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D(en)ying narratives: death, identity and the body politic

Published online by Cambridge University Press:  02 January 2018

Patrick Hanafin
Patrick Hanafin*
Affiliation:
Birkbeck College, University of London
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Abstract

One of the enduring features in Irish legal discourse in the postcolonial period is the manner in which the individual body has become a receptacle of contested meaning. In Ireland, with its birth out of a violent trauma based on a philosophy of blood sacrifice, the heroic patriot who dies in the service of his imagined nation is invested with particular symbolic capital and casts a traumatic shadow over discourses on death in Irish society. The nation is always already in the shadow of death, of the deathly apparition of the new nation, made hauntingly manifest in the photos of the dead body of the nationalist hunger striker Terence MacSwiney, as his corpse lay in state in 1920. This body being dead also signals the hope that, in the sacrifice of the individual for the national cause, liberation will one day come. This theme of the primacy of community over individual prefigured the manner in which in postcolonial Irish society the individual body of the citizen was relegated to a secondary position. The attempt to deny or repress death may be analogised with the similar attempt on the part of political elites to create a notion of political identity which is rigid and attempts to keep all those others associated with death and degeneration outside the body politic.

Type
Research Article
Information
Legal Studies , Volume 20 , Issue 3 , September 2000 , pp. 393 - 408
Copyright
Copyright © Society of Legal Scholars 2000

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References

1. A Smith ‘Incorporating Images in Film: Truffaut and Emblems of Death’ (1999) 32 Mosaic 107 at 116.

2. S Webster Goodwin and E Bronfen (eds) Death and Representation (Baltimore: Johns Hopkins University Press, 1993) p 20.

3. See L Gibbons Transformations in Irish Culture (Cork: Cork University Press, 1996) pp 162–163.

4. Gibbons, above n 3, p 162.

5. Colm Toibin's novel The Blackwater Lightship (London: Picador, 1999) presents us with this very conundrum, which plays itself out over the dying body of Declan, who is suffering from AIDS. This dying body is the backdrop against which the different strands of Irish identity confront each other. It is an example of how death forces us to ask questions about our relations with others and with the past. See further T Eagleton ‘Mothering’ London Review of Books 14 October 1999, p 8.

6. K Verdery The Political Lives of Dead Bodies: Reburial and Postsocialist Change (New York: Columbia University Press, 1999) p 28.

7. Verdery, above n 6, p 33.

8. See A Norton ‘Transubstantiation: The Dialectic of Constitutional Authority’ (1988) 55 Chicago LR 458.

9. What gives the Constitution its ideological potency is the organisation of enjoyment around fantasy structures defined by either masochism or anxieties surrounding the theft of enjoyment by the coloniser (that is, around some form of denial of Lack). It is here that is the kernel of enjoyment at the heart of nationalist discourse. The piece of the Real can be seen as allowing the Constitution to function at the level of official discourse, albeit mediated through fantasy. One is left with a reading of the Constitution which sees its disparate elements not merely held together by mimesis, but organised around Lack and its denial.

10. See T Inglis ‘Foucault, Bourdieu and the Field of Irish Sexuality’ (1997) 7 Irish Sociology 5, 19–20, where he notes that the language of medicine in the opening decades of the newly independent Irish state was not very different from that of the Roman Catholic Church and in most cases supported and reproduced it.

11. See M Nolan ‘The Influence of Catholic Nationalism on the Legislature of the Irish Free State’ (1975) 10 Irish Jurist 128 and P O'Mahony and G Delanty Rethinking Irish History: Nationalism, Identity and Ideology (Basingstoke: Macmillan, 1998) pp 152–154.

12. J Baudrillard Symbolic Exchange and Death (London: Sage, 1993) p 175.

13. M Bracher Lacan, Discourse, and Social Change: A Psychoanalytic Cultural Criticism (Ithaca: Cornell University Press, 1993) p 114.

14. Bracher, above n 13, p 114.

15. See M Shildrick Leaky Bodies and Boundaries: Feminism, Postmodernism and Bioethics (London: Routledge, 1997).

16. See E Hanson ‘Undead’ in D Fuss (ed) Inside/Out: Lesbian Theories, Gay Theories (London: Routledge, 1991) pp 324–440 and J Butler The Psychic Life of Power: Theories in Subjection (Stanford: Stanford University Press, 1997) pp 26–27.

17. The notion of abjection as developed by Julia Kristeva refers to that ‘which is rejected from which one does not part’: J Kristeva Powers of Horror: An Essay on Abjection (New York: Columbia University Press, 1982) p 4. It is that threat to identity both individual and societal that society perceives as coming from outside. Thus, for Kristeva: ‘Excrement and its equivalents (decay, infection, disease, corpse, etc) stand for the danger to identity that comes from without: the ego threatened by the non-ego, society threatened by its outside, life by death.’ Ibid, p 71. This link between the construction of a bounded social body and the individual body had been made by Mary Douglas in her work on pollution and taboo, where she noted that the: ‘body is a model which can stand for any bounded system. Its boundaries can represent any boundaries which are threatened or precarious… The functions of [the body's] different parts and their relation afford a source of symbols for other complex structures. We cannot possibly interpret rituals concerning excreta, breast milk, saliva and the rest unless we are prepared to see in the body a symbol of society, and to see the powers and dangers credited to social structure reproduced in small on the human body.’ See M Douglas Purity and Danger: An Analysis of the Concepts of Pollution and Taboo (London: Routledge and Kegan Paul, 1966) p 115.

