Faust 1

Justice and the Body: A Phenomenological Approach to Legal Subjectivity

Jackson Reese Faust

I. Introduction

In the late nineteenth century, future United States Supreme Court justice Oliver Wendell

Holmes wrote, the life of the law has not been logic; it has been experience.1 This oft-repeated

maxim has nonetheless remained exterior to legal reasoning since the inauguration of the modern

legal subject as mediated through the respective thought of Rene Descartes and Immanuel Kant.

This conception of law, which will be referred to as modernist law throughout this essay,

maintains that the experiences and narratives that constitute the everyday lives and self-

conceptions of subjects have no place within legal decision-making. This law holds itself out as a

closed system, a seamless web in which its own rationality grounds and structures itself. Its

subject is primarily understood as res cogitans (mental substance), abstracted from the concrete

features that constitute a subjects (social) identity. Despite binding itself to a hermetically sealed

discourse, modernist law nonetheless attempts to adjudicate within social arenas that are

fundamentally dependent upon both narrative and experience in constructing and contextualizing

conflicts. In attempting to resolve these issues, modernist law simultaneously oversteps its self-

imposed bounds and fails to realize that it reaches beyond the limits of its own horizons.

However, taking the law as a phenomenological enterprise, constituted around the phenomenal

experience of (legal) subjects, renders it amenable to addressing and meeting human needs by

providing a corporeal justice.

This essay will argue for (re)considering the res extensa (physical substance) of subjectivity

by providing the grounds for thinking about legal issues beyond the modernist constraints. This

embodied legal subject is, at its core, a phenomenological subject, in that the analysis of the
1
Oliver Wendell Holmes, Jr., The Common Law (Macmillan, 1882), 1.
Faust 2

subjects lived experiences determines how the law ought to respond to injustice. Through this

understanding of the legal subject, I argue that legal decision-making will no longer be based

upon pure principle or opinions far removed from the concrete situation at hand. Rather, the

socially embedded and embodied aspects of the subject will be taken as the primary grounding

for the legal decision. First, I will examine the contradictions between modernist laws

limitations and its pretences, using Etienne Balibars analysis of the development of the subject

in the thought of Descartes and Kant. Against this reckoning of the subject, I will use G.W.F.

Hegels theory of recognition in order to sketch out the preliminary ground for a more socially

constructed subjectivity. Additionally, Pheng Cheah and Elizabeth Groszs concept of corporeal

justice will provide the trajectory for an alternative notion of justice, one that seeks to overcome

the shortcomings of the justice proffered by modernist law. From these coordinates, the

modernist philosophical grounding of the legal subject will be opposed to a phenomenological

treatment of the (legal) subject, traced through the respective work of Edmund Husserl,

Alexandre Kojve, and especially Maurice Merleau-Ponty. By implementing Merleau-Pontys

metaphysical notion of the flesh of the world, this phenomenological legal subject will disrupt

the sharp distinction between subject and object within the modernist legal system, and will ex-

pose (that is, poses in exteriority) the law to the interconnected, intersubjective lifeworld of the

embodied subject(s). Having set out this new legal subjectivity, I will take the phenomenological

ethics of Emmanuel Levinas as applied to judicial decision-making by Costas Douzinas and

Ronnie Warrington, and argue that applying such ethical standpoint within the law takes full

advantage of the Merleau-Pontian embodied legal subject that, in effect, Levinasian ethics

provides a blueprint for judicial analysis using this subjectivity. I will demonstrate this new legal

analytic through the analysis of a socio-legal issue that the modernist legal system has struggled
Faust 3

to meaningfully impact gender. By contrasting the modernist legal understanding of gender

discrimination with the work of Judith Butler through Elena Loizidou, I will demonstrate that the

socially constructed nature of this problematic resists modernist laws attempts to address it. In

cases involving such questions, I argue that a legal analysis based upon an embodied subjectivity

provides a more adequate framework for addressing social problematics within the legal arena.

The conclusion of this essay considers how the embodied legal subject meets the challenges

posed by further developing it as a legal persona that ex-poses the claimant as a subject within a

social whole.

An additional theme will be present throughout this essay: that, even as law attempts to

conceive of itself outside the registers of ethics and politics, it is nonetheless impacted by and

participates in their respective discourses. While both of these registers of normative inquiry can

be defined in many different (and occasionally incompatible) ways, for the purposes of this

essay, ethics will be broadly understood as the discourse where conflicts between individual

subjects are thought and played out, and politics will be broadly understood as the discourse

where conflicts between collectives and/or groups are thought and played out. A persistent theme

throughout this essay will be that law is not a discrete or compartmentalised discourse; rather, it

moves between and participates within these other discourses, such that referencing the

experiences of the phenomenological legal subject unifies this discursive movement and

participation. Indeed, due to the unique conception of the subject argued for in this essay, it will

soon be evident that the phenomenological subject not just requires, but demands, investigation

into all three facets of normative thought in order to meet the demands of a corporeal justice.

II. Modernism, Law, and their Subject(s)

Faust 4

In order to lay the groundwork for the phenomenological legal subject, the current legal

topography must be ascertained. In proper phenomenological form, we must first investigate the

meaning of the subject within the legal context. Here, I will trace how the subject has been

interpreted from philosophy to politics to law: from its original splitting with Descartes, to its

transcendental prioritization in Kant, and to its institution within the liberal legal order through

the revolutionary constitutions of the United States and France. Through this genealogy of

subject, I will argue that modernist law constructs its notion of justice based upon an empty,

abstract subject, and reifies the ideologies that flow from that ontological starting point. Against

this conception of the subject, the Hegelian concept of recognition as the foundation of the

subject will be used to argue for a legal subjectivity that takes this recognition into account. At

the conclusion of this investigation, I will examine Cheah and Groszs concept of corporeal

justice, and take their arguments as prescriptive for formulating a legal subjectivity based upon

the legal recognition of embodiment as essential to explicating a theory of justice.

From where does the modern legal notion of the subject arise? In his analysis of the history

of political subjectivity, the French political theorist Etienne Balibar cites Martin Heideggers

claim that Descartes established the sovereignty of the subject subjectum and thus, the

discourse of modernity.2 While Balibar disputes Heideggers imputation that the thinking thing

for Descartes can be identified as subject, he nonetheless finds that the Cartesian distinction

between the substances res cogitans and res extensa allows the entire set of causal relations

between (infinite) God and (finite) things, between ideas and bodies, between my soul and my

(own) body, to be thought. It is thus primarily a relational concept.3 From this division between

mind and body, the problem of mans relation to God enters the equation: the res cogitans of

2
Etienne Balibar, Citizen Subject, in Eduardo Cadava, Peter Connor, and Jean-Luc Nancy (eds), Who Comes After
the Subject? (Routledge 1991), 33.
3
ibid 34.
Faust 5

man must be made subservient that is, subject to Gods sovereignty. Balibar traces this

connection to the medieval concept of the subditus of medieval political theology that was later

hijacked by theorists of absolute monarchy: the individual submitted to the prince or king, whose

right to rule was legitimated by God.4 In this sense, the freedom of the (political) subject

subjectus is dependent and grounded upon the imposition of the (earthly) sovereign. Hence, the

gap between Descartes two substances and the explicit privileging of the thinking substance

over the physical due to the formers connection with freedom set the initial groundwork for

thinking the political and legal terrain of the subject.

