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Bodies of Law

Bodies of Law

Alan Hyde
Copyright Date: 1997
Pages: 264
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  • Book Info
    Bodies of Law
    Book Description:

    The most basic assertions about our bodies--that they are ours and distinguish us from each other, that they are private and have boundaries, races, and genders--are all political theories, constructed in legal texts for political purposes. So argues Alan Hyde in this first account of the body in legal thought. Hyde demonstrates that none of the constructions of the body in legal texts are universal truths that rest solely on body experience. Drawing on an array of fascinating case material, he shows that legal texts can construct all kinds of bodies, including those that are not owned at all, that are just like other bodies, that are public, open, and accessible to others. Further, the language, images, and metaphors of the body in legal texts can often convince us of positions to which we would not assent as a matter of political theory.

    Through analysis of legal texts, Hyde shows, for example, how law's words construct the vagina as the most searchable body part; the penis as entirely under mental control; the bone marrow that need not be shared with a half-sibling who will die without it; and urine that must be surrendered for drug testing in rituals of national purification. This book will interest anyone concerned with cultural studies, gender studies, ethnic studies, and political theory, or anyone who has heard the phrase "body constructed in discourse" and wants to see, step by step, exactly how this is done.

    eISBN: 978-1-4008-2231-7
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
    (pp. vii-2)
    (pp. 3-16)

    Bodies are, among other things, the ways we represent other people to ourselves. Bodies are, at least in part, the linguistic, discursive devices for representing that aspect of other people, indeed of ourselves, which is not opaque and inaccessible to us. We may or may not know other people. We believe we can see, touch, measure, sense, evaluate their bodies. In doing this, we often fail to appreciate our own agency in constructing those very bodies that we claim to see, bodies that, we claim, represent others. Out of our ignorance, as Vico says, we make things out of ourselves,...

  5. Part One: Regulation

      (pp. 19-33)

      Quite literally the first legal analogy taught to many American law students imagines the body as a machine, owned by its owner or buyer (someone or something other than the “body”), and used by that owner in order to make money. This parade of fantastic inferences, which law students annually swallow without significant protest, shows up in the celebrated case ofHawkins v. McGee.¹ I shall argue that the case’s role in the first semester of law school is to introduce students to discursive bodies that are distant from, and unlike, us.

      The case introduces law students, on their first...

      (pp. 34-47)

      Bodies were machines in American law principally from 1908 to 1929, as the symbolic objects of efficient management and regulation. The analogy does not appear to have been used in American law until the early years of the twentieth century, as part of the legal campaign over legislated limits to the working day. By the time the legal body was first constructed as a machine, the machine body was an extremely complex metaphor that was in active use in medical thought and in literature to convey at least three different ideas.

      First, the body is a machine because it is...

    • Chapter 3 THE BODY AS PROPERTY
      (pp. 48-79)

      The chief function of law in advanced societies is to provide a totalizing vocabulary, under which people will become incapable of articulating any modalities of human interaction except as the relations between buyers and sellers in markets, and between bearers of abstract rights. Legal discourse powerfully and relentlessly translates all other and earlier ways of describing human relations into its preferred formulations. Thus love becomes marriage, which is conceptualized as acontract; intrafamily relations become described as the clash of parental and children’srights,and so on. Even a particular doctrine or decision that may uphold, say, children’s as against...

      (pp. 80-96)

      If George Hawkins owns his hand, a machine, and Margaret Green owns the container in which her blood is transported to market, does Jane Roe own her body for purposes of determining whether the Texas can forbid her from obtaining an abortion? Does the answer to this question matter? If the answer is, no, it does not matter, because Jane Roe’s right of privacy guarantees her at least some possibility of abortion, then how and why is this private body constructed in legal discourse? The common thread among George Hawkins’s, Margaret Green’s, and John Moore’s cases is the juxtaposition of...

      (pp. 97-106)

      Can people legally sell their capacity to reproduce? In the famousBaby Mcase, the court, in refusing to enforce a contract in which a “surrogate” mother agreed to become impregnated and then give up the child, described the contract disparagingly as “the purchase of a woman’s procreative capacity.”¹ There is, however, no general barrier in American law to the sale of one’s reproductive capacity. Employers may require that employees sterilize themselves before work that exposes them to dangerous toxins, and there does not appear to be any doctrine of labor or civil rights law that prevents such contracts. This...

  6. Part Two: Desire

      (pp. 109-130)

      To every construction of the body as a commodity or property, there exists some moment at which everyone recoils in horror. Everyone has a point of insistence on a relationship to the body of another that is noncommodified and nonutilitarian, the meaning of which would be destroyed were participants to attempt to experience it as an economic exchange. I shall be using the termdesireas a nontechnical term to cover all relations in which someone wants to see, be close to, understand, possess the body of another but that are not characteristically experienced as relations of economic exchange. For...

      (pp. 131-150)

      Desire for the body is not limited to the particular dream imagery associated with marketing and discussed in the last chapter. Nude bodies or their representations excite desire for other purposes and thus present other problems in legal regulation, the obverse of the problem of the last chapter: not the specularization of the dominated, but the suppression of the display of the willing. The cases involving Sondra Tamimi and Renee Rogers, like the works of Michel Foucault and his followers, have conditioned us to imagine the body, often female, constituted as the object of the male gaze.¹

      A common competing...

