1 Introduction
Health and embodiment are inextricably linked. How we feel about our bodies has a significant impact upon our health. When we feel healthy, we tend to experience our bodies positively, and vice versa. Similarly, it is difficult to think of an occasion when we experience poor health and yet feel good about our bodies. An unexpected diagnosis can dramatically alter our experience of our bodies, even if we felt fine immediately before we received it. Meanwhile, getting the all-clear from a medical professional following a health test can have unparalleled positive effects upon our general well-being. For this reason, few dispute the centrality of the body within health studies. Yet as we turn our attention to the law, and health law specifically,1 we note that bodies have not always been considered as seriously as they might have been. Rather than being front and centre in the minds of health law scholars and practitioners, the body has tended to be obscured in various ways. Even when the body has not been masked within health law—for example, in the case of the bodies which have been considered disordered, diseased or disabled, and which have animated many discussions about health—they have tended to be under-theorised. Such bodies have been framed in a manner which fails to address the complexity of embodiment, and the messy instability of bodies.
This collection seeks to uncover and challenge some of the fundamental assumptions that underpin medico-legal knowledge about bodies. In doing so, it raises important questions about how various types of bodies are, and ought to be, regulated. The question of what the body is and how it directs our thinking about law and health is hereby positioned alongside a wider question about how institutions such as law and the healthcare system shape our understanding of bodies. A Jurisprudence of the Body brings together a range of theoretical perspectives to consider fundamental questions about health law and the place of the body within it. The collection reflects the shift in feminist thinking ‘from an emphasis on the discursive toward the material’ (Garland-Thomson 2011: 594), positioning its theoretical focus on the connections between the law and flesh. Some contributors discuss bodies which have been located at the heart of health law debates since the inception of the field. Others consider bodies which remain on the margins. But each contribution addresses the discursive and institutional boundaries of health, and in some cases, seek to dismantle them. This collection is hereby positioned at the intersection of theory, health and law but also at the limits of these spheres—pushing them to breaking point in order to facilitate the possibility of new directions in health care and health justice.
In this introduction, we seek to frame the discussion that will follow. After briefly charting law’s (lack of) engagement with the body in the first section (entitled ‘Nobody’), we then address the ways in which a de-contextualised conception of bodies has been used to regulate embodiment in the second (‘Anybody’). As we explain, such framings inevitably underplay the inherent diversity of human bodies, which will have significant impact upon law and policy, particularly within a health law context. In the third section (‘Somebody’), we identify how attempts have been made to re-contextualise bodies in relation to the specific institutions and regulations to which they are subjected in order to better account for this embodied diversity. This improved, but fragmented, understanding of bodies will then be contrasted with the recent return to universality in the fourth section (‘Everybody’). In an attempt to move law and policy beyond interrogation of identities, universal approaches—including those developed within vulnerability theory and other embodied theories of justice—have become increasingly pronounced in contemporary legal studies. Intersectional, identarian and post-identarian understandings of bodies are well represented in this collection, as emphasised in the fifth and final section of this introduction.