However, as Balibar argues contra Heidegger, this Cartesian subjectus was not meant to

ground metaphysics. Instead, he argues, the metaphysical subject is drawn from Kants Critique

of Pure Reason, where the one and the same historico-political operation discovers the subject

in the substance of the Cartesian cogito, and denounces the substance in the subject (as

transcendental illusion), thus installing Descartes in the situation of a transition.5 Extending

this innovation in his follow-up work, the Critique of Practical Reason, Kant inaugurated the

modernist legal subject where by claiming human nature and freedom are not empirical realities

but pure concepts, constructions of an empirically uncontaminated thought and, only as such can

they become the basis for the derivation of right.6 Under a Kantian framework, judgment must

work upwards from our immediate perceptions to find a common principle or rule under which it

can be placed7 moral reasoning must be exorcised from its lowly origins in everyday empirical

experience in order to enter the ideal realm of universal rationality and applicability. It is

abstraction from the concrete situation to the universal law that permits judgments to be applied

4
ibid 36.
5
ibid.
6
Costas Douzinas, The End of Human Rights (Hart 2000), 203.
7
Richard Mohr, Identity crisis: judgment and the hollow legal subject (2007) 11 Law Text Culture 106, 117.
Faust 6

to the particular subjects. By endowing the Cartesian cogito and with a transcendental capacity to

effect universal morality, Kant's Critiques gave philosophical expression to the modern

obsession with the separation between subject and object and between self and the world.8 A

further operation took place: the moment at which Kant produces (and retrospectively projects)

the transcendental subject is precisely that moment at which politics destroys the subject of

the prince, in order to replace him with the republican citizen,9 whose legal status is fixed by the

civil and political rights of political liberalism. According to Balibar, the citizen-subject and the

concomitant rights discourse that accompanies it emerges from the Enlightenment revolutions as

an historical figure that is no longer the subjectus, and not yet the subjectum.10

From the space that the modernist subject occupies between subjectus and subjectum, two

distinct features of modernist thought individualism and abstractionism became embedded

within the legal order. The modernist splitting of the subject elevates the mind as the true seat of

the person, whereas that the body is reduced to its vehicle. Privileging the mind privileges the

unique mind, valorising the individual capacity to overcome immediate perceptions of the

world in order to privately ascertain moral law. Further, since the moral law must be universal in

both its scope and application, this individual mind cannot be based upon the contingencies of

the body or its experiences. The subject-mind therefore remains an abstract, immaterial concept

divorced from both the body and the external world a world which, like the subject-mind itself,

is reduced to an object of rational discourse from which liberal political rights flow.11 The legal

8
Costas Douzinas, Identity, Recognition, Rights or What Can Hegel Teach Us about Human Rights? (Sep. 2002)
29(3) Journal of Law and Society 379.
9
Balibar (n 2) 39.
10
ibid 46.
11
This account of subjectivity tracks Gary Pellers notion of liberal knowledge, which
whether based on the transcendental object or transcendental subject, presumes that an act of cognition can
occur separate from the social forces it studies. The contemplative stance of liberal knowledge suggests that
truth is reached by an effacement before a transcendental source and an ultimate non-differentiated unity
Faust 7

regime that emerges from institutionalizing this subjectivity propagates a similar rationalistic

discourse, privileging the abstract legal persona over the concrete person; its similarly privileged

notion of justice is one determined by and beholden to formalism, procedure, and tradition,

rather than one responsive to human need, suffering, and disadvantage. Ideologically, the empty

legal subject of political liberalism is reduced to an empty signifier, which is all too easily filled

in by the male, white, property-owning, and hyper-rational calculator who has been univocally

unmasked as the submerged primary beneficiary of law in Western cultures.12 As such, owing to

its Kantian roots, modernist justice becomes little more than the formal application of normative

principles among atomised individuals, with a rights discourse diminished to the medium for

rationalizing and reiterating oppressive ideologies already embedded within its system.

Space must be carved out within the modernist politico-legal machinery to enact a justice

beyond mere procedural fairness. Because the modernist conception of the subject serves as the

ground for the modernist legal system, re-conceptualising the philosophical grounding for legal

subjectivity can allow for such a clearing. However, any approach that might be described as

legal realism is inadequate for this task, as realism remains too vulnerable to reifying the

already existing ideological conceptions of the abstract subject.13 In other words, the subject

(much like the notion of truth in religious ideology) [or justice in law] rather than by a historical, open-
ended, and creative process unlimited by any transcendental laws.
Peller, The Metaphysics of American Law (1985) 73 Cal. L. Rev. 1151, 1269.
12
Anna Grear, Human Rights Human Bodies? Some Reflections on Corporate Human Rights Distortion, The
Legal Subject, Embodiment and Human Rights Theory (2006) 17 Law and Critique 171, 182-3.
13
See, e.g., in describing the those who embrace one or another of the extra-legal discipline to which the early
realists themselves turned in their effort to put the law back in a scientific footing, and those who stress the
stabilizing force of convention, tradition, and habit in the process of adjudication, Anthony Kronman lumped the
practitioners of the law and economics movement with the critical legal studies in the first group, in Responses to
Legal Realism (1988) 73 Cornell L. Rev. 335, 339. See also Karl Llewelyn, Case Law, in E.R.A. Seligman (ed),
Encyclopaedia of the Social Sciences, Vol. III (Macmillan 1930), 249:
Those phases of human make-up which build habit in the individual and institutions in the group [are]
laziness as to the reworking of a problem once solved; the time and energy saved by routine, especially
under any pressure of business; the values of routine as a curb on arbitrariness and as a prop of weakness,
inexperience and instability; the social values of predictability; the power of whatever exists to produce
expectations and the power of expectations to become normative. The force of precedent in the law is
Faust 8

must be empty enough so as not to replicate existing hierarchies within the social order, but must

also be concrete enough to serve as a referent for the social relationships and institutions under

which the subject is (con)formed. In this sense, the theoretical conception of the legal subject

simultaneously conceives of, and entails, a theory of justice. Thus, the question that emerges is

not simply a narrow inquiry into the legal subject, but a broader question of what sort of justice

the subject calls for through its construction.

In answering this question, a short diversion must be taken in order to consider a competing

paradigm of subjectivity, one that emerged as a direct response to the Cartesian-Kantian subject.

Hegel proposed a theory of the subject based upon the subjective desire for recognition by other

subjects, wherein self is constituted reflexively and is radically dependent on the actions of

others, where the struggle for recognition is the key ethical relationship or the main form of

practical intersubjectivity.14 As such, desire revels a fundamental lack in the subject, an

emptiness that must be filled through the overcoming of external objects.15 Through Hegel, the

abstract subject is rendered somewhat more concrete through its dependence on external others,

whether other individual subjects or institutions. Nonetheless, there still remains a gap between

intersubjective recognition within the legal realm and intersubjective recognition within the

social (non- legal) realm. For Hegel, the legal subject begins not with the ethical recognition of

intersubjectivity, but with contract, as property is a pre-condition of the recognition of others.

The right to property is the right to have rights and to be recognized as a (legal) person.16 Given

that property is taken to be the pre-condition for political freedom under the liberal paradigm, it

heightened by an additional factor: that curious, almost universal sense of justice which urges that all men
are properly to be treated alike in like circumstances. As the social system varies we meet infinite variations
as to what men or treatments or circumstances are to be classed as like; but the pressure to accept the
views of the time and place remains. (Emphasis added.)
14
Douzinas (n 8) 383.
15
ibid.
16
ibid 389.
Faust 9

would appear that Hegel has simply supplemented the liberal system of rights already instituted

within the modernist legal system. However, Hegel provides another intriguing divergence from

Kant, arguing that freedom and ethical life are intrinsically linked. In ethical life, the final stage

that entered the historical scene with the modern state, morality and legality are finally reunited

into an organic whole and become the state's institutional manifestation.17 Hegel thus provides

two instructive insights for considering the legal subject: first, in order to construct a notion of

subjectivity, one must incorporate that subjects existential dependence upon the external world

for recognition and contextualisation within that world; and second, (political) freedom and

ethical life are connected in a way that can overcome the empty legal formalism of the Kantian

paradigm.