      (pp. 151-164)

      The bodies that raise “privacy” claims are alldesiredbodies in the broad, notnecessarily-erotic sense that we defined in chapter 6. They have stories to tell us, secrets that we desire to possess. In their veins and urine and organs lie tales of crimes committed, drugs ingested and smuggled, madness uncontrolled.

      In deciding which bodies may be searched, and how far, law constructs a distinctive body, different from others we have seen: the body constructed as an “interest” in “privacy.” The characteristic features of this body, as we shall see in greater detail, are that it is distinct from the...

    • Chapter 9 THE LEGAL VAGINA
      (pp. 165-172)

      Law constructs the vagina largely as a hiding place, full of secrets the eye cannot behold from outside, where drugs or other mysterious narratives lurk. The four figurations through which law characteristically constructs the vagina may seem contradictory but actually reinforce each other. First, the vagina is constructed as a thing, a possession, a space that may be searched: the apartment-vagina. Second, remarkably, the vagina, unlike any other body part, is often represented in relation to other people. Third, and related to the relational vagina, is the pornographic construction of the vagina on display, also searchable, open to the gaze....

    • Chapter 10 THE LEGAL PENIS
      (pp. 173-186)

      A few months after the United States Court of Appeals for the First Circuit in Boston constructed the searchable vagina of Shirley Rodriques, it had occasion to construct the unsearchable penis of Norman Harrington.¹ Norman Harrington’s penis, like Shirley Rodriques’s vagina, had a tale to tell, a narrative to decode, secrets to disclose—none of which the state may know, at least in the way the state had hoped to learn them.

      Norman Harrington is a police officer in the City of Old Town, Maine. Four children, siblings, accused Harrington, among others, of sexually abusing them. Two years earlier, the...

      (pp. 187-202)

      In Michel Foucault’s familiar periodization, criminal punishment sharply altered its relation to the body in the nineteenth century. Criminal punishment in the eighteenth century created a “spectacle of suffering” in which the body, sometimes tortured, sometimes branded or hung, was on display as an object lesson. Increasingly in the nineteenth century criminal punishment became hidden, no longer spectacularized, rather, the sober imposition of discipline on prisoners.²

      Foucault, momentarily forgetting his own methodological prescripts, called this disappearance of public executions “a slackening of the hold on the body” and modern penal practice as “non-corporal,” but I think it much more accurate...

  7. Part Three: Abjection

    • Chapter 12 BODY WASTES
      (pp. 205-221)

      We turn now to a disparate group of cases that have in common the discursive casting out of disfavored bodies constructed as threats to the social order: drugged bodies, diseased bodies, bodies in disfavored racial classifications, odorous bodies. I shall argue that the discursive construction of these bodies responds more to infantile psychological processes of identity formation than to self-conscious reasoning, as a result of which law’s discursive constructions are less easy to periodize, have longer histories, and will probably be harder for readers to imagine separating from.

      Every body survives by shedding itself regularly of wastes such as urine...

    • Chapter 13 THE RACIAL BODY
      (pp. 222-240)

      Race, insofar as the word has any distinctive meaning, is a construction of the body. For any sentence containing the wordrace,in which the word cannot be completely replaced byethnicityorgroupwithout loss of meaning, a body is being constructed, and a claim is being made about physically identifiable bodies as the bearers or carriers of some other trait.? A theory of race is not merely a theory of differences among people, but a theory that locates, figures, inscribes those differences, not in the mind, history, experience, or likely reactions of others, but in the body. It...

      (pp. 241-251)

      The canonical construction of a diseased body in American law concerns a body subject to compulsory inoculation against smallpox. There is, by contrast, no canonical legal text constructing the body with AIDS—indeed, the United States Supreme Court has yet to utter the acronym in any opinion— so we will not be examining the enormous literature, associated with cultural studies, on the construction of AIDS in popular culture and medical language.¹

      The total eradication of smallpox is one of the few genuine achievements of this benighted century. Smallpox, “in terms of the sheer numbers of people killed, blinded, crippled, pitted...

    • Chapter 15 OFFENSIVE BODIES
      (pp. 252-257)

      Law facilitates the construction and abjection of hated Others whenever it permits classification and exclusion around issues of sameness or propriety. Abjection is not just about hatred of immigrants or particular races. It is, as we have seen, part of the psychological process of the formation of the self and is particularly associated with the purification of the body and maintenance of body boundaries. Social concern with hygiene is inseparable from division of the population into high and low, and control of the lower orders. Such abjection is well illustrated by a recent case upholding the power of a public...

    • Conclusion A BODY FANTASIA
      (pp. 258-266)

      The body is the way we represent to ourselves that there are other people, with lives, in the world. The body metaphorically represents those qualities of other people to which we believe we have access, which we can see, hear, sense, or smell. From the thousands of mental, moral, biological, psychological, and spiritual processes that make up another person, the set that at any given time constitutes the set of representable processes is called the body.

      Biology places fewer constraints on this process than is commonly supposed. Biology gives us arrays of bodily organs of different shapes and sizes and...

    (pp. 267-268)
  9. INDEX
    (pp. 269-278)