Abstract
The recent construction of the 2011 rioters as educationally backward, gang ridden, social degenerates – a predominantly immigrant/black criminal subclass, which was only amenable to control by way of extraordinary judicial interventions (e.g. see Bentham (Evening Standard, October 24, 2011); the description of rioters as a ‘subclass’ came from the Communities Secretary, Eric Pickles) – was more than a moment of temporary legal excess. Rather, it also represented a classic instance of ‘othering’ in the operation of contemporary criminal law. For, there was something far more visceral at work in the measures that resulted than simply a response to the theft of televisions or opportunistic vandalism. Such responses challenge a familiar way of modeling criminalization – as rational law-making in the face of violations to normative order. Instead, we see in them a trace of our reaction to the abnormal individual, a very different figure from the ‘typical’ criminal subject. For, the abnormal is a subject with essential properties that demarcate them from mere norm violators or wrongdoers motivated by rational self-interest. Such properties have often provoked reactions so powerful that they result in sanctions that go beyond any real threat or dangers presented. Yet, despite the intuitively obvious effects of othering upon legal process, socio-legal theory has spent far less time than other fields (e.g. see Girard’s (1989) work on scapegoating and similar texts from within the anthropological literature) in addressing the implications of abnormality. Aside from very brief discussions (e.g. David Garland’s (2001) identification of ‘others’ as pivotal influences upon the operation of contemporary control stands out here), the impacts of what might be called the ‘teratological’ upon legal process – a readiness to construct others as monstrous, or abnormal – remains far more undeveloped than it perhaps should be.
Andrew Sharpe’s timely book is divided into two parts, the first of which sets out a theoretical/historical framework and the second an analysis of some contemporary ‘monsters’. In it, he makes a very useful contribution to this theoretical lacuna by highlighting a seminal, but underdiscussed piece of work in this area – Foucault’s 1974 lectures on the abnormal at the Collège de France. Sharpe sets out a detailed study of Foucault's discussion, and traces earlier influences upon this account – in particular, Canguilhem’s influential distinction between the normal and pathological. Sharpe identifies a typical Foucauldian genealogy at work here – the gradual transformation of the ‘human monster’ into the abnormal individual, a subject constructed out of emerging 19th century medical-scientific discourse and practice. Sharpe teases out a number of useful categorical ambiguities in the way Foucault and Canguilhem characterize this transition, in particular, a tendency to elide concepts of monstrosity and the monstrous. Sharpe suggests that there are differing rhetorical goals at work in Foucault and Canguilhem’s elision of these concepts – differences which have important implications for the legal status of abnormal others. For, like Foucault, Canguilhem seemed to hold that abnormality is constituted in both medical and legal terms, nothing of especial legal import followed from this. For Foucault by contrast, the ‘double breach’ represented by the monster constituted a juridico-natural ‘complex’ – one which, in violating nature, forms a kind of irregularity which also challenges the law.
Sharpe’s book does not just set out to report the details of Foucault’s approach to the abnormal, but to critique them. This aspect of his account is however, less convincing. One charge is that Foucault does not pay enough attention to sexuality in the production of legal monstrosity, although this does not seem entirely fair. After all, as Sharpe himself concedes, Foucault’s primary concern is, with the challenge, abnormal bodies ‘represent to legal certitude and order’ (p. 53). Of course, as Sharpe also acknowledges, Foucault’s rich discussions of sexuality elsewhere have obvious implications for the ‘abnormative’ – for example, his famous analysis of the ‘masturbating child’ as a figure that was not just viewed as normatively transgressive but as actively productive of physical deformity. Sharpe takes more specific issue with Foucault’s historiography – in particular, the way Foucault traces the social trajectory of the monster figure. Sharpe argues that Foucault’s account of this transition, one where purely bestial perceptions of the monster are transformed into more recognizably ‘human’ monsters such as conjoined twins or the hermaphrodite, is one that implies a ‘gradual lessening of physical and psychological difference between the human being and the figure of the monster’ (p. 54). Sharpe suggests that this implies that the monster becomes an increasingly relative notion within modernity, one that is ultimately replaced by the abnormal individual. But this is arguably a strength of Foucault’s account, rather than a weakness – especially, if identifying the roots of abnormality in the monstrous helps clarify why ‘othering’ processes so often negatively impact upon the formation of law. In the end, Sharpe seems to acknowledge this too, accepting that a significant aspect of Foucault’s account is the ‘manner in which he links the subject of contemporary regimes of normalization to a series of antecedent figures. . . in particular . . . the figure of the human monster’ (p. 48). However, Sharpe’s very detailed analysis of the changing status of the monster within English Law justifies some of his criticisms here, for it is clear that Foucault’s timeline relates primarily to French Law rather than what occurred across the Channel, where there was an increased, rather than a lessening ‘legal anxiety over the possibility of human/animal hybridity’ (p. 54).
