Foucault's Monsters and the Challenge of Law

Foucault’s Monsters and the Challenge of Law

In contrast to other figures generated within social theory for thinking about outsiders, such as Rene Girard’s ‘scapegoat’ and Zygmunt Bauman’s ‘stranger,’ Foucault’s Monsters and the Challenge of Law suggests that the figure of ‘the monster’ offers greater analytical precision and explanatory power in relation to understanding the processes whereby outsiders are constituted. The book draws on Michel Foucault’s theoretical and historical treatment of the category of the monster, in which the monster is regarded as the effect of a double breach: of law and nature. For Foucault, the monster does not simply refer to a particular kind of morphological or psychological irregularity; for the body or psyche in question must also pose a threat to the categorical structure of law. In chronological terms, Foucault’s historical account moves from a preoccupation with the bestial human in the Middle Ages to a concern over Siamese or conjoined twins in the Renaissance period, and ultimately to a focus on the hermaphrodite in the Classical Age. These three figures, along with the later ‘individual to be corrected’ and ‘the masturbating child,’ provide a genealogy of the abnormal individual. While Foucault’s theoretical framework for understanding the monster is affirmed here, this book’s study of an English legal history of the category ‘monster’ challenges some of Foucault’s historical claims. In particular, the book calls into question the precise manner in which abnormality is produced. In addition to considering this legal history, the book also addresses the contemporary relevance of Foucault’s theoretical framework. Structured around Foucault’s archetypes and the category crises they represent, the book analyses the challenge that admixed embryos, transsexuals and conjoined twins pose to current distinctions between human and animal and male and female, and to the idea of the ‘proper’ legal subject as a single embodied mind. These contemporary figures, like the monsters of old, are shown to threaten the rigidity and binary structure of a law that struggles to accommodate them. Andrew N. Sharpe is Professor of Law at Keele University.

Foucault’s Monsters and the Challenge of Law

Andrew N. Sharpe

First published 2010 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Simultaneously published in the USA and Canada by Routledge 270 Madison Avenue, New York, NY 10016 A GlassHouse book Routledge is an imprint of the Taylor & Francis Group, an informa business This edition published in the Taylor & Francis e-Library, 2009. To purchase your own copy of this or any of Taylor & Francis or Routledge’s collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk. © 2010 Andrew N. Sharpe All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Sharpe, Andrew N. Foucault’s monsters and the challenge of law / Andrew N. Sharpe. p. cm. “A GlassHouse book.” 1. Foucault, Michel, 1926–1984. 2. Law—Philosophy. 3. Monsters—Social aspects. 4. Abnormalities, Human— Social aspects. 5. Conjoined twins—Legal status, laws, etc. 6. Transsexuals—Legal status, laws, etc. I. Title. K230.F682S52 2010 340’.1—dc22 2009037168 ISBN 0-203-86283-X Master e-book ISBN

ISBN10: 0–415–43031–3 (hbk) ISBN13: 978–0–415–43031–9 (hbk) ISBN10: 0–203–86283–X (ebk) ISBN13: 978–0–203–86283–4 (ebk)

For Snapper

Contents

Acknowledgments Table of cases Table of legislation 1

Introduction

xi xiii xv 1

1.1 Themes 5 1.2 Chapter outlines 12 PART I

Theory/History/Monsters 2

Foucault’s theoretical framework 2.1 2.2 2.3 2.4 2.5 2.6 2.7 2.8

3

21

Introduction 21 Legal templates 22 Non-legal templates 24 The template of the monster 29 Monstrosity and monstrousness 31 Causation and responsibility 34 Natality 39 Conclusion 41

Foucault’s monsters as genealogy: the abnormal individual 3.1 3.2 3.3 3.4

19

Introduction 43 A genealogy of the abnormal individual 45 Challenging Foucault’s history 53 Conclusion 56

43

viii

Contents

4

An English legal history of monsters 4.1 4.2 4.3 4.4 4.5

58

Introduction 58 The late Middle Ages: inaugurating legal monsters 61 The Renaissance: flights of fantasy 69 The Enlightenment: the final throes 79 Conclusion 83

PART II

Contemporary monsters 5

Changing sex: the problem of transsexuality

85 87

5.1 Introduction 87 5.2 The emergence of a medico-legal ‘problem’ 88 5.3 Determining legal sex and the spectre of the monster 91 5.4 A biological approach 91 5.5 Reform jurisprudence 99 5.6 Conclusion 107 6

Sharing bodies: the problem of conjoined twins

111

6.1 6.2 6.3 6.4 6.5

Introduction 111 Constructing legal personhood 114 A critique of legal personhood 116 Pregnancy as non-monster concorporation 122 The promise of conjoined twins and the challenge of law 123 6.6 Innocent monsters 125 6.7 Conclusion 126 7

Admixing embryos: the problem of human/animal hybrids 7.1 7.2 7.3 7.4 7.5

Introduction 129 Human/animal hybridity as contemporary crisis 130 Legal regulation of human/animal admixed embryos 133 The human/animal admixed embryo as monster 138 The promise of human/animal admixed embryos and the challenge of law 141 7.6 Conclusion 143

129

Contents

8

ix

Conclusion

145

Bibliography Index

153 179

Acknowledgments

In thinking about the law/monster nexus, and in the writing of this book, I have received the support, encouragement and constructive criticism of many friends and colleagues. In particular, I would like to thank Upendra Baxi, Costas Douzinas, Peter Fitzpatrick, Ruth Fletcher, Marie Fox, Lieve Gies, Ben Golder, Neil Jones, Lissa Lincoln, Elena Loizidou, William MacNeil, Desmond Manderson, Panu Minkkinen, Les Moran, Colin Perrin, Austin Sarat, Karl Shoemaker, Deborah Sutton, Michael Thomson and Veronique Voruz. I would also like to thank the Centre for Law, Ethics and Society, the Research Institute for Law, Politics and Justice, both located at Keele University, and the AHRC Research Centre for Law, Gender & Sexuality for their support. I would also like to thank my colleagues at Keele University for their collegiality and generosity of spirit. Lastly, I would like to thank the staff at Routledge for their support and patience throughout this project. The book has also benefited from the comments of audiences at numerous academic conferences. These include, the Traumas of Law Conference, Griffith University, Brisbane (2004); the Critical Law Conference, School of Law, Kent University (2005); the Engendering Bioethics: Stigmatised Bodies, Citizenship & Choice Conference, School of Law, Keele University (2005); the There is No Politics Without Fantasy: Gender, Sexuality and Cultural Studies in Law Conference, School of Law, Keele University (2006); the Without Let or Hindrance: Inclusion & Its Subversion from the Medieval to the Modern Conference, Department of History, Lancaster University (2006); the Law and Society Conference, Humboldt University, Berlin (2007); the Critical Law Conference, School of Law, Birkbeck College (2007); the Monsters & the Monstrous: Myths & Metaphors of Enduring Evil Conference, Oxford University (2007); the Socio-Legal Studies Association Annual Conference, School of Law, Manchester University (2008); the Mobilising the Imaginary: The ‘Unreal’ in Law, Gender & Sexuality Research Workshop, School of Law, Keele University (2008) and the Laws of Michel Foucault Workshop, School of Law, Birkbeck College (2008). In addition to these forums, the development of the ideas presented in this book has also benefited from the presentation of papers at a number of UK law schools. These include Manchester University (2006);

xii

Acknowledgments

Keele University (2006); Warwick University (2006); Leicester University (2007); Edinburgh University (2008); and Birkbeck College (2008). Finally, I acknowledge the permission of Springer, Wiley-Blackwell and Sage to reproduce previously published earlier versions of portions of this book. An earlier version of chapter 2 appears as ‘Structured Like a Monster: Understanding Human Difference Through a Legal Category,’ in Law and Critique (2007) (Springer); an earlier version of chapter 3 appears as ‘Foucault’s Monsters, the Abnormal Individual and the Challenge of English Law,’ in the Journal of Historical Sociology (2007) (Wiley-Blackwell); and an earlier version of chapter 4 appears as ‘England’s Legal Monsters,’ in Law, Culture and the Humanities (2009) (Sage).

Table of cases

Airedale NHS Trust v Bland [1993] AC 789 ............................................. 118 Anonymous v Anonymous 325 NYS 2d 499 (1971) ........................... 102, 106 Anonymous v Irving Mellon as Director of Bureau of Vital Records, Department of Health of the City of New York 398 NYS 2d 99 (1977) ................................................................................. 92 Anonymous v Weiner as the Director of the Bureau of Records and Statistics of the Department of Health of the City of New York 270 NYS 2d 319 (1966) ......................................................................... 91 Attorney-General v Otahuhu Family Court [1995] 1 NZLR 603 ....... 106, 109 B v B 355 NYS 2d 712 (1974)................................................................... 102 Bellinger v Bellinger 2003 2 AC 467........................................................... 91 Collins v Wilcock [1984] 3 All ER 374 ..................................................... 120 Collins v Wilkin Chapman [1994] EAT/945/93 (Transcript) ....................... 91 Corbett v Corbett [1970] 2 All ER 33.................. 91, 92, 93, 95, 96, 97, 98, 99, 100, 101, 104, 105, 107, 126 Cossey v UK (1991) 13 EHRR 622 ............................................... 91, 96, 104 Doodeward v Spence (1908) CLR 406 ................................................ 83, 113 EA White v British Sugar Corporation [1977] IRLR 121 ............................ 91 Franklin v Franklin (1990) The Scotsman, 9 November .............................. 91 Herring v Walround [1682] 2 Chan Cas 110 ....................................... 76, 113 K v Health Division of Human Resources 560 P 2d 1070 (1977) ................. 92 Lim Ying v Hiok Kian Ming Eric (1992) 1 SLR 184 ................................... 92 Littleton v Prange 9 S.W. 3d 223 (1999) ..................................................... 92 McFall v Shimp 10 Pa.D. & C. 3d 90 (1978) ..................................... 120, 121

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Table of cases

M v M [1991] NZFLR 337 ....................................................... 102, 103, 106 MT v JT 355 A 2d 204 (1976) ............................................. 99, 100, 102, 106 Peterson v Peterson (1985) The Times, 12 July .......................................... 91 R v Donovan [1934] KB 498 .................................................................... 120 R v Dudley and Stephens [1884] 14 QBD 273 .......................................... 118 R v Harris and McGuiness (1989) 17 NSWLR 158 .................................. 102 R v Tan [1983] QB 1053 ........................................................................... 91 R v Woollin [1999] 1 AC 82 .................................................................... 118 Re A (Children) (Conjoined Twins: Surgical Separation) [2000] 4 All ER 961 ............................................................. 1, 58, 83, 112, 129, 145 Re Anonymous 293 NYS 2d 834 (1968) ..................................................... 99 Re F (Mental Patient: Sterilisation) [1990] 2 AC 1 .................................... 121 Re Kevin and Jennifer v Attorney-General for the Commonwealth [2001] FamCA 1074 ....................................................... 101, 104, 106, 109 Re Ladrach 32 Ohio Misc 2d 6 (1987) ....................................................... 92 Re P (A Minor) (Wardship: Sterilisation) [1989] 1 FLR 182 ...................... 121 Re T [1975] 2 NZLR 449 .......................................................................... 92 Re the Estate of Marshall G Gardiner 22 P 3d 1086 (Kan. Ct App. 2001) .............................................................................. 92 Re the Marriage of C v D (falsely called C) [1979] 35 FLR 340 ................ 103 Rees v UK (1986) 9 EHRR 56 ....................................................... 91, 96, 104 Scafe v Secretary, Department of Employment and Workplace Relation s [2008] AATA 104 ................................................................ 101 S-T (formerly J) v J [1998] 1 All ER 431 .................................................... 91 SY v SY (Orse W) [1962] 3 All ER 55 .................................................. 94, 95 Sheffield and Horsham v UK (1998) 27 EHRR 163 ............................. 91, 104 W v W [1976] 2 SALR 308 ........................................................................ 92 W v W (Physical Inter-sex) (2001) Fam 111 ......................... 91, 95, 96, 97, 98 White v British Sugar Corporation [1977] IRLR 121 ................................. 91 X, Petitioner, Re [1957] SLT 61 ................................................................. 91 X, Y and Z v UK (1997) 24 EHRR 143 .............................................. 91, 104

Table of legislation

AUSTRALIA Crimes Act (NSW) 1900 ......................................................................... 103 CANADA Assisted Reproduction Act 2004 ................................................. 16, 134, 135 UNITED KINGDOM Act in Restraint of Appeals 1533 ............................................................... 75 Gender Recognition Act 2004 ............................................ 91, 101, 103, 106, 108, 110, 114 Human Fertilisation and Embryology Act 1990 ................................ 135, 136 Human Fertilisation and Embryology Act 2008 .......................... 16, 133, 135 Matrimonial Causes Act 1973 ................................................................. 106 Offences Against the Person Act 1861 ..................................................... 120 Statute of Wills 1540................................................................................. 63 UNITED STATES Human-Animal Hybrid Prohibition Bill 2008 .......................................... 134

Chapter 1

Introduction

It hardly needs to be said that there is no longer any place in legal textbooks . . . for expressions (such as ‘Monster’) which are redolent of superstitious horror.1

In the opening quote, we witness judicial disavowal of the notion of the monster. The context for this utterance was counsel’s suggestion that Jodie and Mary, the conjoined twins in the case, might constitute a monster.2 This legal argument, along with others, was designed to support an application for medical separation of the twins.3 In particular, it sought to remove doctors performing such an operation from the possibility of a homicide charge.4 According to English criminal law, a homicide charge requires the prosecution to prove, among other things, that the person killed was ‘a reasonable person in being’ (Clarkson and Keating, 1994, p 594). If Jodie and Mary were to be viewed as a monster then there would be no reasonable person in being capable of being killed according to English law. In rejecting the argument that conjoined twins constituted a monster, the court insisted that the concept of the monster was no longer part of English law. While recognising the existence of legal precedent for the opposite conclusion in the legal commentaries of Bracton (1240–1260 (1968)); Coke (1628–1644 (1979)) and Blackstone (1765–1769 (1979)),5 and

1

2 3 4 5

Re A (Children) (Conjoined Twins: Surgical Separation) [2000] 4 All ER 961, p 1054 per Walker LJ. For a general discussion of legal and ethical issues surrounding conjoined twins see Sheldon and Wilkinson (1997). The relationship between conjoined twins and the monster category will be explored in depth in chapter 6. Id, p 1025–1026. Id, p 961. Id, p 1011. Id, p 1026. References to monsters in Bracton (1968) are made in vol 2, pp 31, 203–204; vol 3, pp 151, 221 and vol 4, pp 198, 227, 361–362. Bracton’s text can be accessed online through Harvard law school http://hlsl5.law.harvard.edu/bracton/ (date accessed: July 2009). References to monsters in Coke (1979) are made in vol 1, p 7.b. References to monsters in Blackstone (1979) are made in vol 2, pp 246–247. Blackstone’s Commentaries can be accessed

2

Introduction

therefore legal authority spanning six centuries, the court dismissed the idea that the notion of the monster might bear any contemporary significance. It would seem that in English law the concept of the monster is now, if it was not already, legally dead. This legal claim appears so axiomatic that one hesitates to call it into question. Yet, judicial insistence that the idea of the monster is nothing more than a relic of a less rational legal past should not be allowed to pass so readily. It is the central argument of this book that the legal idea of the monster offers to inform contemporary thinking in relation to outsiders and their legal regulation. Of course, there are other templates for thinking about the outsider. These include Zygmunt Bauman’s ‘stranger’ (1997),6 Renee Girard’s ‘scapegoat’ (1977, 1986) and Carl Schmitt’s ‘enemy’ (1996).7 Each offers a valuable framework for thinking about the outsider. This book will argue that the figure of the monster contributes something novel to contemporary debates in social theory that concern themselves with outsiders. Bauman notes that ‘society can only define itself against its strangers’ (1998a, p 12). It needs enemies or scapegoats. It needs outsiders to constitute itself. The figure of the monster might prove useful because it addresses not only this question of why outsiders are necessary (Graham, 2002, p 39), that is, sociologically and psychologically functional, but also, and in a particular way, the conditions necessary for their production. It is this question of how certain individuals or groups come to receive the label monster, and why this appellation proves successful in cultural terms that the book will interrogate. Of course, other questions might be posed. In particular, much psychoanalytically informed theoretical work around the concept of the monster seeks to universalise the monster as everyman. This amounts to a claim that the monster resides in each of us given that hybridity is the inevitable effect of taking up a position in the symbolic order. As Cohen puts it ‘[t]o be oedipalized, to become a speaking subject, is both to be born (as a unified being) and to die (to be torn apart, become monstrous)’ (1999, p 22). However, while we are perhaps all monsters in this sense, and while recognition of this fact might be a place from which a progressive politics might begin, it remains the case that only some individuals or groups are, at any given historical moment, demonised by the term monster. While we might all be monsters, we do not all bear the same relationship to this term. Accordingly, it becomes important to inquire after the conditions through which monsters become culturally legible.

6 7

online through Yale University’s Avalon project www.yale.edu/lawweb/avalon/avalon.htm (date accessed: 14 April 2006).] For other literature on the stranger template see Harman (1988), Tabboni (1995), Dessewffy (1996), Stichweh (1997) and Bulent (1998). We might also add to this list the Levinasian ‘other’ (1981, pp 100–101) and Agamben’s notion of Homo Sacer or ‘bare life’ (1998).

Introduction

3

In this respect, the book will draw, in particular, on the work of Michel Foucault. For Foucault’s theoretical and historical treatment of the monster category proves to be especially illuminating in relation to the question of monster production. Drawing on his text Abnormal: Lectures at the College de France 1974–1975 (2003),8 it will be contended that the process, whereby at least some human beings are positioned as outsiders, is structured like a monster. That is to say, at least some constructions or representations of human difference, both legal and non-legal, are informed by the monster category. The book will think through and unpack Foucault’s idea of the monster, and his sufficient and necessary conditions of monster production. It will become clear that, for Foucault, the monster is to be understood through a law/nature nexus and, more specifically, as the effect of a double breach, of law and nature. The book will elaborate on what precisely Foucault means by the terms law and nature in this context. In thinking about monsters the book’s object will be the law. In linking Foucault with law the reader might object that Foucault had little to say about the law. Indeed, on his account, ‘law has been overtaken by the more insinuative and productive powers of discipline or biopower’ (Golder and Fitzpatrick, 2009, p 2). While there has been an attempt by some critical legal scholars to recover the ‘legal’ in Foucault’s work (Hunt and Wickham, 1994; Tadros, 1998; Golder and Fitzpatrick, 2009),9 this book does not set itself this task, other than in a limited and specific context. This book’s focus on the relation between Foucault and law is limited to his treatment, and the importance in his work, of a particular legal category, namely the monster. While this legal category no longer has a formal existence in law, it will be contended that contemporary legal regulation of embodied difference bears its legacy. In other words, the legal category monster forms an important part of a history of the legal present (Foucault, 1977, p 31). This is because medico-legal practices of normalisation 8 9

For other work drawing on these lectures see Elden (2001) and Cowan and Elden (2002). In their recent book, Golder and Fitzpatrick argue that Foucault ‘sketches two different dimensions of law: law as a determinate and contained entity, and law as thoroughly illimitable and as responsive to what lies outside or beyond its position for the time being. Foucault’s law . . . is “located” in the uneasy, ambivalent relation of these two opposed yet generatively interacting legal dimensions. It is in the movement between these two apparently opposed dimensions that Foucault’s law is revealed as a law of possibility, contingency and lability: that is, as a law always open to the possibility of its being otherwise’ (2009, p 2–3). Tadros attempts to ‘reestablish the importance of Foucault’s work for an understanding of the way in which modern law operates’ (1998, p 75). He contends that the importance of Foucault’s work for law is overlooked due to a failure to distinguish between Foucault’s use of the term ‘juridical’ and law. The term juridical ‘describes an arrangement and a representation of power rather than law. . . . Modern law operates between Foucault’s concepts of government and discipline. It provides a key way in which government decisions can adjust the relationships between disciplinary institutions. This introduces the idea that law begins to operate in the perspective of the complete lives of individuals rather than just to prevent certain actions. Law, then, operates in accordance with what Foucault calls “bio-power” ’ (Tadros, 1998, p 75).

4

Introduction

remain tied to, and are structured by, this legal category. It is this particular Foucault/law nexus that the book explores. The book aims to consider how monsters are produced within and by law. By the same token, it seeks to identify the limits contained within law to the realisation of a more pluralistic understanding of difference. In addition to an analysis of Foucault’s monster framework, this will involve an historical study of the category monster within English law as well as consideration of contemporary legal figures that bear the legacy of this history and legal category. While the greater value of the template of the monster might lie in its explanatory power in relation to the production of outsiders in contemporary society, an analysis of legal history is important in providing a context in which to situate contemporary legal practice. In relation to an historical account of the figure of the monster in English law, and in relation to contemporary legal monsters, the book’s analysis will be structured around Foucault’s monster archetypes. According to Foucault, each age had its ‘privileged monster’ (2003, p 66). In chronological terms, Foucault’s account moves from a preoccupation with the bestial human in the Middle Ages to a concern over Siamese or conjoined twins in the Renaissance period and ultimately to a focus on the hermaphrodite 10 in the Classical Age. While this chronology is not borne out by a study of English law, as we will see in chapter 4, and while the hermaphrodite was never considered a monster within English law (Bracton, 1968, vol 2, p 31; Coke, 1979, vol 1, p 8a),11 the figure of the human/animal hybrid and conjoined twins have played an important role in an English legal history of the monster category. In terms of an exploration of contemporary legal monsters, the book will replicate Foucault’s triad of category crises. That is to say, the book will explore figures that challenge the distinctions between human and

10 Since the late-twentieth century the term intersex has generally been preferred to the term hermaphrodite both within medicine and as a term of self-description (see, for example, the Intersex Society of North America, www.isna.org). The term hermaphrodite has been used historically to describe persons whose genitalia were considered ambiguous at birth. The term intersex refers to intermediate or atypical combinations of physical features that usually distinguish male from female. It reflects medical recognition that many factors contribute to the determination of an individual’s sex. In addition to genitalia, these include chromosomes, gonads, hormones and secondary sex characteristics (see Greenberg, 1999, pp 278–292). In this book, the terms hermaphrodite and intersex will be used as appropriate in the context. It should be noted however, that as recently as 2006 the US and European endocrinological societies have announced a change in terminology. The new language adopted by these medical bodies is Disorders of Sex Development (DSDs). This shift in terminology is a disturbing development given that it moves away from questions of ontology and the recognition of intermediate sex to an understanding of bodies as disordered. For a critique of this shift see Reis (2007) and Feder (2009). 11 This understanding of the hermaphroditic body is reproduced as recently as 1724 in the writings of Thomas Wood (1979, p 12). The hermaphrodite was, however, considered a monster in other European jurisdictions including France (see Foucault (2003, p 66–67); Daston and Park (1985, 1995); Brillon (1727, p 435)).

Introduction

5

animal, male and female, and the idea of the proper legal subject as a single embodied mind, namely, the human/animal admixed embryo, the transsexual and conjoined twins. Thus consideration of the contemporary relevance of the legal category monster will relate to the practices and/or experiences of changing sex, sharing bodies and admixing embryos. Selection of these particular examples of human difference has a number of advantages. First, they enable comparison over time of particular and important legal conundrums identified by Foucault. Second, each of the contemporary figures selected bears a different, and illuminating, relationship to a legal history of monsters. Thus contemporary legal treatment of conjoined twins demonstrates continuity in the importance of irregular morphology to the monster category. More specifically, it serves to highlight the continued problematisation by law of a particular mind/body problem. In the case of the transsexual, the book identifies a figure whose arrival occurs after the period of the human monster proper. The transsexual is properly understood as an example of abnormality located within medico-legal regimes of normalisation, and can therefore be comprehended in terms of an historical shift from the body to the soul as the object of legal concern (Foucault, 1977).12 In Foucault’s terms, however, the abnormal individual bears the legacy of the monster category. In chapter 5 we will see that the transsexual, as an example of abnormal individuality, bears the imprint of the monster category for his/her outsider status is, quite literally, structured like a monster. Finally, the human/ animal admixed embryo is the most contemporary of monsters and yet, perhaps represents a return to a particular kind of ‘problematisation’ (Foucault, 1991, p 389) identified by Foucault around the human/animal distinction, one that has been privileged within the history of English law. This book offers, then, both an historical and theoretical exploration of the figure of the monster in law. In doing so, it provides a context in which to locate an understanding of the othering of the contemporary figures identified. In the chapters that follow, and in developing its central argument, the book will weave together a number of important themes. Consideration of these themes is important in order to understand the monster concept as it has developed historically, as well as in order to understand specific legal manifestations of the monster over time. The themes of the book to be considered include the binary distinctions between human and animal, male and female, and body and mind, as well as the concepts of causation, responsibility, natality and resistance.

1.1 Themes The distinction between human and animal is an important one in understanding the monster. While this type of category or species crisis is not essential to

12 This is a theme we will explore in chapter 3.

6

Introduction

the production of monsters, the human/animal hybrid occupies a central place in the legal history of the category. Moreover, anxiety over a blurring of these two spheres of existence is something that will be seen to increase over time in the context of English law. This trend is perhaps consistent with broader cultural anxiety concerning a breakdown of the paradigm of separation of species. While the onset of this crisis has been dated as early as the late-Middle Ages (Salisbury, 1994, p 2), it is one that became more pronounced with the passage of time and the discomfiting findings of science (Thomas, 1983, p 122; Pfister, 1992, p 21; Fudge, 2000a, p 23). These legal and broader cultural trends can be contrasted with Foucault’s location of the figure of the bestial human in the Middle Ages. Indeed, it is precisely Foucault’s treatment of the importance of human/animal hybridity over time that the book will challenge. As we will see, an intensification of anxiety over human/animal hybridity over time, within English law, calls into question the character of the relationship between the monster category and regimes of normalisation implicit within Foucault’s historical account. Further, the relationship between the monster category and human/animal hybridity is important in another respect. As we will see in chapters 2 and 4, historical understandings of monster production placed particular emphasis on bestiality on the part of the mother. Accordingly, and while the concept of the monster might possess general explanatory power in understanding the construction of abnormality, as Foucault’s work suggests, it may be that it is of particular relevance to an understanding of the othering of transgressive or non-normative sexualities. Moreover, the claim that the figure of the monster is predicated on deviant sexuality needs to be supplemented by recognition of another figure within Foucault’s genealogy of the abnormal individual. In chapter 3 we will see that, in addition to the human monster, Foucault identifies the masturbating child as an ancestor of the abnormal individual (2003, p 60). Thus transgressive sexuality appears to be interwoven both into the monster category specifically and the genealogy of the abnormal individual more generally. Accordingly, the template of the monster might prove particularly useful to scholarship exploring the legal regulation of sexuality. Finally, the importance of the distinction between human and animal in understanding the legacy of the monster category lies not only in this book’s claim that the abnormal individual of the present is structured like a monster. Rather, and as we will see in chapter 7, we are also witnessing the return of the figure of the human/ animal hybrid in the guise of admixed embryos. In this respect, legal and broader cultural anxiety over the distinction between human and animal is very much located in the present. Another theme informing the book is the male/female distinction. In exploring this theme the book will focus on the legal regulation of transsexuality. As already noted, for Foucault, the hermaphrodite was considered the ‘privileged monster’ of the Classical Age. While intersex people are no longer considered monsters in law, legal concern over the mixing of sex/gender in one body

Introduction

7

remains a considerable source of anxiety and accounts for the othering of transsexual people in law today.13 Moreover, the transsexual offers an example of Foucault’s abnormal individual, and therefore a figure structured by the monster category. In chapter 5 we will consider the differential treatment of intersex and transsexual people within contemporary English law. To the extent that the hermaphrodite has been considered a monster within European legal systems, the de-monsterisation of this figure needs to be understood in the context of a process whereby medical science refused the idea of mixed sex (Laqueur, 1990, chapter 5, 1998; Dreger, 1998a, 2000a). Today, medical science acknowledges the existence of intermediate sex at the level of reproductive biology, though the clinical management of intersexuality seeks to erase it (Kessler, 1990, 1998; Fausto-Sterling, 2000). As Fausto-Sterling explains, ‘modern surgical techniques help maintain the two-sex system. Today, children who are born “either/or–neither/both” – a fairly common phenomenon – usually disappear from view because doctors “correct” them right away with surgery’ (2000, p 31). Accordingly, because medical science no longer refuses the reality of mixed sex, contemporary intersex bodies can be viewed as falling within Foucault’s monster framework. That is, they represent a form of morphological irregularity that challenges a binary understanding of sex/gender, if only fleetingly before they are surgically ‘corrected’. However, this book will focus on the figure of the transsexual rather than on intersexuality, for the following reasons. First, some intersex persons continue to be viewed as either male or female. Second, and as already noted, intersex children are subjected routinely to invasive surgical procedures in order to bring them within the gender order. In this regard, monster status is short-lived. Third, and perhaps because of these two points, it is transsexuality, not intersexuality, that represents the greatest contemporary challenge to the legal maintenance of sex/gender binaries. In other words, it is ‘trans’ not ‘inter’ that provides the prefix most disturbing to legal certitude and taxonomy in the present.14 In relation to the transsexual, an understanding of monster status needs to be situated in the context of a broad historical shift, identified by Foucault, from body to soul as the object of legal concern (Foucault, 1977; Foucault, 2003, p 74). Yet, as we will see in chapter 5, contemporary legal concerns surrounding 13 The term transsexuality is used in the book because this is the term used within medicine and especially law, and because it is the term generally used by litigants in decided cases. However, it should be noted that other terms exist outside the law. In particular, the term transgender is used increasingly as an umbrella term for a wide range of trans subjectivities or gender variant people (see, for example, Bornstein (1994); Bruce-Pratt (1995); Wilchins (1997); Califia (1997); Whittle and More (1999); and Girshick (2008)). In relation to the problematic nature of binary thinking around sex and gender see also Epstein (1990). 14 Of course, this could change given an emerging intersex politics and the challenge contained therein to the medical practice of performing non-consensual surgeries on intersex children (Chase, 1998).

8

Introduction

the transsexual are not reducible to questions of interiority or deviant identity and/or desire. While modern deviant identities and/or desires are capable of constituting a double breach, of law and nature, within Foucault’s theoretical framework, and therefore the necessary conditions of monster status, it is clear that legal understandings of a double breach are not confined in this way. Rather, it is evident that legal concern also extends to practices. Thus in the transsexual context, it is evident that law’s concern also relates to transformations of the body effected by surgical and/or other medical means. In other words, from the perspective of law, the transsexual can be viewed as a monster at the level of both interiority and exteriority. Further, in considering the male/female distinction, the book will highlight a curious and important feature of an English legal history of the monster category. As we will see in chapter 4, and in contrast to Foucault’s account of the legal position in France, the hermaphrodite was never considered a monster within English law. While it is true that clear legal statements to this effect within English law reveal a degree of anxiety about the proper location of the hermaphroditic body within legal taxonomies, this legal finding remains significant. Thus it is curious that English law’s monsters, though informed by human/animal and order/disorder distinctions, are not informed by a body that challenges sexual difference. Indeed, the fact that challenge to sex/gender binaries failed to register in English legal constructions of the monster category, might serve as a provocation within feminist legal theory. In focusing on the figure of the hermaphrodite we might wonder why in 1601 Marie Lemarcis was considered to be a monster by a French court in Rouen (Foucault, 2003, p 71),15 yet that possibility was precluded by law in relation to her English counterpart. This jurisdictional difference might be viewed as casting doubt on the usefulness, or capacity for generality, of Foucault’s law/nature nexus in understanding the production of monsters. However, it may be that the location of the hermaphrodite outside the monster category in English law is an effect of viewing the hermaphroditic body as not involving a breach of law and/or nature, or at least as not involving a breach so significant as to register in this way. In this regard, monster status is always an effect of legal interpretation, and central to the interpretative task, as it pertains to irregular bodies, is perhaps, an assessment of any threat posed to, and the possibility and degree of their incorporation within, the legal order. Indeed, and as we will see in chapters 2 and 4, it is perhaps precisely such concerns that account for a legal distinction between monstrosity and ‘mere’ deformity and therefore the differential legal practices of exclusion and inclusion. The distinction between mind and body provides another important theme that the book will explore. This distinction is one that will be considered in relation to the aforementioned historical shift from the body to the soul as an

15 We will look at these cases in chapter 3.

Introduction

9

object of legal concern. Indeed, in the context of transsexuality, the distinction assumes particular significance given the transsexual narrative of being ‘trapped in the wrong body’. However, a study of law’s monsters points to the importance of this distinction in other respects. Within Western philosophy there has been a long tradition of privileging the mind over the body in understanding and constructing humanness (Porter, 1991; Grosz, 1994; Gatens, 1996; Cheah and Grosz, 1996). Yet, we will see that in the context of English law, this approach, in which the mind has been privileged and the body neglected, is reversed. In the corpus of the law dealing with monsters it is the body, not the mind, which proves to be the ultimate bedrock of what it means to be human. By the same token, we will see in chapter 5, in the contemporary context of transsexuality, that it is typically the body and not the mind that is privileged in legal constructions of ‘coherent’ subjecthood. These facts might serve to inform theoretical scholarship, including feminist legal scholarship, focusing on embodied subjecthood. Indeed, in view of the gendering of the mind/body distinction within Western philosophy and law (Price and Shildrick, 1999, p 17),16 the different articulation of this distinction evident within English law might prove fertile ground for feminist legal theory. In this regard, the legal category monster offers, perhaps, a site from which to launch a counter or ‘reverse-discourse’ (Foucault, 1978, p 101) concerning the terms of a key legal and philosophical distinction. Further, while law’s historical focus lies with the body, irrespective of its particularity, the book will consider one monster figure whose very status as a monster is to be understood in terms of a particular mind/body problem. The monster figure to be considered here is conjoined twins. The problem that conjoined twins are considered to pose lies in the fact that they challenge the idea of the proper legal subject as a single embodied mind. It will be argued in chapter 6 that conjoined twins provide an example of continuity in the production of a specific type of legal monster, despite contemporary legal disavowal in this respect. Indeed, it may be that conjoined twins are the sole figure to have retained monster status over time. Of course, one might object to any suggestion that conjoined twins represent a legal monster in the present. Surely, such a claim cannot be entertained after the English legal decision of Re A.17 However, this book will not argue that conjoined twins are described as monsters within contemporary law. Clearly, no formal legal category of the monster exists today. Neither would such usage be consistent with contemporary legal sensibilities. Nevertheless, conjoined twins can be understood as monsters in the sense that their legal comprehension continues to be structured by an understanding of

16 As noted by Price and Shildrick, ‘the identification of woman with the body is a familiar idea in the Western tradition from Aristotle to post-Cartesian modernism’ (Price and Shildrick (1999, p 17). See also Spelman (1982) and Lloyd (1993). 17 Re A above note 1.

10

Introduction

the monster category offered by Foucault. Moreover, this understanding of conjoined twins is, as we will see, apparent in medico-legal approaches to the question of their separation. Another theme that the book will explore is the theme of responsibility and its relationship to the production of legal monsters. In thinking about this theme the book will also consider what in the monster context is the interrelated theme of causation. As we will see in chapter 2, an important question arises concerning the significance and necessity of human agency to monster production. For Foucault, a theoretical understanding of the monster category does not depend on establishing human culpability. Nevertheless, it would appear that the presence of this element and concern proves typical in the legal construction of monsters. In particular, a view of monsters as having their origins in the transgressive act of bestiality is one that has proved central to the legal comprehension of monsters in historical terms.18 In the contemporary, we can no longer suspend our disbelief in a bestiality thesis. However, a link between responsibility and monster production persists in relation to, at least some, monsters. For example, it is the human agency of scientists that accounts for the production of the human/animal admixed embryo, a figure we will encounter in chapter 7. The book will also explore the significance of the relationship between the monster and the location of human agency. In relation to the practice of bestiality and scientific experiment the figure bearing culpability is separate from the monster itself. Rather, in these particular contexts the monster is the effect of the blameworthy human agency of others. However, as we will see in chapters 2 and 3, within Foucault’s historical and theoretical framework, it is possible to view the monster as agent in his/her own monsterisation. This is because, for Foucault, the abnormal individual, a figure that emerged in the nineteenth century, can be understood as a monster, albeit a diluted one. Thus, for example, and irrespective of the origin of desire, the transsexual necessarily plays a role in the shaping of his/her life. The particularity of this relationship between monster status and human agency may bear significance for understanding the degree of demonisation experienced by individuals and groups labelled monsters. In other words, the presence/absence of the element of culpability may point to a monster hierarchy within law. A further theme that the book will consider, and one that is implicit within Foucault’s theoretical framework, is the theme of natality. Specifically, it will be considered whether legal monsters are born or made. Of course, all monsters are made in the sense that they are social constructs, or readings of bodies and/or psyche. Yet, it may be that birth is crucial as a temporal moment in this form of legal constructivism. That is to say, it may be that law understands monsters as

18 See Bracton (1968, vol 2, p 31, vol 4, p 361), Coke (1979, vol 3, p 59) and Blackstone (1979, vol 2, pp 246–247). See also Williams (1972, p 21).

Introduction

11

having been thrown into the world fully formed. This might, for example, account for the fact that the leper was not designated a monster in the late Middle Ages, and that the xenotransplant recipient is not so designated today. The book will explore the significance of this temporal moment to monster production in different legal contexts. In conjunction with other elements, consideration of the relevance of natality will assist in enabling the presentation of a sophisticated and useful theoretical framework for thinking about law’s monsters. A final theme to be explored in the book is the political theme of resistance. What is to be resisted is the othering of human difference enabled by the monster category. This requires contestation at the level of the monster’s structuring principles. As we will see in chapter 2, Foucault’s monsters lie at the heart of a particular law/nature nexus. As he contends, the monster is an effect of a double breach, of law and nature. Thus what counts as a breach of nature and a breach of law becomes significant. In relation to law, it becomes important to challenge legal classifications that make nonsense of otherness. By way of example, in the context of transsexuality, it becomes necessary to resist the rigidity of the male/female distinction in law, and legal attempts to impose a binary understanding of sex/gender onto those whose lives contradict this powerful normative assumption. Resistance here might take the form of advocating the instantiation of a ‘third’ (fourth, fifth . . .) sex/gender. In relation to nature, it is precisely the need to engage in struggle over the coding of trans bodies, practices and desires as ‘unnatural’ within medico-legal, as well as broader cultural, domains to which a study of law’s monsters points. In other words, the monster can be viewed, in part, as an effect of processes of ‘denaturalisation’ (Derrida, 1992, 1994). Accordingly, a study of the legal category monster provides support for the political practice of ‘queering what counts as nature’ (Haraway, 1992, p 300). For a queering of this kind may operate as a circuit breaker in the relationship between human being and monster status. In short, resistance can begin in the space between or beyond male and female. It is the prefix trans that offers political promise. Equally, in the context of conjoined twins and human/animal admixed embryos, promise lies in the challenge they pose to legal understandings of the ‘proper’ relation between body and mind, and between human and animal. In another, though related, context the figure of the monster is itself, perhaps, a place from which a progressive politics might begin. For, and as we will see in chapter 2, the monster is a hybrid and impure creature, and therefore, of necessity, captures multiplicity and difference rather than sameness. In this regard, the monster is like the future itself in which a politics might be forged. As Derrida notes, ‘the future is necessarily monstrous: the figure of the future, that is, that which can only be surprising, that for which we are not prepared . . . is heralded by species of monsters. A future that would not be monstrous would not be a future; it would already be a predictable, calculable, and programmable

12

Introduction

tomorrow’ (1995, pp 386–387).19 It might be thought that a choice is opened up here between a strategy of demonsterisation, one that seeks to resist legal attempts to place particular bodies outside law and nature, and a strategy that aims to lay claim to and embrace the very ground that the monster occupies. However, they amount to the same thing. For challenge to legal constructions of nature, and to legal taxonomies, premised as they are on binary thinking, necessarily paves the way and creates a space for hybridity, and therefore the monster.

1.2 Chapter outlines In chapter 2, the book will consider Foucault’s theoretical framework for understanding monsters. However, because the monster is not the only category that names outsiders, the chapter will begin by explaining why the monster has been selected in preference to other templates generated within law and social theory that aid thinking about outsiders. Thus, for example, the monster will be distinguished from the legal categories of the idiot and deformity. In relation to outsider templates generated within social theory, the chapter will pay particular attention to the figures of the scapegoat (Girard, 1977, 1986) and the stranger (Bauman, 1993). In considering these alternative templates the chapter will emphasise the advantages that the monster category offers. In particular, it will be argued that the monster offers greater explanatory power in relation to understanding the processes whereby outsiders are constituted. Turning to the monster concept specifically, the chapter will consider the existing literature on the idea and category of the monster. Drawing, in particular, on the work of Michel Foucault the chapter will provide a conceptual framework in which to locate law’s monsters. This conceptual framework is one that understands the monster as a hybrid creature, both human and non-human simultaneously. In Foucault’s terms, the monster is understood to be constituted through a double breach, of law and nature. The chapter will assist readers in understanding the moment of breach in this context through elaborating the concepts of law and nature. Moreover, the chapter will marshal the relationship between the term monster and the etymologically related terms of monstrosity and the monstrous. The distinctions between these terms, distinctions often left opaque in much of the literature, will be seen to be crucial to an understanding of Foucault’s theoretical framework. Further, the chapter will consider the relationship between human culpability and the appearance or production of law’s monsters. In this respect, the chapter anticipates chapters 3 and 5. These chapters will highlight a shift in understandings of the relationship between the monster and human agency occasioned by

19 On the promise, and therefore the politics, of monsters more generally see Haraway (1992), Cohen (1996, p 12), Shildrick (1996, p 8), Graham (2002, p 53–55) and Rai (2005).

Introduction

13

the arrival of the figure of the abnormal individual. The chapter will also consider the relevance of the theme of natality to an understanding of the legal figure of the monster. In this respect it will consider whether law’s monsters are born and/or made. Of course, all monsters are made in the sense that they are social constructs. The point here is to determine whether there exists a relationship between legal constructions of monsters and the birth moment. To put it differently, the chapter aims to ascertain whether law will countenance application of the monster label to individuals not considered monsters at birth. The theoretical framework offered in chapter 2 will help make sense of the legal monsters to be examined in subsequent chapters. In chapter 3, the book will detail Foucault’s genealogy of the abnormal individual that appears in his text, Abnormal. As part of this genealogy the chapter will map, chronologically, Foucault’s monster archetypes: the bestial human, conjoined twins and the hermaphrodite. For Foucault, these three figures represent respectively the ‘privileged monsters’ of the Middle Ages, the Renaissance period and the Classical Age (2003, p 66). Foucault links these monster archetypes to the contemporary figure of the abnormal individual through his emphasis on an historical shift from the body to the soul as the object of legal concern. In effect, Foucault’s argument is that the concept of monstrosity is reworked with the emergence of the abnormal individual. Rather, than being written on bodily surfaces, monstrosity, in the context of the abnormal individual, becomes internalised. It is the internalisation and therefore the invisibility of monstrosity that constitutes the abnormal individual as a figure of modernity. This general account not only identifies particular bodies as societal problems within given historical periods. It also suggests a linear history in which the abnormal individual is preceded by a series of antecedent figures (the bestial human – conjoined twins – the hermaphrodite) that diminish over time the physical and psychological distance between human and monster. Accordingly, Foucault’s history of monsters suggests continuity rather than rupture or dissonance with later regimes of normalisation, an account that will be challenged in chapter 4. In chapter 4, the book will offer an English legal history of the monster category. This will involve consideration of a series of legal texts on monsters, including those of Bracton, Coke and Blackstone as well as a number of lesser juristic figures. The chapter will resist a view of the legal category monster as evidence of a legal Dark Age. It will also highlight how the privileging of mind over body in understanding humanness, a legacy of Western philosophy (Gatens, 1996; Grosz, 1994; Porter, 1991), is reversed in this corpus of the law, a fact that might serve to inform theoretical scholarship, including feminist legal scholarship, focusing on embodied subjecthood. The chapter will divide this legal history into the three distinct periods identified by Foucault: the late Middle Ages, the Renaissance period, and the Classical Age, though it will become apparent that within English law the category monster persisted into the nineteenth century. In each period the chapter will locate legal constructions

14

Introduction

of the monster in their appropriate political and social contexts. The chapter will highlight how English law bears a different relationship, both in terms of scope and chronology, to the three monster archetypes identified by Foucault. In particular, the hermaphrodite, Foucault’s privileged monster of the Classical Age, was never located within the monster category within English law. Equally, and again in contrast to Foucault’s account, rather than movement away from the figure of the bestial human, English legal texts appear to move, over time, precisely toward this figure. It will be argued that this legal history, which overlaps with regimes of normalisation, serves to foreground the importance of the idea of a breach of nature in understanding the construction of the abnormal individual despite an apparent shift in regulation toward statistical anomaly. Indeed, and as will be argued in chapter 5, the trope of nature might be viewed as setting limits to the very project of normalisation. In chapter 5, the book will build on chapters 3 and 4 through considering the relationship between the legal category monster and contemporary practices of normalisation. It will do so in the specific context of transsexuality and the legal struggles transsexual people bring before law. Transsexual people can be viewed as contemporary monsters in Foucault’s terms because they represent a double breach, of law and nature. That is, they pose a challenge to the legal order in that they call into question the stability of a binary division of sex, while transsexual identity and/or desire, as well as the process of transitioning, can be constructed to involve a breach of nature. Indeed, it is precisely through understanding the relationship between the transsexual and legal constructions of breach, of law and nature, that enables us to determine whether the monster appellation applies. Conversely, the transsexual can be located within regimes of normalisation that aim to neutralise his/her threat and incorporate him/her within the gender order. Normalisation however, proves dependent on medicolegal processes of ‘naturalisation’ that the chapter will detail. Accordingly, the figure of the monster, and legal investments made in nature, function as a visible limit to this project of modernity. While this chapter will focus on the transsexual as an exemplar of the abnormal individual, attention will also be given to intersex people in the present. In contrast to the transsexual, and while also subject to processes of normalisation, the label monster is, irrespective of legal jurisdiction, less easily applied to intersex people. This is because intersex children are operated on at a very early age (Fausto-Sterling, 2000, p 31) and these medical interventions serve to uncouple them from monster status. In medico-legal terms, surgery is viewed as ‘rectifying’ morphological irregularities and as bringing intersex children more properly within the gender order. The chapter will contrast legal regulation of intersexuality with legal regulation of the transsexual in the present. While both bear a relationship to sex reassignment surgery, it will become clear that it is only surgery performed on the transsexual body that law tends to view in terms of a process of ‘denaturalisation’. Moreover, and in addition to a breach of nature, the transsexual, in contrast to intersex people, is considered

Introduction

15

to pose a threat to an important legal and cultural distinction, namely, the male/female dyad. The chapter will tease out the importance of these factors to an understanding of the differential relationship that transsexuality and intersexuality bear to monster status in the present. In doing so, it will emphasise the importance of contesting legal constructions of nature, for the deployment of the trope of nature proves to be central to the monsterisation of human difference. By the same token, the chapter will highlight the need to contest legal taxonomy. In the context of transsexuality, this translates into a need to challenge the rigidity and binary structure of legal constructions of sex. Finally, and in contrast to the hermaphrodite, as well as Foucault’s other human monsters, chapter 5 will demonstrate how legal anxiety surrounding the transsexual may be heightened by the transsexual’s own agency, or, at least, by the legal attribution of culpability. In chapter 6, the book will consider the significance Foucault’s conceptual framework for understanding monsters has for conjoined twins in the present. For Foucault, conjoined twins represent the privileged monster of the Renaissance (Foucault, 2003, p 66). However, while Foucault emphasises this historical period, he does not conclude that conjoined twins thereafter lost monster status. In contrast to Canguilhem (1964, p 38), he does not insist that medical science heralded the death of monsters. Conjoined twins not only exist in the present as an empirical fact. They might also be properly characterised as monsters within Foucault’s theoretical terms. For conjoined twins can still be viewed as representing a double breach, of law and nature, because they continue, quite literally, to embody mixture at the level of human morphology and because they continue to represent a challenge to a legal order that understands the subject as a single embodied mind. Indeed, it may be that conjoined twins are the sole figure to have retained monster status over time. In this respect, contemporary legal treatment of conjoined twins might be viewed as demonstrating continuity in the importance of irregular morphology to the monster category. In exploring the double breach of nature and law, in the context of conjoined twins, the chapter will focus on the question of why a breach of nature, in this case a particular example of mixture at the level of human morphology, presents a problem for law. In doing so, it will highlight how law constructs legal personhood around a particular understanding of the relationship between body and mind. The chapter will then offer a critique of the privileging of this particular legal understanding. Further, the chapter will consider and contrast pregnancy with the situation of conjoined twins. While both present examples of concorporation, and while both present difficulties for the law, it will become clear that only the latter can be described as monsters within Foucault’s theoretical terms. In explaining why this is the case, the chapter will provide further precision regarding what is at stake in the monster concept. In thinking through the relationship between conjoined twins and the idea of the monster, the chapter will also consider the importance of the element of culpability. More particularly, attention will be paid to a legal appreciation

16

Introduction

of an absence of culpability in the case of conjoined twins. In this regard, the chapter will contrast the production of transsexuals and conjoined twins as monsters respectively. A view of conjoined twins as innocent will be linked to the greater legal sympathy they generate when compared with their transsexual and human/animal admixed embryo counterparts. While the element of culpability may not be necessary in the production of legal monsters, as Foucault suggests, it may help to explain the degree of hostility generated in relation to particular monster types. In this sense, the element of culpability might point to a monster hierarchy. In a different register, and while recognising the challenge that law represents to a more pluralistic understanding of embodied difference, the chapter will consider the political promise offered by conjoined twins. Finally, conjoined twins, like intersex people and transsexuals, are subjected to practices of normalisation. In the particular context of conjoined twins, practices of normalisation equate with separation of the twins and therefore the end of monster status. Accordingly, as in chapter 5, this chapter will highlight, though in a different way, how a tension exists between practices of normalisation and the limit of the monster. In chapter 7, the book will consider the legal regulation of human/animal admixed embryos. The human/animal admixed embryo represents a contemporary category crisis and a return to law of one of Foucault’s monster archetypes. Moreover, it is this archetype of the human/animal hybrid that has been privileged over time within English law. The chapter will situate analysis of the contemporary figure of the human/animal admixed embryo within the context of a legal history that points to a greater degree of continuity with the past than Foucault’s history of monsters suggests. In contrast to transsexuals, intersex people and conjoined twins, processes of normalisation are not deployed in relation to human/animal admixed embryos. On the contrary, rather than normalisation, the regulatory strategy adopted in the face of the possibility of these contemporary human/animal hybrids, or, at least, in the face of the possibility of their uterine development or birth, has been one of prohibition.20 The distinct form of legal regulation adopted in relation to human/animal admixed embryos is, perhaps, explicable along two axes that the chapter will explore. First, it may be that the human/animal distinction proves more crucial in cultural terms than the male/female distinction or legal privileging of a single embodied mind. Of course, the human/animal distinction has been breaking down for centuries (Thomas, 1983; Pfister, 1992; Fudge, 2000a). Nevertheless, and perhaps precisely because of this fact, considerable effort has gone into its maintenance. While human/animal fusions are apparent in other contexts including that of xenotransplantation, law appears to draw a line in the context

20 See, for example, sections 4A(1) and 4A(2) Human Fertilisation and Embryology Act 2008 (UK); section 4 (g–j) Assisted Reproduction Act 2004 (Canada).

