The libidinal law: sexuality and desire in U.S. legal embodiment

Politics is frequently understood through the body. However, liberal political theory and, therefore, American law focus upon a question of rights, rather than of needs. Due to this, liberal political theory occludes vulnerability and the facticity of bodies from political thought. Embodiment, a given but also an uncomfortable facet of life, pushes us to consider how political and legal decisions impact people’s lives. It necessitates that political and legal decisions are made by considering the ways in which they can and will effect all people, not just the independent, autonomous, and rational actor. This legal embodiment theory allows us to make visible the ways in which marginalized people’s bodies frequently are the site of specific restrictions. The paper begins with a discussion of embodiment and care ethics. It then progresses to gender-affirming healthcare and abortion and how embodiment arises in those legal discourses. Then, it moves to a discussion of queer sexuality in education, engaging with ideas of disgust. Finally, it broaches the question of the State’s role when it comes to legal embodiment. If we consider embodiment through a lens of a shared good, then legal embodiment ought to prioritize decisions which will promote caring relationships between the individual’s body and the State.