Foucault's monsters, the abnormal individual and the challenge of English law

Journal of Historical Sociology

Volumn 20, Issue 3, 2007, Pages 384-403

  Sharpe, Andrew N ^a  

^a NONE

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EID: 34848910181     PISSN: 09521909     EISSN: 14676443     Source Type: Journal    
DOI: 10.1111/j.1467-6443.2007.00316.x     Document Type: Conference Paper

References (138)

1. The idea of the monster as legal category has its origins in Roman law. Thus there are references to monsters in a number of specific contexts in the Digest and the Code. In particular, the question of monsters is addressed in the writings of Paul (D. 1.5.14), Ulpian (D.50.16.38; D.50.16.135) and Justinian (C.6.29.3). See A. Watson, (ed) The Digest of Justinian (Philadelphia: University of Pennsylvania Press, 1985).
2. Michel Foucault, Abnormal: Lectures at the College De France 1974-1975 (London: Verso, 2003) 324. While Foucault's lectures were not published in his lifetime they represent his only text that deals in an explicit and sustained manner with the idea of the monster. Moreover, the theoretical and historical analysis Foucault offers represents a significant analysis of the monster category within social theory. In the words of Valerio Marchetti and Antonella Salomoni the text "Abnormal offers not only a very clear trace of [Foucault's] dossiers and manuscripts but it also allows us to reconstitute what has been lost"
3. ('Course Context' in Abnormal 331-351 at 333).
4. See, for example, Mark Neocleous, The Monstrous and the Dead: Burke, Marx, Fascism (Cardiff: University of Wales Press, 2005);
5. Bettina Bildhauer and Robert Mills, The Monstrous Middle Ages (Cardiff: University of Wales Press, 2003);
6. David Gilmore, Monsters: Evil Beings, Mythical Beast, and all Manner of Imaginary Terrors (Philadelphia: University of Pennsylvania Press, 2003);
7. Margrit Shildrick, Embodying the Monster: Encounters with the Vulnerable Self (London: Sage, 2002);
8. Timothy Beal, Religion and Its Monsters (New York: Routledge, 2002);
9. Elaine Graham, Representations of the Post-Human: Monsters, Aliens and Others in Popular Culture (Manchester: Manchester University Press, 2002);
10. Edward Ingrebretsen, At Stake: Monsters and the Rhetoric of Fear in Public Culture (Chicago: University of Chicago Press, 2001);
11. Alice Domurat Dreger, Hermaphrodites and the Medical Invention of Sex (Harvard University Press, 2000);
12. Nina Lykke and Rosi Braidotti, Between Monsters, Goddesses and Cyborgs: Feminist Confrontations with Science, Medicine and Cyberspace (London: Zed Books, 1996);
13. David Williams, Deformed Discourse: The Function of the Monster in Medieval Thought and Literature (Exeter: Exeter University Press, 1996);
14. Jeffrey Cohen, Monster Theory: Reading Culture (Minneapolis: Minnesota University Press, 1996);
15. Marie-Helene Huet, Monstrous Imagination (Cambridge, Mass: Harvard University Press, 1993);
16. Arnold Davidson, The Horror of Monsters' in The Boundaries of Humanity: Humans, Animals, Machines (Berkeley: California University Press, 1991);
17. Katherine Park and Lorraine Daston, 'Unnatural Conceptions: The Study of Monsters in Sixteenth- and Seventeenth-Century France and England' (1981) 92 Past and Present 20.
18. Cohen supra note 3 at 4.
19. Georges Canguilhem, 'Monstrosity and the Monstrous' (1964) 40 Diogenes 27 at 28.
20. See also Shildrick, supra note 3 at 10.
21. Beal supra note 3 at 4.
22. Julia Epstein, Altered Conditions: Disease, Medicine, and Storytelling (London: Routledge, 1995) 91.
23. See, for example, Laura Lunger Kruppers and Joan B. Landes, Monstrous Bodies/Political Monstrosities In Early Modern Europe (New York: Cornell University Press, 2004);
24. Shildrick supra note 14 at 9;
25. Barbara Creed, 'Woman as Monstrous Womb: The Brood' in The Monstrous-Feminine: Film, Feminism, Psychoanalysts (London: Routledge, 1993) 43-58.
26. Canguilhem supra note 5 at 27.