Introduction

17

of the development of human/animal admixed embryos. The difference appears to be that, unlike the example of xenotransplanation, which involves the acquisition of an animal organ by a human subject, human/animal admixed embryos are considered monsters from their inception. This would suggest the importance of the moment of birth to monster production. Second, unlike intersex people and conjoined twins, whose ontological status can no longer be attributed to the culpability of another, human/animal admixed embryos raise precisely issues of human agency, and therefore responsibility, given their mode of production. In this respect, there are parallels between human/animal admixed embryos and human monsters of old where the latter were understood through the lens of bestiality as cause. Indeed, with respect to the relationship between monster status and human agency there are parallels between human/animal admixed embryos and abnormal individuals. The chapter will explore these themes. Finally, and in the face of legal resistance, the chapter will consider the political promise that human/animal hybrids offer (Haraway, 1992). In the concluding chapter, the book will provide a summary of the arguments developed in the previous chapters. The chapter will highlight the implications that a study of the legal category monster has for our understanding of the legal and non-legal regulation of human difference in the contemporary. In particular, the chapter will emphasise the links between the monster lexicon and Foucault’s abnormal individual. In this respect, the chapter will highlight the relevance of the monster template as a heuristic device for understanding a process whereby a range of individuals and groups, whose monstrosity is constructed to reside on the inside, are rendered outsiders. Moreover, the chapter will redraw our attention to a need to rethink our understanding of the relationship between legal constructions of monster status and the interplay between abnormality and the notion of a breach of nature. To the extent that the book is concerned with the abnormal individual/monster nexus, the chapter will point to the fields of gender and sexuality as especially fertile ground for future work exploring the value of the monster concept. The chapter will also highlight the continuing significance of the idea of the monster, and of monstrosity, to contemporary bodies, including those of conjoined twins and human/animal admixed embryos. In this respect, the chapter will highlight the relevance of the monster template to study within the field of law, medical health and biotechnology.

Part I

Theory/History/Monsters

Chapter 2

Foucault’s theoretical framework

Essentially, the monster is the casuistry that is necessarily introduced into law by the confusion of nature. . . . it is a monster only because it is also a legal labyrinth, a violation of and an obstacle to the law, both transgression and undecidability at the level of the law (Foucault, 2003, pp 64–65).

2.1 Introduction This chapter is concerned with the legal category monster and with Foucault’s theoretical framework for making sense of law’s monsters. It aims to highlight how the figure of the monster offers to inform contemporary thinking about outsiders and, in particular, the process of their constitution. In focusing on the process whereby outsiders are constituted, the chapter aims to interrogate how certain individuals or groups come to receive the label monster and why this appellation proves successful in cultural terms. Of course, other questions might be posed. In particular, much psychoanalytically informed theoretical work around the concept of the monster seeks to universalise the monster as everyman (Cohen, 1999, p 22). This amounts to a claim that the monster resides in each of us given that hybridity is the inevitable effect of taking up a position in the symbolic order. However, while we are perhaps all monsters in this sense, and while recognition of this fact might be a place from which a progressive politics might begin, it remains the case that only some individuals or groups are, at any given historical moment, demonised by the term monster. While we might all be monsters, we do not all bear the same relationship to this term. Accordingly, it becomes important to inquire after the conditions through which monsters become culturally legible. Moreover, and as Hanafi cautions, while psychological factors are clearly important in understanding monsters, monsters are, perhaps, best approached as ‘an ideological cluster’, that is, ‘as an entity constructed and represented within a social group’ (2000, p 14). As the chapter will demonstrate, the monster is an important template to consider in the context of social theory addressing itself to questions concerning outsiders. As Graham notes, the study of monsters has ‘an enduring and

22

Theory/History/Monsters

critical significance’ (2002, p 39). However, the monster is not the only category that names outsiders. Rather, there are many templates within social theory for thinking about outsiders. Moreover, outsider templates have been generated both within and outside the law. The selection of the monster as a vehicle for exploring the construction of outsiderness therefore represents a choice over other templates. Accordingly, it is both necessary and useful to say something about this choice from the outset. Before proceeding to analyse the concept of the monster therefore, the chapter will first consider other legal and non-legal templates for the outsider. In thinking about these alternative templates it will become clear that the monster possesses advantages. In particular, it offers greater explanatory power in relation to the process whereby outsiders are constituted. In a different register, and as we will see in chapter 3, the monster may function as a master category for understanding at least some other templates for the outsider (Foucault, 1970, p 157; 2003, p 56). That is to say, other templates may bear its legacy.

2.2 Legal templates In choosing the monster as the focus of study it should be appreciated that the book’s object is the law and that the monster is a category of the law; it has a legal life (Foucault, 2003, p 55; Canguilhem, 1964, p 31). In the West, the monster category is traceable to Roman law and in the context of English law features from the mid-thirteenth century into modernity.1 However, the production of legal outsiders is not exhausted by the figure of the monster. Thus within the common law of England a series of outsider figures have been constituted. These include the leper, the idiot, the lunatic, and the deformed or disabled.2 The selection of the monster in preference to these other legal outsiders is deliberate.

1

2

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 Watson (1997)). For a discussion of Roman law on monsters see Schrage (1995). In the English context the category monster entered law in the mid-thirteenth century common law writings of Henry de Bracton (1240–1260, 1968, vol 2, p 31, pp 203–204; vol 3, pp 151, 221; and vol 4, pp 198, 227, 361–362) and survived until the late eighteenth century when William Blackstone published his Commentaries (1765–1769, 1979, vol 2, pp 246–247). See, for example, Bracton (1968, vol 2, pp 51, 308–309; vol 4, p 209). According to Blackstone, ‘[a]n idiot, or natural fool, is one that has no understanding from his nativity; and therefore is by law presumed never likely to attain any, for which reason the custody of him and of his lands was formerly vested in the lord of the fee . . . but, by reason of the manifold abuses of this power by subjects, it was at last provided by common consent, that it should be given to the king’ (1979, vol 1, p 292). He adds that ‘[a] man is not an idiot, if he has any glimmering of reason, so that he can tell his parents, his age, or the like common matters’ (1979, vol 1, p 293). Conversely, a lunatic ‘is one who has had understanding, but by disease, grief, or other accident has lost the use of his reason. A lunatic is indeed properly one that has lucid intervals; sometimes enjoying his senses, and sometimes not’ (1979, vol 1, p 294) (see generally, McGlynn, 2005).

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For, unlike law’s other outsiders, the monster’s rights are not merely restricted. Rather, they are extinguished. That is, law’s monsters are placed outside the law. Indeed, part of the value of the figure of the monster, as a heuristic device, lies in the fact that it is constructed as non-human in a legal and literal sense. Of course, other outsider figures of law can be contrasted with normative humanity. Thus in contrast to some fantasy of ontological purity, the idiot and the deformed person, for example, fall short along axes of mental/cognitive and physical impairment respectively. Yet, there is a crucial difference. Unlike the monster, these figures are, at least in some measure, accommodated within the social and legal order. By way of comparison the monster is the figure of exclusion par excellence. As Judith Butler has noted ‘the construction of the human is a differential operation that produces the more and the less “human”, the inhuman’ and ‘the humanly unthinkable’ (1993, p 8). Law’s outsiders all bear a relationship of difference to normative humanity, one that helps constitute what counts as ‘human’ in any particular historical and cultural moment. However, in the context of the monster this relationship of difference is most marked. Or, to put it another way, law has, from the clay of humanity, constructed the monster to represent the greatest degree of difference to humanness. For this reason, the monster is a particularly useful template from which to think anew about questions of human difference. In suggesting that law has constructed the monster as the outsider bearing the greatest degree of difference to humanness, it is not my claim that human and monster should be understood in terms of a relation of absolute difference. Indeed, it is clear that the anxiety the monster provokes is linked to the fact that its difference is only relative. Nevertheless, the monster, more than any other category of the law, captures the quality and the location of the outside. It is perhaps for this reason that Foucault intimates that the monster represents a master category for thinking about contemporary forms of difference and exclusion (2003, p 324). The claim that the monster occupies a unique position within law in this respect is borne out by closer consideration of other legal outsider figures. Thus, even the leper, a figure traditionally understood as excluded from medieval European societies (Foucault, 2003, p 43–44), is not placed entirely outside the law. While the leper ‘is to be placed outside the community of mankind’, Bracton, writing in the mid-thirteenth century, notes that a ‘supervening disease does not take away an inheritance already held’ (1968, vol 2, p 309). In the context of disability more generally, the regulation of difference has been described in terms of ‘an oscillation between processes of integration and exclusion’ (Shildrick, 2005, p 757). Indeed, law has sought typically to incorporate the disabled or deformed person within the normative legal order. Thus in English law, a distinction between monstrosity and deformity, one traceable to Roman law,3 has served to mark the limits of conceivable humanity.

3

D.1.5.14.

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That is, deformity appears to have signified degrees of bodily difference or morphological irregularity that the law was capable of accommodating. In other words, the deformed body appears to have presented a different kind of legal problem than the monster. Accordingly, Shildrick’s claim that ‘all disabilities . . . introduced the anxiety of an “undecidability at the level of the law,” ’ (2005, p 762)4 proves problematic in that it confuses and conflates the idea of disability with that of the monster. As we will see, for Foucault, it is precisely this fact of ‘undecidability at the level of the law’ that proved central both to the inauguration of law’s monsters, and to law’s ability to distinguish between the merely deformed and the monster (2003, p 65).

2.3 Non-legal templates Turning to non-legal templates for thinking about the outsider a number are evident within social theory.5 Let us contrast two prominent templates, the scapegoat and the stranger, with the figure of the monster. While these templates perhaps have a relation to law, they have not, in contradistinction to the monster, occupied the position of a formal legal category.6 Moreover, while the scapegoat and the stranger are valuable templates for thinking about outsiderness, the figure of the monster may offer advantages. In particular, the monster is capable of offering a clear and useful account of the process through which this particular outsider is constituted. In contrast, accounts of the processes through which the scapegoat and the stranger are produced are considerably more opaque. The scapegoat The scapegoat is an outsider figure most associated with the writings of Rene Girard (1977, 1986). It is important to recognise immediately that Girard’s scapegoat bears a different relationship to order than the monster. While the monster is, as we will see, considered to pose a threat to social and legal order, Girard understands the scapegoat as a solution to disorder. For Girard, the scapegoat comes into being in order to defuse tension. Within his theory of acquisitive mimesis and rivalry the figure of the scapegoat functions as a social mechanism through which violence, or the potential for violence, is limited

4 5

6

In referring to ‘undecidability at the level of the law,’ Shildrick is quoting Foucault (2003, p 65). However, it is clear that Foucault uses this expression only, and precisely, in relation to monsters. These include the stranger (Bauman, 1997), the scapegoat (Girard, 1977, 1986), the enemy (Schmitt, 1996), and perhaps also the Levinasian ‘other’ (1981, pp 100–101) and Agamben’s notion of Homo Sacer or ‘bare life’ (1998). Though there is a reference to the ‘stranger’ in Bracton. Thus he notes that ‘no one is to take a stranger into his house except in broad daylight’. The reason for this prohibition appears to be a fear that the stranger might injure someone. If this occurs, Bracton notes that the occupier of the house shall be held responsible (1968, vol 2, p 387).

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(1987, pp 7–10, 24). For Girard, the scapegoat is the product of a process whereby one individual desires an object, a second individual imitates this desire leading to rivalry, and then both of these individuals ‘deflect their destructive energy from one another onto a substitute’ (Wallace and Smith, 1994, p 10). It is this act of transference that brings into being the scapegoat. In the words of Girard: If acquisitive mimesis divides by leading two or more individuals to converge on one and the same object with a view to appropriating it, conflictual mimesis will inevitably unify by leading two or more individuals to converge on one and the same adversary that all wish to strike down (1987, p 26).7 It is not clear how this process of collaboration and unification occurs. Neither is it obvious why it should be viewed as inevitable, though this claim is perhaps explicable in the context of escalating violence that would otherwise destroy the community. On this account the survival of the community proves contingent on a sacrifice. In any event, what needs to be reemphasised here is the fact that the monster and the scapegoat function differently in relation to order. While the monster represents a problem for order, in Foucault’s terms a problem of classification, the scapegoat represents a solution to the problem of disorder, and specifically violence. Yet, despite this difference, both figures serve as foil to an ontologically pure humanity. That is to say, both the monster and the scapegoat serve to bolster the idea of coherent human identity. However, Foucault’s monsters differ from the scapegoat in another important respect. In contrast to his monsters, whose inauguration, as we will see, is to be understood as the effect of a double breach, of law and nature, the scapegoat appears as an arbitrary victim. On Girard’s account, the scapegoat is chosen ‘only because it is vulnerable and close at hand’ (1977, p 2). Of course, even in these terms, the scapegoat is not completely arbitrary in that physical proximity to the community and vulnerability suggest some sort of delineation. However, these conditions contain the potential to encompass large sections, if not the majority, of the community. Indeed, Girard’s list of examples of common victims includes ‘ethnic and religious minorities’, those suffering from ‘sickness, madness, genetic deformities, accidental injuries, and even disabilities in general’, ‘women, children and old people’, ‘the rich and the powerful’, and those distanced ‘from normal social status of whatever kind’ (Williams, 2005, p 112). Indeed, for Girard, scapegoating can be triggered by ‘extreme characteristics’ such as those of ‘beauty and ugliness’ and ‘vice and virtue’ (Williams, 7

Henri-Jacques Stiker presents Girard’s position in the following terms: ‘the oedipal tragedy is ultimately centred, not on incest, the slaying of the father, the misfortune of Oedipus, but on rivalry, fratricidal rivalry. Everyone wants to be similar. . . . This is the indicator of the “mimetic crisis” that interests Girard. We all want the same desires. The outcome is violence, violence resolved by the expulsion of the expiatory victim’ (1999, p 53).

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2005, p 113).8 In this regard, Girard’s account of the scapegoat is perhaps too general and to that extent less useful than the template of the monster. There is one further element of Girard’s scapegoat that is worth noting. While it does not overcome the difficulty of generality in Girard’s account, this element serves to highlight a theme to be pursued in the context of the monster. While Girard emphasises visibility and vulnerability as defining features of the scapegoat, these are not exhaustive characteristics. Rather, he also notes that scapegoats are chosen ‘because they bear the signs of victims’ (1977, p 21). In this respect, the scapegoat can be seen to share something with the monster. In the context of the monster, ‘signs’ are quite literally written on, and read off, the body. In the context of the scapegoat, Girard is referring to the assignation of blame to others. Thus, and by way of example, he identifies the Jew (1986, pp 1–5)9 and the witch (1986, p 7–9)10 as repositories of blame for the bubonic plague and all manner of social ills respectively in the late Middle Ages. We will explore this theme of culpability, and its relevance to the production of outsiders, in fleshing out Foucault’s monster framework. The stranger The stranger offers another template for thinking about outsiders. There exists an extensive literature on the stranger (Simmel (1950); Park (1928); Wood (1724 (1934)); Stonequist (1937); Schutz (1944); Siu (1952)) and the category has, as Marotta notes, ‘experienced a renaissance in contemporary social theory’ (2000, p 121).11 The writer perhaps most associated with the template of the stranger in the present is Zygmunt Bauman. For Bauman, the stranger is a figure of modernity, and in a different guise, of postmodernity. In relation to the premodern world, Bauman draws a distinction between the neighbour and the alien in terms of their relationship to human status. ‘Humans did not divide into neighbours and aliens: either they were humans, or they were aliens’ (Bauman, 1993, p 151). In this regard, the figure of the alien, much like the monster, might be viewed as a foil for establishing the coherence of human identity. However, in contrast to the monster, the concept of the alien appears capable of a wide ambit. Thus it would literally include anybody located outside the community. In contrast to Girard’s scapegoat, it is not vulnerability that defines the alien, but a lack of physical and social proximity (Bauman, 1993, p 153). The modern stranger ‘emerges when the co-ordination between physical and social/cognitive proximity is broken’ (Bauman, 1993, p 152). The modern 8 9 10 11

See also Wallace and Smith (1994, p 253). See also Williams (2005, pp 98–99). See also Williams (2005, pp 126–127). See, for example, Harman (1988), Tabboni (1995), Dessewffy (1996), Stichweh (1997) and Bulent (1998).

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stranger is not like the pre-modern alien, ‘the outright enem[y] that prompt[s] one to draw out the sword’ (Bauman, 1993, p 152). Rather, the modern stranger is a figure who is ‘socially distant yet physically close’ (Bauman, 1993, p 152). Moreover, while the alien was ‘a temporary irritant’, the stranger ‘has become a permanent condition’ (Bauman, 1993, p 159). As Bauman notes ‘[t]he problem of modern society is not how to eliminate strangers, but how to live in their constant company – that is, under the condition of paucity, indetermination and uncertainty’ (Bauman, 1993, p 159). In short, the problem that the stranger poses lies precisely in our inability to determine whether she is neighbour or alien, friend or foe. In this respect the stranger ‘carries a threat of wrong classification, but – more horrifyingly yet – she is a threat to classification as such, to the order of the universe, to the orientation value of social space – to my life-world as such’ (Bauman, 1993, p 150). Elsewhere Bauman elaborates this point in the specific context of animosity toward Jews. This arises, Bauman argues, not because Jews are different and Jewish difference breeds resentment. Rather, animosity is felt toward those who do not ‘fit the structure of the orderly world’, who do not ‘fall easily into any of the established categories’ and who ‘blur the borderlines’ (Bauman, 1998b, p 144). For Bauman, it is the ‘categorical elusiveness of the Jews’ (1998b, p 144)12 that proves central in understanding animosity exhibited toward them. In this regard, Bauman’s stranger poses a similar problem to the monster, one that can be described as taxonomical. As Moran notes, the stranger represents a third term and thereby disrupts the stability of binary systems (Moran, 2005, p 277). Yet, as we will see, the concept of the monster offers greater analytical precision in specifying the outsider and the conditions of his/her production. For in contrast to physical proximity and social distance, the conditions of monster production lie in breach of core linguistic and cultural binary structures. Of course, in addition to physical proximity and social distance, Bauman 12 In explaining how the Jew challenges order, or represents ambivalence, which for Bauman amounts to the same thing, he notes that ‘the Jews were guilty of blurring the most vital boundary separating believers from non-believers, the true faith from paganism’ (1998b, p 147). While ‘[o]rdinary heathens paved the road to Christianity’s future: the Jews challenged its past and clouded its present’ (1998b, p 148). In another context, he notes that ‘[a]s the eponymous ghetto-dwellers, the Jews were walking reminders of the still fresh and vivid memories of a stable, transparent caste society; among the first to be released from special laws and statutes, they were walking alarms alerting society to the arrival of the strange new world of the free-forall’ (1998b, p 150). In short, ‘[t]hey embodied incongruence, artificiality, sham and frailty of the social order’ (1998b, p 150). Elsewhere, Bauman positions the Jew as antithetical to the project of modernity. As he puts it: ‘there was no door shut on the way to modernity in which the Jews did not put their fingers’ (1998b, p 153). In relation to the nation-state order, ‘only Jews did not fit, having only gypsies for company. Jews were not an ethic minority in any one of the nation-states, but dispersed all over the place. But neither were they locally residing members of a neighbouring nation. They were the epitome of incongruity; a non-national nation, and so cast a shadow on the fundamental principle of modern European order: that nationhood is the essence of human destiny’ (1998b, p 153). See also Bauman (2001).

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emphasises the element of disorder, or the threat of disorder, as integral to the constitution of the stranger. Yet, and despite the vivid example of the Jew as challenge to systems of order, the template of the stranger remains too general to be capable of providing an adequate understanding of the dynamics of exclusion in relation to particular groups in the contemporary. This is especially so in relation to Bauman’s account of the post-modern stranger. For with the arrival of this figure, Bauman claims, strangerhood becomes universalised (1991, p 94). The universalisation of this condition occurs when, and because, the dominant attitude among individuals becomes one of indifference (Stichweh, 1997). While this account is of value in describing our multicultural and globalised world, it becomes clear that ‘the stranger loses its possible function of indicating a distinct social figure’ (Marotta, 2000, p 129). In contrast, the template of the monster offers specificity. Another difficulty in identifying Bauman’s stranger lies in the fact that this figure is not only constituted by factors of physical proximity and social distance. It is also the effect of the fear and freedom of others. In the first instance, the stranger is the product of the projection of individual or community fears. However, for Bauman, the degree of strangeness that we impart to others is determined by the freedom we enjoy (Marotta, 2000, p 123). As he puts it: the less people control and can control their lives and their life-founding identities, the more they will perceive others as slimy, and the more frantically they will try to disentangle, detach themselves from the strangers they experience as an enveloping, suffocating, sucking-in, formless substance (1997, p 28). While this claim may be true, it is unclear how the concept of freedom and its differential enjoyment across society helps constitute a hegemonic understanding of the outsider. Of course, Bauman is not perhaps asserting a dominant understanding of the stranger across society. Rather, the strangeness of the stranger perhaps varies across local communities and as between less free individuals. Nevertheless, it is contended that particular groups have been, and are, marginalised as outsiders in a more generalised manner. It is precisely toward addressing this concern that the template of the monster is employed in this book. In saying all this, I do not want to convey the impression that concepts like the scapegoat and the stranger bear no relation to the legal category monster. It may well be that there are connections between these figures. A precise mapping of such links would require a complex genealogy of the scapegoat and the stranger. Certainly, and as we will see in the following chapter, genealogical work around other outsider figures has led back to the monster. In particular, and as we will see in chapter 3, Foucault has argued persuasively that there is a genealogical link between the monster and the abnormal individual of the present. It is to the figure of the monster specifically that attention now turns.

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2.4 The template of the monster A great deal of literature has been written on the subject of monsters (see, for example, Neocleous, 2005; Bildhauer and Mills, 2003; Gilmore, 2003; Shildrick, 2002; Graham, 2002; Beal, 2002; Ingrebretsen, 2001; Lykke and Braidotti, 1996; Williams, 1996; Cohen, 1996; Huet, 1993; Davidson, 1991; Park and Daston, 1981). It would seem that each culture and all historical periods breed monsters. The monster is, as Cohen suggests, ‘pure culture’ (1996, p 4). That is, the monster is a cultural construction, either completely fictitious13 or a designation made in relation to living, albeit in some sense different, flesh. Moreover, it would seem that it is living flesh, rather than non-organic types of monster, which arouses the greatest anxiety. As Shildrick puts it ‘the monsters that most effectively complicate our preconceptions are precisely those that are blatantly organic’ (2002, p 10). Indeed, for Canguilhem ‘[t]he qualification of monster must be reserved for organic beings’ for there is, he insists, ‘no such thing as a mineral monster’ or ‘a mechanical monster’ (1964, p 28).14 For ‘[t]hat which has no rule of internal cohesion, whose form and dimensions have no variations from one end to the other of a spectrum that can be called a measure, mold, or model – that cannot be called monstrous’ (Canguilhem, 1964, p 28). This organic monster can be thought of in terms of departure or deviation from some morphological norm (Canguilhem, 1991, p 209). This can be conceived of in terms of physical lack or excess (Rai, 2004, p 551; Fiedler, 1996; Carroll, 1990). Alternatively, the monster can be comprehended in terms of hybridity. An obvious example here would be the mixing of human and animal whereby the rule of endogamy is violated. In any event, an emphasis on morphological lack or excess in understanding the monster itself points to hybridity, for what is central to the monster concept is a straddling of human and non-human. That is to say, the monster, in order to really be a monster, must be part human, but never wholly so. As Reichardt puts it: ‘[t]he essential condition for a monster is that the human characteristics it possesses must not be changed too far’ (1994, p 139). In other words, the human in the monster must be recognisable.

13 It has been suggested that many seemingly fictitious or fanciful descriptions of monsters may in fact relate to actual live births. Thus in reference to monsters of antiquity, Glenister has suggested that ‘[t]he Siren may be a sympodial foetus, the Centaur an infant born with two pairs of lower limbs or a hydrocephalic calf, the Gorgon head an acormic placental parasite, Atlas a case of occipital encephalocoele, Janus a disprosopous monstrosity, and Prometheus, with his liver being torn by a vulture, an instance of foetal exomphalos’ (Glenister, 1964, p 16). While this possibility should not be discounted, we will see, particularly in chapter 4, that law’s monsters cannot be reduced to such a literal account. Rather, while the legal category monster sometimes describes known morphological irregularities, it also serves to highlight legal flights of the imagination. However, while some legal monsters might appear fictitious or fanciful when viewed from the present, this does not mean that they were viewed as fictions at the time of their articulation. 14 Derrida also insists that ‘[m]onsters are living beings’ (1995, p 386).

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It is for this reason that I would reject Kirkland’s analysis of the monster concept (2007), which he explores through the PlayStation 2 game, Shadow of the Colossus. In this game, the player, mounted on a horse and with sword in hand, travels alone across vast tracts of land encountering, only occasionally, creatures that Kirkland describes as monsters. With each successive killing the game is designed to draw on the empathy of the player. For the creatures killed are magnificent and increasingly mournful music accompanies their demise as does close-up shots of their faces. The game perhaps has a different aesthetic and, more tellingly, a different ethical standpoint compared to most rival games on the market. However, Kirkland contends that the creatures begin as monsters and lose this status through what amounts to a process of player identification and empathy. In short, on this account, monster status is lost, or becomes problematic, at the moment when a clear distinction between creature and human begins to break down. Yet, surely the opposite is the case. Indeed, prior to this moment, we might wonder whether the creatures in the game are monsters at all. Conversely, it is precisely at the moment of player identification and empathy that they become so.15 In other words, the creatures are monsters to the extent, and only to the extent, that they are characterised by hybridity. That is, to the extent that they are human and non-human simultaneously. In pursuing this theme of hybridity we begin to understand what is at stake in the monster concept. Monsters engender fear, horror and fascination, and usually all at once (Reichardt, 1994, p 139). However, they are not monsters merely because they provoke these emotional responses. Rather, monster status is an effect of hybridity itself. As Graham explains, hybrid creatures are monsters ‘not so much in the horror they evoke but in their exposure of the redundancy and instability of the ontological hygiene of the humanist subject’ (2002, p 12). Indeed, it is precisely through this demonstration (monstrare) that horror is evoked. As Graham puts it: ‘[t]he horror of monsters rests in this capacity to destabilize axiomatic certitudes’ (2002, p 39). For monsters serve to mark the boundary between human and non-human while simultaneously calling into question the stability and coherence of that very boundary. In this respect, the monster is, as Cohen suggests, ‘the harbinger of category crisis’ (1996, p 6), a contradiction of the cultural taboo against mixing genres (Derrida, 1980). For it is intermingling, confusion and category chaos to which the term speaks. In this regard, monsters represent a third term in relation to categorical and philosophical systems premised on binary or either/or thinking. Accordingly, the monster can be understood in terms of Derrida’s concept of the supplement

15 Of course, in making this argument I am aware that it calls into question the importance of natality, or the birth moment, to monster production. This is a theme that the book will explore. However, it should be noted that it is not my claim that all monsters, including nonlegal monsters, are constructed as monsters from the outset. Rather, it will be contended that the element of natality may assume special significance in understanding legal constructions of monsters.

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(1977) or Barthes concept of the aberrant signifier (1993, 1997). As Brooks puts it, the monster ‘exceeds the very basis of classification, language itself: it is an excess of signification, a strange byproduct or leftover of the process of making meaning’ (1993, p 218). In another register this is precisely what gives the monster value. For Levinas, what gives something value is ‘its inability to be adequately reduced to our own preexisting terms. Value is what is left over, the excess beyond our efforts to know, define, and to commodify’ (Manderson, 2006, p 138). In order to understand more fully how and why monsters present a problem for law, however, it is necessary to consider a constellation of other concepts. In particular, it is necessary to address the concepts of monstrosity and monstrousness, causation and responsibility, and natality. Before doing so however, it is important to introduce another theme, one that will be developed in the following chapter and which is vital to an understanding of many, though not all, contemporary monsters. In thinking about the monster there is a tendency to focus on the materiality of the body. This is, perhaps, unsurprising given Barthes intimation that the body is ‘our primary source of symbolism’ (Brooks, 1993, p 6).16 Yet, as we will see in the next chapter, the external surface of the body should not be thought of as the only site where monstrosity can be written and read. It is also necessary to get beneath the skin and to consider the historical shift from body to soul, identified by Foucault, as a target of legal regulation (1977). It is precisely this shift that enabled the emergence of the abnormal individual as a contemporary monster. For the present however, let us begin with the interrelated concepts of monstrosity and monstrousness.

2.5 Monstrosity and monstrousness The terms monster, monstrosity and monstrousness are often used interchangeably and without distinction (Kumari Campbell, 2005, p 112; Lunger-Kruppers and Landes, 2004; Shildrick, 2002, p 9; Creed, 1993). Certainly, the precise relationship between these terms is rarely delineated. In speaking of monsters a considerable degree of conceptual precision is required. In thinking about the proper relationship between these terms two texts stand out as aids. These are George Canguilhem’s seminal work on Monstrosity and the Monstrous (1964), and the more recent reflections on the subject by Foucault in his text Abnormal: Lectures at the College de France 1974–1975 (2003).17 In Canguilhem’s view, monstrosity and the monstrous ‘are a duality of concepts with the same

16 See Barthes (1990). 17 While Foucault’s lectures were not published in his lifetime, and while they were ‘works in progress’ rather than ‘final performances’, they provide, in the words of Paul Rabinow, ‘a series of preliminary sketches of extraordinary vitality and lucidity’ (Rabinow, 1997, p xiii). Moreover, Foucault’s lectures on abnormality represent his only text that deals in an explicit and

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etymological root’ and are ‘at the service of two forms of normative judgment, the medical and the legal’ (1964, p 30). Accordingly, while Shildrick is correct to state that the concepts of the normative and the monstrous ‘remain locked in a mutually constitutive relationship’ (2002, p 29), this is no less true of the relationship between monstrosity and the normative. For Canguilhem, the monster can be understood conceptually as an amalgam of these two forms of normative judgment. That is, the monster is a creature that is both a monstrosity, understood in terms of morphological irregularity, and monstrous, understood in terms of transgression of the law. On this account, Shildrick’s claim that ‘what is monstrous about [monsters] is most often the form of their embodiment’, what she calls their ‘aberrant corporeality’ (2002, p 9), misses the point. It confuses the duality of concepts Canguilhem identifies. For Canguilhem, what is monstrous about monsters is not the form of their embodiment for this constitutes only a breach of nature. Rather, what is monstrous about monsters lies in transgression of the law.18 Turning to Foucault, it is clear that he too comprehends the monster as an amalgam of the concepts of monstrosity and monstrousness. Thus, in offering an account of the legal distinction between deformity and monstrosity, a distinction traceable to Roman law, Foucault notes that the monster represents ‘the transgression of natural limits’ and that ‘this is actually what is involved in monstrosity’ (2003, p 63). Yet, ‘[f]or Medieval thought, and definitely for seventeenth and eighteenth century thought,’ he notes, ‘breach of natural law is not enough to constitute’ the monster (2003, p 63). There must also be ‘an interdiction of civil and religious or divine law’ for the monster appears ‘only when confusion comes up against, overturns, or disturbs civil, canon, or religious law’ (Foucault, 2003, p 63) for ‘[t]he monster combines the impossible and the forbidden’ (Foucault, 2003, p 56). To put it differently, ‘the monster appears and functions precisely at the point where nature and law are joined’ for the monster is ‘a juridico-natural complex’ (Foucault, 2003, p 65). The monster ‘is the casuistry that is introduced into law by the confusion of nature’ (Foucault, 2003, p 64). While deformity or disability ‘may well be something that upsets the natural order’ it does not lead to the designation monster because ‘it has a place in civil or canon law. The disabled person may not conform to nature, but the law in some way provides for him’ (Foucault, 2003, p 64). Here Foucault is emphasising his claim that the law’s stance in relation to the merely disabled or deformed body is one of integration or incorporation.

sustained manner with the idea of the monster. 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’ (2003, p 333). 18 In contending that the monster is an effect of a double breach, of law and nature, Canguilhem, like Foucault, is not suggesting that breach occurs, in some sense, outside discourse. On the contrary, breach is an effect of the meaning bodies are interpreted to possess and is therefore socially constructed in particular historical moments.

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‘Monstrosity, however,’ he notes, ‘is the kind of irregularity that calls law into question and disables it’ (2003, p 64). For this reason the monster cannot be accommodated within the legal order. Elsewhere Foucault explains that a creature is only a monster because ‘it is a legal labyrinth, a violation of and an obstacle to the law, both transgression and undecidability at the level of the law’ (2003, p 65). In juxtaposing violation to obstacle and transgression to undecidability, Foucault renders explicit the concept of monstrousness as a constitutive element of the category monster. In addition to a breach of nature, the designation monster requires a breach of the law, and by breach of the law Foucault is referring both to the fact that a particular body renders important legal questions uncertain, indeed undecidable (the body as obstacle to the law), and calls into question the categorical structure of law (the body as violation of the law). Thus, for example, human/ animal creatures,19 hermaphrodites and conjoined twins20 can be viewed as problematising a variety of legal questions concerning baptism, marriage and inheritance, as well as challenging core legal distinctions between human and animal, male and female, and the idea of the proper legal subject as a single embodied mind (Foucault, 2003, pp 64–65). In recognising that a breach of nature is also central to the production of legal monsters, both Canguilhem and Foucault appear to point to something quite heretical within Western philosophy. In general there is a tendency to set up a distinction between humanity and nature whereby the latter serves as foil for the former. Thus Delaney suggests that ‘[w]hatever else “nature” means . . . to be human is to be radically distinct from nature’ (2003, p 13), while Soper contends that ‘nature’ is ‘the idea through which we conceptualize what is “other” to ourselves’ (1995, p 15). Yet, it is apparent, in the context of the legal construction of monsters, that it is precisely synchronicity with nature that grounds human being. That is to say, in contrast to the monster, human status is an effect of the regular workings of nature. As we will see in chapter 4, it is the body, not the mind, which serves as the ultimate bedrock of what it means to be human from the vantage point of an English legal history of the monster

19 In the English legal context, this type of monster is most graphically illustrated by Henry Swinburne’s late sixteenth-century dog, duck and raven-headed human creatures (Swinburne, 1978, pp 168–169). This text was first published in 1590. 20 While hermaphrodites were treated as monsters in some continental European jurisdictions, such as France (see Foucault, 2003, pp 66–67; Daston and Park, 1985, 1995; and Brillon, 1727, vol 3, p 435), they were not considered monsters within English law. Indeed, as we will see in chapter 4, English legal texts explicitly exclude hermaphrodites from inclusion within the monster category (see Bracton, 1968, vol 2, p 31; Coke, 1979, vol 1, p 8.a; Wood, 1979, p 12). While explicit statements to this effect suggest a degree of anxiety concerning the hermaphroditic body and its proper location with taxonomies, it is significant that a body that represented such a challenge to sexual difference remained outside the monster category within English law. This, perhaps, offers some insight for, as well as a provocation to, feminist legal theory.

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category. Accordingly, Delaney’s view that the mind/body distinction can be understood as ‘an instance of the human/nature distinction’ (2003, p 279) proves problematic from at least one perspective internal to law. We will explore these themes in subsequent chapters. While Foucault shares with Canguilhem a view of the monster as an amalgam of two forms of normative judgment, the medical and the legal, or as the culmination of a double breach, of law and nature, their positions differ in terms of their respective understandings of the conditions necessary to constitute a double breach. It is precisely these differences that render necessary an analysis of the relevance of the interrelated concepts of causation and responsibility to the appearance of law’s monsters.

2.6 Causation and responsibility In thinking about the relationship between a breach of nature and a breach of law, a double breach both Canguilhem and Foucault consider necessary to the production of monsters, it is important to consider the relevance, if any, of the concepts of causation and responsibility. Canguilhem is clearer on this point. For Canguilhem, monstrosity cannot be divorced from monstrousness for the former term always implies the latter. That is to say, monstrosity is the effect produced or caused by monstrousness. For Canguilhem, monstrousness is to be found in the act or acts believed to cause monstrosity. For as he explains, monstrosity is: the effect of an infraction of the rule of specific sexual segregation and the sign of a will to pervert the tableau of creatures. Monstrosity was less a consequence of the contingency of life than of the licence of living beings. . . . Monstrosity occurred unexpectedly because of lack of discretion . . . the result of an animal’s carnival (1964, pp 30–31). It is clear from this passage that Canguilhem identifies the act of bestiality as the specific transgression of the law believed to culminate in morphological irregularity. Crucially, Canguilhem understands monstrosity as produced by, or as the effect of, this particular kind of monstrousness. For Canguilhem, monstrousness equates with a particular act and taboo. Moreover, on this account, it is not any transgression of the monster, but a transgression of the mother that constitutes a breach of law. Accordingly, responsibility for monstrousness and/or monstrosity cannot be accorded to the monster. In relation to monstrousness, responsibility lies with the female agent of monster production. As for monstrosity, it is merely the visible sign and evidence of the mother’s transgressive act.21 Here the monster’s physical appearance ‘serves as an

21 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

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epiphany of his illicit nature’ (Graham, 2002, p 64; see also Davidson, 1991). In this respect, monstrosity can be understood as the visible manifestation of monstrousness. This understanding of monstrosity finds support in the etymology of the term monster. Thus the Latin word monstrare means to show forth or demonstrate (see chapter 3, note 16). As Cohen puts it: ‘the monster signifies something other than itself: it is always a displacement’ (1996, p 4). An understanding of the monster as the effect of ‘illicit beginnings’ (Graham, 2002, p 69), points to the importance of culpability to its constitution. The idea that causation and responsibility are significant elements in the process of producing monsters is one that finds support within English legal texts. Thus, in the context of the common law, it seems reasonably clear that Bracton, Coke and Blackstone all understood monsters through the lens of bestiality22 with the implication of maternal responsibility that this outlook entailed. The matter is rendered more explicit in the late sixteenth-century canon law writings of Henry Swinburne who devotes considerable attention to the question of parental fault in the context of the birth of monsters (1590 (1978, p 169)). Indeed, in the context of his human-bodied/animalheaded creatures, Swinburne insists on the culpability of the female parent (1978, p 169). Conversely, in the context of other monsters, those whose bodies are merely excessive or not properly arranged, Swinburne entertains the possibility of blameless parents. Thus, he notes, that a finding that a creature was a monster would not operate to the detriment of parents who would otherwise benefit under a conditional legacy requiring issue, provided that the monster which ‘the father did beget, and the mother bring forth . . . cannot be imputed to their fault’ (1978, p 169). While it is self-evident here that bestiality is excluded as the monster’s cause, and while it is far from clear what other cause Swinburne imagined there could be,23 what is significant about this passage is the fact that the idea of the monster is, at least potentially, divorced from the notion of culpability. In other words, while the question of fault clearly animates Swinburne’s text, where it is a source of considerable anxiety, the possibility remained that a creature designated monster lacked blameworthy parents. By the same token, the absence of a party to blame did not serve to preclude the designation monster. Accordingly, it would appear possible to think of the monster apart from questions of responsibility. Equally, it would appear possible to dispense with the concept of causation. thoughts were imprinted onto the body of her offspring, draw attention to the relevance of the monster category to feminist theory (see Graham, 2002, p 52; Braidotti, 1996; Huet, 1993). We will see, in chapter 7, in the context of genetic monsters, that culpability for monster production now rests primarily with male scientists. In this respect, there has been a gendered shift in understandings of how monsters are produced. 22 See Bracton (1968, vol 2, p 31, vol 4, p 361), Coke (1979, vol 3, p 59), and Blackstone (1979, vol 2, pp 246–247). See also Williams (1972, p 21). 23 It is possible that the idea of the maternal imagination (see above note 21) provided a reference point for understanding fault in this historical period.

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It is precisely this view of the monster category that appears to characterise Foucault’s theoretical framework. Thus, in contrast to Canguilhem, Foucault does not appear to insist on a particular, and certainly not a causal, relation between the concepts of monstrosity and monstrousness. This is hardly surprising given his general rejection of a ‘preoccupation with causes’ (Hunt and Wickham, 1994, p 6). It is true that, like Canguilhem, Foucault places emphasis on the transgressive act of bestiality in explaining historical understandings of irregular bodies designated monsters (2003, p 64). However, this element does not appear to occupy a central place within Foucault’s theoretical account. Rather, in contrast to Canguilhem, who insists on a causal relationship between monstrousness and irregular bodies, Foucault appears more ambivalent regarding aetiology and related questions of responsibility. It would seem that Foucault’s conceptual framework requires only two conditions for the birth of monsters: a breach of nature and a breach of law. In relation to a breach of law the key thing for Foucault is not the monstrousness of acts, though this element may well be present. Rather, the essential point is that the body of the monster poses a challenge to legal certitude and taxonomy. It is precisely in this challenge that the element of monstrousness is most apparent. Thus, for Foucault, the problem of the monster is ultimately not one of causation or responsibility, but one of effects. Foucault’s monsters present a problem of classification. Nevertheless, as with Canguilhem’s account, monstrosity can still be thought of in terms of the visible manifestation of monstrousness. For challenge to legal taxonomy may be rendered visible by the irregular body. In relation to a breach of nature, or the element of monstrosity, Foucault again diverges from Canguilhem. As a result of understanding the concept of monstrosity exclusively in terms of morphological irregularity, and as the effect of monstrousness, Canguilhem is led to the conclusion that today ‘life is poor in monsters’ (1964, p 41). For with the development of science a view of bodily irregularities as having a monstrous cause could no longer be sustained. In Canguilhem’s own words, ‘[t]he transparence of monstrosity to scientific thought . . . deprives it of all relationship to the monstrous’ (1964, p 38). From the late sixteenth-century, scientific discourse had gradually been removing the epistemological ground from beneath the feet of monsters. That is, from the writings of Ambroise Pare in 1573 (Pare, 1982) monsters were increasingly naturalised within medical science. Indeed, and as observed by Daston, in the course of the sixteenth and seventeenth centuries understandings of monsters ‘swung from the almost-supernatural extreme of portents to the almost-natural extreme of Baconian facts’ (1991, p 112). This trend continued into the eighteenth and nineteenth centuries.24 Without monstrousness the monster is denied one of its constitutive elements and therefore on Canguilhem’s reckoning disappears.

24 See, for example, Farr (1788), Saint-Hilaire (1832–1837), and Gould and Pyle (1897).

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In contrast to Canguilhem (1964, p 38), Foucault does not insist that medical science heralded the death of monsters. Rather, for Foucault, there is no simple or necessary relationship between advances made in medical science and the disappearance of monsters. Monsters do not disappear simply because science gains mastery over them. For monster status is not an effect of mystery or lack of scientific knowledge. It is not lost because particular forms of difference are rendered transparent. Rather, monster status is lost when a breach of nature no longer poses a challenge to or upsets law. The reason why hermaphrodites ceased to be viewed as monsters in the eighteenth century is because they were no longer viewed as throwing a spanner into the categorical workings of law. In other words, they failed to register on an index of monstrousness. Specifically, they were no longer considered to undermine the idea of a binary division of sex because the notion of indeterminate sex became discounted within medical science.25 Thus it is not simply the transparency of the hermaphroditic body to science that stripped it of monster status. Rather, this uncoupling proved to be an effect of the scientific removal of the element of monstrousness. In the case of human/animal hybrids of old, we can, of course, no longer suspend our disbelief in their existence. However, in relation to bodies that might have been approached in these terms, scientific knowledge has again removed the element of monstrousness, in this case through severing morphological irregularities from a bestiality thesis. Yet, monstrousness may survive an encounter with science. This appears to be the case with conjoined twins. Of course, medical science may have discovered their secrets, grasped their aetiologies and repositioned them within nature’s order. Nevertheless, this example of concorporation continues to defy law. For conjoined twins are understood to embody mixture at the level of human morphology and this continues to represent a challenge to a legal order that understands the subject as a single embodied mind. In this regard, the monster is best understood in terms of the effects it produces. For science slays monsters only when, in addition to understanding them, it neutralises the threat they pose to legal taxonomy. Thus, in contrast to Canguilhem, Foucault does not view science as the terminal point of the monster. Moreover, and in terms of his key theoretical concepts, he does not, unlike Canguilhem, insist on a particular relationship between monstrosity and monstrousness, beyond their co-presence. For Canguilhem, monstrosity is caused by monstrousness in the form of bestiality. It is this particular account of a breach of law that cannot survive the scientific moment. For Foucault however, what is central to his account is neither 25 However, and as noted in the introductory chapter, medical science no longer refuses the reality of mixed sex. Accordingly, contemporary intersex bodies can be viewed as falling within Foucault’s monster framework. However, because intersex children are subjected routinely to invasive surgical procedures, in order to bring them within the gender order, their monster status is usually short-lived (Fausto-Sterling, 2000, p 31).

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monstrous acts nor irregular bodies, but the fact of a double transgression, of law and nature. Crucially, while the irregular body provides an historically specific example of monstrosity, it does not exhaust this requirement within a law/nature conceptual framework. It is precisely this point that enables us to think about the legal category monster in relation to the mind or psyche and therefore as one that informs the figure of the abnormal individual. By the same token, a view of the abnormal individual as a contemporary, though diluted (Foucault, 2003, p 57), monster requires jettisoning a view of monstrosity as a visible sign of monstrousness. In developing these points we need to consider Foucault’s genealogy of the abnormal individual and to situate it within the context of his emphasis on an historical shift from body to soul as the object of legal concern. This is something we will pursue in the following chapter. While recognising that the idea of a causal relationship between the concepts of monstrousness and monstrosity can no longer be sustained in the context of irregular bodies such as those of conjoined twins,26 and that such a relationship is precluded in the context of the abnormal individual, it might be premature to conclude that responsibility is superfluous to an understanding of the monster category. While not essential to Foucault’s conceptual framework, it is apparent that a bestiality thesis underscores the legal development of the monster category in historical terms.27 Moreover, and significantly, it may be that the construction of the abnormal individual is associated with human culpability. That is, in addition to transgression of the law, and an understanding of non-normative desire as the locus of monstrosity, it may be that the designation monster relies, in some sense, on a view of the abnormal individual as agent in his/her own monsterisation. After all, if the element of responsibility assumes significance in relation to the construction of legal monsters of old it seems plausible to suggest that it may also have relevance for other figures that bear the monster’s imprint. Of course, and in contrast to legal monsters of old, monster and responsible agent would be viewed as one and the same in the case of the abnormal individual. Yet, it is precisely this inability to separate human agency, and therefore culpability, from the figure of the monster that may serve to intensify demonisation in the case of the abnormal individual. The importance of the theme of culpability to an understanding of the monster is also apparent in the contemporary context of the production of the human/animal admixed embryo, a figure we will encounter in chapter 7. In this chapter there is one final theme requiring consideration, that of natality.

26 However, a causal relationship does exist in the context of the human/animal admixed embryo, a figure we will encounter in chapter 7. 27 This is despite the more complex position adopted by Swinburne where he distinguishes between human/animal hybrid monsters and other monsters in this respect (1978).

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2.7 Natality In terms of the legal structure of monsters it would appear that in addition to Foucault’s requirement of a double breach, of law and nature, as well as the possible requirement of culpability, either on the part of the monster or the party that created it, there might be a further element that is internal to the category. This element, one that is implicit within Foucault’s theoretical account, is one associated with natality. That is to say, legal monsters are perhaps, born rather than made. Of course, all monsters are made in the sense that they are social constructs. Yet, it may be that birth is crucial as a temporal moment in this form of legal constructivism. Thus it is not only the fact that law was, and in some instances perhaps still is,28 unable to accommodate a high degree of morphological irregularity that assumes significance. It may also be pertinent that this degree of physical difference was, and is, evident at the moment of birth. In other words, the monster may be thrown into the world fully formed as a monster. To be more precise, the legal construction of the morphologically irregular body as a monster may be dependent on the condition of that body at birth rather than on future events. In this respect there appears to be a difference between some of the monsters found within literature and popular culture and those of law. The monster is an impure figure. Impurity is central to its status as a monster and is a consequence of mixture. In discussing the idea of the monster, Carroll notes two forms of mixing which he describes as fisson and fusion, citing as examples, the werewolf and the Minotaur respectively (1990, p 47). Fusion refers to mixture in point of time whereas fisson refers to the occupation of the body by different entities at different times (Carroll, 1990, p 47). Legal monsters are exclusively creatures of fusion. Consistent with this classification, law does not provide a template, in any historical period, for a non-monster to become a monster. Indeed, the example of the Minotaur, given its bestial origins,29 captures precisely both law’s concern with legal transgression and law’s concern with the birth moment. As we will see in chapter 4, the centrality of the birth moment to the legal production of monsters is highlighted consistently in the legal writings of Bracton, Coke, Blackstone30 and other juristic figures.31 Accordingly, law 28 In chapter 6 we will see that conjoined twins can still be considered monsters within the theoretical framework articulated by Foucault. 29 The Minotaur is a figure of Greek mythology. It had the body of a man and the head of a bull. According to the myth, the god Poseidon sent Mino, King of Crete, a pure-white bull, which Mino was to sacrifice in Poseidon’s honour. When he failed to do so, Poseidon caused Mino’s wife, Pasiphae, to fall in a love with the bull and copulate with it. The Minotaur was the product of this bestial act (Rusten, 1982, pp 323–333). 30 De Bracton (1968, vol 2, p 31), Coke (1979, vol 1, p 59), and Blackstone (1979, vol 2, pp at 246–247). 31 These include Britton (Nichols, 1983, para 19), Swinburne (1978, pp 168–169), and John Cowell (1978, p 16). The text known as Britton was published around 1291. John Cowell’s text was originally published in 1605.

