ABSTRACT
This chapter examines a shift within feminist legal theory from a central concern with sexual difference to one of embodied difference. The subject at the center of this theorizing is marked by bodily (as opposed to sexual) difference from the normative, self-actualizing individual of legal subjecthood. Bioethical and biotechnological inquiries too are concerned with bodily differentiation. Bodies discussed in these contexts are often anomalous or pathologized. They are brought under scrutiny, when they deviate from what is often regarded as “normal,” that which is both valorized for its “species typicality” and, by extension, held out as the “natural” state of being (Buchanan et al. 2000). Our feminist theorizing focuses on the link between biological and legal
accounts of the embodied subject to interrogate the way that these meaningmaking discourses reinforce and challenge each other. This approach provides opportunities for rethinking a just response to the existence of non-normatively embodied others. Thus, we examine legal responses to the bodies of nonnormative selves: those classified as “disabled” or otherwise anomalous. While this shift moves away from a specific focus on women’s bodies to bodily difference more generally, women’s bodies remain central to our analysis because the liberal conception of the subject valorizes bodily states more easily managed by men’s bodies. Women, especially through pregnancy, are destined to fail at this marker of autonomy and individuality (Karpin 1994; Mykitiuk 1994). The impetus for our interrogation originates in the work of feminist legal theorists who, along with colleagues in the humanities and social sciences, have sought over the last 25 years to (re)position material embodiment as key to feminist analysis. While difference is not always manifest along gendered lines, feminist legal theory operates as a general jurisprudential matrix within which to understand and analyze a broader ideal of embodied justice. Here, we map out a legal feminism that invokes a commitment to the multi-
plicity, indeterminacy, and the contingency of the material self, at the same time as recognizing the reality of bodies and the need to live in them. While accepting instabilities as inevitable, we do not deny that we have bodies, nor do we seek to transcend them. Instead, we argue that law’s repertoire of responses should move beyond regularization, normalization, and stabilization.