Sharpe’s account is particularly strong in describing how the figure of the monster functioned as legal category within the English legal tradition. He traces the genesis of this to the 13th century common law texts of Bracton and Britton – where deformity is distinguished from monstrosity – through to the 18th century commentaries of William Blackstone and the increased anxiety about animal/human hybrids seen there. Blackstone's thinking demonstrated a ‘more fantastical’ way of thinking about monsters, which appear to characterize the English tradition, and this appears, at first, to justify Sharpe’s challenge to Foucault’s view that the difference between human and monster is one that becomes ‘increasingly relative’. However, there is another interpretation of the subsequent (apparent) demise of the monster as an object of English law, one which perhaps fits better with Foucault’s account. This might be because the construct of abnormality could serve as a far more effective legal tool than appeals to monstrosity – which science was beginning to suggest were both clumsy and false. But Sharpe’s discussion of this transition is nonetheless very persuasive and provides invaluable material for historical legal scholars or anyone interested in alternative regulative currents within English law.
In addition to the original thinking and assiduous scholarship in teasing out this parallel legal history, there are several other useful contributions offered by Sharpe’s book. In particular, his attempts to relate the historical controls over monsters to contemporary normalization practices (legal or otherwise) emphasize why the significance of this book goes beyond a mere redigesting of Foucault’s study for a wider audience. Ultimately, as Sharpe suggests that his purpose is not to challenge ‘Foucault’s theoretical framework for understanding monsters’ (p. 56) but to develop a complementary account – one which provides a deeper understanding of what the ‘double breach’ Foucault refers to might mean. This centers upon the richer sense in which an abnormal individual represents a breach of nature as well as a legal breach. For Sharpe, this is most fruitfully explored in naturalistic terms – in terms of the specific physicalities that give rise to legal sanction. But this complementary project is sometimes lost in the sheer number of ideas at play in the book. For Sharpe is not merely content either with outlining Foucault’s account or with providing a history of responses within English law to the monster – each of which are substantive projects in themselves. There are also many other stated aims of the book – for example, to unpick the significance of animal-human hybridity; to reimagine male/female difference in terms of legal regulations of transexuality; to consider the relationship of contemporary medical science and admixed embryos to a reinvention of the hybrid; to evaluate mind–body distinctions in its light; to link theories of causation and agency to theories of culpability in the context of the monster and to consider the impact of ‘natality’ upon the social construction of monsters – that is, the extent to which we are born or ‘made’ monstrous and to develop a politics of resistance around the ersatzness of the false dichotomies the monstrous created. The sheer range of themes here is an indication of the richness of the field Sharpe is tapping into but although always fascinating and excellently well researched in individual terms, these themes do not always hang together as a single coherent account. They also sometimes threaten to obscure the very important and simple hypothesis outlined at the start of this book – how the monster template has a ‘greater explanatory power’ than other templates (such as the stranger, or the scapegoat) in producing ‘others’. In particular, what Foucault goes on to say about the double breach of the monstrous – that it provokes a reaction which is ‘quite unlike the law’ – is left relatively undiscussed. The extra-legal character of such reactions has some obvious correlations with Agamben’s (2005) ideas about suspensions to the law, or the creation of what Ericson (2007) called ‘counter law’ – a perversion of due process that is inherited directly from the ‘monsters’ that have provoked it. Thus, while the figure of the transsexual, the conjoined twin, and so on, are unquestionably seminal examples of the ways in which abnormality has impacted upon law, there is clearly much more to be said about the corrosive impacts of otherness – as the legal response to the rioters mentioned earlier so vividly suggests.
However, such criticisms do not negate the rich imaginative feast Sharpe's book offers. In highlighting the need for an effective socio-legal approach towards ‘abnormality’, Sharpe has made a significant contribution in moving this field of study forward and his account offers many useful lines of inquiry for other scholars to take up and develop. For example, his references to the Derridean claim that the future is ‘necessarily monstrous’ (Derrida, 1995) offers a fascinating and tempting suggestion of how abnormality may have become more than a subliminal historical influence upon criminal justice process, but something that points to a whole new politics. The impact of technology upon the abnormal individual – especially, the ‘post-human’ worlds outlined by biotechnologies and genetic manipulation – is just one aspect of the many questions this raises. As the extensive literature on cyborgs and prosthetic bodies suggest (which Sharpe references but does not discuss in depth), fundamental challenges to how we construct the ‘normal’ human are likely to emerge in the 21st century. In summary, Foucault's Monsters is a highly recommended resource that will be useful not just for legal scholars but for criminologists, sociologists, anthropologists and indeed anyone with an interest in the cultural construction of otherness.