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Thesis Submitted to the Department of Law of the London School of Economics and Political Science for the Degree of Doctor of Philosophy, London, September 2017

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Thesis Submitted to the Department of Law of the London School of Economics and Political Science for the Degree of Doctor of Philosophy, London, September 2017 The London School of Economics and Political Science Law Embodied: re-imagining a material legal normativity Sally Shinan Zhu A thesis submitted to the Department of Law of the London School of Economics and Political Science for the degree of Doctor of Philosophy, London, September 2017 !1 Declaration I certify that the thesis I have presented for examination for the PhD degree of the London School of Economics and Political Science is solely my own work other than where I have clearly indicated that it is the work of others (in which case the extent of any work carried out jointly by me and any other person is clearly identified in it). The copyright of this thesis rests with the author. Quotation from it is permitted, provided that full acknowledgement is made. This thesis may not be reproduced without my prior written consent. I warrant that this authorisation does not, to the best of my belief, infringe the rights of any third party. I declare that my thesis consists of 98,052 words. !2 Abstract In this thesis I critique the modern tendency to construct the legal subject upon a sharp distinction between Reason and body and to ground the normative force of law on an ideal conception of Reason. The legal subject is thereby presented as a disembodied cogitans to the neglect of his corporeality. This disregards both the necessarily material aspect of the legal subject and the necessarily embodied aspect of legal action, and results in an inadequate account of how legal normativity is manifested in material reality. This thesis aims to construct a theory of material legal normativity by re-incorporating the body of the subject into legal action and presenting that as the proper locus of law’s normative force. Although I focus on the material body in favour of Reason or rationality as the locus of action, I do not dismiss the possibility of meaningful normative action which is free from determination by material forces. I aim to construct a theory of action which is both material and normative by navigating the opposition between ideal Reason and material determinism. I do this by proposing an alternative conception of normative action which draws together the mechanism of habit and the manner of interaction with the material world. This theory of normative action will then form the basis for an account of normative legal action which gives due weight to the embodied nature of the legal subject as the proper locus for the material manifestation of the normative force of law. !3 Contents Introduction 5 1. Role of Reason 9 2. Foucault and Subjectivity 44 3. Counterintuitive Features 67 4. Re-imagining Materiality 92 5. Habit and Action 128 6. Normative Action 163 7. Legal Normativity 201 Conclusion 227 Bibliography 230 !4 Introduction Law is a ubiquitous presence in modern liberal societies; it towers in the grand buildings of government and courts of justice, omnipotent institutions of power whose agents of authority roam the civilian space as a constant visible reminder of law’s might. But law’s other, less visible face is more insidiously inserted into every crevice of society; in the humdrum motions of buying living necessities, going through reams of bills and registration forms, designating drivers for social nights-out. Law is an ineluctable aspect of modern living, so influences the very foundations of action for its legal subjects, however its own foundations of power and validity are arguably less accessible than its surface phenomena. The normativity of law1 has been a source of philosophical inquiry for likely as long as the phenomena has existed; copious theories of law have been produced, ranging from law as divine inspiration,2 to law as oppressive ideology,3 and all the while law continued to be uneventfully and relentlessly legislated, enforced, and obeyed. My project as I wade into this debate is centred around my dissatisfaction with one dominant theme in jurisprudence; the tendency to ground law's normativity in some immaterial notion of Reason or cogito, and to dismiss the corporeal shell they are encased within. The subject of legal normativity is posited as a being whose faculty for Reason and rationality enables the norms of law to find purchase, and through the mind to dictate the movements of the body. This categorical attachment of legal normativity to the cogito aspect of the mind/body dualism is reiterated in varying forms throughout modern jurisprudence: law is a rational or moral reason for action; a coordination of joint social planning; a standard of impartial justice. The normative justifications for law are equally so: law is a necessary moral or natural state for human flourishing; a form of ideal public discourse; a narrative towards achieving nomos; a product of autonomous consensus. These prominent theories all appear to premise a 1 I use the term normativity to refer to that aspect of ‘ought’ which distinguishes prescriptive norms from descriptions of fact. Although I do not subscribe to the Is/Ought dualism, I do believe there is a judgement or attitude attached to norms which is often expressed in value terms, such as ‘should’, or ‘right’. 