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appears to preclude the possibility of movement from the position of human to monster. In contrast, literature and popular culture provide numerous instances of precisely this trajectory. Examples include Robert Louis Stevenson’s The Strange Case of Dr Jeykll and Mr Hyde (1986) and, more recently, the Marvel comic hero, the Incredible Hulk (1962). Of course, it is perhaps not inevitable that natality should feature as an element within the legal structure of the monster. Non-legal discourses, such as those of literature and popular culture, reveal as much. Nevertheless, it is perhaps unwise to neglect the role of natality in the legal construction of monsters. Indeed, this element might contribute to an understanding of the legal distinction between the monster and the leper in the late Middle Ages. That is to say, the leper’s physical difference is not typically evident at birth (Sehgal, 2008). Moreover, and while there no longer exists a formal legal category, this idea of the monster might help explain why the contemporary recipient of xenotransplantation32 is not considered a monster despite the fact that patient and doctor bear responsibility for the operation and that the effect is to produce human/animal hybridity, and therefore challenge to legal taxonomy. In other words, both the onset of leprosy and organ donation are preceded by the existence of a legal subject. In view of my earlier suggestion, following Foucault, that the abnormal individual might be understood as a contemporary monster, it might be thought that it is overstated, or mistaken, to claim that a particular temporal moment, namely birth, is central, or even relevant, to the production of legal monsters. Yet, as already noted, what is required at birth is not an irregular body but the element of monstrosity. While such a body might constitute a monstrosity, it does not, as Foucault notes, exhaust this requirement within a law/nature conceptual framework. As we will see in the next chapter, the concept of monstrosity has, beginning in the late eighteenth century, been displaced and re-institutionalised so that it now refers to the mind as well as the body, and to this extent has been internalised. As Foucault notes, what is sought within regimes of normalisation is ‘the core of monstrosity hidden behind little abnormalities, deviances and irregularities’ (2003, p 56). In other words, if the abnormal individual is a contemporary monster it may be because, in addition to challenging the legal and social order, the threat that she poses is inaugurated at birth. Thus, and by way of example, homosexuality understood as monstrosity may be an effect of this particular reading.33 Alternatively, the relevance of birth to monster status may differ across the mind/body distinction. Thus it

32 Xenotransplantation refers to the transplantation of foreign tissue into another species. It includes the transplantation of an animal organ, such as a pig’s heart, into a human being. 33 Of course, a link between homosexuality and monstrosity might be explained in terms of transgressive sexual desire, irrespective of the moment of its formation. On this account, the element of natality would not prove essential to an understanding of the production of this particular monster.

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may be that this temporal moment, while assuming importance in relation to morphologically irregular bodies, as legal history demonstrates, does not, or does not always, do so in relation to interiority. Given the reworking of the concept of monstrosity, occasioned by the arrival of the figure of the abnormal individual, it may be that the relevance of natality to monster status has been delimited. If so, this would allow for an understanding of the monster as emergent. The central arguments of this book do not depend on a conclusion either way. Nevertheless, it will be argued in chapters 3 and 5 that the element of natality assumes significance in relation to at least some examples of abnormality. In chapter 5, we will explore this theme in relation to the transsexual/ monster nexus in law.

2.8 Conclusion This chapter has introduced and developed the idea of the monster as a template for understanding the constitution and regulation of outsiders. The selection of the monster category, in preference to other outsider templates, is a consequence of a number of considerations. In the first instance, the book’s object is the law and the monster is a category of the law. Second, the monster possesses advantages over other legal templates because law has constructed the monster to represent the greatest degree of difference to humanness. For this very reason the monster represents the benchmark of legal exclusion. In relation to non-legal templates articulated within social theory, such as the scapegoat and the stranger, the monster offers a clearer and less generalised account of the process whereby outsiders are constituted. In this respect the monster template may provide greater explanatory power. In developing the idea of the monster, the chapter has drawn, in particular, on the work of Michel Foucault. For Foucault, the monster is to be comprehended in terms of a double breach, of law and nature. In relation to law, breach, or the element of monstrousness, is understood fundamentally as the effect of challenge to legal taxonomy and certitude. In relation to nature, breach, or the element of monstrosity, is usually understood in terms of a significant degree of morphological irregularity. However, and in a move away from Canguilhem, Foucault does not confine the idea of a breach of nature, or monstrosity, to corporeal surfaces. On the contrary, he contends that the historical shift from body to soul as the object of legal concern has occasioned a major reworking of the concept of monstrosity. Thus the concept is now also capable of describing interiority and therefore can encompass the abnormal individual. We will explore this figure in depth in the following chapter. The chapter also considered the interrelated concepts of causation and responsibility and their relationship to monster production. In contrast to Canguilhem, it was noted that Foucault does not insist on a causal relationship between the concepts of monstrousness and monstrosity, whereby the former produces the latter. While he acknowledges the fact that bestiality proves

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significant in explaining historical understandings of irregular bodies designated monsters, Foucault does not see aetiology as central to an account of the legal production of monsters. For Foucault, what counts in understanding the monster is not causation, but effects. Equally, Foucault does not see responsibility as a core component in understanding the monster. In relation to the concept of causation, Foucault is perhaps correct to diminish its importance. To do otherwise would be to restrict the idea of the monster to the irregular body. The concept of responsibility however, may possess a significance that Foucault overlooks. For not only does a belief in culpability appear central to the legal production of monsters in historical terms, it may also prove to be important in understanding the construction of the abnormal individual as a contemporary monster, albeit that the relationship between responsible agent and monster is refigured in this instance. This is a theme we will explore in chapters 3 and 5. Finally, this chapter considered the relevance of the element of natality to monster production. The suggestion here is that law might distinguish between breaches of nature that occur at birth, and therefore give rise to monsters, and those that arise subsequently. As with culpability, the moment of birth appears to assume importance within a legal history of monsters. It also, as we will see in chapter 7, has significance in relation to human/animal admixed embryos of the present. Moreover, it may have significance in relation to the abnormal individual. For the view that the abnormal individual constitutes a monstrosity may prove to be an effect of a particular construction of this figure, one that relies on the idea of an ‘unnatural’ core at the heart of its being. This is a theme we will explore in chapters 3 and 5. Our attention now turns to the figure of the abnormal individual specifically, and to the location of the human monster within its genealogy.

Chapter 3

Foucault’s monsters as genealogy The abnormal individual

Against the background of the continuum, the monster provides an account, as though in caricature, of the genesis of differences (1970, p 157).

3.1 Introduction In the last chapter, we considered Foucault’s theoretical framework for thinking about monsters. In this chapter, we will consider his historical account of the monster. Before doing so however, it is first necessary to say something about Foucault’s approach to history. Foucault’s approach to history, or his historical method, has led one commentator to describe him as ‘the historian of alterity’ (Haroontunian, 1988, p 111). For Foucault’s histories take as their objects a series of human figures that have been constituted as societal problems within particular historical periods. These include the leper (Foucault, 1977, chapter 3), the madman (Foucault, 1971, 1973), criminal man (Foucault, 1977), the hysterical woman, the masturbating child and the homosexual (Foucault, 1978). In placing human difference at the forefront of his analyses, Foucault aims to recover ‘subjugated knowledges’ (Foucault, 1980b, p 81). Indeed, Foucault’s politics of marginality derive precisely ‘from th[is] principle of reversal’ (Aronowitz, 1979, p 142). Foucault’s historical work around the monster forms part of his genealogical endeavour to understand a particular contemporary figure, namely the abnormal individual. In this regard, we are concerned not only with a history of a problem (Foucault, 1991, p 389), but also a ‘history of the present’ (Foucault, 1977, pp 30–31; see also Foucault, 1984). While history obviously deals with the past, ‘Foucault’s histories typically begin with his perception that something’, whether this be an institution, a discipline or a social practice, ‘is terribly wrong in the present’ (Gutting, 1994, p 10). His object is not the past or, at least, not the past ‘for its own sake’ (Kent, 1986, p 394).1 Rather, a study of the 1

Foucault has been criticised for having no interest in the past (Megill, 1979, p 494). However, this criticism misunderstands Foucault’s concern with, and approach to, history. For Foucault, the past is of less interest in and of itself. Its interest lies in what it can tell us about the constitution of the present. As he has noted, he has not sought to write ‘a history of the past in terms of the present’ but ‘a history of the present’ (Foucault, 1977, p 31).

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past provides an opportunity ‘to understand something that is intolerable in the present’ (Gutting, 1994, p 10). However, Foucault does not seek merely to understand the present through the lens of the past. Crucially, he aims to demonstrate that ‘the processes leading to our present practices and institutions were by no means inevitable’ (Gutting, 1994, p 10). In other words, Foucault’s aim is to highlight contingency in the unfolding of events. In this respect, his historical texts ‘can be read as challenges to a conception of history as a linear and continuous process’ (Carlson, 2005, p 135; see also Couzens Hoy, 1979, p 86). By the same token, ‘Foucault rejects the idea of “origin” as presupposing an essence or truth which has either unfolded or degenerated. His genealogy, like Nietzsche’s, traces not “origins” (Ursprung) but descent (Herkunft); it finds not the purity and promise of a beginning but a series of instaurations of power’ (Shiner, 1982, p 387; see also Sax, 1989; Wilson, 1995).2 In this regard, his project is a critical one in that it aims to reveal how things could have been otherwise, thereby challenging an attitude of inevitability toward the present and opening up new possibilities for the future (see Roth, 1981, pp 35–36; Visker, 1995). That is, Foucault’s historical method attempts to identify ‘the conditions of possibility of forms of social knowledge and practice’ (Hunt and Wickham, 1994, p 6) as a prelude to intervention and social change. It is precisely for this reason that Foucault’s critical history can be portrayed as an antihistory or counter-memory which attempts ‘to make the present into a past which we leave behind, and not into a history which we tightly embrace as our own’ (Roth, 1981).3 Indeed, for Foucault, our freedom consists precisely in ‘our ability to transform our relationship to tradition’ (Sawicki, 1991, p 99). It is precisely through such a transformation that cultural constraints on what can be said and thought, either at all or as intelligible, can be challenged. As Robert Castel has observed, a history of the present ‘sheds light on how contemporary practices function, showing that they continue to be structured by the effects of their heritage’ (1994, p 244). It is precisely this claim and insight that the chapter will develop. As will become clear, the history and template

2

3

For Foucault, we tend to think, wrongly, that the origin is the moment of ‘greatest perfection . . . when [things] emerged dazzling from the hands of a creator or in the shadowless light of a first morning’ (1980c, p 143). Whereas, what we actually find ‘at the historical beginnings of things is not the inviolable identity of their origin; it is the dissension of other things. It is disparity’ (1980c, p 142). By the same token, history does not have the ‘monstrous finality’ (Foucault, 1980c, p 139) guaranteed by teleology and linearity (Murphy, 1984, p 192). While traditional history ‘transforms documents into monuments’ (Foucault, 1972, p 7), thereby allowing societies to recollect their destiny and place their fate in perspective (Murphy, 1984, p 192), Foucault aims to deal with the historical facts unencumbered by a backward or forward gaze. In this sense, Foucault strives to be truly historical. Indeed, he seeks to make history possible (Lemert and Garth, 1982). Hayden White has described this project as a ‘disremembrance of things past’ (White, 1973).

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of the monster proves important to an adequate understanding of the abnormal individual and therefore regimes of normalisation. In this respect, the figure of the monster speaks to the present. In chapter 5, which deals with the medico-legal regulation of transsexuals, we will consider the relevance of the monster concept to a specific group of ‘abnormals’ in the present. However, it is first necessary to situate the abnormal individual in historical terms. Accordingly, it is toward a genealogy of the abnormal individual that attention now turns.

3.2 A genealogy of the abnormal individual Foucault’s genealogical method moves beyond his earlier historical studies through an explicit emphasis on power and bodies. While ‘[p]ower relations underwrite all Foucault’s genealogies’ (Flynn, 1994, p 34), it is the relationship between power and the body that is significant. As Ewald notes, genealogy ‘poses the problem of power and of the body (of bodies), indeed, its problems begin from the imposition of power upon bodies’ (1975, p 1229). The task of genealogy is ‘to expose a body totally imprinted by history’ (Butler, 1990, p 603). In Foucault’s own words, ‘[t]he body – and everything that touches it . . . is the domain of Herkunft (genealogy)’ (Bouchard and Sherry, 1977, p 148). It is within this context that Foucault’s analysis of the abnormal individual is to be situated. In his genealogical account of the abnormal individual of the present, or his account of ‘a transition from the monster to the abnormal’ (Foucault, 2003, p 110), Foucault identifies three key ancestors: the monster, incorrigible man, and the masturbating child. For Foucault, the abnormal individual is ‘the descendant of these three individuals’ (2003, p 60). In speaking of the first of these figures, Foucault notes that each age had its ‘privileged monster’ (2003, p 66). In chronological terms his account moves from a preoccupation with the bestial human in the Middle Ages to a concern over Siamese or conjoined twins in the Renaissance period and ultimately to a focus on the hermaphrodite in the Classical Age.4 Thus for Foucault, legal concern shifted from a creature that was ‘both man and beast’ to the ‘one who is two and the two who are one’ (Foucault, 2003, p 66), and finally to the ‘ambiguously’ sexed body. As we saw in chapter 2, each of these instances of irregular morphology represented a double breach, of law and nature. As Foucault puts it: ‘[t]he figures of the half-human, half-animal being (valorized especially in the Middle Ages), of double individualities (valorized in the Renaissance)’ and ‘of hermaphrodites (who occasioned

4

As we will see in chapter 4, the hermaphrodite was never considered a monster within English law. The hermaphrodite was, however, considered a monster in other European jurisdictions including France (see Foucault, 2003, pp 66–67; Daston and Park, 1985, 1995; and Brillon, 1727, p 435).

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so many problems in the seventeenth and eighteenth centuries) in turn represented that double violation’ (1997, p 51).5 The second figure, incorrigible man, or the ‘individual to be corrected’, Foucault dates to the seventeenth and eighteenth centuries (2003, p 52). In this respect, there is overlap with the monster, or at least with the hermaphrodite as monster (Foucault, 2003, p 62). However, while the ‘monster’s frame of reference was nature and society, the system of the laws of the world’ (Foucault, 2003, p 57), Foucault notes that ‘[t]he frame of reference of the individual to be corrected is much narrower’ (2003, p 57). Specifically, ‘[t]he emergence of the “incorrigible” is contemporaneous with the putting into place of disciplinary techniques . . . in the army, the schools, the workshops, then, a little later, in families themselves’ (Foucault, 1997, p 52). As noted by Rai, the individual to be corrected ‘opens the history of monstrosity on to the elaboration of a power that touches, heals, corrects the body by inhabiting it’ (2004, p 542). While the monster’s body was the occasion for the exercise of sovereign power, the individual to be corrected marks a shift toward what Foucault has described as productive power. Here the object of legal regulation is not merely a target of power, but its instrument. The individual to be corrected also differs from the monster in terms of his/her more frequent appearance. As Foucault notes, ‘[t]he monster is by definition the exception; the individual to be corrected is an everyday phenomenon’ (2003, p 58). Indeed, so much an everyday phenomenon that ‘he is, so to speak, typically regular in his irregularity’ (Foucault, 2003, p 58). The third figure or ancestor of the abnormal individual is the child masturbator (Foucault, 2003, pp 59–60) or onanist (Foucault, 1997, pp 53–54). Foucault dates the emergence of this figure to the end of the eighteenth century (2003, p 59).6 He notes that the space into which this figure emerged is even more contracted than that of the individual to be corrected. Specifically, it encompasses ‘the bedroom, the bed, the body; it is the parents, immediate supervisors, brothers and sisters; it is the doctor: it is a kind of microcell round the individual and his body’ (Foucault, 2003, p 59). Like the individual to be corrected, the masturbator ‘is not at all an exceptional figure in eighteenthcentury thought, knowledge, and pedagogical techniques; he is, rather, a frequently encountered individual’ (Foucault, 2003, p 59). Indeed, this is perhaps

5

6

In chapter 4, Foucault’s monster chronology will be challenged in the context of a study of the monster as an English legal category. Chapter 4 will consider the implications of the sequencing of monster types for an understanding of the abnormal individual. However, Foucault notes that the emergence of the masturbator, or indeed the ‘problematic’ around masturbation, has a long prehistory. In particular, he draws attention to the development of techniques of conscience arising out of the Reformation and the Council of Trent. It is against this background that the crusade against masturbation breaks out. This crusade begins in England around 1710 with the publication of Onania (Bekker, 1710). It then spreads to Germany and later France (Foucault, 1997, p 53).

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an understatement. In contrast to the individual to be corrected, Foucault makes clear that the figure of the masturbator ‘seems to be an almost universal individual’ (2003, p 59). In this respect, the abnormal individual’s predecessors become less particular over time and by the same token more difficult to identify or decipher (Foucault, 2003, p 58). For Foucault then, the abnormal individual is to be comprehended through the prism of these three ancestral figures: the monster, the individual to be corrected and the masturbating child. Indeed, the abnormal individual is constituted discursively as a pale monster, an incorrigible and a sexual deviant. Put differently, the abnormal individual represents a condensation of concerns over the physical body, criminality and sexual non-conformity. As Foucault puts it: The ‘abnormal’ individual that so many institutions, discourses, and knowledges have concerned themselves with since the end of the nineteenth century is derived from the juridico-natural exceptionality of the monster, from the multitude of incorrigibles caught up in the mechanisms of rectification, and from the universal secrecy of children’s sexualities (1997, p 55). Elsewhere he explains that: The nineteenth-century abnormal individual is distinguished by a kind of monstrosity that is increasingly faded and diaphanous and by a rectifiable incorrigibility increasingly surrounded by apparatuses of rectification. Finally, it is marked by this common and particular secret of the general and universal etiology of the worst peculiarities (2003, p 60). During the second half of the eighteenth century ‘the monster, the incorrigible and the masturbator are characters who begin to exchange some of their traits and whose profiles begin to be superimposed on each other’ (Foucault, 2003, p 61). Thus, and by way of example, Foucault notes that within this period masturbation comes to be considered the cause of ‘physical deformities’ as well as ‘the worst kinds of monstrous behavior’, while correctional institutions focus increasingly on ‘sexuality and masturbation as fundamental to the problem of the incorrigible’ (1997, p 54; 2003, pp 60–61). Yet, he insists, these characters ‘remain absolutely distinct and separate until the end of the eighteenth and the beginning of the nineteenth century’ (2003, p 61). According to Foucault, ‘a technology of abnormal individuals appears precisely when a regular network of knowledge and power has been established that brings the three figures together’ (2003, p 61).7 On this account, the constitution of the abnormal individual is the effect of the systematisation, codification and linkage

7

The scientific project of normalisation is one well documented by Foucault (1973, 1977, 1978, 1988b).

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of three bodies of knowledge and power: natural history, pedagogical techniques, and the biology of sexuality (Foucault, 2003, p 62).8 For present purposes, what is significant about Foucault’s genealogy is the manner in which he links the subject of contemporary regimes of normalisation to a series of antecedent figures, and in particular to the figure of the human monster. What needs to be emphasised is his contention that the legal category monster not only structures understandings of the human monster but also understandings of each of the marginalised figures that have succeeded him into the present including the abnormal individual (2003, p 324). As Foucault explains, the figure of the monster now functions as a ‘magnifying model . . . for every little deviation’ and as ‘the principle of intelligibility of all the forms that circulate as the small change of abnormality’ (2003, p 56). Today it is only the normal type, Tarde’s ‘zero of monstrosity’ (1897 (1999)),9 that is distanced from the monster. All those who deviate from the norm bear a relationship by degree to monster status, one that can be endlessly reworked for the purpose of recreating the coherence of human identity. In understanding the abnormal individual as a contemporary, though diluted (Foucault, 2003, p 57), incarnation of the monster in terms of Foucault’s theoretical framework, it is necessary to situate the abnormal individual in the context of an historical shift from the body to the soul as the target of legal regulation, and to delineate the ways in which the double transgression, of nature and law, operates differently with the arrival of this figure. In effect, what Foucault charts in his genealogy of the abnormal individual is a shift in legal concern from irregular bodies to deviant identity. What he teases out is a change in legal focus from the externality of the body, its materiality, to the interiority of the mind. He understands this shift in terms of ‘a process that develops between 1765 and 1820–1830’ (2003, p 74), one to be accounted for by a transformation in ‘politico-judicial powers’ (Foucault, 2003, p 61) and exemplified by a transformation in ‘the economy of punitive power’ (Foucault, 2003, p 82). This historical shift is, perhaps, best captured in Foucault’s treatment of the figure of the hermaphrodite. In comparing two French cases, the first in Rouen in 1601, the second in Lyon in 1765, Foucault notes the way that the concept of monstrosity is re-characterised (2003, pp 68–75). In each case, a hermaphrodite had engaged in sexual relations with a woman. In the first case, the

8

9

In this regard, Foucault insisted that the transition from the monster to the abnormal ‘cannot be explained by assuming something like an epistemological necessity or scientific tendency according to which psychiatry would pose the problem of the smaller only after having posed the problem of the bigger, the less visible after the more visible, the less important after the more important. Nor should we seek the origin of the processes that led from the monster to the abnormal in the appearance of techniques or technologies like psychotechnology, psychoanalysis, or neuropathology. Rather, it is these phenomena, the appearance of these techniques, which arise from a transformation of the monster into the abnormal’ (2003, p 110). Quoted by Georges Canguilhem (1964, p 29).

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hermaphrodite, Marie Lemarcis, was banned from sexual relations ‘with anyone of “whatever” sex’ (Foucault, 2003, p 72).10 She was banned from sexuality itself on account of her mixed sex. That is to say, it was the problematic nature of her body that registered with the court. In 1601 the body of the hermaphrodite was viewed as a monstrosity. By the time of the second case it would seem that the notion of ‘monstrosity as the mix of sexes, as transgression of everything that separates one sex from another’ had disappeared (Foucault, 2003, p 72). By 1765, as Foucault notes, ‘the hermaphrodite is no longer defined in medical discourse as a mixture of the sexes’ (2003, p 72). This is because, in the intervening period, the two-sex medical model had emerged to cast doubt on the authenticity of the phenomenon of hermaphroditism (Laqueur, 1990, chapter 5; Dreger, 1998a, 2000a). From this moment on ‘everybody was to have one and only one sex. Everybody was to have his or her primary, profound, determined and determining sexual identity; as for the elements of the other sex that might appear, they could only be accidental, superficial, or even quite simply illusory’ (Foucault, 1980a, p viii). In other words, the hermaphrodite as a distinct figure, understood as a mixture of two sexes, disappeared from view. In his/her place medicine constructed the figure of the ‘pseudo-hermaphrodite.’ For, as Foucault notes, it was the view that this latter figure exhausted the phenomenon of hermaphroditism ‘that tended to gain credence in the eighteenth century, through a certain number of important and passionately argued cases’ (Foucault, 1980a, p ix). Accordingly, Anne Grandjean was viewed as a woman who had transgressed sexually (Foucault, 2003, p 73). For Foucault, it is sexual rather than morphological irregularities that came to be seen as a threat to the gender order and as ‘belonging more or less to the realm of chimeras’ (1980a, p x).11

10 For further discussion of the case see Greenblatt (1986, pp 30–32), Jones and Stallybrass (1991) and Daston and Park (1985). 11 The later nineteenth-century case of Herculine Barbin provides a further example of this shift (see Foucault, 1980a). Indeed, in the nineteenth century, the leading French forensic physician, Ambroise Tardieu, insisted that the question of sex is ‘a pure question of fact that can and ought to be resolved by the anatomical and physiological examination of the person in question’ (quoted by Laqueur, 1990, p 136). As Laqueur has observed, the dominant nineteenthcentury medical view insisted that ‘[a]ny notion of genuine sexual ambiguity or neutrality is nonsense because sex is absolutely there in and throughout the body’ (1990, p 136). This outlook was consolidated in the early twentieth century. Thus Whittle and Turner note that the ‘idea of biological sex difference was strengthened by the development of endocrinology and the discovery of “male” and “female” sex hormones in the 1920s’ (2007). However, as Foucault has remarked, nobody would say today ‘that all hermaphrodites are “pseudo” ’ (1980, p ix). That is to say, contemporary medical science recognises more fully the complexity of sex and the existence of intersex people, that is, human beings whose biological sex cannot be classified as either male or female (Money and Ehrhardt, 1972). In this regard, many contemporary intersex people can be viewed as monsters within Foucault’s theoretical terms. However, for the reasons outlined in chapter 1, this book will, in chapter 5, focus on transsexuality primarily in considering the contemporary problematisation of sex/gender binaries.

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Here the concept of monstrosity is uncoupled from the physical irregularities of the body and becomes located in desire. What generates alarm is not the body as such, but ‘perverse tastes’ (Foucault, 2003, p 73). For Anne Grandjean loved women, and ‘it is this monstrosity, which is not a monstrosity of nature but a monstrosity of behaviour, that calls for condemnation’ (Foucault, 2003, p 73).12 As Foucault notes, the attribution of monstrosity here ‘is no longer juridico-natural but juridico-moral’ (2003, p 73).13 In contrast to a mixture of sexes, Foucault describes her behaviour as ‘simply an irregularity, a slight deviation’ (2003, p 73). However, this irregularity or deviation is ‘one that makes possible something that really will be a monstrosity, that is to say, the monstrosity of character’ (Foucault, 2003, p 73). It was in this fertile soil that the modern preoccupation with deviant identity or the abnormal individual took root. However, while the concept of monstrosity is recharacterised during the eighteenth and nineteenth centuries, it should not be thought that the abnormal individual is thereby severed from the idea of nature and its breach. On the contrary, deviant behaviour comes to be understood as evidence of nature gone awry. In this respect, the idea that the abnormal individual is a contemporary monster might be understood in relation to the element of natality. That is to say, like monsters of old, the abnormal individual is, perhaps, constructed as born not made. Later examples of this historical shift from body to soul provided by Foucault, specifically criminal man and the modern homosexual, convey and reinforce this important point. Thus in contrast to criminal acts, the object of concern of classical criminology, Foucault points to the invention of criminal man within positive criminology (1977). It is within the context of a transformation in ‘the economy of punitive power’ (2003, p 82) that a view of criminality as pathological appears for the first time. According to Foucault, criminal man ‘is a natural being defined by his criminality at the level of his nature’ (2003, p 90, 100). As he notes, ‘through the operations of the new economy of punitive power, crime is now filled out with what it never had and could never have in the old economy of punitive power; it is provided with a nature’ (2003, p 90). It is for this reason that criminal man can be understood as a monster. For crime, understood in this way, represents not merely ‘the violation of civil 12 While the medical community became increasingly concerned to identify ‘true’ sex in individual cases, this could prove difficult in practice (see Dreger, 2000b, pp 122–124). In circumstances where hermaphrodites were allowed/obliged to choose their gender, the choice was required to be permanent. If they ‘moved back and forth in their gender, their sexual relations could be stigmatized as the crime of sodomy’ (Trumbach, 1991, p 113; see also Jones and Stallybrass, 1991, p 90). This was especially the case in France because, unlike England, sodomy laws covered lesbian sexual activity (Jones and Stallybrass, 1991, p 89). Accordingly, Foucault’s characterisation of the hermaphrodite’s experience as the ‘happy limbo of non-identity’ lacks pathos (Foucault, 1980a, p xiii). 13 This can also be articulated in terms of a shift from the biological to the social (see Stiker,1999, p 181).

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and religious laws’ but also the ‘violation of the laws of nature’ (2003, p 90). The emergence of the modern homosexual in late-nineteenth century sexological discourse charts a similar trajectory.14 In this particular context, the act of sodomy is superceded by the birth of a new species as the object of legal concern and as the locus of the ‘unnatural.’ In Foucault’s words: ‘[h]omosexuality appeared as one of the forms of sexuality when it was transposed from the practice of sodomy onto a kind of interior androgyny, a hermaphroditism of the soul. The sodomite had been a temporary aberration; the homosexual was now a species’ (Foucault, 1978, p 43).15 What all these examples point to is a fundamental shift in our understanding of the concept of monstrosity. If the abnormal individual is a contemporary monster this cannot follow merely from an analysis of the body. Rather, while initially referring to the irregularities of bodies, the concept of monstrosity is no longer confined to the externality or materiality of the body. In relation to the abnormal individual, monstrosity lies in interiority or psyche. That is to say, the concept of monstrosity has been displaced and re-institutionalised and in the process its meaning has been transformed. Thus in relation to monsters of old the idea of monstrosity was quite literally written on their bodily surfaces. Here monstrosity equates with the horrifying spectacle of corporeal excess or disorder. Conversely, in relation to the abnormal individual we witness something different. Here monstrosity no longer signifies the body, but rather newly produced and problematic identity. What is sought within regimes of normalisation is, as Foucault notes, ‘the core of monstrosity hidden behind little abnormalities, deviances and irregularities’ (2003, p 56). According to Foucault, what we witness from the late eighteenth century on is ‘the emergence of a kind of specific domain that will become the domain . . . of a monstrosity that does not produce its effects in nature and the confusion of species, but in behavior itself’ (2003, p 74). In other words, in contrast to monstrosity written on the surface of irregular bodies, the abnormal individual’s monstrosity is of an invisible kind. In the context of the abnormal individual we witness the disappearance or rather the internalisation of monstrosity. That is, in contrast to monsters of old, monstrosity is no longer understood as the visible manifestation of monstrousness. It is precisely this fact of invisibility, where monstrousness is not shown forth or demonstrated,16 that constitutes the abnormal individual as a figure of modernity. Accordingly, in the context of the abnormal individual, the concept of the monster has become uncoupled from its own etymology.

14 The term ‘homosexual’ was first coined by the nineteenth-century law reform campaigner, Karl-Maria Kertbeny (1869). Born in Vienna, he is perhaps best known for his opposition to Paragraph 175 of the Prussian Penal Code (1871), which outlawed sodomy between men. 15 This notion of ‘hermaphrodisy of the mind’ was first articulated by Johann Ludwig Casper in 1852 (Casper, 1852). 16 The Latin word monstrare means to ‘show forth or demonstrate’ (see Epstein, 1995, p 91).

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In contrast to the historical transformation of the concept of monstrosity (or breach of nature), the concept of monstrousness (or breach of the law) remains relatively constant. It can manifest itself either through transgressive acts that possess taboo status or through challenge to legal taxonomy and order. In the context of the human monster this is, as we saw in chapter 2, a reference to the act of bestiality and to the fact that conjoined twins, for example, problematise the idea of the proper legal subject as a single embodied mind or that the hermaphrodite and human/animal hybrid challenge respectively the distinctions between male and female and human and animal. In the contemporary context of abnormal individuals we might again take the example of the homosexual as instructive. Here monstrousness can be understood either in terms of the act of sodomy and/or as an identity that threatens the heteronormative gender order. In discussing Foucault’s abnormal individual in relation to the monster concept it is also necessary to tease out a further dimension, namely the significance of responsibility to the constitution of the abnormal individual as a monster. As noted in chapter 2, Canguilhem and Foucault differ regarding their respective understandings of the conditions necessary to constitute a double breach, of law and nature. It is precisely this difference that rendered necessary an analysis of the relevance of the concepts of causation and responsibility to the appearance of law’s monsters. For Canguilhem, monstrosity is understood as caused by monstrousness, and specifically the mother’s bestial act (1964, pp 30–31). Here the mother is positioned as both cause and responsible agent. Conversely, while Foucault places emphasis on the transgressive act of bestiality in explaining historical understandings of irregular bodies designated monsters (2003, p 64), causation and responsibility remain peripheral to his theoretical account of the monster. However, the concept of responsibility may possess a significance that Foucault overlooks. For not only does a belief in culpability appear central to the legal production of monsters in historical terms, it may also prove to be important in understanding the construction of the abnormal individual as a contemporary monster. Indeed, responsibility may be especially important in understanding the abnormal individual/monster nexus. This is because, in relation to the abnormal individual, responsible agent and monster are one and the same. Thus, while the abnormal individual might be viewed as nature gone awry, s/he is not, unlike monsters of old, rendered irresponsible. By way of example, and irrespective of the cause of transsexuality, and therefore the relevance of natality, the transsexual possesses a degree of choice as to how to live, and therefore whether to challenge the law of gender. Accordingly, it may be that the abnormal individual is particularly vulnerable to practices of monsterisation given the relative ease with which blame can be legally attributed. This is a theme we will explore in chapter 5 in the context of the medico-legal regulation of transsexuality.

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3.3 Challenging Foucault’s history The genealogy of the abnormal individual offered by Foucault is a useful and rich account. Certainly, it serves to flesh out his more theoretical claims with historical evidence. More specifically, the abnormal individual of the present and each of his/her historical predecessors serve to exemplify Foucault’s theoretical assertion, discussed in chapter 2, that the constitution of the monster is the effect of a double breach, of nature and law. In this respect, Foucault’s theory and history complement each other in ways useful to contemporary analysis and critique. However, there are difficulties with Foucault’s analysis that need to be teased out. For the purposes of this chapter attention will be drawn to two specific concerns. In the first place, and somewhat ironically given his obvious legacy in relation to scholarship concerned with sexuality (Foucault, 1980a, 1987, 1988a), Foucault’s historical account pays, perhaps, insufficient attention to the importance of sexuality in the production of law’s monsters. While he emphasises the masturbating child as a key ancestor of the abnormal individual, and thereby brings sexuality into his analysis, Foucault appears to have adopted an ambivalent stance in relation to evidence that bestiality was the frame through which historical understandings of bodies designated monsters took shape. Of course, this is understandable in the context of the theoretical framework Foucault presents. For in relation to his understanding of a breach of law, Foucault chooses to place the emphasis less on transgressive acts that were thought to lead to the birth of creatures with irregular bodies, in favour of an analysis that privileges the challenge such bodies represent to legal certitude and order. Nevertheless, the fact that sexual transgression lay at the heart of historical understandings of monster creation, a point to be developed in the following chapter in the context of an English legal history of monsters, points to a need to give greater consideration to the role of sexual deviance in the construction of monsters both past and present. Indeed, the fact that bestiality and masturbation both feature in Foucault’s historical account serves only to reinforce this point. Accordingly, it may be that historical analysis of the monster points to the special relevance of this legal category to the domain of sexuality and therefore to scholarship within this field. Of course, bestiality and masturbation also serve to raise the issue of responsibility and its importance to monster production. As we saw in chapter 2, Foucault sought to play down the importance of the culpability of actors in favour of the crisis of classification. This is a theme we shall return to in chapters 5–7 where we will consider the application of the monster concept in specific contemporary contexts. Second, and more importantly, for the purposes of this chapter, Foucault’s history of monsters presents a more profound difficulty. What is at issue here is Foucault’s insistence that the emergence of human monster types followed a particular sequence. As already noted, Foucault charts a shift in legal concern

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from the bestial human in the Middle Ages to a concern over Siamese or conjoined twins in the Renaissance period and ultimately to a focus on the hermaphrodite in the Classical Age. This sequencing of monsters presents a linear history in which the notion of the human monster as absolute difference from humanness takes on an increasingly relative character. That is to say, his historical account begins with the problem of human/animal hybridity. This problem is then exchanged for the conundrum of the human creature with two heads, and subsequently for the ‘ambiguously’ sexed body. This account implies a gradual lessening of the physical and psychological distance between human being and the figure of the monster. Moreover, and importantly, such an account enables Foucault to position the abnormal individual and contemporary regimes of normalisation within this frame of historical continuity. This is, perhaps, especially so given Foucault’s historical account of the abnormal individual’s other predecessors, namely the individual to be corrected and the masturbating child. For these two figures problematise further the distinction between human and monster given their more frequent appearance (Foucault, 2003, pp 58–59).17 Yet, as we will see in the following chapter, such a chronology is at odds with an English legal history of the monster category, which suggests a more complex relation between human and monster. Indeed, it would appear that the trend, implicit in Foucault’s account, of a lessening of physical and psychological distance between human and monster, moves in the opposite direction within English law. That is to say, and as we will see in chapter 4, it is increasing legal anxiety over the possibility of human/animal hybridity, rather than its diminution, that characterises an English legal history of the monster category. However, it should be recognised that the history Foucault offers is a French history. It is not my intention to call into question this history on account of differences that exist between English and French law. To do so would fail to take into account historical and cultural differences that exist between England and France, as well as the different legal traditions that animate each nation.18 Rather, what is being challenged is the degree to which Foucault’s history provides an adequate account for comprehending the emergence of the abnormal individual. While Foucault’s history of French law might be accurate in itself, conclusions drawn from it that inform our understanding of contemporary regimes of normalisation are open to a critique based on an analysis of English

17 In the context of the abnormal individual, ‘we’ have only the generalised form which is abnormality to mirror back ‘our’ humanity, a task to which the abnormal individual is perhaps less well suited than monsters of old, and in relation to which additional effort is perhaps required to be expended. 18 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 had been rediscovered (see Watson, 1985), the common law proved more resistant to the incorporation of Roman law (see Kelley, 1990).

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law. For the figure of the abnormal individual is not confined to France but is rather a figure of modernity. In challenging Foucault in this way it is necessary to recognise that Foucault has often been criticised within the humanities and social sciences for his many generalisations concerning historical facts (see, for example, Robinson, 1978; Henretta, 1979; Megill, 1979, 1987; Poster, 1982; McGowan, 1994; Castel, 1994).19 Nevertheless, it is important to call into question Foucault’s statements concerning monster archetypes and their chronological relationship because of the implications these statements have for our understanding of the abnormal individual. It is precisely in relation to the abnormal individual, the endpoint of Foucault’s history of monsters, that a disjunction between this history and a history of English law assumes significance. Specifically, and while further historical inquiry is required here, we might expect growing anxiety over the human/animal distinction, which an English legal history of the monster category suggests, to have insinuated itself into the figure of the abnormal individual to a greater degree, and possibly with different cultural consequences, than Foucault’s analysis implies. To be more specific, it may be that the trope of the ‘unnatural’ is more important to an understanding of the construction of the abnormal individual than Foucault’s analysis suggests. In other words, a history of the English legal category monster points to the need to consider the precise relationship between constructions of nature and their breach, and the production of the abnormal individual. Moreover, from the perspective of English law, it might be suspected that the trope of the ‘unnatural’ operates as a tension within normalising regimes. Indeed, legal constructions of nature and their deployment might be understood as a limit to this very project of modernity.

19 Thus Alan Megill has suggested that Foucault ‘should not be taken seriously as a historian’ (1979, pp 502–503), while James Henretta has accused him of dismissing ‘the intrinsic value of history’ (1979, p 1299). Elsewhere, Foucault’s work has been described as ‘empirically shoddy and unscientific’ given his refusal to be bound by ‘the usual conventions of evidence’ (Robinson, 1978, p 30). He has, somewhat ironically, been accused of ‘a failure of historical imagination’ (Robinson, 1978, p 30) and, in relation to volume 1 of his History of Sexuality, it has been suggested that he ‘comes very close to being a fraud’ (Robinson, 1978, p 32). As Kent notes, Foucault has been interpreted as intellectually arrogant for ignoring the scholarship of other historians (1986, p 386). However, Foucault’s approach has been to study original manuscripts, with a particular ‘problem’ in mind, unencumbered by other historical work. It is precisely the continuity that traditional historical scholarship has sought to impose on the past that Foucault seeks to contest. Despite criticism of his approach, ‘experts whose fields he has entered, historians of science and of medicine particularly, have been highly respectful of his work’ (Kent, 1986, p392). See, for example, Poynter, 1964; Leary, 1976; Albury and Oldroyd, 1977; and Forrester, 1980. Moreover, Foucault has asserted that, ‘by confusing the “social” and the “real” historians sequestered themselves in the delusion of total history. They confused the analysis of a problem with the study of a period, which prevented them from understanding that he chose his material solely in terms of his object of research. In his analysis, moreover, he retained only those elements that allowed him to establish the explanatory relations proper to the object, thus rendering absurd the requirement of wanting “to say everything” ’ (Noiriel, 1994, p 552).

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However, should it be necessary to qualify Foucault’s historical account regarding our understanding of the abnormal individual, Foucault’s theoretical framework would remain intact, at least to the extent that at its core lies the idea of a double breach, of nature and law. Indeed, growing legal concern over human/animal hybridity over time points not only to the importance of a requirement of a breach of nature to the constitution of the monster, but also to its centrality given that human/animal mixing represents a more rather than a less profound breach of nature. Indeed, hybridity of this kind, perhaps, represents as profound a breach of nature as can be imagined within legal and broader cultural terms. Accordingly, it is not Foucault’s theoretical framework for understanding monsters that is being challenged here. Rather, ‘departure’ from Foucault in theoretical terms lies in taking more seriously his idea of a double breach. For Foucault, the abnormal individual is to be understood in terms of ‘the never wholly mastered interplay between the exception of nature and the breach of the law’ (2003, p 324). What is being suggested here is that in understanding the abnormal individual we should pay more attention to the idea of a breach of nature. Foucault is right to recognise that the terms ‘abnormal’ and ‘unnatural’ cannot easily be divorced. What an English legal history points to, as we will see in the following chapter, is the possibility that ideas of abnormality and ‘unnaturalness’ are more profoundly implicated in each other. This is a theme that we will pursue in chapter 5 in the contemporary context of the medico-legal regulation of transsexuality.

3.4 Conclusion This chapter has mapped Foucault’s genealogy of the abnormal individual. For Foucault, the abnormal individual has three key ancestors: the human monster, the individual to be corrected and the masturbating child. The abnormal individual appears at the end of the eighteenth and the beginning of the nineteenth century when these three figures are brought together through the linkage of three bodies of knowledge and power: natural history, pedagogical techniques, and the biology of sexuality. In short, the abnormal individual represents a condensation of concerns over the physical body, criminality and sexual deviance. What is significant about Foucault’s analysis is his claim that the monster category not only structures understandings of the human monster, but also each of the marginalised figures that have succeeded him into the present, including the abnormal individual. The abnormal individual is a contemporary monster in the sense that the constitution of this figure involves a double breach, of nature and law. In order to appreciate this point it was necessary to situate an understanding of the abnormal individual in the context of an historical shift from the body to the soul as the object of legal concern commencing in the mid-eighteenth century. This historical shift proves significant in relation to the concept of monstrosity. While initially signifying the irregularities of

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bodies, the concept is extended to encompass interiority or psyche with this historical shift. By the same token, monstrosity is no longer necessarily rendered visible. It is precisely the fact of the invisibility of monstrosity that makes the abnormal individual a truly modern figure. The principal difficulty with Foucault’s history, as revealed by the chapter, lies in his sequencing of human monsters. In chronological terms, his account moves from a preoccupation with the bestial human in the Middle Ages to a concern over Siamese or conjoined twins in the Renaissance period and ultimately to a focus on the hermaphrodite in the Classical Age. This history is linear in that it suggests a gradual lessening of the physical and psychological distance between human and monster, a linearity culminating in the figure of the abnormal individual. As we will see in the following chapter, an English legal history of the monster category departs significantly from Foucault’s French history in several ways. In particular, increasing legal anxiety over the possibility of human/animal hybridity, rather than its diminution, will be seen to characterise English law. However, it is not the historical accuracy of Foucault’s French history that the chapter has sought to challenge. Rather, what is being challenged is the degree to which Foucault’s account provides an adequate basis for understanding the emergence and specificity of the abnormal individual as a more general figure within modernity. The analysis to be provided in chapter 4 points to a need to pay more attention to the idea of a breach of nature in the constitution of the abnormal individual. In chapter 5, the interrelationship between the abnormal individual and a breach of nature will be explored in the context of the contemporary ‘problem’ of transsexuality. However, it is toward mapping an English legal history of the monster category that attention now turns.

Chapter 4

An English legal history of monsters

A monster, which hath not the shape of mankind, but in any part evidently bears the resemblance of the brute creation, hath no inheritable blood, and cannot be heir to any land, albeit it be brought forth in marriage: but although it hath deformity in any part of its body, yet if it hath human shape, it may be heir (Blackstone 1765–1769 (1979, vol 2, pp 246–247)).

4.1 Introduction This chapter offers a history of the English legal category monster, a legal category that entered English law in the mid-thirteenth and survived until the mid-nineteenth century. The chapter has two aims. First, to provide a close textual analysis of an otherwise absent legal history and to locate law’s monsters, and the anxieties that they suggest, within their appropriate contexts: social, political, religious and legal. Second, to highlight some profound differences that exist between this legal history and Foucault’s historical account of the monster. In pursuing these aims, it will become clear that an English legal history of the monster category offers a series of valuable insights for future study, particularly in the areas of legal history, philosophy and feminist theory. The chapter will draw attention to four different and specific contexts in relation to which future scholarship might benefit from an historical study of England’s legal monsters. First, the chapter provides an historical account that contests a view of the legal category monster as evidence of a legal Dark Age. Rather, and in addition to highlighting how this legal category persisted into the nineteenth century, the chapter will draw attention to the relatively more rational construction of the category that characterises the approach of legal jurists of the late Middle Ages. Accordingly, contemporary legal disavowal of monsters1 should not

1

See Re A (Children) (Conjoined Twins: Surgical Separation) [2000] 4 All ER 961, pp 996, 1054. For a general discussion of legal and ethical issues surrounding conjoined twins, see Sheldon and Wilkinson (1997).

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induce uncritical acceptance of a characteristically pre-modern/modern divide where tolerance and rationality are viewed as replacing a less civilised past.2 Moreover, a view of fragments of the legal past as superstitious and irrational, and as irrelevant to modern understandings, should be treated with caution. Indeed, a focus on monsters, given the hybridity they suggest, perhaps serves to disrupt or unsettle the very boundary between past and present (Bildhauer and Mills, 2003, p 5). Second, the chapter will highlight how the privileging of mind over body in understanding humanness, a legacy of Western philosophy (Porter, 1991; Grosz, 1994; Gatens, 1996; Cheah and Grosz, 1996),3 is reversed in this corpus of the law. That is to say, in the context of a history of the English legal category monster, it is the body, not the mind, that proves to be the ultimate bedrock of what it means to be human. This fact might serve to inform theoretical scholarship, including feminist legal scholarship, focusing on embodied subjecthood. Indeed, in view of the gendering of the mind/body distinction within Western philosophy and law (Spelman, 1982; Lloyd, 1993; Bynum, 1995, p 6; Price and Shildrick, 1999, p 17),4 the different articulation of this distinction evident within English law might prove fertile ground for feminist legal theory. In this regard, the legal category monster perhaps offers a site from which to launch a counter or ‘reverse-discourse’ (Foucault, 1978, p 101) concerning the terms of a key legal and philosophical distinction. Yet, at the same time, an emphasis on the body as the bedrock of what it means to be human can also prove problematic. As we will see in chapters 5 and 6, it is precisely a medico-legal view of bodies as ‘wrong’ and ‘shared,’ in the context of transsexuals and conjoined twins respectively, that has served to preclude the conferral of full human status. Third, the chapter will highlight how, within the law of England, the hermaphrodite, while being recognised to be of indeterminate sex, was never considered a monster. While it is true that clear legal statements to this effect reveal a degree of anxiety about the proper location of the hermaphroditic body within legal taxonomies, this legal finding remains significant. In the first place, it contrasts with Foucault’s view that the hermaphrodite was the privileged monster of the Classical Age (2003, p 66). Second, it is interesting to contrast earlier legal understandings of the hermaphroditic body as being of indeterminate sex with contemporary medico-legal attempts to surgically remove sex ‘ambiguity’. This is a theme we will explore in chapter 5, where it will become apparent that medicine and, more particularly, law have rendered

2 3 4

Indeed, Rosemary Garland Thomson has charted a history of monsters and freaks from medieval tolerance and curiosity to nineteenth century exclusion and vilification (1996, pp 2–4). For a different view about the body in the medieval period see Bynum (1995). As noted by Price and Shildrick, ‘the identification of woman with the body is a familiar idea in the Western tradition from Aristotle to post-Cartesian modernism’ (Price and Shildrick, 1999, p 17).