27. Foucault supra note 2.
28. Canguilhem supra note 5 at 30.
29. Shildrick supra note 3 at 9.
30. Canguilhem supra note 5 at 30-31.
31. The emphasis on bestiality as cause of monstrosity and on the role of woman in this conjugal act, as well as the alternative theory of the maternal imagination, whereby a pregnant woman's thoughts were imprinted onto the body of her offspring, draw attention to the relevance of the monster category to feminist theory (see Graham supra note 3 at 52;
32. Rosi Braidotti, 'Signs of Wonder and Traces of Doubt: On Teratology and Embodied Differences' in N. Lykke and R. Braidotti supra note 3 at 135-152;
33. Huet supra note 3).
34. Canguilhem supra note 5 at 41.
35. Id at 38.
36. The Digest of Justinian supra note 1.
37. Foucault supra note 2 at 63.
38. Id.
39. Id.
40. Id at 56.
41. Id at 65.
42. Id at 64.
43. Id at 65.
44. Id at 64-65.
45. Id at 64.
46. Id at 324.
47. Id at 56.
48. Gabriel Tarde, L'opposition Universelle (1897)
49. (quoted by Canguilhem supra note 5 at 29).
50. Foucault supra note 2 at 56.
51. Id at 74.
52. The common law tradition of England can be contrasted with the civil law systems of continental Europe in general. In contrast to most of continental Europe which received Roman law in the late Middle Ages after Justinian's texts [supra note 1) had been rediscovered, the common law proved more resistant to the incorporation of Roman law (see Donald R. Kelley, The Human Measure: Social Thought in the Western legal Tradition (Cambridge, Massachusetts: Harvard University Press, 1990)).
53. Foucault supra note 2 at 66.
54. See also Stuart Eiden, The Constitution of the Normal: Monsters and Masturbation at the College of France' (2001) 28(1) Boundary 2 91, 96;
55. Sharon Cowan and Stuart Eiden, 'Words, Desires and Ideas: Freud, Foucault and the Hermaphroditic Roots of Bisexuality' (2002) 13 PLI (the Warwick Journal of Philosophy) 79 at 91.
56. Id at 66-67.
57. This point is rendered explicit in Bracton Infra note 45 vol 2 at 31,
58. Coke infra note 55 vol 1 at 8.a.
59. and Wood infra note 57 at 12.
60. Foucault supra note 2 at 60.
61. Id at 61.
62. Id at 60-61.
63. Id.
64. Id The scientific project of normalisation is one well documented by Foucault (Michel Foucault, The Birth of the Clinic (trans. A.M. Sheridan) (New York: Random House, 1973);
65. Discipline and Punish: The Birth of the Prison (trans. A.M. Sheridan) (New York: Vintage, 1977);
66. The History Of Sexuality Vol 1 (London: Vintage, 1980);
67. "The Dangerous Individual' in Michael Foucault: Politics, Philosophy, Culture Interviews and other Writings 1977-1984 (ed L. Kritzman) (New York: Routledge, 1988) 125-151.
68. Id at 62.
69. Id at 74.
70. Id at 61.
71. Id at 82.
72. Henry de Bracton, On the Laws and Customs of England 1240-1260 vols 1-4 (trans. Samuel E. Thorne) (Cambridge, Mass: Harvard University Press, 1968) vol 2 at 31. It should be noted that there is some uncertainty regarding the authorship of this text. According to the Harvard Law School Library online it would seem that the bulk of the work was written in the 1220s and 1230s by persons other than Bracton, though it was probably Bracton who made the later additions.
73. Henry de Bracton was a judge of the court known as Coram Rege (later known as the King's Bench) from 1247-1250 and 1253-1257 during the reign of Henry III. He was also a clergyman and in 1264 became Archdeacon of Barnstaple and Chancellor of Exeter Cathedral. Bracton's text can be accessed online at http://hlsl.law.harvard.edu/bracton/Common/index.html Date accessed: 14 April 2006.
74. For a discussion of Bracton's work see H.G. Richardson, Bracton: The Problem of his Text (London: Selden Society, 1965).
75. Id.
76. Id vol 4 at 361.
77. Id vol 3 at 221.
78. This reference to monsters emerges in the context of Bracton's discussion Of the Assise of Darrein Presentment.