2 Nobody
Traditional jurisprudential approaches have been reluctant to engage with the idea of the body. Positivists have neglected to outline either the impact of law on bodies or the effect of bodies on their relationships with law. Such formulations have failed to consider the body as a determining factor in the attribution of personhood; instead espousing, for example, the view that the person is a legalistic shorthand (Dewey 1926: 655). This view is elaborated by Derham, who writes:
Under this understanding of personhood, the legal person is a unit devised and utilised by law, a container capable of being filled by any entity (such as the doctor or patient of health law). Yet while it may be correct to say that anyone (or anything) can be a legal person, this does not ascribe a basis for determining personhood. Nor can it account for the diverse bodies to which personhood has been applied, the injustices it conceals or the bodies that it has privileged and underprivileged. This separation of law and bodies fails to account for the ways in which bodies are shaped, constituted and constructed by the institutions that they are imbricated within. As a result, this disembodied conception of law has been critically described by Grear as ‘a socially decontextualized, hyper-rational, wilful individual systematically stripped of embodied particularities in order to appear neutral and, of course, theoretically genderless’ (2011: 44).Just as the concept “one” in arithmetic is essential to the logical system developed and yet is not one something (e.g. apple or orange, etc.), so a legal system (or any system perhaps) must be provided with a basic unit before legal relationships can be devised. The legal person is the unit or entity adopted. For the logic of the system it is just as much a pure “concept” as “one” in arithmetic. It is just as independent from a human being as one is from an “apple”. (Derham 1958: 5)
3 Anybody
The lack of emphasis on bodies has given rise to the liberal conception that bodies are largely interchangeable in their interactions with societal institutions, including law and the healthcare system. Liberal framings, such as human rights discourse, have become the dominant language for thinking about law and the body. These tend to be premised upon the supposed universality of the human body. Yet the meaning of humanity, or even biology, is subject to both social and cultural concerns. As Fuss (1996: 1) has claimed: ‘the human is a linguistic, cultural, and sociopolitical construct of comparatively recent date’. For Fuss, the concept of the human is more than a simple genetic relation. Instead, it relies upon political and cultural ideology to include and exclude entities from its boundaries at different times. As a consequence, it is unsurprising to find that broader liberal legal considerations have, for the most part, categorised the body ‘as an object of analysis rather than as a category of analysis’ (Fletcher et al. 2008: 321). This point of focus has failed to account for the value that society places on the living physical body, particularly in terms of our interactions with others and its facilitation of our experience of being in the world (Fletcher et al. 2008: 321). Hyde (1997) notes that the law uses a variety of unsuccessful conceptualisations when dealing with the body, including property, privacy right and machine. Each of these metaphors fails to encapsulate the importance of the body. As Naffine writes, there has been a shift in legal theory from a bodiless conception of law to a particular type of (assumedly interchangeable) body:
Principles of liberty, equality and freedom operate to allow individuals the same opportunities for flourishing within Western states. Liberal understandings of meritocracy suggest that anyone can achieve anything—even good health—provided they work hard enough for it. In turn, anti-discrimination law has become prominent in order to prevent people from being unfairly discriminated against on the basis of the particularities of their bodies. In this theoretical tradition, bodies are understood as interchangeable. The ‘he’ so often used in legislation can be applied to women, while race and disability are not important aspects for the purposes of general (non-specific) legislation. Despite this, indicators such as race, class and disability all have an important effect on outcomes in terms of wealth distribution, educational attainment, criminalisation and health. The interchangeable ‘anybody’ assumed by liberalism has been shown to privilege a particular type of body. Whiteness, maleness, being able bodied and inheriting wealth are all advantaged by institutions that assume a lack of dependency on the state (Fineman 2004; Brown 2015). Again, as Naffine notes:the rational and therefore responsible human legal agent or subject: the classic contractor, the individual who is held personally accountable for his civil and criminal actions. This is the individual who possesses the plenitude of legal rights and responsibilities, the ideal legal actor … he who asserts his will, who grasps and asserts his legal rights. Now there is a discrete possessor of rights. (Naffine 2003: 362)
Some individuals are able to ‘fit’ into society precisely because of their ability to navigate the everyday topography of existence (Garland-Thomson 2011). This liberal legal subject is afforded material anonymity that is available only to individuals who share characteristics of masculinity,...the rational subject must be a fully individuated and integrated physical being before he can begin to assert his will against all other subjects. An explicit biological assumption is therefore that this individual is a rational adult human; a tacit assumption is that this rights-asserting competent legal actor is individuated and therefore sexed (at least in the sense of never pregnant, because this compromises individuation). Individuation and self-containment are essential if the rational subject is to be free to act in ways which affect only his self: if he is to be fully capable of confining and containing the effects of his actions to himself and to no other. (Naffine 2003: 364)