MJourdain: Good Heavens! Then I have been speaking prose for more than forty years without knowing it. I couldn’t be more grateful to you for teaching me that...
Philosophy Master: But you must embroider it a bit.
M Jourdain: No, I tell you. I want nothing else in the note but just those words, but arranged in a smart and up-to-date way.
Let me hear the various ways in which they can be put, so that I can choose which I like best.[659]This chapter is about blood, pain and power: three preoccupations of contemporary and past law. It is not about Gladiator and Apocalypto, the Butlerian abject body[660] or a Foucauldian deconstruction of the “monstrous”[661] and consensual sado-masochism in the Spanner case.[662] Instead it looks at notions of cultural exceptionalism and the body in Australian law through two lenses: autopsies and blood transfusions. We draw on legal pragmatism in interrogating recent case law. We highlight questions about medico-legal authority and tensions in human rights, concluding that Australian courts and legislatures reconcile conflicting values using a framework that is practical and that accommodates but does not necessarily privilege “ethno-religious particularism”. That law embodies instance by instance accommodation of difference rather than a shift towards legal pluralism in which specific communities enjoy discrete legal systems within the same jurisdictions.
The aim in this chapter, which reflects ongoing research by the three authors,[663] is not to provide a detailed exegesis of specific judgments or to offer a comprehensive critique of how Australian law recognises (and selectively respects) conflicting cultural values. Instead the chapter examines areas of dispute — choices at the borders of law — in order to ask questions about authority, rights and difference.
The chapter has four parts. The first part provides an introduction to the concept of cultural exceptionalism and the philosophy used by the authors in considering legal snapshots. The second part looks at some recent Australian case law about autopsies, highlighting conflicting rationales and pointing to overseas legal frameworks as points of reference. The third part examines the relationship between principle and practice by looking at law regarding blood transfusions, in particular the refusal by members of the Jehovah’s Witnesses to receive transfusions. The final part offers conclusions, arguing that the snapshots indicate that lawmaking by Australian courts and legislatures is essentially pragmatic — a matter of workable compromises rather than a doctrinaire insistence on principle that denies deeply held beliefs and values.