18. Hanson, above n 16, p 324.

19. C Waldby AIDS and the Body Politic: Biomedicine and Sexual Difference (London: Routledge, 1996) p 146.

20. See A Frank The Wounded Stoyteller: Body, Illness arid Ethics (Chicago: University of Chicago Press, 1995) p 6.

21. E Bronfen Over Her Dead Body: Death, Femininity and the Aesthetic (Manchester: Manchester University Press, 1992) pp 49–50.

22. On the obsession with boundaries in relation to Western discourse on death see J Derrida Aporias (Stanford: Stanford University Press, 1993) pp 3–17. See also his comments on living death in his introduction to N Abraham and M Torok The Wolf Man's Magic Word (St Paul: University of Minnesota Press, 1986).

23. Referring to M Blanchot The Gaze of Orpheus and Other Literary Essays (Barrytown: Station Hill Press, 1981).

24. Bronfen, above n 21, p 52.

25. Duane Michal's photo sequence ‘Death comes to the old lady’ brings this need to erect boundaries for the purposes of exclusion and repression (not so) sharply into focus. In Michal's photo sequence the viewer is faced with the inevitable entrance of death into life. In the first frame, the old lady of the title sits alone in the foreground. In the second photo in the sequence, the blurred figure of death as a black-suited figure appears in the doorway. Death lingers in the background, like an afterthought or one who is apparently forgotten yet never completely out of the subject's mind. In the third photo death moves ever closer, still blurry but with the distinguishable features of a male. In the fourth photo death places a hand on the shoulder of the old lady. Now death is almost a blur of energy entering the still clearly defined old lady. In the final photo death and the old lady become one. Reconciled with death, the old lady moves for the first time in the sequence - or does death move her? She becomes a grey blur, death and life, death as life, no barriers, just a blurred hazy fluidity. Death enters the old lady in a blurring of boundaries. Death has entered life, and in so doing exposes the illusory nature of the boundaries which we erect to deny or repress or exclude death. See D Michals Sequences (New York: Doubleday, 1970) pp 50–56. Similarly, in law, death hovers on the edge until we can no longer avoid it.

26. See eg the description by Simone de Beauvoir of the manner in which her terminally ill mother was viewed by the physicians who subjected her to a life-prolonging procedure: S de Beauvoir A Very Easy Death (New York: Pantheon Books, 1965).

27. See Re A Ward of Court (1995) 2 ILRM 401.

28. It was pointed out in passing by the Chief Justice in his decision in Re A Ward of Court (1995) 2 ILRM 401 at 423 that: ‘It is important to emphasise that the court can never sanction steps to terminate life… any course of action or treatment aimed at terminating life or accelerating death is unlawful.’

29. This notion of representation as a means of arresting the onset of death is adapted from Elisabeth Bronfen's discussion of the painter Hodler's drawings and sketches of his lover as she lay dying from cancer. See Bronfen, above n 21, pp 49–50.

30. D Cornell ‘Bodily Integrity and the Right to Abortion’ in A Sarat and T Kearns (eds) Identities, Politics and Rights (Ann Arbor: University of Michigan Press, 1995) p 54.

31. Cornell, above n 30, pp 35–36.

32. Cornell, above n 30, p 58.

33. The case of Jack Kevorkian exemplifies the law's need to repress this signifier of death, a status clearly inherent in his sobriquet, ‘Doctor Death’ . Here is a case where the signified becomes synonymous with the signifier in popular representation. As a result, this individual has become in popular culture a symbol of death, and a repository of society's dread of death. His use of the mass media to stage his final showdown with the law reflects a simultaneous fear of, and a voyeuristic fascination with death. Having been complicit in this mediatised staging of a death, society in the form of the law, acting as the defender of society's ethical boundaries consigned him to its abject hinterland.

34. L Harmon Fragments on the Deathwatch (Boston: Beacon Books, 1998).

35. (1995) 2 ILRM 401.

36. Verdery, above n 6, p 29.

37. (1995) 2 ILRM 401 at 419.

38. J Lacan Ecrits: A Selection (New York: Norton, 1977) p 321.

39. J Gallop Reading Lacan (Ithaca: Cornell University Press, 1985) p 180.

40. See D Harmon ‘Falling off the Vine: Legal Fictions and the Doctrine of Substituted Judgement’ (1990) 110 Yale LJ 1.

41. M Minow Making All the Difference: Inclusion, Exclusion and American Law (Ithaca: Cornell University Press, 1990) p 325.

