Confronting Jurisdiction with Antinomian Bodies

Abstract

Olivia Barr argued that the common law is carried on the surface of bodies and transferred through encounters, creating, altering and organising ‘lawful relations’. She also argued that the common law is reconstituted through these movements, particularly the place-making activities of burying the dead. However, if the lawful treatment of the dead is cleaved from burial, can the dead still be constitutive of the common law or does this potentiate alternative nomoi? Through a material metaphor of dance, biogram and lawscape, the author explores the potential for different configurations of jurisdiction in events following the 2018 Humboldt Broncos bus crash.

Our joints rotate and lock, limbs splay and bend and flesh resists and enjoins the bodies of others as both an expression and architect of legal meaning. Law, in this figuration, is a dissimulated film that remains in the wake of our movements—a perspiratory imprint that congeals and encases the surface of social reality. Depending upon its thickness, this film can be both corrosive and conductive, wearing away whatever encased social material previously and subsequently altering how that material is taken up in the ecologies in which it is embedded. The film travels with each encounter between bodies and transforms the social into a distinctly legal totality: a continuous, atmospheric lawscape ¹ that spreads all over, ² and that, through its striations (i.e., logos) and smoothness (i.e., nomos), orders and imbues meaning to social action.

Our bodies’ legal secretions are not static; law and legal institutions are viscous, yet fluid and in perpetual motion, and the vector of that motion is produced from repeated events of bodily forces converging in place. This legal secretion is also not inert; law and legal institutions take shape from the profusion of bodily encounters that, with regularity of motion, potentiate future movements of these same bodies and others that come in contact with its conductive surface. In this way, law is inscribed upon and reconstituted through moving bodies, regularising, through the resulting distributions of our movements, the spatiotemporal organisation of social life. Our bodies coincide with this unending and unfinished choreography as both its subtending rhythm and expression; unending as long as our bodies encounter each other, and unfinished in that our bodies, by design and mistake, slip outside and remake those choreographies, step by step, movement by movement, in multiple directions.

Olivia Barr ³ described such choreographies in how we care for the dead. Barr argued that the common law is carried on the surface of the bodies of legal subjects and transferred to other surfaces through encounters with other human and non-human bodies, creating, altering and organising ‘lawful relations’ between them. The common law is reconstituted through these movements, particularly the place-making activities of burying the dead, which juridify the earth or, in other words, subject land to practices that evince relations constitutive of the common law’s jurisdiction. In the case of early Australian colonies, processions outside encampments and burial in terra nullius extended the common law into the beyond, the unspecified future, stabilising and expanding the demesne of lawful relations for Australian settlers in space and time. Burial continues to operate in this way for common law jurisdictions by establishing the place of law from which our bodies move and encounter each other, secreting ‘an institutional inheritance of the ways we order and conduct our lawful lives’. ⁴ Relatedly, ‘the public ceremony of mourning’, such as in cases of missing and murdered individuals, restores the place of law in the absence of the dead body allowing lawful relations to resume in space and time as ordered through jurisdiction. ⁵ Caring for the dead, in its various genres, thereby works to sustain the common law’s lawscape by coordinating the movements of bodies in place, encasing social materiality with the conductive imprint of law and producing a place indivisible from the affects (e.g., norms, practices and other forms of sensation) that shape what it means to live lawfully.

Caring for the dead in Barr’s common law seems indivisible from land, in that its choreographies necessitate a defined or definable performance space, placing stage markers that, when properly read, indicate lawful performances that can be learned, repeated and re-learned over time. Barr distinguishes the place-making practice of burial from territory and sovereignty, oft-cited concepts in political and legal theory in relation to land, focusing on the operation of burial as a ‘technique of jurisdiction’ ⁶ that authorises lawful orientations, postures and movements between bodies. ⁷ However, land is tautologically necessary for burial (and, correspondingly, juridification) in that it is expressed materially through land. Movements of burial – walking on, and burrowing into, land – form a jurisdictional technique that fastens the common law’s lawscape to land and fortifies its constitutive relations into the future. This is akin to a ‘geojurisprudence’, as Alain Pottage ⁸ described it, whose ‘medial infrastructure’ or ‘the set of discursive forms and techniques’ ⁹ undergirding the production of nomos are imbricated with the appropriation, and naming, of land. ¹⁰

However, there are lines of flight away from this geojurisprudential sedimentation, conceiving of bodies apart from land. For example, since the nineteenth century in England and Canada, some individuals have donated their bodies for anatomical study upon death, and, since the mid-twentieth century, post-mortem organ and tissue donation has occurred in clinical situations. Relatedly, select individuals undergo cryonics, preserving their tissue for the purpose of later reanimation in an effort to avoid death altogether. Whilst these historical, contemporary and more speculative cases have not uprooted the common law described through Barr’s jurisprudence of movement, I am nonetheless affected by the following quandary: If the lawful treatment of the dead body is cleaved from the place-making practice of burial for the common law, can the dead still be constitutive of it in the future or does this potentiate alternative nomoi? In other words, how might the common law’s lawscape transform without juridifying the earth?

To address this question, I develop the concept of antinomian bodies as those whose corporeality challenges existing nomoi through their ‘jurisgenerative’ ¹¹ secretions. ¹² Antinomian bodies defy the universal, individualised human ordinarily taken as the basis for, and which reinforces assumptions of, legal personality in modern Western jurisprudence. ¹³ Instead, antinomian bodies always threaten to, and often do in fact, rupture the bounds of the universal, individual human, expressed plurally in the specificity of social situations that potentiate other ways of relating lawfully. In other words, drawing from Gerald Siegmund, ¹⁴ the universal is an ‘impossible choreography’ that ‘cannot be realized in total’, ¹⁵ which proliferates movements in the negotiation of ‘law and body’, allowing for new entanglements or new legal choreographies to emerge step by step, movement by movement. Further, transcendental attempts to arrest movement or hold it constant are futile since, as Erin Manning notes, ‘closing-in is always a reopening toward the next incipient action’, ¹⁶ of which there are manifold. Indeed, Manning claims bodies are merely the momentary expressions of ‘biograms’; ¹⁷ bodies biogram in that bodies are always produced in a process of the becoming-body, expressed as the velocity and direction of incipient movements that are actualised through the body’s material displacement. ¹⁸ Biograms may express specific space–time orderings and thus constrain and regularise movement; however, the virtuality of the biogram allows for ‘transcoding or transduction’, potentiating different velocities and directions for movement and, accordingly, different becoming-bodies.