79. Id vol 2 at 31-32. In the margins of his text on monsters, Bracton cites Azo, an early thirteenth century glossator of Roman law. However, it would be mistaken to reduce an understanding of the Bractonian monster to the reception of Roman law. As is well known the reception of Roman law was considerably more limited in England than in continental Europe and it is apparent that Bracton's usage is selective rather than wholesale. There has been debate among legal historians as to the degree to which Bracton's text is Roman. While Guterbock places special emphasis on the importance of Roman law in Bracton's text (Karl Guterbock, Bracton and his Relation to the Roman Law: A Contribution to the History of the Roman Law In the Middle Ages (Littleton, Colorado: Rothman, 1979), more recent legal scholarship has emphasized its Englishness adopting Maltland's view that though "Romanesque in form" it was "English in substance" being based on a vast amount of judicial experience, including some five hundred decisions
80. (Kelley supra note 32 at 167).
81. Britton, vol 1 (trans. F.M. Nichols) (Florida: Wm. W. Gaunt & Sons, 1983) at paragraph 19. There is considerably more uncertainty regarding the identity of Britton. However, it would seem that the Britton text was published around 1291 in the reign of Edward I and with the King's express authority. According to Nichols, Edward I desired a comprehensive treatise on the law of England. It was in this context that legal texts by Britton, Fleta and an abridgment of Bracton by Gilbert de Thornton came into being. Only Bracton however, came into general use.
82. For further evidence on this point see Bracton supra note 45 vol 4 at 361;
83. Britton supra note 50 at paragraph 19.
84. Thus there is no mention of monsters in the fifteenth century legal writings of Sir Thomas Littleton (c1410-1481 and Judge from 1466) Tenures (London: Richard Tottell, 1557)
85. and Sir John Fortescue (c1395-c1477 and Chief Justice of the King's Bench from 1442) On the Laws and Governance of England 1468-1471 (ed) Shelley Lockwood (Cambridge: Cambridge University Press, 1997).
86. Henry Swinburne, A Brief Treatise of Testaments and Last Wills (1590) 168 (New York & London: Garland Publishing, 1978).
87. Id at 168-169.
88. Sir Edward Coke, The Institutes of the Laws of England vols 1-4 1628-1644 (1832 edn) (New York & London, Garland Publishing, 1979) vol 1 at 7.b.
89. John Cowell, The Institutes of the Laws of England (1605) (New York & London, Garland Publishing, 1978) 16.
90. Indeed, after Coke there appears to be no reference to monsters in English legal texts prior to Blackstone. Thus, for example, the category of monster does not appear in the work of William Noy, The Grounds & Maxims of the English Law (1641) (London: H. Linoth, 1757);
91. John Selden, Ad Fletam Dissertatto (1647) (Buffalo: William S. Hein & Company, 1980);
92. John Warr, The Corruption & Deficiency Of The Laws Of England (London: R. Dutton, 1649);
93. Sir Matthew Hale, The Analysis of the Law: Being a Scheme, ar Abstract of the Several Titles and Partitions of the Law of England, Digested into Method (1650) (Chicago: Chicago University Press, 1971);
94. Roger North, A Discourse on the Study of Laws (1650) (London: White, 1824);
95. John Brydall, Enchiridion Legum: A Discourse Concerning the Beginnings, Nature, Difference, Progress and Use of Laws In General; and In Particular of the Common and Municipal Laws of England (1673) (New York & London: Garland Publishing, 1978);
96. John Selden, Jani Anglorum Facies Altera (London: T. Bassett, 1683)
97. or Thomas Wood, An Institute of the Laws of England or the Laws of England in their Natural Order According to Common Use (1724) (New York and London: Garland Publishing, 1979).
98. William Blackstone, Commentaries on the Laws of England, vols 1-4 (1765-1769)
99. Vol 2 Of The Rights Of Things (Chicago: University of Chicago Press 1979) Chp 15, 246-247 (my emphasis).
100. Blackstone's Commentaries can be accessed online through Yale University's Avalon project at http:// www.yale.edu/lawweb/avalon/avalon.htm Date accessed: 10 June 2006.
