Cuts and Criminality

Body Alteration in Legal Discourse

Theodore Bennett

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317155409
• Edition: 1
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

This book investigates how and why the criminal law differentiates between different types of body alterations, with particular reference to how they are conceptualised within legal discourse. By drawing connections between types of body alteration that have traditionally been considered separately and discretely, the book allows analytical conclusions to be made about the law's treatment of the general category of 'body alteration' rather than merely about specific types of body alteration. Taking legal discourse as its analytical focus, the author critically examines a number of case studies to determine the techniques and processes by which some body alterations are discursively constructed as legitimate and legally approved, and by which other body alterations are discursively constructed as illegitimate and legally sanctioned. Specifically, the body alterations that are addressed include sadomasochistic injuries; female genital modification and male circumcision; cosmetic surgery, body modification and healthy limb amputation; and sex reassignment surgery and genital 'normalisation' surgery. International in scope, the discursive analysis in the book will be of interest to academics and researchers working in the areas of socio-legal and cultural studies.

Chapter 1
Analytical Approach: Theoretical Basis and Key Concepts

Before beginning to engage in the proposed analysis of the case studies, it is necessary to first set out the theoretical understandings and key concepts that ground this book. If one of the outcomes I am seeking is to reveal and analyse the underpinning understandings about bodies that legal discourse employs and that law authorises, then it is important to lay out my own underpinning assumptions about discourse and the law with a high degree of transparency. The aim of this chapter is threefold. Firstly, I want to foreground the particular way in which the subsequent analysis will be conducted by providing a principled theoretical basis for its scope, content, method of approach and, ultimately, the types of conclusions that it reaches. This theoretical basis provides support and structure to the subsequent analysis but it is not the main feature of this book. The focus of the book is not directed specifically towards adding to, expounding upon, varying or critiquing the theory from which it draws: the focus is more on utilising such theory. Instead of being the object of analysis itself, this theoretical basis simply blends into and informs the shape of the case studies to come. Secondly, I want to introduce and explain a number of key concepts that this book will specifically draw on during the course of the subsequent analysis. Locating these concepts at the outset of the book allows the same concepts that arise within multiple case studies to be explained initially and in a central space, and it also assists the progress of the analysis within each chapter by obviating the need for lengthy segues into conceptual explanations that would distract from the case study at hand. Unlike the theoretical basis that blends into the analysis, these concepts will be explicitly addressed throughout the course of this book and their usage will be directly addressed in the Conclusion. Thirdly, certain theorists and thinkers have influenced this book and its approach towards the material. This chapter provides an opportunity to acknowledge the academic debts the book owes to these writers, as well as to locate it within the broader corpus of commentary in the area.

In working through the analytical approach taken in this book, the key areas of thought that need to be addressed are postmodernism, discourse theory and body theory. Brief explanations of these areas are offered, focusing on the relevant theories and concepts that underpin the analysis to come.

Postmodernism

The term ‘postmodern’ is notoriously difficult to define. The fact that it has been taken by some commentators to denote something as broad and as lofty as ‘a range of cultural theories and practices which break with the unity and certainty of the Western intellectual tradition’ (Shildrick 1997, p.5) indicates why its definitional borders lack clarity. This is further complicated by the different meanings postmodernism has within different academic contexts. Postmodernism has been employed differentially within areas as varied as art theory, critical literature studies, anthropology, sociology, science and philosophy. Any incoherence that may be seen to result from this is neatly defused by postmodernism’s scepticism ‘towards the separation and autonomy of … “spheres” of culture or separate “fields” of experts’ (Turner, 1990, p.5). As Shildrick (1997, p.6) notes, part of postmodern theory is the assertion that the ‘boundaries between hitherto discrete bodies of knowledge have blurred’, allowing the exchange of theories and concepts across previously strictly demarcated lines. Any inconsistencies that arise between these various iterations of postmodernism do not threaten to destabilise or defocus it as a theory. Instead, they form an integral part of the theory. Coherence, truth and knowledge are considered to be fragmented. Objectivity and authenticity are portrayed within postmodern theory as mere claims made by a ‘series of dispersed, competing and conflicting discourses’ in an effort to claim authority (Shildrick, 1997, p.6). Instead, postmodernism recognises that ‘different logics or paradigms, that is, different systems of discourse with their distinctive value axioms, can co-exist in the same social space’ (Murphy 1994, p.4, emphasis in original). According to postmodern thinking, the idea that truth is a construction deflates appeals to higher-level, authenticating concepts, such as ‘unified rationality or morality’ (Shildrick, 1997, p.6). As a result, ‘universal cultural meanings’ are deprivileged by postmodernism and replaced with a ‘recognition of local, particularised, and contradictory cultural configurations’ (Stychin, 1995, p.23).

