Abstract
Thus far a central theme in this book has been a critique of a particular form of disembodied rationality along with its ideological implications and operative exclusions, exclusions that have attracted trenchant criticisms from and on behalf of excluded groups and categories of people. As noted earlier, history is the place where ideology comes into the open. A key mechanism for such exclusions in law seems to be the operation of a particular form of disembodiment operative in liberal legal rationality,1 more accurately referred to as quasi-disembodiment. This is because, as has been argued, disembodiment is never total.2 The traditional and dominant form of Western rational abstractionism, so central to law and legal reasoning, is inextricably linked to dualism — the binary construction of reality — and in particular the separation of the mind from the body (and the related oppositions between nature and culture, reason and emotion). This is a longstanding separation, ‘dating as far back as Plato’s deliberations in the Phaedo, Aristotle’s musings in De Anima (on the soul), and exemplified par excellence in Decartes’ famous dictum “Cogito ergo sum”’;.3 This dualism is, moreover, profoundly gendered. Disembodied reason, as we have seen, is inextricably linked with masculinity. It is radically implicated in ‘man’s’ domination of nature through science,4 and traditionally, the realms of culture and public life have been identified as the preserve of men.
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Notes
See Chapter 3 above, and, for example, the discussion in P. Halewood, ‘Law’s Bodies: Disembodiment and the Structure of Liberal Property Rights’ (1996) 81 Iowa Law Review 1331–1393.
For further discussion of persons and property in liberal theory see M. Davies and N. Naffine, Are Persons Property? Legal Debates about Property and Personality (Aldershot: Ashgate, 2001),
and J. Nedelsky, ‘Law, Boundaries and the Bounded Self’ (1990) 30 Representations 162–189.
See S. Ahmed, ‘Deconstruction and Law’s Other: Towards a Feminist Theory of Embodied Legal Rights’ (1995) 4 Social and Legal Studies 55–73, especially at 56.
S.J. Williams and G. Bendelow, The Lived Body: Sociological Themes, Embodied Issues (London: Routledge, 1998) at 1.
E.F. Keller, Reflections on Gender and Science (Yale: Yale University Press, 1985).
See, for discussion of this Chapter 2 above, and for further reading, see especially M. Emberland, The Human Rights of Companies: Exploring the Structure of ECHR Protection (Oxford: Oxford University Press, 2006);
M. Emberland, ‘The Corporate Veil in the Jurisprudence of the Human Rights Committee and the Inter-American Court and Commission of Human Rights’ (2004) 4 Human Rights Law Review 257–275;
M. Addo ‘The Corporation as a Victim of Human Rights Violations’ in M. Addo (ed.) Human Rights Standards and the Responsibility of Transnational Corporations (Hague: Kluwer, 1999);
U. Baxi, The Future of Human Rights (Oxford: Oxford University Press, 2006);
C. Harding, U. Kohl and N. Salmon, Human Rights in the Market Place: The Exploitation of Rights Protection by Economic Actors (Aldershot: Ashgate, 2008), especially the chapter entitled ‘The Sun, Liverpudlians and ‘The Truth’: A Corporate Right to Human Rights?’.
For an illuminating and related discussion of corporations and constitutional rights, see C.J. Mayer, ‘Personalising the Impersonal: Corporations and the Bill of Rights’ (1990) 41 Hastings Law Journal 577–663.
G. Lakoff, Women, Fire and Dangerous Things: What Categories Reveal About the Mind (Chicago: University of Chicago Press, 1987) at 174.
‘We never cease living in the world of perception, but we go beyond it in critical thought — almost to the point of forgetting the contribution of perception to our idea of truth… The perceiving mind is an incarnated mind’: M. Merleau-Ponty, ‘An Unpublished Text by Maurice Merleau-Ponty: A Prospectus of His Work’ in M. Merleau-Ponty, The Primacy of Perception (Evanston, Illinois: Northwestern University Press, 1964) at 3–11.
