Introduction

In the previous chapter I argue that to undo colonial misusing and Euro-modern untranslatability of human/bodies, these bodies should be re-understood, at the very least, as ontologically relational. This relationality applies not just to all other human beings, but also to all non-human life and non-life in and of the earth. However, colonial mapping and its cartographies, require, as Said notes, the redefinition and (dis)possession of land and thus depart from Wilde’s notions of Utopia. Thus, in this chapter I take Chapter 3’s argument further by focusing on how the society (space, place, and all they contain) around law’s human has been and is being constituted by the influences of colonial logics and praxes. This examination takes reference from the use of race as an abstractive technology in the making of property from humanity. Therefore, I lean further into an analysis of how racial capitalism, in particular, and Euro-modern law in general are both entangled in the legal ontologies of, not just human body negation, but also contingent appropriation/redefinition of land and space. This process ties the constitution of law’s human to the creation of a universalised Euro-modern legal ontology of land as a means of capital accumulation as well as human veneration reliant on this. My concern here is to explain how that process emerges, with specific emphasis on the legal epistemological interactions between human/beings, land, property, and space. I observe quite deliberately here, that one of the most significant outcomes of the legitimate property-fication of labour, land, and nature through Euro-modern legal epistemologies, is the complicity of legal technologies in continuing the colonial conditions of life that extend beyond the escalating disappearance of testamentary life into the looming endangerment of the planet.

This chapter explores how law and gender come together to co-constitute working subjects and with what conceptual, normative and distributive effects. The notion of subjectivity deployed here is both ontological and epistemological. It is ontological in the sense of being concerned with aspects of being – with who or what the subject is; and it is epistemological in that it is engaged with questions of knowledge – with how knowledge of and by the subject is produced and validated. Thus understood, subjectivity offers a space of enquiry into questions about the formation, shape and consequences of consciousness and the production, validation and effects of knowledge.

Reference to embodiment is increasingly visible in legal scholarship, where it is assigned a number of meanings. At times it is employed descriptively to mean the fleshiness of the human condition, indistinguishable from reference to the body or corporeality. Elsewhere, it is used to signify something more than this fleshiness: in part, a challenge to the mind/body split that has haunted legal thought and practice. Finally, for a growing number of legal scholars, it refers to the experience of our corporeality at the intersection of discourses and institutions. While a theoretically richer account of our lives as ‘bio-social’1 beings is impacting on legal scholarship, what embodiment might mean with regard to the specific discourses and institutions of law and legal scholarship is only just beginning to be explored.2 In response, this chapter sets out to clarify and develop a clear understanding of legal embodiment; that is, the particular place of law in processes and practices of embodiment. In doing so, it identifies the body as an important site where law and gender entwine in processes that construct legal subjects.

What is the ‘political’? What rights, prerogatives and duties turn a person into a political subject? And to what extent is a gendered order, or are other systems of hierarchies contained in the legal definition of the political subject? The right to vote immediately comes to mind as an obvious candidate for illustrating this particular dimension of political rights, for it is well-established that, historically and across a wide range of countries, the very definitions of citizenship as a legal category has been based on the exclusion of a number of categories of people. Women were of course one of these categories, but also others who failed to fit the dominant model of the rational and independent (male) individual that classical political philosophy as well as modern legal systems had consolidated and promoted by the end of the eighteenth century. While this chapter addresses the right to vote as a crucial dimension of the legal construction of ‘the political subject’, it also adopts a wider perspective. This is achieved by adding a historical dynamic to the inquiry about the scope and contours of what has come to be defined as ‘political’ activity since the end of the eighteenth century (Section 1), and by viewing subsequent developments from the conquest of suffrage to more contemporary participatory rules seeking to challenge the foundational gender order enshrined in the definition of the political subject (Section 2) through a comparative lens.

This chapter affirms the feminist impetus of this collection by reflecting on power relations in society and their impact on law and law’s regulation. An acute site for this inquiry is in the state itself, and the state’s determination of its own membership. It is the thesis of this chapter that the national subject, the legal citizen,1 is a space in which gender, sexuality and race keenly interact with the everyday lives of individuals. An appreciation of this point is often overlooked. While the language of citizenship is often gender neutral, it often ‘perpetuat[es] the invisibility of women’ as citizens.2 Margaret Thornton examines the civil status of women as citizens in the early years of the twentieth century to ‘illustrate the peripheral civil status of women as citizens’ and, therefore, questions the full membership consequences of citizenship.3

This chapter engages the reproductive subject of international human rights law, a subject who conceives, gestates and births, or seeks to avoid them. Reproduction is a fascinating site for the critical study of gender and law because it necessitates grappling with bodies.1

The vision of the self promoted by the law is of an isolated, independent, self-sufficient, autonomous man. Far from the reality of our vulnerable, caring, relational selves. The rights the law tends to protect are well suited for the legal self: those of autonomy, privacy and self-determination. They are unsuited for the reality of our existence in which autonomies are mixed; meaning is found in sharing experiences; and flourishing is discovered in the mingling of our lives. The legal self privileges particular activities, those traditionally seen as the world of men, and downplays the importance of caring, traditionally seen as the world of women. This side-lining of care, and the aggrandising of what is labelled ‘economically productive’, helps sustain and reinforce patriarchal oppression of women.