Taking what has so far been discussed about the modernist legal subject and its relation to

both justice and the world, the trajectory of an alternative that the law might aim toward must be

sketched out. Against the formalist conception of justice within the modernist legal system,

Cheah and Grosz proffer a theory of corporeal justice. Critiquing readers of Michel Foucault

who overemphasize the oppressive nature of power and extending Jacques Derridas articulation

of justice as the impossible experience of absolute alterity, Cheah and Grosz argue that the

exteriority that constitutes the legal subject ought to be understood as the shifting processes that

give a subject an embodied identity.18 Embodiment incarnates the ontological violence which

characterizes our relationship with the absolutely other... [it] is the site of the co-implication

between normativity and violence.19 Since embodiment is the site of the relationship between

ethical asymmetry and phenomenological symmetry, corporeal justice demands that we account

17
ibid 381.
18
Pheng Cheah and Elizabeth Grosz, The Body of the Law, in Pheng Cheah, David Fraser, and Judith Grbich
(eds), Thinking through the Body of the Law (New York University Press 1996), 23.
19
ibid.
Faust 10

for differences in the bodily makeup of subjects before the law, even as and because the a venir

of our embodiment stains the limits of empirical knowledge.20 Cheah and Grosz therefore place

the body, rather than the abstract subject-mind, at the centre of legal inquiry in order to transform

the conception of justice, both as process and as result. Against the argument that this re-centring

is tantamount to lifting the blindfold from the icon (or idol?) of Justice, Cheah and Grosz argue

that corporeal justice remains blind due to its subsistence in the ever-shifting relation to

indeterminable alterity.21 Embodiment is thus the key to producing a conception of justice that

remains responsive to bodily human needs, implying that if the legal subject is to be rethought,

its site must be the body. Further, given the need to account for the phenomenological symmetry

of bodies in establishing the relations that give rise to justice, the role of embodiment is both to

add to the transcendental concept of justice, and to complete it. Thus, in this precise sense, the

supplement to (corporeal) justice is the phenomenological understanding of an embodied legal

subject.

III. Early Legal Phenomenology: Consciousness, Recognition, Language

With the modernist legal subject laid out as the opposition, and a notion of corporeal justice

set as an alternative trajectory for legal reasoning, the space for a new legal subjectivity is being

cleared. As the preceding critique and charge both rely upon a positive notion of embodiment in

pursuit of their respective argumentative ends, I will argue for an alternative legal subjectivity

founded upon the phenomenological experiences of the lived body. In this section, a genealogy

of the phenomenological subject will be traced from its progenitor, Edmund Husserl, toward a

more explicitly Hegelian (legal) subject in Alexandre Kojve. I will then consider William

Hamricks articulation of a legal system that comports with the existential phenomenology of

20
ibid 25.
21
ibid.
Faust 11

Maurice Merleau-Ponty. Ultimately, all three conceptions will prove inadequate for the purposes

of this essay: Husserls due to its reliance on a neo-Cartesian cogito as its subject; Kojves for

its perpetuation of the split (legal) subjectivity; and Hamricks for his commitment to the legal

positivism of H.L.A. Hart, a project that perpetuates the modernist legal subject. However, from

the analysis of these attempts, I will draw out the features of a phenomenological subjectivity

that would move legal subjectivity beyond its abstract cast. More specifically, the thought of

Merleau-Ponty will be used to articulate a more complete phenomenological legal subjectivity

an exercise that will be explicated in the following section.

For Husserl, phenomenology was the science of consciousness, resting on a distinction

between phenomena objects presented within consciousness and objects things that can

be presented within consciousness.22 This distinction allowed him to focus his philosophical

analysis toward immanent experience, which consists in the mere viewing that takes place in

reflection by which consciousness and that of which there is consciousness is grasped.23 Husserl

proposed a modification of the Cartesian cogito, such that pure reflection excludes everything

that is given in the natural attitude and excludes therefore all of Nature the phenomenological

reduction.24 Through this ontological bracketing, Husserl hoped to examine pure consciousness

without interference from preconceived notions or expectations. The grounding for this approach

and, by relation, the grounds for the phenomenological subject appears to reside within

sensibility, the egos active functioning of the living body or the bodily organs, belongs in a

22
Edmund Husserl, Pure Phenomenology, its Method, and its Field of Investigation, in Dermot Moran and
Timothy Mooney (eds), The Phenomenology Reader (Routledge 2002 [1917]),126-7. Adolf Reinach, a student of
Husserl and the first to use phenomenology to analyse legal phenomena, echoes this view: Being grounded in a
supporting subject is something which our legal entities have in common with experiences (Erlebnisse) of all kinds,
for these too always presuppose a subject whose experiences they are. Adolf Reinach, The A Priori Foundations of
Civil Law 3 Aletheia 1 (John Crosby tr, 1983 [1913]). While Reinach wrote about law generally, he did not write
about the legal subject, and as such, his work will not be examined in this essay.
23
ibid.
24
ibid 129.
Faust 12

fundamental, essential way to all experience of bodies.25 As such, the subject is identifiable with

a transcendental ego that perceives the world through a corporeal body. While Husserl was not a

dualist in either the metaphysical or Cartesian sense, his commitment to the immanence of the

transcendental ego prevented him from moving beyond the gap between mind and body. It was

this conceptual dualism, this idea that consciousness and reality are separated by an abyss of

meaning, that prevented Husserl from acknowledging the body as the original locus of

intentional phenomena in perceptual experience.26 Thus, for Husserl, a lived body is primary

only because it provides the primordial sensations of experience for the transcendental ego as

an initial interface rather than the generative site.27 While a Husserlian phenomenological

analysis of the (legal) subject is adequate as a pure descriptive enterprise of presently existing

structures or phenomena, operationalizing such analysis within a legal system would perpetuate

the commitment to a disembodied subject within the law. In order to move beyond the modernist

legal subject, something more than a descriptive Husserlian transcendental phenomenology must

be utilized.

Another notable attempt to provide a phenomenological subject was Alexandre Kojves

analysis of law, wherein he proffered the notion that droit [law or right] or one of its constitutive

elements, taken as the content of a human consciousness, is called the juridical phenomenon. The

description of the juridical phenomena is called the Phenomenology of Droit.28 For Kojve,

there is an essence of Droit that is similar to a Platonic form, and that it usually resides in social

25
Edmund Husserl, The Crisis of the European Sciences and Transcendental Phenomenology (Northwestern
University Press 1970 [1936]), 106.
26
Taylor Carman, The Body in Husserl and Merleau-Ponty, (Fall 1999) 27(2) Philosophical Topics 205, 208-9.
27
ibid 209.
28
Alexandre Kojve, Outline of A Phenomenology of Right (Bryan-Paul Frost and Robert Howse tr, Rowman &
Littlefield 2000), 106. It should be noted that the term droit can be translated from the French as either law or
right, and, as such, the translators of the Outline have decided to allow readers the chance to judge for themselves
the meaning that Kojve attributes to this key concept. Ibid xiii. For the purposes of this essay and its focus on legal
subjectivity, it will be presumed that the term refers to law, within the sense of a legal system.
Faust 13

instances generally referred to as juridical. In this sense, Kojve is working within a Husserlian

mould to discover the essence of what constitutes the juridical/legal phenomenon; however, he

goes beyond Husserl with the anthropogenic act, which generates man as such in time the aspect

which creates the juridical phenomenon in man.29 Through the Hegelian master-slave dialectic,

Kojve argues that the creation of Man occurred through the negation of nature amidst a struggle

for recognition, an anthropogenic act that creates a sui generis autonomous human existence,

without one being able to say that there is a human being (a soul) outside of the natural being

(the body).30 This action of opposition creates self-consciousness, and one such instantiation

of this opposition is the subject of droit. Interestingly, and in contrast to the modernist legal

subject, Kojve accepts that not all anthropomorphic Homo sapiens animals will be called

everywhere and always a subject of droit: one will see limits drawn by age, sex, physical or

psychic health, race, or by other social characteristics.31 For Kojve, these limits are mistakes

that are only possible due to the separation of the human being from the natural being, a product

of the desire for recognition. As such, Kojves Hegelian dialectics describe a legal subject that

depends on a concrete natural being as a referent, a much more satisfying account of subjectivity

than Husserls phenomenology can provide. However, the gap between the legal subject and the

physical subject persists, such that the former can still be dissociated from the larger social world

within which its referent is situated. Thus, while a Hegelian notion of recognition advances the

law closer to lived experience, Kojves subject of droit nonetheless remains a legal persona that

prevents a full recognition of lived subjectivity.