This postmodern focus on subjectivity is incorporated into the theoretical basis of this book. Instead of reading legal conclusions as objective pronouncements, or as based on basal and (purportedly) ‘objective’ principles such as justice, fairness or the grundnorm, focusing on subjectivity allows the law to be read as a system of internal truth-production. Considering law as self-authenticating and subjective opens it up to challenge. The ‘truths’ produced by legal systems of knowledge can be critically analysed and ‘taken apart … so as to reveal that they are not universal truths but constructions’ (Rahman and Jackson, 2010, p.126) Given that law holds no stronger claim to ‘truth’ than any other system of truth-production, its internal logic becomes susceptible to comparison to external logics and ‘truths’ with equally (in)valid claims to authenticity. As a result, this book is able to look beyond what would be considered ‘traditional’ legal texts in order to contest law and legal discourse. It employs this focus on subjectivity as a justification for drawing from other academic areas such as sociology, medicine, psychology, cultural studies and philosophy in order to contest legal claims to a singular ‘truth’ and to instead represent a broader plurality of meanings that cohere around body alterations.

Another key focus within postmodernism is pluralism. Societies organised on the basis of modernist principles operate through a system of homogeneity, taking ‘the larger variety of human capacities or histories and transform[ing] them into a smaller number of possible outcomes or transform[ing] most of existing diversity into non-consequential variations’ (Simon, 1996, p.12). In contrast, a postmodern society ‘operate[s] in reverse, as identical points of origin give rise to many different outcomes and … identical outcomes can be recognized as the product of a diversity of origins’ (Simon, 1996, p.12). This is not only a principle of social organisation, it is also a key theoretical understanding. Postmodernism is deeply suspicious of unifying theories, grand narratives and the search for underlying ‘hidden’ truths and logics within and between topics. Such attempts are totalising as they construct, rather than recognise, similarities, and they elide, rather than dismantle, differences. In contrast, postmodernism is characterised by a ‘desire to think in terms sensitive to difference’, and to both recognise and legitimate diversity (Turner, 1990, p.5).

This postmodern focus on plurality has been incorporated into the theoretical basis of this book in two distinct ways. Firstly, it is incorporated in terms of content. The operation of criminal law tends towards singular, narrow constructions of people and events: lawful or criminal, guilty or not guilty, harmful or not harmful. Obviously, this can only be achieved at the expense of a much broader range of ‘truths’, stories and conceptions that circulate within law and discourse. This is a profoundly modernist characteristic of the legal system and this book shares Smart’s (1989, p. 4) aim of exploring how and to what extent law ‘resists and disqualifies alternative accounts of social reality’, with a view to opening up space for the recognition of differences that are typically elided within legal discourse. In particular, the book is committed to recuperating alternative accounts about bodies. As it argues through the course of the various case studies, these accounts offer counter-discursive understandings that challenge the reductive monopolisation over meaning held by authoritative legal discourse and subvert the black-letter of the law. Secondly, it is incorporated in terms of form. The aim of this book is not to find, bring to light and reconcile ‘hidden truths’ about bodies that are submerged by the operations of law and discourse. The book does not work towards the modernist academic goal of guiding law closer to a more ‘correct’ understanding about bodies and body alteration, nor does it ‘engage in the project of constructing a “grand theory”’ (Beckmann 2009, p.6) that somehow draws together all the intersections between body alteration and law into a singular explanatory framework. Instead, like Beckmann (2009, p.6) I am ‘committed to a critical exploration of significant concepts that serve as normativizing injunctions’ within law and discourse. This book is about discovering, probing and dissecting multiple and competing understandings about bodies, how they are constructed and presented by various systems of discourse and how they are incorporated (or not incorporated) into criminal law. It does not make claims about which specific understanding about bodies that law and discourse should adopt and privilege, rather this book makes the pluralist claim that law and discourse should acknowledge a wider range of understandings about bodies.

