Law's Body

Publication year2023
CitationVol. 74 No. 3

Law's Body

Matt Saleh

Hannah Potter

Kendall Foley

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Law's Body


Matt Saleh*


Hannah Potter**


Kendall Foley***


I. Introduction

How do law's narratives construct one of its central objects: the human body? This essay explores legal constructions of the human body: both in its idealized form, and in the negative ontological spaces of injury, disability, death, and dehumanization that surround that ideal.

Bodies are "the very 'stuff of law."1 There are few areas of law where the human body does not, somewhere, require definition.2 For instance, without a concept of the body, there can be no consequent constructions

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of personhood,3 nakedness,4 state intrusion,5 injury,6 disability,7 duty of care,8 aging,9 or the moment of death,10 to name only a few.

The multitude of legal definitions of the body render a "patchwork" of context-specific constructions, tailored to policy objectives.11 Just as there is no unitary body of law, there is no unitary body in law. However, rules of construction are observable across context. In this essay, we describe these rules as truisms, in reference to their asserted self-explanatory quality.

Law is a social institution that uses language to develop constructs of reality, defined by consensus from within the legal community about how a "closed linguistic system should best reflect the outside world."12 However, in law, the body is rarely just a biological object. Contrary to cultural beliefs that the body is "the unchanging anchor of identity,"13 in the law it is frequently used as an extended, multi-definitional and multi-dimensional conceptual domain, which we refer to in this essay as THE BODY.14

There are layers to THE BODY in law. Sometimes, the term is used with precision, to describe the life-sustaining structure of cellular and

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extracellular materials,15 tissues,16 organs,17 systems,18 and other functions19 that make up our bodies.20 Elsewhere, it is subtly extended as metonym, to describe a human organism's shape,21 appearance,22 reputation,23 or other normative qualities.

Further into representational abstraction, THE BODY may be used to describe a material vessel containing the essence of life, soul, consciousness, and personhood,24 or to describe the ultimate private

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space,25 or the hereditary and social links between body-subjects,26 or as a metaphor for the function of groups of persons, like societal and political bodies.27 In such cases, the body shifts from a biomedical object of inquiry to a sociopolitical subject of rights discourses.28

Thus, as a construct, the body appears in everything from banal applications of bodily knowledge in the administrative state to rousing rights discourses.29 In legal English, the body carries a heavy load.

II. The Biomedical Body

Entire essays could be, and have been, written on topics pertaining only to where the material body begins and ends in law. For instance: when are prosthetics part of the body?30 To what extent is a person's mind an extension of their body in conceptualizing harm?31 Which bodily

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features or excretions constitute transactionable private property?32 This essay takes a larger view of THE BODY, but the biomedical body is still the natural starting point.

Societal knowledge of the material body grows daily,33 and that body can now be peered into, by both medicine and law, in ways once unthinkable.34 As a result, courts—in conversation with legislatures—are increasingly faced with deliberating highly specialized, microscopic, and submicroscopic topics related to the human body. Such things as genetics,35 the microbiome,36 particulate absorption,37 and the electromagnetic fields produced by human bodies,38 to name only a few.39

The historical common law contains countless instances of judges acknowledging the limits of their understanding of the biomedical body's internal mysteries40 and relying on experts for accounts of causation

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therein.41 However, it also contains many instances where judges take a more active role, viewing the biomedical body through the distorted prism of the cutting-edge sciences of their day,42 often with infamous results.43

Defamed sciences of the body linger in the minutiae of jurisprudence longer than they do in the fields that developed them.44 Whereas scientific fields are premised on falsification,45 law is premised on quite different, even antithetical, principles of adherence to precedent.46 As once put: "attempts to change the course of judicial decision, under the pretext of correcting error, are like experiments by the quack on the human body."47

As such, science and law make "uncomfortable bedfellows."48 Law's aim of producing consistent rules yielding predictable outcomes is

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couched in a language of empiricism.49 But its multiple, intertwining constructions of the body raise concerns that autonomy is threatened where judges rely on their own "rudimentary knowledge of the human body,"50 substituting a series of detached constructs for the individual.51 Next, we ask: what rules of bodily construction are rudimentary in law?

