This week I turn to the concept of individual that’s produced by the legal system: the ‘rational person’. The rational person is a disembodied individual, who is stripped away of all uniqueness, embodiment, emotion and desire. It turns out that a justice system, like the modern one, based upon the idea of ‘fairness’ requires us to think of other people as rational, with exactly the same needs and entitlements as every other ‘rational person’.
What would a legal system look like if not based upon the idea of ‘fairness’? In the classical period, it was the idea of ‘natural order’. In the medieval period, it was the idea of a hierarchy with an authoritative God at the top.
Fairness sounds obvious, because it’s what we’re used to. But the implications are troublesome: in order to treat people fairly, we have to treat them as if they were all the same. Worse, we have to pretend they don’t have bodies, emotions and desires.
I share some anecdotes about people who are silenced when they’re expressing their unique desires. Four-year-old Amy is told she has to use her ‘happy voice’ – meaning, she has to sound neutral and emotionless if she wants to be listened to. Twenty-year-old Nemo is told to shut up by her peers when she acts out what it’s like to sexually desire another person. Read my book, Language, Sex and Social Structure, for more on the discursive erasure of sexual desire.
Read Costas Douzinas’s chapter in The Cambridge Companion to Postmodernism, ‘Law and justice in postmodernity’ for more on justice, fairness and the legal subject.
Structured Visions 
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