With this critique in mind, I will now turn toward another phenomenology of law, one that

uses the theories of Kojves student Maurice Merleau-Ponty. While Merleau-Ponty never wrote

29
ibid 30-1.
30
ibid 215.
31
ibid 216.
Faust 14

specifically on law, William Hamrick has attempted to piece together a Merleau-Pontian

treatment of law. Hamrick begins from Merleau-Pontys conception of subjectivity, variously

described as a body-consciousness, an incarnate cogito, or lived body (le corps propre).32 As

such, in perceptual life, the incarnate cogito consists of a third genus of being because it is

neither a purely subjective consciousness nor a solely objective body. It is, rather, a concrete

unity of interdependent psychical and physical aspects33 Seen through the lens of gestalt

psychology, subject and object in perceptual experience are interdependent aspects of the

same structural whole, as are the psychical and the physical, the soul and the body.34 Hamrick

continues by describing Merleau-Pontys theory of intersubjectivity as articulating a social world

constituted as a mesh of complex relationships between different incarnate subjects.35 What

unites subjects is language, as speech and the expressive body are immediately continuous with

perception, Language can vary and amplify inter-corporeal communication as much as one

would like: it has the same elasticity, the same style.36 From these premises, Hamrick argues

that, for Merleau-Ponty, law is a social structure and serves as a form of living intersubjective

relationships, with aspects that are both objective (i.e., institutional) and subjective (i.e., actively

expressive of a legal consciousness).37 Further, as an order of meaning in society, law has as its

prime purpose the expression of meaning, which is structured by language.38 Hamrick uses this

treatment of language to delineate the trajectory for his legal system, finding much in Merleau-

Pontys thought to ground a version of Harts legal positivism.39 However, the subject at the core

32
William S. Hamrick, An Existential Phenomenology of Law: Maurice Merleau-Ponty (Martinus Nijhoff
Publishers 1987), 21.
33
ibid 22, citing Maurice Merleau-Ponty, The Phenomenology of Perception (Colin Smith tr, Routledge 1962), 350.
34
ibid 23-4.
35
ibid 25.
36
ibid 33.
37
ibid 144.
38
ibid.
39
ibid 129-30.
Faust 15

of the Hartian legal project the ordinary citizen remains the masculine, self-interested,

autonomous public actor of liberal legal theory.40 Thus, even as Hamrick rightly argues that

phenomenology can enhance Harts positivist notions of how legal rules are administered, the

legal subject remains a modernist subject.

Through the preceding analyses, the gap between the modernist legal subject and the lived

subject who serves as its referent has been narrowed through the phenomenological rendering of

what gives rise to subjectivity. However, another issue lurks behind these attempts to isolate and

conceptualise a subject, for both the modernist and the phenomenologist: namely, whether the

(legal) subject can truly be isolated as a distinct concept/phenomenon from the overall social

context within which it is constituted. For that matter, if the subject is so imbricated within the

context of the social world which generates it, how localized or narrowly can we view the

subject as apart from the social system as a whole? Going even further, if the critique proffered

by this essay is that the modernist legal subject is too discrete in its treatment of the subject and

the larger social whole, could the entire legal enterprise itself be too discrete in its approach as

well?

With those questions in mind, let us return to Merleau-Ponty and Hamrick. Even if he does

not attempt to displace the modernist legal subject with a phenomenologically constituted one,

Hamrick nonetheless makes interesting notes about the interrelationship of systems of social

meaning. Discussing Merleau-Pontys ethics, he argues that, for Merleau-Ponty, instrumental

conceptions of rules can be enhanced if these rules were flexible enough to respond to changing

configurations of events significantly, this same approach obtains in politics and law as well.41

Hamrick further argues, in only a slight departure from Merleau-Pontys emphasis on the unity

40
Emma Cunliffe, Ambiguities: Law, Morality, and Legal Subjectivity in H.L.A. Hart's The Concept of Law, in
Maria Drakopoulou ed, Feminist Encounters with Legal Philosophy (Routledge-Cavendish 2013), 195.
41
Hamrick (n 32) 83.
Faust 16

of the lifeworld, that the legal system exists in dialectic with the social world, whereby the

former reflects (upon) changes in social dynamics. However, Hamrick makes this astute

observation about legal judgment:

Judicial decision-making serves as an especially rich medium for reflecting on the

objects mode of presence to the subject, on the conception of the object and that of the
subject such as they appear to phenomenological reflection, instead of substituting for
them the relation of object to subject such as it is conceived in an idealist philosophy of
total reflection.42

Because of this capacity, the legal subject the locus for adjudication and its relation to the

social world is crucial for how the law is interpreted and applied. For if Merleau-Ponty would

subscribe to the view that judges make law,43 his notion of intersubjectivity further implies it

cannot be the case that judges consider only what is exclusively within the law the empty

modernist legal subject must also be filled in with the judges conceptions of the social world.

Indeed, given the ideological connotations that the abstract legal subject has internalized and

perpetuated, this state of affairs must almost certainly be the case. As such, the Merleau-Pontian

legal subject must be thought within the entire social spectrum of expressive possibilities for

concretizing values44 that is, contra Harts (modernist) legal positivism, within the realms of

politics and ethics. Further, if phenomenology considered as ideology critique leads us to

perceive the need to be sensitive investigators of the constituting activities of consciousness in

and through which something appears (better: is made to appear) self-evident,45 embedding this

analytical perspective within the law is all the more necessary, given the normative power the

law wields. Since embodied experience is at the core of Merleau-Pontys phenomenology, the

42
ibid 176, citing Maurice Merleau-Ponty, Signs (Richard C. McClearey tr, Northwestern University Press 1964),
116.
43
ibid 171.
44
ibid 144.
45
ibid 192.
Faust 17

body and its experiences are the core problematic of legal subjectivity, and must be addressed

before a system can be constructed. Further, in the course of constructing the phenomenological

legal body, the ethical and the political implications of bodies will have to be consulted as well.

IV. The Embodied Legal Subject: Beyond Consciousness and Recognition

After examining the foundations of the modernist legal subject and parsing through various

phenomenological treatments of (legal) subjectivity, a possible frame for the phenomenological

legal subject has been found within the embodied subject of Maurice Merleau-Ponty. However,

more questions emerge: what does it mean to embed the phenomenological perspective within

legal subjectivity? Can the body really serve as the site of subjectivity? How could cases be

adjudicated if the thin legal subject is discarded? These questions go toward the heart of this

essay, what precisely does the phenomenological legal subject do for law? This section will seek

to provide preliminary answers to these questions, using the concept of corporeal justice as a

guidepost for thinking through an embodied legal subjectivity. I will first examine how the body

is treated within the law as an outgrowth of the Cartesian/Kantian splitting of the mind form the

body. A (Merleau-Pontian) phenomenological subject will then be proffered to unify these

fragmentary treatments, explicitly making reference to the metaphysics implied by this subject.

Specifically, Merleau-Pontys concept of the flesh of world will be examined as the underlying

ontology, with the lifeworld as the ontic manifestation of this ontology. Within this metaphysical

landscape, corporeal justice will be seen as using the body and its conscious experience as the

moor for reaching into the lifeworld, the social world apart from the legally imposed abstraction.

Modernist legal discourse operates within a liberal rights framework, which treats the body

as the conceptual source of and seat for rights-discussion. For example, in the United States,
Faust 18

the right to privacy is closely related to the principle of physical inviolability, and the body is

often used to illustrate the boundary for the negative rights enforced under the regime.46

However, because the modernist legal subject is taken to be a disembodied ego, modernist law

has often treated the human body as an object of analysis, rather than as a category itself.47 In

keeping with its originary Cartesian/Kantian splitting of the subject in order to generate an

instrumental persona, the modernist legal subject is not taken to be a body, but rather, to possess

a body. That is, modernist law considers the body to be within its framework of personal

property. Much of the legal literature on the body deals with it not simply as an object, but as an

assemblage of fragmented parts.48 Once broken, the modernist legal body can be commodified

into discrete parts that can be sold and traded as any other piece of personal property.49 This

linking of the body with private property prevents an embodied subject from being fully

recognized within the legal system, as commodification inevitably brings to the foreground

the objectification of the body over subjective experience.50 Further, rendering the body into an

amalgam of discrete pieces of property engenders legal battles over ownership; or, more

accurately, who is entitled to collect profits that might arise from that ownership.51 The

modernist legal system thus performs two functions: first, it administers the primordial cut that

severs the subject from its body; and second, it buttresses and reinforces successive excisions

and fragmentation of those body parts by the market. When a subjects body is reduced to a mere

