In June 2019, Jeannie Suk Gersen wrote an article in The New Yorker entitled âHow Fetal Personhood Emerged as the Next Stage of the Abortion Wars.â1 In her piece, she described the arguments put forward by Justice Clarence Thomas who commented on a recent abortion case. Gersen gave an account of how, in his striking appeal, Thomas likened abortion rights to a form of racist eugenics revivalism and invoked the authoritative framework of legal anti-discrimination norms. Rather than slipping into the polemical agenda set up by Thomas, Gersen points to its function as a distraction to the real issue at hand: the emergence of fetal personhood. Our volume focuses on such arrivals of personhood by looking through a biolegal lens. The âage of biolegalityâ in our title suggests that we have entered a phase in which biolegal formations increasingly dominate social and political changes. This situation triggers an urgent need to reflect on these changes and examine the sophisticated (re)negotiations between biology and law that inform new understandings of natural and legal personhood .
Biolegality is not a new term. The concept originates from the work of Michael Lynch and Ruth McNally (2009), where they describe the coproduction of biotechnology and legislation within the context of forensic scienceâa field that in the past few decades has been redefined by the introduction of genetic technologies. As Lynch and McNally show, law, and law enforcement, play a unique role in communicating the power of DNA in situations of claims-making and crime. The exceptional reliance on DNA as a âtruth machineââthey argueâindicate that biolegality is not only a âhistorical relationship between biological innovation and enabling legislation, [rather,] it is an epistemic relation in which biological âtruthâ justifies exceptional legal proceduresâ (2009, p. 296). Here, biolegality is set against the context of a more general process of geneticization in society (Hedgecoe 1999; Lippman 1991; Nelkin and Lindee 1995), where following the human genome project, genetics succeeded to consume the everyday, and informed basic knowledge about health, disease, kinship, and identity. Lynch and McNallyâs biolegality hinged on this primacy of genetics and the focus on knowing.
In this collection, we stress that the current age of biolegality extends the field in two ways. First, we have entered a postgenomic phase, where genetic reductionism is challenged both in and outside of the life sciences through the biological conceptualizations of a more permeable gene interaction (Richardson and Stevens 2015; Meloni 2016, 2019). Without denying that genetics still plays a dominant role in biological thinking, its operation is fundamentally complicated by discoveries that their phenotypical expression is highly dependent on a developmental system, rather than genetic structure alone (Griffiths and Stotz 2006). Within this new epistemic framework, the environment is vital to understanding the operation of genes. Epigenetics, for instance, is now increasingly introduced as a key variable to diagnostics in biomedicine on the one hand (for instance in personalized medicine ) and incorporated into stories of kinship and identity on the other (see Warin et al. 2018).
Second, while knowing life and the value of knowledge itself stood at the center of the genetic project, it is the making and engineering of life that more and more defines biolegality in the present time. Generative medicine and gene editing are just two of the examples taken up by some of our authors. Here, law is confronted not only with the way biology is being used or manipulated but rather with the way it is fundamentally remade. As the chapters in this book illustrate, the generative potential of this shift from knowing to making impacts our legal tools and reconfigures what we mean by the person.
Law does not just regulate, allow, or limit what can be done or undone biologically, but also defines or alters our philosophical, political, or social self-understanding (Delaney 2003). In law persons are functional fictions with a real effectâthey can be natural or artificial (and to complicate matters just a bit more, they can be artificially natural). As âpractices of knowledge,â both law and biology define or construct persons according to a specific idea of âhuman nature,â âbodies,â âorganism,â âgroups,â or âlifeâ (to name a few). This construction of personsâso David Delaney explains in his afterword to our bookâoften implies an undoing or redoing of established concepts of personhood. Through such a multifaceted understanding of persons, this collection is concerned with how biology (and nature) determine what law and legality can be and do, and vice versa, how law and legality determine what biology can be and do.
Personhood is enacted in many ways; this volume investigates the sociopolitical, symbolic and material circumstances that allow (or limit) the idea of persons, personality, or personhood, taking into account the discursive and performative ways in which persons are fashioned. While some contributors take legal events as a starting point to leverage questions about biological citizenship (Trundle), racial identity (Ehlers), or molecular governance (Ihar), others take the thought-provoking task to go deeper into legal theory (Van Beers, Vatter, Davies) and to address not only the legal circumstances through which personhood is mounted, but also to propose alternative frameworks that place personhood in a better shape for some of the future (biological) challenges awaiting us.
In this introductory chapter, we provide a background to the conceptual framework of biolegality and chart out the structure of the book by discussing the scholarship informing our inquiries around personhood today. The tenet of the book is notâat least not in its first principleâto articulate normative ways of approaching personhood in the age of biology. Instead, the contributions reveal the messiness and complexities underpinning the active shaping of personsâwhether this pertains to the apparatus of biomedicine, and the ways they are entangled with legal and governmental practice, or to how individuals and communities invoke old and new tropes of persons amidst their claims for rights, recognition, and citizenship.
Legality in the Age of Biology
Despite the risk of being perceived as fetishizing the bio in our approach to legality, and thereby joining the growing group of scholars invested in mapping biopolitics, biosociality, biocitizenship, biolegitimacy, biocapital, and bioeconomies, our edited collection focuses and advocates the concept of âbiolegalityâ to give an account of multiple reworkings of lawâs persons within different formations: law as biology, law and biology, law in biology, law through biology. We define biolegality as a knowledge practice where law or legalityâin its foundational negotiation with biological form, practice, or reasonâallows the stabilization of epistemological and ontological ideas of biology, nature, life, materiality, and sociality. Against the dichotomy between a rigorous legal pluralism, and a strict conception of sovereign law or legal governance, our conception of biolegality recognizes the social construction of law on the one hand, but at the same time, acknowledges that the lawâwith its legal forms, doctrines, and techniquesâhas a distinctive quality. Similarly, biology too inhabits unique forms of biological reason and practice, which define their understandings and applications in society today.
In her contribution to our volume, Margaret Davies aptly describes this productive tension inherent to biolegality, which is âneither the application of law to bioscience nor an account of the fundamental laws of biology, but rather the generative and regenerative formations of both law and life: the patterns, iterations, symbiotic relations, responses, and behaviors of life understood as lawâ (Chapter 12, this volume). We extend this understanding beyond the formal confines of law, and into the broader field of legality, which includes practice and discourse outside of courts and institutions, and incorporates meaning-making practices and authoritative sources that are ârecognized as legal, regardless of who employs them or for what endsâ (Seron and Silbey 2004, p. 51; Silbey and Ewick 1998). Rather than a social institution, legality is a heuristic tool, an analytical term that is useful to locate the enactment of law outside of its official structures.
Concurrently, technoscientific developments in the realm of biology are fundamentally testing the templates of legal formulas and techniques (Pottage 2007). The emergence of fetal personhood with which we started this introduction is an apt example where medical technologies such as obstetric ultrasound but also MRIs and diagnostic testing are increasingly implicated in the ethical and legal evaluation of fetal or reproductive rights (see Dumit 2004; Timmermans and Berg 2003; Mills 2014). The point that we want to make with biolegality, however, is that the technologies involved do not merely, or simply, add another dimension to existing legal conventions around personhood, rather, biotechnology fundamentally tests the premises on which these legal notions were created and constituted. The science an...