Transgressing the law with Foucault and Derrida: Some reflections on anomalous embodiment

Critical Quarterly

Volumn 47, Issue 3, 2005, Pages 30-46

  Shildrick, Margrit ^a  

^a QUEEN'S UNIVERSITY BELFAST   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 34347305684     PISSN: 00111562     EISSN: None     Source Type: Journal    
DOI: 10.1111/j.1467-8705.2005.00648.x     Document Type: Review

References (45)

1. Michel Foucault, Abnormal, trans. G. Burchell (New York: Picador, 2003)
2. Jacques Derrida, Points: Interviews, 1974-1994, trans. Peggy Kamuf et al., ed. Elizabeth Weber (Stanford, CA: Stanford University Press, 1995)
3. Michel Foucault, Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan (London: Allen Lane, 1977)
4. Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (London: Routledge, 1990), 134-5
5. Wendy Brown and Janet Halley (eds), Left Legalism/Left Critique (Durham: Duke University Press, 2002), 11
6. Foucault, Abnormal, 63
7. See also Margrit Shildrick, Embodying the Monster: Encounters with the Vulnerable Self (London: Sage, 2002), ch. 1, for additional development of the contemporary debate
8. All examples taken from Shildrick, Embodying the Monster, 19, 34, 19
9. Henri-Jacques Stiker, A History of Disability, trans. William Sayers (Ann Arbor: University of Michigan Press, 1999), 69
10. Stiker, A History of Disability, 134
11. Margrit Shildrick, Leaky Bodies and Boundaries: Feminism, Postmodernism and (Bio)ethics (London: Routledge, 1997)
12. Foucault, Discipline and Punish; History of Sexuality, vol. 1, trans. R. Hurley (London: Allen Lane, 1979)
13. Power/Knowledge: Selected Interviews and Other Writings 1972-1977, ed. C. Gordon (Brighton: Harvester Press, 1980)
14. Apart from the lectures series, Abnormal, Foucault scarcely mentions disability directly, but his wider work on bodies, on power/knowledge, and on governmentality is saturated with relevance. Nor should it be supposed that Stiker merely follows Foucault. The 1999 text - A History of Disability - referred to here is a translation of Stiker's 1982 book Corps infirme et sociétés, which, although occasionally referencing Foucault, largely develops its own trajectory
15. Foucault, Discipline and Punish, 144
16. See Shildrick and Price for an analysis of how one social security benefit directed to those with disabilities acts as an instrument of both corporeal construction and regulation (Margrit Shildrick and Janet Price, 'Breaking the Boundaries of the Broken Body: Mastery, Materiality and ME', Body and Society, 2:4 (1996), 93-113)
17. Wendy Brown, 'Suffering the Paradoxes of Rights', in Wendy Brown and Janet Halley (eds), Left Legalism/Left Critique (Durham: Duke University Press, 2002), 422
18. The debate over the efficacy and implications of 'neutral' universal rights versus 'special' rights is well developed, and beyond the limitations of this essay. In most cases the privileged term of the problematic of sameness and difference as the competing grounds of rights discourse is either gender or race - see Catharine Mackinnon, Feminism Unmodified (Cambridge, MA: Harvard University Press, 1987)
19. and Drucilla Cornell, Beyond Accommodation: Ethical Feminism, Deconstruction and the Law (London: Routledge, 1991)
20. and The Imaginary Domain (London: Routledge, 1995) - but it can, with due caution, be transposed to the question of (dis)ability
21. For an interesting run-through on one aspect of the sameness/difference conundrum with respect to both physical and developmental disability, see Sara Goering, 'Beyond the Medical Model? Disability, Formal Justice and the Exception for the "Profoundly Impaired"', Kennedy Institute of Ethics Journal, 12:4 (2002), 373-88
22. Margrit Shildrick, 'Unreformed Bodies: Normative Anxiety and the Denial of Pleasure', Women's Studies: An Interdisciplinary Journal, 3-4 (2005), 327-44
23. Jennifer Nedelsky, 'Reconceiving Autonomy - Sources, Thoughts and Possibilities', Yale Journal of Law and Feminism, 1 (1989), 7-36