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unimaginable the idea of a third sex/gender. Conversely, it is somewhat curious that law’s monsters, though informed by human/animal and order/disorder distinctions, are not informed by a body that challenges sexual difference. Indeed, the fact that challenge to the binaries of sex and/or gender failed to register in legal constructions of the category monster might serve as a provocation within feminist legal theory. Finally, the legal history to be detailed will provide a vantage point from which Foucault’s understanding of the figure of the abnormal individual and contemporary regimes of normalisation might be qualified. For an English legal history of the monster category serves to call into question aspects of Foucault’s genealogical treatment of the abnormal individual. Specifically, an English legal history of the monster unsettles Foucault’s account concerning the trajectory of this key ancestor of the abnormal individual. According to Foucault, and as noted in chapter 3, each age had its ‘privileged monster’ (2003, p 66). In chronological terms, Foucault’s account moves from a preoccupation with the bestial human in the Middle Ages to a concern over conjoined twins in the Renaissance period and ultimately to a focus on the hermaphrodite in the Classical Age (2003, pp 66–67). While this account does not fit the English context, the principal difficulty that English legal history raises for Foucault’s history lies not in chronological accuracy. Rather, his sequencing of monsters presents a linear history in which the notion of the human monster as absolute difference from humanness takes on an increasingly relative character. That is to say, his historical account begins with the problem of human/animal hybridity. This problem is then exchanged for the conundrum of the human creature with two heads, and subsequently for the ‘ambiguously’ sexed body. This account implies a gradual lessening of the physical and psychological distance between human and monster. Accordingly, such an account enables Foucault to position the abnormal individual and contemporary regimes of normalisation within this frame of historical continuity. Conversely, an English legal history of the category monster suggests a more complex relation between human and monster. Indeed, it would appear that the trend, implicit in Foucault’s account, of a lessening of physical and psychological distance between human and monster, moves in the opposite direction within English law. Accordingly, and while further historical inquiry is required here, we might expect this legal history, and growing anxiety over the human/animal distinction which it suggests, to have insinuated itself into the figure of the abnormal individual to a greater degree, and possibly with different cultural consequences, than Foucault’s analysis implies. In short, what an English legal history points to is the possibility that ideas of abnormality and ‘unnaturalness’ are mutually implicated in a more profound manner than has hitherto been appreciated. In chapter 5, we will consider this relationship between abnormality and ‘unnaturalness’ in the contemporary context of transsexuals and their encounters with law. It is toward mapping a history of the legal category monster that the chapter now turns.

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4.2 The late Middle Ages: inaugurating legal monsters The term monster has a long history within English law as it does within civil law jurisdictions of Europe (Schrage, 1995, pp 476–488). However, prior to the thirteenth century there appears to be no mention of the term in English legal texts. Thus no reference to the term can be found in English laws from Aethelberht, King of Kent to King John.5 Moreover, there is no mention of monsters in the late twelfth-century legal writings known as Glanvill (Glanvill, 1965). The first English legal texts to refer to monsters are the common law texts of Bracton (Bracton, 1240–1260 (1968))6 and Britton (Nichols, 1983).7 In On the Laws and Customs of England, Bracton, in defining legal personhood, states that: ‘those procreated perversely, against the way of human kind, as where a woman brings forth a monster or a prodigy’ shall ‘not [be] reckoned among children’ (1968, vol 2, p 31). However, and in providing some sense of the parameters of thirteenth-century legal monsters, Bracton notes that ‘an offspring who has a larger number of members, as one who has six fingers, or if

5

6

7

For the laws of Kings Aethelberht (560–616), Hlothharere and Eadric (673–686), Wihtraed (690–725), Alfred (871–901), Edward the Elder (901–924) and Athelstan (924–939) see Attenborough (1963, pp 4–17). For the laws of Kings Edmund I (939–946), Edgar (959–975), Canute (1017–1035), William I (1066–1087) and Henry I (1100–1135) see Robertson (1994, pp 6–15). For a critical treatment of the laws of Henry I see Downer (1996). As far as is known, Edward the Confessor (1042–1066) made no written laws (Wormald, 2001, p 128). However, it should be noted there exists a legal text titled Leges Edwardis Confessoris that Wormald dates to 1140c. According to Wormald, ‘the image of Edward as lawgiver inspired’ the production of this legal text but it was ‘not authentic legislation by this King’ (p 128). Henry II (1154–1189), Richard I (1189–1199), and John (1199–1216) did not issue law codes. They did, however, issue legislation (Statutes of the Realm, 1993). It should be noted that the laws reproduced in the texts cited are translations into modern English from Anglo-Saxon (old English) or, in relation to those laws produced after the time of the Norman Conquest, Latin. This is also true for the twelfth- and thirteenth-century legal texts referred to below. References to monsters are made in Bracton’s On The Laws and Customs of England 1240– 1260, vol 2, p 31, pp 203–204; vol 3, pp 151, 221; and vol 4, pp 198, 227, 361 and 362. 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 during the 1220s and 1230s by persons other than Bracton. However, it was probably Bracton who made the later additions. 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 http://hlsl.law.harvard.edu/Bracton/Common/index.htm (date accessed: 14 April 2006). For a discussion of Bracton’s work see Richardson (1965). 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 (see Nichols, 1983).

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he has but four [or only one], will be included among children’ (1968, vol 2, p 31). Neither will a child be considered a monster because it is ‘crooked or humpbacked or has twisted limbs or otherwise has its members useless’ (Bracton, 1968, vol 4, p 361). However, in a passage not directed toward addressing the question of monster status, Bracton expressed the view that the Church does not have ‘several heads like a monster’ (Bracton, 1968, vol 3, p 221),8 thereby suggesting that he considered conjoined twins to be monsters. In short, Bracton’s classificatory scheme distinguishes between monstrosity (and therefore bodies located outside the law) and deformity (where bodies were located within the law), and serves to emphasise the birth moment as critical to the legal production of monsters, a feature of legal discourse on monsters that will be seen to persist into the Enlightenment, and perhaps beyond. The later thirteenth-century common law writings of Britton replicate Bracton’s taxonomy. Thus children born with a lesser or greater number of fingers than is usual are not reckoned monsters. In throwing further light on where the line is perhaps to be drawn, Britton states that children born with ‘three hands or feet . . . shall not be admissible to any inheritance, or accounted children’ but rather are to be considered ‘beasts and monsters’ (Nichols, 1983, para. 19). With the exception of this latter reference, the bestial human, the figure Foucault places at the heart of the Western psyche in the Middle Ages, appears noticeably absent in thirteenth-century English legal texts. Rather, these texts appear confined to human bodies characterised by corporeal excess. It is also clear from Bracton’s writings, despite the view that in medieval thought they constituted ‘a monster of identity of the most profound sort’ (Williams, 1996, p 160),9 that hermaphrodites fell on the deformity side of the deformity/monstrosity distinction. Thus he states: ‘[m]ankind may also be classified in another way: male, female, or hermaphrodite’ and that ‘[a] hermaphrodite is classed with male or female according to the predominance of the sexual organs’ (Bracton, 1968, vol 2, p 31).10 This approach to

8 This reference to monsters emerges in the context of Bracton’s discussion of the Assise of Darrein Presentment. 9 There is considerable evidence supporting the claim that hermaphrodites were viewed as monsters in non-legal discourses of the medieval and early-modern periods (see, for example, Epstein, 1995, p 83; Burnett, 2002, p 11; Gilbert, 2002, p 67; and Bates, 2005). This distinction between the legal classification of hermaphrodites, and wider discourses that circulated around them, is perhaps, again apparent in antiquity. Thus in contrast to Stiker’s claim that in the Greco-Roman world ‘sexual ambivalence was considered an anomaly, the most dangerous of all and the most monstrous’ (Stiker, 1999, p 61), it is clear from Roman law that the sex of hermaphrodites was to be determined by the predominance of the sexual organs (D.1.5.10). 10 While Bracton cites Azo (Summa Inst. 1. 5, no 5), an Italian early thirteenth-century glossator of Roman law (see Maitland, 1894), this understanding of the hermaphrodite is also rendered explicit by Ulpian (D. 1. 5. 10) (see Watson, 1985).

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hermaphrodites, one that persisted within English law,11 is of interest. While requiring that a hermaphrodite take up a position in law’s symbolic order as either male or female, law’s understanding of the hermaphroditic body as existing in nature outside that binary is apparent.12 In other words, ‘there remained an awareness that hermaphroditic sexuality was inherently different from either male or female, that it formed its own unique nature’ (Nederman and True, 1996, pp 515–516). In this respect, thirteenth-century English law can be contrasted with the medical view that took shape in the eighteenth century that there exist only two sexes (Laqueur, 1990, chapter 5), and with modern medical practice that aims to surgically remove sex ‘ambiguity’ (Kessler, 1990, 1998; Chase, 1998; Dreger, 1998a). This distinction between deformity and monstrosity, articulated in thirteenthcentury English law, the practical import of which pertained primarily to inheritance law,13 represents an attempt to distinguish the human from the nonhuman. That is, deformity marks the limit of human being. It charts degrees of imperfection beyond which lies the most absolute of others. In other words, the deformity side of the divide serves to highlight corporeal forms of human difference that the law can recognise and accommodate. The legal distinction has a much older history traceable to Roman law. Thus there are references

11 This understanding of the hermaphroditic body is reproduced as recently as 1724 in the writings of Thomas Wood (1979, p 12). 12 This did not necessarily mean that hermaphrodites were able to choose their gender. However, there is some support for the choice thesis in relation to the Middle Ages (Foucault, 1980a, pp vii–xvii; Daston and Park, 1995, p 428). Canon law of the late Middle Ages may also provide some support for the choice thesis. Thus according to Peter the Chanter (d. 1197) ‘the church allows a hermaphrodite – that is, someone with the organs of both sexes, capable of either active or passive functions – to use the organ by which he is most aroused or the one to which he is most susceptible. If he is more active, he may wed as a man, but if he is more passive, he may marry as a woman’ (De Vitio Sodomitico, cited by Boswell (1980, p 376). See also Peter de la Palude (1277–1342), Commentary on the Decretum, C. 4, q. 3, c. 3 para. 22, Paris edition, fol. 133 ra, see also Winroth, 2000). It would be mistaken however, to overstate the case for choice within medieval law. The choice thesis appears more suspect in the Renaissance period, and thereafter, when court recognised medical examination tended to determine ‘prevailing sex’ (Daston and Park, 1985; Epstein, 1995, p 86). However, Trumbach’s study provides some support for the proposition that choice persisted after the Renaissance period (Trumbach, 1991, p 113). 13 Legal concern over the monster/inheritance nexus may have been heightened in Bracton’s time due to the relatively recent establishment of the law of primogeniture whereby, and instead of equal partition between sons, land descended to the eldest son. This practice, which had been developing slowly since the Norman Conquest, became especially entrenched during the reign of Henry III (1216–1272), and therefore during Bracton’s time (Blackstone, 1765–1769, vol 2, p 176). This legal position continued until the enactment of the Statute of Wills in 1540, which enabled testators to dispose of real property in ways inconsistent with the interests of the eldest son. However, this right only applied to landowners who paid Knights Fees. In relation to other landowners, primogeniture continued into the nineteenth century (Dukeminier and Krier, 2002, pp 284, 637).

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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,14 Ulpian15 and Justinian.16 Moreover, Roman law bears an important relationship to constructions of monsters in the legal texts of Bracton and Britton. This claim is supported by direct references to Roman laws and to the writings of glossators of Roman law in their legal works. Thus Britton’s text cites the Digest (Nichols, 1983, para. 19) while Bracton cites Azo (Bracton, 1968 vol 2, pp 31–32), an Italian legal scholar and early-thirteenth century glossator of Roman law. Indeed, in relation to Bracton, reliance on Roman law is especially apparent given that his monster text is substantially the same as, if not identical to, Paul’s text contained within the Digest.17 However, while Roman laws refer to monsters, the decision by Bracton and Britton to incorporate such laws into their thirteenth-century legal texts should not be viewed as determined by the mere discovery of such laws. As is well known, the reception of Roman law was considerably more limited in England than in continental Europe. While resort to Roman law is quite extensive in the work of Bracton it is also apparent that his usage is selective rather than wholesale.18 Thus on the subject of monsters there are elements of Roman law that are not incorporated as they were not considered compatible with English law. For example, Bracton did not incorporate the doctrine of the ius trium liberorum (Bracton, 1968, vol 4, p 360).19 Under Roman law even the birth of a monster was viewed as favouring the parents. Thus where childlessness precluded inheritance the birth of a monster counted as a child.20 In any event, it may be that the appearance of monsters in thirteenth-century legal texts was influenced by other contemporary factors. The problematisation

14 15 16 17

D. 1. 5. 14. D. 50. 16. 38; D. 50. 16. 135. C. 6. 29. 3. D. 1. 5. 14. It is perhaps also likely that Bracton’s monster text was influenced by canon law albeit he cites none. In the first place he was an Archdeacon. Moreover, his emphasis on ‘perverse procreation’ in his definition of the monster suggests a preoccupation with sin. This concern appears to be absent in the Roman legal text he cites. Indeed, heightened anxiety concerning sin was a feature of the period (see, for example, Moore, 1987; Waugh and Diehl, 1996). 18 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 (see Guterbock, 1979), more recent legal scholarship has emphasised its Englishness adopting Maitland’s view that though ‘Romanesque in form’ it was ‘English in substance’ being based on a vast amount of judicial experience, including some 500 decisions (Kelley, 1990, p 167). 19 The non-applicability of this Roman doctrine to English law is noted subsequently by William Blackstone writing in the mid-eighteenth century (1979, vol 2, pp 246–247). 20 This Roman law aimed to ensure that the birth of a monster did not serve to deny parents an inheritance they would otherwise receive. It did not operate to disturb the monster status of the creature born (see Schrage, 1995, p 475).

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of monsters in thirteenth-century English law needs to be understood in terms of ‘the ensemble of discursive and non-discursive practices that makes something enter into the play of the true and the false and constitutes it an object of thought’ (Foucault, 1984, p 18). On the Laws and Customs of England is generally thought to have been written between 1220–1260 and therefore during a significant period of historical change both within England and Europe more generally. The period from the late twelfth to the fourteenth century has been characterised in terms of a ‘quest for intellectual and institutional uniformity and corporatism throughout Europe’ (Boswell, 1980, p 270).21 According to Boswell, the thirteenth and fourteenth centuries in particular were a time during which European societies were ‘bent on restraining, contracting, protecting, limiting and excluding’ (1980, p 270). In these respects, Bracton’s writings can be situated within the context of the emergence of a nascent English state. As Kantorowicz notes, the Bractonian age was a critical period when ‘ “the community of the realm” became conscious of the difference between the king as a personal liege lord and the king as the supra-individual administrator of a public sphere’ (1957, p 191). Bracton’s writings can also be juxtaposed with a drive toward orthodoxy within Christian theology and practice and located at a time when religious crusades, and their failure, weighed heavily in the West on the collective imagination.22 It was an historical time in which Islam was perceived as representing a threat to Christendom from without and the sodomite23 and the Jew (Chazan, 2006; Grayzel, 1989; Mundy, 1973; Marcus, 1970; Synan, 1965) from within. Moreover, it is apparent that the terms Moor, Jew, sodomite and heretic operated as a kind of Nietzschian ‘sign-chain’ (Nietzsche, 1969, p 77) during the late Middle Ages. In short, Bracton wrote at a time in which anxiety concerning enemies of the state and/or the church, real or imagined, came to the fore. As Cohen has noted, the successful disavowal of monsters at the societal level requires both ‘a degree of cultural uniformity and relative social calm’ (1999, p 4).24 These features were absent in thirteenth century England. Thus references to monsters in English legal texts, and the figure of the monster more generally, might be viewed, as a vehicle for the expression of cultural anxiety about boundaries: national, religious, sexual and human. In this sense, the monster functions as an object for the projection of this very anxiety. 21 See also Moore, (1987, 1996). 22 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 Daniel (1960), Daniel (1966), Watt (1972), Southern (1978) and Uebel (1996). 23 I use the term sodomite here because the relevant legislation targeted activity and because the notion of homosexuality as identity did not emerge until the sexological writings of the late nineteenth century (see Foucault, 1978). 24 It has also been noted that ‘each time the monster appears is, in some ways, the last, since the monster is, by definition, unique, one of a kind . . . each monster embodies a different cultural trauma’ (Ingebretsen, 2001, p 5).

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Whatever the precise reasons for entry of the term monster into English law in the mid-thirteenth century it should be recognised that Bracton’s articulation differs from Roman law in an important respect. Roman legal provisions dealing with monsters tend to be worded in descriptive fashion, that is, as descriptions of bodies that either are or are not monsters. Such provisions tend to be silent as to the etiology and/or teleology of the phenomenon of monsters. Where this is not the case it is the teleology of monsters that receives expression.25 Moreover, it is the teleological view of monsters that typified the nonlegal literature of antiquity.26 Within this historical period monsters were understood primarily as signs and portents, a view that remained dominant among the learned until after the time of Saint Augustine when the emphasis would be placed on signs. These different understandings find support in the etymology of the word monster. Thus the term derives from the Latin words monstrare (meaning to show forth or demonstrate) and monere (meaning to warn).27 The latter term placed the emphasis on God’s wrath and calamities to come while the former term emphasised the power and glory of God. In both of these understandings monsters appear as supernatural and therefore sublime phenomena (Monk, 1960, p 54). This view was reinforced by Saint Augustine who made no clear conceptual distinction between marvels and miracles given his view that nature was the will of God realised (Wittkower, 1942, p 168; Daston, 1991, p 95; White, 1991, p 30). After the time of Augustine the teleological view of monsters gradually declined. Katherine Park and Lorraine Daston have provided a three-stage historical account of understandings of monsters. While perhaps paying insufficient attention to the fact that one form of understanding did not necessarily or immediately supplant others (Pender, 1996), they depict the history of monsters in terms of a trajectory from divine prodigies, to natural wonders and ultimately to a modern and scientific understanding (Park and Daston, 1981). In other words, they chart a shift in readings of monsters from awful to awe to statistical anomaly or an historical process in which the idea of the monster is displaced and re-institutionalised. The work of Bracton emerges during the gradual transition from an understanding of monsters as divine prodigies to natural wonders.28 The writings of Thomas Aquinas are significant in understanding this shift. In his theological writings, Aquinas effected a synthesis whereby then recently rediscovered writings of Aristotle were fused with Church law (Spade, 1997, p 89). In his Summa Theologica Aquinas reworked extant understandings

25 See, for example, Pease (1920). 26 For a discussion of non-legal literature on monsters in antiquity see Brisson (2002, chapter 1). 27 See Huet (1993), Epstein (1995, p 19), Cawson (1995, p 1), Beal (2002, pp 6–7) and Gilmore (2003, p 9). 28 However, an understanding of monsters as portents did not disappear from the cultural landscape. Moreover, and as we will see, this understanding re-emerged and found fertile soil in the sixteenth century.

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of marvels and miracles (Daston, 1991, pp 96–97). In particular, he supplemented the supernatural/natural understanding of things with a third term, the preternatural (Daston, 1991, p 97). A view of monsters as divine prodigies locates their origins within a supernatural framework as God’s unmediated actions. For Aquinas however, the preternatural captured events that ‘happen rarely, but nonetheless by the agency of created beings’ (Daston, 1991, p 97). While Bracton’s monster text precedes the writings of Aquinas, it can be grasped in terms of this relationship between rare events, human agency and causation.29 Thus, and in contrast to Roman law, Bracton frames the question of monsters in causal terms.30 His focus is not on what monstrosity predicts but on the nature of its production. That is, ‘where a woman brings forth a monster’ it is because it has been ‘procreated perversely, against the way of human kind’ (Bracton, 1968, vol 2, p 31). Here the word perverse bears its pre-sexological meaning. As noted by Dollimore, perversion is a concept traceable to early Christian theology and involves deviation from the true or orthodox path (1991).31 Thus unlike the modern sexological understanding, pre-modern understandings of perversion need to be situated within the context of sin. However, religious deviation should not be thought apart from sexual deviation. On the contrary, these two forms of transgression have been consistently interwoven within Christian theology. Moreover, this intersection is apparent in Bracton’s etiological account of monsters. Thus it seems reasonably clear that Bracton’s reference to ‘perverse procreation’ implies bestiality, a vice that Aquinas placed at the apex of his hierarchy of vices ‘contrary to nature’ (Davidson, 1991, pp 41–42). This reading is supported by the juxtaposing of the terms beasts and monsters in the contemporaneous legal text of Britton. It finds further support in a Bractonian passage that does not privilege the gaze. Thus he notes that ‘a monster utters a roar’ whereas ‘a true child a cry’ (Bracton, 1968, vol 4, p 361). It is also consistent with the writings of Azo upon whom Bracton drew heavily in constructing provisions pertaining to monsters. In addressing the deformity/monstrosity dyad, Azo distinguished between births arising out of copulation between a mother and an animal and births arising due to the mother’s intense preoccupation with animals. In the former case the child

29 In this regard, Bracton was, no doubt, influenced by scholastic thinkers who preceded Aquinas. 30 Thus, and while there is substantial similarity between Bracton’s text and that of Paul (D.1, 5, 14), Paul places emphasis on the abnormality of the body at birth. By way of contrast, Bracton places emphasis on his claim that such procreation is ‘against the way of human kind’ (Bracton, 1968, vol 2, p 31). For Bracton, the transgressive act of bestiality proves significant to his understanding of monsters and this is, no doubt, linked to the influence of canon law and an increased preoccupation with sin in the late Middle Ages. 31 According to Mary Douglas ‘[t]he word perversion is a significant mistranslation of the rare Hebrew word tebhel which has as its meaning mixing or confusion’ (1966, p 53).

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was viewed as a monster, though not in the latter.32 In effect, the deformity/ monstrosity distinction is, in the work of Azo, reworked into a distinction between the maternal imagination and bestiality as respective cause. While the legal focus on bestiality as cause of monstrosity might make sense in terms of its place at the apex of a hierarchy of vices ‘contrary to nature’, it is at the same time curious that the maternal imagination presented a lesser problem. For both causes might be understood as preternatural in Aquinas’ sense; that is, what ‘happens rarely, but nonetheless by the agency of created beings’ (Daston, 1991, p 97). Moreover, while bestiality bears a relationship to nature, not being completely outside nature, births understood in terms of the maternal imagination are products of art. In other words, it is of interest that Azo deploys the nature/artifice dyad in such a way as to privilege feminine art over nature in the construction of legal personhood and therefore the capacity to inherit and enjoy other legal rights. For, as Huet contends, where ‘the progeny imitates a model that belongs to art rather than nature, it can be seen as the most illegitimate of offspring’ (1993, p 23). Moreover, it seems clear that bestiality as cause in the legal writings of both Azo and Bracton is simply to be read off the body. That is, if the body is viewed as a monstrosity then bestiality is to be concluded and this appears to be so irrespective of whether a creature is considered to possess any specifically animal features. Indeed, Bracton’s text makes no reference to animal features. As will become clear this contrasts sharply with a number of more recent and fantastic legal texts. Moreover, it would seem that the absence of any reference to animal features is deliberate given that elsewhere, and in the context of his treatment of madmen and lunatics, Bracton refers to ‘brute beasts’ (Bracton, 1968, vol 2, p 308).33 Indeed, his treatment of madmen and lunatics is revealing more generally in relation to thirteenth-century understandings of human status. Thus Bracton excused madmen and lunatics from criminal and civil liability, and excluded

32 Azo, Summa Codicis, ad C.6, 29, 2 (see Schrage, 1995, p 478). The notion of the maternal imagination has a lengthy history within European literature (see, for example, Bundy, 1927; Huet, 1993; Braidotti, 1996, p 135; Epstein, 1999; and Betterton, 2006, pp 82–85). It dates from antiquity and persists until at least the eighteenth century when it became subjected to sustained scientific ridicule (see, for example, Issac Bellet, Letters on the Force of the Imagination in Pregnant Women. Wherein it is Proved . . . that it is a Ridiculous Prejudice to Suppose it Possible for a Pregnant Woman to Mark her Child, 1765. Eighteenth Century Collections Online, Gale Group. http://galenet.galegroup.com/index.html (date accessed: July 2009); James A. Blondel, The Strength of Imagination in Pregnant Women Examin’d: and the Opinion that Marks and Deformities in Children Arise from thence, Demonstrated to be a Vulgar Error, 1727. Eighteenth Century Collections Online, Gale Group. http://galenet.galegroup.com/index.html (date accessed: July 2009). Indeed, the popularity of this idea in the eighteenth century helps account for the widespread belief that a woman gave birth to 17 rabbits in Surrey, England 1726 (see Todd, 1995). 33 See also Platt and Diamond (1965).

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them from the right to inherit on the grounds that they ‘are not far removed from brute beasts which lack reason’ (Bracton, 1968, vol 2, p 308),34 a view shared by his contemporary Thomas Aquinas. Significantly however, sharing the animal quality of non-reason was not sufficient to deny madmen and lunatics human status. Rather, for Bracton, it is through the body that the monster is to be known and designated. Accordingly, while Western philosophy has privileged the mind over the body in understanding and constructing humanness, it would appear that it is the body that serves as the ultimate bedrock of what it means to be human in the legal imagination of thirteenth century England. Moreover, and as will become clear, this emphasis on the body in constructing the human/monster dyad persisted into the nineteenth century within English law. In the thirteenth century the legal distinction between human and monster was inextricably tied to the question of origins and the imagined practice of copulation between species. While the subsequent legal history of monsters differs from that of the thirteenth century in a number of respects, we will see that a preoccupation with determining where the boundary between human and animal lies persists.

4.3 The Renaissance: flights of fantasy After entering English law in the thirteenth-century common law writings of Bracton and Britton the term monster did not reappear until the late sixteenth century.35 In 1590, in a canon law text titled A Brief Treatise of Testaments and Last Wills (Swinburne, 1590 (1978)), the first canon law work to appear in English (Derrett, 1973, p 3), the term is re-presented by Henry Swinburne, lawyer and part-time judge of the Consistory Court at York. While Swinburne belonged to a different legal tradition to Bracton, it should be appreciated that the medieval law of succession was characterised by a ‘complex mixture of canon law, common law and the principles of equity’.36 In particular, church courts enjoyed ‘exclusive probate jurisdiction in most parts of England’ and ‘proved all wills and testaments not involving freehold property’ (Helmholz, 1990, p 1). Moreover, despite the conflict between church and state during the sixteenth century, ‘the English ecclesiastical courts were largely unaltered by the Reformation’ (Baker, 1990, p 151). In particular, ‘the scope of English ecclesiastical jurisdiction in 1570 stood pretty much where it had in 1529’

34 Exemption and/or exclusion of the madman or lunatic in thirteenth-century English law is based on the view that such individuals lack capacity (Bracton, 1968, vol 2, p 51). 35 Thus there is no mention of monsters in the fifteenth century legal writings of Sir Thomas Littleton (c1410–1481 and judge from 1466) (Wambaugh, 1903) and Sir John Fortescue (c1395–c1477 and Chief Justice of the King’s Bench from 1442) (Lockwood, 1997). 36 Ford, J, ‘The Decline in the Use of Latin for Will and Testament-making in Early SixteenthCentury Bedfordshire’ www.tyndale.org/Reformation/1/ford.html (date accessed: July 2009).

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(Helmholz, 1990, p 28).37 After 1570 ‘an indigenous literature of English ecclesiastical law’ began to emerge (Helmholz, 1990, p 28). Swinburne’s text has been described as ‘the most practically useful book of this period’ (Holdsworth, 1924, p 14). Nevertheless, and while he cited the common law writers, Bracton, Littleton and Dyer as sources (Swinburne, 1978, p 168), Swinburne relied overwhelming on continental writers of the late medieval and early modern period as authority. However, while Swinburne does not form part of the common law tradition, and while Bracton’s Laws and Customs of England persisted in their applicability, it is only Swinburne’s text that constitutes a new English legal text appearing in the sixteenth century that deals with monsters. Accordingly, it provides us with a glimpse of English legal anxiety apparent within this important period of religious and political struggle. Moreover, the legal sources that Swinburne places particular emphasis on regarding monsters are primarily early to mid-sixteenth-century continental writers (1978, pp 168–169).38 This fact, perhaps, serves to reinforce the suggestion that Swinburne’s text can be read in terms of the anxieties of the period rather than, or as well as, in terms of a different legal tradition. Let us now consider Swinburne’s monster text. According to Swinburne: where a wife do bring forth a monster, or misshapen creature, having peradventure a head like unto a dogs head, or to the head of an ass, or of a raven, or duck, or of some other beast, or bird: such monstrous creature, though it should live (as commonly none do) yet it is not accounted amongst the testators children, for the law doth not presume that creature to have the soul of a man, which hath a form and shape so strange and different from the shape of a man (1978, p 168). He continues: [b]ut if the creature brought forth, do not vary in shape from a man or woman, but have somewhat more than God by the ordinary course of nature alloweth, as having six fingers on either hand, or one foot: such creature is not excluded, but is to be accounted for the testator’s child (1978, pp 168–169). Interestingly, Swinburne then poses the question: ‘[w]hat if there be duplication of notable members, as to have four arms, or two heads, or disorder in the principal members, as the face standing backwards, or in the breast?’ (1978,

37 See also Kitching (1976, p 213). 38 Thus Swinburne cites Andrea Alciati (1492–1550), Johannes Sichardt (1449–1552) and Johannes Oldendorpius (1480–1567).

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p 169).39 While he acknowledges that ‘writers seem to incline to th[e] opinion that they be monsters’ (p 169), Swinburne answers: ‘[i]n this case I suppose much is to be attributed to the discretion of the judge’ (p 169). A number of comments can be made about these passages. First, the broad distinction between deformity and monstrosity, introduced into English law by Bracton, is retained. Second, a view of monster status as crystallising at birth is again apparent. Third, the view of Britton, that a child with three hands or three feet is per se a monster and Bracton’s view that multiple-headed creatures are monsters is less clear-cut. Rather, a series of examples, exceeding the instance of digits on one hand, and which include conjoined twins are presented as ambiguous. However, this seemingly more permissive stance toward embodied difference can be contrasted with Swinburne’s colourful description of monsters. Thus in contrast to the more matter-of-fact monsters of Bracton and Britton, where monstrosity is understood in terms of an excessive body, albeit that bestiality is perhaps understood to be the cause, Swinburne foregrounds the visibility of human/animal hybridity as emblematic of monstrosity. For Swinburne, monstrosity is not confined to the excessiveness or disorder of bodies. Rather, it encompasses, and crucially so, creatures that resemble both animals and humans. That is, not merely creatures which are imagined to be the product of inter-species copulation, but creatures who bear the authorial mark or imprint of two different species.40 Moreover, and in this contrast, it would seem that Swinburne introduces a monster hierarchy. After all, his text makes clear, that human/animal hybrids, Swinburne’s dog, raven and duck-headed creatures, are unquestionably monsters. Conversely, the excessive or disordered body is not necessarily considered a monster. That is, as he notes, a question for judicial discretion. Thus in contrast to Foucault, who identifies conjoined twins as the privileged monster of the Renaissance, Swinburne’s text suggests that it was the bestial human who lay at the heart of late sixteenth-century English legal concern. Moreover, and again in opposition to Foucault, Swinburne’s text serves to problematise a view of a linear history in which the notion of the monster as absolute difference from humanness takes on an increasingly relative character. For Swinburne’s text moves toward rather than away from human/animal hybridity and therefore toward more absolute forms of difference. Conversely, conjoined twins are, at least potentially, located outside the legal category monster. In this latter

39 The reference to creatures with their ‘face in their breast’ in Swinburne’s text might be viewed as informed by the ancient legend of the Blemmyai (see Higgs Strickland, 2000). 40 It should be noted that Swinburne does allow for the possibility that monsters whose bodies are merely disordered or not properly arranged might be considered the product of two human parents. However, in relation to the creatures that lie at the centre of his text, namely, humanbodied/animal-headed hybrids, he refuses to countenance this possibility. In relation to these particular monsters bestiality as cause appears to be the only conclusion.

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respect, the contemporary view of law’s past as a legal Dark Age, is again in need of qualification. An understanding of the bestial human as lying at the heart of late sixteenthcentury English legal concern finds support in the fact that bestiality, a species of sodomy, was made a capital offence in 1534,41 a measure renewed on four separate occasions during the reign of Henry VIII42 and revived and confirmed by Elizabeth I.43 That is, it has been suggested that the legislation was occasioned by fear of human/animal hybrid births and therefore ‘pollution of the species’ (Thomas, 1983, p 135). However, in view of the fact that prosecutions for bestiality in England were rare during the Renaissance period (Boehrer, 1994, pp 148–150),44 Boehrer has contended that ‘the rhetoric of bestiality’ (1994, p 148) was more important than the transgression itself. As he puts it, the crime was really one against ‘a kind of abstract linguistic principle’ (1994, p 148). It expressed a concern that a distinction between species be maintained whilst simultaneously revealing the fragility of that very distinction. In this respect, both the bestiality legislation and Swinburne’s representation of human/animal monsters might be understood in the context of a history in which the relationship between man and animal underwent transformation. While it has been argued that ‘the paradigm of separation of species was breaking down’ as early as the late Middle Ages (Salisbury, 1994, p 2), this development had become considerably more pronounced by the sixteenth century. For there was, as Thomas notes, ‘a growing tendency in the early-modern period for scientists and intellectuals to break down the rigid boundaries between animals and man which earlier theorists had tried to raise’ (1983, p 122). In addition to the impact of ‘humanism, the Reformation and a new philosophy and science’ growing uncertainty about man’s uniqueness was exacerbated by the discovery of ‘savages’ which ‘tended to blur any sharply defined borderlines between man and animal and tended to unroot all consoling notions of a harmonious and well-ordered nature’ (Pfister, 1992, p 21). Accordingly, the criminalisation of bestiality might be viewed as reflecting ‘a change in the perception of the boundary which existed between humans and animals’ (Fudge, 2000a, p 23). It might also be viewed as an attempt to suture the cut rendered in the cultural fabric by a narrowing of the gap between species. By the

41 25 Hen. VIII. c. 6. It should be noted that the practice of sodomy, including ‘with beast’, had been made punishable by death in the late Middle Ages. Sir Edward Coke cites both Britton and Fleta in this regard (Coke, 1628–1644 (1979, vol 3, p 58)). The last reference to a law against sodomy, prior to Henry VIII, occurred in 1376. In that year the parliament unsuccessfully petitioned Edward III to banish foreign artisans accused of having brought sodomy to England’s shores. Since that time common law pertaining to sodomy may have fallen into disuse. In any event, 1534 marks an important moment in the subjection of sodomy to state sanction. 42 This legislation was renewed in 1536, 1540, 1548 and 1553. 43 5 Eliz. I. c. 17. The death penalty for the offence remained in force until 1861. 44 See also Baker (2003, p 563).

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same token, Swinburne’s human/animal hybrids might be viewed in the context of this altered perception and as a projection of the anxiety that it aroused. However, while human/animal hybridity is central to an understanding of the horror Swinburne’s dog, ass and raven-headed creatures evoked as well as the place assigned to them within his taxonomy of monsters, it is not simply the fact of hybridity that signals alarm or upon which Swinburne dwells. Rather, and crucially, he locates the difficulty and visible sign of monstrosity in the head. This is significant in a number of respects. First, in Christian theological terms the head is considered to house the soul45 and, of course, Swinburne portrays animal-headed creatures as monsters precisely because they are considered to lack a soul. There is no reference to the soul in the thirteenth-century legal writings on monsters by Bracton and Britton. Neither does their work delineate monsters on the basis of having animal heads or indeed on the basis of a head/ body distinction.46 An emphasis on the head might also be due to its being viewed as the seat of reason (Williams, 1996, p 127). It is perhaps, precisely this view that accounts for the theological location of the soul in the head (Wolfe, 2005, p 189). Certainly, both Augustine and Aquinas appear to have subscribed to the Stoic theory that animals have ‘no rational soul’ and therefore ‘do not belong to the legally protected community, because they lack reason’ (Sorabji, 1993, p 196). In understanding Swinburne’s text it should be appreciated that the head was a powerful metaphor for society and its hierarchical ordering in the early modern period. As Shildrick notes ‘the human body in all its forms represented . . . an index and analogy of the political state’ (2002, p 20; see also Archambault, 1967). It was, quite literally, ‘freighted with symbolic meaning’ (Shildrick, 2002, p 20). According to Scarry (1985, p 245), and as noted by Pender (1996, p 90), the monstrous body was seen as a ‘condensed approximation’ of the body politic. In this respect, creatures with animal heads might be understood as evidence of disorder and the inversion of the natural order of things. Equally, and for this reason, they might be comprehended in terms of signs of impending calamity. Certainly, it has been noted that non-legal Renaissance literature on monsters dwelt especially on their role as divine portents (Huet, 1993, p 6), albeit that this development ran counter to a longer historical trajectory from the time of Augustine.

45 See Alphonzo Carranza, Tractatus Novus et Accurtissimus de Partu Naturali et Legitimo, ubi Controversiae Iuridicae, Philologicae, Medicae Discutiuntur ad Fori Usum et Praxim (1629) referred to by Schrage (1995, p 487). 46 However, in a different context, Bracton does refer to the wolf’s head in order to symbolise occupying a position outside the law. Thus he states: ‘An outlaw also forfeits everything connected with the peace, for from the time he is outlawed he bears the wolf’s head, so that he may be slain by anyone with impunity, especially if he resists or takes flight so that his arrest is difficult’ (Bracton, 1968, vol 2, p 362). This notion of the outlaw as bearing the wolf’s head precedes Bracton. Thus it is evident in the laws of Edward the Confessor (Agamben, 1988, pp 104–105).

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Crucially, in order to understand Swinburne’s preoccupation with the soul and with animal heads, and the teleological concerns that perhaps they both imply, it is necessary to place his text within the context of the prevailing relationship between the body and social order. That is to say, Swinburne’s text needs to be situated within the political and theological context of the English Reformation and Counter-Reformation. During the period of the Reformation, both in England and in Europe, literature on monsters proliferated and was deployed by both sides of the religious struggle and for the purposes of that struggle (Shildrick, 2002, p 12). The contention that Swinburne’s text is to be understood in this way finds support in the animal symbolism of the creatures he identifies. That is, his dog, ass and raven-headed creatures lend themselves to a set of contemporaneous meanings that revolve around religious themes. Thus in both the medieval and early modern periods the dog was associated with the devil and the ass with the Jew (Rowland, 1974, pp 26, 60).47 Indeed, the persistence of anti-Semitic animal symbolism in the Elizabethan period is evident in Edward Topsell’s comment that Jews ‘like asses could not understand the evident truth of Christ in the plaine text of Scripture’ (Rowland, 1974, p 26; see Topsell, 1658). Swinburne’s own anti-Semitism is rendered explicit in his commentary on apostacy. While noting that those committing apostacy, and indeed heresy, are incapable of making a valid will and testament, he describes Jews as ‘infidels’ and their rites as ‘detestable’ (Swinburne, 1978, pp 96–97). Equally, the figure of the raven pointed to (religious) war, death and the afterlife. As noted by Fleming, in Western Europe, ‘ravens appear almost exclusively as signatory animals for deities’ (Fleming, 1998, p 8),48 that is, as portents. Accordingly, Swinburne’s human-bodied/animal-headed monsters might be read as both prophetic and allegorical in much the same way as Luther’s Popish Monsters from which they may well have taken their cue. In 1523 Martin Luther and Philip Melancthon published a pamphlet titled Of Wonderful Popish Monsters. The pamphlet, which was translated into English in 1579, only 11 years before the publication of Swinburne’s text, characterizes two religious figures of the Catholic Church as monsters. The figures of the Pope-Ass (a depiction of a Pope with the head of an ass, a creature supposedly left on the banks of the River Tiber in 1496) and the Monk-Calf (a depiction of a monk with the head of a Calf supposedly born in Freiburg in 1522) (Davidson, 1991, p 37) are perhaps, best comprehended, as Graham has suggested, as ‘prodigious allegories of the corruption of the Church of Rome’ (2000, p 48). For the propagandists of the Reformation the Pope was the ‘follower of Antichrist’

47 The reference to dog-headed creatures in Swinburne’s text might also be understood as an allusion to legends of the ancient world concerning dog-headed monsters (Cynocephali). These were believed to exist at the frontier of the then known world and, in particular, India and Ethiopia (see Douglas, 1992, chapter 6). Interestingly, Saint Christopher is, in several versions of the legend of his life, portrayed as a dog-head (see Lionarons, 2002; Fraser, 1913). 48 See also George and Yapp (1991, p 170).

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and ‘servant of the terrible king of Spain’ (Bray, 1982, p 19). Moreover, and in a move that linked religious deviation with sexual deviation, the practice of sodomy was projected onto the papacy. As Bray has noted, and as an indication of its moral fall, the papacy was portrayed as ‘nothing but a cistern full of sodomy’ (1982, p 19). Thus and as Davidson remarks: ‘just as it is awful that a human body should have the head of an ass so it is horrible that the Bishop of Rome should be head of the Church’ (1991, p 37). By the same token, humanbodied/animal-headed creatures were seen as ‘signs of God’s wrath against the Church, which prophesied its immediate ruin’ (Davidson, 1991, p 37). In other words, and bearing in mind that Swinburne advanced the interests of the English Reformation, writing texts on English canon law after the break with Rome (Derrett, 1973, p 3),49 his legal text can be understood in the context of the coincidence of a number of historical factors. In contrast to the Bractonian monster, Swinburne’s construction places particular emphasis upon human/animal hybridity, the head/body distinction and expresses teleological concerns. Moreover, in terms of animal symbolism, his choice of creatures serves, perhaps, to foreground a number of religious concerns. These differences are perhaps to be accounted for by a series of factors that both fuelled and were fuelled by the Reformation and Counter-Reformation: a growing perception that the gap between human and animal had become increasingly blurred, a resurgence of an understanding of monsters as divine portents, a greater theological preoccupation with the soul and a consolidation of a view of the body as metaphor for the body politic. In this last respect, the English Reformation had served to foreground and entrench the metaphoric relationship between the king’s body and England as a social and political body. As noted by Elton, the preamble to the Act in Restraint of Appeals 1533 amounted to ‘a fully-fledged theory of the state’ (1974, p 134)50 declaring ‘this realm of England . . . [to be] governed by one Supreme Head and King’ (Elton, 1974, p 134). In this context, the metaphorical power of a human-bodied/animal-headed monster might be viewed as expressing, as well as exacerbating, anxieties of the period. The figure of the monster next appeared in English law in the legal writings of John Cowell and the distinguished common law jurist, Sir Edward Coke, both of whom cite Bracton (Cowell, 1605 (1978), p 16; Coke, 1628–1644 (1979, vol 1, p 7b)). In the first part of his Institutes of the Laws of England, written in the early seventeenth century, Coke states: [a] monster, which hath not the shape of mankind, cannot be heire or inherit any land, albeit it be brought forth within marriage . . . but

49 Indeed, the title page of Swinburne’s 1590 text on Testaments and Wills emphasised that his text was a compilation ‘of such lawes Ecclesiastical and Civile as be not repugnant to the lawes customes and statutes of this Realme nor derogatory to the Praerogative Royall’. 50 See also Elton (1962).

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although he hath deformity in any part of his body, yet if he hath human shape he may be heire (1979, vol 1, p 7b). While this passage offers little assistance as to where the line between deformity and monstrosity is to be drawn, John Cowell, writing in 1605, articulates more clearly a Bractonian undertanding. That is, while ‘those who are brought forth contrary to the form of mankind . . . as monsters and prodigies in nature’ are neither legitimate or reputed children, ‘those which are irregular only in members, as having six fingers, or four, or only one, shall not for that be esteemed illegitimate’ (Cowell, 1978, p 16). Nevertheless, the line between human and monster remains far from clear in these early seventeenth-century legal texts. Moreover, while conjoined twins, Foucault’s privileged monster of the Renaissance period, might be viewed as falling on the monstrosity side of the deformity/monstrosity dyad, this is not rendered explicit. While there is some legal evidence to support such a view,51 conjoined twins are certainly not accorded a special place within seventeenth-century English legal constructions of the category monster. Further, while both recite the deformity/monstrosity dyad, neither Coke nor Cowell expresses concern regarding the teleology of monsters. And yet, like Swinburne, Coke and Cowell wrote at a time when the Reformation and Counter-Reformation were within living memory. Was it the case then that their relatively constrained language was influenced by the trend in the seventeenth century toward the naturalisation of monsters? Perhaps. However, as Pender has argued, ‘despite scientific advances, the notion of monsters was not emptied of political and theological resonance’ (1996, p 147). In any event, there is evidence that theological concerns informed Coke’s writings. Thus immediately after his statement about monsters, he articulates a Bractonian understanding of hermaphrodites whom he considered to be ‘both male and female’ and as heirs ‘either as male or female, according to that kind of sex which doth prevail’ (Coke, 1979, vol 1, p 8a). However, in contrast to Bracton’s text, Coke adds ‘[a]nd accordingly [they] ought to be baptised’ (1979, vol 1, p 8a).52 Here it is apparent, not only that hermaphrodites fall on the deformity

51 See Herring v Walround [1682] 2 Chan. Cas. 110 where the defendant was convicted for showing the live, and later dead and embalmed, bodies of conjoined twins for money. The birth of the two female children, named Aqulia and Priscilla, was described by the judge as ‘Monstrous, for they had two Heads, four Arms, four Legs, and but one Belly where their two Bodies were conjoined’. The case is referred to by Charles Viner as the sole entry under the heading ‘Monsters’ (A General Abridgment of Law and Equity Alphabetically digested under Proper Titles with Notes and References to the Whole, 1742). Eighteenth Century Collections Online, Gale Group. http://galenet.galegroup.com/index.html (date accessed: July 2009). 52 The view that monsters should not be baptized was articulated in the early seventeenth century by the famous canonist, Alphonzo Carranza (see Block Friedman, 1981, pp 182–183). Moreover, it is a view that finds support within both Catholic and Protestant Christian theology (see respectively Reany, 1932, p 196; Mascall, 1956, p 283).

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side of the deformity/monstrosity dyad, but that this fact is inextricably tied up with the possession of a soul. Nevertheless, while a concern over the soul may have animated Coke’s writings, he otherwise remains silent regarding any relationship between the monster and teleology. Rather, his Institutes throw light only on the phenomenon’s etiology. In particular, in Chapter Ten of the Third Part of the Institutes, which deals with ‘Of Buggery, or Sodomy’ (Coke, 1979, vol 3, pp 58–59),53 Coke includes a subsection on buggery ‘by woman’ which he notes to be ‘within the purview of’ (1979, p 59) a 1533 Act of Henry VIII.54 While this might seem odd to modern readers, it is clear that in sixteenth- and seventeenth-century England the terms buggery and sodomy signified a wide variety of sexual practices, which were not confined to anal intercourse or to exclusively male congress.55 Thus Coke includes within the term buggery intercourse between a woman and a beast. More importantly, for present purposes, he imagines such acts to occasion monstrous progeny. That is, he notes, ‘that somewhat before the making of the [1533] Act, a great Lady had committed buggery with a Baboon, and conceived by it’ (Coke, 1979, vol 3, p 59).56 Here monstrosity is tied explicitly to the practice of bestiality. However, in contrast to Swinburne, and consistent with Bracton, Coke does not articulate a monster whose corporeal surface expresses human/animal hybridity. Nor does he distinguish between human/animal hybridity and bodily excess or disorder in classifying monsters. While his reference to bestiality implies that the human/animal distinction is important to his understanding of what causes monsters, Coke’s concern does not appear to move beyond the etiological and, like Swinburne’s, encompass the horrifying visible embodiment or spectacle of human/animal hybridity. In this sense Coke’s writings are closer to Bracton’s in that, they seem, like Bracton’s, to have as their object creatures that actually exist in the real world. It is important to emphasise that, like their thirteenth-century predecessors, legal jurists of the Renaissance period, looked to the body as the ultimate sign

53 54 55 56

For an extended discussion of this part of Coke’s Institutes see Moran (1996, chapter 4). 1533–1534, 25 Hen. VIII. c. 8. For a detailed discussion of this point see Bray (1982, chapter 1). I would like to thank Professor Leslie Moran for drawing this portion of Coke’s text to my attention. It should be noted that the view that acts of bestiality might produce monsters was common within the early-modern period (see Oaks, 1978, p 277; Thomas, 1983, Chapin, 1983, pp 127–128; p 135; Canup, 1988, p 123; and Fudge, 2000b, p 136). Indeed, John Locke expressed the view that women were known to have conceived by apes, ‘if history lye not’ (Winkler, 1996, pp 199–200). Further, while prosecutions and executions for bestiality were rare during the period (see Boehrer, 1994) they did occur including after Coke’s time. Thus in 1677 a woman was executed for having ‘prostituted herself to a dog’ (Punishment Summary from Old Bailey Proceedings 11 July 1677, 1–7 (Ref: s16770711-1) www.oldbaileyonline.org (date accessed: July 2009)).

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through which to determine human/monster status. Erica Fudge has pointed to two factors in attempting to explain Coke’s somatic bias (2000b, chapter 5). First, she contends that Coke’s preference for the body can be understood in relation to his jurisprudential approach (Fudge, 2000b, pp 118–120). Thus, and as is well known, Coke articulated an understanding of the law as ‘artificial reason’ (Coke, 1611 (1777)). For Coke, artificial reason was external to the individual and necessary for justice to exist. In this way he placed the law above the claims of kings. The law was to be discovered by long study and experience (Pocock, 1957, p 35; Underwood Lewis, 1968, pp 334–338) and once discovered could be appreciated as ‘scientific and constant truth’ (Fudge, 2000b, p 119). Thus Coke drew attention to the incapacity of the human mind and the dangers of relying upon natural reason. For Coke, it was ‘necessary that memorable things should be committed to writing . . . and not wholly be taken to slipperie memory which seldome yeeldeth a certaine reckoning’ (1777, Part 7, sig. A5v). For Fudge, Coke’s emphasis on the fragility of the human mind finds a parallel in his emphasis on the body for the purposes of determining human status (2000b, p 119). As she puts it: ‘[i]f the law itself exists outside of the mind because the mind is so naturally incapable of making judgement then the status of the human must also be sought outside of the mind, in the body’ (Fudge, 2000b, p 119). In other words, Coke’s privileging of the human body over the human mind is paralleled and preceded by his privileging of the body of the law over the innate workings of the human mind. While Coke’s jurisprudential method may help to explain his refusal to ‘look beneath the skin’ (Fudge, 2000b, p 116), it is, in my view, overstated to accord too much weight to this factor. After all, Coke’s construction of the legal category monster has much in common with that of Bracton whom he cites. Moreover, the privileging of the body over the mind proves to be a consistent and central theme within English legal constructions of human/monster status whereas the concept of artificial reason is peculiar to Coke and his time. However, Fudge also draws attention to another factor in seeking to explain Coke’s preference for the body. She contends that it is to be explained through reference to the significance of laws dealing with the possession and status of animals (2000b, p 117). Her argument takes the following form: ownership of an animal requires knowledge of the animal; knowledge leads to recognition of the individuality and mental capacity of the animal and therefore a ‘dangerous closeness’ (2000b, p 137); this in turn leads to a narrowing of the gap between animal (owned) and human (owner) (2000b, p 117). Accordingly, within this frame, a focus on the mind proves incapable of reproducing ‘human difference and superiority’ (Fudge, 2000b, p 117). The general point here that the mind cannot be relied upon to determine human status on account of the closure of distance between human and animal in the seventeenth century is well made (Thomas, 1983, p 120). However, in my view, it would be going too far to single Coke out for such an analysis. Indeed, Coke appears to be situated chronologically between two legal jurists, Swinburne and Blackstone, whose

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monsters more graphically capture this concern. Moreover, it is in the context of the Enlightenment that this concern receives, perhaps, its clearest expression.

