Producing this effect are two tropes: metaphor and metonymy. The rhetorical interplay of these two tropes structures all language according to Jakobson, a0 including the language of the Law and its idiolect, rights. In the rhetoric of rights, these two tropes are deployed, first to displace metonymise , then condense metaphorise the Law's body. Consider, for example, the right of privacy: that right metonymises the body by partial! The leading cases include: Griswold v. Connecticut, U. Virginia, U. Wade, U. Other examples of this tropological process come readily to mind: metonymised eyes, ears and mouth reappear, in metaphorised form, as the right to freedom of speech, belief and thought; hands and feet, as the right to freedom of movement, and so on.
To continue offering additional examples of this process, however, begs the question which a feminist intervention would certainly pose at this point, namely, whose body is being troped here? The question is largely rhetorical, the answer being obvious: only men particularly, white, bourgeois men enjoy sufficient social space, autonomy and power to embody these rights, all which speak to their needs, demands and desires.
Clearly, it is their physique which provides the anatomical model here, the male body standing in for - - as Catherine MacKinnon, 32 amongst others, has noted - - all bodies. But the identification of w h o s e body this is only prompts another question, specifically, Where does this body come from? Is it solely the effect of discourse as "vulgar deconstruction" might have it? And if t h a t is so, why is it always this particular discursive construction of the body - - the male-inflected - - which predicates these rights?
If this is a discursive construction, then surely it can be readily deconstructed and recon- structed. This, however, has not happened, and the reason for this interpretive intransigence may lie in the fact that there is something of the body which is not discursive, which is not reducible to language, which words fail to see. This possibility would mean that the male body has s u r v i v e d the murderous cut of language, albeit in metaphoric semes and metonymic lexias. What remains troubling, however, about this argument is the way in which it ends up by "essentialising" the male body, a move which may insulate further the patriarchy of the Symbolic Order and the Law upon which it is grounded from any, let alone feminist, challenge.
For if the Symbolic emerges from an embodied masculine "essence" which survives, in however fragmented a form, the cut of language in a way that the feminine does not, then surely that precludes a U. Hardwick, U. L a w s Corpus Delictiz The Body of Rights Discourse 47 space within t h a t Order, its Law and, finally, "rights" from w h i c h the feminine or alternative versions of "the Other" , m a y emerge. Clearly, a different conception of the body, and its politics - - one which neither "essentialises" the former nor "totalises" the latter - - is required if women, among "Others", are to have a n y p u r c h a s e on, or in rights, the Law and the Symbolic Order.
Conventional rights-thinking, however, is of no help here, w i t h its categorical denial of the "body politics" of rights discourse. Indeed, if the positivists, natural lawyers and liberal-humanists are agreed on a n y t h i n g at all, it is t h a t "no-body" s t a n d s b e h i n d the signifier, " r i g h t s '.
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Lacanian "lack", however, can be distinguished from t h a t of traditional jurisprudence, and herein lies its utility for a critical a n a l y s i s of rights, especially one which aims at r e c o n c e i v i n g t h e relationship between the body, rights and discourse. The "lack" which 33 The long tradition of Natural Law thinking on rights is marked by a profound universalising, hence disembodying, tendency. Natural Law's rival, Positivism, is curiously ad idem here.
Whether in Hohfeld's binary schema, Kelsen's normative hierarchy or Hart's rule network, rights discourse is characterised, first and foremost as a system, a system in which the subject only figures as some disembodied agency. Finally, the contemporary formulation of liberalism - - Ronald Dworkin's "rights thesis" - - situates the individualistic, autonomous and disembodied subject of the classical liberalism of Kant and Mill at the very centre of the legal system which "takes rights seriously".
This acknowledgement can be made by these theorists because the body in Lacanian legal theory is, at once, cut offfrom, but connected to the juridical subject. This connection, however, is not the kind of natural one of "vulgar materialism", because the body here is not an actual one i. Nor is this connnection of a transcendental stripe, as this body is not, as traditional rights jurisprudence suggests, an ideal one i. The body in question is neither the "somebody" of materialism a full presence nor the "nobody" of rights jurisprudence an absent lack , but a body-image: that is, a fantasy construct of the Imaginary Order, 35 Lacan's tertium quid, connecting, but also cut off from, the Symbolic and the Real.