24. Shildrick, Leaky Bodies and Boundaries
25. Re A (Conjoined Twins: Medical Treatment), 2001, 1 FLR 1 (CA)
26. The heart and lungs of 'Mary' were underdeveloped to the extent that those of 'Jodie' supplied all the oxygenated blood for the entity Jodie-Mary through a shared aorta. Medical prognosis indicated that without separation, Jodie's heart would fail within a few months, and with separation Mary would be denied the oxygenated blood necessary to her survival
27. For an entirely normative discussion of the Court of Appeal deliberations on the issue of consent, see Sabine Michalowski, 'Reversal of Fortune - Re A (Conjoined Twins) and Beyond: Who Should Make Treatment Decisions on Behalf of Young Children?', Health Law Journal, 9 (2001), 149-69
28. Re A (Conjoined Twins: Medical Treatment), 53
29. Helen Watt, 'Conjoined Twins: Separation as Mutilation', Medical Law Review, 9:3 (2001), 238
30. Exceptions include Sally Sheldon and Steve Wilkinson, 'Conjoined Twins - The Ethics and Legality of Sacrifice', Medical Law Review, 5:2 (1997), 149-71
31. and Vanessa Munro, 'Square Pegs in Round Holes: The Dilemma of Conjoined Twins and Individual Rights', Social and Legal Studies, 10:4 (2001), 459-82, who variously suggest that the autonomous individual may be an inadequate starting point in difficult cases. None, however, moves from an appreciation of the complex implications of the one plus one of connection and relationality to a more radical acceptance of the irreducibility of a transgressive intraconnectivity
32. Ewa Plonowska Ziarek, 'From Euthanasia to the Other of Reason: Performativity and the Deconstruction of Sexual Difference', in Ellen K. Feder, Mary C. Rawlinson and Emily Zakin (eds), Derrida and Feminism: Recasting the Question of Woman (New York: Routledge, 1997), 128. There is not scope within this essay to further explore the discursive instability of law, but the 'infelicities' that Ziarek notes have wider application
33. Jacques Derrida, 'Force of Law: The "Mystical Foundation of Authority"', trans. Mary Quaintance, Cardozo Law Review, 11:5-6 (1990), 919-1045. Compare Derrida's circumspection with the actual operation of the Court of Appeal in the Jodie-Mary case. Whilst admitting the difficulty of finding precedents, Ward L. J. asserts that although in broadly parallel cases, there 'are always anxious decisions to make ... they are invariably eventually made with the conviction that there is only one right answer and that the court has given it'; and he goes on to observe: 'This court is a court of law, not of morals, and our task has been to find, and our duty is then to apply, the relevant principles of law to the situation before us - a situation which is quite unique' (Re A (Conjoined Twins: Medical Treatment), 6)
34. Derrida, 'Force of Law', 947
35. John Caputo, More Radical Hermeneutics: On Not Knowing Who We Are (Bloomington: Indiana University Press, 2000)
36. Derrida, 'Force of Law', 971
37. Derrida, Points, 386
38. Cornell, Beyond Accommodation, 113
39. Derrida, 'Force of Law', 973
40. It does not appear that Derrida has directly addressed disability, though his remarks with reference to abortion, or bio-engineering, for example, leave little doubt that he would have figured the relation of the disabled body to the law as deeply unsettling, not least in its intrinsic exposure of the limitations of the legal subject
41. Caputo, More Radical Hermeneutics, 150
42. Derrida, 'Force of Law', 955
43. What Derrida intends here is not only a hospitality that is unconstrained by pre-existing rules and structures (as I go on to discuss), but one in which reciprocity plays no part. Such hospitality is given openly without expectation of return, much less of self-accruing benefit
44. Jacques Derrida, 'Foreigner Question', in Of Hospitality: Anne Dufourmantelle Invites Jacques Derrida to Respond, trans. Rachel Bowlby (Stanford, CA: Stanford University Press 2000), 25
45. Derrida, 'Force of Law', 959