III. Being, Unbeing, and the Body

"Scratch a great legal problem and you are likely to find a great philosophical problem."52 One theme of this essay is that constructions of the body in law are often definitionally unsound, frequently butting up against—or meeting head-on—core problems of Western philosophy.

We noted above that the body exists in law as a multidimensional construct of layered meanings. The legal dimensions wherein material bodies are constructed might include polarities or spectrums like: healthy or unhealthy, abled or disabled, safe or unsafe, private or un-private, innocent or guilty, free or unfree, equal or unequal.53

Some of these normative, bodily states of being are less discrete than others. Some may have greater interdependency, or more complicated internal conditions.54 Some may be more amenable to binary, categorical, or continuous conceptualization55 or to phenomenological relativism.56

One state of being does mark a starting point in law's rules of bodily construction. A body is either alive or not alive. Much has been written

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about the law's treatment of the human body at the bookends of birth57 and death.58 This disproportionate emphasis is not necessarily surprising, as these "life cycle events," more than any others, define the biologic and symbolic order of human experience.59

Accordingly, one of the few relatively clear distinctions the law draws in its constructions of the body is the difference between a living and nonliving one.60 A threshold rule of construction, or truism, is thus:

A living body is legally distinct from a nonliving one.61

Let's call this the Animate rule. The law mostly succeeds in distinguishing an animate body from a corpse.62 It also mostly distinguishes a completely hypothetical birth from one where an organism in a state of fetal bodily development exists.63 Yet, even in this simplest of rules, the body's peculiar, nonliteral status is apparent. It exists as a material object before-and-after it is legally alive. It has a transitive quality. The legal person passes through it.64

This transitivity is the source of threshold definitional problems. In theory, aliveness and not-aliveness are discrete values in law. Courts are clear that biologically nonliving bodies do not have rights in the traditional sense.65 However, at the edges of these values, courts are

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mired in controversy related to pinpointing the precise moment the legal person or "life" passes from not-aliveness to aliveness,66 or vice versa.67

This is most apparent, of course, in the competing phenomenologies evinced in jurisprudence in the seemingly disparate contexts of abortion68 and withdrawing care.69 Such cases give rise to confusing circumstances where a human organism may be simultaneously alive, in a biological sense, and not, in a legal sense.70 They raise personhood and mind-body dilemmas, making them well-known sources of moral and bioethical controversy.71

There are other, less well-known, definitional issues at the edges of bodily aliveness and not-aliveness. While biologically nonliving bodies are never persons, at times they do have persona, representing a different type of vessel imbued with legal status (somethingness) called "societal interests."72

There are also examples of bodies that are indisputably biologically and legally alive yet—under limited conditions like capital punishment and legal slavery—slide down the spectrum toward practical

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nothingness;73 or "civil death."74 In such instances, the material body exists in a living form but is dehumanized (stripped of its personhood). As the common law is cumulative, self-referential, and "vestigial,"75 we argue in later sections that such examples—even where historical or repealed—are meaningful.

All considered, we cannot assert that aliveness and somethingness are fully, definitionally correspondent in law, nor are not-aliveness and nothingness. However, we can assert that law generally ascribes significantly different value states to biologically alive and not-alive bodies. Knowing this, we turn to our next question: what is the value of a living body in law?

IV. The Value of Life

Between the bookends of birth and death, life happens. The vast majority of public and private lawsuits involve living persons or affected parties.76 As such, it is the living body—not the unborn or the dying body—that is most often the subject of judicial discourse.

Moving inductively outwards, we next consider law's efforts to ascribe a generalizable value to a living body. Such a value would provide the underlying rationale for the body's sanctum, its legal protection in public and private spaces, and its remediation when that sanctum is infringed by private individual, organization, or the state.77

Although American law recognizes a valuable private life ...

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