On the Discursive-Material Enactment of Criminal Violence: How Death and Injury Come to Matter to the Criminal Law1

Abstract

This article seeks to challenge the prevailing view that violence is legally actionable because human bodies are capable of experiencing pain, injury, and death. Drawing on literature in the area of new materialism, this article demonstrates how pain, injury, and death are not ontological properties of the flesh-and-bone body, but rather, they are the effects of how violence is made sense-able, knowable, as part of the criminal legal process. Here, I examine four of the materializing practices through which violence becomes sense-able to us: crime scene photography, forensic pathology, legal judgments, and bodily performance. If the effects of criminal violence can be traced to the discursive practices by which we observe, measure, think, and speak about bodies, it becomes much harder to sustain the view that human violence is exceptional because the human body is special.