Human Bodies in Law: Arbitrary Discursive Constructions?

• Jurisdiction: South Africa
• Citation: (2008) 19 Stell LR 71
• Published date: 27 May 2019
• Date: 27 May 2019
• Author: Melodie Nöthling Slabbert
• Pages: 71-100

71

HUMAN BODIES IN LAW: ARBITRARY

DISCURSIVE CONSTRUCTIONS?

Melodie Nöthling Slabbert

MA DLitt LLB LLD

Professor, Department of Jurisprudence, University of South Africa*

The body is a big sagacity, a plurality with one sense, a war and a peace, a ock and a shepherd.1

Part I: Inscribed Bodies

1  Introduction

Human bodies are the ways by which we represe nt other people to ourselves.2

Bodies are to an extent t he linguistic, discursive devices for represent ing that

aspect of other people, and in particular of ourselves, which is accessible to

us.3 We construct these other human bodies that are distanced from u s or

‘different’ f rom us, a nd then rega rd these c onstructions a s if they were the

persons they purp ortedly represe nt.4 This is not somethi ng unusual; we do

this every day. The law, however, does this too.

Human bodies in law, as t he article will show, refer to an assortment of

incoherent, inconsistent const ructions or representations, whose primar y pur-

pose is a reactive one aimed at addressing a range of varied problems inter nal

to the legal discourse.5 Sur prisingly, despite the fact that the law’s occupation

with persons is so extensive, there is no standard real or material body, even

when questions ne ed to be a nswered regardi ng the boundaries of, or uses

and intrusions relating to, t he human body.6 Law’s language of the hum an

body, as will become clear, relies i nevitably on the politics of representation.

Ontological questions rarely feat ure in these various constr uctions.

Legal subjects or legal persons in law refer to entities which have legal sub-

jectivity or legal personality,7 in other words, those entities that are regarde d

* This article is based on the author’s inaugural lecture, held on 21 August 2007 at the University of South

Africa.

1 Nietzsche Th us Spake Zarath ustra: A Book for All an d None (2006) 39.

2 Hyde Bodies of La w (1997) 3.

3 4.

4 4.

5 4.

6 4.

7 Legal subjectivity for natural persons begins at birth and ends with the death of the legal subject. See Boberg

Boberg’s Law of Persons and the Family (1999) 28. “Legal” death, for example, must be legally determinable

despite the biological fact that death is a process and not a specific moment. See Brazier Medicine, Patients and

the Law (1992) 433- 444. The law accepts medical evidence to confirm that death has occurred. The National

Health Act 61 of 2003 defines death as “brain death” (s 1). In Roman law, only a natural person was regarded as

a persona. See Van Zyl History and Principles of Roman Private Law (1983) 80. In emperor Justinian’s codifi-

cation of Roman law (Corpus Iuris Civilis) we find the first elaborated legal category of a person distinguished

from other categories, particularly that of property. The term “person” (persona) in Roman law is not the same

as its use in contemporary law, but was understood to refer to persons as natural persons and not the bearers

of rights and duties. Slaves, for example, were classified as personae despite their lack of legal competence in

(2008) 19 Stell LR 71

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72 STELL LR 2008 1

by law as capable of att racting legal rights and ass uming legal obligations.8

The earliest traceable meaning of the word persona (from which personalit y

comes) derives from the Latin word persona which refers t o a mask worn by

Roman and also Greek actors on stage. Later, persona denoted the part played

by a person in l ife, and later still the person who played the part. Today, of

course, the ter m is rmly established in law to refer to entities capable of

sustaini ng legal rights a nd duties.9

Natural persons may also be the bearers of fundament al rights embodied in

a bill of rights.10 A natural law concept ion of a legal pers on invokes a nat ural

human subject, with an intr insic characte r, for whom rights and obligations are

natural and inevitable.11 Apart from the fundamental rights, specic person-

ality r ights12 of n atural persons are recognised.13 Legal rights possessed a nd

exercised within d ifferent legal relations depend on par ticular legal purposes

that va ry according to the particular legal concerns of the parties and their

particula r circumstances. The legal person is thus f ully a creation of law.14

Roman law. The paterfamilias (the free Roman male citizen and head of a family) possessed the most complete

set of legal rights. See Thomas Textbook of Roman Law (1976) 387-388.