It should be noted that the term ‘“postmodernism” is often used interchangeably with poststructuralism— and different writers will use either one of these terms to refer to the same body of theory’ (Rahman and Jackson, 2010, p.125). Despite these terminological slippages within the broader commentary, this book refers to this body of theory as postmodernism. It should also be noted that postmodernism’s body of theory stretches far beyond the focus on subjectivity and plurality that I have discussed here. A more thorough explanation of postmodernism would need to address the work of prominent theorists such as Baudrillard (1988a; 1988b; 1988c; 1988d), Derrida (1992), Foucault (1964; 1972; 1976; 1977; 1988a; 1988b; 1988c; 2003) and Lyotard (1984; 1988), as well as other key postmodern concepts such as deconstruction, simulacra and simulation, pastiche, irony and semiosis. To attempt a complete definition of postmodernism might even be a fool’s errand. As Turner (1984, p.5) notes, given the very nature of postmodernism and its commitment to ‘open textuality … it is hardly possible to adopt a rigid or formal consensus about what [it] is’. Nevertheless, whilst this book deliberately adopts some core aspects of postmodernism it does not address other core aspects of postmodernism.

Narrowing down the broad range of postmodernism to what is relevant for the later analysis, one final part of the theoretical basis of the book must be touched upon: discourse. As Simon (1996, p.12) notes, if any one concept other than pluralism ‘dominates discourse about postmodernism’ it is the concept of ‘“discourse” itself’. Michel Foucault, who engaged with it at length in works such as The Archaeology of Knowledge (1972) and Madness and Civilization (1964), can be largely credited with developing and expanding the particular conceptions of discourse that this book draws on. Discourse is of such integral concern to the book that the next section of this chapter is devoted to an explanation of it. The purpose of mentioning discourse here is to locate this book’s concern with discourse as a corollary to its adoption of other aspects of postmodernism.

Having explained the general influence of postmodernism on the book’s analytical approach, it is still necessary to acknowledge and address the works that have informed the makeup of its theoretical basis. Whilst a number of texts provide valuable models of how to systematically incorporate elements of postmodernism into the discursive analysis of legal areas (such as Eisenstein, 1988; Smart, 1989), this book is indebted to two texts in particular: Carl Stychin’s Law’s Desire: Sexuality and the Limits of Justice (1995) and Alan Hyde’s Bodies of Law (1997).

Stychin (1995) provides an illuminating example of how to embed postmodernism in his interrogation of the discursive construction of homosexuality within law and legal discourse. He closely reads and analyses homosexuality as a discursive category, revealing how homosexual identities are constructed and regulated within the law and demonstrating the ways in which such identities can be deconstructed and contested. He also offers an explicitly postmodern counter-point to the typical jurisprudential obsession with ‘unearthing’ and cultivating the internal logic of the legal system, stating that he cannot ‘provide a singular “truth” in [his] examination’ and must remain suspicious of claims to universal truth (Stychin 1995, p.1). The incorporation of postmodern thought in this book closely follows parts of Stychin’s approach. Like Stychin (1995), the book treats elements of postmodern thought as a theoretical basis to achieve its analytical ends and will also highlight avenues for the contestation of authoritative legal discourse.