M. Merleau-Ponty, The Phenomenology of Perception (London: Routledge Classics, 2002) (First published by Routledge and Kegan Paul, 1962).
W.W. Adams, ‘The Primacy of Interrelating: Practicing Ecological Psychology with Buber, Levinas and Merleau-Ponty’ (2007) 38 Journal of Phenomenological Psychology 24–61 at 40,
citing M. Merleau-Ponty, Nature: Course Notes from the College de France (R. Vallier, trans) (Evanston, Illinois: Northwestern University Press, 2003) at 210 and 225.
M. Merleau-Ponty, The Visible and the Invisible (J.M. Edie, ed.) (Northwestern University Press, 1968).
M. Johnson, The Body in the Mind: The Bodily Basis of Meaning, Imagination and Reason (Chicago: r4, 1987);
G. Lakoff and M. Johnson, Philosophy in the Flesh: The Embodied Mind and its Challenge to Western Thought (New York: Basic Books, 1999).
It has, in fact, been argued that reason and emotion are inescapably interlinked and that emotion performs an essential role in reasoning: A. Damasio, Descartes’ Error: Emotion, Reason and the Brain (New York: HarperCollins, 1994).
See the extensive set of essays from a range of academic disciplines, including legal theory, in R.D. Masters and M. Gruter, The Sense of Justice: Biological Foundations of Law (London: Sage Publications, 1992).
‘Rationalist legal theory [has systematically underplayed] the mundane fact that in order for the law to function at all it must first and foremost have a hold over bodies’: P. Cheah, D. Fraser and J. Grbich (eds) Thinking Through the Body of Law (St Leonards: Allen and Unwin, 1996) at xv,
cited by S.D. Sclater, ‘Introduction’ in A. Bainham, S.D. Sclater and M. Richards, Body Lore and Laws (Oxford: Hart, 2002) at 1.
For a discussion of the radical implications of law’s bodily basis see G. Agamben, Homo Sacer: Sovereign Power and Bare Life (D. Heller-Roazen (trans)) (Stanford: Stanford University Press, 1995).
A. Hyde, Bodies of Law (Princeton: Princeton University Press, 1997). Hyde also discusses the construction of the legal penis and vagina, the construction of the racial body, of offensive bodies etc.
N. Naffine, ‘The Body Bag’ in N. Naffine and R. Owens (eds) Sexing the Subject of Law (Sydney: Sweet and Maxwell, 1997) 79–93 at 84.
V. Vasterling, ‘Body and Language: Butler, Merleau-Ponty and Lyotard on the Speaking Embodied Subject’ (2003) 11 International Journal of Philosophical Studies 205–223 at 214.
‘Nature hath made men so equal, in the faculties of body, and mind… the weakest has strength enough to kill the strongest…’ T. Hobbes, Leviathan (R. Tuck (ed.)) (Cambridge: Cambridge University Press, 1996) at 86.
See A. Grear, ‘Human Rights — Human Bodies? Some Reflections on Corporate Human Rights Distortion, The Legal Subject, Embodiment and Human Rights Theory’ (2006) 17 Law and Critique 171;
B. Turner, Vulnerability and Human Rights (Pennsylvania: Pennsylvania State University Press, 2006);
A. Grear, ‘Challenging Corporate Humanity: Legal Disembodiment, Embodiment and Human Rights’ (2007) 7 Human Rights Law Review 511–543.
M. Fineman, ‘The Vulnerable Subject: Anchoring Equality in the Human Condition’ (2008) 20 Yale Journal of Law and Feminism 1–23.
Since the early 1990 the term ‘vulnerability’ has been used to measure a range of impacts on social wellbeing, whether economic vulnerability, social vulnerability, financial vulnerability or environmental vulnerability: See P. Kirby, Vulnerability and Violence: The Impact of Globalisation (London, Ann Arbor: Pluto Press, 2006) at 4–23.