I argue that burial as a jurisdictional technique staged on land insists upon the universal human whose life can be severed from their remains. However, caring for the dead can assume many antinomian forms whose biograms are particularly transgressive and potentiate a wider dispersion of movements. To give effect to this argument, the paper assumes the following form: a description of the case study from which I describe interrelated events of burial, mourning and organ and tissue donation, along with my methodology; theorisations about the practice of organ and tissue donation as an alternative, competing approach to caring for the dead; a description of a speculative jurisprudence of antinomian bodies and how the movements of such bodies might differentially constitute the common law’s lawscape; and, lastly, I conclude with theorisations about how organ and tissue donation, and an underlying jurisprudence of antinomian bodies, are reconciled with burial.

I. Case Study: 2018 Humboldt Broncos Bus Crash

Teenage ice hockey players, their coaches, trainers and other members of the Humboldt Broncos team boarded a coach bus in the Canadian province of Saskatchewan on 6 April 2018. The Humboldt Broncos were travelling between games, having recently advanced to the semi-finals in the Saskatchewan Junior Hockey League. ¹⁹ The bus was travelling northbound on Highway 35 in the Rural Municipality of Connaught, Saskatchewan, when it collided with an articulated lorry at Armley’s Corner travelling westbound on Highway 335. ²⁰ The articulated lorry failed to yield to the northbound bus’s right of way, entered the intersection and was ‘T-bone[d]’ by the bus, which could not stop in time. ²¹ Sixteen people on the bus died. ²² Thirteen more were injured. Among the dead and injured were hockey players and others from the team. The lorry driver survived the crash and was subsequently sentenced to eight years in prison. ²³ As a recent immigrant from India, the lorry driver would be deported after the completion of his sentence. ²⁴ The fatal crash provoked numerous memorials and tributes, formal and grassroots across Canada and in the United States. ²⁵

1. Caring for the Dead I: The Hockey Arena, the Jersey and ‘Canadiana’

In the days after the bus crash, the Canadian monarch and head of state, Queen Elizabeth II, issued a statement of condolence with The Duke of Edinburgh, ²⁶ as did the Prime Minister of Canada. ²⁷ The Prime Minister’s statement said in part:

We are heartbroken knowing many of those we lost had their entire lives in front of them. We grieve with those facing news no parent or family should ever have to face. And our hearts go out to the community that has lost teammates, coaches, friends and mentors. [. . .] Our national hockey family is a close one, with roots in almost every town – small and big – across Canada. Humboldt is no exception, and today the country and the entire hockey community stand with you. ²⁸

A vigil held in Humboldt’s hockey arena was attended by the Prime Minister of Canada, first minister of the province of Saskatchewan and hundreds of others. ²⁹ National Hockey League (NHL) arenas across Canada and the United States participated in mourning the victims of the 2018 Humboldt Broncos bus crash, with moments of silence, specially designed jerseys that replaced NHL players’ names along the back of the jersey with ‘Broncos’, and ovations for survivors. ³⁰ Hockey jerseys were worn and broadcast online by everyday Canadians as they carried out their daily routines across the country, ³¹ and hockey sticks were left outside on porches and stoops, photographed and broadcast online through social media. ³² A tribute concert to the Humboldt Broncos was held in Saskatoon, Saskatchewan, for approximately 13,000 attendees, featuring ‘a summit of Canadian country music star power, NHL fame and homegrown compassion’, along with singing the Canadian anthem, calls for healing and raising funds for survivors and family of the deceased. ³³ Relatedly, a crowdfunding effort separately raised $15.1 million Canadian dollars for survivors and family. ³⁴

2. Caring for the Dead II: The Logan Boulet Effect and the ‘Gift of Life’

Logan Boulet was one of those ‘farm boy strong’ ³⁵ hockey players on the Humboldt Broncos team and was registered as a post-mortem organ and tissue donor when he died from the bus crash. His ‘heart, lungs, liver, kidney, pancreas and corneas’ were transplanted to six recipients, with doctors ‘marvel[ing] [in particular] at the strength of his heartbeat’. ³⁶ Family recounted Boulet’s decision as ‘selfless and benevolent’, concerned with saving the lives of others after finding inspiration in the decision of a coach to do the same prior to his death. ³⁷ Boulet’s decision was shared online by family and amplified by news stories, and a surge among Canadian donor registrations was attributed to the online virality of his decision. ³⁸

The surge was named after him as the ‘Logan Boulet Effect’, and his family since participated in many charitable and public advocacy campaigns with respect to organ and tissue donation. ³⁹ For example, Boulet’s father commented ⁴⁰ on Alberta’s Bill 205, the Human Tissue and Organ Donation (Presumed Consent) Amendment Act, a private member’s bill that was introduced and passed first reading in the Legislative Assembly of Alberta. ⁴¹ Boulet said that the presumed consent scheme proposed in Bill 205 needed to go further in conditioning a cultural change among Canadians that would push them to donate. Further, he said the scheme needed to make it more challenging to opt out. ⁴² Others have invoked Boulet’s name in support of post-mortem organ and tissue donation, such as the Brandon Wheat Kings, a junior ice hockey team from Brandon, Manitoba, whose players wore special jerseys during a match in February 2020. Those jerseys were adorned with the phrase, ‘The Logan Boulet Effect’, stitched on the inside of their collars, and were auctioned off before and after the game for charitable purposes relating to organ and tissue donation. ⁴³

Boulet’s family viewed his decision, and the advocacy they took on, as a matter of Boulet’s persistence in life beyond his legal death. For example, his mother said, ‘it would be really wonderful and quite an experience to hear Logan’s heart beat again [. . .] I hope I get to do that some day’. ⁴⁴ Boulet’s sister similarly said, ‘I’d like to see someone, the person who has Logan’s heart and to hear that, maybe, they suddenly love Fanta Pop or protein powder’. ⁴⁵ The family also connected their participation in Green Shirt Day, a day of memorial marking the occasion of Boulet’s death, as ‘honouring Logan’s Legacy’, and in their season’s greeting to the public in December 2019 the family signed off with ‘Mariko, Bernadine, Toby, and of course Logan Boulet’ (my emphasis). ⁴⁶

3. Methodology

I relied upon events following the 2018 Humboldt Broncos bus crash, which exemplify practices of burial, mourning and organ and tissue donation. The events following the 2018 Humboldt Broncos bus crash, taken together, form a case study through which I encountered and re-evaluated my theoretical understanding of sociolegal phenomena pertaining to movement and death. Through repeated encounters with the qualitative material from these social situations and related events, I sought ‘situations of breakdown, surprise, bewilderment or wonder’, ⁴⁷ where readymade ideas of how the law should operate or what constitutes the lawful was contradicted, which required me to revisit sociolegal theory abductively. In other words, I sought to engineer conditions under which I could withdraw from my everyday experience – although, to withdraw is always provisional and incomplete – so that I might chance upon phenomena ordinarily dissimulated or elided. ⁴⁸ The process of withdrawal, and the reassembly of theoretical experience from this withdrawn position, approximates a form of diagrammatic reading. By diagrammatic reading, I mean the experience of social phenomena through the refraction of diagrams, revealing different relations to our senses, different than what was available to the eye beforehand. ⁴⁹

