Definitions of death are often referred to as legal fictions since brain death was conceived in the mid-twentieth century. Reference to legal fiction is generally paired with bioethicists’ concern that it facilitates post-mortem tissue donation and the health system generally, by determining death earlier on the continuum of dying and availing more viable tissue and therapeutic resources for others. The author argues that spatio-legal theory, drawing from legal geography, can account for the heterogeneity of effects that the fiction has in spatially managing bodies (e.g., physicians, patient, family) at the bedside. The legal fiction is produced in physicians’ socio-legal practices, coordinating decision-making according to geographies of scarcity and severable, self-contained live- and dead-bodies. The determination liminally exists between private and public, enacting a sterile, affectless ordering of bodies but administered in the spectacle of sovereign death-making, conveying authority whilst managing patient’s and family’s consents. Spatialising traces of anatamo-politics and biopolitics thereby congeal and are enacted heterogeneously in and through the legal form of the fiction, securing preferred constructions of the body in the management of mortality. These spatio-legal features of the legal fiction are described from their collision with case law and literature that document competing nomoi produced from or secreted by antinomian bodies.
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This analysis focuses upon the decision of the Ontario’s Superior Court of Justice. Subsequent to writing this manuscript, but prior to publication, the Ontario Court of Appeal rendered a decision with respect to an appeal, reported as McKitty v Hayani, 2019 ONCA 805. Much of the appeal decision dealt with the constitutional, religious rights under the Canadian Charter of Rights and Freedoms; however, the Ontario Court of Appeal makes passing comments intending to clarify that the definition remains a legal definition. In other words, the definition ‘is not simply, or even primarily, a medical or biological question. The question of who the law recognizes [sic] as a human being—entitled to all of the benefits and protections of the law—cannot be answered by medical knowledge alone. […] Who the common law ought to regard as a human being—a bearer of legal rights—is inescapably a question of justice, informed but not ultimately determined by current medical practice, bioethics, moral philosophy, and other disciplines’ (para 29). My reading is that the Ontario Court of Appeal’s comments and determinations do not affect my analysis, and for that reason I have excluded reference to it.
Some patients and family seek organ and tissue donation as a way of extending their presence, for themselves and others, after death. Such cases may seem to controvert this portion of my argument; however, I suspect patients and family distinguish between their attempts at corporeal extension and the recognition of life in toto. If not, it may indeed exemplify the successful, albeit limited incorporation of a counter nomos, admitting the body’s leakiness, to the extent it maintains biopolitical purposes. On this basis, I do not believe these cases are fatal to my argument; but, they should be explored more thoroughly.
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I am grateful to Dr. Jocelyn Downie, who supervised the LLM thesis this paper was derived from; Dr. Ranu Basu, who mentored me in critical geography during the first year of my PhD and whose thinking factored so significantly in my revisitation of my LLM work; Dr. Roxanne Mykitiuk, who supervises me now as my PhD supervisor and pushes me to think through law’s relation to new materialism, bodies and embodiment; and Dr. Joshua Evans, who invited me to participate in a panel on legal and health geographies at the Canadian Association of Geographers’ annual meeting in 2019 and whose suggestion on the relevance of Michel Foucault’s The Birth of the Clinic proved eminently helpful. I am also thankful to the editors of Law and Critique and the anonymous reviewers for their valuable comments.
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Shaw, J.D.M. The Spatio-Legal Production of Bodies Through the Legal Fiction of Death. Law Critique 32, 69–90 (2021). https://doi.org/10.1007/s10978-020-09269-5
- Definition of death
- Legal fiction
- Legal geography
- Spatio-legal theory