46
Peter Halewood, Laws Bodies: Disembodiment and the Structure of Liberal Property Rights, (1996) 81 Iowa L.
Rev. 1331, 1336.
47
Ruth Fletcher, Marie Fox, and Julie McCandless, 'Legal Embodiment: Analysing the Body of Healthcare Law',
(2008) 16(3) Medical Law Rev. 321.
48
Halewood (n 46); see also Thomas H. Murray, On the Human Body as Property: The Meaning of Embodiment,
Markets, and the Meaning of Strangers (1987) 20 U. Mich. J.L. Reform 1055; Radhika Rao, Property, Privacy, and
the Human Body (2000) 80 B.U. L. Rev. 359; Jesse Wall, The Legal Status of Body Parts: A Framework (Winter
2011) 31(4) OJLS 783; and Meredith Render, The Law of the Body (2013) 62 Emory L. J. 549.
49
Jyotsna Agnihotri Gupta & Annemiek Richters, Embodied Subjects and Fragmented Objects: Womens Bodies,
Assisted Reproduction Technologies and the Right to Self-Determination (2008) 5 Bioethical Inquiry 239, 240.
50
Lesley A. Sharp, The Commodification of the Body and Its Parts (2000) 29 Annual Review of Anthropology
287, 290.
51
See, e.g., Moore v. Regents of the University of California, 793 P.2d 479 (1990).
Faust 19

object, the intimate link between the subject and the world is hidden from the legal purview

both the physical body and the concrete world which constitutes, situates, and acts upon it are

bracketed away so as not to interfere with legal reasoning. As such, when the law discards the

subjects body in order to think and reason more conceptually, it simultaneously buries the social

reality within which that subject dwells. Recognizing the embodied subject breaks through the

liberal rights framework that delimits and defines the legal subject, unearthing the subject as not

simply possessing a body, but as a body.

For the modernist legal practitioner, the idea that the law ought to treat its subject as

embedded and embodied in this phenomenological sense is the opposite of what law does. Under

the modernist purview, the phenomenological analytical posture that articulates a corporeal legal

subject appears as a category mistake, since the purpose of law is to situate subjects similarly in

order to judge impartially, which it does by assigning a legal persona to subjects. Corporeal

justice does not permit such an interpretation, as the body is not only the universal site in that we

all have bodies, but it is also often the ground for what the law considers discriminatory, what

the ethical considers immoral, and what the political considers unjust. In order to meet both the

challenge and the goal of corporeal justice, the phenomenological legal subject will have to

move legal subjectivity toward inoperative subjectivity, what Jean-Luc Nancy refers to as

singularity. For Nancy, a singular being appears, as finitude itself; at the end (or at the

beginning), with the contact of the skin (or the heart) of another singular being, at the confines of

the same singularity that is, as such, always other, always shared, always exposed.52 To be

exposed for Nancy is to be posed in exteriority53 within this sense of legal subjectivity,

adopting a legal persona informed by an embodied phenomenology will ex-pose the subject,

52
Jean-Luc Nancy, The Inoperative Community (Peter Connor ed, University of Minnesota Press 1991 [1986]), 27-
8.
53
ibid xxxvii.
Faust 20

not as simply a persona, but as a subject posed outside the confines of the legal parameter. Under

such analysis, the subject of legality becomes corpo-real that is, existent due to its physical

instantiation as embodied and a justice derived from such a subject is itself corpo-real.

As previously defined, corporeal justice takes the body not only as the ground of justice, but

also as possessing a deconstructive edge that challenges the presumption that legal subjects are

interchangeable. In this sense, corporeal justice objects to the subject-object distinction encoded

into the modernist legal treatment of the body. Similarly, Merleau-Ponty proposes the chiasm

the intertwining an exchange between me and the world, between the phenomenal body and

the objective body, between the perceiving and the perceived: what begins as a thing ends as

consciousness of the thing, what begins as a state of consciousness ends as a thing.54 The

chiasm is the site where the concrete features of the body constitute the subject by reference to

its lived, material context within the physical world. This intertwining entails the series of

relationships that other philosophers have used as grounds for various dualistic descriptions of

the world, subject and object, mind and body, self and world. Instead, Merleau-Ponty

takes these dualisms as modalities of a singular flesh, the presence of the world is precisely

the presence of its flesh to my flesh, that I am of the world and that I am not it, this is what is

no sooner said than forgotten: metaphysics remains coincidence.55 For Merleau-Ponty, flesh

overcomes dualistic conceptions of reality, and provides a corporeal basis for the construction of

reality. Because it ex-poses a subject against the modernist legal subject by reference to the

subjects corpo-reality, a legal phenomenology through Merleau-Ponty is well suited to take the

charge of corporeal justice.

54
Maurice Merleau-Ponty, The Visible and the Invisible (Claude Lefort ed, Alphonso Lingis tr, Northwestern
University Press 1968), 215.
55
ibid 127.
Faust 21

The philosophical implications that flow from Merleau-Pontys ontology demonstrate how

the phenomenological body and its experiential capacities can provide the terrain for ethics and

politics as well as law, upon (and through) which all three are debated, fought, and eventually,

written. Douglas Low has argued that embodied subjectivity is what makes morality possible for

Merleau-Ponty:

Because of the prepersonal functions of the body, because consciousness is now defined
not as an introspective awareness of one's own private experience but as an aware bodily
relationship to the world, my personal life is carried into an experience and into a world
that is prior to and includes me and others. My experience and the experience of others is
cut out of a shared experience that includes both of us. Our private consciousnesses meet
or overlap at the thing, at the world that includes both of us.56

The flesh, which underwrites this ethical ontology, is seen as generating subjectivity and its

constituent obligations, much the same way that the legal order generates its own subject. For

Merleau-Ponty, the virtuosity that is particular to politics must be underwritten by an ontology

of the between, intercorporeity and intersubjectivity, wherein agentic capacities emerge. 57

Taking flesh as (legal) ontology implicates the ethical relations that exist outside of the purview

of the narrow dialectic proffered within the legal discourse cases can no longer be seen as

discrete disagreements between two singular parties. Rather, intercorporeal overlap means all

social relationships are relevant to understanding a legal dispute. From this ontology, Merleau-

Pontys notion of hyper-dialectic emerges, where a thought is capable of reaching truth

because it envisages without restriction the plurality of the relationships and what has been called

ambiguity.58 Using the definitions of ethics and politics presented earlier in this paper, taking

account of the plurality of ethical relationships becomes political analysis. Adopting hyper-

56
Douglas Low, The Foundations of Merleau-Ponty's Ethical Theory, (Apr. 1994) 17(2) Human Studies 173, 181.
57
Diana Coole, Merleau-Ponty and Modern Politics after Anti-Humanism (Rowman & Littlefield Publishers, Inc.
2007), 163.
58
Merleau-Ponty (n 54) 94.
Faust 22

dialectic as legal reasoning allows for a legal system which criticizes itself and surpasses itself

as a separate statement and is conscious of the fact that every thesis is an idealization.59 When

compared with Merleau-Pontys ontology and its ethical and political implications for law, the

modernist legal system and its formalistic practices seem capable of only providing a bare

shadow of what might be entailed by justice.

Echoing Holmes famous dictum, Merleau-Ponty emphasizes that phenomenological analysis

must stick close to experience, and yet not limit itself to the empirical but restore to each

experience the ontological cipher which marks it internally.60 However, Merleau-Ponty does not

seek to return to a pre-ideological account of the world. Rather, he seeks to understand the

relations that beings have with their environment. Contrary to Jrgen Habermas understanding

of the lifeworld as a primordial historical phenomenon, Merleau-Pontys lifeworld exists as an

irreducible and inexhaustible third dimension that can never be outrun but which is consistently

covered over by discourses that misunderstand the nature of truth.61 The lifeworld of Merleau-

Ponty seeks to uncover the givenness of the existing social world, while still acknowledging

that the one cannot ultimately break free from or ignore it. Through Merleau-Pontys concept of

the hyper-dialectic, phenomenology has a privileged access to the world, and as such it may

reproduce idealities and transform the history of the lifeworld as it is manifested in everyday

life.62 Because of the overlapping layers of sociality that consist in the subject, embodied

subjectivity entails a thorough parsing of these layers in order to take account of subjective

experience. As such, taking embodied legal subjectivity generated from the ontology of flesh, the

lifeworld can be conceptualized within the legal context as the ontic, non-legal aspects of social

59
ibid.
60
Maurice Merleau-Ponty, Signs (Richard McCleary tr, Northwestern University Press, 1964 [1960]), 157.
61
ibid 144.
62
Eran Dorfman, History of the Lifeworld: From Husserl to Merleau-Ponty, (Fall 2009) 53(3) Philosophy Today
294, 299.
Faust 23

life the social practices that participate alongside and within law, yet are often obscured or

covered over through the operation of legal reasoning.