Withdrawal was facilitated through a speculative method, ⁵⁰ amplifying situations of breakdown by imagining them otherwise – in this case, by feeling out their marginalised extensions or extremes. For example, here I attended to folds between the place-making movements of the common law and the movements of bodies that reject the common law’s preferred spatiotemporal orderings, and discord in attempting to reconcile them. From the tension between these, I thought about the shape jurisdiction might take if organ and tissue donation singularly defined caring for the dead to the exclusion of burial and mourning. I then set upon crafting a plausible explanation that could reconcile my breakdown in experience, drawing upon, like bricolage, past experiences, theories and affects that fold together to form my biography. ⁵¹ Such experiences, theories and affects include those responsibilities attendant to the office of a jurisprudent who seeks to identify and refine what constitutes the lawful, ⁵² whilst attending, as a sociolegal theorist does, to how legal phenomena manifest in social situations. ⁵³ Given Barr’s emphasis on movement – specifically walking – in her minor jurisprudence, ⁵⁴ I attended specifically to how the lawful was constituted through movement, including movements bodies are capable of other than walking.

II. Heterotopia’s Collapse: To Float ‘Like Water in Water’

Caring for the dead, such as through burial, ⁵⁵ mourning ⁵⁶ or the official acts of a coroner, ⁵⁷ ‘[attach] the law to a place, [. . .] enclos[ing] and institut[ing] a legal ordering of space that inaugurates a lawful place’. ⁵⁸ In other words, practices constitutive of the lawful fuse with, and come to be mediated by, place through movement, affecting how bodies relate to each other in their encounters with this sedimented form of law: a juridified ⁵⁹ stage that frames, dresses and conducts our legal performances. For example, focusing on coroners in nineteenth-century Australia, Marc Trabsky argued that their movements positioned the living and dead in legal space, containing the ordering of the colonial city through which ‘spatial relations between the living and the dead [were cultivated]’ and maintained. ⁶⁰ Trabsky drew upon Michel Foucault’s concept of heterotopia to describe this spatiotemporal ordering:

Foucault employs the term heterotopia to denote places that ‘neutralize or invert the set of relations that they happen to designate, mirror, or reflect.’ In the nineteenth century the cemetery was a heterotopia par excellence. It functioned as a counter-site to the city of the living insofar as it inverted, contested and reversed the images of a street, garden and park, while remaining firmly entrenched in them. ⁶¹

The heterotopia here was reinforced through the coroner ensuring the proper placement, examination and burial of the dead, ‘facilitating their journey towards their final resting place’. ⁶² Absent coroners, lawful relations would have been threatened by the proliferation of unburied dead in Australia, expanding heterotopia beyond its terminal point, so that the place of the living and the dead could not be differentiated:

If the dead were to remain unburied, the heterotopia of the cemetery would spread throughout the city, to the extent that it would be no longer discernible from its inverse, the world of the living. The place of the dead would be at once everywhere and nowhere, and the city would transform into a necropolis, just like the unbounded sea, where the dead float ‘like water in water.’ ⁶³

Trabsky implies that the expansion, and resulting loss, of heterotopia would have been detrimental to Australia’s colonial project, both in terms of its effects of extirpating Indigenous legal orders and imagining the expanse of terra nullius occupiable by the common law. Similarly, for Barr, the reiteration or re-enactment of burial and mourning in the contemporary lawscape coincides the jurisdiction of the living with the surface of land, separate from and vertically atop the dead, containing (and thus producing) heterotopic space. Burial and mourning consign the dead a relative position in space that dissimulates their presence in everyday life, leaving them in the safekeeping of memory. In this spectral state the dead are rendered inert save for their value as a resource from which the common law’s lawscape – the choreographies of lawful movements – can be reinvigorated. Survivors performatively fuse jurisdiction with territory through constructions of inheritance (e.g. lawful traditions generally or specifically through testamentary rights) and material practices upon the land (e.g. walking the land, marking graves and establishing memorials). These performances carry the lawful movements among the living, over and through the trauma of death, by asserting and making real in the production of space the continuity of the common law’s jurisdiction. Barr argued this was – in the case of colonial Australia – and continues to be vital for the reproduction of the common law in place despite competing (including Indigenous) ways of ordering the lawful.

Implicit to Barr ⁶⁴ and Trabsky, ⁶⁵ the place-making function to the lawful relies on and reinforces a hard distinction between the living person and the dead substrate. In other words, reproduction of the lawscape is mediated by the production of the universal human recognised as the basis of the legal person ⁶⁶ and who, beyond the supposed ontological boundaries of legal personality, becomes mere matter. ⁶⁷ It is through the universal human – as, Roxanne Mykitiuk put it, an ‘abstracted, disembodied, rational, universal rights bearing, contracting, possessive individual’ ⁶⁸ – that the common law encounters the dead as the former’s negation, as an object excluded from the protection of law and capable of being cared for. For example, a coroner’s autopsy and the burial of a loved one are only authorised once an individual’s status changes from alive to dead; to do so earlier attracts a conviction of assault or murder or, in the case of the coroner’s office, a finding of unlawful use of state violence. Therefore, caring for the dead in the common law’s lawscape flows temporally from passing through the biological threshold of death – a threshold made real through constructions of the universal human and its coterminality with the legal person – enabling conditions under which jurisdiction can be unproblematically fused with land through the dead.

The importance of the universal human to jurisdiction is apparent in situations where the universal human is weakened and must be reasserted. Consider, for example, the necropolis: the necropolis as a heterotopic container for the collected, examined and buried dead would be challenged without techniques to differentiate the dead from the living. At the very least, an indeterminate boundary between life and death would render the necropolis’ place-making effects inconsistent, creating a pesky liminal condition that destabilises the authoritative claim of jurisdiction to place or its stability in the future. For Trabsky, the office of the coroner in the nineteenth century worked to contain and nullify this liminality by differentiating place for the dead and the living, ⁶⁹ and arguably the practices of contemporary coroners and physicians contribute to much the same (e.g. determinations and certificates of death). ⁷⁰ Similarly, Barr argued that public processions of mourning in cases of missing and murdered individuals demonstrate a response to liminality with death by righting a yawning gap in the life course and bringing finality to lives lost. ⁷¹ Mourning cuts across the uncertainty of where the missing and murdered are located and reimagines these individuals as lives extinguished, capable of being buried, even if just symbolically, and enabling the resumption of lawful relations in place in their absence. More concretely in the Canadian common law, courts repeatedly agree that the next-of-kin’s possessory rights to a dead body supersede the dead individual’s plans for burial in events where they conflict, drawing from constructs of the universal human to deny the dead status as rights-bearing persons and to mend apparent ruptures in the lawful relations among the living.

