The Matter of Law: Reconsidering the Natural Law Tradition

This dissertation recovers several stories from earlier times about law’s relationship to embodiment, materiality, and nature. These stories range chronologically from Sophocles’ Antigone in the fifth-century BCE to Leopold von Sacher-Masoch’s Venus in Furs in the second half of the nineteenth-century, to contemporary inquiries into legal materialisms. Included are texts in the Western tradition of jurisprudence that deal with sometimes wide-ranging and diverse topics from modern social contract theory and the concept of political obligation to the phenomenon of animal trials, the classical Greek nomos—phusis debate, the medieval Scholastic concept of analogia entis, and contemporary discussions about law’s spatial dimension. An effort to illuminate how these stories collectively compose an important—if today often overlooked—strand of the natural law tradition connects all the chapters. This strand of natural law thinking engaged law as a material embodied practice. It offers another way of doing and thinking about law that emphasizes material bodies and their interests rather than some abstract subject of law and right. The dissertation argues that these stories from the natural law tradition—from regions and thinkers intimate with and integral to the West’s contemporary constellation—can still critically illuminate the matter of law in our world. Chapters One, Two, and Three recover and disclose an understanding of law and nature that I show is obscured today and yet has been effectively articulated in the past in a tradition of natural law. My interest in these “story” chapters is with what possibilities for law and nature we obscure when we tell ourselves stories about the loss of the natural law or the disintegration of natural law theory. Each of these chapters turns to a specific historical moment and text in the Western natural law tradition to reconsider its possibilities and ultimately pursue a “path not taken,” or a “minor literature” of natural law thought so to speak. The first chapter reveals three visions of law circulating in Sophocles’ Antigone: legal positivist, conventional natural law, and one that focuses on the rapport between Polynices’ corpse and the other characters of the play. This third vision of law offers an alternative reading of natural law as a material call rather than the unwritten imperatives or higher laws of the gods. The second chapter argues that for Saint Thomas Aquinas, natural law theory was never a moral theory, but a task of boundary drawing, care, and multiplication. Aquinas’s interest was with the historical and ongoing production of boundaries and limits between the natural and its others. Aquinas did not reduce nature and its other to a stable binary, but constantly explored its limits along a proliferating spectrum of natural, supernatural, artificial, and preternatural. The third chapter shows how Leopold von Sacher-Masoch’s famous sex and bondage novella Venus in Furs rethinks the concepts of contract and bond(age) at the very heart of legal positivism’s attempt to define itself in the terms of social contract theory. The novella tells an alternative story of what it means to contract, one that is not oriented toward securing the future and establishing “islands of predictability,” but towards being mindful—sometimes painfully mindful—of the present, of flesh contracting in the cold and under the whip, of hands literally con-tracted (or, drawn tight) to the bedpost with rope. The final chapter examines historical cases of nonhuman animal legal trials to show that they reveal a model of law that places human communities within nature rather than apart or outside it. I conclude by bringing the themes of law, nature, and materiality these stories from the natural law tradition disclose into conversation with contemporary new materialist discussions of nature