The Limits of Bodily Integrity

Abortion, Adultery, and Rape Legislation in Comparative Perspective

Ruth A. Miller

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9780754670612
• eBook ISBN: 9781317025382
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

This volume argues that legislation on abortion, adultery, and rape has been central to the formation of the modern citizen. The author draws on rights literature, bio-political scholarship, and a gender-studies perspective as a foundation for rethinking the sovereign relationship. In approaching the politicization of reproductive space from this direction, the study resituates the role of rights and rights-granting within the sovereign relationship. A second theme running throughout the book explores the international implications of these arguments and addresses the role of abortion, adultery and rape legislation in constructing 'civilizational' relationships. In focusing on the Ottoman Empire, Turkey, France and Italy as case studies, Miller presents a discussion of what 'Europe' is, and the role of sexuality and reproduction in defining it.

Chapter 1 Introduction

DOI: 10.4324/9781315556024-1

Introduction

The subject of this book is the intersection between citizenship and reproduction in modern and post modern European states. This intersection—between law and politics on the one hand and sexuality or biology on the other—has been analyzed and debated for well over 200 years.¹ The gendered nature of classical liberal political belonging has likewise been well established, if the beneficiary of a less extended historical tradition.² My primary purpose in this book is therefore to engage in what has become an ongoing discussion, to look a bit more closely at the creation first, of citizens, and second, of citizens with distinctly sexual or reproductive identities.

¹ As noted by Pedersen 1996, 673–698. See also Duben and Behar 2002, 181–2. And, more broadly, Pateman 1988, passim. Among others. ² See Pateman 1988, passim. Brown. 1992, 7–34. One could argue that the tradition of feminist critiques of liberalism is as old as liberalism itself, however, if we consider the work of Mary Wollstonecraft and others.

At the same time, I intend to take this discussion in a new direction. I should explain first of all, for example, what I mean by “intersection.” When I talk about the intersection between citizenship and reproduction over the following pages, I will not be talking about a metaphorical relationship between abstract notions of gender and abstract notions of political belonging. Nor will I be concerned with the modern development of biopolitical structures focused on the procreation and health of a given population per se—although each of these scholarly frameworks will play a significant role as I develop my argument. Instead, my focus in this book will be on the concrete, physical, solid, and material collision of law and sexuality—the formulation of the womb as a political space, and as a space more often than not sliced out of a given citizen for the sake of political expediency. Over the next chapters, I will indeed seek to demonstrate first and foremost the physicality of the politicized womb—the way in which it has been defined upon a distinctly material plane.

Given this emphatically not metaphorical understanding of “intersection,” my working definitions of both “citizenship” and “rights” will also necessarily be concrete. It is true that my starting point with regard to each is the liberal tradition, with its idealization of individual rights and the rational state-citizen relationship. It is equally true that the geographical and chronological reach of this study will extend to more recent twentieth century authoritarian and twenty-first century “spectacular”³ variations on the same theme. Once again, however, I will understand rights and citizenship above all as instruments of cutting, splicing, and stitching—as tools in the construction of the physical, flesh-bound citizen, rather than in the construction of the abstract, law-bound citizen. Indeed, a second fundamental argument that will recur throughout this book is that it is precisely the relentless granting of rights that we have seen since the eighteenth century that has turned the womb into a political space.

³ As it has been termed by Agamben 1998, 10.

A third theme that will appear with frequency is related to this process of rights-granting and concerns the nature of the modern and the post-modern. When I talk about modern and post-modern states over the following chapters, I will be referring both to states operating within certain basic chronological boundaries—the late eighteenth century to the present—and also to states situated within the more complex and shifting ideological framework that developed over this same period. The twenty-first century “spectacular post-democratic society,” as a society in which “politics knows no value (and, consequently, no non-value) other than life,”⁴ is arguably a post-modern society. The mid-nineteenth century post-Enlightenment society, with its emphasis on rationality, legal formalism, organization, and meaning, is arguably a modern one. The authoritarian and fascist states of the mid-twentieth century served, again arguably, as a bridge between the two—appropriating the vocabulary of formal law and rational legalism in the name of a politics of spectacular bare life.

