ISSN 1062-7421
Vol. 12 No. 8 (August 2002) pp. 435-438

BODY LORE AND LAWS by Andrew Bainham, Shelly Day Sclater, and Martin Richards (Editors). Oxford: Hart Publishing, 2002. Cloth $60.00. ISBN:

Reviewed by Thomas C. Shevory, Department of Politics, Ithaca College.

This book is an edited collection of essays. There are eighteen essays in all. The authors are from an array of disciplines. Although legal scholars are heavily represented, there are also historians, sociologists, psychologists, and health professionals. The essays were the product of seminars held by the Cambridge Socio-Legal Group in 2000. This collection marks the second volume of published essays from the CSLG. The first, WHAT IS A PARENT: A SOCIO-LEGAL ANALYSIS, focused on matters of family law, defined broadly. The present volume is perhaps even broader in scope, addressing a multiplicity of issues that
involve the body (or “TB,” as contributor Anne Bottomley puts it) in law. The law addressed is, for the most part, British law, although comparisons are often made to American legal cases and contexts.

Essays consider such issues as marketed body parts, sexualized bodies, medically dissected bodies, dying bodies, and genetically profiled and engineered bodies. A great strength of the work is the diversity of topics covered. As with most collections, however, various topics are bound to be of more interest to some than to others, and some essays are stronger than others. Although a detailed exegesis of each essay is beyond the scope of the current review, a brief accounting of some
of the arguments offered will, I hope, give LPBR readers some sense of what they can find in the collection.

Several of the essays deal with genetics. In Gregory Radick’s essay on “Discovering and Patenting Human Genes” (pp. 63-78), he proposes that some types of genetic discoveries may deserve patents, in particular, those that involve a purposeful “craft-like” approach to discovery. One candidate is the gene for erythropoeitin (EPO), a human hormone, manufactured by the kidneys, important for the production of red blood cells. EPO, which brought tremendous profits to its patent holder Amgen, was, Radick argues, a “hard, expensive slog” (p. 67). He contrasts its discovery with the biotech firm Venter’s attempts to patent “expressed sequence tags,” the sequence fragments of DNA that were being produced from the Human Genome Project. These were being generated by the hundreds by an automatic sequencing machine. Radick considers this automatized version of gene patenting to be inconsistent with patent law’s rationale, to foster the development of useful products that result from genuine innovations.

Martin Richards attempts to combat the notion that we are moving speedily toward a future of human genetic engineering in his essay, “Future Bodies” (pp. 289-307). He surveys British public attitudes towards, and medical practices involving, human genetic selection and finds that, “Neither the evidence from public

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attitudes, nor that from the current practice of assisted reproductive techniques, suggests that there is likely to be any great rush for genetic enhancement of children” (p. 303). Even in cases involving clear genetic markers, such as with Huntington’s disease, there seems only slight public interest in testing procedures that might reveal the existence of the genetic mutation. Based upon his investigation, Richards concludes that fears sometimes voiced about a world gone amuck with unregulated products of genetic engineering are somewhat overblown. Elizabeth Chapman, on the other hand, voices some of the very anxieties that Radick minimizes, in her essay, “Perceptions of Body and Genetic Risk” (pp. 309-28). She worries that tests now available for helping to determine the genetic risks of such conditions as Huntington’s, cystic fibrosis, and even HIV, are potentially dangerous. She is concerned about the “revival of eugenics” and, on a more practical level, an increase in wrongful life suits, which have not, to this point, been recognized in British law to the same degree as in American.

Martin Johnson’s “Male Medical Students and the Male Body” is a take on how dead bodies are sexualized by male medical students. Johnson focuses on the psychological reactions of medical students to bodily zones particularly freighted with cultural significance. In his study, investigators showed a video about the male genital region and asked for student reactions in a set of questionnaires. Student responses ranged from disgust to embarrassment. Students were then asked to
explore more deeply their personal reactions. The practical aim of the study was to encourage students to face their own anxieties about contact with the genitalia of male patients, a very important skill to have, given the variety of medical conditions that are associated with them. Johnson argues that students who have integrated their personal views about private body parts with their medical practice will be better doctors.

Dead bodies are also the subject of Mavis MacLean’s “Letting Go...Parents, Professionals and the Law of Human Material after Post Mortem” (pp. 79-90). She treats a subject not often covered in body literatures, the ethics of the common practice of retrieving material from human bodies for examination by pathologists. The practice is apparently done without consent in British hospitals, on a fairly common basis. The result can be a good deal of stress by families, especially those whose cultural or religious orientations encourage them to consider such tampering as taboo. In Britain, coroners have complete legal authority to order post-mortems without consent from the families of the deceased. Hospitals have wide latitude to do so. In an age when post-mortem materials, including gametes, can be used for research and commercial purposes, there is much potential for abuse. Attempts in Britain to establish more coherent procedures have met with
only mixed success.