The Merleau-Pontian embodied legal subject thus does much more than provide unity to the

otherwise haphazard treatment of the body within the modernist legal system. Embodiment

brings to the fore the fact that subjectivity, legal or otherwise, is intimately bound up with the

experiences of the subject as well as the larger web of social meaning that contextualizes and

forms those experiences. For Merleau-Ponty, our primary ontological connectedness as sharing,

intersubjective and intercorporeal singulars is the groundwork for our subjectivity and sociality,

as well as a more holistic notion of justice. In contrast, constricting the web of social meaning by

clipping off strands deemed irrelevant derails any notion of justice that aspires to accomplish

anything more than its own self-justification. Avoiding the fragmentation and idealisation within

modernist legal theorizing entails retreating from the modernistic paradigm of a subject without a

body, and instead moving toward an inoperative legal subject ( la Nancy) where the subjects

body and its social context are constitutive aspects of its subjectivity. In order to bring Merleau-

Pontys embodied subject and its commitment to corporeal experience within the legal paradigm,

the phenomenological analysis implied by the embodied legal subject must also take into account

the non-legal social practices that instantiate and situate that subject.

V. (Legal) Phenomenology and the Face of the Other

Thus far, the embodied legal subject has been argued as one informed by a phenomenology

of the body, wherein such body is constituted by its understanding of the social world. Much of

the focus has been at the level of the singular legal subject, though references have been made to

the intercorporeal plurality implied by considering an embodied subject. The question that now
Faust 24

emerges is how the law ought to respond to this intersubjectivity, the relation of the embodied

subject and the Other how ought the law speak about otherness? In this section, the embodied

subject of Merleau-Ponty will be placed in dialogue with Levinas, the preeminent ethicist of the

(phenomenological) face of the Other, in order to draw out a corporeal ethic that can inform a

corporeal justice. After situating Levinas in relation to Merleau-Ponty on the question of the role

of phenomenology, I will move on to the Levinasian treatment of law proffered by Douzinas and

Warrington. The role of the judge will be then be detailed through Simon Critchley and Marinos

Diamantides, emphasizing on the intimacy of the ethical and political aspects involved in legal

judgment through a Levinasian approach. This relationship of law, ethics, and politics will be

further explicated by connecting these encounters with the lifeworld outside the legal paradigm.

Through this encounter between Merleau-Ponty and Levinas, I will accomplish two things: a

situation of the Levinasian ethical project within a context of the pursuit of corporeal justice, and

a further exploration the intimate relationship of ethics and politics have with(in) the law that

takes a phenomenological embodied subject as its foundational subject.

Against the individualistic ethics that are enshrined within the modernist philosophical and

legal discourse, ethics for Levinas emerge in the face-to-face encounter with the Other, wherein:

The Other remains infinitely transcendent, infinitely foreign; his face in which his
epiphany is produced and which appeals to me breaks with the world that can be common
to us, whose virtualities are inscribed in our nature and developed by our existence.63

Levinasian ethics is founded in an irreducible alterity, an insurmountable distance between the

subject and the Other that resists collapsing difference into sameness. The face of the Other

inaugurates the ethical relationship it is always directed toward the subject and situated in

concrete circumstance, yet is as resistant to full conceptualization as it is transcendentally

63
Emmanuel Levinas, Totality and Infinity (Martinus Nijhoff Publishers 1979), 194.
Faust 25

demanding. Simply, the disruptive nature of this alterity prioritizes the Other, such that its

irreducible and transcendental presence that entails an unconditional respect for other human

beings. Within the more specifically legal context of rights:

My freedom and my rights, before manifesting themselves in my opposition to the

freedom and rights of the other person, will manifest themselves precisely in the form of
responsibility, in human fraternity. An inexhaustible responsibility: for with the other our
accounts are never settled.64

This fundamental ontology of and for the Other prompts Douzinas and Warrington to argue for a

Levinasian ethical approach to the law, an ethics of ethics and the law of law the opening

upon which rises individual and community and which grounds the moral stimulus, the legality

of laws and the politics of community.65 In this sense, Levinasian legal ethics can provide the

groundwork for a conception of justice based not on enabling individual desires, but upon a

shared responsibility we all have for others and their needs.

Clearly, the Levinasian ethical relationship has a close affinity with an account of justice that

depends on the phenomenological experience of (inter)subjectivity. Indeed, for Levinas, the

question of justice is formulated in terms of the multiplicity of singular Others giving rise to the

need to represent, calculate, etc.,66 which certainly parallels Merleau-Pontys conception of

ethics and politics. However, it is Levinas stress on the unknowability of the Other informs his

criticism of Merleau-Pontys phenomenology, which he claims creates an imperialism of the

same.67 Levinas argues that, by emphasizing the reversible relation between self and other,

Merleau-Ponty obviates the distance between the two, and therefore cannot adequately thematise

64
Emmanuel Levinas, Outside the Subject (Continuum 2008 [1987]), 98.
65
Costas Douzinas and Ronnie Warrington, Justice Miscarried (Edinburgh University Press 1994), 167.
66
Marinos Diamantides, Levinas and critical legal thought: imbroglio, opera buffa, divine comedy?, in Marinos
Diamantides (ed), Levinas, Law, Politics (Routledge-Cavendish 2007), 182.
67
Jack Reynolds, Merleau-Ponty, Levinas, and the Alterity of the Other (2002) 6(1) Symposium 63, citing
Emmanuel Levinas, Philosophy and the Idea of Infinity, in Collected Philosophical Papers, 55.
Faust 26

the genuine alterity at the core of ethics.68 However, defending Merleau-Ponty, Jack Reynolds

argues that difference and alterity are truly experienced only by an openness that recognizes that

despite all of the undoubted differences that we encounter, there is always something shared that

allows difference to be conceivable at all.69 In this sense, there is considerable complementarity

between the Levinasian and Merleau-Pontian approaches to encountering the Other. In fact,

Levinasian ethics serves to enhance Merleau-Pontian ethics (politics, law) by emphasizing the

space between the subject and Other, which thus serves to heighten the ethical (political, legal)

call already presupposed by intercorporeity. However, within the legal system, disputes and their

resolutions are not simply a matter between one and an other: in order to take ethical encounters

forward, Levinas instates the Third, who looks at me through the eyes of the other and puts a

distance between me, the other and his contemporary and neighbour. Thus, my ethical response

to the other who faces me is also and inevitably an address to the community.70 In this sense, the

legal subject, whether plaintiff or defendant, prosecutor or accused, is treated and observed as an

Other unto the law itself through the eyes of the Third, that is, the judge.

At first glance, the role of the judge operating as the third appears dangerous for the law, as

the judge has the power to reify the existing legal, political, and ideological conditions to which

the claimant objects. Simply, would these extra-legal not adversely impact upon the legal? This

worry is germ of the charge of judicial activism. However, against Levinas claim that politics is

a mere deduction from ethics, Critchley argues there is an important hiatus between ethics and

politics. Reading Derridas elegy Adieu Emmanuel Levinas, he points out that the very

indeterminacy of the passage from ethics to politics entails that the taking of a political decision

68
ibid 69.
69
ibid 75.
70
Douzinas and Warrington (n 65) 177.
Faust 27

must be a response to the utter singularity of a particular and inexhaustible context.71 In this

light, Levinasian ethics is the meta-political disturbance of politics for the sake of politics, that

is, for the sake of a politics that does not close over in itself a groundless grounding that

replaces rather than reproduces foundational assertions of order with an appropriate response to

the (multitudinous) Others plea(s).72 Due to their position at the limit or gap of legal reasoning,

judges are by necessity engaged in deeply political (and as the Third, ethical) decision-making.