This imaginary body is neither an effect of language the Symbolic nor a pre-symbolic Ding of the Real ; it stands, rather, between these two O r d e r s - - neither word nor thing, but an imago, concealing but also revealing the lack which lies behind the Symbolic's point de capiton, "rights", through an elaborate and sustained fantasy of embodiment, the scenario of which is located in the Law's "political unconscious".
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Thus, this fantasy promotes not, as some other scenes do, difference 37 but sameness: 35 J. XXl , supra n. See J. Laplanche and J. Burgin, J. Donald and C. Kaplan London, , Law's Corpus Delicti: The Body of Rights Discourse 49 specifically, a shared identity among all rights-bearers, each having the same claim to the procedural safeguards and substantive entitlements which rights grant, regardless of their specific content for example, "negative" or "positive" liberties.
This process of "misrecognition" or meconnaissance explains why jurisprudence, whether it be conventional or critical, can and does make such discrepant claims about the body in, and of rights: that "somebody", "everybody" or "nobody" stands behind this discourse. All these claims can be sustained in equal measure because they are all patently false, each having been based on the same mistaken identity: the mirror-image's illusion of bodily coherence.
But, paradoxically, the specular source of the falsity of these claims renders them, true, however much they contest each other. And contest each other they do, a very real tension which cannot be minimised. For each of these claims when taken together rehearse a debate which Duncan Kennedy has called Law's " f u n d a m e n t a l contradiction " 4 1 - t h a t breach between the individual and the community, the general and the particular. Exemplifying the former of each of these paired terms is conventional jurisprudence which can quite truthfully assert that it sees "nobody" lying behind this discourse, thereby universalising rights among an individualised "everybody".
Negative liberties take the form of freedoms which negate the power of the state, and hold the social at bay: privacy is the classic negative freedom. Positive liberties posit some social good or value which, in turn, enable freedom: the rights to food, housing and education are classic positive liberties.
The latter assumes a state structure and, thus, is compatible with social welfare systems of governance while the former is hostile to the state hence, best suited to laissez faire societies. Both of t h e s e fundamentally contradictory claims are true at one and the same time because, at the heart of each, is the fantasy figure of the rights-bearer, whose body is caught sight of, in each instance, as a mirror-image capable of sustaining this double vision.
The reflection of the rights-bearer's body, as an image, is never the body itself. It is always "Other", external, alien: a "nobody" or "everybody", but never actually the "somebody" of one's own body, thereby sustaining the universalising claims of conventional jurisprudence. Yet if this "somebody" is never an actual presence because of its status as an image, then neither is it a total absence. For the rights-bearer's image, as a reflection, relays a unified self-image to, and of, "somebody", as critical jurisprudence's particularising claims maintain.
In each case there is an identical moment of recognition where the mirror-image or reflection is seen, and hence believed as true esse est percipient! Equally, this process of recognition is one of "misrecognition', both these focalisations mistaking the rights-bearer's imago for their own or another identity. This dialectic of identity and misrecognition - - where the rights-bearer is seen as both and neither, "somebody and "everybody" or, the flip side of "everybody", "nobody" - - arises because of the alterity inscribed in the mirror-image itself.
This alterity makes the mirror-image at once a double of as a reflection , but different from as an image , the spectatorial gaze which focalises the Imaginary. One might well ask at this point: whose body is behind this gaze? Critical jurisprudence has been quick to assert that since it is white, bourgeois men who authorise, interpret and enjoy rights, then it is their gaze that the Imaginary relays, their bodily reflection which the imago of the rights- bearer mirrors.
This assertion squares easily with the historical record which attests to the fact that, in case after case, the putatively gender- neutral, race-blind and class-free tradition of negative liberties 42 - - the dominant rights tradition of the W e s t - has worked to the decided advantage of this engendered, enraced and class-positioned hegemon. But to accept, unreservedly, this critical assertion is to lose sight of the fact, 42 Berlin, supra n.
What makes this conventional counter-claim as valid or invalid as that of the critical claim is the factor of the mirror-image, the reflection of which renders the body of the rights-bearer a figure of radical indeterminacy, at once, particular and universal, individual and c o l l e c t i v e - in short, a "fundamental contradiction". While this "fundamental contradiction" enacted by conventional and critical jurisprudence may be true and false , ultimately, it is a trite distinction doubtless the reason for Kennedy's eventual abandonment of it.