Hyde (1997) focuses on the use of language to reveal how law has developed a taxonomy of metaphor-centred, discursive conceptualisations of the body. For example, he identifies metaphors such as ‘body-as-property’ and ‘body-as-machine’ as being key concepts circulating within legal discourse. Tracing the development of these metaphors through time, Hyde (1997) elucidates the historical conditions for their existence and addresses the specific ways they inflect and function within legal reasoning. He rightly points out that these metaphor-constructions should be treated in a ‘self-conscious’ way, because they are neither ‘natural’ nor authentic, and that they should be regarded as ‘strategic interventions’ because they position and influence legal discourse in politically loaded ways (Hyde, 1997, p.235). Ultimately, Hyde (1997) argues towards what he names a postmodern state of ‘body fantasia’. Within this state, the legal system would admit the artifice of these body metaphors, and begin using them reflexively as a means to move towards the ‘larger goal of communication and understanding’ the diversity of people (Hyde, 1997, p.263). Like Hyde (1997), this book argues that the conceptualisations of the body built up within legal discourse are thoroughly artificial as well as politically loaded. However, instead of arguing towards a state of ‘body fantasia’ where these conceptions of the body would still persist within the law (albeit in a more reflexive capacity), it works instead towards breaking down current restrictions on conceptions of the body by exposing them to alternative, counter-discursive accounts.

Hyde (1997, p.263) considers legal discourse to function in a reductive manner; he deplores the body metaphors used by law as ‘the cumbersome euphemisms of people who cannot talk about the body, like sexless, joyless lawyers in their evasiveness’. The subtext here is that legal discourse is deficient in that it fails to capture some essential truth or authentic knowledge about the body. The problematic aspect of this subtext is that Hyde seems to slip from postmodern thought into a more modernist critique by figuring legal discourse as an inauthentic way of conceptualising the body. This necessarily implies objectivity, in that a conceptualisation of the body can only be inauthentic if there is an authentic conceptualisation of the body against which it can be measured and found wanting. Unfortunately, this modernist slippage seems crucial to the argument because it is necessary in order to justify his advocacy for the ‘body fantasia’ ideal: if current legal discourse isn’t ‘broken’ in some way, then the ‘solution’ he offers would be superfluous. Unlike Hyde’s (2007) approach, this book is more focused on the postmodern ideal of subjectivity and does not consider there to be an ‘objective’ truth about bodies that legal discourse should aim to approach or embody. Rather the book considers there to be a plurality of subjective truth-claims about bodies, and it reveals how legal discourse and law differentially authorise, marginalise and elide these accounts.

Discussing Discourse

Understanding the concept of discourse requires a shift away from seeing language ‘simply as expressive, as transparent, as a vehicle for communication, as a form of representation’, and towards seeing language as ‘a system with its own rules and constraints, and with its own determining effect on the way that individuals think and express themselves’ (Mills 1997, p.8). As such, the term ‘discourse’ has been used by commentators such as Foucault to ‘more broadly… denote ways of thinking about and constructing knowledge of the world’ (Rahman and Jackson, 2010, p.42). Language exists within different types of verbal and non-verbal texts and can be broken up into component parts, such as utterances, sentences and statements. Collections of component parts that have a discernible regularity in terms of their ‘objects, types of statements, concepts, or thematic choices’ (Foucault, 1972, p.38) are called discursive formations or discursive structures (Mills, 1997, p.17). Such collections are governed by their own idiosyncratic internal logics that regulate the form and content of their statements, as well as the requisite conditions under which such statements can operate and be communicated. Thus, attempting to determine whether a statement falls within the boundaries of a certain discursive framework requires comparing that statement to a collection of other statements generated within the discursive formation to determine if they result from a similar ‘institutional pressure’, if they have similar ‘provenance or context’ and if ‘they act in a similar way’ (Mills, 1997, p.62).

This book is concerned with discourse, and in particular with legal discourse. It is uncontentious to identify that the legal system produces an idiosyncratic discursive formation (Gibbons, 1994; Humphreys, 1995; Smart, 1992), and that this legal discourse, perhaps more so than other discourses, ‘regulates the symbolic domain in order to maintain social order’ (Gulerce, 2007, p.33). Legal discourse can be considered to be quite a ‘fertile field’ for discourse analysis both because it is highly verbal and because legal statements are carefully recorded and housed in the ‘immense collections’ of the law libraries, courts and internet databases (Shuy, 2003). The key agents who ‘help to establish law as a discourse’ include ‘courts, judges, lawyers, and law professors’ (Eisenstein, 1988, p.43) and the kinds of texts that make up legal discourse include statutes, cases, legal submissions, oral court records, transcripts, academic articles, academic books, and so on. This book focuses on written legal texts rather than on the various types of oral legal texts. This choice is simply one of convenience due to the easy availability of these written texts for research.