Indeed, Diamantides finds that the judge often moves beyond the impositions of her politico-

judicial role into the realm of the Levinasian ethical not a resort to the Dworkinian legal gap

filled with (its own) morality, but an excessive so as to meet her responsibility toward the

Other.73 This Levinasian ethico-political understanding of legal judgment thus defers to the

Merleau-Pontian lifeworld argued for earlier in this essay, to the social practices that are not

entirely contained within the existent legal framework and are performed by embodied subjects

face-to-face with each Other. Due to their dependence on analysing the intercorporeality of

subjects in their relations with the larger social world, these ethico-political interventions entail

the practice of corporeal justice.

Thus, under a Levinasian approach, the judge always knows that what she will do is unjust:

in her judicial role as Third, she acts under a conception of ethics where the subject has to admit

and accept the command of the Other in a face-to-face, dyadic situation. As soon as she is in

place as the Third, one or the Other will lose, and ethics as saying yes to Other will be violated.

While there can never be a full phenomenology of the Third, the role of the judicial Third is to

thematise the socially-conditioned categories under which the legal subject is taken to be or

71
Simon Critchley, Five problems in Levinas view of politics and a sketch of a solution to them, in Marinos
Diamantides (ed), Levinas, Law, Politics (Routledge-Cavendish 2007), 97-8.
72
ibid 102.
73
Diamantides (n 66) 192-4.
Faust 28

argues to be subjected not just the legal classification, but the ideologically-saturated categories

by which social reality is structured and manifest in social relations more broadly, such as race

and gender. Broadly thematising such categories moves the law towards analyzing a kind of

subjective experience that the modernist legal system cannot contemplate or adjudicate outside

its existing paradigms of classification.74 Taking a Levinasian ethical grounding of judicial

decision-making and a Merleau-Pontian embodied subjectivity together demands that, if the law

(through the judge) sees the embodied (legal) subject as Other, it has an obligation to address

that subjects needs and demands through a phenomenological analysis of that subjectivity that

is, to ex-pose the subject as embodied in order to attain a corpo-real justice. Thus, the judge as

Third directs legal analysis toward the intercorporeal relationships that generate the embodied

legal subject rendering a legal claim not just a question of law, but an inquiry into sites of

conflict between and among overlapping ethical, political, and ideological claims upon the body.

VI. Performativity and Embodiment: The Gendered Other

The embodied legal subject argued for has been articulated as both a corrective to the

deficiencies of modernist influences and a new foundation for law and its subjectivity. The

phenomenological legal analytics orientation toward the pre-legal lifeworld serves to keep the

jurist oriented toward the pre-legal, embodied experiences of the legal subject, as well as the

social practices and institutions that structure that subjectivity, without deferring or becoming

beholden to the ideologies that can fold over and obstruct these referents. Because this embodied

legal subjectivity is taken as the beginning of legal reasoning, the judge as Third opens up the

74
For the preceding sentences of this paragraph, I am indebted to a private conversation with Costas Douzinas on
the role of judging within the context of Levinasian ethics.
Faust 29

pre-legal, corporeal grounding of the Levinasian ethics of law, and thus opens the possibility of

achieving a holistic, corporeal justice. But how does this affect the operation of the law itself?

Within this section, I will demonstrate the utility of embodied legal phenomenology by

analysing how law treats social concepts that expose the limits of its tacit subject in this case,

how does law speak of gender? First, modernist laws mistreatment and mishandling of gender-

based discrimination will be critiqued, on the grounds that its focus on disembodied agentic

action rather than embedded social understanding renders it ineffective in addressing the issues

raised by the claimant. From there, Elena Loizidous reading of Judith Butlers feminist theory

will be used to analyse how incorporeity informs law as a discourse triangulated through the

ethics and politics implied by the body. Because the liberatory potential contained within

Butlers concept of the performativity of gender depends on responses to norms and universals,

the embodied experience of gender (and by relation, sexuality) depends upon an embodied

subjectivity which calls for an analysis of how subjects actually live out their lives. Since

embodied experience is essential to the phenomenological legal analysis I have so far proffered,

this approach allows for an articulation of corporeal justice in regards to gender that is more

holistic in its approach than the justice proffered by the modernist legal system.

As has been implied earlier, the law tends to conceptualise gender-based maltreatment as the

more discrete claim of discrimination instead of an instantiation of a wider systemic gender bias

within the socio-cultural whole. A number of factors promote this view. One is that much

modern legal thought continues to maintain that gender plays little or no role in the conceptual

make-up, normative grounding, or categorical ordering of law. The official position is that the

idea of law and legal fundamentals are, and certainly ought to be, gender-independent.75

Accordingly, and additionally, the liberal jurists ideological commitment to formal equality a
75
Joanne Conaghan, Law and Gender (Oxford University Press 2013), 8.
Faust 30

presupposition that flows from the modernist legal system and its individualized subjectivity

presents a further obstacle, as:

The ultimate willingness of the tribunal to interpret an unequal outcome as an instance of

unjust, illegal inequality is modified by the underlying ideology of equality of
opportunity, which invites the tribunal to be receptive to the idea that unequal results may
be explained in terms of the free, autonomous choices of individuals.76

A further problematic when dealing with issues of gender in the law is that a basic structural

implication of any lawsuit is that idea that what is complained against is abnormal.77 There is a

sort of myopia that prevents looking at the generative social conditions for behaviour in favour

of resolving the discrete dispute before the court. Finally, and ontologically, the standard of

treatment under discrimination law that defines what is normal or legitimate is built on

criteria set by men, who lack the experiential, contextualised knowledge of what normal might

entail for others.78 However, under the presuppositions of the (liberal) modernist legal system,

the interchangeability of legal subjects is necessary in order to maintain its conception of justice

as adherence to formal processes of adjudication. The limits of liberal jurisprudence within the

modernist legal system are thus exposed by its ideological presuppositions and commitments and

the resultant inability to work outside those constrictions. Simply, modernist law emphasis on the

agency of the subject precludes the possibility of remedying harm that is not agent-based

systemic harms or prejudices cannot be addressed so easily as individual disputes, and are thus

relegated to solutions crafted outside the legal system. The social reality of gender therefore

cannot be fully disclosed or adequately effected within the modernist legal system due to its

76
Nicola Lacey, Unspeakable Subjects: Feminist Essays in Legal and Social Theory (Hart Publishing 1998), 22.
77
ibid 23.
78
ibid 24.
Faust 31

categorical exclusion of the ethical and the political from its discourse through abstracting its

subjects away from their embodied experience.

Clearly, this differential treatment within the law and in society more broadly is derived from

a particular kind of body. As such, a phenomenological legal analysis of embodied subjectivity

within the legal arena can draw out the actual experiences of the discriminated claimant and meet

the (ethical and political) demands imposed by the (gendered) subject. In this regard, Judith

Butlers work on gendered subjectivity is invaluable due to her theory of the performativity of

language. Elena Loizidou argues that Butlers theory of performativity possesses the potentiality

of reversing the naming and thus present it to a presence that has not been calculated or

articulated in advance by the subject that utters it. This performative (which is impure, inexplicit)

renders language hostage to the possibility of being alive.79 Utilizing this theory, Loizidou

argues that for Butler, subject formation takes the concrete, non-normative sexual practices in

her case, as competing, universalising claims, that question, challenge and promote different

aspirations to livability to the ones supposed.80 Under a Hegelian conception of the relation

between the concrete and the universal, Loizidou further finds that whoever holds both the claim

to universal mores and the power to enforce that conception of the norm will attempt to

annihilate the concrete instantiations of competing conceptions of the universal. In effect, those

who lie outside the universalized normative subject are those who do not participate in the

universal, but can nonetheless provide a concrete basis for a competing, antagonistic universal.

Thus, according to Loizidou, Butlers argument is that the claims of women, gays, lesbians,

transsexuals, people of colour should be made under the name of competing universality.81

Taking this argument within the context of this essay, the legal subject signifies the universal that

79
Elena Loizidou, Judith Butler: Ethics, Law, Politics (Routledge-Cavendish 2007), 41.
80
ibid 121.
81
ibid 122-3.
Faust 32

both defines and delimits the boundaries of the legal normative; thus, the embodied legal subject

presents a subject who instantiates and inaugurates a concrete, alternative universal norm by its

mere presence as a legal claimant.

