining beyond the plausible or possible.

The solutions may lie just at the far end of our wildest imagination. Even Sanderson’s Mistborn books catch on to this: In the series’ culminating moment, it is revealed that the prophesized Hero of Ages has so far been misidentified because the prophecy was misread to refer to either a man or woman, when in reality the Hero is someone who exists outside the scope of binary gender. Thus, had the protagonists stuck to what the literature professor whose talk I was so confused by considered “realistic”, their world would not have survived.

Queering our stories about international law in 2025 requires vast resources of courage and imagination. Sanderson’s Hero of Ages also and importantly is a scholar and collector of stories banned by an oppressive regime. As the freedom to think about different ways of doing law is increasingly coming under attack, it is proven beyond a doubt that this is exactly the work that needs doing.