101. Jeffrey Cohen, Of Giants: Sex, Monsters, and the Middle Ages (Minneapolis: University of Minnesota Press, 1999) 4.
102. John Boswell, Christianity, Social Tolerance and Homosexuality: Gay People in Western Europe from the Beginning of the Christian Era to the Fourteenth Century (Chicago: Chicago University Press, 1980) 270.
103. See also R.I. Moore, Formation of a Persecuting Society: Power and Deviance In Western Europe, 950-1250 (Oxford: Basil Blackwell, 1987);
104. R.I. Moore, 'Heresy, Repression, and Social Change in the Age of Gregorian Reform' in Scott L. Waugh and Patrick D. Diehl (eds) Christendom and Its Discontents: Exclusion, Persecution and Rebellion, 1000-1500 (Cambridge: Cambridge University Press, 1996) 19.
105. Ernst H. Kantorowicz, The King's Two Bodies: A Study In Medieval Political Theology (New Jersey: Princeton University Press, 1957) 191.
106. In the period between the writings of Bracton and Britton Edward I returned from the failed crusade in the Holy Land and was crowned King in 1274. In relation to European antipathy toward Islam during the period of the crusades see N. Daniel, Islam and the West: The Making of an Image (Edinburgh: Edinburgh University Press, 1960);
107. N. Daniel, Islam, Europe & Empire (Edinburgh: Edinburgh University Press, 1966);
108. W.M. Watt, The Influence of Islam on Medieval Europe (Edinburgh: Edinburgh University Press, 1972);
109. R. W. Southern, Western Views of Islam in the Middle Ages (Cambridge, Mass: Harvard University Press, 1978);
110. Michael Uebel, 'Unthinking the Monster: Twelfth-Century Responses to Saracen Alterity' in Cohen supra note 3.
111. See Shildrick supra note 3 at 12.
112. Beryl Rowland, Animals with Human Faces: A Guide to Animal Symbolism (London: Allen & Unwin, 1974) 26, 60.
113. Samantha Fleming, 'Murders and Unkindness' (1998) 19 White Dragon (Samhain issue) 8.
114. See also Wilma George and Brunsdon Yapp, The Naming of the Beasts: Natural History In the Medieval Bestiary (London: Duckworth, 1991) 170.
115. Daniel Boorstin, The Mysterious Science Of Law (Gloucester, Mass: Peter Smith, 1973) 25.
116. Id at 104.
117. See also Blackstone supra note 58 vol 3, Of Private Wrongs 268.
118. Britton supra note 50 at paragraph 19.
119. Bracton supra note 45 vol 3 at 221.
120. Id vol 2 at 31, vol 4 at 361;
121. Britton supra note 50, para 19.
122. Foucault supra note 2 at 66.
123. Swinburne supra note 53 at 168.
124. Id at 169.
125. Coke supra note 45 vol 3 at 59.
126. Ambroise Pare, On Monsters and Marvels (1573) (trans Janis L. Pallister) (Chicago: Chicago University Press).
127. Lorraine Daston, 'Marvellous Facts and Miraculous Evidence in Early Modern Europe' (1991) Critical Inquiry 93, 112.
128. Blackstone supra note 58 vol 2 at 247.
129. Glanville Williams, The Sanctity of Life and the Criminal Law (New York: Alfred A. Knopf, 1972) 21.
130. Blackstone supra note 58 vol 2 at 247.
131. Wayne Morrison, Introduction to Commentaries on the Laws of England vol 1 (London: Cavendish, 2001) cxiv-cxviii.
132. nd edn vols 1-4 (London: Henry Butterworth, 1848) vol 1 at viii.
133. Keith Thomas, Man And The Natural World: A History Of Modern Sensibility (London: Lane, 1983) 122;
134. Manfred Pfister, 'Man's Distinctive Mark: Paradoxical Distinctions between Man and his Bestial Other' in E. Lehmann and B. Lenz (eds) Early Modern Texts in Telling Stories (Amsterdam: B.R. Gruner, 1992) 17, 21.
135. However, at least one scholar has dated this development to the late Middle Ages (Joyce E. Salisbury, The Beast Within: Animals in The Middle Ages (London: Routledge, 1994) 2).
136. Thomas id at 122.
137. Of course, the figure of bestial man did engender concern within popular culture and some non-legal discourses of the period (see, for example, Salisbury supra note 82;
138. Richard Bernheimer, Wild Men in the Middle Ages: A Study of Art, Sentiment and Demonology (London: Octagon Books, 1970)).