P. Kirby, Vulnerability and Violence, above n 85 at vii. Kirby has offered the first direct analysis of the meaning of the term vulnerability in the context of globalisation studies, pointing out its analytical power for the conceptualisation of the wide and complex range of changing social realities driven by the globalisation dynamic: Vulnerability and Violence, at 13. The most salient advantages of the notion of vulnerability explored by Kirby for the purposes of the present book concern its analytical attention to an account of human experience that moves beyond merely material accounts of quantifiable inequalities and risks to reflect notions of wellbeing that capture the concerns of the poor with vulnerability and powerlessness, the erosion of the ‘bonds of secure belonging’ (at 22) and dimensions of psychological or cultural poverty, as well as a focus on the risks of damage, not just a measurement of existing damage, to the wellbeing of people and communities. Kirby’s account pays analytical attention to issues of power by focusing on mechanisms for coping with risk, and it specifically emphasises violence as a dimension of vulnerability, in the sense that vulnerability is both the product of, and producer of, violence (at, for example, 3, 22, 27) that in the globalised world is increasing at a marked rate. For example, Kirby draws attention to the notion of ‘new wars’ and the privatisation of organised violence charted by Kaldor: M. Kaldor, New and Old Wars: Organized Violence in a Global Era (Cambridge: Polity Press, 2001).
D. Otto, ‘Disconcerting “Masculinities”: Reinventing the Gendered Subject(s) of International Human Rights Law in D. Buss and A. Manji (eds) International Law: Modern Feminist Approaches (Oxford: Hart Publishing, 2005) 105–129.
M. Fineman, ‘The Vulnerable Subject’, above n 83 at 8. Fineman cites constructions of children, women and minorities as ‘vulnerable, pathological and in a perpetual state of victimhood’ in n 20, referring to C. Knowles, Family Boundaries: The Invention of Normality and Dangerousness (New York: Broadview Press, 1996) at 108–109. See also, M. Fineman, The Autonomy Myth: A Theory of Dependency (New York: The New Press, 2003), especially at 33–35.
For more on the corporation as a moral person see P.A. French, ‘The Corporation as a Moral Person’ (1979) 16 American Philosophical Quarterly 207–215
and for arguments that the corporation is not a moral person, and should not be regarded as a legal person see E. Wolgast, Ethics of an Artificial Person: Lost Responsibility in Professions and Organisations (Stanford: Stanford University Press, 1992)
and M. Moore, Law and Psychiatry: Rethinking the Relationship (Cambridge: Cambridge University Press, 1984).
See, for more, the arguments in Chapters 1 and 5. See also, U. Baxi, The Future of Human Rights, above n 6 and U. Baxi, ‘Market Fundamentalisms: Business Ethics at the Altar of Human Rights’ (2005) 5 Human Rights Law Review 1–26.
See A. Grear, Law, Persons and Vulnerability: A New Theory of Legal Subjectivity (forthcoming 2010/11).
As Harding, Kohl and Salmon recently concluded, reflecting on the centrality of material vulnerability to human rights (referring to the argument of the author in A. Grear, ‘Challenging “Corporate Humanity”’, above n 82) ‘it may be argued that the “human” in “human rights” is a matter of material vulnerability, and that is a major element in the justification for some kind of special or higher regime of legal protection. Following that argument, it might then be the case that both human and non-human or organisational actors may assert basic rights, but that their respective rights may not be of exactly the same nature, and so may be said to have a differentferent currency… a differing valuation for “real” (or perhaps “embodied”) basic human rights on the one hand, and corporate basic rights on the other hand’: C. Harding, U. Kohl and N. Salmon, Human Rights in the Market Place: The Exploitation of Rights Protection by Economic Actors (Aldershot: Ashgate, 2008) at 232–233. Emphasis original.
D.B. Morris, The Culture of Pain (Berkeley: University of California Press, 1991) at 1.
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Grear, A. (2010). The Centrality of Human Embodiment. In: Redirecting Human Rights. Global Ethics Series. Palgrave Macmillan, London. https://doi.org/10.1057/9780230274631_7
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