4.4 The Enlightenment: the final throes The next English legal text referring to the legal category monster, and the last unique rendition of the category, is to be found in the mid-eighteenth-century common law writings of William Blackstone.57 According to Foucault, the privileged monster of this period was the hermaphrodite. Yet, in Blackstone’s Commentaries on the Laws of England the figure of the hermaphrodite is completely absent.58 In relation to monsters Blackstone declared: [a] monster, which hath not the shape of mankind, but in any part evidently bears the resemblance of the brute creation, hath no inheritable blood, and cannot be heir to any land, albeit it be brought forth in marriage: but although it hath deformity in any part of its body, yet if it hath human shape, it may be heir (1979, vol 2, pp 246–247. Author’s emphasis). It is worth noting a number of features of his text on monsters. While it seems clear, as Williams notes, that Blackstone held the view that ‘a monster is the product of animal paternity’ (1972, p 21), it would otherwise appear that the Blackstonian monster is less than an act of fidelity to his noted sources, namely Bracton and Coke (Blackstone 1765–1769 (1979, vol. 2, p 247)). In contrast to Bracton and Coke, Blackstone limits the legal category monster to those creatures that ‘bear the resemblance of the brute creation’. It is this element of animal resemblance that is absent in the legal monsters of both Bracton and Coke. The element is clearly present in Swinburne. Indeed, he locates humanbodied/animal-headed creatures at the apex of his monster hierarchy. Yet, Swinburne does not confine an understanding of monstrosity to human/animal hybridity. In Blackstone, we witness for the first time a focus on the human/animal hybrid as the exclusive locus of legal monstrosity and therefore a shift in legal understanding whereby the monster is comprehended as a more absolute form

57 Indeed, after Coke, with the exception of Charles Viner (above note 51), there appears to be no reference to monsters in English legal texts prior to Blackstone. Thus, for example, the category monster does not appear in the works of Noy (1757), Seldon (1683, 1980), Warr (1649), Hale (1971), North (1824), Brydall (1978) and Wood (1979). 58 This absence is, perhaps, to be understood in terms of the claim that ‘sex as we know it was invented’ in the eighteenth century (Laqueur, 1990, p 149). That is, the erasure of hermaphroditism as a legal category, one distinct from male and female, is tied to the emergence of the two-sex medical model. According to this model for understanding bodies, all bodies fell into the categories male and female and in cases of uncertainty the task of medicine was to determine the correct sex within a binary division (Laqueur, 1990, pp 154–163).

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of difference from humanness. In this respect, Blackstone’s text represents a challenge not only to Foucault’s chronology of monsters, but, and perhaps more importantly, to what is implicit within Foucault’s account, namely, a linear history in which the notion of the monster as absolute difference takes on an increasingly relative character. Moreover, in Blackstone, legal monstrosity proves to be an effect of any degree of hybridity. This is clear from his insistence that resemblance of the brute creation ‘in any part’ is sufficient to draw a conclusion of monstrosity. This can be contrasted with Swinburne’s preoccupation with the status of the head. Indeed, the irrelevance of the head in Blackstone’s representation of monsters is especially curious given the period of the Enlightenment in which he wrote and an understanding of the head as the seat of reason. It is not clear how to account for the specificity of Blackstone’s monster. It may be that Blackstone’s monster, which ‘in any part . . . bears the resemblance of the brute creation’, is to be understood in the context of anxiety occasioned by a perception that the gap between human and animal was narrowing. For this concern, apparent in the Renaissance period, and perhaps earlier (Salisbury, 1994, p 2) as already noted, gained in strength in the seventeenth and eighteenth centuries (Thomas, 1983, pp 121–136). By the time of Blackstone’s Commentaries Locke’s view that animals possessed sensibility, imagination and memory had been supplemented with Hume’s view that animals possessed the power of ‘experimental reasoning’ (Thomas, 1983, p 125). Indeed, from the middle of the eighteenth century the human/animal distinction gradually yielded to a ‘new system of imperceptibly nuanced intermediate states’ (Pfister, 1992, p 29), a view developed by Darwin in the nineteenth century (1871, chapters 3–4). In another regard, it may be that within Blackstone’s legal imaginary the visible human/animal hybridity of the monster was informed by the Gothic literature with which it coincides (see, for example, Mishra, 1994; Punter, 1998; Punter, 2000; Clery and Miles, 2000), a literary genre that, as Foucault notes, served to foreground the notion of moral monstrosity (Foucault, 2003, p 75; see also Steintrager, 1997). It has been suggested that the common law as a body might be viewed as Gothic given that it ‘appears as the archaic and the dark, a vestigial shadow that haunts the legal and social order of the Enlightenment and of modernity characterized by rationalism and neo-classicism’ and that it ‘threatens to destroy or delay the new bureaucratic order of modernity that demands rational institutional hierarchy, deductive reason and exhaustive expression according to the logic of codification’ (Moran, 2001, pp 77–87). This is, perhaps, especially apparent in Blackstone’s Commentaries. For, as Boorstin notes, Blackstone was a social conservative who saw the law as a ‘bulwark of existing society’ (1973, p 25). By contrast, the scientific tendencies of his age ‘pointed the way toward dangerous inquiry’ (Boorstin, 1973, p 25). Rather than a scientific approach to law, Blackstone favoured law’s mystery. He preferred a veil ‘to protect ultimate values from the devouring gaze of reason’

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(Boorstin, 1973, p 25). To this end, and in contrast to Coke, he emphasised the authority of a rule over ‘its justice, moderation or expediency, for these latter concerns might imply a right of dissent’ (Boorstin, 1973, p 26). His focus on precedent and the test of time is perhaps to be understood in the context of his reading of the history of the common law as one of inevitable progress. For Blackstone adopted the view, that ‘through all legal history there ran a mysterious purpose which was of its own force improving institutions’ (Boorstin, 1973, p 74). Therefore ‘the student of the law should not meddle with institutions lest by his meddling he somehow disturb the beneficent processes of an all-wise Providence’ (Boorstin, 1973, p 83). This privileging of faith over reason in the workings of law appears to have been informed by a Gothic aesthetic. During the period in which Blackstone wrote there was, as Boorstin notes, ‘a great vogue for the concept of the sublime’ (1973, pp 99–100), a concept equated with complexity, disorder and obscurity. The concept of the sublime was contrasted with beauty, an eighteenthcentury reference to simplicity, order and clarity (Burke, 1998).59 In Blackstone’s Commentaries these two ideas come together and find expression in the common law. For the law was both beauty and sublime. It was order and disorder, clarity and mystery, common, yet awe-inspiring. Blackstone’s use of the concept of the sublime, and his characterisation of law as possessing sublime qualities, is both deliberate and significant for ‘it is one thing to make an idea clear, and another to make it affecting to the imagination’ (Blair cited in Boorstin, 1973, p 103). Ultimately, for Blackstone, the common law is not about science or logic but experience and is constitutive of ‘affective life’ (Morrison, 2001, p xciv). To this end, Blackstone employed the Gothic ‘to describe the kind of aesthetic experience which had the “sublime” elements of disorder and grandeur’ (Boorstin, 1973, p 104). Thus he described the common law as resembling: an old Gothic Castle, erected in the days of Chivalry, but fitted up for a modern inhabitant. The moated ramparts, the embattled towers, and the trophied halls, are magnificent and venerable, but useless, and therefore neglected. The inferior apartments, now accommodated to daily use, are cheerful and commodious, though their approaches may be winding and difficult (Blackstone, 1979, vol 3, p 268). In this way, Blackstone deployed the aesthetic appeal of the common law in order to curtail dangerous inquiry (Boorstin, 1973, p 105). In this respect, Blackstone’s monster might be read as an allegory for the common law standing as it does in opposition to the dictates of the Enlightenment. That is, it is perhaps the fantastical and unreal quality of human/animal hybrids in eighteenth-century

59 See also Kames (2005) and Blair (2002). For an analysis of Burke’s ideas, see Neocleous (2005, pp 9–35).

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England, and therefore the inability of medical science and a rational order to gain access to, and thereby demystify them, that accounts for their monopolisation of the monster category within Blackstone’s Commentaries. In any event, what is most significant about the Blackstonian monster is that it represents a retreat within law from equating bodily excess or disorder with monstrosity. Rather, by the time of the mid-eighteenth century the legal category monster no longer designates the corporeal difference of actual live births. Instead, it refers only to an imaginary space uncoupled from reality. Of course, the legal category monster can be said to evoke an imaginary space in Bracton, Swinburne and Coke. The difference is that in their writings the legal imaginary continued to bear a relation to embodied difference. In contrast, the Blackstonian monster appears to float free from human experience. Accordingly, Canguilhem’s observation that while ‘initially a legal concept’ the monster ‘was progressively turned into a category of the imagination’ (1964, p 31) needs to be supplemented by a recognition that this process in which the imagination triumphed was internal to as well as taking place outside law. It is also significant that, on the eve of a transformation in ‘the economy of punitive power’ (Foucault, 2003, p 82), at the approximate moment when regimes of normalisation are inaugurated into being, law’s monsters appear, contra Foucault, to move toward, rather than away from, a notion of absolute difference from humanness. While Blackstone was the last legal jurist to articulate, and give new form to, the legal category monster, his version appears to have survived within the common law until at least the mid-nineteenth century. Thus, after Blackstone’s death, over 20 editions of his Commentaries were published in England (Morrison, 2001, pp cxiv–cxviii), each of which replicates his monster category. The most recent of these editions was published in 1876 (Kerr). Lest it be thought that these texts, at the time of their publication, were nothing more than historical documents, it should be appreciated that Blackstone’s Commentaries exerted an important influence on the subsequent development of English law. Moreover, subsequent editions of his Commentaries were not faithful reproductions. Rather, they note departures occasioned by changes in the law. The suggestion that inclusion of the monster category in subsequent editions spoke to its contemporary relevance finds particular support in Henry John Stephen’s mid-nineteenth century New Commentaries on the Laws of England (Stephen, 1848). In these Commentaries, which were partly founded on Blackstone, Stephen notes that his ‘deviations from the original work have . . . been frequent and extensive’ (1848, vol 1, p viii). Indeed, he notes: I had prescribed to myself the rule of departing from Blackstone wherever I felt dissatisfied with his performance as well as where any change in the law had made a departure indispensable, it is seldom that I have been able to pursue the text for several pages in succession, without the introduction

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(more or less extensively) of matter from my own pen (Stephen, 1848, vol 1, p viii. Author’s emphasis). Despite setting himself this task, and adopting this approach to interpretation of Blackstone’s Commentaries, Stephen faithfully reproduces the Blackstonian monster (1848, vol 1, p 411). It is significant that the legal category monster survives the rigour and scrutiny that Stephen exercises in relation to Blackstone’s text. It seems hard to avoid the conclusion that the figure of the monster continued to resonate within the English legal imaginary well into the nineteenth century.60

4.5 Conclusion This chapter has considered the lexicon of the English legal category monster from its point of entry in the mid-thirteenth century to its point of termination in the mid-nineteenth century. It has located law’s monsters within their appropriate social, political, religious and legal contexts. In the process it has mapped specific cultural anxieties premised on the traversal of boundaries: national, religious, sexual and human. The historical account and the evidence provided have also served to call into question a view of the legal past as necessarily less tolerant and/or irrational. On the contrary, a study of the legal category monster, if anything, points in the opposite direction. In the first place, English law not only consistently refused to countenance the idea that the hermaphrodite should be considered a monster. It also viewed the hermaphroditic body as being of indeterminate sex. This can be contrasted with the later eighteenth century medical view that there is no such thing as indeterminate sex (Laqueur, 1990, chapter 5), and with the contemporary medico-legal approach to intersex children that refuses third sex realities in favour of invasive surgery, and which insists on a binary division of sex in the face of transsexuality. In the same vein, the chapter contrasted the matter-of-fact emphasis on corporeal excess, characteristic of legal understandings of monsters in the latemedieval period, with the hysterical monster fantasies of later eras, including those of the Enlightenment. In another regard, the chapter has identified how 60 Indeed, it was not until 2000 that the monster category was formally declared to no longer be part of English law (Re A (Children) (Conjoined Twins: Surgical Separation) [2001] 4 All ER 961, pp 996, 1054). However, the category seems to have fallen into disuse in England prior to the twentieth century. However, an early twentieth-century Australian case reveals its persistence (Doodeward v Spence (1908) CLR 406–424). In this case, the High Court of Australia clearly viewed conjoined twins as a monster. In the words of Barton J: ‘it is an aberration of nature, having two heads. Can such a thing be, without shock to the mind, associated with the notion of the process that we know as Christian burial? Does it not almost seem indecent to associate that notion with such facts? Do not all these considerations lead us to doubt whether such a thing as a dead-born foetal monster, preserved in spirits as a curiosity during four decades, can now be regarded as a corpse awaiting burial’ (p 416).

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the gendered hierarchy of mind/body, evident within legal and philosophical discourse, is upset within this area of English law. At least at the site of legal constructions of monsters it would seem that it is the body, not the mind, which serves as the crucial foundation of human status, a fact that might prove fertile ground for theoretical scholarship, including feminist legal scholarship, focusing on embodied subjecthood. However, the privileging of the body presents its own difficulties. As we will see in chapters 5 and 6, it is precisely a medico-legal view of bodies as ‘wrong’ and ‘shared’, in the context of transsexuals and conjoined twins respectively, that has served to preclude the conferral of full human status. Finally, a history of the English legal category monster serves to call into question the significance of particular aspects of Foucault’s history of monsters and therefore an important part of his genealogy of the abnormal individual. Thus, in opposition to Foucault’s account, and as already noted, English law has never included the hermaphrodite within the monster category. Neither, contra Foucault, does English law accord the figures of the bestial human and conjoined twins a special status in the late Middle Ages and the Renaissance period respectively. Further, the resilience of law’s monsters after the time of Blackstone brings into question Foucault’s scripting of their death to the late eighteenth century (Foucault, 2003, pp 63, 72). However, perhaps the most striking disjunction between Foucault’s account and that provided by English legal history lies in the fact that the importance of the bestial human within English law increases rather than decreases over time, culminating in Blackstone’s reduction of law’s monsters to precisely this figure. Accordingly, England’s legal monsters appear to take on an increasingly fantastic quality over time. In this respect, Blackstone’s mid-eighteenth century legal text seems particularly significant in that it calls into question what is implicit in Foucault’s account, namely, the idea that the notion of the monster as absolute difference from humanness takes on an increasingly relative character. In other words, while Foucault’s monster history suggests a gradual lessening of the physical and psychological distance between human and monster, English law suggests the opposite conclusion. While Foucault’s account enables the positioning of the abnormal individual and regimes of normalisation within a frame of historical continuity, a history of the English legal category monster suggests a more complex relation between monsters and abnormal individuals in the present. What is most significant here is the fact that the legal history of the monster category overlaps with the emergence of the abnormal individual, and that this history is characterised by growing anxiety concerning the most profound of breaches of nature, one that culminates in human/animal hybridity. What an English legal history points to is the possibility that ideas of abnormality and ‘unnaturalness’ are more profoundly implicated in each other than Foucault’s analysis implies. In the following chapter, we will consider this relationship between abnormality and ‘unnaturalness’ in the contemporary context of transsexuals and the legal struggles they bring before law.

Part II

Contemporary monsters

Chapter 5

Changing sex The problem of transsexuality

It is time to assert that there is no ‘wrong body’ and that all bodies are alright, whatever their shape or genital status. It is the power of the norm, and of medicine and law, which take the cultural meanings made of biology as ultimate truth, that sustains our deviant status, body regulation and discrimination (Hooley, 1994, p 10).

5.1 Introduction This chapter will build on chapters 3 and 4 through considering the relationship between the legal category monster and contemporary practices of normalisation. It will do so in the specific context of transsexuality and the struggles transsexual people bring before law.1 The transsexual offers an example of Foucault’s figure of the abnormal individual. As we saw in chapter 3, the emergence of the abnormal individual is to be comprehended in terms of a shift from the body to the soul as an object of legal concern. In terms of Foucault’s lexicon of the monster, this can be understood in terms of a transformation in the concept of monstrosity. While formerly associated with the materiality of the body, this concept has, over time, been extended to cover the mind or psyche. It is important to emphasise that the concept of monstrosity has been expanded. It is not the case that the older meaning of the concept has been replaced by the modern. On the contrary, and as we will see in the following two chapters, the older meaning of the concept of monstrosity persists in the contexts of conjoined twins and human/animal admixed embryos respectively. The modern understanding of the concept of monstrosity finds its clearest

1

The term transsexuality is used in this chapter because this is the term used within medicine and especially law, and because it is the term generally used by litigants in decided cases. However, it should be noted that other terms exist outside the law. In particular, the term transgender is used increasingly as an umbrella term for a wide range of trans subjectivities or gender variant people (see, for example, Bornstein (1994); Bruce-Pratt (1995); Wilchins (1997); Califia (1997); Whittle and More (1999); and Girshick (2008)). In relation to the problematic nature of binary thinking around sex and gender, see also Epstein (1990).

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expression in Foucault’s abnormal individual. The figure of the transsexual has been selected as an exemplar of abnormality because the book seeks to replicate Foucault’s monsters archetypes, or at least the ‘problems’ that they represent conceptually. The particular problem that transsexuals pose for law lies in their challenge to the sex/gender order. In Foucault’s terms, transsexuals can be viewed as contemporary monsters because they represent a double breach, of law and nature. That is, they pose a challenge to the legal order in that they call into question the stability of a binary division of sex, while transsexual identity and/or desire, as well as the process of transitioning, can be constructed to involve a breach of nature. In terms of Foucault’s schema, challenge to the sex/ gender order is occasioned by the hermaphrodite, his ‘privileged monster’ of the Classical Age (2003, p 66). This chapter’s selection of the transsexual, in preference to intersex people, as its focus of analysis is informed by a number of factors. First, and as we saw in the previous chapter, the hermaphrodite was never considered a monster within English law, despite legal recognition of complexity at the level of sex. Second, albeit that contemporary intersex children might be viewed as monsters within Foucault’s theoretical terms, monster status is short lived due to surgical intervention to remove sex ‘ambiguity’ at a very early age (Fausto-Sterling, 2000, p 31). Today, it is the prefix ‘trans’ rather than ‘inter’ that provokes the greater anxiety in the context of medico-legal desire to maintain the gender order. Third, the selection of the transsexual is informed by the fact that the transsexual cannot fully be understood through a modern understanding of the concept of monstrosity. Rather, consideration of the transsexual enables us to focus on a legal ‘problem’ where both understandings of monstrosity are copresent. Thus, in addition to a view of transsexual monstrosity as residing in the psyche, the process of transitioning, and the surgical procedures often involved, serve to bring to the fore the relevance of the older meaning of the concept of monstrosity to an analysis of the transsexual/law relation. Of course, this may be true of other examples of abnormality. The claim here is that it is more dramatically so in relation to the transsexual. In this respect, a study of the medico-legal regulation of transsexuality offers to provide important insights concerning the monster concept in the present.

5.2 The emergence of a medico-legal ‘problem’ The legal regulation of transsexuality is a fairly recent development. It coincides with advances made in surgical techniques and consequent legal claims concerning sex status brought by transsexual litigants. In responding to such claims, law has sought to define sex or, more particularly, the categories of male and female.2

2

There is a growing literature examining the transsexual/law nexus. In relation to more traditional forms of legal scholarship, see, for example, Green (1970), van Niekerk (1970), Smith

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In doing so, it has constructed and reconstructed these foundational concepts of social organisation. Before considering the encounter between the transsexual and law, it is necessary to map the medical pre-history to this encounter. This is important because this pre-history informs and frames legal understandings of transsexual identity, embodiment and desire in the present, and therefore assists us to understand the relationship between law, transsexuality and the monster. The phenomenon of transsexuality is, perhaps, transhistorical (see Green, 1969; Karlen, 1971; Warnes and Hill, 1974, Bullough, 1975, 1976; Boswell, 1991; Steiner, 1981; Feinberg, 1996; Devor, 1997, chapter 1). That is to say, the feeling of being ‘trapped in the wrong body’ and the desire for bodily transformation is not new. The problematisation of these feelings and desires however, can be traced to their scientific mapping in the mid-nineteenth century. Initially, the now familiar transsexual narrative of being trapped in the wrong body was treated sympathetically and comprehended in terms of natural variation. Thus Ulrichs claimed to have discovered the existence of ‘a class of Urnings, a class of individuals who are born with the sexual drive of women and who have male bodies’ (Ulrichs, 1994, p 36). The Urning was ‘not a man, but rather a kind of feminine being when it concerns not only his entire organism, but also his sexual feelings of love, his entire natural temperament, and his talents’ (Ulrichs, 1994, p 36). This articulation of inversion, centred on disembodiment as it is, anticipates and gives life to the narrative of transsexuality that would later receive medical expression in the mid-twentieth century. However, despite the claims of Ulrichs, as well as later contentions by Hirschfeld and Ellis (Hirschfeld, 1910; Ellis, 1936a, 1936b), the notion of inversion was gradually supplanted by the notion of perversion within sexology. This shift commenced, perhaps, with Westphal (1869). It was consolidated by Krafft-Ebing (1965) and later by Freud (1962). By the turn of the twentieth century, the term inversion, and its location in gender identity, had been replaced with the notion of perversion and an emphasis on sexual deviance. Specifically, articulations that we might today describe as transsexual became coded as homosexual. This is because sexual object choice, initially only one feature of scientific inquiry and transsexual experience, became privileged within sexology and later psychoanalysis. In short, the complexity of the Urning or Invert was reduced to a single dimension of the experience, namely a desire for men. This medical conflation of transsexuality and homosexuality persisted into the 1950s and (1971), Walton (1974, 1984), David (1975), Lupton (1976), Finlay (1980, 1989, 1996), Graham (1980), Richardson (1983), Pace (1983), Samuels (1984), Hurley (1984), Dewar (1985), Wilson (1985), Taitz (1986, 1987, 1988, 1992), Kirby (1987), Bailey-Harris (1989), Otlowski (1990), Bates (1993), Johnson (1994) and Bourke (1994). In relation to more critical forms of legal scholarship, see, for example, Gould (1979), O’Donovan (1985), Muller (1994), Mountbatten (1994), Collier (1995), Franke (1995), Pearlman (1995), Sharpe (1996, 1997a, 1997b, 1998, 1999, 2000, 2002a, 2002b, 2007a, 2007b), Shafiqullah (1997), Storrow (1997), Holt (1997), Cain (1998), Coombes (1998), Whittle (1998, 1999, 2002) and Keller (1999).

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beyond (see, for example, Randall, 1959; Socarides, 1969, 1970; Ostrow, 1974; Meyer, 1974, 1982). The re-emergence of the discrete narrative of being trapped in the wrong body coincided with disillusionment with psychotherapy (Califia, 1997, pp 54–56) and advances made in endocrinology and sex reassignment surgical techniques. The term transsexual was coined to name this experience and to distinguish it from homosexuality and transvestism.3 However, the recuperation of this narrative of gender inversion unfolded in complex and often competing taxonomies within which these three categories became re-conflated, and in ways which would have significance for later engagements with law. Thus Benjamin (1953, 1964, 1966), the so-called ‘father of transsexualism’ (King, 1993, p 46), and later Stoller (1968, 1973, 1975), constructed the true transsexual along three axes: hatred of genitalia, early onset of gender identity and heterosexual desire. Each of these fragments of transsexual narrative was viewed as distinguishing transsexuality from homosexuality. According to Benjamin, the ‘true’ transsexual wants to be rid of her genitals, not to use them sexually. Second, she had established a core gender identity contrary to natal sex prior to adolescence and therefore prior to hormonal changes associated with developing sexuality. Third, her sexual desire post-adolescence was directed toward opposite gender persons.4 In 1973 Fisk introduced the term gender dysphoria to capture the diverse group of persons requesting sex reassignment surgery and to suggest that the primary transsexual narrative constructed by Benjamin was but one manifestation of an underlying condition (Fisk, 1973). The language of gender dysphoria gave expression to a more liberal and pragmatic approach towards requests for sex reassignment surgery.5 It has been suggested that the gender dysphoria perspective, in contrast to the so-called ‘discovery story of transsexuality’, eschewed the search for ‘truth’, preferring instead to ascertain the sex in which it is best for a person to live (King, 1993, p 63). That is, it is claimed, contemporary medical practice focuses more on post-surgical wellbeing than on transsexual authenticity. However, while a medical preoccupation with the future (prognosis) may have replaced a fixation with the

3 4

5

The term was first coined by Dr David Caudwell (1949). The use of female pronouns here is deliberate. In the early days of transsexual medicine the transsexual phenomenon was understood entirely in terms of the male to female subject (Benjamin, 1953, p 12; see also Califia, 1997, p 60). However, the language of gender dysphoria serves to translate desire into need and disorder. In exchanging the term transsexualism for the phrase gender dysphoria we witness the loss of its connotation of ‘intermediate sex’ and the capacity for self-definition that inheres within ‘states of being’ (King, 1993, p 64). In its wake, identity gives way to ‘dis-ease’. Moreover, the language of gender dysphoria is simply inaccurate. If persons requesting sex reassignment surgery are to be described as dysphoric, then surely it is because of ‘body dysphoria’ or ‘body-part dysphoria’ rather than any confusion about gender (Cromwell 1999, p 135). Typically, it is certainty about gender that leads to requests for surgery.

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past (diagnosis), it would seem that medical understandings of best prognostic practice continue to be informed by the narrative structure of the classic transsexual. It is ‘the relaying of these privileged historical fragments of pleasure, identity and desire which medicine incites and “good” prognosis demands be recounted’ (Sharpe, 2002b, p 31).6 It is against this medical background that we will now consider legal treatment of sex claims in the present.

5.3 Determining legal sex and the spectre of the monster Broadly speaking, the sex claims of transsexual people have produced two legal approaches. The first approach has led courts to refuse to recognise transsexual sex claims. Here the judiciary has insisted that ‘sex is determined at birth’. This corpus of the law, one that articulates what might be described as a biological approach to transsexual sex claims, can, as will become clear, be understood through Foucault’s monster framework. The second approach has led to legal recognition of sex claims subject to particular medico-legal conditions. Ostensibly, this reform-based legal approach locates some transsexuals outside of Foucault’s framework. However, we will see that legal anxiety surrounds these reform moments in ways that call into question a clear delineation between transsexual and monster. Let us consider these two legal approaches.

5.4 A biological approach While there are earlier decisions articulating a biological approach to the legal determination of sex,7 the English decision of Corbett v Corbett remains the most well known and significant within this corpus.8 It was in this marriage case that Ormrod J decided that ‘sex is determined at birth’ and by reference to chromosomal, gonadal and genital congruence.9 This approach, and legal test, has persisted in England until quite recently,10 has influenced the jurisprudence

6 See also Prosser (1998, p 108). 7 See, for example, X, Petitioner [1957] Scot LT 61; Anonymous v Weiner as the Director of the Bureau of Records and Statistics of the Department of Health of the City of New York 270 NYS 2d 319 (1966). 8 Corbett v Corbett [1970] 2 All ER 33. 9 Id, p 48. 10 See, for example, E. A. White v British Sugar Corporation [1977] IRLR 121; R v Tan [1983] QB 1053; Peterson and Peterson (1985) The Times, 12 July; Rees v UK (1986) 9 EHRR 56; Franklin v Franklin (1990) The Scotsman, 9 November; Cossey v UK (1991) 13 EHRR 622; Collins v Wilkin Chapman [1994] EAT/945/93 (Transcript); X, Y and Z v UK (1997) 24 EHRR 143; S-T (formerly J) v J [1998] 1 All ER 431; Sheffield and Horsham v UK (1998) 27 EHRR 163; W v W (Physical Inter-sex) [2001] Fam 111; and Bellinger v Bellinger [2003] 2 AC 467. Since the enactment of the Gender Recognition Act 2004, the Corbett ruling no longer reflects English law. By virtue of this legislation, legal recognition does not depend on chromosomes, gonads and/or genitalia at the

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of other states and remains valid law in a number of jurisdictions.11 While other cases will be mentioned in discussing this approach, the chapter will focus on the Corbett decision. In deciding that sex is determined at birth, and by reference to particular biological factors, Ormrod J articulates a view whereby sex precedes gender, and therefore provides its apparent foundation. According to this view, sex is to be understood in terms of two unalterable essences, male and female. In this context, the transsexual is perceived as challenging a key legal and cultural distinction. It is precisely for this reason that the transsexual can be understood as representing a profound breach of law in Foucault’s sense. It is for this reason that April Ashley, the transsexual woman in the Corbett case, can be comprehended as monstrous. For the central point about monstrousness, as Foucault notes, is that it poses a challenge to legal certitude and taxonomy. However, monster status requires more than a breach of law. As made clear in chapter 2, it is also necessary to establish a breach of nature or the element of monstrosity. In the context of transsexuality, and as already noted, both understandings of the concept of monstrosity are at play. In the first instance, the transsexual is an example of Foucault’s abnormal individual. In this respect, monstrosity lies in interiority or psyche. In Foucault’s terms it is at the heart of transsexual identity and desire that the ‘core of monstrosity’ is to be located (Foucault, 2003, p 56). That is, the transsexual represents an example of nature gone awry. In this respect, the idea that the abnormal individual is a contemporary monster might be understood in relation to the element of natality. That is to say, like monsters of old, the abnormal individual is, perhaps, constructed as born not made. The transsexual can also be understood as a monstrosity in terms of the older meaning of the concept. This is possible because the transsexual brings the body and its transformation to the centre stage of legal analysis. In examining the Corbett decision the chapter will elaborate on the ways in which legal concern speaks to both these understandings of the concept of monstrosity. In doing so, it will become clear how law draws on medicine in constituting ‘truth’ about the transsexual. As an example of Foucault’s abnormal individual, the transsexual can be viewed as a monstrosity because of her desire for bodily transformation.

time of birth. Neither does it depend on the undertaking of reassignment surgery. Rather, the key requirement is a diagnosis of gender dysphoria. However, and as we will see, while the legislation dispenses with any requirement to undertake surgery at the level of legal form, the substance of the Act suggests something different. 11 See, for example, Re T [1975] 2 NZLR 449; W v W [1976] 2 SALR 308; K v Health Division of Human Resources 560 P 2d 1070 (1977); Anonymous v Irving Mellon as Director of Bureau of Vital Records, Department of Health of the City of New York 398 NYS 2d 99 (1977); Re Ladrach 32 Ohio Misc 2d 6 (1987); Lim Ying v Hiok Kian Ming Eric [1992] 1 SLR 184; Littleton v Prange 9 S.W. 3d 223 (1999); Re the Estate of Marshall G. Gardiner 22 P 3d 1086 (Kan. Ct App. 2001).

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This desire is understood within a legal frame to be both deep-rooted and perverse: it is perverse because it challenges the proper relation of bodies in gendered and sexual terms; deep-rooted because understood to lie at the core of being. This understanding has been reinforced through the medical pathologisation of transsexual desires. Indeed, the terms transsexual, and more particularly, gender dysphoria and gender identity disorder, locate a desire for bodily transformation within the realm of mental illness.12 Moreover, the monstrosity of the abnormal individual seeking surgical transformation may be exacerbated by medical knowledge that conceives of the transsexual in highly circumscribed terms. That is to say, the name transsexual, and the degree of medical legitimacy that accompanies it, may be denied particular litigants. This was certainly true of April Ashley in the Corbett case. When the Corbett case was decided, the dominant medical knowledge for understanding transsexuality was the so-called ‘discovery story of transsexuality’. According to this perspective, and as already noted, hatred of genitalia, early onset of gender identity and heterosexual desire serve to identify or diagnose the ‘true’ or ‘authentic’ transsexual. In the words of Stoller, surgery is deemed appropriate only for: those males who are the most feminine, have been expressing this femininity since earliest childhood, have not had periods of living accepted as masculine males, have not enjoyed their penises and have not advertised themselves as males (for example, by female impersonation) (1968, p 251). In various portions of Ormrod J’s judgment April Ashley is contrasted with this picture of the classic or ‘true’ transsexual. Thus it is made clear that she worked as a ‘female impersonator’ in Paris for a four-year period from 1956. While Ormrod J considered April Ashley’s outward appearance at first sight to be ‘convincingly feminine’,13 closer and longer examination in the witness box revealed her ‘voice, manner, gestures and attitudes (to be) increasingly reminiscent of the accomplished female impersonator’.14 Further, Ormrod J noted that April Ashley was asked in cross-examination ‘whether she had ever had an erection, and whether she had had ejaculations’.15 While she understandably refused to answer this question, its purpose seems to have been to establish homosexuality over transsexuality, as in the discovery story of transsexuality

12 Gender Identity Disorder is the current formal diagnosis for persons who experience significant gender dysphoria. The American Psychiatry Association define GID as ‘a strong and persistent cross-gender identification, which is a desire to be, or the insistence that one is, of the other sex’ accompanied by a ‘persistent discomfort about one’s assigned sex or a sense of inappropriateness in the gender role of that sex’ (APA, 1995, pp 532–538). 13 Corbett above, note 8, p 47. 14 Ibid. 15 Id, p 37.

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erotic pleasure in the penis does not exist in the ‘true’ transsexual (Stoller, 1973). Indeed, it was the use of homosexuality, primarily, which served to demonstrate April Ashley’s departure from the ‘truth’ of transsexuality. Thus in a doctor’s letter of 1953, a time prior to sex reassignment surgery, April Ashley was described as a ‘constitutional homosexual’.16 This view was shared by medical experts called at the hearing, who described her as a ‘male homosexual transsexualist’,17 the import of which was that she was a male homosexual who had undergone surgical reassignment. In other words, the judgment, in addition to denying April Ashley female status, casts doubt upon the ‘authenticity’ of her transsexuality. Turning to sex reassignment surgery itself, it is clear that the anxiety of the court is also informed by the transformation of the body. In this respect, the older meaning of the concept of monstrosity assumes significance. Legal anxiety, in this regard, is particularly apparent in Ormrod J’s conclusion that April Ashley was incapable of consummating a marriage. Yet, prior to her marriage, April Ashley had undergone full sex reassignment surgery so that at the time of the marriage she possessed female genitalia and the capacity for heterosexual intercourse. Indeed, according to medical evidence there was ‘no impediment on “her part” to sexual intercourse’ her vagina being ‘of ample size to admit a normal and erect penis’.18 In seeking to understand why Ormrod J should wish to invalidate April Ashley’s capacity for heterosexual intercourse for the purposes of marriage, one need only focus on his insistence that such a capacity must be natural in origin.19 In describing her vagina as an ‘artificial cavity’,20 Ormrod J considered its use for sexual intercourse impossible to describe as ‘ordinary and complete intercourse’ or as ‘vera copula of the natural sort of coitus’.21 It is the construction of April Ashley’s vagina as the locus of the ‘unnatural’, which is perhaps the most revealing aspect of Ormrod J’s judgment. It is clear that April Ashley’s surgically altered body constitutes a monstrosity in the eyes of the court. The theme and parameters of nature are developed further in Ormrod J’s judgment. In particular, and in consigning April Ashley’s body to the realm of the ‘unnatural’, Ormrod J had first to distinguish the English Court of Appeal’s decision in SY v SY.22 In SY v SY the court held that where a biologically female wife lacked a natural vagina but could be given an artificial one by surgical intervention then coitus by means of that artificial vagina

16 17 18 19 20 21 22

Id, p 36. Id, p 43. Id, p 41. Id, p 48. Id, p 49. Ibid. SY v SY (Orse W) [1962] 3 All ER 55.

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constituted complete intercourse, so as to consummate a marriage.23 Indeed, and importantly, Wilmer LJ went so far as to state: ‘[f ]or myself I find it difficult to see why the enlargement of a vestigial vagina should be regarded as producing something different in kind from a vagina artificially created from nothing. The operation involved in either case is substantially the same.’24 In a far from satisfactory manner, especially given that the medical evidence revealed that SY had ‘no, or virtually no vagina’, Ormrod J exhibited no reluctance in arriving at a conclusion of incapacity, distinguishing the facts of SY v SY from those of Corbett on the basis that SY’s vagina was abnormal rather than wholly absent. It would seem therefore, that Ormrod J comprehended the ‘naturalness’ of the vagina in terms of degree. This differentiation of forms of ‘unnaturalness’ for the purposes of assessing the possibility of consummation in law is revealing. That is to say, it is not the ‘unnatural’ state of genitalia per se that lies at the heart of legal concern. Rather, it is the fact that April Ashley is viewed as a male person from birth that leads to her vagina being viewed as an ‘impossible’ site of/for consummation. It is this fact that places her vagina beyond the limits of the ‘natural’ that the law can accommodate. In this regard, and for this reason, April Ashley falls on the monstrosity side of the deformity/monstrosity distinction explored in chapter 2. It is her characterisation as male that enables Ormrod J to distinguish April Ashley’s post-operative sexual practice from that of a biological woman who possessed ‘a vagina artificially created from nothing’. The key to understanding this difference lies in differential legal constructions of the relationship between sex reassignment surgery and the trope of nature. Thus in SY v SY, surgery is represented in terms of a process of ‘naturalisation’, as assisting nature in her unfinished business. Conversely, April Ashley’s vagina is viewed, in law, as the culmination of a process of ‘denaturalisation’. This distinction, and the legal anxiety that informs it, is again apparent in the more recent decision of W v W.25 This case involved legal recognition of the sex claims of a post-operative intersex woman for the purposes of marriage. Legal recognition was premised on the fact that chromosomes, gonads and genitalia were not congruent at birth. According to the medical evidence, which Charles J accepted, Mrs W had XY (male) chromosomes.26 In relation to the other two factors in Ormrod J’s triumvirate it proved ‘extremely difficult to be conclusive’27 given a lack of medical records and the fact of subsequent sex reassignment surgery. Nevertheless, on the basis of the medical evidence available it was concluded that Mrs W’s gonadal sex was likely to have been male and her 23 24 25 26 27

Id, p 60. Id, p 59. W v W above note 10. Id, p 118. Ibid.

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genitalia ambiguous at birth.28 In other words, it was the genital factor that placed the facts of W v W and the body of Mrs W beyond Ormrod J’s test. Moreover, it was genital ‘ambiguity’ that led to her characterisation as intersex. Considerable attention was paid to Mrs W’s genitalia in the judgment of Charles J. Thus we learn that her external genitalia prior to surgery were ‘extremely small’,29 that her ‘penis’ was ‘definitely abnormal’,30 and that she had ‘no vaginal opening’.31 Indeed, in giving evidence as to the pre-surgical state of Mrs W’s genitalia, Dr Conway expressed the view that it was ‘a close call’32 as to whether the flap of skin that existed should be described as ‘a micro penis or a mini clitoris’.33 Thus in contrast to Ormrod J’s view that there was never any ‘mistake over the sex of the child’34 in the Corbett case, Charles J, in applying Ormrod J’s test, was able to conclude that there had been such a ‘mistake’ in the case of Mrs W.35 Accordingly, reclassification of her sex would not involve ‘falsification’ of an historical record.36 Indeed, Charles J expressed the view that had Mrs W been born today, ‘the medical decision taken would have been that she should be brought up as a girl. If that decision had been made at the time of [Mrs W’s] birth it would have been vindicated by [her] physical development as a result of her partial androgen insensitivity,37 her desire from an early age to live as a girl and her final choice to live as a woman’.38 While this view is highly controversial and out of step with an emerging intersex politics (see, for example, Triea, 1994; McClintock, 1997; Chase, 1998) it is clear that Ormrod J’s legal test could not resolve the question of Mrs W’s sex at the moment of birth. However, Ormrod J had alluded to the possibility of ‘incongruence’ in

28 Ibid. It should be noted that there are several types of intersex difference (see, generally, Greenberg, 1999; Chau and Herring, 2002, pp 329–332). In relation to the incidence of intersex variation, there is a lack of consensus due, in part, to lack of agreement as to precise definitions. However, studies have conservatively estimated the rate of intersexuality to be in the region of 1–2 in 1,000 live births (Blackless et al, 2000). Other studies have put the figure at approximately 4% (Herdt, 1996; Greenberg, 1999). 29 Id, p 117. 30 Id, p 118. 31 Id, p 117. 32 Id, p 118. 33 Ibid. 34 Corbett above, note 8, p 37. 35 W v W above, note 10, p 146. 36 Concern over the accuracy of birth certificates as historical records has proved to be a recurring theme within transgender jurisprudence, particularly in England and before the European Court of Human Rights (see, for example, Rees v UK above note 10; Cossey v UK above note 10). 37 Androgen insensitivity syndrome is a form of intersex variation and is linked to the functioning of the androgen receptor (see Gottlieb et al, 1998; Gottlieb et al, 1999a; and Gottlieb et al, 1999b). 38 W v W above, note 10, p 146.

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formulating his triumvirate test.39 In a move that evinces a concern to limit departure from Corbett, Charles J turned to these obiter statements40 and to the following subsequent extra-judicial statement made by Ormrod J: I was fortunate enough to find myself faced with a transsexual . . . The difficulty would be acute in the cases of testicular feminization and testicular failure. In these cases the genital sex is unalterably female or approaching female in character yet the gonads and the chromosomes are male . . . If the decision ever had to be made in a matrimonial situation I think that the genital sex would probably be decisive (1972, p 86).41 This passage and the interpretation placed on it by Charles J is significant. First, it seems clear from Ormrod J’s reasoning that any warrant for characterising as female a person whose chromosomes and gonads are male is dependent on the presence of genitalia that are ‘unalterably female or approaching female in character’. The importance of these words seems to be underscored by Ormrod J’s distinction between the ‘abnormal’ vagina of SY and April Ashley’s lack of a vagina pre-surgically. In short, Ormrod J, and Charles J who followed Ormrod J’s underlying reasoning, sought to ensure that persons to be characterised as female had genitalia at birth that are, in some important sense, opposite, and therefore ‘complementary’, to the male penis. It is this concern that led to considerable scrutiny and speculation about the genital region of the bodies of April Ashley and Mrs W at birth. For Ormrod J, the ‘naturalness’ of heterosexual intercourse with a man seems to require, at the very least, genitalia that are ‘unalterably female or approaching female in character’. For Charles J the mere ‘fact’ of genital ‘ambiguity’, despite the absence of a vagina, appears sufficient provided that the ‘ambiguity’ exists at birth.42 While the two judgments differ by degree, they share a concern to distinguish the ‘natural’ from the ‘unnatural’ and to insulate the institution of marriage from the realm of the ‘unnatural’.

39 Corbett above, note 8, p 54. 40 W v W above, note 10, pp 134–135. 41 In his judgment, Ormrod J explained that a person with testicular feminisation syndrome appears to be ‘a more or less normal female with well formed breasts and female external genitalia but with an abnormally short vagina, ending blindly, no cervix and no uterus’ while in a person with testicular failure syndrome ‘the appearance of the external genitalia may be more doubtful, with a phallic organ which could be either a small penis or an enlarged clitoris and a short vagina’ (Corbett above, note 8, p 47). 42 This coupling of ‘ambiguous’ genitalia with the female sex is, perhaps, an effect of the cultural and liberal legal construction of the female body as amorphous, unbounded, lacking in clear definition. A feminist politics is clearly confronted by this idea that the category ‘woman’ should function to name persons whose genitalia are ‘imperfectly’ formed, or that it should operate as a default position. This move is, however, entirely consistent with the tendency within liberal legalism to regard women’s bodies as ‘non-standard or aberrant (not-male) bodies’ (Naffine, 1997, p 88).

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It is especially significant that in both judgments thinking about ‘natural’ heterosexual intercourse leads to the invocation of an intersex/transsexual dyad. It is curious why this distinction is insisted upon. After all, the heterosexual liaison that Ormrod J and Charles J imagine is only possible on the facts of Corbett and W v W after sex reassignment surgery. The difference appears to lie in the relationship between sex reassignment surgery and ‘nature’ as it is legally constructed in the two decisions. Thus the willingness to characterise Mrs W’s post-operative genitalia as ‘natural’ arises out of viewing her surgery in terms of a process of ‘naturalisation’. This can be contrasted with a process of ‘denaturalisation’ that culminated in the construction of April Ashley’s ‘artificial cavity’.43 In short, the legal distinction is one between an understanding of sex reassignment surgery as artifice (transsexuality), and an understanding of sex reassignment surgery as the correction of nature’s ‘error’ (intersex). Thus a biological approach to the legal determination of sex claims can be approached through Foucault’s monster framework. Foucault’s concept of the monster can assist us in understanding what is at stake in this type of legal moment. It is clear from the legal analyses adopted in Corbett, and from many cases decided in its wake, that the transsexual can be understood in terms of a double breach, of law and nature. In relation to law, the transsexual is considered to pose a challenge to an important legal and cultural distinction, namely, the male/female dyad. Indeed, the transsexual threatens to destabilise binaries of sex, gender and sexuality or, in more general and Butlerian terms, the ‘heterosexual matrix’ (Butler, 1993, p 15). It is this affront to legal taxonomy that renders the transsexual monstrous. As for a breach of nature, or the element of monstrosity, both the desire, and the actualisation of the desire, for gender relocation are viewed as constituting a breach. It is a desire to cross the sex/gender divide that constitutes the transsexual as an abnormal individual. In this regard, the transsexual is a monstrosity in the modern sense. Here monstrosity is not written on the body. Rather, it only becomes legible when the desire is uttered. Moreover, to the extent that this attribution of monstrosity is an effect of legal interpretation of transsexual desire as perverse, the importance of the theme of transsexual responsibility presents itself. This is because in the context of the abnormal individual, and in contrast to monsters of old, monster and responsible agent are one and the same. Indeed, and irrespective of how we conceive of transsexual desire, and therefore the relevance of natality, the transsexual possesses a degree of choice as to how to live, and therefore whether to challenge the law of gender. Accordingly, it may be that the transsexual is particularly vulnerable to practices of monsterisation given the relative ease with which blame can be legally attributed. The court’s analysis of April Ashley’s biography in Corbett appears to bear this out.

43 Corbett above, note 8, p 49.

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However, the characterisation of the transsexual as a monstrosity need not necessarily be only an effect of a particular reading of desire. Rather, for some transsexuals, transformation can only be occasioned satisfactorily through surgical intervention. In this regard, the older meaning of the concept of monstrosity appears to come into play. Here monstrosity is no longer confined to an invisible and ‘perverse’ psyche. Rather, it also marks the body. For those courts adopting a Corbett-style analysis, the natural body has been subjected to nothing short of mutilation. What we are left with in the aftermath of medical intervention is a profound example of morphological irregularity. By way of contrast, reform approaches to transsexual sex claims might be viewed as dispensing with the figure of the monster. That is to say, reform courts might be viewed as dismantling the link between transsexuality and the structuring principles of Foucault’s monster. Certainly, the relationship between his law/nature conceptual framework and the transsexual is reconfigured within reform jurisprudence. However, legal attempts to sever the transsexual/monster coupling have, as we will see, met with only limited success. The relevance of the monster persists because legal recognition has, in the main, been confined to post-operative transsexual people. In this respect, the transsexual community is divided by law and the monster appellation remains relevant in terms of that division. However, even in relation to those transsexuals who have undertaken sex reassignment surgery, it is contended that reform courts remain anxious even, and especially, in moments of legal recognition. It will be argued that this anxiety is an effect of a legal inability to abandon the idea that the transsexual represents a double breach, of law and nature. It is to these themes that attention now turns.

