Abstract
In A Jurisprudence of the Body, editors Chris Dietz, Mitchell Travis and Michael Thomson centre the body in relation to law in that they claim the body is an active, constitutive force in the creation and effectuation of legal phenomena. This claim is framed as following the feminist turn from discourse to materiality, like in the corporeal material feminism of Elizabeth Grosz (1994), where embodiment describes our fleshy forms as inextricably social, cultural and physical all at once. Attention to the body in social studies generally focuses the scholar’s scalpels on the relations of milieus or fields to behavioural individuations or dispositions, and vice versa. Such attention has entailed describing the meaning and consequence of practices mediated by the body, like social formations pertaining to consumption, sport, religion and aesthetics. Likewise, formations pertaining to the experience and social organisation of sexuality, gender, health, disability and race have been explored through the human body as both a material and a social force generative of, and informed by, them. The material turn with respect of the body in social studies, more specifically, has cut across earlier prioritisations of the social or discursive constructions of – or laid atop – the body, to attend to the dynamic performativity of corporeal matter that comprise human bodies, like with the scholarship of Stacy Alaimo (2010) and Erin Manning (2009, 2013).
Dietz, Travis and Thomson state they are intervening in a similar space, albeit with a disciplinary interest in how law and legal phenomena are inflected by the materiality of bodies and embodiment. They describe it as a jurisprudence of the body where the body is taken seriously as an analytical category and empirical reality for law and legal phenomena: specifically, there is a particularity to bodies – spatially, temporally and affectively in how bodies are differentially expressed – that law accommodates or does not accommodate but should. This is set up with a conceptual history of the body in modern legal scholarship through the genealogy of Nobody, Anybody, Somebody and Everybody: (1) Nobody refers principally to the tradition of legal positivists who were unconcerned with the materiality of the human, instead preferring conceptual forms disembodied from social context, including that of the body; (2) Anybody refers to the gradual inclusion of the human body in legal concepts albeit one that is ‘materially anonymous’ and, as a consequence, favourable to (white, male, heterosexual, abled, etc.) bodies social and political power presumes; (3) Somebody refers to the body gaining specificity in that law is understood to, or should, address the multiplicity of bodies that form the subject of law; and (4) Everybody reaches beyond the bounds of bodies understood within the perspective of some identity, reaching between and outside such identities to attain a form of jurisprudential thinking that responds to our universal conditions of bodily variability (pp. 3–8). The essays in this volume focus on the Somebody and the Everybody, which Dietz, Travis and Thomson describe is missing from legal, including sociolegal, scholarship.
There are three main sections to A Jurisprudence of the Body. Section 1 – The Body of Health Law – describes the ‘nature and scope of health care’, including ‘how the body is understood within health law in particular’ (p. 9). This section begins with Martha Albertson Fineman’s chapter on human bodies’ ontological vulnerability ‘present[ing] the material basis for arguing for an ethic of governance built on the recognition of the inevitability and the constancy of human physical dependency and the correspondingly essential, inescapable, and unavoidable role of our dependency on social institutions and relationships’ (p. 18). For Fineman, attention to vulnerability can succour the identification and elaboration of legal norms and concepts that respond to material needs, by looking beyond ideas of the legal subject as individualised, autonomous and set apart from the social. Instead, the legal subject should be recognised as embodied, always situated in relationships with others and, accordingly, implicated in arrangements that give effect to the social organisation of collective responsibility. The body in health law is alternatively explored in this section by John Coggon as social in the context of public health law, by Karen O’Connell and Isabel Karpin as embodying the harms of inequalities that are sensitively informed by the institutional and legal contexts that enframe embodiment, and by Emilie Cloatre and Nayeli Urquiza-Haas as inhabiting divergent cosmopolities that re-constitute how the body’s materiality matters in the different worlds the body inhabits. With respect of Cloatre and Urquiza-Haas, the body’s multiplicity extends to different ontologies of health and illness, which are themselves mediated by regulatory choices. Cloatre and Urquiza-Haas – in a manner that anticipates Fineman’s vulnerability theory being a frequent touchstone for contributors in the remainder of A Jurisprudence of the Body – return to the question of regulation through an account of vulnerability.
Sections 2 and 3 of the volume reflect on different bodies and their productive encounters with health law, in terms of how health law has changed and the potential for, and trappings of, more speculative exegeses. Section 2 – Bodies of Health – includes chapters from: Fae Garland and Mitchell Travis on the materialities – especially temporal materialities – of intersex bodies that are re-imagined in the violent container of liberal legality, constructing intersex bodies as disordered and in emergent need of care, and authorising physicians to intervene and manage their apparent deviance; Karolina Kuberska and colleagues on ‘the metaphors used in […] “stories” [of pregnancy loss and fetal bereavement] to outline the nature of the legal framework which shaped and defined these experiences’ (p. 153), conceptualising, and for interviewees reconciling with, complex embodiments in the flux of material and legal liminality; Chris Dietz and Ruth Pearce on the dominance of medico-legal constructions of trans bodies even as legal reforms ostensibly affirm a human right to depathologisation, observing limits in depathologisation to the extent such reforms rely on individualising concepts of bodily integrity that move, but do not disappear, psychiatric authority; and Aziza Ahmed on feminist activism in the US and in India with respect of pharmaceuticals tested clinically on the bodies of women and girls, the regulatory changes they have been able to advance as well as the need to ‘reorient some activist goals given the global political and economic landscape in which clinical trials and drug roll-out currently take place’ (p. 220).