In Salisbury, Connecticut, ‘gender trouble’ took place during a local election in 1843,1 as the ‘sex’ of one voter was contested. Allegedly, the Whig Party had introduced – what was contested as – a woman into the electorate. Determining the ‘sex’ of the voter was necessary to judge whether the ballot could be validly cast. A medical expert was summoned. An imperforated penis and a small testicle were found. This discovery temporarily resolved the dispute, and the person was admitted to the vote. On Election Day, however, the voter was denied electoral rights. Since the ‘sex’2 of the voter was subject to further controversy, two more doctors were called in to consult. The presence of a testicle was established, thus ‘legitimizing’ the vote. Yet a few days later, it became known that the individual menstruated. A third examination was deemed necessary, which led to the discovery of a uterus. The person, referred to as ‘the hermaphrodite’,3 was concluded to have ‘unduly used the right to vote’.4 This story widely reverberated.5 Not only had it shed light on what ‘sex’ was understood to be, it also hinted at the ultimate reason for gender-based rules of political franchise: What would have happened if a woman had been able to slip into the electorate? Furthermore, why should this or that specific biological characteristic be the determining factors in this case? Such ‘gender troubles’ were not limited to the public sphere. For example, the French Court of Cassation had to decide on the ‘sex’ of one of two spouses to determine the validity of their marriage in 1903. That court relied on the external appearance of genitals.

The words ‘terror’ and ‘terrorized’ are not new to discussions of gender-based violence. Indeed, these words are often used to describe the lived experience of gender-based violence.1 Likewise, the association between gender violence and other forms of extreme violence, such as torture, has already been established in international law.2 On the one hand, the recognition of this association allows for greater awareness of the gravity of this particular form of violence. On the other hand, this association has encouraged an overall harshening of punishment and a criminal-law approach to violence. This has been particularly notable in the field of international crime, where there has been a significant increase in the volume of norms criminalizing gender-based violence – many of which have paid special attention to sexual offences, which are now even included in the Rome Statute’s Article 7 as one type of crimes against humanity.

How do we construct sexual citizenship? Put differently, how do we as a society identify those whose sexual conduct and identities as sexual beings are consistent with our notions of citizenship and the public good? Often, identifying the ideal sexual citizen means identifying the traits associated with sex and sexuality that we deem useful, beneficial and productive – the kinds of sexual conduct we value, reward and encourage. But, as is often the case when constructing ideals, our understanding of that which is normatively desirable and desired is often informed by its foil – that which is decidedly undesirable. In this regard, the construction of a normative ideal of sexual citizenship has been tethered to the production of the sexual outlaw – those individuals who live their lives outside of the bounds that constrain citizenship. But it is not just that the law’s construction of the ideal sexual subject depends on the construction of its foil (the sexual outlaw); law also constructs sexual citizenship in ways that are deeply gendered and raced.

Lawyers, judges and scholars often see the domain of the family as distinctive, namely as affective rather than instrumental, sharing rather than distributive, distinguished from the functioning of both the state and the market by its altruism, intimacy and sacredness. They also often consider family law as exceptional, as occupying a distinctive domain and operating differently than its private law counterparts such as contracts, torts and property law or its public ones such as criminal, administrative and constitutional law.1 We begin from the premise, however, that the law that regulates and shapes the experiences and situations of members of a family arises, too, in these other domains. Family law encompasses not just the rules and doctrines associated with the formation, operation and dissolution of families (traditional family law) but also laws of the market and the state that regulate and shape the definition and operation of families.2

In terms of gender equality, law is a fundamentally ambivalent artefact. It can certainly be a vector for progressive change, as documented in several of the contributions in this volume. Indeed, law has played a crucial role in many decisive battles and victories for gender equality globally, from the extension of political franchise to all those that were initially excluded therefrom (such as women, racialized minorities, servants, dependants, etc.),1 to the more contemporary steps in the confirmation of a principle of equality among sexual orientations, gender identities,2 family arrangements and so on. Accompanying a number of social and political struggles, law has helped tackle forms of discrimination and exclusion that were once entrenched in law and channelled claims of equal recognition and equality of opportunities relevant to the dignitarian, redistributive and participatory dimensions of equality.3