5.5 Reform jurisprudence Reform courts have taken the Corbett decision as their point of departure. Rather than looking to the biological ‘truth’ of the past, these courts have, at least ostensibly, exhibited a concern over present realities. This legal position has been articulated through the reform test of ‘psychological and anatomical harmony’.44 Here legal recognition proves contingent on an alignment of body and mind, an alignment effected through sex reassignment surgery. In this regard, reform courts invoke a distinction between pre-surgical and postsurgical transsexual bodies. In doing so, law proves capable of incorporating the post-operative transsexual within the social and legal order. For reform courts, it would seem that the post-operative transsexual no longer represents a profound breach of law in Foucault’s sense. Rather than viewing the transsexual in this way, reform courts appear to view legal recognition as a means to better bolster the law of gender. For it may be that the reproduction of gender

44 Re Anonymous 293 NYS 2d 834 (1968); MT v JT 355 A 2d 204 (1976).

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polarity is better achieved through giving legal effect to the medical incorporation of ‘ambiguity’, thereby blocking off individuality and difference (Foucault, 1982, p 216), than it is through blanket opposition. By the same token, reform courts have sought to overcome the notion that the transsexual represents a breach of nature. This has involved attempts to ‘naturalise’ both transsexual desire and the post-operative body. Let us consider the body first. While the transsexual journey may involve a variety of surgical procedures, the surgical procedure that has preoccupied the courts, including reform courts, is genital reassignment surgery.45 In Corbett, it was the idea of post-operative sexual intercourse that most disturbed the court. For Ormrod J, the surgically constructed vagina fell squarely outside the realm of the ‘natural’. By way of contrast, the New Jersey court in MT v JT,46 an early and landmark reform decision, noted that MT, a ‘classic’ male to female transsexual woman,47 had ‘a vagina and labia which were adequate for sexual intercourse and could function as any female vagina, that is, for traditional penile/vaginal intercourse’.48 Moreover, and importantly, Handler J emphasised the medical finding that MTs vagina had been ‘lined initially by the skin of [her] penis’, that it would, in all likelihood, later take on ‘the characteristics of normal vaginal mucosa’, and that though at ‘a somewhat different angle, was not really different from a natural vagina in size, capacity and the feeling of the walls around it’.49 This mapping of MTs genital region suggests a concern to ‘naturalise’ her vagina, and thereby the practice of heterosexual intercourse. That is to say, medico-legal discourse, in emphasising textural, spatial and sensual similarities between MTs vagina and those of biological women, attempts to rearticulate the relationship between the transsexual body and the ‘natural’ established in Corbett. This is a legal move that has been replicated in other reform decisions. In this respect, we find in transsexual reform jurisprudence support for Stiker’s claim that ‘naturalness is not integralness but the fact of being integrable’ (Stiker, 1999, p 181). Indeed, Ormrod J himself, in Corbett, found

45 Examples of other surgical procedures include mastectomy and hysterectomy (in the case of F2Ms) and breast augmentation, facial feminisation surgery, thyroid cartilage reduction, reconstructive and aesthetic rhinoplasty and jaw or mandible recontour (in the case of M2Fs) (see, for example, Walters and Ross, 1996). Accordingly, the pre-/post-operative distinction, as used in law, proves problematic. In legal discourse, the phrase post-operative is only used to refer to situations where genital reassignment surgery has been undertaken. In the absence of this type of surgery, the phrase pre-operative continues to be used no matter how many other types of surgery an individual may have had. 46 MT v JT above, note 44. 47 MT was considered by the medical experts and the court to be a ‘classic’ transsexual (id, p 204). That is to say, she conformed to the elements of early onset of gender identity, hatred of genitalia and heterosexual desire. In this respect, the case can be contrasted with the medicolegal interpretation of April Ashley’s transsexuality in Corbett. 48 Id, p 206. 49 Ibid.

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there to be degrees of ‘naturalness’.50 The legal accommodation effected by reform jurisprudence might be likened to the historical treatment of individuals consigned to the legal category of deformity. As we saw in chapter 2, deformity marked degrees of morphological irregularity that the law was capable of incorporating into the social and legal order. In the contemporary context of transsexuality, incorporation or normalisation of the transsexual, as an abnormal individual, occurs through a process of naturalisation. In this respect, and while it may ‘prepare the ground for domination’ (Delaney, 2003, p 44),51 it would seem that naturalisation is necessary to be part of the human community. However, a view of the post-operative transsexual body as natural, or at least not antithetical to nature, needs to be contrasted with the approach of reform courts to its pre-operative counterpart. For processes of ‘naturalisation’, evident within reform jurisprudence, rarely extend to the pre-operative body.52 Thus while the post-operative transsexual body has, perhaps, been subject to a process of demonsterisation, the monster concept remains relevant for our understanding of the legal treatment of other transsexuals. In particular, and

50 Corbett above, note 8, p 50. 51 As Delaney notes, through use of the trope of nature, ‘women, disabled people, people of color, criminals, animals, and ecological systems may first be cast as objects of fear and desire and as such separated (from the fully human) and rendered suitable for subordination’ (2003, pp 43–44). In relation to transsexuals, entry into the legal community is tied to domination given the medico-legal conditions of entry. These conditions represent a legal attempt to reproduce dominant and heteronormative understandings of sex, gender and sexuality (see Sharpe, 1997a). 52 The Gender Recognition Act 2004 (UK) provides an exception in that legal recognition, at least ostensibly, no longer requires transsexual people to undergo any form of surgical intervention. However, as we will see, even in relation to this legislation the relevance of the monster concept persists. In this respect, processes of ‘naturalisation’ prove to have limits. Moreover, and in the context of the Gender Recognition Act, we will see that such processes have limits irrespective of the surgical status of individual transsexuals. It should also be noted that the Family Court of Australia, in Re Kevin, recognised as male, a female to male transsexual man despite the fact that he had not undertaken phalloplastic surgery, and therefore lacked a penis (Re Kevin and Jennifer v Attorney-General for the Commonwealth [2001] FamCA 1074). However, legal recognition in this case, as well as processes of ‘naturalisation,’ proved dependent on the fact that Kevin had undertaken breast surgery and a total hysterectomy. It is clear from the judgment of Chisholm J that legal recognition would not have occurred but for these surgical interventions (for a discussion of the case see Sharpe (2002c)). It should also be noted that Re Kevin has not been followed in relation to other legal subject matters. Thus, for example, in one recent Australian case, the Administrative Appeals Tribunal held a ‘pre-operative’ male to female transsexual woman to be male for the purposes of determining the rate of her disability support pension. Moreover, the tribunal came to this conclusion despite its acknowledgment that ‘Ms Scafe is unable, for sound medical reasons, to have the genital surgery for gender realignment. Ms Scafe is, we accept, psychologically, socially, and culturally a woman and has taken all the physiological steps that she can take to become a woman’ (Scafe v Secretary, Department of Employment and Workplace Relations [2008] AATA 104).

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given law’s understanding of the phrase post-operative as involving full genital reassignment surgery, the monster concept assists us to comprehend legal understandings of phallic women and vaginaed men. For with few exceptions, legal recognition of transsexual sex claims has been confined to transsexuals who have undertaken genital surgery. Indeed, in MT v JT, the court distinguished earlier decisions rejecting sex claims precisely on this basis.53 Moreover, legal consideration of genital surgery has provoked the apparition of the monster. Thus in MT v JT the court asked the rhetorical question: ‘[a]re we to look upon the [post-operative] person as an exhibit in a circus side show?’54 While it is clear that the court ruled out any possibility of answering this question in the affirmative, the matter is more ambiguous in relation to the pre-operative transsexual. This view of the pre-operative body as freakish reappears in the New Zealand decision of M v M.55 As in MT v JT, the court in M v M recognised as female, for marriage purposes, a post-operative transsexual woman. In the case of Mrs M a change of sex, ‘in a real sense’,56 was considered to have occurred. In so concluding, Aubin J posed the question: did the surgery undertaken by Mrs M amount to ‘no more than some ultimately futile attempt to change her from an anguished Mr Hyde into a well-adjusted Mrs Jekyll, producing a kind of hermaphroditic mutant unable to enter into a valid marriage with a man, or indeed with a woman’.57 While the court declined to draw this conclusion, the question posed invokes the notion of monstrosity. Moreover, it suggests a degree of legal anxiety concerning legal recognition and the incorporation of the transsexual within the gender order. More pertinently, given the fact that legal recognition proved dependent on genital reassignment surgery, it suggests that the pre or non-operative transsexual body bears a relation to the ‘hermaphroditic mutant’. The reference to a ‘hermaphroditic mutant’ is revealing more generally. For what is mutant in the eyes of the court is a body with no clear gender home. That is to say, a body that is neither male nor female but both or something beyond the distinction. Such a body is mutant because law is incapable of thinking about sex and gender other than in binary, oppositional and genitocentric terms. This point is graphically illustrated by a series of judicial responses to the suggestion that transsexual litigants might constitute a third sex. Reform courts have insisted that ‘the standard is much too fixed for such far-out theories’58 and that the very idea of a third sex is ‘lacking in substance’.59 In M v M, the

53 54 55 56 57 58 59

Anonymous v Anonynous 325 NYS 2d 499 (1971); B v B 355 NYS 2d 712 (1974). MT v JT above, note 44, p 207. M v M (1991) NZFLR 337. Id, p 348. Id, p 347. MT v JT above, note 44, p 210. R v Harris and McGuiness (1989) 17 NSWLR 158, p 170. In this New South Wales case, counsel for Phillis McGuiness, a ‘pre-operative’ male to female transsexual defendant, argued that she

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court baulked at the prospect that Mrs M might occupy such a position, describing it as ‘some kind of sexual twilight zone’.60 Moreover, the UK government recently rejected a petition asking the Prime Minister to ‘amend the Gender Recognition Act 2004 to enable people whose gender identity is neither male or female to have the opportunity to assign their legal gender as “other” or “intersex” if they so wish’.61 While the possibility of existing outside a sex/ gender binary might be viewed as full of political promise, from a legal and wider cultural perspective it is understood as impossible, unintelligible and unimaginable. By the same token, law refuses to comprehend this binary other than in terms of a genitocentric logic. Those transsexuals unwilling to position themselves within the binary or to conform to legal dictates as to what constitutes a properly gendered body (Bornstein, 1994; Bruce-Pratt, 1995; Wilchins, 1997; Whittle and More, 1999; Girshick, 2008), strike at the heart of legal taxonomy and certitude. They represent a profound breach of law. At the same time, they constitute a breach of nature because the desire to live outside sex/ gender binaries and/or the desire to live life as a phallic woman or vaginaed man is understood as both perverse and deep-rooted. In this regard, such individuals can be understood as monstrosities at their core. This is, of course, Foucault’s definition of the abnormal individual. Accordingly, the monster concept remains relevant to our understanding of legal comprehension of many individuals within the trans community. Moreover, while reform jurisprudence has, at least ostensibly, brought the post-operative transsexual within the law, it would seem that the exclusion of pre or non-operative transsexuals is informed by their decision not to undergo genital surgery. In this respect, even within the context of reform, monster status appears to bear a relationship to responsibility. That is to say, the transsexual who refuses to be normalised, and who thereby continues to pose a challenge to legal order, is scripted as culpable. Correspondingly, the postoperative transsexual, given her desire, or at least willingness, to comply with legal desire, and therefore legal order, is constructed as innocent. In other words, judicial sympathy accorded to transsexual litigants would appear to

might be a third gender in order to produce an acquittal on the grounds that she could not be guilty of committing the gender specific offence of being a male person and ‘procuring or attempting to procure the commission by any male person of any act of indecency with another male person’ contrary to section 81A of the Crimes Act (NSW) 1900 (now repealed). 60 M v M above, note 55, p 347. However, in a much-criticised Australian decision the court held that a marriage between a biological woman and an intersex husband was void on the basis that Mr C was ‘a combination of male and female’ (Re the Marriage of C v D (falsely called C) [1979] 35 FLR 340 p 341). In this case, Mr C was left in legal limbo, unable to marry a woman or indeed a man. 61 See www.number10.gov.uk/Page16662. On 22 August 2008 the Prime Minister’s Office noted that introduction of a third gender would ‘have a wide-ranging impact on other legislation, such as that relating to employment, insurance, pensions and marriage’.

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depend on the degree of culpability legally attributed. In this respect, and contra Foucault, the legal regulation of transsexuality points, perhaps, to the importance of the element of responsibility to the monster concept. So far, it has been intimated that the monster concept no longer has relevance for those transsexuals law chooses to recognise. However, we will see that even this claim proves problematic on closer inspection. First however, it is necessary to develop further the idea and legal process of ‘(re)naturalisation’. We have examined this in the context of the body and its surgical transformation. However, those post-operative transsexuals, whom law chooses to include within its order, can also be thought of as monstrosities in terms of the characterisation of a deep-rooted desire for transformation as perverse. It is precisely such a characterisation, one evident in Corbett, which reform courts have sought to resist. To put it differently, reform courts have attempted to place distance between the transsexual and the figure of the abnormal individual. The most striking example of this legal move is one that draws on the medical science of endocrinology. Over time, and understandably, litigants and transsexual advocacy groups have sought to harness the legitimising effects of biological science to law reform. In particular, litigants have pointed to contemporary scientific evidence derived from hormonal research, which suggests that ‘transsexuality [is] not merely a psychological disorder, but [has] a physiological basis in the structure of the brain’.62 Medical experts engaged in this type of research have concluded that ‘transsexuals are right in their belief that their sex was wrongly judged at the moment of birth’ (Gooren et al, 1995, p 69).63 These medical studies suggest that gender identity develops as a result of an interaction of the developing brain and sex hormones. The tiny region of the brain that has been scrutinised is the central subdivision of the bed nucleus of the stria terminalis, known as BSTc. It is part of the hypothalamus which helps to keep the different systems of the body working in harmony and which is essential for sexual behaviour. This area of the brain is ordinarily larger in men than in women, while in transsexuals post-mortem studies suggest that size corresponds with ‘assumed’ gender. This body of medical knowledge has exerted influence in relation to the legal determination of sex claims,64 culminating in the Australian decision of Re Kevin.65 While the court in this case explained that it did not base its decision ‘on the view that “brain sex” is in law the

62 X, Y and Z v UK (1997) 24 EHRR 143, p 167. 63 See also Kruijver et al (2000). Irrespective of the validity of this science, it is important to emphasise that science need not determine legal outcomes. Moreover, there are dangers in appealing to science, not least of which is a concern that biotechnological developments will lead to the eradication of difference through reproductive policing (see Sedgwick, 1990, p 42; Sedgwick, 1993, p 43). 64 See, for example, Rees v UK above, note 10; Cossey v UK above, note 10; Sheffield & Horsham v UK above, note 10; X, Y and Z v UK above, note 10; and ST v J above, note 10. 65 Re Kevin above, note 52.

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decisive factor in determining whether a person is a man or a woman’,66 it is clear that this factor was attributed considerable weight. In the process, and implicitly, if not explicitly, reform courts have suggested that transsexual desire exists in nature. That is, transsexuality is to be comprehended legally as natural variation, not perversion. In this way, the notion that the transsexual is a monstrosity at the level of the mind or psyche, or that she is an abnormal individual, is refused. By the same token, a view of transsexual desire as natural serves to re-emphasise the importance of the element of natality to the constitution of the monster. For in the context of transsexual law reform, the linking of transsexual desire to the temporal moment of birth serves to naturalise and thereby legitimise this desire. In other words, there appears to be a relationship not only between natality and the monster, but also, and correspondingly, between natality and processes of naturalisation, and therefore demonsterisation. It is through such processes of naturalisation that the abnormal individual is normalised. In this respect, medico-legal incorporation of the post-operative transsexual can be compared to the naturalisation of the hermaphrodite within medical science during the eighteenth century. It is through medico-legal processes of ‘naturalisation,’ or ‘renaturalisation’ in the aftermath of Corbett, that transsexuality is uncoupled from monstrosity, and therefore from a constitutive element of the monster category. Ultimately, the relationship between the terms transsexual and monster is governed by legal interpretation around the law/ nature nexus and, more specifically, by legal interpretation as to what counts as breach. The idea that the post-operative transsexual represents a breach of law and nature, so evident in Corbett, is defused within reform jurisprudence or, at least, so it would seem. Despite the attempts of reform courts to ‘naturalise’ the post-operative transsexual, both at the level of the body and of desire, there is evidence to suggest the continued relevance of the monster concept. That is, even in relation to the post-operative transsexual, a figure upon whom legal recognition has been conferred, it would be premature to conclude that English law has effected a clean break with the monster. On the contrary, even, and sometimes especially, in moments of legal recognition of sex claims, a view of the transsexual as involving a breach of law and nature persists. Here the attempts of reform courts to ‘naturalise’ or ‘renaturalise’ the transsexual body and desire meet their limit. This is particularly evident in relation to the issue of non-disclosure of gender history in the context of marriage. That is to say, the fact of nondisclosure, what the courts prefer to describe as inter-personal ‘fraud’, has assumed special significance in relation to legal consideration of sex claims. In cases where disclosure of gender history has occurred, the courts have given particular emphasis to this fact and it has served as a source of judicial

66 Id, paragraph 273.

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relief and as a factor in moments of legal recognition.67 Conversely, in cases where transsexual litigants have not disclosed their gender history prior to marriage, legal anxiety has proved to be especially evident.68 Indeed, this feature of transsexual law reform is present even in the UK Gender Recognition Act 2004, legislation that, on its face, dispenses with any requirement to undergo sex reassignment surgery.69 Thus the Act amends the Matrimonial Causes Act 1973 to add a new ground for rendering a marriage voidable, namely: ‘[t]hat the respondent is a person whose gender at the time of the marriage had become the acquired gender under the Gender Recognition Act 2004.’70 The Explanatory Notes to the Act provide further detail as to how this section is to operate. Thus where ‘[a]t the time of the marriage one party to the marriage did not know that the other was previously of another gender, the former may seek to annul the marriage.’71 In other words, in circumstances of nondisclosure of gender history, a non-transsexual party to a marriage, rather than being left to the law of divorce, may seek accelerated exit from the relationship.72 This concern over non-disclosure, exhibited toward marital parties who lack knowledge, appears to be informed by legal uncertainty regarding the status of

67 See, for example, MT v JT above, note 44, p 205; M v M above, note 55, p 348; Re Kevin above, note 52, paragraph 39. 68 See, for example, Anonymous v Anonymous above, note 53, p 499; ST v J above, note 10 p 441. 69 However, while the legislation dispenses with any requirement to undertake surgery at the level of legal form, the substance of the Act suggests something different. Thus it is clearly the expectation of the government that surgery will occur. As David Lammy, then Parliamentary Under-Secretary for Constitutional Affairs, put it: ‘ultimately [transsexuals] have surgical treatment if it is viable’ (The Honourable David Lammy, House of Commons Standing Committee A, 9 March 2004, Col. 19). Moreover, in the absence of surgical procedures, a medical report is required to explain why no surgical intervention has occurred (Gender Recognition Panel Guidance on Completing the Application Form for a Gender Recognition Certificate, s. 6) www.grp.gov.uk/formsguidance.htm (date accessed: July 2009). In other words, the legislation presupposes a surgical outcome, and indeed, an outcome in which genitalia are transformed, as the proper end of the transsexual journey. Moreover, the Gender Recognition Panel figures indicate only whether a final decision has been made. They do not provide information as to whether applications received have come from ‘pre-’/non-surgical transsexual people, or as to the rate of success for such individuals (see Sharpe, 2007b, p 73). Further, failure to undergo surgery might serve to undermine a diagnosis of gender dysphoria, and therefore an application for legal recognition, because it ‘might, just possibly might, have a bearing on the seriousness of intent’ (Lord Filkin, House of Lords 2nd Reading 18 Dec. 2003, Col. GC10). 70 Paragraph 5 of schedule 4 of the Gender Recognition Act adds a new subsection (h) to s. 12 Matrimonial Causes Act 1973. 71 Paragraph 42, Explanatory Notes to the Act www.opsi.gov.uk/acts/en2004/2004en07.htm (date accessed: July 2009). 72 It is worth noting that many other forms of non-disclosure do not produce this outcome. For example, non-disclosure of HIV positive status will not lead to a marriage being annulled (see Attorney-General v Otahuhu Family Court [1995] 1 NZLR 603, p 613 per Ellis J for a discussion of this point in the New Zealand context).

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sexual activity that might take place subsequent to the marriage. As with Corbett, reform courts prove, despite their rhetoric, unable to think of the transsexual body and/or desire in terms of the ‘natural’. Rather, sexual activity at the site of the surgically constructed vagina is seen by law as bearing an ‘unnatural’ character. The fear is, perhaps, that it is homosexual. It is certainly not viewed as heterosexual. The reason for this is that law continues to view the transsexual, irrespective of surgical intervention, in terms of natal sex. For the ‘truth’ that is not known by the non-transsexual party to a marriage, and which must be confessed, is the ‘truth’ of biological sex. Ultimately, transsexual reform jurisprudence cannot suspend fully its disbelief in ideas of sex that depart from this ‘truth’. In this concern over non-disclosure of gender history we glimpse that an ostensible commitment of the law to present surgical and/or psychological realities is rendered inauthentic. In this moment it becomes evident that from the perspective of law the transsexual is structured like a monster. In other words, and while reform courts seek to incorporate the transsexual within the legal and social order through legal recognition, it would seem that law cannot easily abandon the idea that the transsexual represents a double breach, of law and nature.

5.6 Conclusion This chapter has considered the relationship between the legal category monster and the abnormal individual. It has done so through a specific focus on the medico-legal regulation of transsexuality. The selection of transsexuality is informed by a desire to examine, in the present, Foucault’s monster archetypes and, more particularly, the conceptual problems that they represent. The specific ‘problem’ explored in this chapter lies in the challenge the transsexual poses to a binary understanding of sex. For Foucault, this ‘problem’ was illustrated through the figure of the hermaphrodite. This chapter has focused instead on the contemporary figure of the transsexual because it is transsexuality rather than intersexuality that appears today to represent the more profound challenge. This is, at least in part, because in the case of contemporary intersex children, monster status is short-lived due to early surgical intervention to remove sex ‘ambiguity’ (Fausto-Sterling, 2000, p 31). The selection of the transsexual is also informed by the fact that modern and pre-modern understandings of the concept of monstrosity both prove important with regard to an understanding of regulation within this particular medico-legal domain. This is a significant finding. Of course, some examples of abnormal individuality might lend themselves to an analysis that focuses on the modern understanding of monstrosity alone, namely, perverse and deep-rooted identity. Equally, and as we will see in chapters 6 and 7, the older meaning of the concept of monstrosity, as morphological irregularity, may present itself as the key to understanding legal regulation in other contexts. A legal study of transsexuality however, points to the need to think more about the joint relevance of, and possible

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interplay between, the two different understandings of the concept. This is important, not only in order to understand how some contemporary monsters might be constituted, but also in order to understand, and participate in, the process of demonsterisation. However, while both understandings of the concept of monstrosity prove important in understanding the medico-legal regulation of transsexuality, it is perhaps the older meaning of the concept, one that focuses on the body, which proves crucial. This might seem counter-intuitive given the definition of the abnormal individual. That is, in the transsexual context, we might expect the mind/psyche to bear primacy in determining human/monster status. Yet, it has, in the main, been the body that has functioned in this way within legal discourse on transsexuality, and irrespective of legal approach. That is to say, it is the body that has been privileged in legal (re)constructions of sex, or, more particularly, the categories male and female. Thus reform jurisprudence has, with few exceptions, exchanged anatomical ‘facts’ at birth for a body that has been surgically transformed. It is the surgical transformation of the body that has generally proved to be the pre-condition of legal subjecthood within reform approaches. While law has reproduced the transsexual narrative of being ‘trapped in the wrong body’, it has proved more concerned with the ‘wrongness’ of that body than with its corralled psyche. In this respect, the legal regulation of transsexuality shares something with an English legal history of the monster category. Moreover, this emphasis on the body is reinforced in law through the construction of the ‘authenticity’ of transsexual desire in relation to sacrifice, and more specifically, the sacrifice of genitalia. Of course, in view of the Gender Recognition Act, and its formal abandonment of any requirement to undergo surgery, it might be thought that ‘for the purposes of the governmentability of gender, the body, and its biology’ no longer exist (Sandland, 2005, p 52).73 Or, to put it differently, and in relation to the monster concept, it might be said that the body has been trumped by the mind or psyche, and therefore by a modern understanding of monstrosity, as the reference point for determining human status. That is, under the Gender Recognition Act, a diagnosis of gender dysphoria now serves, at least ostensibly, as the trigger for the conferral of full human status. Such a claim presents no difficulty for the thesis of this book. Both the mind and the body can constitute a monstrosity in law. Interestingly however, the body proves resilient to reform. For, in thinking about the Gender Recognition Act, it is necessary to invoke a distinction between substance and legal form. As already noted,74 it is clearly the expectation of the UK government that surgery will occur. Moreover, the absence of surgery must be explained by medical report and it may serve to cast doubt on a diagnosis of gender dysphoria and therefore block the avenue

73 See also Sandland (2003) and Cowan (2004, 2005). 74 See above, note 69.

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to legal recognition. The body, and therefore the relevance of the older meaning of the concept of monstrosity as morphological irregularity, also reasserts itself through a legal requirement under the Act to disclose gender history. Here law returns to the body and, more particularly, to biological ‘truth’ as the ultimate arbiter of what it means to be male or female and therefore human. The importance placed on the body within transgender jurisprudence, including reform jurisprudence, points to the relevance of this corpus of the law to theoretical scholarship, including feminist legal scholarship, focusing on embodied subjecthood. Indeed, in view of the gendering of the mind/body distinction within Western philosophy and law (Price and Shildrick, 1999, p 17), the different articulation of the distinction evident here might prove fertile ground for feminist legal theory. Ultimately, monster status is an effect of legal interpretation. It is for this reason that monsters appear and disappear. In the transsexual context, we witness competing forms of legal interpretation across legal approach. Both biological and reform approaches involve contestation over the ‘naturalness’ of transsexual bodies and desires. Within the biological approach the desire for transformative surgery, and the surgery itself, are seen as significant deviations from nature. It is for this reason that the transsexual can be viewed as a monstrosity. In this regard, it is important to stress that it is not merely the fact that the transsexual, as an example of the abnormal individual, departs from the norm that presents the difficulty. It is the additional fact that she deviates from a particular construction of nature that causes legal alarm. Moreover, and consistent with the insight offered by chapter 4, in the context of the legal regulation of transsexuality, abnormality and unnaturalness are interwoven. In Foucault’s terms, the abnormal individual bears the legacy of the monster. In terms of Foucault’s other element of the monster, namely monstrousness, the transsexual appears monstrous because she represents a challenge to a legal order premised on a binary division of sex/gender. Conversely, reform jurisprudence attempts to rearticulate legal comprehension of the transsexual in ways that locate her within nature’s order. Moreover, failure to normalise the transsexual and incorporate her within the gender order becomes, from the reform jurisprudential standpoint, viewed as posing a greater challenge to law than does incorporation.75 Nevertheless, despite

75 This concern is also apparent in a legal desire to normalise as heterosexual what might otherwise be viewed as homosexual. That is to say, and by way of example, legal recognition of a male to female transsexual as female enables her desire for men to be understood, in legal terms, as heterosexual. Conversely, failure to recognise her sex claims implicates law, according to law’s own logic, in the production of gay identity. Thus in the Re Kevin case, Chisholm J notes that to deny Kevin’s claims would be to produce a situation where he is ‘entitled to marry a man, but not a woman. Ironically, to the outside world such an event would appear to involve a legal marriage of a same-sex couple’ (Re Kevin above, note 52, para. 304; see also Otahuhu above, note 72, p 607 per Ellis J).

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reformist rhetoric, law proves unable to divorce the transsexual form monster status. This has been especially evident in the differential and exclusionary legal treatment of many non or ‘pre-operative’ transsexual people. Moreover, and in the context of the UK Gender Recognition Act, even ‘post-operative’ status does not guarantee legal inclusion. As we have seen, the possibility remains that refusal to undergo surgery might be viewed as inconsistent with a diagnosis of gender dysphoria. In such circumstances, legal recognition might be precluded. Further, the Gender Recognition Act, through its provisions pertaining to non-disclosure of gender history, reveals that a biological understanding of sex persists within law. In this respect, the characterisation of the transsexual body and transsexual desire as natural always remains vulnerable. Accordingly, a study of the transgender/law relation points to a need to contest legal constructions of nature and legal taxonomy and their breach. It is precisely through such struggle that a politics of demonsterisation might be realised. Moreover, in the transsexual context, such a politics needs to be directed, not only toward opening up the categories of male and female, but also toward creating legal space for those trans people whose lives contradict the powerful normative assumption that sex/gender are to be understood in binary terms. In other words, what is called for, is a legal marking out of a third (fourth, fifth . . .) sex/gender space. In this regard, the template of the monster, premised on hybridity and transcendence as it is, provides, perhaps, a place from which a progressive politics might begin. Finally, the chapter drew attention to the themes of responsibility and natality in understanding the construction of the transsexual as monster. Thus it was noted that, unlike monsters of old, the transsexual, as an example of the abnormal individual, is, in an important sense, simultaneously both monster and responsible agent. In this respect, Canguilhem’s view, that the attribution of culpability is important in understanding the constitution of the monster, finds support. By the same token, because monstrosity can be located within transsexual, and, more particularly, at the core of transsexual being, the chapter points to the relevance of the element of natality to an understanding of law’s monsters. In the following chapter, we will explore how legal interpretation around the law/nature nexus unravels in a different contemporary context, namely, that of concorporation.

Chapter 6

Sharing bodies The problem of conjoined twins

[F]or conjoined twins, the other is also the self – a transgressive and indeterminate state in which corporeal, ontological and ultimately ethical boundaries are distorted and dissolved (Shildrick, 2002, p 63).

6.1 Introduction This chapter will consider the significance Foucault’s conceptual framework for understanding monsters has for conjoined twins in the present. For Foucault, conjoined twins represent the ‘privileged monster of the Renaissance’ (Foucault, 2003, p 66). However, while Foucault emphasises this historical period, he does not conclude that conjoined twins thereafter lost monster status. In contrast to Canguilhem (1964, p 38), he does not insist that medical science heralded the death of monsters. Conjoined twins not only exist in the present as an empirical fact.1 They might also be properly characterised as monsters within Foucault’s theoretical terms, that is to say, in terms of a double breach, of law and nature. Indeed, it may be that conjoined twins are the sole figure to have retained monster status over time. In this respect, contemporary legal treatment of conjoined twins might be viewed as demonstrating continuity in the importance of irregular morphology and the element of natality to the monster category. In contending that conjoined twins can be viewed as monsters within Foucault’s terms, it is important to emphasise that there is no simple or necessary relationship between advances made in medical science and the disappearance of monsters. Monsters do not disappear simply because science gains mastery over them. For monster status is not an effect of mystery or lack of scientific knowledge. It is not lost because particular forms of difference are rendered transparent. Rather, monster status is lost when a breach of nature no

1

The incidence of live births of conjoined twins has been estimated to be between 1 in 25,000 and 1 in 80,000 with most studies putting the figure in the region of 1 in 50,000 (Hoyle, 1990). Approximately, three-quarters are female. Further, approximately 40% of conjoined twins are stillborn, with a further 35% not surviving beyond a single day (Albert et al, 1992, p 300).

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longer poses a challenge to or upsets law. It is precisely for this reason that conjoined twins can be distinguished from hermaphrodites and human/animal hybrids of old. Moreover, it is precisely for this reason, as we will see in the following chapter, that the human/animal admixed embryo can be considered a monster. The reason why hermaphrodites ceased to be considered monsters in the eighteenth century is because they were no longer viewed as throwing a spanner into the categorical workings of law. In other words, they failed to register on an index of monstrousness. Specifically, they were no longer considered to undermine the idea of a binary division of sex because the older notion of indeterminate sex became discounted within medical science (Laqueur, 1990, chapter 5). Thus it is not simply the transparency of the hermaphroditic body to science that strips it of monster status. Rather, this uncoupling proves to be an effect of the scientific removal of the element of monstrousness. In the case of human/animal hybrids of old, we can, of course, no longer suspend our disbelief in their existence. However, in relation to bodies that might have been approached in these terms, scientific knowledge has again removed the element of monstrousness, in this case through severing morphological irregularities from a bestiality thesis. Yet, monstrousness may survive an encounter with science. This appears to be the case with conjoined twins. Of course, medical science may have discovered their secrets, grasped their aetiologies and repositioned them within nature’s order. Nevertheless, this example of concorporation continues to defy law. For conjoined twins embody mixture at the level of human morphology and this continues to represent a challenge to a legal order that understands the subject as a single embodied mind. In this regard, the monster is best understood in terms of the effects it is interpreted to have on law. For science slays monsters only when, in addition to understanding them, it neutralises the threat they pose to legal taxonomy. Of course, one might object to the suggestion that conjoined twins represent a legal monster in the present. Surely, such a claim, if it can be entertained at all, cannot be so in the wake of the English legal decision of Re A.2 In this decision, the English Court of Appeal, in considering an application to medically separate conjoined twins,3 insisted that the concept of the monster is no

2 3

Re A (Children) (Conjoined Twins: Surgical Separation) [2000] 4 All ER 961. See also Walker LJ’s subsequent article on the case (2002). Mary and Jodie, the conjoined twins in the case were ischiopagus conjoined twins. As noted by Sheldon and Wilkinson, ‘[t]he lower ends of their spines and spinal cords were fused, and they shared a bladder and a common aorta. The heart and lungs located within the smaller and weaker twin (Mary) did not function and her supply of blood was pumped by the heart of her larger sibling (Jodie)’ (2001, p 201). For a critique of the court’s decision to allow separation of the twins see generally, Huxtable (2000), Gillon (2001), Knowles (2001), Munro (2001), Stewart (2002), Gurnham (2003), Cowley (2003) and Hill (2005).

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longer part of English law.4 In the words of Ward LJ, ‘notions expressed in earlier times that Siamese twins were “monsters” [are] totally unacceptable, indeed repugnant and offensive to the dignity of these children in the light of current medical knowledge and social sensibility. I deprecate any idea of “monstrous birth”.’5 In a similar vein, Walker LJ contended that ‘[i]t hardly needs to be said that there is no longer any place in legal textbooks . . . for expressions (such as “Monster”) which are redolent of superstitious horror. Such disparagingly emotive language should never be used to describe a human being, however disabled and dysmorphic.’6 In declaring the monster category to be no longer part of English law, the court distanced itself from the monster texts of Bracton, Coke and Blackstone (Bracton, 1240–1260 (1968, vol 2, p 31); Coke, 1628–1644 (1979, vol 1, p 7.b); Blackstone, 1765–1769 (1979, vol 2, pp 246– 247)),7 as well as those of Hobbes and Locke (Hobbes, 1889, p 189; Locke, 2001, pp 239, 256–257, 285). In the words of Brooke LJ, ‘whatever might have been thought of as “monstrous” by Bracton, Coke, Blackstone, Locke and Hobbes, different considerations would clearly apply today.’8 However, despite legal disavowal of the relevance of the monster category in Re A, this chapter will contend that it may be premature to conclude that the law/monster relation has been severed in the context of the legal regulation of conjoined twins. The chapter will not argue that conjoined twins are described as monsters within contemporary law. Clearly, no formal legal category of the monster exists today. Neither would such usage be consistent with contemporary legal sensibilities, as the judicial pronouncements already quoted amply demonstrate. Nevertheless, conjoined twins can be understood as monsters in the sense that their legal comprehension continues to be structured by an understanding of the monster category offered by Foucault. Moreover, this understanding of conjoined twins is, as we will see, apparent in medico-legal approaches to the question of their separation. Indeed, in this latter respect, legal regulation of conjoined twins can be likened to the legal treatment of transsexuals. As we saw in the previous 4

5 6 7 8

This issue arose in the context of legal argument that Jodie and Mary, the conjoined twins in the case, might constitute a monster on the basis of prior legal authority (see Bracton, 1240– 1260 (1968, vol 2, p 31); Coke, 1628–1644 (1979, vol 1, p 7.b); Blackstone, 1765–1769 (1979, vol 2, pp 246–247). See also Herring v Walround [1682] 2 Chan Cas 110; Doodeward v Spence (1908) CLR 406)). Counsel, supporting an application for medical separation of the twins, invited the court to conclude that Jodie and Mary did not constitute ‘a reasonable person in being’ (Re A above note 2, p 1025; see also Clarkson and Keating, 1994, p 594). This claim, had it been accepted, would have served to preclude the possibility of a homicide prosecution being brought against surgeons performing a separation procedure. If Jodie and Mary were not to be viewed as a ‘reasonable person or persons in being’, then it would not be possible for the prosecution to prove an important element of the actus reus of either a murder or manslaughter charge. Re A above, note 2, p 996 per Ward LJ. Id, p 1054 per Walker LJ. Id, p 1026. Id, per Brooke LJ.

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chapter, transsexual reform jurisprudence has, in the main,9 made legal recognition of sex claims contingent on the ‘harmonisation’ of body and mind. Within this corpus of the law the body has been portrayed as an obstacle to transsexual desire, an obstacle that must generally be overcome. In the present context, we return to the mind/body distinction. Instead of the legal view that the transsexual represents one mind trapped in the wrong body, we now encounter the legal view that conjoined twins are two minds trapped in a single body. In both cases, the body is considered, in some sense, alien, as not being home. In the former case, the body is brought within the law through its surgical transformation along gender lines. In relation to conjoined twins, it is only through their surgical separation that Foucault’s monster framework ceases to be applicable. In other words, in both cases, processes of demonsterisation rely on the cutting of flesh. We now turn to consider in greater depth how the double breach, of nature and law, operates in the context of conjoined twins. In particular, we will focus our attention on the question of why a breach of nature, in this case a particular example of mixture at the level of human morphology, presents a problem for law. This requires an analysis of the legal construction of personhood.

6.2 Constructing legal personhood The legal construction of rights-bearing subjects has proved to be an exercise dependent on particular readings of bodies and minds. That is, the legal process of subjectivisation requires a particular mind, a particular body and a particular relationship between the two. In relation to the mind, what is required is the capacity for reason.10 In relation to the body, what is required is a conclusion of corporeal integrity. In the context of an analysis of the legal treatment of conjoined twins, it is legal constructions of bodily integrity that call for special attention. Corporeal integrity, as legally constructed, requires a body that is considered to possess clear boundaries. As Price and Shildrick put it, in order to guarantee the autonomy of the subject ‘the body must appear invulnerable, predictable and consistent in form and function, above all free from the possibility of disruption’ (1998, p 232). In a similar vein, Naffine invokes the idea of the ‘body bag’ to capture this liberal legal understanding of corporeal integrity (Naffine, 1997). In her

9 The Gender Recognition Act 2004 provides, at least ostensibly, one obvious exception. However, as we saw in chapter 5, the notion that the ‘pre-operative’ body is an inappropriate body persists, even here, through a discrepancy between legal form and substance and through a legal requirement to disclose gender history prior to a marriage. 10 It is precisely incapacity of this kind that accounts for the restriction of legal rights in civil law, and which accounts for exemption from criminal responsibility (see Herring, 2008, pp 716–717). In the criminal law context, ‘a person is not to be blamed for what he has done if he could not help doing it’ (Hart, 1968, p 174).

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analysis of the sexing of the subject of law she highlights how law values bodies that are hermetically sealed over those considered porous and penetrable (Naffine, 1997, p 86). It is for this reason that law constructs the subject of law as male. As Naffine notes, ‘while the standard (male) body is defined by its intactness, its wholeness, its completeness, the non-standard (female) body is defined by its gaps, its openings, its incompleteness’ (1997, p 88).11 However, the subject of liberal law is not simply constructed as non-penetrable. He is also defined by his separateness. For ‘liberalism takes atomistic individuals as the basic units of political and legal theory’ (Nedelsky, 1989, p 8). As Nedelsky notes, ‘[t]he most perfectly autonomous man is the most perfectly isolated’ (1989, p 12). In this regard, the ideology of liberalism privileges separation over connectedness. Accordingly, the problem of the ‘one who is two and the two who are one’ (Foucault, 2003, p 66) strikes at the heart of Western ideas of legal personhood. For conjoined twins, or corporeal doubling, prove to be ‘highly disruptive to Western notions of individual agency and personal identity’ (Shildrick, 2002, p 56; see also Sheldon and Wilkinson, 1997, p 151). It is precisely because of this that separation of conjoined twins emerges as the solution.12 In the eyes of law, conjoined twins represent bodily confusion because, understood as two, it is difficult to delineate the precise bodily contours of each twin. Of course, conjoined twins might be conceptualised in terms of a singularity. However, the possibility that conjoined twins might be understood as a single entity or as a unity is resisted in legal analyses. So strong is this legal tendency that ‘[a]ll parties [in the Re A case] took for granted . . . that Mary [was] a . . . separate person from Jodie.’13 While acknowledging that ‘some commentators had questioned whether this was the right approach to adopt’,14 the court insisted that ‘[i]n the face of the evidence it would be contrary to common sense and to everyone’s sensibilities to say that . . . there are not two separate persons.’15 The court noted that among the medical experts ‘[t]here was total unanimity about [the twins] individuality.’16 Thus the neonatologist stated that ‘[t]he twins are considered to be separate individuals. There are two heads, two brains and at different times of the day and night they exhibit different states of wakefulness/alertness and clearly their feeding abilities and patterns are very 11 The tendency to define women in terms of gaps and openings is most pronounced in the context of rape laws (see Naffine, 1997, p 88). 12 Prior to 1955 separation was only very rarely attempted. Since that time the number of ‘successful’ separation procedures has been estimated worldwide at 210 (Freeman, Fahr and AlKhusaiby, 1997). It should also be recognised that there are many different forms and degrees of conjoinment (see Sheldon and Wilkinson, 1997, p 150). In many cases, separation will not be considered a surgically viable option. However, it would seem that separation is the preferred outcome where possible. 13 Re A above, note 2, p 994 per Ward LJ. 14 Ibid. 15 Id, p 995. 16 Ibid.

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different.’17 The cardiologist added: ‘[a]though the twins share some common tissue, they each have separate hearts, brains, etc, and thus medically I feel are separate individuals.’18 Ultimately, the court asserted: ‘[t]he fact that Mary is dependent upon Jodie, or the fact that twins may be interdependent if they share heart and lungs, should not lead the law to fly in the face of the clinical judgment that . . . each child is separate for the purposes of the civil law and the criminal law.’19

6.3 A critique of legal personhood The legal conclusions drawn in Re A beg some important questions. Why should the fact that both twins possess a head, brain and heart be considered more important than the fact of their mutual interdependence? This focus on the head and brain is, no doubt, informed by the legal privileging of mind over body in constructing humanness within Western philosophy and law (Porter, 1991; Grosz, 1994; Gatens, 1996).20 If the possession of a mind, and therefore the capacity for reason, is understood to be the sine qua non of what it means to be human, then the existence of two minds within a single anatomical structure must lead to the conclusion that there are two legal persons. The difficulty with this account is that it fails to appreciate fully that subjects are embodied. Conjoined twins, like transsexuals, are seen as prisoners of their bodies. The body, rather than being seen as home, and as corporeal integrity, is seen as encasement (Clark and Myser, 1996, p 352). It is for this reason that separation is viewed as being in the best interests of conjoined twins, or at least in the best interests of the physically stronger twin (Dreger, 1998b, p 4).21 As Shildrick puts it: ‘[t]he perception that separation is in the best interests of conjoined twins rests on the prior assumption that two distinct persons with distinct identities have, as it were, become trapped in a single morphology’ (Shildrick, 2002, p 58). Moreover, once conjoined twins are separated verbally, it is, as Annas notes, ‘only a matter of time before they will be separated surgically’ (2001, p 1107).

17 Id. On this issue of separate activity and sleep patterns, see Harper et al (1980). 18 Id. 19 Id, p 996. Indeed, many critiques of the practice of separation of conjoined twins appear to reproduce the idea that the twins are two separate persons (see, for example, Hewson, 2001, p 298; Hill, 2005, p 169). 20 While this relationship between mind and body is challenged, indeed reversed, in the context of an English legal history of the monster category, as we saw in chapter 4, it otherwise constitutes a rigid and violent hierarchy. 21 According to Dreger, ‘there appears to be a willingness on the part of more and more medical professionals to attempt separation’ (1998b, p 4). In explaining this medical attitude she points to ‘a deep-seated concern for cultural norms of individuality’ (Dreger, 1998b, p 4). See also Annas who identifies the ‘monster factor’ as key to understanding the medical practice of separation (2001).

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Further, rather than seeing the relationship between Jodie and Mary in symbiotic terms, law prefers to imagine it as conflictual, as a clash between rights-bearers. Once the relationship is characterised in terms of conflict, medico-legal desire to cleave the twins can only intensify. This focus on a conflict of interests finds vivid expression in the judgment of Ward LJ who stated that Mary ‘is alive because and only because, to put it bluntly, but nonetheless accurately, she sucks the lifeblood of Jodie and she sucks the lifeblood out of Jodie’, adding that ‘Mary’s parasitic living will be the cause of Jodie’s ceasing to live.’22 Yet, this is only one way to comprehend the relationship between Jodie and Mary. As Munro observes ‘[i]n positing Mary as an aggressive parasite sucking the lifeblood from her sister, the court arbitrarily prioritized the experience of self-interest and conflict over the equally experientially viable alternative of concern and connection’ (2001, p 466).23 In particular, the court failed to consider ‘the potential bond, both physical and emotional, that may exist between the twins as siblings’ (Munro, 2001, p 466).24 Indeed, ‘the physical connection involved graphically undermines the persuasiveness of legal strategies premised upon the delineation of relevant boundaries between one rights-bearer and another’ (Munro, 2001, p 460). Ultimately, the ‘privileging of singularity and autonomy implicitly premised on the bodily separation, and the value accorded bodily self-determination, combine to erase any consideration that there might be other ways of being’ (Shildrick, 2002, p 58). In other words, law refuses to register the phenomenological difference of forms of embodiment that house conjoined twins. This legal attitude, evident in Re A, is so strong that it proved capable of surmounting settled legal principle and therefore all legal impediments to separation of the twins. As McEwan has observed, ‘the settled principle was clear; the proposed operation would legally be murder. The only arduous aspect of the case from the court’s point of view was that it was difficult to escape this apparently unwelcome conclusion’ (2001, p 246). In the first place, all three Court of Appeal judges agreed that separation surgery constituted homicide,

22 Re A above, note 2, p 1010. 23 Hewson has suggested that ‘the decision would have been less troubling if the judges had constructed a case for separation based on the implied consent [of Mary], rather than (as the majority did) pitting Jodie against Mary in an antagonistic relationship’ (2001, p 298). However, while this approach avoids characterisation of the twins’ relationship as conflictual, it nevertheless reproduces the notion of two separate legal persons. It does not get to grips with the fact of concorporation itself. 24 These types of bonds certainly exist between adult conjoined twins. As Watt notes, ‘[a]dult conjoined twins refuse to be separated, in all or almost all cases, and are adamant that their situation is in many ways good. They refuse to be separated even to save their lives where one twin has died – presumably because they recoil from such a violent divorce from a much-loved brother or sister’ (2001, p 238). See also Dreger (1998b, p 10) and Quigley (2003, p 4). Indeed, Ladan and Laleh Bijani, the so-called ‘Iranian twins’, are the only twins in history ‘to be separated by an operation to which they had personally consented’ (Dreger, 2004, p 41).

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albeit lawful. In other words, it was agreed that the actus reus elements of murder were present. In acknowledging this, the court made clear that Jodie and Mary were to be considered reasonable persons in being and therefore capable of being killed as a matter of law.25 In other words, the court accepted that Jodie and Mary were legal persons. Accordingly, the lawfulness of separation surgery depended on the court’s acceptance of either a criminal law defence or an argument that the mens rea for the crime of murder was lacking. This latter position was articulated by Walker LJ who chose to view Mary’s inevitable death after separation as unforeseen rather than intentional. In other words, he invoked the doctrine of double effect.26 That is, he contended that, while the inevitable consequence of surgery, Mary’s death was not the primary purpose.27 The primary purpose in Walker LJ’s view was to save the life of Jodie. Yet, it is clear that the mens rea for murder would be easy to establish given that Mary’s death is a virtually certain outcome of separation.28 Indeed, it is precisely for this reason that Brooke LJ expressed the view that ‘an English court would inevitably find that the surgeons intended to kill Mary, however little they desired that end.’29 Turning to the operation of criminal law defences, Brooke LJ identified necessity, while Ward LJ preferred self- or private defence. In relation to necessity, as a choice of evils defence, its application appears spurious given the fact that it can hardly be said that the death of Mary and Jodie from natural causes ‘is an inevitable or irreparable evil’ (Hewson, 2001, p 296). Moreover, necessity, and for that matter duress, have not hitherto been developed to cover situations where the accused has taken the life of another.30 Self-defence, by way of contrast, can serve as a defence to murder.31 However, in order that this

25 Jodie and Mary had a separate existence and independent circulation from their mother. Accordingly, they were ‘reasonable persons in being’ according to English criminal law (Herring, 2008, p 235). 26 The doctrine of ‘double effect’ is often invoked to explain the permissibility of an action that causes a serious harm, such as the death of a human being, as the side-effect of promoting some good end (for a discussion of the doctrine see, for example, Boyle (1980), Duff (1982), Kamm (1991), McMahan (1994), McIntyre (2001) and Woodward (2001). For an analysis of the history of the doctrine, see Mangan (1949). 27 Re A above, note 2, p 1069 per Walker LJ. 28 R v Woollin [1999] 1 AC 82. 29 Re A above, note 2, p 1029. Moreover, the court made it clear that the proposed surgery would constitute a positive act (per Ward LJ, p 993). In other words, the court declined to utilise the act/omission distinction as a way out of the dilemma. It was precisely characterisation of separation surgery as an omission that had enabled Johnson J, hearing the case at first instance, to conclude that the proposed surgery would not be criminal (McEwan, 2001, p 249). On this distinction see the House of Lords’ decision in Airedale NHS Trust v Bland [1993] AC 789. 30 R v Dudley and Stephens [1884] 14 QBD 273. 31 It is more precise to describe the defence on these facts as private defence (Herring, 2008, p 631–639). Clearly, it is the third party surgeons, acting on behalf of Jodie, rather than Jodie herself who would seek to rely on it.

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defence succeed it would be necessary to establish that separation surgery constituted defensive conduct in the face of an unjust threat (Uniacke, 2001, p210). Yet, it cannot be said that Mary was engaged in any threatening activity or that she was, in any sense, an aggressor (Hill, 2005, p 168). As Uniacke puts it: ‘[t]he configuration of the twins’ conjoined bodies was not an interference with Jodie on Mary’s part’ (2001, p 212). While Ward LJ imagines that if Jodie could speak she would say ‘Stop it, Mary, you’re killing me’ and that ‘Mary would have no answer to that’, Uniacke supplies Mary’s reply: ‘What is it you are asking me to stop? . . . It is your heart that is doing the pumping. I am not interfering with or impinging on you, either voluntarily or involuntarily or actively or passively. The fact is that we share an artery in virtue of which I am an entirely passive recipient of oxygenated blood’ (2001, p 212). Moreover, a conflict model for understanding the relationship between Jodie and Mary is perhaps misplaced. In a different register, Jodie might say to her identical and attached twin ‘I love you as myself and will do everything, including sacrificing my life, to keep you alive as long as possible’ (Annas, 2001, p 1107). Accordingly, the court’s decision to permit separation surgery is, as a matter of law, dubious. In view of the lack of persuasiveness of the court’s reasoning, it has been contended that the true justification for separation of the twins lies in a distinction between humans and persons (Harris, 2001). Thus for Harris, the key factor opening the door to surgery ‘is that the life expectancy of Mary between the time when the operation would take place and her inevitable death, would not have been expectancy of what might be called “biographical life”, not the life of a person’ (2001, p 233).32 However, while this moral argument might have force, the suggestion that it motivated the court’s decision is problematic in that it serves to privilege mind over body in understanding the court’s attitude to Mary. Whereas, and as earlier chapters have demonstrated, it is the body not the mind that has served as the ultimate bedrock of what it means to be human in the context of legal analyses of morphologically irregular bodies. In other words, the subtext of the decision may have more to do with a legal attitude toward the body than the mind. Rather, than viewing as inauthentic, law’s insistence that both Jodie and Mary are legal persons, as Harris does, it might be more productive to view the court’s insistence that the twins are not a monster as the more significant form of legal disavowal. That is to say, the decision might best be explained by reference to the ‘monster factor’ (Annas, 1987 p 28). Indeed, for Annas, ‘the case seems to have been decided not on the basis of law . . . but on an intuitive judgement that the state of being a conjoined twin is a disease and that separation is the indicated treatment for it’ (2001, p 1106). Moreover, this claim is supported by the fact that medico-legal

32 Harris likens the life of Mary to embryos, individuals who are ‘brain-dead’, anencephalic infants, and individuals in a Permanent Vegetative State (2001, p 233). See also Harris (1999) and Singer and Kuhse (1993).