The case of organ and tissue donation amplify this liminal state, in that the universal human that renders place-making possible is potentially subverted. This potential is most apparent in organ and tissue donation’s spectacularised forms, where governments, civil society groups and families of dying patients call for broad public participation, often framing donation as a ‘gift of life’. The case study of Humboldt Broncos is exemplary of this subversion, even if the organ and tissue donation campaigns do not ultimately rupture the principal conditions under which the common law’s lawscape is reproduced (i.e., burial). Key actors involved in giving name to and broadcasting the Logan Boulet Effect imagined donors as incorporated in, and living through, recipients; an intercorporeal relation that allows the life of the donor to continue in defiance of the supposed ontological boundaries of the universal human. ⁷² As Margrit Shildrick noted, ‘life and death are intertwined [with organ and tissue donation]: the death averted, the death wished for, and the life renewed, not only for the hitherto dying heart failure patient but in a powerful, albeit magical, sense for the donor too’. ⁷³

Drawing from Gilles Deleuze and Felix Guattari, ⁷⁴ Shildrick stated that the events constitutive of one’s death focuses attention upon our ‘corporeal indeterminacy’, the fact that the ‘individual subject is always in a process of unravelling’ and becoming something other – or rather, many other things – through the productive forces of ‘multiple and unpredictable webs of connections’. ⁷⁵ This indeterminacy mediates relations of intercorporeality, in that our bodies are without clear boundaries differentiating internal from external environments and, relatedly, internal from internal environments; our bodies are always expressed in the specificity of place as bodies-in-ecologies, leaky and porous and fluid, affecting one another. Having regard to this indeterminacy, the events of death are both personal and impersonal, in that they demarcate not only ‘the cessation of [our] self-identity’, but also serves as a productive threshold, ‘a further opening, another moment of becoming’, that allows for the proliferation of life despite one’s death. ⁷⁶ This proliferation is made possible through the ecologies we form part of, through the movements of those who survive us and the movements of our bodily parts well after our cognitions are lost. Survivors may experience their loved one through objects closely associated with them or, in the case of organ and tissue donation, sense them living on in the body of another. What we become after death is always fragile, vulnerable to falling away or becoming something else entirely, especially when speaking of tissue grafted onto a body emplaced in ecologies different than what were our own; however, despite the heightened precarity of these expressions under today’s socio-political conditions, I sense there are lines of flight that could sustain alternative ways of relating to the dead tomorrow.

I take these lines of flight to suggest that replacing burial with techniques that amplify intercorporeality could collapse the heterotopia of the necropolis, flattening out folds of the lawscape so that there is no differentiation between the place of the dead and the place of the living. In particular, post-mortem donation would allow the dead to live on through their gifts, to find expression through the movements of those who survive them and the movements of their bodily parts. Such a transformation dissimulates the dead among the living just as Trabsky warned: ‘The place of the dead would be at once everywhere and nowhere, and the city would transform into a necropolis, just like the unbounded sea, where the dead float ‘like water in water’. ⁷⁷ Revisiting the material metaphor ⁷⁸ of dance, organ and tissue donation pluralises the incipiency of the biogram, potentiating a profusion of movements between bodies – inclusive of organs, tissues and other body parts – and the multiplication of new, uncertain rhythms, without apparent attention to the place that stages performance. To mangle a phrase from William Shakespeare, ‘all the world’s a stage’, propelled by the movements of bodies without need to fix their legal choreographies in place. What results is the aporia of place-making: the production of a boundless horizon, which allows for the apparently limitless expansion of bodily movement and, accordingly, new forms of the lawful to emerge and potentially last.

III. Jurisprudence of Antinomian Bodies

Earlier I claimed that law should be understood as a perspiratory imprint, left behind by moving bodies, which congeals and encases the surface of social reality. The perspired form of law exceeds bodies in their movements or, as Andreas Philippopoulos-Mihalopoulos argued, bodies lawscape, spreading law all over so one’s environment cannot be encountered outside the concrete abstractions of the law. ⁷⁹ Whilst the lawscape includes texts like statutes, regulations, case decisions, which are produced as ‘a consequence of struggle’ in ‘encounters between different social actors’, ⁸⁰ including non-human bodies, ⁸¹ Philippopoulos-Mihalopoulos argued that the lawscape goes beyond these textual representations. ⁸² The lawscape is also made up of materials, sensations and affects, which cannot be immediately apprehended and represented in discourse and yet nonetheless contribute to the production of legally meaningful social action. ⁸³ Barr similarly applies the concept of the lawscape in her jurisprudence of movement, seeing the ways through which walking to bury or mourn for the dead are productive of the common law’s lawscapes. ⁸⁴ However, Barr’s jurisprudence of movement seems to prioritise anthropoid expressions, namely walking.

My perspiratory metaphor of law builds on the conceptual work of the lawscape by acknowledging, first, that the lawful and, correspondingly, the unlawful are constituted as a remainder to our movements, and that this remainder mediates the movement of bodies that come in contact with it; ⁸⁵ however, I want to push beyond Barr’s anthropoid expressions of movement by considering the dynamism of dance and performance, which proliferates the types of bodies, and bodily parts, that lawscape. It is the third factor, by bringing Erin Manning ⁸⁶ into step with Barr ⁸⁷ and Philippopoulos-Mihalopoulous, ⁸⁸ which builds upon the lawscape toward the concept of antinomian bodies: bodies which defy preferred legal orders and, thereby, produce alternative legal meanings that striate and give shape to social space. Through this connection, I argue that bodies, and their biograms, are constituted by and constitutive of lawscapes, inclusive of the assemblage of bodily parts that in a given moment contribute to the expression of our biograms.