8 The classic po sitivist accou nt of the legal perso n is that of Hans Kel sen: “A legal person is t he unity of a

complex of legal obligat ions and rights. Si nce these obligation s and rights are con stituted by legal nor ms

(more correc tly: are these leg al norms), the proble m of ‘person’ is in t he last analysis the problem of the

unity of a complex of norms… The so -called physical pers on, then, is not a human being, but the pe rsoni-

fied unit y of the legal nor ms that obligate o r authorize one and the same hu man being. It is not a natural

reality but a social const ruction, cre ated by the scienc e of law – an auxil iary concept in the present ation

of legally relevan t facts. In this sense a physical per son is a juristic person” (Kelsen Pu re Theory of La w

(1967) 173-174).

9 John Austi n explains: “It si gnified or iginally, a mask worn by a player, t o mark the cha racter he bor e in

the piece: and is transfer red by a metaphor t o the charact er itself. By a fu rther metap hor it is transfe rred

from dr amatic char acter to leg al condition. For men as s ubjects of law are distin guished by conditions,

just as players by the cha racters they pre sent” (Austin Lect ures on Jurispru dence (1886) 164). For the lit-

eral meani ng of persona, see L atin/Engl ish dictionary at http://humanu m.arts.cu hk.edu.h k/Lexis /Latin/

(accessed 26 July 20 07).

10 See chapter 2 of the Constit ution of the Republ ic of South Afr ica, 1996. These r ights include, in ter alia,

the rig hts to l ife, equali ty before the law a nd equal protection of the law, human dig nity, free dom and

securit y of the p erson, privacy, f reedom of religi on, belief , opin ion, expression, associat ion, sp ecific

political rights, right to freedom of movement and reside nce, tra de, occupat ion and profession, la bour

rights, p roperty r ights, the r ight to have a ccess to ad equate housi ng, health ca re, food, wat er and social

securit y, right to a basic educat ion, language and culture , access to information, just adm inistrative act ion

and relev ant cour ts. Special constitut ional righ ts apply t o childre n and a rrested, accused and detai ned

persons.

11 Davies & Naff ine Are Persons Prop erty? Legal Debate s about Propert y and Personalit y (2001) 54.

12 The ca se of Un iversity of Pretori a v Tommie Meyer Films (Ed ms) Bpk 1977 (4) SA 376 (T) exp ressly

recognise s personalit y rights as a separate class of subjective rig hts (383, 384, 386). See als o S v A 1971

(2) SA 293 (T) 297; Jansen van Vuuren and Another NNO v Kruger 1993 (4) SA 841 (A) 849 and National

Media Ltd v Joost e 1996 (3) SA 262 (A) 271-272.

13 Recognise d personalit y rights i n private law are the r ight to body (and life), which i nclude not onl y the

human body (corpus) in a strict sens e, but the entire physical-psychologic al component of the personality ;

the right to physic al liberty; r ight to a good name or reput ation; right to dig nity, right to feelin gs; right to

privacy and right to ident ity. See in general, Neethlin g, Potgieter & Visser Neethling’s Law of Personalit y

2 ed (2005). In this contributio n, the body as object of a separate right of personalit y is discussed in detail,

as well as the different manifes tations of recognised inf ringements of the body or corpus in South Afr ican

law.

14 Davies and Na ffine go a st ep furth er by arguing that “a part icular concep tion of human na ture is gener-

ally presu pposed by the prevailing lega l concept of th e person, even though it us ually goes u nremarked

precisely be cause it is so powerfully na turalized” (Davies and Na ffine Are Pe rsons Proper ty? 56).They

submit tha t the human b eing implied by the legal conce pt of a person i s itself a creat ion of law, and that

also thi s tacit vie w of the pe rson that u nderwrite s the off icial legal f iction is a legal inventio n which is

strongly in fluenced by bro ader social and cul tural assum ptions about the nat ure of being huma n.

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