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desire to cleave conjoined twins persists beyond the point of transition from human to person in any moral sense (Dreger, 1998b, 2004). Thus even in relation to non-emergency-type situations, ‘there appears to be a willingness on the part of more and more medical professionals to attempt separation at almost any cost, including risking the mobility, reproductive capabilities, or lives of one or both twins’ and in some cases ‘inducing sex change in one (and only one) of two separated twins’ (Dreger, 1998b, p 4).33 In returning to the court’s reasoning in Re A as to why separation surgery is to be considered lawful, it is important to emphasise liberal law’s differential deployment of a concern over bodily integrity across the singleton/conjoined twins divide. While law fails to guarantee the right to life in the case of conjoined twins, it prohibits encroachments on the bodily integrity of singletons even where they pose no threat to life. Indeed, in the context of criminal law, singletons are protected from even minimal invasions of corporeal integrity.34 In the words of Goff LJ, ‘[t]he fundamental principle, plain and incontestable, is that every person’s body is inviolate. It has long been established that any touching of another person, however slight, may amount to a battery.’35 This is consistent with liberal law’s claim that it seeks to protect the physical autonomy of subjects and to promote the value of life as intrinsic worth (Naffine, 1997, p 85). This contrast in the legal protection afforded finds further expression in civil law. A vivid illustration of this is provided by the Pennsylvania decision in McFall v Shimp.36 In this case, a competent adult refused to donate bone marrow in circumstances where he was the only suitable match for his cousin who was suffering from aplastic anemia.37 While the operation 33 Moreover, as Dreger notes, ‘[n]on-emergency separation surgeries almost never improve the physical health of either twin. In fact, they often leave the children’s bodies – at least temporarily and often permanently – much more ill and impaired than before, and they may significantly reduce life expectancy’ (2004, p 60). Further, only 5% of separated conjoined twins are ever discharged from hospital (Winch and Ginyea, 1994, p 808). Given the fact that separation surgery sometimes involves changing the sex of one of the twins, there is overlap between chapters 5 and 6. 34 Thus the offence of Occasioning Actual Bodily Harm contrary to s. 47 of the Offences Against the Person Act 1861, requires only minimal bodily harm. In R v Donovan [1934] KB 498 Swift J defined actual bodily harm to include ‘any hurt or injury calculated to interfere with . . . health or comfort . . . Such hurt or injury need not be permanent, but must . . . be more than merely transient and trifling’ (p 509). 35 Collins v Wilcock [1984] 3 All ER 374 at 378. As Naffine notes, Blackstone is cited as the basis for this rule (1997, p 85). For Blackstone, ‘the law cannot draw a line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man’s person is sacred and no other having a right to meddle with it, in any slightest manner’ (Blackstone, 1979, vol 3, p 120). 36 McFall v Shimp, 10 Pa.D. & C. 3d 90 (1978). For an analysis of the case see, for example, Gallagher (1987), Bordo (2003) and Munro (2001). 37 Aplastic anemia is a condition in which bone marrow does not produce sufficient new cells to replenish blood cells. Untreated aplastic anemia is an illness that leads to rapid death, typically within six months (Locasciulli, Bacigalupo et al, 2007).

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represented the only chance of survival, the court insisted that a person could not be coerced into undergoing a surgical procedure.38 As the court put it, ‘[f]or our law to compel the Defendant to submit to an intrusion of his body would change every concept and principle upon which our society is founded. To do so would defeat the sanctity of the individual, and would impose a rule which would know no limits.’39 Indeed, the court put the point more forcefully: For a society which respects the rights of one individual, to sink its teeth into the jugular vein or neck of one of its members and suck from it sustenance for another member, is revolting to our hard-wrought concepts of jurisprudence. Forcible extraction of living tissue causes revulsion to the judicial mind. Such would raise the spectre of the swastika and the Inquisition, reminiscent of the horrors this portends’ (Emphasis in original).40 This Gothic language is interesting, especially in view of the similar language employed by the court in Re A.41 Yet, in McFall v Shimp the vampire metaphor is invoked in the face of horror provoked at the prospect of bodily invasion of a legal subject. Conversely, in Re A it is Mary, precisely a victim of bodily invasion and, moreover, one whose life is certain thereby to be extinguished, who is presented in blood-sucking terms. In other words, the sanctity of bodily integrity appears limited to the (usual) situation where the law has to weigh the interests of separate embodied persons. In circumstances where the interests to be weighed lie in the embodied space of concorporation the generality of the principle of autonomy breaks down. In this moment, and in qualifying Mary’s right to life, Kantian imperatives are abandoned (Kant, 2007). What is revealed here is the fact that conferral of a full set of legal rights is conditional on a particular mind/body conjunction. Conjoined twins are not the preferred subject of the law. In relation to conjoined twins, even the most fundamental of rights, the right to life, cannot be guaranteed. And this is despite the fact that law assumes conjoined twins to be separate legal persons for the purposes of analysis of rights. What all this points to is the logic and desirability, if not the inevitability, of separation in liberal legal and medical thought and practice. Ultimately, in legal discourse, bodily integrity is premised on separation. Indeed, Walker LJ suggested that bodily integrity was precisely what Mary

38 However, coercive force does appear to receive legal sanction in the contexts of pregnancy, where forced caesareans are sometimes mandated (see Gallagher, 1987; Wells, 1998; and Bordo, 2003, pp 76–77), and the sterilisation of mentally disabled women (Brazier and Cave, 2007). The UK courts have ordered sterilisation in a number of cases (see Re P (A Minor) (Wardship: Sterilisation) [1989] 1 FLR 182; Re F (Mental Patient: Sterilisation) [1990] 2 AC 1). 39 McFall above, note 36, p 91. 40 Id, p 92. 41 Re A above, note 2, p 1010.

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would gain from separation, even in death,42 a view shared by Brooke LJ.43 In pursuing this point he explained that, ‘for the twins to remain alive and conjoined in the way they are would be to deprive them of the bodily and human dignity which is the right of each of them.’44 As Watt notes, ‘the suggestion that a conjoined twin should be given a more normal-looking body at the cost of her life represents a new low point in the way we see the disabled’ (2001, p 239). It would seem that bodily integrity is more recognisable in the corpse of a singleton than it is in the case of conjoined twins. Yet, surely, as Hewson contends, respect for the principle of autonomy ‘points to leaving the twins intact, not to separating them’ (2001, p 297).

6.4 Pregnancy as non-monster concorporation This legal refusal to think beyond separateness is not confined to the example of conjoined twins. Rather, it is a more general problem, which conjoined twins serve to dramatise. In terms of the boundary problem of concorporation specifically, legal understandings of conjoined twins can be likened to legal understandings of the pregnant female body. Like conjoined twins, pregnancy challenges implicitly a legal approach premised on conflict and separateness. At the level of biological reality the foetus is clearly dependent on the body of the pregnant woman. ‘There is no scientifically verifiable “fact” that designates woman and foetus as separate’ (Karpin, 1992, p 326). As Vasseleu notes, ‘the ambiguous determination of a pregnant woman’s body/matter as both hers and an other’s defies the transcendental idealised subjectivity of legal invention’ (1996, p 119). Yet, as in the case of conjoined twins, law emphasises separateness. Indeed, it is precisely a view of the pregnant woman and foetus as separate entities that informs foetal protection arguments (Diduck, 1993, p 471). That is to say, it is a separation thesis that makes possible coerced interventions, including enforced caesareans (Gallagher, 1987; Wells, 1998; Bordo, 2003, pp 76–77).45 As with conjoined twins, law resists the idea that foetus and pregnant woman undermine a liberal understanding of autonomy as separateness. Within the legal domain there would appear to be no place for the idea of the pregnant female body as one, or as ‘not one, but not two’ (Karpin, 1992, p 329). While

42 Id, p 1069. 43 Id, p 1052. Indeed, according to Brooke LJ it is bodily integrity and dignity that nature has denied her. Ward LJ did not share this view. Rather, he insisted that ‘Mary’s life, desperate as it is, still has its own ineliminable value and dignity’ (at p 1002). Callahan and Mitchell have noted that within medicine, ‘separation is frequently posited to be a prerequisite to a life of “dignity” ’ (1970, p 214). 44 Id, p 1069. 45 For a critique of the creation and development of foetal rights see, for example, Johnsen (1986), Gallagher (1987), Kolder, Gallagher and Parsons (1987), Bennett (1991), McLean and Petersen (1996) and Meredith (2005).

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the foetus can only be a matter of potentiality (Seymour, 1994, p 33), it is the idea of separateness that law chooses to privilege in its analysis of the pregnant female body. However, there are important elements that serve to distinguish the state of pregnancy from the situation of conjoined twins. In particular, and in the context of our concern with the monster concept, it is only the latter that fall within its purview. This is not to deny that pregnant women are othered by law. Rather, it is to draw attention to Foucault’s idea of the double breach, of law and nature, as the structuring principle of monster production. In contrast to conjoined twins, pregnant female bodies do not constitute monsters because there is an absence of a breach of nature. While pregnancy may present a difficulty for, or challenge to, the abstract individual of legal and political liberal fantasy, it nevertheless remains a natural process, and, perhaps, more importantly, has not been constructed otherwise. Moreover, and in contrast to conjoined twins, this example of concorporation is one that arises after the prior establishment of a legal subject. In this respect, the element of natality may serve to preclude the appellation monster, as legal monsters, on this account, are only those creatures thrown into the world fully formed. Conversely, conjoined twins represent both a breach of law and nature. The breach of nature consists in a significant degree of morphological irregularity evident at birth, a fact that law proves incapable of accommodating within the legal order. It also finds judicial expression in Re A despite disavowal of the monster category in the case. Thus the court, in referring to the dependency of Mary on Jodie, described Mary’s life as ‘so unnaturally supported’.46 In relation to breach of law, conjoined twins, at least prior to their separation, continue to pose a challenge to the legal idea of the subject as a single embodied mind.

6.5 The promise of conjoined twins and the challenge of law In suggesting that conjoined twins can be viewed as monsters in Foucault’s theoretical terms, my aim is to draw attention to the challenge that law poses to a more pluralistic understanding of embodied difference. That is, liberal law represents a barrier to the realisation of the promise that these particular forms of embodiment offer politically. In regulating conjoined twins, law seeks to reproduce the notion of a coherent legal subject. In effect, conjoined twins are offered up as a sacrifice at the altar of coherent legal subjecthood. In other words, they are constructed as morphological irregularities that mirror the coherence and integrity of the legal body. In the words of Grosz, such forms of difference confirm the viewer ‘as bounded, as belonging to a “proper” social

46 Re A above, note 2, p 1011 per Ward LJ.

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category’ (1996, p 65). Yet, the idea of singular embodiment is not a material given. Rather, it is ideological and phantasmatic. As Clark and Myser observe, ‘[t]he notion of a discrete subject inhabiting the self-contained body that is is . . . a powerful (yet paradoxically disembodied) notion that real, lived bodies of all shapes and sizes are nevertheless compelled to mimic, and against which their normality or abnormality is measured’ (1996, p 351). The important point to grasp here is that ‘both conjoined and singular bodies can only approximate this ideal condition’ (Clark and Myser, 1996, p 351).47 Like ‘sex’, the notion of singular embodiment operates as ‘a principle of intelligibility for human beings’ (Butler, 1992, p 352). Yet, ‘the difference between the properly proportioned body and the monstrous body is always undercut by the generally improper and ill-proportioned nature of corporeality’ itself (Clark and Myser, 1996, p 353). For ‘bodies are never wholly distinct entities to those who live them, as it were, from within’ (1996, p 353). There simply is ‘no single manner of being incarnate’ (1996, p 351). It is precisely this fact that conjoined twins serve to dramatise. And, of course, it is precisely this fact that law chooses to disavow. In the words of Dreger: Rather than looking at conjoined twins and noticing how much or how little autonomy singletons’ minds and bodies really possess – rather than letting their bodies challenge ours, rather than struggling with the question of what it means to have an individual mind or body in an intimate society – we choose to eliminate conjoined twins, to eliminate their accidental and profound questioning of the very concept of human individuality (1998b, p 25). The difficulty with legal analyses of conjoined twins lies in law’s failure to appreciate or acknowledge the paradoxical fact that ‘being conjoined is part of conjoined twins’ individuality’ (Dreger, 1998b, p 26). This difficulty presents itself in the legal claim that there is something ‘unnatural’ about the interdependence of conjoined twins and in law’s insistence that legal subjecthood requires a single embodied mind. Conjoined twins challenge implicitly this legal attitude. They might be viewed as providing a metaphor for an alternative way of imagining the relationship between body and mind, and therefore the conditions of legal subjecthood. For conjoined twins, like the transsexual, represent an excess of meaning. While the transsexual problematises the relationship between male and female as well as the coherence of that distinction, conjoined twins call for a rethinking of the relationship between body and mind, and correspondingly, of a liberal individualistic understanding of autonomy as separateness. They serve to exemplify the importance of feminist and broader collective values of concern, connection and cooperation. Indeed, and 47 It is for this reason that Canguilhem asserts: ‘it is not paradoxical to say that the abnormal, while logically second, is existentially first’ (1991, p 243).

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as noted by Dreger, the biographies of conjoined twins suggest that they are ‘models of cooperative behaviour’ and that this fact is perhaps precisely an effect of their ‘lack of “individuation” ’ (1998, p 12).48 In a slightly different and Levinasian register, it is the very excess of meaning that conjoined twins represent for law that gives them value. As Manderson notes, for Levinas, ‘[v]alue is what is left over, the excess beyond our efforts to know, define, and to commodify’ (2006, p 138). It is precisely for this reason that conjoined twins and, of course, monsters more generally offer political promise.

6.6 Innocent monsters The comparison between conjoined twins and the transsexual however, has some limits. While both might be considered monsters in Foucault’s terms, each bears a different relationship to the element of responsibility. While, as an example of the abnormal individual, the transsexual can be viewed as blameworthy, this cannot be said of conjoined twins. While transsexual desire might be understood as deep-rooted, there is clearly a degree of agency involved in living as a transsexual and in deciding whether to undergo sex reassignment surgical procedures. Conversely, while conjoined twins can be viewed as representing a double breach, of law and nature, the element of culpability cannot be attached to their birth.49 While the parents are responsible for the birth, they cannot be held responsible for the high degree of morphological irregularity arising.50 In

48 However, it is precisely a lack of individuation in psychological terms that it is often used to justify non-emergency separation surgeries (Dreger, 2004, p 60). Thus it has been contended that without separation, conjoined twins will not develop ego boundaries (see Segal (1999, p 149) and Lipsky (1982, p 58)). Yet, one does not create two autonomous beings through separation surgery. As Grosz notes, ‘conjoined twins are bonded through the psychical inscription of their historical, even if not current, corporeal links. Those who have shared organs, a common blood circulation, and every minute detail of everyday life can never have this corporeal link effaced’ (1996, p 64). 49 Interestingly, while conjoined twins are clearly innocent in relation to the circumstances culminating in their concorporated state, the Court of Appeal in Re A introduced the theme of culpability in comparing the interests of Jodie and Mary and in seeking to justify separation. Thus, and as already noted, Ward LJ ‘posited Mary as an aggressive parasite sucking the lifeblood from her sister’ (Munro, 2001, p 466). He also suggested that she owed Jodie ‘a debt she can never repay’ (Re A above note 2, p 976). In this way, and as noted by Hewson (2001, p 294) the relationship between Jodie and Mary is placed in particular moral philosophical terms, leading Ward LJ to conclude that Mary ‘has little right to be alive’ (Re A above note 2, p 1010). 50 It should be noted however, that women have, in other contexts, been held responsible for effects produced on the bodies of their offspring. Thus some pregnant women who smoked, consumed alcohol or took illicit drugs during the pregnancy have been prosecuted because of the effects these practices had on the child (see Karpin, 1992; Tong, 1999; Epstein, 1999, pp 113–114; and Meredith, 2005, pp 25–26). Moreover, and in the US context, it has been noted that a disproportionate number of women prosecuted for drug use while pregnant are black (Roberts, 1991; Logan, 1999).

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this sense, monstrosity cannot be viewed as an effect of monstrousness. While there is historical evidence for the existence of a belief in a causal relationship between monstrosity and monstrousness, as earlier chapters have demonstrated, it would seem that legal regulation of conjoined twins in the present provides support for Foucault’s claim that elements of causation and responsibility are not essential to the production of law’s monsters. For Foucault, we do not need the element of culpability in order to understand monsters. Rather, the monster is simply ‘the casuistry that is introduced into law by the confusion of nature’ (Foucault, 2003, p 64). The absence of this particular moral philosophical dimension in the case of contemporary conjoined twins however, is not without significance. While it does not preclude the attribution monster, it perhaps accounts for the greater difficulty encountered in making that attribution. In contrast to the transsexual, conjoined twins prove consistently to be the object of judicial sympathy. Unlike the former, the latter are perceived as innocent. And their innocence, along with a lack of any other culpable actor to blame, surely plays an important role in shaping legal and wider cultural attitudes towards them. It is, perhaps, for this reason that in contrast to cases involving conjoined twins, transsexual jurisprudence has proved more emotive. It is hard to imagine, for example, that, without an assumption of transsexual agency, Ormrod J could have described April Ashley’s vagina as an ‘artificial cavity’, or compared its use sexually to anal intercourse.51 This point is an important one because it may serve to inform our understanding of differential responses to monsters. That is to say, it may be the legal and cultural mobilisation of an assumption of culpability that helps explain a greater degree of hostility generated toward particular forms of embodied difference.

6.7 Conclusion This chapter has considered the monster concept in the contemporary context of conjoined twins. It has contended that despite legal disavowal of the idea of the monster in Re A, the monster concept remains relevant to an adequate understanding of the contemporary legal regulation of conjoined twins, including the legal desire to cleave them. Conjoined twins can be understood as monsters in Foucault’s terms because they represent a double breach, of law and nature. At the level of nature, conjoined twins introduce a significant degree of morphological irregularity into the world. However, this fact alone does not produce conjoined twins as monsters. Rather, monster 51 Corbett v Corbett [1970] 2 All ER 33, p 49. Of course, Ormrod J’s comments can be comprehended in terms of a nature/artifice distinction. That is to say, his view of April Ashley’s vagina as an ‘artificial cavity’ might be understood in terms of the fact that it has been surgically created rather than evident at birth. Nevertheless, a legal emphasis on artifice serves to draw attention to April Ashley’s role in the process of her transitioning from male to female.

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status arises because of the simultaneous breach of law. For, as Foucault notes, monstrosity, as opposed to morphological irregularity per se, ‘is the sort of irregularity that calls law into question and disables it’ (Foucault, 2003, p 64). Concorporation, in the form of conjoined twins, calls law into question because it challenges a liberal legal understanding of personhood. As this chapter has argued, liberal law understands the legal subject in terms of a particular relationship between body and mind. Specifically, the legal subject is understood as a single embodied mind. It is the capacity for reason and, perhaps, more importantly, the possession of a body with clear boundaries that proves crucial.52 In this regard, full legal and human status is premised on the idea of separateness, rather than connection and inter-dependence. Law cannot easily imagine subjects of the law outside this frame. So embedded is this legal outlook that even the right to life, sanctified in relation to regular bodies, cannot protect conjoined twins, and, in particular, a weaker twin, from medico-legal termination. Conjoined twins however, like the pregnant woman, serve to problematise the inevitability and desirability of this particular construction of the legal subject. Liberal law emerges as a barrier to the realisation of the political promise that conjoined twins represent conceptually. This political promise is implicit in the fact that conjoined twins point to the need to rethink the relationship between body, mind and legal subjecthood. Finally, this chapter drew attention to the element of culpability and its absence in the case of conjoined twins. In this respect, legal regulation of conjoined twins in the present provides support for Foucault’s claim that monster status does not depend on locating a party to blame. Nevertheless, it was contended that culpability my still play an important role in understanding monsters. In particular, it may shed light on the degree of hostility that particular monsters occasion. Thus it may be that, while monster status does not depend on the element of culpability, this element serves to distinguish between monsters. As we saw in chapter 2, it was precisely this element that served to distinguish Swinburne’s late sixteenth-century human/animal hybrids from those creatures whose bodies were merely excessive or disordered. For Swinburne, human/animal hybrids were unquestionably monsters. Conversely, creatures whose bodies were merely excessive or disordered might fall on either side of the deformity/monstrosity dyad. However, where the latter creatures fell on the monstrosity side of the divide, the element of monstrousness did not, in Swinburne’s view, depend on an assumption of culpability. Accordingly, Swinburne’s human/animal hybrids, which occupied an apex position within

52 This legal preoccupation with the body is not new. In terms of a legal history of the monster category, it is, as we saw in chapter 4, the body rather than the mind that proves to be the ultimate bedrock of what it means to be human.

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his monster hierarchy, and which generated the greatest legal anxiety, are distinguished by the element of fault or, more specifically, the blameworthiness of the mother. We will return to this element, and its importance to an understanding of monsters, in the following chapter where we will turn our attention to another contemporary monster, the human/animal admixed embryo.

Chapter 7

Admixing embryos The problem of human/animal hybrids

The longest-debated frontier of human identity is that between humans and other animals (Fernandez-Armesto, 2004, p 10).

7.1 Introduction In the previous chapter we considered the ‘problem’ of concorporation in the specific and contemporary context of conjoined twins. In this context, emphasis was placed on the continued relevance of the older meaning of the concept of monstrosity as morphological irregularity. Indeed, and as noted in chapter 6, it may be that conjoined twins represent the sole figure to have been considered a legal monster over time as an unbroken chain. Certainly, in relation to Foucault’s monster archetypes, this claim could only be made in relation to conjoined twins. In this chapter, we return to another of Foucault’s monster archetypes, namely the bestial human or human/animal hybrid. For a focus on admixed embryos brings to the fore, in a particular contemporary context, an age-old concern over human/animal hybridity and the conceptual problem or category crisis that it represents. Moreover, human/animal admixed embryos, like conjoined twins, redraw our attention to the contemporary relevance of the older meaning of the concept of monstrosity as morphological irregularity. This is an important point to emphasise because it would be mistaken to see the abnormal individual, and therefore a modern understanding of the concept of monstrosity as psyche or interiority, as exhausting the relevance and applicability of the monster concept in the present. In other words, while there has been an historical shift from the body to the soul as the target of legal regulation (Foucault, 2003, p 110), and while it is now possible to think of the abnormal individual as a contemporary monster, law’s disavowal of the monster should not be conceded in relation to the materiality of the body.1

1

As we saw in the previous chapter, the legal category monster was explicitly disavowed in the English decision of Re A (Children) (Conjoined Twins: Surgical Separation) [2000] 4 All ER 961.

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Moreover, while Foucault positions the bestial human in terms of a genealogy of the abnormal individual, it would seem that this latter figure is not the end of a history that traces concern over human/animal hybridity into the present. For medical science, having formerly vanquished the idea of the human/animal hybrid, appears to have breathed new life into this legal figure. Of all the instances of hybridity considered in this book it may be that the human/animal distinction is the most profound, and concern surrounding it the most enduring. Certainly, the human/animal distinction is an important one in understanding monsters. Further, despite Foucault’s location of anxiety around this particular dyad and conceptual problem in the Middle Ages, it would seem that concern over a breakdown in the paradigm of separation of species has increased over time. While the onset of this crisis has been dated as early as the late Middle Ages (Salisbury, 1994, p 2), it is one that became more pronounced with the passage of time and the discomfiting findings of science (Thomas, 1983, p 122; Pfister, 1992, p 21; Fudge, 2000a, p 23). Certainly, by the end of the eighteenth century, the Western worldview, resting on the idea of the ‘Great Chain of Being’, was under enormous pressure from the scientific community.2 Further, and while perhaps not essential to the production of monsters, the human/animal distinction has occupied a central place in the legal history of the category. Indeed, within law, as within the broader culture, anxiety over the boundary between human and animal has increased over time. Certainly, as we saw in chapter 4, in the context of an English legal history of monsters this type of anxiety is most evident, not in the mid-thirteenth century legal texts of Bracton (1240–1260 (1968, vol 2, p 31)) and Britton (Nichols, 1983, para. 19), but in Blackstone (1765–1769 (1979, vol 2, pp 246–247)), and therefore in the period of the Enlightenment. In chapter 4, emphasis was placed on the implications of this finding for our understanding of the abnormal individual, a theme subsequently explored in some depth in chapter 5 in the context of the medicolegal regulation of transsexuality. Thus, while the human/animal admixed embryo might be considered to be a return of one of Foucault’s monster archetypes, concern over human/animal hybridity has persisted within Western culture and law. Accordingly, and while contemporary biotechnological developments certainly heighten community alarm, concern over the human/animal distinction needs to be situated within this longer historical trajectory.

7.2 Human/animal hybridity as contemporary crisis In the contemporary context, it is perhaps challenge to the human/animal distinction that represents the greatest perceived threat to the notion of human

2

According to this view, the world was believed to be ordered and hierarchical. God sat at the apex, below him sat the angels, then human beings, followed by various classes of non-human animals, and finally other lesser living matter (see Lovejoy, 1970; Morriss 1997).

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identity. For Fernandez-Armesto, ‘[h]umanity is in peril: not from the familiar menace of “mass destruction” and “ecological overkill” – but from a conceptual threat’ (2005, p 1). The conceptual threat to which he refers is one that undermines ‘the coherence of our understanding of what it means to be human’ (2005, p 1). He identifies six main sources of this threat in the present, namely, primatology,3 the animal rights movement, palaeoanthropology, biology, artificial intelligence and genetic research. With the exception of artificial intelligence, what all these sources implicate, and of course complicate, is increasing indistinction between human and animal. In the context of the animal rights movement, ‘a frontal assault on the moral demarcation line between human and nonhuman animals has been ongoing for at least 30 years’ (Thompson, 2003, p 14; see also Singer, 1975). Speaking more generally, Haraway notes that ‘[b]y the late twentieth century in United States scientific culture, the boundary between human and animal is thoroughly breached. The last beachheads of uniqueness have been polluted . . . language, tool use, social behaviour, mental events, nothing really convincingly settles the separation of human and animal’ (1985, p 68; see also Martin, 1995, p 268). Indeed, since the Human Genome Project, the specialness of Homo Sapiens at the biological level has become even more suspect. Thus we differ genomically from chimpanzees by no more than 1.2–1.6 per cent (Allen, 1997; Marks 2002; Enard, Khaitovich, Klose et al, 2002; Olson and Varki, 2003).4 More significantly perhaps, while ‘human beings might share 99.9 per cent commonality at the genetic level, there is nothing as yet identifiable as absolutely common to all human beings. According to current biology, there is no genetic lowest common denominator, no genetic essence’ (Robert and Baylis, 2003, p 4). That is to say, there is ‘no single standard, “normal” DNA sequence that we all share’ (Lewontin, 1992, p 36). Accordingly, it is perhaps, unsurprising that there is no one species concept that is universally compelling (Robert and Baylis, 2003, p 3).5 Moreover, this crisis has perhaps, been exacerbated by the explosion of human rights discourse. Certainly, Invernizzi-Accetti contends that the distinction between human and animal ‘is increasingly acquiring a major political significance, because of its connection with the question of human rights’ (2007). 3

4

5

Donna Haraway argues that primates are the key boundary animals and that ‘the discipline of primatology is really about the simultaneous and repetitive constitution and breakdown of the boundary between the human and the animals’ (Noske, 1997, p 80; see also Haraway, 1986, p 92). It has also been noted that, ‘the differences between us and chimps might not be due entirely to the 1.5% of DNA that is different but rather to the regulation of the genes that we have in common with chimps’ (Savulescu, 2003, p 23). Indeed, it has been noted that currently there are as many as 22 definitions of species in the biological literature (Mayden, 1997). It should be recognised that the notion of ‘species’ is an historical and scientific construct. From a Darwinian perspective, ‘species are only assemblies of genes, interacting at random with each other and their shifting environments. . . . Species do not exist’ (Gray, 2002, p 3).

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For the purposes of this chapter, the blurring of the boundary between human and animal will be explored through a focus on genetic research and its legal regulation.6 Due to contemporary developments in biotechnology, we live in a time when the older meaning of the term monstrosity, that of morphological irregularity, is reasserting itself in the guise of ‘genetic monsters’ (Rollin, 1995; Lo, 2000; Cirlin, 2003, pp 509–510; Smith, 2003; Fernandez-Armesto, 2004, chapter 5). Indeed, it may be that contemporary legal, and broader cultural, anxieties are being displaced onto these genetic figures and therefore onto the body as contemporary monstrosity. In this respect, we are perhaps witnessing not only a return to the body as the surface of monstrosity, as distinct from a modern understanding of monstrosity as psyche or interiority, but also a return to an understanding of monstrosity as the visible manifestation of monstrousness (Canguilhem, 1964, p 30). Our focus in this chapter however, lies not with genetic monsters at large, but with biotechnological developments that involve the mixing of human and animal. For, while contemporary legal and broader cultural concerns surrounding genetic monsters revolve around a variety of actual and possible biotechnological practices, including, human cloning, genetic engineering (Pottage, 1998; Fukyama, 2002), and other forms of artificial reproduction, the life form whose possibility has generated the greatest alarm is the human/animal hybrid (Fishman, 1989; Marks, 2002; Cirlin, 2003, pp 506–510).7 For it is the potential for mixing human and nonhuman at the level of reproduction that arouses the greatest anxiety,8 a fact that provides a link with legal monsters of old given the prevalence historically of an assumption of bestiality. Thus it is not the fact of mixing species alone that produces such consternation, but the mixing of human and animal. As Robert and Baylis note, ‘the creation of plant-to-plant and animal-to-animal hybrids,

6

7

8

In relation to the other five sources of conceptual threat to the notion of human identity, identified by Fernandez-Armesto, ‘primatology has heaped up examples of how like other apes we humans are . . . the animal rights movement has been remarkably successful in challenging us to identify what, if anything, entitles us to privileged treatment, compared with other animals . . . palaeoanthropology has made the traditional limits of the genus homo nonsensical . . . biology seems to have changed the balance of the age-old philosophical question about whether species are natural kinds, with essential traits, or merely sets or categories into which we group creatures for convenience . . . [and] . . . artificial intelligence research has stimulated philosophical re-thinking of concepts once key to human self-definition, such as consciousness, reason, imagination, and moral passions’ (2005, pp 1–5). See also Haraway (1989, 1991). Contemporary anxiety over the possibility of human/animal hybrid creatures is, perhaps, exacerbated by the fact that the present era coincides with ‘a total animalization of man’ (Agamben, 2004, p 77). According to Agamben, now that ‘traditional historical potentialities [of] poetry, religion, philosophy . . . have lost all political efficacy . . . the only task that still seems to retain some seriousness is the assumption of the burden – and the “total management” – of biological life, that is, of the very animality of man’ (2004, p 77). A concern to distinguish human from animal is not confined to law or to the contemporary period. Rather, a concern of this kind operates on a broader cultural level and can be dated to at least the sixteenth century (see, for example, Pfister, 1992, p 21; Thomas, 1983, p 122).

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either artificially or in nature, does not foster such a vehement response as the prospective creation of interspecies combinations involving human beings’ (2003, p 2). This chapter will introduce and elaborate the figure of the human/animal admixed embryo. It will highlight how legal regulation differs in this context from the regulation of other examples of legal monsters considered in the book. In contrast to intersex people, transsexuals and conjoined twins, which in different ways, have all been subjected to processes of normalisation, the legal stance adopted in the face of human/animal admixed embryos will be seen to be one of prohibition or termination after a maximum period of 14 days.9 The chapter will also draw attention to the way that human/animal admixed embryos serve to emphasise the importance of the concepts of natality and responsibility in understanding monster production. In relation to the element of natality, human/animal admixed embryos can be likened to other examples of morphologically irregular monsters. That is to say, like intersex people and conjoined twins, the human/animal admixed embryo is thrown into the world fully formed. Here monster status, if conferred, is aligned with the birth moment. This is, as we saw in chapter 5, also true of the transsexual, as an example of abnormal individuality, to the extent that the core of transsexual desire, and therefore monstrosity, can be traced to birth. In relation to the element of responsibility, the human/animal admixed embryo can be distinguished from intersex people and conjoined twins, though not from the transsexual. The reason for this is that in the eyes of the law, intersex people, conjoined twins, and their parents are considered to lack culpability. Conversely, in the case of transsexuals and human/animal admixed embryos, human agency is considered to be implicated in monstrosity. In the case of the transsexual, the human agency in question is, as we saw in chapter 5, the transsexual’s own. In relation to human/animal admixed embryos it is located within scientific endeavour. While the absence of culpability in relation to conjoined twins does not serve to preclude the attribution of monster status, as we saw in chapter 6, it may be that its presence serves to heighten legal anxiety in relation to human/animal admixed embryos. Before proceeding to elaborate on these themes however, the chapter will first consider UK legal provisions that have been occasioned by anxiety surrounding the return of the human/animal hybrid.

7.3 Legal regulation of human/animal admixed embryos While legal regulation has lagged, and in many jurisdictions continues to lag, behind advances made in genetic science, several Western jurisdictions have

9

See, for example, the Human Fertilisation and Embryology Act UK 2008.

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now legislated so as to either prohibit and/or control a variety of biotechnological reproductive practices.10 Such laws have been informed by public concern regarding the nature and pace of scientific developments in the biotechnological arena. Certainly, ‘[t]he first ethnographic study of new reproductive and genetic technologies conducted in Britain in the early-1990s, provided considerable data demonstrating a widely shared desire for clear limits to their use’ (Franklin, 2003, p 25; see also Edwards, Franklin, Price, Hirsch and Strathern, 1999). In the specific context of human/animal experimentation, public alarm proves to be an effect of a perceived loss of the distinctiveness of human being, fear over the possibility of cross-species disease transmission (Brown and Michael, 2004; Cohen, 2003, p 3) and moral objection (BBC News, 2008).11 A notable feature of legislative enactments in this area is the outlawing of the uterine development of human/animal hybrids.12 Thus, for example, the Canadian Assisted Reproduction Act 2004 prohibits the transplantation of ‘sperm, ovum, embryo or foetus of a non-human life form into a human being’,13 the use of ‘any human reproductive material . . . that is or was transplanted into a non-human

10 Some scholars have called for an international ban on experimentation with human embryos (see, for example, Annas, Andrews and Isasi, 2002). 11 There is also an important moral concern about the treatment and futures of hybrids. As Rollin contends, the ‘greatest moral challenge to genetic engineering’ lies in its implications for ‘the plight of the creature’ (2003, p 15). 12 Countries banning this type of research include France, Germany, Australia, Canada and the UK. In the United States, legislation to regulate the production of human/non-human life forms has not yet been enacted (Kopinski, 2004). However, on 15 November 2007 the Human-Animal Hybrid Prohibition Bill was introduced into Congress. The Bill lapsed but was reintroduced into Congress on 24 April 2008. If this legislation is enacted it will, by virtue of section 1132(a), amend the federal criminal code to prohibit and to set penalties for: (1) creating or attempting to create a human-animal hybrid (a being with human and nonhuman tissue as specified in this Act); (2) transferring or attempting to transfer a human embryo into a non-human womb; (3) transferring or attempting to transfer a non-human embryo into a human womb; or (4) transporting or receiving for any purpose a human-animal hybrid. However, while there is, as yet, no law in the United States prohibiting human/animal embryo experimentation, applications to patent chimeras have produced a regulatory response. In 1999 the United States Patent and Trademark Office (USPTO) rejected an application claiming that chimeras containing up to 50% human DNA are patentable subject matter. This patent application was brought by cellular biologist Stuart Newman and biotechnology activist, Jeremy Rifkin (the ‘Newman patent’). As Kopinski notes: ‘the objective was not to create the chimeras, but rather to secure the exclusive right to the technology for twenty years after the patent was granted, or, if the patent was denied, to reduce the economic incentive for others to develop chimeras’ (2004, pp 632–633). The USPTO has maintained that it will not grant patents on human life or in relation to the processes that create human life (Kopinski, 2004, p 633; see also Resnik, 2003, p 35). In identifying the legal basis for this ban, the USPTO stated that the Newman patent ‘would violate the Thirteenth Amendment, which forbids slavery and the ownership of human beings’ (Kopinski, 2004, p 633; see also Rivard, 1992, p 1428; and Chakrabarty, 2003, p 21). 13 Assisted Reproduction Act 2004, s. 4(g).

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life form’,14 the creation of ‘a chimera, or transplant[ation of] a chimera, into either a human being or a non-human life form’15 and the creation of ‘a hybrid for the purpose of reproduction’ or transplantation into ‘either a human being or a non-human life form’.16 In the UK, the Human Fertilisation and Embryology Act 2008, though less restrictive, prohibits placing in a woman ‘a human admixed embryo’17 or ‘any gametes other than human gametes’.18 The UK legislation also restricts ‘placing a human admixed embryo in an animal.’19 The recent UK legislation is revealing more generally of legal and broader cultural anxiety surrounding the crossing of species boundaries. Like Canadian law, the UK legislation does allow human/animal mixing at the cellular level falling outside the restrictions already noted, and specifically for non-reproductive research purposes.20 However, as the parliamentary debates and amendments to the Bill demonstrate, the precise parameters of human/animal mixing allowed generated both confusion and alarm. While no human/animal admixed embryo

14 Id at s. 4(h). 15 Id at s. 4(i). The word chimera referred originally to an ancient Greek mythological beast with a lion’s head, goat’s body and dragon’s tail (Evslin, 1989). Section 3 of the Canadian Assisted Reproduction Act 2004 defines chimera to include ‘an embryo into which a cell of any nonhuman life form has been introduced’. 16 Id at s. 4(j). Section 3 of the legislation defines ‘hybrid’ to mean ‘(a) a human ovum that has been fertilized by a sperm of a non-human life form; (b) an ovum of a non-human life form that has been fertilized by a human sperm; (c) a human ovum into which the nucleus of a cell of a non-human life form has been introduced; (d) an ovum of a non-human life form into which the nucleus of a human cell has been introduced; or (e) a human ovum or an ovum of a non-human life form that otherwise contains haploid sets of chromosomes from both a human being and a non-human life form’. 17 Section s 4A(1)(a). In this Act, which replaces the Human Fertilisation and Embryology Act 1990, a ‘human admixed embryo’ is defined by s. 6 to mean: (a) an embryo created by replacing the nucleus of an animal egg or of an animal cell, or two animal pronuclei, with— (i) two human pronuclei, (ii) one nucleus of a human gamete or of any other human cell, or (iii) one human gamete or other human cell, (b) any other embryo created by using— (i) human gametes and animal gametes, or (ii) one human pronucleus and one animal pronucleus, (c) a human embryo that has been altered by the introduction of any sequence of nuclear or mitochondrial DNA of an animal into one or more cells of the embryo, (d) a human embryo that has been altered by the introduction of one or more animal cells, or (e) any embryo not falling within paragraphs (a) to (d) which contains both nuclear or mitochondrial DNA of a human and nuclear or mitochondrial DNA of an animal (‘animal DNA’) but in which the animal DNA is not predominant. 18 Id at s. 4A(1)(c). A gamete is a sexual reproductive cell. 19 Id at s. 4A(4). 20 Id at s. 4A(2); Assisted Reproduction Act 2004, s. 11.

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is allowed by law to survive for more than 14 days,21 the Act otherwise permits persons licensed by the Human Fertilisation and Embryology Authority to ‘mix human gametes with animal gametes,22 bring about the creation of a human admixed embryo,23 or keep or use a human admixed embryo’.24 Baroness Paisley described these provisions as ‘iniquitous and immoral’,25 insisting ‘that the creation of animal/human embryos for research is not only unnecessary and undesirable, but unethical and would undermine our human dignity and alter the very nature of humanity’.26 Other parliamentarians, while perhaps sharing these sentiments, focused on the phrase ‘human admixed embryo’ and, in particular, on specifying the ratio between human and animal in the admixtures permitted under the Act. This concern is perhaps, best captured by Lord Tebbit who requested ‘a clear definition of what is a human admixed embryo and what is an animal admixed embryo’.27 The Secretary of State for Health, Alan Johnson, sought to reassure the House of Commons on this point by noting that ‘[t]he process of creating the admixed embryo most commonly used to grow stem cells involves taking an animal egg and replacing the nucleus with the cell from a human skin cell. The resultant embryo is 99.9 per cent human.’28 However, this type of admixture, which has been referred to as a cytoplasmic hybrid or cybrid (Department of Health, 2007, para. 1.12),29 does not exhaust permissible experimentation under the Act. Rather, the legislation covers a variety of procedures. These include the creation of what have been described as ‘true hybrids’ (Department

21 Id at s. 4A(3)(b). In this regard, the legislation retains a restriction introduced by the earlier Act (s. 3(4) Human Fertilisation and Embryology Act 1990). In reality it is unlikely that an embryo would reach 14 days. In practice, ‘no research embryos have been developed as far as that maximum’ (The Hon. Alan Johnson, the Secretary of State for Health, House of Commons Hansard Debates, 12 May 2008, Column 1068). 22 Id at s. 4A(2)(a). 23 Id at s. 4A(2)(b). 24 Id at s. 4A(2)(c). 25 Baroness Paisley, House of Lords Hansard Debates, 21 November 2007, Column 837. 26 Id at Column 836. 27 Lord Tebbit, House of Lords Debates, 15 January 2008, Column 1184. See also Lord Alton, House of Lords Hansard Debates, 15 January 2008, Column 1185; Lord Craig, House of Lords Hansard Debates, 15 January 2008, Column 1186; Lord Neill, House of Lords Hansard Debates, 15 January 2008, Column 1186; The Hon. Geraldine Smith, House of Commons Hansard Debates, 12 May 2008, Column 1068; The Hon. Edward Leigh, House of Commons Hansard Debates, 19 May 2008, Column 22; and The Hon. John Pugh, House of Commons Hansard Debates, 22 October 2008, Column 342. 28 The Hon. Alan Johnson, the Secretary of State for Health, House of Commons Hansard Debates, 12 May 2008, Column 1068. 29 It has been noted that ‘[t]he appeal to positive consequences in terms of scientific and therapeutic applications is the strongest argument in favour of research on cybrids’ (Camporesi and Boniolo, 2008, p 823). They note that research of this kind might help cure/prevent ‘Alzheimer disease, Parkinson disease, and other progressive neurological disorders, including motor neuron disease and spinal muscular atrophy’ (2008, p 823; see also Savulescu, 2003, p 22).

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of Health, 2007, para. 1.13), that is, an embryo created by using ‘human gametes and animal gametes’.30 While there exists considerable anxiety surrounding human/animal embryo research generally, it is the creation of true hybrids, albeit they will survive no longer than 14 days, which occasions the greatest alarm. Indeed, on publication of the draft Bill in May 2007, the government announced its intention to proscribe true hybrids, unless permitted by regulations made by the Secretary of State.31 According to the government’s Chief Medical Officer, Sir Liam Donaldson, the rationale for exclusion was ‘that there was no clear scientific benefit to be derived from true hybrids’ and that this would constitute a ‘step too far as far as the public are concerned’.32 Subsequent inclusion of true hybrids appears to reflect government acceptance of the scientific argument that there is the potential for scientific benefit to be derived from experimentation with true hybrids. However, government recognition of public anxiety concerning the fusion of human and animal tissue generally is apparent in a change of terminology. Specifically, the phrase ‘human admixed embryo’ appears for the first time when the Bill is reintroduced into the House of Lords on 29 January 2008. When the Bill was first introduced on 9 November 2007, the preferred language was ‘inter-species embryo’. The reason for this change lay in concern that this latter phrase placed too much emphasis on hybridisation and animality in embryo creation. As Lord Darzi explained, the phrase ‘human admixed embryo’ might ‘be helpfully employed to make it clear that the Bill is not intended to apply to the whole spectrum of human-animal experimentation, but only to those embryos that are predominantly human. . . . It was felt that the word “human” should be used to indicate that these entities are at the human end of the spectrum of this research.’33 In short, the government sought to reassure the public that created embryos would be human, or at least predominantly so, and in the process that the legislation did not compromise a legal and broader cultural understanding of the distinction between human and animal. This legal approach to human/animal hybrid embryos, whereby law seeks either to prohibit, in the case of uterine development, or terminate after a maximum period of 14 days, in the case of experimentation, can be contrasted with normalising processes adopted in relation to, for example, intersex people, transsexuals, and conjoined twins, for whom surgery is deemed the appropriate solution. Let us now turn to consider the operation of Foucault’s

30 s. 4A(6)(b). 31 This was contrary to the recommendations of the House of Commons Science and Technology Select Committee, Fifth Report, 2007, HMSO: London. p 272. 32 House of Commons Joint Committee on the Human Tissue and Embryos (Draft) Bill, First Report, 2007, HMSO: London. chapter 6, paragraph 157. 33 Lord Darzi, Parliamentary Under-Secretary of State, Department of Health, House of Lords Hansard Debates, 15 January 2008, Column 1183.

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double breach, of nature and law, in the context of human/animal admixed embryos, and to flesh out the relevance of the elements of natality and responsibility to the monster concept that is implied by legal regulation in this domain.

7.4 The human/animal admixed embryo as monster Human/animal admixed embryos can be considered monsters because they meet Foucault’s monster conditions. That is to say, they involve a double breach, of nature and law. They involve a breach of nature because the process of their creation entails mixing human and animal. They involve a breach of law because mixing of this kind introduces a profound challenge to a key legal distinction. As Foucault notes, the monster appears when the confusion of nature introduces casuistry into the law (Foucault, 2003, p 64). The confusion that human/animal hybrids introduce into the law can be considered to be of the most profound kind. It is, perhaps, at least in part, for this reason that law seeks to prohibit, rather than regulate through a process of normalisation, as has been the case in relation to the other legal monsters considered in this book. The re-emergence of the human/animal hybrid in genetic guise serves to raise a number of important and inter-connected questions. First, if human/animal admixed embryos provoke the appellation monster, as legal prohibitions suggest, how are they to be distinguished from morphologically irregular bodies no longer considered monsters? Second, what implications do human/ animal admixed embryos have for the relevance of the element of natality to an understanding of monster production? Third, what significance do human/ animal admixed embryos have for the relevance of the element of responsibility to an understanding of monster production? In distinguishing between human/animal admixed embryos and other morphologically irregular bodies not designated monsters it is necessary to invoke Foucault’s twin conditions of monster production. That is to say, it is necessary to recognise the presence/absence of a double breach, of law and nature. In saying this, of course, it is not being suggested that breach occurs, in some sense, outside of discourse. On the contrary, breach is an effect of the meaning bodies are interpreted to possess and is, therefore, socially constructed in particular historical moments. Thus, for example, hermaphrodites ceased in the eighteenth century to lend themselves to Foucault’s idea of a double breach. This is because eighteenth-century developments in medical science led to a rejection of a view of hermaphrodites as being of mixed or indeterminate sex. Instead, and at the level of nature, hermaphrodites came to be understood as being of one sex or the other within a binary division. In this particular historical context, the objective of medical examination became to determine the correct sex (Laqueur, 1990, chapter 5). Accordingly, the challenge that the hermaphrodite posed to the law of gender

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was muted.34 Human/animal admixed embryos, by way of contrast, clearly meet Foucault’s monster conditions. The figure of the human/animal admixed embryo, like conjoined twins, also serves to direct our attention to the importance of the element of natality in understanding the production of monsters. That is to say, the birth moment, and the interpretation of specific facts at birth, perhaps assumes significance in understanding the production of human/animal admixed embryos as monsters. Indeed, other examples of biotechnological practices serve to reinforce this point. Thus, for example, we do not consider individuals who have undertaken xenotransplantation surgery35 to be monsters. This is despite the fact that patient and doctor bear responsibility for the operation and that the effect is to produce human/animal hybridity. Of course, xenotransplantation does produce cultural anxiety. As Fox notes, ‘xeno technologies provoke a deeper cultural unease by raising, in acute new forms, historical and religious concerns about bodily mixing and rejection which challenge traditional notions of (human) self identity’ (Fox, 2005, p 149). Nevertheless, it would seem that not all disruptions of the human/animal boundary produce monsters. While breach of the human/animal boundary may be interpreted to constitute a more profound breach of nature than other breaches, such as the order/disorder distinction in relation to corporeal lack or excess, it would seem that the mere fact of challenge to the human/animal distinction does not, of itself, produce monsters. Rather, monsters, whether human/animal hybrids or otherwise, are an effect of interpretation. What is required is an interpretation that a double breach, of law and nature, is sufficiently profound and therefore threatening to the legal order.