End of life issues are the subject John Keown’s article “Dehydrating Bodies” (pp. 249-64). He finds a significant contradiction in British euthanasia law, between the Winterton Bill, which expressly prohibits the withholding or withdrawing of medical treatment by physicians, if one purpose was the hasten death, and the TONY BLAND case, which ruled that the withholding of food and hydration from certain kinds of unconscious patients to hasten their deaths was legitimate. Keown
argues that the inconsistency stems from “a failure to grasp the significance of intention in evaluating end-of-life decision-making”
(p. 250).

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In her article, “Domestic Homicide, Gender and the Expert” (pp. 105-26), Felicity Kaganas interrogates the way that the law treats abused women who kill their abusers. Applying the “reasonable man” standard to such circumstances, generally results in a finding that what the woman did was not reasonable, because alternatives were available, such as defending oneself (by fighting back) or protecting oneself by leaving their partners. An alternative discourse has emerged to partially accommodate defendants in such circumstances--the “battered wife syndrome”--which, in effect, medicalizes the issue, and turns trials involving its use into discussions oof the defendant’s psychological condition. For a woman to be successful she must, in essence, “suffer from some abnormality of mind” (p. 105), a form of post traumatic stress disorder. As a result, expert testimony becomes the basis upon which the outcome of the trial hinges. At some point, the notion that the battered are acting reasonably, under some circumstances, may become normalized into the criminal justice system. Until it does, such situations will, by necessity, be in the hands of experts.

Two chapters focus centrally on matters of sexuality. Andrew Bainham’s “Sexualities, Sexual Relations, and the Law” (pp. 171-92), examines an array of legal treatments of sexuality both inside and outside marriage. British law, like its American counterparts, has never entirely left sexual relations as a matter of private choice, and it encourages some kinds of sexual acts in marriage (consensual heterosexual sex), allows others (non-consensual sex), and prohibits others (some sex acts within marriage and all sexual relations outside of marriage). The European Convention, on the other hand, seems to be moving in the direction of legitimizing the rights to consensual sexual acts both within marriage and outside of it, while restricting non-consensual acts whether in or outside the institution of “family life.”

Belinda Brooks-Gordon and Loraine Gelsthorpe in their chapter, “Hiring Bodies” (pp. 193-210), survey important transformations in the way that male clients of prostitutes have been socially constructed. In the Victorian era, the use of prostitutes by men was normalized as being necessary to satisfy male sexual appetites. In the twentieth century, however, clients have become viewed as social deviants, and often treated as such by the criminal law.

Two chapters cover reproductive matters. Rachel Cook, in “Villain, Hero, or Masked Stranger” (pp. 211-228), discusses gamete donation and wonders why the gamete provider is treated differently than those that donate other kinds of body materials, such as blood and organs. She concludes that gamete providers are neither “heroes” nor “villains” in contemporary legal and social discourses. She attributes this to the complicated motivations of providers, and the sometimes perceived illegitimacy of their actions, along with the secrecy that shrouds the transactions.

Jane Weaver’s “Court Ordered Caesarian Sections,” provides a detailed overview of British law on a topic much discussed by American legal scholars, i.e., court ordered Caesarian sections. She critiques the hegemonic character of caesarians, and concludes that the power of medical discourses marginalizes women as emotional and irrational, and allows courts to intervene against women’s expressed wishes in a variety of circumstances. In that regard, British law tends to mirror
its American counterpart.

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Although eclecticism dominants in terms of topics covered, there are common themes that tend to tie the essays together, at least loosely. Most, if not all, are informed by critical and feminist discourses on law. For the most part, the essays are not simple accountings of case law in a particular arena of body politics. Rather they try to reach judgments about how various issues involving the body are reconstituting law, and how the body is in turn being reconstituted by systems of legal power. As Shelley Day Sclater writes in the introductory essay, “This book is about the relationship between law and the human body. As its title suggests, ‘law’ is not seen unambiguously, in isolation, but in its relationships to the diverse range of social discourses that make up ‘body lore’ and which also structure the narratives that rhetorically create law as a body of rational principles and practices” (p. 1). “Body law” is, in other words, not a list of precedents, a rationally constructed set of rules, or a system of justice. Rather it is a collection of ongoing processes and practices shaped by the sheer physicality of the body in its multiple differentiations. These legal practices in turn shape the body’s meanings and substance, altering its physicality. Subjected to a bewildering variety of technical
manipulations, the body’s meanings are in flux. As the body is altered technically, this in turns shapes law’s conceptual underpinnings. Sclater puts it quite well, “Body and law relate to each other in multifarious, sometimes antagonistic, ways; there is no one body of law, but a multiplicity of contingent and provisional bodies, lore and laws” (p. 1). A reader approaching this book may want to focus on a particular topic or set of topics, but, if one takes the time to read all of the essays, s/he will, I believe, come away with a renewed appreciation of the diversity and complexity of issues at stake in this arena of legal discourse.


Copyright 2002 by the author, Thomas C. Shevory.

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