1. Dancing with Antinomian Bodies

In the area of dance studies, Erin Manning argued that bodies form part of relationscapes, through which the preconscious, predilection to movement forms from a body’s relations with other moving bodies. ⁸⁹ Before movement is given effect in the material displacement of a body – and consequently capable of being perceived – our bodies are momentarily primed for action through the incipient movements of others. This incipiency for movement is prior to perception, prior to representation in thought and discourse; however, it nonetheless affects the sensing body, compelling the body to rotate, lock, splay, bend and resist and enjoin the bodies of others. These relationscapes might be thought of as bodies-in-ecologies, networks of affective, sensuous relations or connections between bodies that produce tendencies among each other toward certain movements that create space in duration of an event. Manning’s use of duration draws from Henri Bergson, which, as Mariana Valverde notes, ‘is not individualistic and subjective [. . .] [b]y contrast, Bergson’s duration is essential to the human but it also unites the non-human and the human instead of separating them’. ⁹⁰ In the interval between movements we share with others, dancers ‘feel the openings before they recognize them as such, openings for movement that reach toward a dance of the not-yet’, always potentiating the ‘next incipient movement’. ⁹¹ Plural durations, plural rhythms, co-exist between the movements of bodies, pulling bodies in a multiplicity of directions. ⁹²

In focusing upon relationscapes, Manning is not so interested in their effect: the displacement of a body: ‘displacement itself – the movement from a to b – is not what is essential about movement [. . .] [rather it] is the qualitative multiplicity that folds, bends, extends the body-becoming toward a potential future that will always remain not yet’. ⁹³ Her theory of movement attends to the primed- or becoming-body – the biogram ⁹⁴ – as the velocity and direction of incipient movements that might or might not be. Biograms may express specific space–time orderings and thus constrain and regularise movement; however, the virtuality of the biogram allows for transcoding or transduction, potentiating different velocities and directions for movement and, accordingly, different becoming-bodies. Further, whilst the biogram expresses specific space–time orderings, the biogram cannot be fixed as an image; the biogram is the fluid and momentary expression of bodies-in-ecologies that ‘foregrounds the affective tone of the event [of movement], the passage from one intensity to another’. ⁹⁵ Photography, even motion picture photography, which tries to capture and fix dance, to transcend and discipline it in frame, are upended by biograms that continue to become movement, ⁹⁶ which continue to propel us elsewhere. ⁹⁷ In this way, biograms can exceed regimes of the body, exceed the sculptural form, ‘continuously moving toward an infinity of recombination’. ⁹⁸

Choreography, as it is ordinarily understood, ⁹⁹ traces the momentary expression of the body in its displacement, in the sequence of events that complete movement in space and duration. ¹⁰⁰ As a potentiating force, biograms express intensities that propel movement – movement that may be recorded in and reproduced through the choreography of dance, such as that committed to text, ¹⁰¹ taught through imitation ¹⁰² and translated into stage markers; however, the incipiency of biograms cannot be captured in the image of choreography. Any choreography is incomplete; ‘impossible’ as Gerald Siegmund put it, despite pretensions to hold a sequence of movements constant across place and time, necessitating bodily performance to negotiate with the choreographic Law. ¹⁰³ Choreographies pretend to be ‘known in advance’, ¹⁰⁴ but the incipiency of movement cannot be known, at least not absolutely; what becomes of movement is always an open possibility. This can allow new entanglements – new choreographies – to emerge step by step, movement by movement. ¹⁰⁵

All bodies are antinomian, then, in that bodies – through their biograms – are always volatile, ¹⁰⁶ leaky ¹⁰⁷ or transgressive, ¹⁰⁸ potentiating novel combinations of nomos and logos in the negotiation of body and the choreographic Law; however, a particularly transgressive biogram can rupture the lawscapes that staged our legal performances and sustain new jurisprudential meaning entirely, at least to the extent our bodies are primed to move in radical directions. The antinomian, here, names the duration of our bodies ¹⁰⁹ – themselves the unstable assemblages of biogrammatic conatuses, or bodies as ecologies – and the duration of bodies’ incipiency for motion in the intervals between movements; in other words, a proliferating moment in which nomoi and logoi can unfold in non-finite directions. As duration closes and bodies are displaced, human and non-human, lawscapes emerge as the perspiration or residue of their movements, whilst folding into and potentiating bodies’ next movements. As this perspiratory layer congeals in the repetition of movements, encasing social reality, choreographies can form toward a lawful expression of movement; however, antinomian bodies can and do always rewrite this law.

Returning then to caring for the dead, in the absence of the universal human – and in the absence of those approaches to caring for the dead predicated on that universal human – I argue that a particularly transgressive biogram would express itself. Without jurisdictional techniques that ‘writ[e] the [universal] human’, ¹¹⁰ as I have noted above, the heterotopia that would otherwise contain this transgression would risk expanding to a terminal point and collapse. As a consequence, biograms would no longer be moored in place, at least to the extent that burial has institutionalised. Biograms would then potentiate a wider dispersion of movements constitutive of lawscapes. In other words, a greater range of lawscapes could be implicated by the movements primed, and actualised through, bodies’ biograms. With a change in affective aestheses, the stage of the lawscape would assume a different expression or atmosphere. ¹¹¹

Drawing from the Humboldt Broncos case study, it appears that, in cutting out land, the donative movements of organ and tissue might transform how we care for the dead, becoming inseparable from how we care for the living. Corporeal indeterminacy would allow for the prolongation of life yet without apparent need for those lives to belong anywhere; at the very least, these lives would not need to belong anywhere until the movements constitutive of organ and tissue donation were actualised and the bodies (or bodily parts) came together in place through transplantation. Assuming organs and tissues could travel virtually anywhere in our increasingly transnational societies (e.g. transnational networks in the European Union suggest, for example, the movement of organ and tissues outside traditional jurisdictional boundaries), new ways of relating to one another could be fostered.

Transgressive biograms do not portend an anarchic vacuum. Philippopoulos-Mihalopoulos reminded us that whilst bodies must withdraw from other bodies to sustain themselves, this withdrawal is, by necessity for the propagation of life, incomplete as bodies desire atmosphere. ¹¹² Along similar lines, Barr argued that the condition of relating to, and moving with, others necessitates some expression of the lawful, even if that expression does not resemble the lawful as we know it. ¹¹³ Relatedly, Siegmund writing about William Forsythe’s ballet, Human Writes, noted that some choreography emerges from community:

Yet even for a choreography that develops and adjusts itself in the moment of the performance, it is crucial that it emerges out of the agreements, rules, and limitations that make a communal togetherness possible in the first place. They are ultimately agreements as to how the dancers interact among themselves and the spectators. The arrangements are made on the basis of a quasi-legal agreement that is universally valid for the duration of the performance and into which everyone, even untrained dancers, can enter – provided they follow the rules of the game. One could therefore also describe Human Writes as a basic choreographic and dancerly situation that performatively enacts that which Althusser calls interpellation of the body by the law, by the language that is meant to be written with the body. ¹¹⁴

Importantly for Siegmund is the production of a performance or theatrical space, through which ‘temporary communities [are produced from choreography] through the structuring confrontation of body and law’. ¹¹⁵ Whilst burial may no longer serve this purpose, Philipoppoulos-Mihalopoulos, among others, suggest there are alternative ways of staging legal performances allowing for the production of the lawful.