34 Today, medical science acknowledges the existence of intermediate sex at the level of reproductive biology, though the clinical management of intersexuality seeks to erase it (Kessler, 1990, 1998; Fausto-Sterling, 2000). Accordingly, because medical science no longer refuses the reality of mixed sex, contemporary intersex bodies can be viewed as falling within Foucault’s monster framework. That is, they represent a form of morphological irregularity that challenges a binary understanding of sex/gender, if only fleetingly before they are surgically ‘corrected’ (see chapter 5). 35 Xenotransplantation refers to the transplantation of foreign tissue into another species. It includes the transplantation of an animal organ, such as a pig’s heart, into a human being. For a discussion and more detailed definitions of the practice see McLean and Williamson (2004, pp 448–51, 2005, chapter 2) and Fox (2005, p 149–150). There is a growing literature on the ethics of such practices (see, for example, Hutchinson and Singer, 1995; Cozzi and White, 1995; Department of Health, 1996; Nuffield Council on Bioethics, 1996; Mepham, 1996; Cartwright, 1996; Downie, 1997; Hughes, 1998; and Fox and McHale, 1998). Concerns include the ethics of using animals in medical science (Fox, 1994), public health safety, with a particular focus on the dangers of cross-species transmission of disease (Wise, 1997), and ‘the legitimacy of altering human or animal identities’ (Fox and McHale, 1998, p 43). In relation to the regulation of xenotransplantation in the UK see Brown and Michael (2004) and Williamson et al (2007).

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In this respect, we might invoke the deformity/monstrosity distinction explored in chapters 2 and 4. In this regard, xenotransplantation recipients might be likened conceptually to those individuals whom law has considered deformed, both historically and in the present. In other words, while, for example, the transplantation of a pig heart into a human does generate a degree of cultural and legal anxiety, law proves able to accommodate the human recipient within the legal order. As Foucault notes, while deformity ‘may well be something that upsets the natural order’ it does not lead to the designation monster because ‘it has a place in civil or canon law. The disabled person may not conform to nature, but the law in some way provides for him’ (Foucault, 2003, p 64). Monstrosity, by the same token, ‘is the kind of irregularity that calls law into question and disables it’ (Foucault, 2003, p 64). It is for this reason, that creatures considered human/animal hybrids from birth, cannot be accommodated within the legal order. Conversely, xenotransplantation surgery is not considered to involve a sufficient enough breach of nature, and more especially law, to constitute a monster. Importantly, this legal interpretation, one that distinguishes the xenotransplantation recipient from the human/ animal admixed embryo, is informed by the element of natality and its implications. For, unlike the human/animal admixed embryo, the xenotransplant recipient is a subject of the law, and any breach of law and/or nature associated with xenotransplantation surgery occurs subsequent to this fact. In this respect, the xenotransplant recipient and human/animal admixed embryo can be distinguished along a temporal axis. That is, it is only the human/animal admixed embryo upon whom monster status can be conferred because it is only this figure that constitutes a double breach, of nature and law, at the critical legal moment, namely birth. In other words, on this account, the xenotransplant recipient is not a legal monster because legal monsters are born rather than made monsters. It might be objected that the relationship between human/animal admixed embryos and the birth moment is significantly different from the relationship between other morphologically irregular bodies coded monstrosities and the element of natality, given the role of scientists in the production of the former. Yet conceptually, there is little difference between monsters born of bestiality and those conceived in the laboratory. In both instances the monster is thrown into the world fully formed. Of course, there is a difference between these examples and contemporary conjoined twins. While the former examples can be understood as originating through ‘unnatural’ practices, whether sexual or biotechnological, this cannot be said of conjoined twins in the present. However, while the birth of conjoined twins might be viewed as innocent, this does not serve to remove their monster status in Foucault’s terms. The presence of the element of culpability however, in the production of human/animal admixed embryos, might help explain why greater legal and wider cultural anxiety surrounds both the possibility and the actuality of their production. That is, it may be that the element of responsibility serves to

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further dramatise a finding of monstrosity.36 It might, as already noted, also help to explain why law seeks to prohibit human/animal hybrid births rather than adopt other means of regulation.37 While births of conjoined twins can be viewed as occurring within nature, though contrary to its regular workings, this cannot so easily be said of a creature that begins its life in a laboratory and, in contrast to human forms of artificial reproduction, does not replicate the processes of nature. This fact assumes significance. For human/animal admixed embryos can be viewed as pure artifice, less an exception to nature than an interference with or corruption of it. With these monsters, blameworthiness resurfaces through a reading of scientific endeavour as monstrous arrogance. While we no longer blame the mother for the morphological irregularities of her child,38 it is clear that responsibility for the creation of human/animal admixed embryos rests with scientists. In other words, the element of human agency is present, for scientists, like Dr Frankenstein, are their progenitors. While the element of responsibility may not be essential to the production of legal monsters in all contexts and historical moments, as Foucault’s work, contra Canguilhem (1964, pp 30–31), implies, the contemporary emergence of human/animal hybrids in genetic guise, like human monsters of old, points to the need to explore further its significance to monster production.39

7.5 The promise of human/animal admixed embryos and the challenge of law Of course, a view of human/animal admixed embryos as monsters is not inevitable. As with all such designations, monster status proves to be an effect of an interpretation that a double breach, of nature and law, has or will occur. Hybridity need not be viewed as undermining human dignity, which is precisely the fear that it engenders.40 It was this concern over human dignity in Re A that 36 Unlike Canguilhem (1964, pp 30–31), I am not insisting here that responsibility is a necessary condition of monster production. However, unlike Foucault, I am placing greater emphasis on this element in understanding legal monsters and, in particular, the degree of alarm that they generate. 37 Of course, short of compulsory abortion, prohibition is not an option in relation to conjoined twins or intersex people. 38 However, some pregnant women who smoked, consumed alcohol or took illicit drugs during the pregnancy have been prosecuted because of the effects these practices had on the child (see Karpin, 1992; Tong, 1999; Epstein, 1999, pp 113–114; and Meredith, 2005, pp 25–26). Moreover, and in the US context, it has been noted that a disproportionate number of women prosecuted for drug use while pregnant are black (Roberts, 1991; Logan, 1999). 39 It was noted in chapter 5 that the element of responsibility also proves to be important in the construction of the transsexual as a monster. 40 In the context of the Human Fertilisation and Embryology Act UK 2008, Cardinal O’Brien described the permitted experimental procedures as ‘grotesque’ and ‘hideous’ (BBC News, 2008).

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led the court to view separation surgery as the only means through which the dignity of conjoined twins could be preserved.41 Yet, human dignity and full human status might be conferred on concorporated forms of embodiment. In a similar vein, we might embrace kinship with non-human animals. As Glenn notes, ‘rather than attempting to freeze our human nature . . . in order to preserve human dignity and rights’ perhaps we should ask instead: ‘How can we preserve human rights and dignity despite the fact that our “humanness” might no longer be the exclusive possession of Homo sapiens?’ (2003, p 27). As Haraway notes, we should not be afraid of ‘joint kinship with animals’ or of our ‘permanently partial identities’ (1985, p 72) which such kinship suggests. It is the fantasy of ontological purity and innocence (Graham, 2002, p 12) that prevents us from embracing the fullness of our fragmented selves. It is in this sense that the human/animal admixed embryo as monster offers, both figuratively and literally, political promise (Haraway, 1992). It is a view of human being as pure that leads to interpretations of otherness as constituting a double breach, of law and nature. Equally, it is precisely this fantasy of ontological purity that places an undue burden on the element of culpability in understanding monsters. Yet, the notion of blame is difficult to deploy in relation to the creation of monsters once it is appreciated that the ground upon which human being stands is neither pure nor stable. That is to say, while law’s understanding of monsters is inflected through a prism of human innocence, it is precisely innocence that human beings lack. As Haraway notes, ‘salvation history’ is over (1985, p 75).42 Moreover, as Savulescu contends, the effect of human/animal mixing might be viewed as an expression of, rather than a threat to, our humanity if it serves to ‘improve our humanity, what is essentially human’ (2003, p 24). In the meantime however, contemporary discussion of legal personhood has, in the main,43 ‘led to an internal re-organization of the moral community’ along the lines of capacity ‘not an expansion of the moral realm to include non-human animals’ (Ballantyne, 2004) or human/animal hybrids. For law continues to police borders and insists on maintaining an injunction against the mixing of genres (Derrida, 1980), no matter how socially constructed those genres are revealed to be.

41 Re A above, note 1, p 1052 per Brooke LJ and p 1069 per Walker LJ. 42 While the focus here lies with problematising a human/monster distinction, Haraway emphasises the ‘non-innocence of the category “woman” ’ (1985, p 75) and therefore feminist politics. Her point, of course, has wider applicability cross a range of identity politics. 43 In 1993 the Great Ape Project was established (see Singer and Cavalieri, 1993). The project demands a basic set of moral and legal rights for chimpanzees, gorillas, bonobos and orangutans. While some countries, including the UK and New Zealand, have adopted measures to protect great apes from experimentation, so far, only the Spanish parliament has passed a resolution granting legal rights to apes. If this resolution is enacted, it will be illegal to use apes in experiments, entertainment or commercial venues, and higher standards will apply in relation to conditions in captivity (Yong, 2009).

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7.6 Conclusion This chapter considered the age-old concern over human/animal hybridity, and the conceptual problem that it represents. It did so in the specific, and contemporary, context of particular biotechnological developments and the legal regulation they have occasioned. In the face of such developments, law has prohibited the uterine development of human/animal hybrid embryos and has restricted experimentation on human/animal hybrid embryos outside the womb to a 14-day period. These legal provisions, as well as the surrounding parliamentary debates, reveal a considerable degree of legal, and wider cultural, anxiety concerning the mixing of human and animal. In Foucault’s terms, human/animal hybrid embryos represent a double breach, of nature and law. That is, they can be understood as a breach of nature, which disrupts legal classification. Accordingly, they can be understood as monsters. Indeed, they represent, perhaps, the most profound double breach in the contemporary era. That is, perhaps more than other contemporary monsters, they strike at the very heart of our understanding of human identity and its coherence. A focus on human/animal hybrids, like the earlier focus on conjoined twins in chapter 6, served to emphasise the need to keep the older meaning of the concept of monstrosity, that of morphological irregularity, in plain view. This is an important point to reiterate. For while, in historical terms, there has been a shift from body to soul as the target of legal regulation, as Foucault observes, it is mistaken to see legal regulation simply in terms of an exchange of soma for psyche. That is to say, the monster concept is not exhausted by the figure of the abnormal individual in the present. On the contrary, the monster concept also remains relevant in relation to the visible body. Moreover, while the incidence of birth of conjoined twins is small,44 developments in relation to human/animal embryo research contain the potential for the monster category to have greater significance in the future. Legal analysis around human/animal hybridity also served to emphasise the importance of the elements of natality and responsibility to the production of law’s monsters. In relation to the former, human/animal admixed embryos redraw our attention to the importance of the birth moment in understanding monsters. That is to say, like conjoined twins, their monster status is evident from the outset. Their monstrosity or hybridity is visible on the surface. They are thrown into the world as hybrids and introduce confusion into the law from the beginning. The importance of this observation becomes especially clear once it is appreciated that not all human/animal hybridity is equated with the monster in legal discourse. Thus the xenotransplantation recipient is not considered a monster. This may be explicable in terms of the fact that this medical patient is not thrown into the world fully formed as a monster. On the 44 For the incidence of live births of conjoined twins, see chapter 6, note 1.

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contrary, the mixing of human and animal involved in xenotransplantation surgery takes place after the formation of legal subjecthood. In this regard, it may be the case that the element of natality assumes significance in understanding the production of legal monsters. Moreover, this point is not confined to those monsters whose monstrosity is written on the body. As made clear in chapter 5, transsexuality, as an example of abnormal individuality, can also be understood to have its origins at birth. In this respect, the element of natality may have more general significance to an understanding of the production of law’s monsters. A focus on the legal regulation of human/animal admixed embryos also served to emphasise the significance of the element of responsibility to monster production. While this element may not be essential to the production of law’s monsters, as Foucault suggests, and as the characterisation of contemporary conjoined twins as monsters demonstrates, it may be that culpability, and its legal attribution, prove important in understanding the greater legal and wider cultural anxiety that surrounds the creation of human/animal hybrid embryos. Indeed, and irrespective of the distinction between soma and psyche, or the two different understandings of the concept of monstrosity, it is perhaps this element of responsibility that throws light on the greater degree of demonisation to which human/animal admixed embryos and transsexuals have been subjected. In other words, this element of responsibility cuts across understandings of monstrosity and when present appears to have implications for the degree of legal and broader cultural hostility generated toward particular monsters. Accordingly, not only do legal monsters exist, they might also be located within a hierarchy. Finally, the chapter emphasised the promise that human/animal hybrids offer politically. This is the promise of going beyond a world in which thought and human identity are structured by binaries. For the time being however, it is precisely this promise to which law remains resolutely opposed.

Chapter 8

Conclusion

This book began with a contemporary legal moment in which monsters were disavowed. As the court in Re A commented, ‘[i]t hardly needs to be said that there is no longer any place in legal textbooks . . . for expressions (such as “Monster”) which are redolent of superstitious horror.’1 It was this legal representation of things that the book took as its point of departure. Instead of a legal world in which monsters are presumed to be a relic of a less rational legal past, the book has pointed to the importance of Foucault’s concept of the monster to thinking about legal outsiders and, in particular, the process of their constitution. In making this argument, the book has emphasised the monster over other available templates for the outsider generated within law and social theory. The selection of the monster over other templates was informed by a number of considerations. In the first place, the book’s object has been the law. The monster is a category of the law; it has a legal life. Yet, it is not the only legal category. As we saw in chapter 2, alternatives include the leper, the idiot, the lunatic, and the deformed or disabled. However, unlike the monster, these figures are, at least in some measure, accommodated within the social and legal order. While departures from the fantasy of ontological purity, they remain human. What distinguishes the monster is the fact that it is legally constructed as non-human and is located outside the law. In relation to templates generated within social theory, the book considered two, namely, the scapegoat and the stranger. In both instances, the monster concept was found to offer greater analytical precision and explanatory power, especially in relation to understanding the constitution of outsiders. Thus in contrast to the criteria of physical proximity and vulnerability (the scapegoat) or physical proximity and an absence of social closeness (the stranger),2 the structuring principles of Foucault’s monsters prove

1 2

Re A (Children) (Conjoined Twins: Surgical Separation) [2000] 4 All ER 961, p 1054 per Walker LJ. The book’s focus on the templates of the scapegoat and the stranger drew on the work of Rene Girard and Zygmunt Bauman.

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less opaque, less general, and retain the capacity to indicate distinct social figures or groups. In developing the monster concept, the book emphasised Foucault’s idea of a double breach, of law (monstrousness) and nature (monstrosity). As Foucault notes, a breach of natural law is not enough to constitute the monster. There must also be ‘an interdiction of civil and religious or divine law’ (Foucault, 2003, p 63). For the monster, ‘is the casuistry that is introduced into law by the confusion of nature’ (Foucault, 2003, p 64). In historical terms, Foucault identifies three key privileged monsters: the bestial human, conjoined twins, and the hermaphrodite. He locates these in the Middle Ages, the Renaissance period and the Classical Age respectively. As we saw in chapter 3, along with the individual to be corrected and the masturbating child, these human monsters provide a genealogy of a monster of the present, namely the abnormal individual. The capacity of Foucault’s monster framework to capture the abnormal individual arises out of the fact that, unlike Canguilhem, he does not insist on a causal relationship between the concepts of monstrosity and monstrousness, and because he refuses to view the concept of monstrosity as exhausted by morphological irregularity. Rather, for Foucault, what is significant is not the manner through which monstrosity is occasioned, but the effect that it is interpreted to have on legal certitude and order. Equally, it is not the visible body that is essential to an understanding of monstrosity, and therefore the monster. For morphological irregularity is but one form of monstrosity. Monstrosity can also be present at the level of interiority. It is precisely this idea of monstrosity that brings the abnormal individual as monster into view. There are at least two other concepts that bear a relationship to the monster. These are the concepts of natality and responsibility. The presence of the former appears to be implicit within Foucault’s theoretical account. That is to say, monsters, whether they be bestial humans or abnormal individuals, are socially constructed as born rather than made. In other words, the birth moment assumes significance in the context of the social construction of monsters. This point is obvious in relation to, for example, human/animal admixed embryos or conjoined twins. However, it also has relevance in relation to the abnormal individual. As Foucault notes, in the context of criminal man, he ‘is a natural being defined by his criminality at the level of his nature’ (Foucault, 2003, p 90). The element of natality may also explain why both the leper of the late Middle Ages and the xenotransplantation recipient of the present fall outside the monster category. In contrast to Canguilhem,3 Foucault appears to give less importance to the concept of responsibility within his theoretical framework, 3

As we saw in chapter 2, Canguilhem’s account of the monster relies heavily on an historical assumption of bestiality as cause of monstrosity. It is for this reason that he viewed science as heralding the death of monsters. By way of contrast, for Foucault, the central thing about monstrousness is not the acts of men, but rather the effects bodies and/or psyches are interpreted to have on law. In other words, Foucault’s monsters represent a problem of classification.

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albeit he recognises that a bestiality thesis underscored the legal development of the monster category in historical terms. While it is not inevitable or logically necessary for the concept of the monster to depend on either natality or responsibility, these elements prove important, not only to an appreciation of legal monsters of old, but also to many contemporary monsters, as the book has demonstrated. Thus in relation to the element of responsibility, the agency of scientists is implicated in the creation of human/animal admixed embryos. Conversely, in relation to transsexuality, the transsexual’s own desire for gender relocation assumes significance. Of course, in relation to conjoined twins, it is clear that there is no longer any party to blame. However, and while this does not serve to strip conjoined twins of monster status, it may be that the legal attribution of blame/innocence points to a monster hierarchy. That is to say, it may be that monsters are subjected to a greater degree of demonisation where the element of responsibility is considered to be present. This is, perhaps, especially the case in relation to the transsexual, and other examples of abnormal individuality, given that in these instances monster and responsible agent can be understood as one and the same. These findings and, in particular, Foucault’s neglect of the element of responsibility, might inform future analysis of the monster concept as a template for understanding both the production and demonisation of outsiders. In considering contemporary examples of monsters within Foucault’s theoretical terms, the book has sought to replicate Foucault’s monster archetypes, or at least the category crises that they represent. That is to say, the book has considered figures that challenge the distinctions between human and animal, male and female, and the idea of the proper legal subject as a single embodied mind, namely, the human/animal admixed embryo, the transsexual and conjoined twins. This approach enabled comparison over time of important legal conundrums identified by Foucault. In relation to conjoined twins, the book demonstrated continuity in the importance of irregular morphology to the monster category. It also served to highlight the continued problematisation by law of a particular mind/body problem. In the case of the transsexual, the book identified a figure whose arrival occurred after the period of the human monster proper. The transsexual is properly understood as an example of abnormality located within medico-legal regimes of normalisation, and can be comprehended in terms of an historical shift from the body to the soul as the object of legal concern (Foucault, 1977). In Foucault’s terms, however, the abnormal individual bears the legacy of the monster category. Finally, the human/animal admixed embryo is the most contemporary of monsters and yet, perhaps, represents a return to a particular kind of problematisation identified by Foucault around the human/animal distinction, one which, as we saw in chapter 4, has been privileged within the history of English law. The book’s analysis of these contemporary monsters, as well as its study of the history of the English legal category monster, reveal some important

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insights. In relation to the transsexual, the book highlighted how legal anxiety produced by challenge to the male/female distinction has shifted from the figure of the hermaphrodite to the transsexual as contemporary threat. In terms of Foucault’s theoretical framework, this might be accounted for by the fact that hermaphrodites ceased to be considered monsters in the context of an historical process whereby medical science refused the idea of mixed sex (Laqueur, 1990, chapter 5). However, medical science no longer refuses the reality of mixed sex. Accordingly, contemporary intersex bodies can be viewed as falling within Foucault’s theoretical account. Yet, it is the prefix ‘trans’, not ‘inter’, that presents the greater challenge to legal certainty regarding the sex/gender order in the present. This is because the trans population is considerably larger and, more significantly, because intersex children are subjected routinely to invasive surgical procedures in order to bring them within the gender order (Dreger, 1998, 2004). In this respect, and crucially, their monster status is short-lived. Further, and irrespective of the legal position on the continent, the hermaphrodite was never considered a monster within English law.4 While it is true that clear legal statements to this effect within English law reveal a degree of anxiety concerning the proper location of the hermaphroditic body within legal taxonomies, this legal finding remains significant. Thus it is curious that English law’s monsters, though informed by human/animal and order/disorder distinctions, are not informed by a body that challenges sexual difference. Indeed, the fact that challenge to sex/gender binaries failed to register in English legal constructions of the monster category, might serve as a provocation within feminist legal theory. Equally, English law’s privileging of the body over the mind in constructing humanness, a finding made in relation to the transsexual as abnormal individual, as well as in relation to those monsters whose monstrosity is literally written on the body, might serve to inform theoretical scholarship focusing on embodied subjecthood. Indeed, in view of the gendering of the mind/body distinction within Western philosophy and law (Price and Shildrick, 1999, p17), the different articulation of this distinction evident within English law might prove fertile ground for feminist legal theory. A study of the English legal category monster also served to qualify Foucault’s genealogical treatment of the abnormal individual. According to Foucault, legal concern shifted historically from the bestial human in the Middle Ages, to conjoined twins in the Renaissance period and ultimately to the hermaphrodite in the Classical Age. Thus his history of the monster begins with the problem of human/animal hybridity. This problem is then exchanged for the conundrum of the creature with two heads, and subsequently for the ‘ambiguously’ sexed body. This account implies a gradual lessening of the physical and psychological distance between human and monster. This enables Foucault to position

4

The hermaphrodite was considered a monster in France, however, as noted by Foucault (2003, pp 66–67).

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the abnormal individual and contemporary regimes of normalisation within a frame of historical continuity. Yet, this trend, identified by Foucault, appears to move in the opposite direction within English law.5 That is to say, English legal constructions of the monster appear to move toward rather than away from a concern over human/animal hybridity. In this regard, a view of law as leaving behind a less rational past becomes problematic. Indeed, and as we saw in chapter 4, it is not in the late Middle Ages, but in the Commentaries of Blackstone, and therefore in the period of the Enlightenment, that law’s construction of monsters becomes, perhaps, the most hysterical. The significance of these observations lies in their possible implications for our understanding of the constitution and regulation of the abnormal individual. The book’s contention is that growing concern over human/animal hybridity, a feature of English law, and of wider cultural anxiety, might be expected to have insinuated itself into the figure of the abnormal individual to a greater degree than Foucault’s analysis implies. In short, what an English legal history points to is the possibility that ideas of abnormality and ‘unnaturalness’ are mutually implicated in a more profound manner than has hitherto been appreciated. This claim appears to be borne out by a study of the medico-legal regulation of transsexuality. As we saw in chapter 5, regulation of this example of abnormality is informed significantly by legal deployment of the trope of nature. In other words, the monsterisation of the transsexual in law occurs not merely because he or she represents a statistical anomaly that poses a threat to legal classification. Rather, monsterisation of this particular abnormal individual occurs because his or her body and/or desire is represented as involving a breach of nature. This is an important point because it raises implications for political strategy. In short, it points to a need to contest legal constructions of nature. That is, and in the context of the legal regulation of transsexuality, it is precisely the need to engage in struggle over the coding of trans bodies, practices and desires as ‘unnatural’ within medico-legal, as well as broader cultural domains to which a study of law’s monsters points. This point is exemplified by reform jurisprudence which, and as a prelude to moments of reform, works hard to naturalise the transsexual body and desire. Liberal law represents a challenge to the realisation of a more pluralistic understanding of difference. The template of the monster enables us to see this through a different frame. This challenge is apparent, not only in relation to the ways in which law constructs bodies and/or desires as ‘unnatural’, but also through its rigid categorical structures. Thus, in relation to the transsexual, law insists on restrictive interpretations as to what constitutes the categories male

5

Moreover, the legal category monster in English law appears to have survived until at least the mid-nineteenth century. In this regard, the monster not only precedes the abnormal individual and regimes of normalisation as Foucault suggests. It also coexists with the abnormal individual in historical terms.

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and female, and therefore movement between these categories. It also refuses to recognise the lived realities that exist outside this binary understanding of sex/ gender. The challenge of law is again apparent in relation to the legal regulation of conjoined twins. As we saw in chapter 6, law refuses to view conjoined twins as possessing bodily integrity or dignity. Rather, it insists on seeing conjoined twins as two minds trapped in a single body. Much like the ‘pre-operative’ transsexual body, law views the body of conjoined twins as being, in some sense, alien. Within legal discourse, the embodied experience of conjoined twins can only be seen in terms of encasement rather than home. The privileged, and rights-bearing, subject of the law is clearly a singleton. It is, of course, for this reason that medicine and law insist on separation surgery, even to the point of death of one or both twins. Further, in the context of this instance of concorporation, law chooses to characterise the relationship between twins in terms of conflict rather than cooperation, albeit that this runs counter to the evidence that exists regarding the relationships between adult conjoined twins (Watt, 2001, p 238; Dreger, 1998b, p 10). It would seem that a conflict model arises due to a legal inability to view conjoinment as a distinct and valid form of ontological experience. And yet, the idea of singular embodiment is not a material given. Rather, it is ideological and phantasmatic. As Clark and Myser note, ‘both conjoined twins and singular bodies can only approximate this ideal condition’ (1996, p 351). The failure of each and all of us to live out this idealised condition established by the law is dramatised by conjoined twins. In other words, they give the game away. In response, they are, quite literally, made to disappear, in a legal attempt to suture the cut rendered in the ideological fabric of the law. In contrast to this legal view, we might view conjoined twins as providing a metaphor for an alternative way of imagining the relationship between body and mind, and therefore the conditions of legal subjecthood. In doing so, we must resist application of the structuring principles of the monster. That is to say, we must deploy the trope of nature on behalf of conjoined twins, and insist that law accommodate the phenomenological experience of concorporation within its taxonomical structure. The book also considered, as a contemporary example of another of Foucault’s monster archetypes, the human/animal admixed embryo. In many ways, the ‘problem’ of human/animal hybridity represents, perhaps, the greatest challenge to legal taxonomy. It also represents the most profound challenge to law’s construction of nature. Moreover, this threat is exacerbated in the present due to the fact that ‘nothing really convincingly settles the separation of human and animal’ anymore (Haraway, 1985, p 68). It is largely for this reason that legal regulation in this domain differs from regulation in the contexts of the other contemporary monsters considered in this book. Thus, in contrast to strategies of normalisation, whereby, with the assistance of surgery, transsexuals and conjoined twins are brought within the legal order, human/ animal hybrids are prohibited. Yet, a view of human/animal admixed embryos

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as monsters is not inevitable. As with all such designations, monster status proves to be an effect of an interpretation that a double breach, of nature and law, has or will occur. Human/animal hybridity need not be viewed as undermining human dignity. Neither need it be viewed as undermining the natural world. Indeed, hybridity, rather than being a departure from nature, would seem to be its catalyst. As Robert and Baylis note, there is ‘no genetic essence’ in relation to human being (2003, p 4). Neither is there a single species concept that is universally compelling. Thus, as Haraway suggests, we might instead embrace kinship with non-human animals (1985, p 72). Moreover, we might embrace our permanently partial identities, which such kinship suggests. In thinking about outsiders and, in particular, the process of their constitution, this book has explored Foucault’s concept of the monster. While the book found difficulties with his genealogical treatment of the abnormal individual, and while these difficulties have implications for contemporary understandings of the constitution of this figure of modernity, Foucault’s theoretical framework for understanding monsters remains largely intact.6 Moreover, it would seem that this particular template for understanding the production of outsiders offers advantages over other templates generated within social theory This book, in seeking to replicate Foucault’s monster archetypes or category crises, has focused on three particular types of contemporary monster. However, the potential relevance of the monster is not exhausted by these examples. In particular, the monster template may have special relevance to study within the fields of gender and sexuality. This is because, in historical terms, the legal development of the monster category is tied to an assumption of bestiality, and because another of the abnormal individual’s ancestors, namely the masturbator, speaks to concern over sexual desire and practice. In other words, anxiety around sexuality appears to be interwoven both into the monster category specifically and the genealogy of the abnormal individual more generally. In this regard, the study of the constitution of sexual outsiders might benefit through the adoption of Foucault’s theoretical framework. By the same token, the template of the monster proves relevant to study within the field of law, medical health and biotechnology. Certainly, this is the case in relation to conjoined twins and human/animal admixed embryos. The template of the monster lends itself to future study of legal outsiders. This is especially so in relation to Foucault’s theoretical account because Foucault understands the concept of monstrosity to cover both irregular morphology and deviant psyche. Moreover, these different types of monstrosity should not be seen as mutually exclusive. On the contrary, they can coexist and operate in ways that are mutually reinforcing as the study of the medico-legal

6

The one key point of difference from Foucault’s theoretical framework lies in the greater emphasis this book places on the element of responsibility in understanding the legal construction of monsters.

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regulation of transsexuality has demonstrated. In the final analysis, monsters are the effect of legal interpretation that a double breach, of law and nature, has occurred. More particularly, they come into being when a breach of nature is considered to upset law. They do not disappear because science gains mastery over them, as the example of conjoined twins demonstrates. Rather, they disappear when no longer considered to throw a spanner into the categorical workings of law. Scientific knowledge may produce this effect, but it is the effect rather than scientific knowledge per se that matters. Whether legal interpretations of soma and/or psyche produce monsters depends on contestation within the field of law. An understanding of Foucault’s theoretical framework of the monster can assist in this endeavour. It is hoped this book, through deepening our understanding of the legal constitution and regulation of outsiders, has made a contribution to this political project of resistance.

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Index

Note: The references include footnotes, for example, 125n50 refers to footnote 50 on page 125. abnormal individual 38, 43–5, 56–7; challenging Foucault’s history 53–6; culpability 38, 42; English legal history 60, 84, 148–9; genealogy of 45–52, 60, 84, 130, 146, 148–9; individual to be corrected 45, 46, 47, 50–1, 54, 56, 146; masturbator 6, 43, 45, 46–7, 47, 53, 54, 56, 146, 151; monster 56; natality 40–1 admixed embryos 38; challenge of law and promise of 141–2; conclusion 143–4, 147, 150–1; cytoplasmic hybrids/cybrids 136; human/animal hybridity as a contemporary crisis 130–3; introduction 5, 6, 129–30; legal regulation 133, 133–8; as monsters 138–41; monstrosity and monstrousness 132; true hybrids 136–7 alcohol/drugs, pregnancy and consumption of 125n50 Allen, B 131 androgen insensitivity 96 animals 80; admixed embryos see separate entry; bestiality see separate entry; hybridity, human/animal see separate entry; no soul 73; rights movement 131, 132n6, 142n43; symbolism of 74–5 Annas, GJ 116, 119 annulment: non-disclosure of gender history 105–7, 110 Aquinas, Thomas 66–7, 69, 73 Archambault, P 73 Aronowitz, S 43 artifice/nature distinction 68, 98, 126n51 artificial intelligence 131, 132n6 asses: animal symbolism 74 Augustine, Saint 66, 73 Azo 64, 67–8

Baker, JH 69 Ballantyne, A 142 baptism 33, 76 Barthes, R 31 Bauman, Z 2, 12, 26–8 Beal, T 29 Benjamin, H 90 bestiality 52; Aquinas: hierarchy of vices 67; criminal law 72, 77n56; English law: Enlightenment 79, 130; English law: Renaissance 71–3, 77; English law: thirteenth century 62, 67–8, 69, 84, 130; Middle Ages: bestial human as key monster 4, 6, 45, 57, 60, 84, 130, 146; Minotaur 39; monster production 6, 10, 34–5, 36, 37, 38, 41–2, 52, 53, 67–8, 69, 71, 77, 79, 132, 151; scientific knowledge 112 Bildhauer, B 29, 59 biotechnology see admixed embryos Blackstone, W 1, 13, 35, 39, 78–82, 84, 113, 130, 149 body to soul: historical shift in target of regulation 8–9, 31, 38, 41, 87, 129; admixed embryos 143; irregular bodies to deviant identity 48–51, 56–7, 87, 129; transsexuals 7–8, 9, 87, 98, 99, 147; see also mind/body distinction body/head distinction in Swinburne 73–5, 80 body/mind see mind/body distinction Boehrer, BT 72 bone marrow donation 120–1 Boorstin, K 80–1 Bordo, S 122 Bornstein, K 103 Boswell, H 89 Boswell, J 65

180

Index

Bouchard, D 45 Bracton, H de 1, 4, 13, 23, 35, 39, 61–2, 64, 65, 66, 67, 68–9, 70, 71, 73, 75, 79, 82, 113, 130 Bray, A 75 Britton 61, 62, 64, 67, 71, 73, 130 Brooks, P 31 Brown, N 134 Bruce-Pratt, M 103 bubonic plague 26 buggery 77 Bullough, VL 89 Burke, E 81 Butler, J 23, 45, 98 Bynum, C 59 Califia, P 90 Canada 134–5 Canguilhem, G 15, 22, 29, 31–2, 34, 36–7, 52, 82, 110, 111, 132, 141 Carlson, L 44 Carroll, N 29, 39 Castel, R 44, 55 causation see responsibility and causation Chase, C 63, 96 Chazan, R 65 Cheah, P 9, 59 chimera 135 chimpanzees 131, 142n43 Christian theology 65; Aquinas, Thomas 66–7, 69, 73; Augustine, Saint 66, 73; head as house of soul 73; perversion 67 Cirlin, L 132 civil law: refusal to donate bone marrow 120–1 Clark, DL 116, 124, 150 Clarkson, CMV 1 Classical Age: hermaphrodites 4, 6, 45–6, 54, 57, 59, 60, 88, 146 Clery, EJ 80 Cohen, CB 134 Cohen, JJ 2, 21, 29, 30, 35, 65 Coke, E 1, 4, 13, 35, 39, 75–8, 79, 82, 113 collective values: concern and connection 117, 124–5 conjoined twins 33, 52, 59, 84, 133, 137; challenge of law and promise of 11, 123–5, 127; conclusion 126–8, 147, 150, 152; conflict of interests 117, 119, 150; constructing legal personhood 114–16, 127, 142; critique of legal personhood 116–22; English law: late-Middle Ages 62; English law: Renaissance 71, 76, 84; human dignity 122, 141–2; incidence of 111n1; innocent monsters 38, 125–6, 127,

133, 140, 147; introduction 1, 5, 9–10, 11, 111–14; pregnancy as non-monster concorporation 122–3; Renaissance period 4, 45, 54, 57, 60, 71, 76, 84, 111, 146; scientific knowledge 37; sex change 120 corrected, individual to be (incorrigible man) 45, 46, 47, 50–1, 54, 56, 146 Couzens Hoy, D 44 Cowell, J 75, 76 Creed, B 31 criminal law: battery 120; bestiality 72, 77n56; pregnancy and alcohol/drugs/ smoking 125n50; separation of conjoined twins 117–19, 120 crusades, religious 65 culpability see responsibility and causation cytoplasmic hybrids/cybrids 136 Darwin, Charles 80 Darzi, Lord 137 Daston, L 36, 66, 67, 68 Davidson, A 29, 35, 67, 74, 75 deformed persons 22, 23–4, 32, 145; English law: enlightenment 79; English law: late-Middle Ages 61–3, 67–8; English law: Renaissance 70–1, 75–7, 127–8; xenotransplantation 140 Delaney, D 33, 34, 101 Derrett, JDM 69, 75 Derrida, J 11–12, 30, 142 Devor, H 89 Diduck, A 122 dignity, human 122, 136, 141–2, 150, 151 disabed persons 22, 23, 24, 32, 140, 145 disclosure of gender history 105–7, 110 disorders of sex development (DSDs) 4n10 DNA sequences 131 dogs 74 Dollimore, J 67 Donaldson, Liam 137 double breach of law (monstrousness) and nature (monstrosity) 31–4, 132, 146; see also theoretical framework double effect, doctrine 118 Dreger, AD 7, 49, 63, 116, 120, 124, 125, 148, 150 drugs/alcohol, pregnancy and consumption of 125n50 Edwards, J 134 Ellis, H 89 Elton, GR 75 embryos see admixed embryos Enard, W 131

Index enemy template 2 English legal history of monsters see history of monsters Enlightenment 79–83, 130, 149 etymology of monster 35, 66 Ewald, F 45 Fausto-Sterling, A 7, 14, 88, 107 Feinberg, L 89 female body 115; female sex and ‘ambiguous’ genitalia 97; pregnancy and consumption of alcohol/drugs 125n50; pregnancy as non-monster concorporation 122–3 feminist/collective values: concern and connection 117, 124–5 Fernandez-Armesto, F 131, 132 Fiedler, L 29 Fishman, RE 132 Fisk, N 90 Fleming, S 74 Flynn, T 45 Foucault, M 3, 4, 5, 6, 7, 8, 9, 13, 15, 21, 22, 23, 24, 31, 32–3, 36, 38, 40, 43, 44, 45–52, 53, 54, 56, 59, 60, 65, 80, 82, 84, 88, 92, 100, 111, 115, 126, 127, 129, 138, 140, 146–7 Fox, M 139 Franklin, S 134 freedom 28, 44 Freud, S 89 Fudge, E 16, 72, 78, 130 Fukyama, F 132 Gallagher, J 122 Gatens, M 9, 13, 59, 116 gender dysphoria 90, 93, 108, 110 gender identity disorder 93 genetics 131, 151 Gilmore, D 29 Girard, R 2, 12, 24–6 Girshick, LB 103 Glanvill 61 Glenn, L 142 Golder, B 3 Gooren, LJG 104 Gothic literature/aesthetic/language 80–1, 121 Graham 74 Graham, EL 2, 21–2, 29, 30, 35, 142 Grandjean, Anne 49–50 Grayzel, S 65 Great Ape Project 142n43 Green, R 89 Grosz, E 9, 13, 59, 116, 123–4

181

Gutting, G 43–4 Hanafi, Z 21 Haraway, D 11, 17, 131, 142, 150, 151 Haroontunian, HD 43 Harris, J 119 head/body distinction in Swinburne 73–5, 80; see also mind/body distinction Helmholz, RH 69–70 Henretta, JA 55 hermaphrodites 7, 33, 37, 52; Classical Age 4, 6, 45–6, 54, 57, 59, 60, 88, 146; eighteenth century: medical view 37, 49, 63, 79n58, 83, 105, 112, 138–9, 148; English legal history 4, 8, 59–60, 62–3, 76–7, 79, 83, 84, 88, 148; modern medical practice 63, 83; re-characterisation of monstrosity 48–50; see also intersex Hewson, B 118, 122 Hill, DJ 119 Hirschfeld, M 89 history, Foucault’s approach to 6, 43–4, 56–7; challenges to 53–6, 57; genealogy of abnormal individual 45–52, 60, 84, 130, 146, 148–9 history: transsexuality and emergence of medico-legal ‘problem’ 88–91 history of monsters, English legal 8, 9, 22, 33–4, 54–5, 57; abnormality and ‘unnaturalness’ 56, 60, 84, 148–9; anxiety about boundaries 65, 72–3, 80, 83; bestiality 62, 67–8, 69, 71–3, 77, 79, 84, 130; conclusion 83–4; deformity/ monstrosity distinction 61–3, 67–8, 70–1, 75–7, 79; Enlightenment 79–83, 130, 149; head/body distinction in Swinburne 73–5, 80; hermaphrodites 4, 8, 59–60, 62–3, 76–7, 79, 83, 84, 88, 148; introduction 4, 6, 58–60; late-Middle Ages 61–9; mind/body distinction 9, 33–4, 59, 69, 77–8, 84, 148; Renaissance 69–79; Roman law 54n18, 63–4, 66; teleological view of monsters 66–7, 76 Hobbes, T 113 Holdsworth, WS 70 homicide 1, 117–19 homosexuality/homosexuals 43, 50, 51, 52; as identity 65n23; natality 40; transsexuality 89–90, 93–4, 107, 109n75 Huet, MH 29, 68, 73 human dignity 122, 136, 141–2, 150, 151 Human Genome Project 131 human/nature distinction 33–4 human rights 131; life, right to: conjoined twins 117–22, 127

182

Index

Hume, David 80 Hunt, A 3, 36, 44 hybridity, human/animal 5–6, 29–30, 33, 52, 129–30; admixed embryos see separate entry; bestiality see separate entry; contemporary crisis 130–3; English law: Blackstone 79–82, 130; English law: Renaissance 70–5, 77; Foucault’s historical account 6, 54, 60, 84, 130, 148–9 idiots 22, 23, 145 impurity 39, 142 incorrigible man/individual to be corrected 45, 46, 47, 50–1, 54, 56, 146 Incredible Hulk 40 individuality and conjoined twins 124–5 Ingrebretsen, E 29 inheritance law 33, 68; English legal history 63, 69, 74, 75–6, 79; Roman law 64 intersex 4n10, 6–7, 37n25, 49n11, 88, 133, 137; case: post-operative intersex woman 95–8; correction of nature’s ‘error’ 98; early surgical intervention 7, 37n25, 83, 88, 107, 139n34, 148; petition for third gender 103; see also hermaphrodites Invernizzi-Accetti, C 131 Islam 65 ius trium liberorum, doctrine of 64 Jews 26, 27, 65, 74 Johnson, Alan 136 Justinian 64 Kant, I 121 Kantorowicz, EH 65 Karlen, A 89 Karpin, I 122 Kent, CA 43 Kerr, RM 82 Kessler, SJ 7, 63 King, D 90 Kirkland, E 30 Krafft-Ebing, R von 89 Kumari Campbell, F 31 Laqueur, T 7, 49, 63, 83, 112, 138, 148 legal personhood 114–16, 127, 142; critique of 116–22 Lemarcis, Marie 8, 49 lepers 11, 22, 23, 40, 43, 145, 146 Levinas, E 31, 125 liberalism 115, 127, 149–50 life, right to: conjoined twins 117–22, 127 Lloyd, G 59

Lo, CM 132 Locke, J 80, 113 lunatics 22, 145; English law: late-Middle Ages 68–9 Lunger-Kruppers, L 31 Luther, Martin 74 Lykke, N 29 McClintock, J 96 McEwan, J 117 McGowan, R 55 madmen in English law: late-Middle Ages 68–9 Manderson, D 31, 125 Marcus, J 65 Marks, J 131, 132 Marotta, V 26, 28 marriage 33; annulment: non-disclosure of gender history 105–7, 110; see also transsexuality Martin, E 131 masturbator 6, 43, 45, 46–7, 47, 53, 54, 56, 146, 151 Megill, A 55 Melancthon, Philip 74 Meyer, JK 90 Middle Ages: bestiality/bestial human 4, 6, 45, 54, 57, 60, 62, 67–8, 69, 84, 130, 146; English law 22, 61–9, 130; Jews 26; lepers 11, 23, 40; witches 26 mind/body distinction 8–9, 148; conjoined twins 9–10, 114, 116, 119, 121, 124, 127, 147, 150; English legal history 9, 33–4, 59, 69, 77–8, 84, 148; human/nature distinction 33–4; legal privileging of mind over body 8–9, 116, 119; natality 40–1; transsexuals 9, 87, 98, 99, 108–9; Western philosophy 9, 69; see also body to soul: historical shift in target of regulation; head/body distinction in Swinburne Minotaur 39 Mishra, V 80 Monk, SH 66 monstrosity and monstrousness see theoretical framework Moran, LJ 27, 80 Morrison, W 81, 82 Mundy, J 65 Munro, VE 117 murder 1, 117–19 Naffine, N 114–15, 120 natality 10–11, 39–41, 42, 123, 146, 147; admixed embryos 133, 139, 140, 143–4, 146; conjoined twins 111, 133, 146;

Index English legal history 62, 67–9, 71, 77; social constructs 10, 39, 146; transsexuals 92, 98, 105, 107, 110, 133, 144 nature/artifice distinction 68, 98, 126n51 nature/human distinction 33–4 Nedelsky, J 115 Nederman, CJ 63 Neocleous, M 29 Nichols, FM 61, 62, 64, 130 Nietzsche, F 65 Olson, MV 131 Ostrow, M 90 Paisley, Baroness 136 palaeoanthropology 131, 132n6 Pare, A 36 Park, K 29, 66 Park, RE 26 Paul 64 Pender, S 66, 73, 76 personhood, legal 114–16, 127, 142; critique of 116–22 perversion 50, 67, 89, 93, 98, 103, 104, 105 Pfister, M 6, 16, 72, 80, 130 plague, bubonic 26 PlayStation 2 game: Shadow of the Colossus 30 Pocock, F 78 portents: monsters as 36, 66, 73, 75; ravens 74 Porter, R 9, 13, 59, 116 Poster, M 55 Pottage, A 132 pregnancy: alcohol/drugs/smoking 125n50; as non-monster concorporation 122–3 Price, J 9, 59, 109, 114, 148 primatology 131, 132n6 primogeniture, law of 63n13 progressive politics 11–12; admixed embryos 11, 141–2; conjoined twins 11, 123–5, 127; monster within all 2, 21; transsexuality 110 Punter, D 80 Rai, AS 29, 46 Randall, J 90 ravens 74 Reformation 74–5 Reichardt, J 29, 30 religious crusades 65 Renaissance period: conjoined twins 4, 45, 54, 57, 60, 71, 76, 84, 111, 146; English law 69–79, 84

183

resistance 11–12; admixed embryos 11, 141–2; conjoined twins 11, 123–5, 127; monster within all 2, 21; transsexuality 110 responsibility and causation 10, 34–8, 41–2, 52, 53, 146–7; admixed embryos 38, 133, 140–1, 144, 147; conjoined twins 38, 125–6, 127, 133, 140, 147; degree of hostility/alarm 10, 38, 126, 127–8, 133, 140–1, 144, 147; fantasy of ontological purity 142; history: bestiality 147; intersex people 133; pregnancy and consumption of drugs/alcohol 125n50; scapegoat and culpability 26; transsexuals 52, 98, 103–4, 110, 125, 126, 133, 144, 147; xenotransplants 139 Robert, JS 131, 132–3, 151 Robinson, P 55 Rollin, BE 132 Roman law 22, 23, 32, 54n18, 63–4, 66 Roth, MS 44 Rowland, B 74 Salisbury, JE 6, 72, 80, 130 Sandland, R 108 Savulescu, J 142 Sawicki, J 44 Sax, BC 44 scapegoat 2, 24–6, 28, 145 Scarry, E 73 Schmitt, C 2 Schrage, EJH 61 Schutz, A 26 scientific knowledge 36–7, 111–12, 152; hermaphrodites: medical view in eighteenth century 37, 49, 63, 79n58, 83, 105, 112, 138–9, 148; intersex 7; transsexuality 89–91, 104–5; see also admixed embryos Sehgal, VN 40 sex change: conjoined twins 120 sexuality 53, 151; transgressive 6, 49, 53; see also bestiality; homosexuality; masturbator; transsexuality Seymour, J 123 Shadow of the Colossus 30 Sharpe, AN 91 Sheldon, S 115 Shildrick, M 23, 24, 29, 31, 32, 73, 74, 115, 116, 117 Shiner, L 44 Siamese twins see conjoined twins signs, monsters as 66, 75 Simmel, G 26 Singer, P 131

184

Index

Siu, PCP 26 Smith, AR 132 smoking and pregnancy 125n50 Socarides, C 90 social constructs: monsters 10, 39, 146 sodomy 51, 52, 65, 72, 75, 77 Soper, K 33 Sorabji, R 73 soul 73, 74, 77; see also body to soul: historical shift in target of regulation; mind/body distinction Spade, PV 66 species concept 6, 72, 131, 151 Spelman, E 59 Steiner, BW 89 Steintrager, J 80 Stephen, HJ 82–3 Stevenson, RL 40 Stichweh, R 28 Stiker, HJ 100 Stoicism 73 Stoller, RJ 90, 93, 94 Stonequist, E 26 Strange Case of Dr Jeykll and Mr Hyde, The 40 stranger template 2, 24, 26–8, 145 succession see inheritance law Swinburne, H 35, 69, 70–1, 74, 78–9, 80, 82, 127–8 Synan, EA 65 Tadros, V 3 Tarde, G 48 Tebbit, Norman 136 teleological view of monsters 36, 66–7, 73–5, 76, 77 testicular feminisation or failure 97 theoretical framework 21–2, 41–2, 151–2; causation and responsibility 34–8, 41–2; legal templates 22–4; monster template 29–31, 145–6; monstrosity and monstrousness 31–4, 132, 146; natality 39–41, 42; non-legal templates 24–8; scapegoat 24–6, 28; stranger template 24, 26–8; see also natality; responsibility and causation Thomas, K 6, 16, 72, 78, 80, 130 Thompson, PB 131 Topsell, E 74 transgender 87n1

transsexuality 45, 59, 83, 84, 133, 137; abnormality and ‘unnaturalness’ 60, 92–9, 103, 105–7, 109–10; biological approach 91–9, 109, 110; brain structure 104–5; conclusion 107–10, 147, 148, 149–50; disclosure of gender history 105–7, 110; emergence of medico-legal ‘problem’ 88–91; introduction 5, 6–8, 9, 10, 11, 87–8; reform-based legal approach 91, 99–107, 108, 109–10, 114, 149; use of term 87n1 Triea, K 96 Ulpian 64 Ulrichs, KH 89 Underwood Lewis, J 78 Uniacke, S 119 United States 131 Vasseleu, C 122 Visker, R 44 Wallace, MI 25 Warnes, H 89 Watt, H 122, 150 Wells, C 122 werewolf 39 Westphal, C 89 White, DG 66 Whittle, S 103 Wilchins, RA 103 Williams, D 29, 62, 73 Williams, G 79 Williams, JG 25 Wilson, TH 44 witches 26 Wittkower, R 66 Wolfe, CT 73 women 115; bestiality on part of mother 6, 34–5, 52, 67–8, 77; female sex and ‘ambiguous’ genitalia 97; maternal imagination 67–8; pregnancy and consumption of alcohol/drugs 125n50; pregnancy as non-monster concorporation 122–3; see also admixed embryos; hermaphrodites; transsexuality Wood 26 xenotransplants 11, 40, 139–40, 143–4, 146