⁴ Ibid.

This gradual process will form the principal backdrop for my discussion of reproduction and citizenship. Indeed, two aspects of it will be vital. The first is the collapse of the modern, supposedly distinct categories of law, politics, and war into a single, overreaching category.⁵ The second—one that has received less attention—is the related collapse of abortion, adultery, and rape into a single, overreaching category. As political violence and political belonging were stripped of any meaning but “life” and reformulated into a monolithic unit, I will argue, abortion, adultery, and rape were also reformulated into a single category. This was not, however, the conflation of, say, adultery and rape that we see in medieval and early modern legislation—not the “traditional” interpretation of sexual crime that came under attack in the modern period because it privileged what was apparently a religiously defined community over a politically defined consenting individual. It is instead, I will suggest, a new, modern, and post modern collapse of sexuality into reproduction, derived precisely from the liberal idealization of the consenting individual and a direct legacy of the liberal rights granting state.

⁵ This process has received a great deal of commentary over the past century. I will be relying primarily on Agamben 2005, State of Exception and Schmitt 1996 [1932], Concept of the Political, Schmitt 1985 [1922], Political Theology: Four Chapters on the Concept of Sovereignty, and Schmitt 2004 [1932], Legality and Legitimacy. For an analysis that brings Marxist theory to bear on the phenomenon, see Hardt and Negri 2004, passim.

Finally, I should explain what I mean by Europe. The states that interest me particularly in this book are France, Italy, Turkey, and the Ottoman Empire. Upon first glance, these may seem like odd choices. Indeed, if we define Europe as the contemporary European Union, Turkey would obviously not be included in the picture, and Italy would be only peripherally relevant.⁶ Similarly, although the Ottoman Empire was never officially colonized, it was without question engaged in a quasi-colonial relationship with a self-consciously external Europe,⁷ and thus no more “in” Europe than Turkey is today.

⁶ On Italy as a state at the margins of “civilization” and thus Europe see, for instance, Sassatelli 1998, 108, who argues that Italy is a country on the periphery of the “modern West,” and “a Mediterranean and Catholic country where the lack of a bourgeois revolution, the persistence and transformation of family allegiances and patron-client loyalties have informed both the political and the economic transition to modernity.” For an earlier, and more blatantly exotic analysis see, among others, the following fin de siècle discussion of corruption in Italy: “Secret of Crispi Favor: Africa is the Answer to the Vexing Italo-English Enigma—Aggression, Adventure, and Ruin: Most Cruel, Inquisitorial, and harrowing of All Imposts” 1898, 2, where it is asserted that “the [Italian] government majority are as much mercenaries as the negro battalions of Baratieri.” ⁷ See, for instance, Inderpal Grewal’s discussion of the perception of the Ottoman Empire as “feminine”: “Though refuting the argument that enfranchisement of women was emasculating to the nation, Fawcet believed that Turkey was a feminine nation, showing that she too saw the colonized and Eastern countries as effeminate, and also upholding the claim that the project of colonization was a virile one.” Grewal 1996, 69.

At the same time, the nature of my argument, my focus on reproduction and citizenship, and my focus in turn on political and biological, permeable and impermeable borders, boundaries, interiors and exteriors make a discussion of Europe using these case studies perhaps more meaningful than one using more obviously “European” European states. Indeed, the nature of colonial and postcolonial political belonging is and has been such that both Italy and France have had to deal with an ongoing process of defining and redefining their position within Europe as well as what they themselves are as European nation states.⁸ Similarly, Turkey’s torturous process of becoming European—a legacy of the Ottoman Empire’s tenuous, included/excluded membership in the nineteenth century Concert of Europe—is in a very basic way an argument between the Turkish government and various European Union officials about what Europe is. A final theme that will run throughout this book is therefore that these intersections between politics and reproduction, these collisions between law and sexuality, produce not only the flesh bound political subject, but also a Europe in a constant process of redefinition.

⁸ The invention of the so-called “refugee problem” in both states (predicated as it is upon implicit assumptions of French and Italian racial purity) is an obvious example of this process of definition.