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Instead of this rather stylised polarity, the true fracture in rights discourse lies between identity and n o n - i d e n t i t y - being and nothingness to the e x i s t e n t i a l i s t s - an "antagonism" of the kind that Laclau and Mouffe would call "constitutive". For the effect which the "fundamental contradiction's" binarism intends is, basically, closural: that is, it tries to contain this crack within the categorical confines of its reified oppositions. Closural efforts like these, however, always backfire, having an effect the reverse of that intended; instead of stitching together this tear, they tend to rip it even further apart.
Consider, for example, how the gap in rights discourse is widened 43 P. Kennedy and P. Laclau and C. According to Althusser, this process attempts a kind of closure, its purpose being the "hailing"47 of the concrete individual as a determinate identity: in this case, the juridical subject, the rights bearer.
But this rights-bearing identity is far from determinate, the "hailing" process introducing into that individual the inherently indeterminate and open-ended element of " l a c k " - - t h a t is, n o n - i d e n t i t y - at the very m o m e n t it effects the Symbolic interpellation of that individual's identity. This is so because "hailing" turns on the act of naming; and naming is a negation of w h a t it names, having been invested, like all linguistic acts, with the executory force of coupure. The utterance of the name, "rights", effects a cut which severs from the individual which it "hails" as a signifier, that individual's signified: specifically, his or her body.
With the disappearance of this signified of the body, a "lack" is installed within the signifier of the rights- bearing subject, a "lack" which is not just disembodiment, but a form of nothingness at the heart of being: a non-identity within identity. This c o n s t i t u t i v e a n t a g o n i s m arises b e c a u s e the m o r e the interpellative process seeks closure through the "hailing" of determinate identities, the more this process renders these identities open-ended by the very "lack" which "hailing" installs within them.
This double bind resists the resolution which Law's "fundamental contradiction" solicits, t h a t binary's thesis i. Instead, the constitutive antagonism which rights discourse enacts bespeaks a different kind of dialectic: that of desire, depicted by Lacan as 0 e Desire operates through denial: it wishes only for what it does not have. Fulfilment of that wish would arrest desire's dialectic, bringing it to an end.
And it is precisely 47 L. Law's Carpus Delictk The Body of Rights Discourse 53 this dialectic which rights discourse keeps in motion and which rights discourse is, in turn, kept in motion by. For rights discourse splits the subject by installing a "lack" within the identities it interpellates, thereby revealing their insufficiency for any reasonable satisfaction of a desire for identic wholeness.
This revelation occurs, however, at the very moment this discourse attempts to conceal this split by filling this "lack", or hole in being, through the interpellation of subjects as w holistic identities. In enacting this double imperative of concealment and revelation, rights discourse assumes a function which is similar to that of the Lacanian objet petit a: 50 literally, the object of the little "Other", rendered by Lacan as "a" for autre.
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Like rights discourse, the Lacanian objet petit a disguises and discloses the split in the subject by attempting to fill its "lack", an attempt which only draws more attention to the unfillable nature of this "lack". Precisely w h a t it is that fills or fails to fill this "lack" remains unclear, the nature of the objet petit a varying from fantasy to fantasy.
In so distributing rights, this discourse attempts to restore the body to the Symbolic Order. Of course, the restored body here is merely an imago; and, only one of shards and fragments at that, the primal signifier having shattered the Imaginary's mirror after having excised the Real body.
Other significant contributions on fantasy in a post-Lacanian vein include: E. A Kaplan and M. Sprinker London: Verso, , ; K. Witness the unusually clear reflection of the white, bourgeois male body which traditional rights discourse has relayed for centuries. This reflection, however, serves ultimately only as a reminder that this is not the Real body, but a bodily imago. This bodily imago attempts masking this traumatic loss of the Real body. In so doing, however, it ends up exposing t h a t loss even more. Hence, the impulse to create more and more new imagoes which will substitute for those old imagoes, now revealed as partial, deficient, "misrecognised'.
