SURVIVING LAW: DEATH COMMUNITY CULTURE

• DOI: https://doi.org/10.1016/S1059-4337(02)28004-7
• Pages: 97-115
• Published date: 09 April 2003
• Date: 09 April 2003
• Author: Patrick Hanafin

SURVIVING LAW:

DEATH COMMUNITY CULTURE

Patrick Hanafin

ABSTRACT

Law attempts to govern life and death through the appropriation of

images which give a fantasy of control over death. The functioning of the

thanatopolitical state is underpinned by a perceived control over death

and its representation. This means of controlling death is challenged when

someone wishes to die in an untimely fashion. Death may be timely when the

State engages in the officially sanctioned killing of the death penalty but not

when the individual assumes such a power to decide. When an individual

goes before the law to obtain a right to die, instead of confronting death,

legal institutions evade the issue and instead talk about life, and its sacred

and inviolable nature. Yet, in the same move, many exceptions to this sacred

quality of life are carved out. One can see an example of this phenomenon in

the area of Supreme Court decision making on physician-assisted suicide. In

Washingtonv. Glucksberg the applicants had died by the time of the Supreme

Court’s decision. Where did theygo? Were they ever reallythere for the law?

The Supreme Court decision attempts to recompose the notion of identic

wholeness in the face of bodies associated with death and decay. It is, in other

words, an attempt to arrest the process of death by composing a narrative

which valorises life. The case becomes a narrative about the threat to life

or, more precisely, a threat to a particular way of life. In other words, the

state’s interest in preserving life becomes the interest in preserving the life

Studies in Law, Politics, and Society

Studies in Law, Politics, and Society,Volume 28, 97–115

Copyright © 2003 by Elsevier Science Ltd.

All rights of reproduction in any form reserved

ISSN: 1059-4337/PII: S1059433702280047 97

98 PATRICK HANAFIN

of the state. The state must live on. The question then moves from being one

of whether the individual applicant in a case concerning physician-assisted

suicide should live or die, to one which asks should we the court live or die?

Differer la mort, c’est aussi l’exhiber, la souligner (Jean-Luc Nancy, L’Intrus, 2000).

“Thou shalt not kill” obviously means: “do not kill he who will die in any case” and means:

“because of that, do not infringe on dying, do not decide the indecisive, do not say: this is done,

claiming for yourself a right over this ‘not yet’ (Maurice Blanchot, The Step Not Beyond,1992).

How could one know the law and truly experienceit, how could one force it to come into view,

to exercise its powersclearly, to speak, without provoking it into its recesses, without resolutely

going ever farther into the outside into which it is alwaysreceding? (Michel Foucault, Maurice

Blanchot: The Thought FromOutside, 1987).

We haveentered the age of vital politics (Nikolas Rose, The Politics of Life Itself, 2001).

INTRODUCTION

Survival, as Zygmunt Bauman reminds us, is “the meaning of life” (Bauman,

1992, p. 199). This aspect of modernity has several manifestations, from attempts

to prolong the lives of the dying to seeking the perfect body through dieting and

exercise.Indeed JeanBaudrillardwould holdthat suchbodily commodityfetishism

incorporates the search for the perfect death.1Similarly at the level of political

symbolism, the state attempts to give the impression of living on eternally. This

vitalist political ontology has its roots in classical liberal notions of the state as

body politic.2In order to give the illusion of achieving this impossible goal of

eternal life the body politic attempts to immunise itself against anything which

would disrupt its equilibrium. As Nikolas Rose puts it:

Life itself, the vital reality of a people, must become the overriding responsibility and criterion

that should guide the exercise of political authority (Rose, 2001,p.2).

For the body politic one such disruptive presence is that of death, that which spells

nothingness.3The law in its turn attempts to manage death, to engage in what Jean

Baudrillard has termed “death control,” in order to give the illusion that nothing

escapes its regulatory grasp (see Baudrillard, 1993, pp. 125–194).

However,as with all such attempts to foreground life and sequester death, what

occurs is the foregrounding of death. This is played out when the law encounters

death,orthose whosymbolise it,in casesconcerningend oflife decisionmaking, as

it is euphemistically called in bioethical circles. It is as if one can make a decision

with respect to death, as if death can be controlled. For example, in Cruzan v

Director, Missouri Department of Health (497 U.S. 261 (1990)), a case involving