Exploring and analysing ‘legal discourse’ cannot be successfully carried out by adopting an approach that focuses purely on the ‘law’. Legal discourse, like any discourse, is permeable because it intersects with other discursive formations. Isolating a particular discourse and determining what texts can be attributed to it is complicated by the fact that discursive formations do not function as discrete, self-contained wholes. They influence, and are influenced by, other discourses with which they share social space, and they are thus in a state of ‘constant conflict … over questions of truth and authority’ (Mills, 1997, p.19). As a result, the meanings and values assigned to the objects of discourse fluctuate with the varying authority held by certain discourses at certain times. Whilst legal discourse may be a relatively individuated formation, it is deeply interconnected with other discourses and institutions. Despite law’s role as the sole ‘institutionalised means of settling disputes and solving problems of social order’ (Humphreys, 1985, p.250), legal discourse is only ‘relatively autonomous’ (Post, 1991, p.viii) as other discursive frameworks influence its operation. Concepts within political discourse, such as ‘public order’, influence the methods involved in policing and enforcement of laws at certain times and in certain spaces. Similarly, concepts within medical discourse, such as clinical definitions of ‘insanity’ and assessments of the level of physical injury, influence the extent of legal liability for actions. Legal discourse is thus sufficiently separate to be recognised as an individual discursive formation, but it is not separate enough to be free from the influence of other dominant discourses. Incorporating this understanding about the permeability of legal discourse into the theoretical basis of this book opens up the scope of the analysis. The analysis needs to be calibrated so as to encompass more than just legal discourse, and must also consider the range of other discursive frameworks that impact on legal discourse; law should not be ‘seen unambiguously, in isolation, but in its relationship to [a] diverse range of social discourses’ around the body (Sclater, 2002, p.1). Indeed, as Roberts (2011, p.351) recognises:

To frame an issue within the context of legal discourse is not simply to resolve it or to make it solely a legal issue. Practices relating to the body cut across all the boundaries between social, political, legal, religious, medical, cultural and theoretical discourses exposing the ways in which each bleeds into the others and is in turn ruptured by the others.

Discourses are not only conflicted without, they are also conflicted within. Foucault (1972, p.155) warns us not to look for an ‘ideal, continuous, smooth text’ because discourses are characterised by dissension and contradiction. Discursive formations are malleable and responsive to internal and external pressures; their boundaries and logics are eternally changing and reshaping to accommodate shifts within other discourses and the wider culture. Discourse will necessarily never be free from competition for meaning. Whilst dominant and authoritative themes may strongly impact on the general flow of concepts within discursive frameworks, alternative conceptualisations are always simultaneously being pushed by counter-discursive currents.

Incorporating this understanding about the internal conflict within legal discourse into the theoretical basis of this book orients the scope of the analysis. The book cannot hope to analyse ‘all’ of legal discourse across time, but rather can only attempt to identify and engage with those key aspects of legal discourse that are identifiable by their relative authority, ubiquity and constancy within the contested discursive flux. Furthermore, the analysis must also account for the alternative counter-discursive currents that exist within legal discourse and that push back against the dominant authoritative discursive conceptions. Authoritative strands of legal discourse operate to ‘disqualify other knowledges and experiences’, determining who can speak and ‘how they are allowed to speak’, and who is ‘silenced’ (Smart, 1989, p11). This understanding is a key concept within the book. The tension and contradiction between dominant discursive conceptions and alternative discursive conceptions is an issue that will be revisited and directly addressed across multiple case studies within this book. It will be expounded upon at length in terms of ho...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Acknowledgements
• List of Abbreviations
• Introduction
• 1 Analytical Approach: Theoretical Basis and Key Concepts
• 2 Sadomasochistic Injuries: Harmful Crime or Harmless Pastime?
• 3 Genital Cutting: The Disparity Between Female Genital Modification and Male Circumcision
• 4 Aesthetic Alterations: What Healthy Limb Amputation Can Tell Us About Cosmetic Surgery and Body Modification
• 5 Sex Surgeries: Defusing Transgression Through Genital Normalisation and Sex Reassignment
• Conclusion
• Bibliography
• Index