2. ‘All the World’s a Stage’

To move beyond the geojurisprudence that shores up beneath the common law lawscapes, and to appreciate how qualitatively different lawscapes might emerge from biograms deracinated from land, it is helpful to reflect briefly upon Carl Schmitt’s The Nomos of the Earth and the later essay, Nomos-Nahme-Name. ¹¹⁶ Alain Pottage described Schmitt’s triad of nomos, nahme and name developed in these texts as exemplary of a Holocene jurisprudence – a kind of index fossil of a geological epoch in which humans occupied, and continue to occupy, an exploitative relation to non-human forms of life and non-life: a sense of technological mastery of humans over ecology. ¹¹⁷ More specifically, although without dwelling too long in Schmitt’s oeuvre, Schmitt propounded that a nomos was produced from nahme or the appropriation of land and rendered concrete in a visible juridical order or name. ¹¹⁸ Both nahme and name existed together to produce a ‘concrete order’, the nomos, grounded to soil. In contrast to land, seas were not capable of being appropriated in this way, in that power could not fabricate a concrete spatial order atop water by seizing and taking it for its own; its metaphysical properties, its boundlessness, would allow water to float on without regard for enactments of power. ¹¹⁹ As a result, an interstitial or no-man’s zone pervaded the seas, allowing a disordered violence in between discontinuous tracts of land, incapable of being fixed in place and generating the concrete, earthbound nomos Schmitt preferred. ¹²⁰

Schmitt lamented that, like the interstitial zones of the sea, a biopolitical order would emerge in the twentieth century where, as Pottage put it, ‘the expansion of the economy might lead to the situation in which things would be so contingently entangled that it would no longer be possible to identify any original moment of appropriation, or any concrete materialisation of the political’. ¹²¹ In other words, a solely economic order might emerge without need for nahme or name, entailing a different production of space than that produced through the nation-state. Relatedly, following Schmitt, I might anticipate that the common law lawscapes described by Barr ¹²² would look different if the appropriative function apparently advanced through burial as a technique of jurisdiction was lost; if burial could no longer produce conditions of terra nullius through the extirpation of Indigenous legal orders in relation to land; if burial could no longer stabilise the common law in place by ordering relations of the living with respect to the dead; if burial could no longer institutionalise a chronotope of precedent through which the lawful – symbolically and materially – is transmitted, linearly, onto successive generations. However, would this change entail the loss of the juridical order – the loss of nomos – as Schmitt warned? With respect to Schmitt, Pottage answered that:

The spectre of the technological production of things that are destined to become intangible property is that of a mode of production that is not premised on appropriation as the seizure of terrestrial materials or media. At one point, Schmitt observes, quite conventionally, that appropriation presupposes scarcity, and equally conventionally, that intangible properties are not naturally scarce (a sense of the Earth that is not so far removed from Kant’s understanding of its sphericality). The point about an economy in which things that are ‘beyond the measure of our physical senses’ are rendered ‘capable of being possessed’ is that the creation of such artefacts is an effect of the technical and economic practices and discourses that render them perceptible and appropriable. In other words, appropriation is no longer based on the terrestrial or elemental paradigm of Nomos, on land as the essential substance of political foundations; it becomes a contingent effect of the articulation of an ecology of discourses, technologies, media and affects. (my emphasis) ¹²³

In this way, Pottage resisted Schmitt’s pessimism by gesturing to the non-finite virtuality of legal techniques, imagined conceptually as dispositifs or ecological effects of multiple bodies converging and affecting one another in place and time. ¹²⁴ Whilst such ecologies might include earthbound bodies, like land, nothing endemic to the legal form as dispositif requires the land’s appropriation. Law as ecology can assume virtually any form that the bodies that give rise to it can produce; legal fictions are merely the creative products of bodily encounters in social situations without any transcendent limit.

Without burial, the common law would seem to move to a more fluid form of personal jurisdiction, expressed immanently through ecologies that appear in a given moment; this would entail a common law more casuistic and less concerned with inheritance of tradition and its theological pretensions towards imposing the sacred word of the law: order. ¹²⁵ Edward Mussawir and Connal Parsley have identified similarly casuistic forms of legal reasoning at the margins of the jurisprudential traditions; ¹²⁶ for example, Mussawir and Parsley have drawn from the creative fictions of Roman law to suggest how law can do away with the universal human ¹²⁷ and, separately, Mussawir sought inspiration from the expressive jurisprudence immanent to Deleuze’s social and political thought. ¹²⁸ Focusing upon the dispositifs or ecologies that give rise to persona, Mussawir and Parsley, ¹²⁹ among others, ¹³⁰ argued that the law has near limitless capacities to produce legal reality through its technical effects. These technical effects do not require the deliberate choice of individual actors; material conditions can give rise to passage of bodies through an abstracted, procedural space. ¹³¹

This casuistic or improvisational form opens the movements available to the common law, allowing new choreographies to develop from the incipiency of our biograms. The radicalisation of the biogram could be re-territorialised in a panoply of ways depending upon the network of bodies in a social situation. ¹³² There would be no prescribed content to what this jurisprudence could allow, at least to the extent this transgressive incipiency is fostered in these bodily ecologies; indeed, recognising the ‘false necessity’ of legal institutions can productively become the basis for utopian, jurisprudential and political thought. ¹³³ However, re-territorialisation in place would have to occur to complete movement and constitute the displacement necessary for the execution of core life functions (e.g. sustenance, sociality, defence). ¹³⁴ In other words, bodies must make a cut from which they can orient appetitively in space. The place-making function of movement would then not be lost or circumvented through the radicalisation of the biogram but would be transformed into something else: something other than a geojurisprudence of burial.

While legal techniques could take virtually any form, the incipiency of the biogram – and possible nomoi – are inextricable from the finiteness of the dispositifs the biogram forms part of. ¹³⁵ Returning to organ and tissue donation, molar structures (e.g. political, economic, cultural, biological, etc.) mediate the identity, availability and distribution of donors, tissues and recipients. For example, organ and tissues thought of as the best candidates for donation may be too scarce to overtake burial as a law-making practice, precluding the radicalising, jurisgenerative potential of these antinomian bodies and bodily parts. Even assuming the existence of a political economy capable of supplying an abundance of organs and tissue, the expansion of the donative regime would invariably exclude certain classes as donors or the recipients of transplants – such as exclusions based on disease, age, substance use, etc., as is done presently – delimiting a narrower set of participants in, and a qualitatively different set of movements that make up, the jurisprudential project. Accordingly, to the extent that the movements of bodies and bodily parts implicated in organ and tissue donation lawscape, these movements will still lead to a nomos territorialised someplace, at least for some duration and for someone. But as a jural community, a jurisprudence of antinomian bodies could be developed as a reflexive, ethico-political practice.