2 Theological law, i.e. Thomas Aquinas; R.J. Henle, Saint Thomas Aquinas, the Treatise on Law : [being Summa Theologiae, I-II; QQ. 90 through 97]. Notre Dame Studies in Law and Contemporary Issues ; v. 4. Notre Dame: University of Notre Dame Press, 1993. 3 Various strains of Marxism, i.e. Antonio Gramsci; Joseph Femia, Gramsci's Political Thought : Hegemony, Consciousness, and the Revolutionary Process. Oxford ; New York: Clarendon Press ; OUP, 1981. !5 legal society consisting of rational and autonomous agents whose actions are dictated by the combined forces of legal norms and rational will. The law is fundamentally a rational system of rules, their validity is assured by the subject’s receptiveness to rational reasons and arguments, and their efficacy is enforced by the subject’s capacity for free autonomous action. Throughout this discourse the body is sidelined as a vessel for the mind, a contumely object for regulation whose sensible impulses necessitate that law is reinforced through coercion. Legal normativity is imposed upon the body; it is not derived from or conditioned by the body. I feel an intuitive rebellion against an approach which effaces the irrevocable and, I would argue, primary mode of human existence, that of embodied action and being in the world. The body that enables sensory experience, motility, consciousness, is the conduit through which the material world is made accessible. Surely such a mechanism must condition to some extent the phenomena produced through its own motions. For me it is highly doubtful that law as foremost a social construct can establish its normative foundations independent of material reality, or that legal action can be determined beyond the influence of its embodiment in the corporeal legal subject. Hence my primary aim in this thesis is to redress this perceived lack of materiality and embodiment in normative legal theory, by constructing legal normativity from the body of the legal subject as an active being in the world. This also implicates the necessity of advancing an account of action which departs from traditional models of physical movement determined by rational deliberation. Although large parts of my thesis will be concerned with the philosophical structure of normative action, it is not my intention to analyse the concept of action, its internal mechanisms or its conditions of possibility. Instead I take a largely descriptive approach to notions such as voluntary, cognitive action, and activity, without positing any particular theoretical basis for their possibility. The materiality I am concerned with is not limited to the body of the legal subject, but includes the wider material conditions of his existence, such as social and economic institutions. Neither is it my intention to analyse law as a concept with essential components or features that mutually interlock into a neat system which contains the conditions of its normativity. I take law as an open-textured social construct without conceptually necessary features; a haphazard construction which exhibits contingent commonality across empirical examples as a result of commonalities in action as opposed to common principles. My project consists in combining action and law into material legal action, which necessarily !6 implicates a certain theoretical approach to action. For this I draw upon a combination of phenomenology4 and pragmatist5 philosophical traditions, the former for its dialectical synthesis of body and mind, the latter for its emphasis on external reality as the vector for practical action. The aim is to present legal normativity as material action which is conditioned by law presented as structures of material reality; hence it is neither entirely a theory of legal action, nor a theory of law as concept, but an inquiry into the constitutions and conditions of how legal normativity is borne into materiality through action. Pursuing my critique of grounding legal normativity in Reason, I examine the theories of Thomas Hobbes and Immanuel Kant as prominent representatives of a philosophical tradition which exerts significant influence on modern jurisprudence. I outline their arguments for law as a necessary part of a political common-wealth, built upon an absolute sovereign authority, all justified through ideal Reason, and offer my contentions for what I perceive to be problematic or insupportable. I then examine the theory of Karl Marx and his materialist approach as a philosophical foil, again focussing on his arguments of the politico-economic conditions of law, informed by his conceptions of human nature and consciousness.6 Although a materialist approach is preferable to idealism, Marxian theory exhibits a tendency towards economic determinism which I do not find compatible with normativity.
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