Section 3 – Reframing Health Law Through Bodies – reimagines the body in health law through more speculative forms of scholarship. Clair Horn and Elizabeth Chloe Romanis warn us of the dangers of speculative thought through the case of the artificial womb – a technological innovation that may potentially disrupt the law’s understanding of the body – arguing, among other things, that ectogenesis is often imagined in a manner divorced from the contemporary context, putting unrealistic expectations on the biotechnology that ultimately displace and ignore, rather than confront, the sociolegal milieus such technology forms part of. Jo Bridgeman turns a relational account of embodiment – that understands the body of the child through social mediations, including care relationships – to legal cases pertaining to children’s future medical treatment, taking inspiration from feminist judgments scholarship to reimagine how embodiment may alter legal decision-making. This section, and the volume, close with Marie Fox, Michael Thomson and Joshua Warburton, who fashion a jurisprudence of embodied integrity in opposition to the liberal legal concept of bodily integrity; bodily integrity reifies the body as materially static, while embodied integrity attends to the dynamic material-discursive flux of the body, ‘rendering visible the social meanings ascribed to bodily impairments and understanding the body as an emancipatory concept’ (p. 284).
What body is present, and correspondingly, what bodies are absent, in these sections and chapters? While the essays are certainly located within the Somebody and Everybody, as Dietz, Travis and Thomson describe it, and this moves sociolegal scholarship beyond the Nobody and Anybody of conventional, modern forms of jurisprudence, these movements still have room for further elaboration in that the chapters generally focused on the discursive or ‘institutional’ responses to bodies. The sensuous, fleshiness of law is off the microscopic slide even where authors signal that bodies are porous, materially dynamic and inextricably variant. Greater emphasis could be placed on the performativity of corporeal matter. For example, Andreas Philippopoulos-Mihalopoulos’ (2015) theorisations on material and spatial justice may be one path forward; I have attempted to engage with his thought in describing the jurisgenerative capacities of patients’ presumably dead bodies subject to physicians’ determinations of death (Shaw, 2021). I have referred to these bodily capacities as antinomian, in that the dynamic movements of their porous, constitutive matter and milieu always threaten to leak outside preferred orderings or regularisations of the socio-physical, generating ruptures that might lead to new legal secretions, new choreographies or new nomoi applicable to health and illness (Shaw, 2020, 2021).
Further, there is a focus on the human in the volume, which may be understandable given the topical constraint of health law and the historical context of its individuation, but the human appears to be presumed by the contributors as the limit and root of law’s relation to the body, even where that body is expanded through relationality. I think it is potentially fruitful to think about the human body in its fragmented forms, in what composes the human, which may not be clearly demarcated from what is not human. Instead, this would cleave and proliferate the body into multiple bodies, like the molecule, the liver, the virus, etc. whose vectors may, as Donna Haraway (1991) encouraged us to consider, become entangled in material-discursive assemblages that law or legality forms part of. I am thinking here of Lara Tessaro’s (2020) recent work on the regulation of oestrogen, and Dayna Nadine Scott’s (2016) work on transcorporeality in the ‘smellscape’ of the Aamjiwnaang Bucket Brigade, which treats bodies as extensive with broader materialities. The Everybody may be uncertain in such a movement, at least in how theses of vulnerability and relationality are conceptualised and explored, as it necessitates a move beyond the human. But I think this opens the theoretical weight of a jurisprudence of the body towards that of multiple bodies, of ‘human’ and non-human forms, which can better wrestle with more-than-human encounters necessary to expand outside the medico-legal into other fora of health as Coggon’s chapter might be read as inviting.
Nonetheless, the desire to describe a jurisprudence of the body is a good one and this volume is an excellent contribution. Critical engagements in health law through the body – or bodies – are limited in number. The body occasionally rears its head as the focus of other critical sociolegal scholarship – like Alan Hyde (1997), Leslie Moran (1999), Roxanne Mykitiuk (1994) – but these, too, are disparate appearances that have not coalesced, from my view, as a distinct field. As a field – which I take a jurisprudence of the body to potentially offer – I would envisage frequent and deep intercourse between scholars in a manner that achieves what critical body studies achieves with Margrit Shildrick (1997), Elizabeth Grosz (1994), among others. This volume provides a foundation for more thorough engagement with the body – and, as I personally hope, bodies – in sociolegal studies.