IV. Lawscaping Through Biograms

The Humboldt Broncos case study demonstrates that the corporeal indeterminacy reinforced by post-mortem organ and tissue donation, and the potential loss of heterotopia as a result, is incomplete. Post-mortem donation is, as an empirical matter, relatively infrequent, and to the extent to which it does occur it does so alongside burial or other ceremonies whose traditions contain antinomian tendencies. ¹³⁶ The common law’s lawscapes thereby continue to stage legal performances despite the existence of such anxieties or contradictions.

As Barr identified with missing and murdered individuals, potential ruptures to place-making practices can be resolved through spectacular displays of mourning for lives lost, righting our distinction between the living and dead, allowing us to continue to live with the common law. ¹³⁷ The antinomian effects potentially fostered by the Logan Boulet Effect were re-emplaced in hockey arenas across Canada and the United States, and tributary jerseys, allowing participants to shed the dead bodies and reinvigorate the image of the universal humans constitutive of the nation that survived them. In part, this might be a consequence of volume, in that the spectacle of mourning occupies greater space – and has a greater, affective pull – than the transgression presented by donative practices. These choreographies overtake deviations that threaten to rewrite the prescribed sequences. It may also be a process of sublimation. Public uptake in donation rates following the Humboldt Broncos bus crash may have, paradoxically, contributed to the spectacle of mourning in that it became a way of ‘“doing” national identity’: ¹³⁸ to register as an organ and tissue donor was honouring the memory of Logan Boulet, becoming materially and symbolically fused with the movements of mourning. The biograms of potential donors were thereby expressed through, and thus constrained by, the spatiotemporal orderings of mourning practices.

Just like Barr ¹³⁹ and Trabsky ¹⁴⁰ argued, the hockey arenas and jerseys reinforced a particular relation of jurisdiction to land, with the place-making of the common law working selectively for white colonial subjects. As Liam Kennedy, Derek Silva, Madelaine Coelho and William Cipolli III argue, mourning Humboldt Broncos relied upon images of rural, Western Canadians busing between towns for the purpose of play:

The team bus holds a special position in this narrative because of hockey’s central place in Canadian national identity. Indeed, bus travel is represented as an unavoidable part of minor league hockey. The hockey bus is said to be a part of all of us; a collective memory shared by Canadians who criss-cross the vast country as youth to play games and participate in local tournaments. As one of the National Hockey League’s premier players, Connor McDavid, remarked ‘everyone has been on that bus’. The implication here is that all Canadians play or have played hockey. The team bus, then, is one of the spaces where Canadians ‘do’ their national identity. ¹⁴¹ (citations removed)

However, these images do not include everyone. This was, as Kennedy and colleagues described, made apparent in Twitter threads that resisted the public spectacle and those that responded to such resistance. ¹⁴² For example, someone tweeted a comparison between the ‘we are all Broncos’ discourse, which loudly proclaimed collective grief, to the relative stillness of this same public in the wake of suicides among Indigenous youth on Indian reserves. ¹⁴³ This individual was the object of vitriol online as a result, which Kennedy and colleagues attributed to the ‘symbolic [representation of this as] something bigger, more important than, discussions of patriarchy, misogyny, or racism that effect Canadian society’. ¹⁴⁴ These tributary spectacles inscribed a racialised body – specifically a hypervisibilised white body – in place, in contrast to Indigenous youth whose suicides are dissimulated and forgotten and not mourned except limitedly in select institutional contexts or among fringe communities. Similarly, the practices of mourning expressed here can be contrasted with the lack of mourning for missing and murdered Indigenous women and children, whose deaths are not viewed as mattering to the propagation of the common law.

It seems clear then that the Logan Boulet Effect did not rupture and substitute for the geojurisprudence of the common law’s lawscape; instead, the appropriative relation of jurisdiction to land was preserved in the public spectacle of mourning. Mourning the deaths of white, teenage hockey players, but not the contemporaneous deaths of Indigenous children, reflects the unending curtain call that sustains Canada’s jurisdiction over Turtle Island; an ongoing, spatiolegal project that emplaces and orders white Canadians’ lawful relations with Indigenous peoples according to colonial choreographies of terra nullius. Further, the centrality of whiteness to this lawscape is not only conjured up in the varsity setting of this mourning (e.g. NHL arenas, community ice rinks and jerseys), sublated in popular imaginaries to Canadian heritage. The whiteness of the lawscape was also suggested in the consequences for the lorry driver, whose social death as an incarcerated Indian immigrant would require his deportation.

However, that should not be taken to prove that the antinomian incipiency of donated organs and tissue was ineffectual. Whilst the lawscape formed in the wake of their transgression may appear unchanged, this could be a consequence of the lawscape’s atmospheric qualities, which not only dissimulate the legal markers of that performance space but can also dissimulate its transformations. It may be years before we notice these slight changes, before the ways in which these transformations matter for legal action become appreciable to sensation. Relatedly, it can also be said that, even if antinomian bodies do not potentiate a fully radical articulation of jurisdiction, which can overtake what staged legal performance before, these bodies should always lawscape – in that they should always potentiate new lawscapes – as bodies respond to and suture disruptions to legal order. It is in this sense that rituals that recognise the donor, such as marching the donor’s ‘gift of life’ down the hallway to the transplant recipient’s operating table, might not upend the relation of jurisdiction to land, but this intercorporeality – practiced as a jurisprudential project – may mediate alternate ways of relating and, accordingly, new jurisdictional forms.

But I must also acknowledge that the metaphor of dance I have pursued here in aid of framing bodies – and bodily parts – as capable of lawscaping has not been systematically developed in relation to other anthropological forms, like ritual. Concepts of dance and ritual are not necessarily coterminous or coextensive. ¹⁴⁵ Admittedly, my use of the metaphor might suggest a flattened, fleeting and extemporal form of law, exclusively technological, profane or secular given the ephemeras of dance. This image may fool me and the reader into thinking the potential jurisdictional consequences of organ and tissue donation are only a quantitative degree away, waiting to be unearthed through technological advances that proliferate corporeal indeterminacy and made available to the craftwork of jurisprudents. However, burial or other death rites are sedimented deep in the available archaeological record; burial or death rites have existed with humans since antiquity and have often found expression in the sacred or cosmological. ¹⁴⁶ Furthermore, death is inextricable from the personal and familial effects underlying human attachment, experience of loss and comprehension of death. ¹⁴⁷ As Yan Thomas has shown, these sacred, cosmological and personal effects are entangled with the legal form as technique; ¹⁴⁸ therefore, it can be said that the perspiratory imprint of law is thick with anthropological meaning that might seep into and structure law’s jurisdiction and the incipiency of antinomian bodies who produce it.