Because the disciplining norm that the juridical order provides is built around the reassertion

and reiteration of a universalized norm, Butlers notion of the juridical subject is one that is

embedded within this order but is not defined by it. For Butler, the space for resistance is in

between the competition of these universalities in the context of this paper, this corresponds to

the overlapping social practices that constitute the non-legal lifeworld. Similarly, Butler depends

upon bodies for her articulation of the political. Loizidou takes Butlers reading of Descartes

recall, one of the intellectual forebears of modernist legal order as proposing a dialectic that

exists between body and text, wherein the body is a presupposition of textuality.82 As Loizidou

succinctly argues, when we contest our material and cultural conditions, what we address at the

same time is the figural presumptions that brought us to this struggle in the first place.83 If, as

Butler argues, norms are created through the forceful exclusion of material and concrete

conditions that are perceived as counter-normative, exposing the normative fantasy entails

resistance, albeit not in an agentic sense.84 Importantly, bodies for Butler are not purely

material, but rather, they are rational in that they are the outcome of a process of socio-cultural

normalizing. This conception of bodies as existing both materially and linguistically corresponds

to the Merleau-Pontian position that language amplifies intercorporeal communication. Further,

in terms of Butlers theory of performativity, gender is revealed as a product of normative

process, which Butler unveils as the fantasy of the sexual difference binary in order to show

that the norm cannot render unintelligible intersex and transgender men and women, butch

82
ibid 143-4.
83
ibid 147.
84
ibid 150-1.
Faust 33

dykes, and camp gay men, subjects who do not necessarily fall on either side of the binary,

feminine/masculine.85 Thus, Butlers understanding of gender demonstrates that an embodied

subjectivity and its performative capabilities can become the vehicle for (undoing) legal and

political life by articulating a space for the possibility of non-normalized lived experiences.

Butlers thought on the performativity of gender holds key insights for the social construction

of categories, and especially for how the materiality of bodies impacts the formulation of and

analysis of social norms. One can begin to see that social categories as implemented within the

legal system propose a norm that law is in a position to analyse. Within a legal claim, there exists

a gap between the norms and ideologies that have been integrated into the law, and the

performative of the embodied, living subject. Whatever that distance between the subject of law

and the Other (who is an embodied subject) is precisely the degree of intervention that the judge

must provide as Third. In cases of gender discrimination, the space between the subject and the

Other requires a phenomenological analytic of the legal and social concept of gender as

produced and lived out within the claimant, with the claimants subjectivity serving as an

instantiation of the overlap of social practices, on both the individual and institutional level.

Performativity is the epiphenomena of the lifeworld of the claimant, the embodied subjectivity

fleshed out through and against the ethical and political domains. The judge, approaching the

discrimination claimant as the unknowable Other, becomes tasked with the pre-legal obligation

to apprehend the non-legal lifeworld as performed by the claimant. For if the orientation of the

Third is directed through phenomenological analysis of the practices that generate the embodied

subject as a lived performative, the law is able to speak on much more than what is presented as

simply the details of the given case. Law ceases to be the mere reiteration of the socio-normative

practices under an immodest veil of impartiality, and instead seeks to uncover the lifeworld so as
85
ibid 154.
Faust 34

to carve out the space for life to be lived out. In this sense, legal justice becomes corpo-real,

responsive to the body and bodies as the measure of the right outcome of a dispute.

While this section only provides an analytic posture toward a case of gender discrimination,

there are certainly other social phenomena that are instantiated in the embodied subject where a

phenomenological analysis will contribute to legal thought beyond its modernist cast. Kimberl

Crenshaw has pioneered a similar method through her work on intersectional analysis, wherein

she critiques the way dominant conceptions of discrimination structure legal thought along a

single categorical axis a practice that ignores the intersectional identities of many victims of

unequal treatment.86 Crenshaws intersectionality attempts to address the unique experiences

endured at the crossroads of differing oppressive practices that resist the classificatory scheme

imposed by discrimination law. While Crenshaw focuses most of her analysis on the intersection

of gender and race, intersectional analysis can be applied to the various intersections of social

class, sexuality, ethnicity, nation, and age as well.87 This essay seeks to extend her work in two

ways: through the explicit phenomenological analysis based upon an embodied subject ex-posed

against legal norms, and a conception of justice that takes the body as constitutive of that notion.

As intersectional analysis is focused on the unique experience at the overlap of multiple modes

of discrimination that cannot be separated from each other, it deconstructs the classificatory

scheme of legal categories while also using that intersectional experience as the concrete basis

for its analysis in other words, using the lifeworld to inform and critique the law. Similarly, a

phenomenological legal analysis that focuses upon an embodied subject renders virtually any

86
Kimberl Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of
Antidiscrimination Doctrine, Feminist Theory, and Antiracist Politics (1998) The University of Chicago Law
Forum 139, 140.
87
Patricia Hill Collins, Black Feminist Thought: Knowledge, Consciousness, and the Empowerment of Thought (2nd
edn, Routledge 2000), 299; see also Leslie McCall, The Complexity of Intersectionality (Spring 2005) 30(3) Signs
1771, for a discussion of differing conceptions of intersectional analysis itself.
Faust 35

socio-legal classification or mechanism, by its very nature as socially produced and reiterated, an

object of legal inquiry. Thus, the law is made subject to life, rather than the opposite situation

present within the modernist legal system.

VII. The embodied legal subject revisited: Lessons from/for the edge of the law

Despite their theoretical bases, the arguments contained within this essay are not the result of

mere speculation of what the law might be. Through its three generations, the body of human

rights law provides a sketch of a legal subjectivity that realizes formal civil and political rights as

well as social, economic, environmental, and identity rights. 88 This tacit subjectivity is informed

by the concrete, material conditions that the subject exists under. In effect, this essay is an

extension of the ethos that dwells within those successive generations a meditation on what

must be overcome through a mode of analysis to enable that overcoming. As such, the general

idea that has animated this essay is that the modernist legal system, as a product of abstract,

individuated, and rationalist thought, has ultimately proven inadequate to address presently

existing human concerns and suffering. The major question that this essay has sought to answer

is, in fact, twofold: how can the conception of the person/subject in phenomenology translate

into a legal discourse, and what would it mean for a person/subject to be in a law that understood

subjectivity in those terms? In response to these questions, I have argued, through Merleau-

Ponty, that phenomenology is built upon the lived experiences of an embodied subject rather

than the abstract interchangeability of subjectivity imposed by modernist legal personhood.

Because modernist law deals with only a kernel of what is essential to that phenomenologically

Karel Vasak, A 30-year struggle: The sustained efforts to give force of law to the Universal Declaration of
88

Human Rights, (Nov. 1977) 30:11 UNESCO Courier 29.

Faust 36

formed subject, I have shown where the law fails through referencing the domains of ethics and

politics, broadly construed.

By keeping these failures in mind, I have attempted to reconstruct an inoperative persona

that is oriented toward correcting these failures by reference to the phenomenologically-informed

experience of the embodied subject. Throughout this essay, the argument has been oscillating

between using the embodied legal subject as either: 1) a subjectivity that ought to be embedded

within the law in place of the modernist legal subject; or 2) the subject of a phenomenological

analysis that ex-poses a legal claimant as an embodied singular against the subjectivity presumed

within modernist law. However, there is no dilemma, as both are correct the embodied legal

subject is to become embedded within the legal system through its use as legal analysis. If laws

are produced so as to be generally applicable and presume an abstract subject, the role of the

judge is to act as the Third to open up the (pre-legal) ethical relationship between the embodied

subject/claimant as Other. From there, the judge must phenomenologically analyse their unique

situation by reference to that intercorporeal and intersubjective relationship, dipping into the

lifeworld of the claimant. In this sense, the law can tap into its deep relationship with the

political, without rendering itself a mere handmaiden to ideology. Indeed, the relationship

between lived experience and the law is one that is mediated through ethics and politics all of

these domains function through articulating, projecting, and integrating such experiences into

their normative folds, and through and against these folds, the subject (per)forms. By taking all

the aspects of embodied subjectivity together, a legal phenomenology through Merleau-Ponty,

informed by the insights of Levinas and Butler, enables a view into the lifeworld. Such a

commitment to the everyday prevents the tyranny of the same by constructing the space for, and

in support of, life in its various incarnations in essence, corporeal justice.

Faust 37

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