Such new imagoes are often based on bodies previously thought unrepresentable as rights- bearers: bodies belonging to the working-class, women, persons of colour, and so on. These new imagoes, however, prove no more successful than the old ones in masking bodily loss, despite their claims to have re- embodied rights discourse by reorganising it around bodily "needs" rather than disembodied "liberties". In fact, this new and highly visible body of "needs" is just as much an imago as the old, invisible, body of liberties and, as such, there comes a moment when it, too, is revealed as partial, deficient and "misrecognised': the focalisation of only some members of the working-class, some women, some people of colour, expressive not so much of their "needs" as "desires", all to the exclusion of "Others".
Hence, the production of more and more new imagoes within rights discourse, this time based on, variously: children, animals, developing nations, the environment, objets d'art, and so on. And so the cycle starts over again, seemingly oblivious to its self-perpetuating nature. The point being made here is that all varieties of rights discourse, whether traditional or contemporary, labour in the same kind of cycle.
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In their desire for embodied, identic wholeness, rights discourse is led to produce imagoes of rights-bearing bodily plenitude through the process of ideological interpellation. The imagoes produced through this process, however, are rendered porous by the "lack" which the signifier of rights installs. As a result, this discourse is forced into a desire-driven cycle of imagistic overproduction. Zizek says that this cycle of overproduction, characteristic not only of rights discourse but of the conditions of Capital, exhibits a kind of psychic economy: specifically, that of the hysteric.
Clearly, if rights discourse, in its ever-burgeoning expansion to persons, places, problems and things, mimics any kind of psychological behaviour, then it is the behaviour of the hysterical symptom. To characterise rights discourse as a kind of symptom of t r a u m a in the body politic is" to return to a much earlier critical language and jurisprudence, one which rights used to attract routinely: namely, that of Marxism.
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For it was Marx who, so many years ago, identified rights as a symptom of, rather than a solution to the t e n s i o n s - class struggle, alienation, internal contradictions - - unleashed by Capital. In endorsing, however, the continuing relevance of this diagnosis, I do not mean to promote, as a necessary consequence, the Marxist prescription for cure: namely, "working through" the symptom of rights. Quite the reverse. Indeed, I would suggest that the dismal record of any s o c i e t y - consider pre-, or post-Tiananmen China - - which has elected this strategy would serve as a cautionary warning to those polities which attempt to go beyond the Law.
The problem with this strategy is that it seems, like Plato's pharmakon, to kill as it cures the body politic, substituting, under the sign of"social justice" an obsessive-paranoid totalitarianism organised around the body of the Leader for the symptomatic rights fetishism of an Phenomenon", Standard Edition, 2; and "Fragment of an Analysis of a Case of Hysteria", Standard Edition, 7, supra n. For a feminist critique of hysteria, see S. I, trld. Samuel Moore and Edward Aveling, ed.
Such a substitution has been criticised not only for its glaring practical failures, but also for its severe philosophical limitations. Highlighting these philosophical limitations is part of a larger project of what might be called the postmodern critique of modernity. Seen from the vantage point of postmodernity, the substitution of social justice for rights is a classic "modernist" prescription, deriving as it does, in its idiom as much as its modalities, from two of the great meta-narratives of modernity: that of Marxism social justice, "need", the society beyond the law ; and that of psychoanalysis the symptom, "working through", trauma.
Postmodernity, however, would opt for an alternative strategy to that of"working through". That alternative would be as post-Freudian as it is post-Marxist, going beyond but, nonetheless, through Freudianism and Marxism though mediated by Lacan and Althusser. For, like Slavoj Zizek and with him, Ernesto Laclau , postmodernity would urge the body politic to "enjoy its symptom "57 of rights.
Such an injunction, and its concomitant acceptance of lack, gap and non-identity, holds out the prospect of a whole new "politics of the body" of and in law. This politics would avoid not just the Marxist renunciation of rights, but, equally, their fetishistic embrace by all varieties of liberal-humanism. Those details, combined with what O'Bryant calls the "confessions" of both Olsen and Jeppson, plus their inability to account for several hours on the day in question, are enough, O'Bryant said. However, since when Davis disappeared, the corpus delicti rule has been updated to the trustworthiness standard.
The defendants are allowed to use either standard, and Delicino has outlined the state's requirements for the new standard in their prosecution of Olsen. Olsen allegedly told numerous people he killed Davis; however, he has given several different locations throughout the county for her burial spot, making corroboration difficult. Delicino also included in his motion details that some courts have ruled multiple statements don't determine or increase culpability, which resonates with Olsen's case.
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