There is also a jouissance to dance that may not accord with our initial encounter with death. Giorgio Agamben, in his lectures on language and death, suggested that death is marked by an immaterial absence, a lack or negation, from which the choreographies of life find their articulation, meaning and purpose; but this infinite, unknowable and absorbing death is set apart ontologically from, even if it exists in some necessary relation to, the vitality – namely the voice – of life. ¹⁴⁹ For Agamben, it is through our encounters with and anticipation of death that human voice finds its mediation, as the negation of the negation of being presented in death; a sort of double negation productive of experience, including poetry and philosophy. ¹⁵⁰ He states:

The fact that the originary articulation of language can take place only in a double negativity [in relation with death] signifies that language is and is not the voice of man. If language were immediately the voice of man, as braying is the voice of the ass and chirping the voice of the cicada, man could not be-the-there or take-the-this; that is, he could never experience the taking place of language or the disclosure of being. ¹⁵¹

By enfolding the bodies and bodily parts through the metaphor of dance, it may be argued that I have obscured a necessary break from such jouissance; from the warmth and stickiness of our desires and pleasures; from the perspiratory imprint of law, which takes place in the ruptures of death in some mortuary interregnum. The nothingness of, speechlessness in and annihilation with death then necessarily antecedes jouissance, so that these ruptures may fatally undermine the radical, jurisgenerative potential I have located in the ecology of bodies, organs and tissues at play in post-mortem donation. Alternatively, death – and the solemn rituals we form in encounter with it – are molar structures with immense, yet always incomplete, choreographic pulls incorporated in the legal secretions of bodies’ biograms, affective of but unable to stem the potential of other nomoi. Regardless, I do not think it follows that the lawscaping movements of bodies stop in the event of death, but rather for some duration those movements may break from the flow and rhythms to which the metaphor of dance most appositely refers or dance does not necessarily require jouissance to exist. Unfortunately, these theoretical threads must remain frayed for the time being until future sociolegal and jurisprudential work can be done; but that work must, in attending to antinomian bodies described above and the nomoi they might produce, be explored in a manner sensitive to sacred, cosmological and personal effects, as well as the place of death, which undoubtedly perfuse law’s perspiratory form.

V. Revisiting A Theme: Overture of Law’s Bodies

This performance shall conclude, briefly, by recalling the intellectual traditions that choreographed my thought as I wrote, hopefully in step with, Olivia Barr. By arguing that antinomian bodies lawscape through movement, I inherited the insights of Pierre Legendre who, in his psychoanalysis of law’s unconscious and aesthetic forms, developed a metaphor of dance to describe the movements constitutive of law. ¹⁵² In an essay titled, The Dance of Law, Legendre argued that law was expressed through the movements, gestures and feelings of human bodies. ¹⁵³ Bodies were transformed through law’s images – the productive fictions beyond the texts of law – and these images were products of aesthetic projects operating on, and through, the human body. Although Legendre principally argued that legal orders transformed the human body, he gestured to a mutually constitutive relation when he described the imperative of Western law to solemnise bodies; other, particularly expressive forms of dance, of movement, of aestheses were contained by disciplining the body according to law’s hidden images. These alternate institutions of movement threatened to transgress law’s aestheses, potentiating other legal performances; for this reason, law’s choreographies sought to inscribe an ‘irreal’ body as the ‘living emblems’ that could serve as law’s origin and condition law’s reproduction. ¹⁵⁴ Legendre sought to specify the images affecting these movements through a double reading of law’s textual and aesthetic expressions.

I also inherited Peter Goodrich’s observations that laws’ ‘spectral geographies [implied] a particular legal conception of persona and personality’, which the common law adapted in its figuration as an inheritable, oral tradition alive in the present. ¹⁵⁵ This oral tradition was passed on through successive generations of legal actors in liturgical places, such as in courtrooms, where textual and aesthetic practices produced the common law’s image of an ‘immemorial law’ that could be fused with territory. ¹⁵⁶ Owing to the spectral character of liturgical place, the jurisdiction of the common law was itinerant, allowing this mnemonic tradition to be invoked across material space:

The relation between the image of the textual and the unwritten discourse which surrounds [the common law] ensures that no text can ever be understood as the simple or ‘closed’ representation of its content, its signified. The tradition is one of memory and even where memory simply recollects (invents) prior practice as authority, it does so through an act of recollection or actus memorandi whose function, even according to legal textbook writer, is explicitly that of ‘representing the image of things forepassed in the same manner as if they were now actually and really present’. ¹⁵⁷

Like Legendre, with whom Goodrich was a frequent interlocutor, Goodrich drew from an approach to law that favoured a humanist tradition to law and jurisprudence, which could not account for any affective relation of non-human bodies to legal meaning. Through Andreas Philippopoulos-Mihalopoulos’ lawscape ¹⁵⁸ and Erin Manning’s biogram, ¹⁵⁹ I have tried to cast away from humanist traditions to account for how bodies, as well as bodily parts, become part of the law; to float alongside jurisprudence ‘like water in water’ ¹⁶⁰ and see how the common law might express itself otherwise. In particular, the concept of the biogram ¹⁶¹ – especially as it is deployed through the material metaphor ¹⁶² of dance and performance – allows the jurisprudent to think through movements that constitute the lawful in the lawscape. ¹⁶³ Instead of focusing upon one’s displacement in space, the biogram opens the jurisprudent to the lawful as the consequence of a dispersion of affective intensities that converge upon and the shape choreographies of bodies. In particular, it allows the jurisprudent to push beyond walking as a jurisdictional technique, as described by Barr, ¹⁶⁴ and attend to the non-finite expressions of movement that can alternately mediate productions of the lawful, without having to prioritise bodies that assume an anthropoid form.

Here, I have relied on the biogram to address two legal productions undergirding the common law’s lawscape as it relates to the institutions of burial ¹⁶⁵ and mourning: ¹⁶⁶ the indivisibility of land from techniques of jurisdiction, and the insistence upon a universal human severable from their remains. From these observations I have attempted to articulate a jurisprudence of the antinomian, having regard to the legal secretions of bodies’ biograms, which should account for the complex movements through which bodies are constitutive of the lawful. Recognising this allows us to close the curtain and revisit the overture with which this performance began: our joints rotate and lock, limbs splay and bend and flesh resists and enjoins the bodies of others. Law and legal institutions take shape from the profusion of bodily encounters that, with regularity of motion, potentiate future movements of these same bodies and others that come in contact with the lawscape’s conductive surface. The biogram allows the jurisprudent to parse the legal totality produced from these movements; it can account for how the striations and smoothness of space that stage legal performances take form. It is through the biogram that I can speculate that post-mortem organ and tissue donation might potentiate new lawscapes. In other words, if the lawful treatment of the dead body is cleaved from the place-making practice of burial for the common law, the dead are likely to potentiate alternative nomoi.