42. M Pabst Battin The Least Worst Death: Essays in Bioethics on the End of Life (New York: Oxford University Press) p 35.

43. Lacan, in referring to Freud's account of the dream of the dead father, writes that: ‘The death desire is… the desire not to wake up to the message.’ J Lacan ‘Le Desir et son interpretation’ compte rendu par J B Pontalis (1959) 13 Bulletin de Psychologie 270, cited in Gallop, above n 39, p 170.

44. The death denying strategy of the courts is also evident in the fact that there is a psychological unease amongst the judiciary with equating treatment withdrawal and killing. By treating such cases differently the courts are attempting to further distance themselves from death's violent nature. Brock has noted that this: ‘Characterisation as allowing to die is meant to shift the felt responsibility away from the agent - the physician - and to the lethal disease process. Other language common in death and dying contexts plays a similar role; “letting nature take its course” or “stopping prolonging the dying process” both seem to shift responsibility from the physician who stops life support to the fatal disease process. However psychologically helpful these conceptualisations may be in making the difficult responsibility of a physician's role in the patient's death bearable, they nevertheless are confusions. Both physicians and family members can instead be helped to understand that it is the patient's decision and consent to stopping the treatment that limits their responsibility for the patient's death and that shifts the responsibility to the patient.’ D Brock Life and Death: Philosophical Essays in Biomedical Ethics (Cambridge: Cambridge University Press, 1993) p 211. See also R Dworkin ‘Assisted Suicide: The Philosopher's Brief’ (1997) XLIV New York Review of Books 41–42.

45. See Frank, above n 20, p 83.

46. (1992) I IR 1. See L Smyth ‘Narratives of Irishness and the Problem of Abortion: The X Case 1992’ (1998) 60 Feminist Rev 61.

47. (1992) I IR 1.

48. See Government of Ireland Interdepartmental Working Group on Abortion Green Paper on Abortion (Dublin: The Stationery Office, 1999). Similarly, in England and Wales, following the case of R v Bourne (1938) 3 All ER 615, almost 30 years elapsed before legislative policy caught up with legal reality, thus indicating the need for value shifts to occur before controversial policy issues can be tackled successfully.

49. (1974) IR 284.

50. See further J Murphy-Lawless and J McCarthy ‘Social Policy and Fertility Change in Ireland’ (1999) 6 The European Women's Studies 69.

51. See the reaction provoked by the proposal by the author for the legalisation of physician-assisted suicide in Ireland (P Hanafin ‘Whose Life is it anyway?’ (1998) 15 Forum: Journal of the Irish College of General Practitioners 12–13) eg D Hanly ‘The Long Slippery Slope to Euthanasia’ Sunday Tribune 13 December 1998, p 8 and O Gallagher ‘Killing with kindness or murder most foul?’ (1999) 16 Forum: Journal of the Irish College of General Practitioners 17–20.

52. C Shilling The Body and Social Theory (London: Sage, 1993) p 73.

53. See Irish Medical Council ‘Statement of the Council after their Statutory Meeting on 4th August, 1995’ (Dublin: The Medical Council, 1995) and Irish Nursing Board, ‘Guidance of the Irish Nursing Board of 18th August, 1995’ (Dublin: The Nursing Board, 1995).

54. Irish Medical Council A Guide to Ethical Conduct and Behaviour (Dublin: The Medical Council, 1998) p 38.

55. Irish Medical Council, above n 54, p 38.

56. Irish Medical Council A Guide to Ethical Conduct and to Fitness to Practise (Dublin: The Medical Council, 1994) p 36.

57. Berman has outlined this tension at the core of modernism: Modernists… created complex compositions of heterogeneous elements, compositions whose unifying principles would only come into being with the individual work. Finally, sensitive to the intrinsic potential of each medium, an artist working with several media would not seek a direct translation of the ‘content’ of each into the other, but would create composite works whose elements would harmonise with each other indirectly. See N Berman ‘Modernism, Nationalism and the Rhetoric of Reconstruction’ (1995) 13 Current Legal Theory 3 at 10.

58. O'Mahony and Delanty, above n 11, p 167.

59. Ibid, p 176.

60. Harmon, above n 34, pp 118–122.

61. See also Freud's discussion of rituals commemorating the dead as displaying ambivalent attitudes of veneration and fear in S Freud Totem and Taboo: Resemblances Between the Psychic Lives of Savages and Neurotics (New York: Dover Publications, 1998) pp 45–63.

62. The need on the part of dying patients to tell their story on their own terms rather than via the clinical, legal or religious gaze has been described by Frank as ‘post-colonial’: Just as political and economic colonialism took over geographic areas, modernist medicine claimed the body of its patient as its territory… But illnesses have shifted from the acute to the chronic, and self-awareness has shifted. The post-colonial ill person, living with illness for the long term, wants her own suffering recognised in its individual particularity; ‘reclaiming’ is the relevant postmodern phrase. See Frank, above n 20, p 11.