My primary points will thus be, first, that the post-eighteenth century intersection of citizenship with reproduction has produced a concrete, physical political space situated within the womb. This space is neither metaphorical, nor merely the signifier of gendered citizenship, but is materially productive of a distinctly flesh bound rather than law bound political subject. Moreover, it has been the granting of modern rights above all that has led inexorably to this biologically defined citizen. Second, as this political space has been defined, and as modern politics have gradually given way to post-modern politics, legislation on issues related to the womb—in particular legislation on abortion, adultery, and rape—has collapsed these same issues into a single, uniform category. Just as law, politics, and war became one and the same throughout the twentieth century, so too did any and all crime relating to sexuality and reproduction. Finally, each of these processes has played and continues to play a key role in defining Europe. The sexual and reproductive implications of drawing and redrawing borders or boundaries are, again, not simply symbolic or allegorical—they are concrete, and they produce tangible consequences for the bodies of European citizens as well as for the bodies of those subjects defined against, or apart from, Europe.

Liberalism, Authoritarianism, and Biopolitics

Most discussions of citizenship, and particularly rights-based citizenship, are situated within a narrowly defined liberal political tradition. The citizen as a rights bearing individual is seen as the product of a particular eighteenth century moment, and whether or not this idealized citizen has ever actually existed outside of the realm of political theory, he⁹ is depicted as active, free from coercion, and operating within structures that exist to preserve his liberty. At the same time, since this same eighteenth century moment, a second citizen, the legacy of a more authoritarian take on the sovereign relationship, and usually held up as somehow the opposite—or even the shadow—of his liberal counterpart has become equally prominent. This citizen is engaged in an equally intimate, similarly modern relationship with state authority, but his rights are passive, and his individuality—if granted—is subordinated to some variation on collective identity.

⁹ See below, Chapter 5, for a discussion of gendered citizenship in classical liberalism and how this notion has been re-interpreted in the modern and post modern periods.

The interplay—and apparent dichotomy—between the liberal citizen and the authoritarian citizen has been the subject of a number of analyses and discussions. One of the most cogent of these is Talal Asad’s in his book Formations of the Secular. In an examination of identity cards and citizenship in Europe, Asad argues that

in Britain, identity cards are thought of as a threat to the liberty of individual subjects (that is, citizens), and in the European Union states they are seen as a guarantee that a collective object (that is, the population) will be provided efficiently with equal welfare. The former focuses on liberty as an active right, the latter on welfare as a passive one.¹⁰

¹⁰ Asad 2003, 140.

Although Asad associates the “citizen” primarily with the liberal political relationship in this passage, the basic tension that he describes is between the two camps that I mentioned above—the issue at stake is differing notions of rights, active versus passive, individual versus collective, liberal versus statist or authoritarian. The issue at stake, in other words, is the opposition between our two eighteenth century sovereign subjects, each caught up in an apparent and eternal opposition to the other.

I mention this apparent dichotomy both because it has served as the foundation for political debate in all four of my case studies—the Ottoman Empire, Turkey, France, and Italy—and also because one of the primary corollaries to the argument that I sketched above will be that the opposition between the post-eighteenth century liberal and the post-eighteenth century authoritarian is a fantasy. Indeed, I will be suggesting over the following pages that when we place reproduction at the center of modern and post modern political relationships, these two groups become, eventually, one.

At the same time, I am not the first person to note the convergence of these two forms of sovereignty in the twentieth and twenty-first centuries. Michel Foucault and Giorgio Agamben have both convincingly criticized the purely juridical approach to the modern state-citizen relationship, the logic of which leads inexorably to an assumed dichotomy between the liberal and the authoritarian. Arguing first that the eighteenth and nineteenth century classical juridical subject gave way in the twentieth century to a biopolitical subject, both Foucault and Agamben suggest that this twentieth century sovereign focus on biologica...

Table of contents

• Cover
• Halftitle Page
• Title Page
• Copyright Page
• Contents
• Acknowledgements
• 1 Introduction
• 2 Reproduction and Race Suicide
• 3 Sexuality and Citizenship Formation
• 4 Defining Europe
• 5 Women and the Political Norm
• 6 Conclusion
• Bibliography
• Index