La acción de interdicto de obra peligrosa en materia ambiental

I carefully guard against making the law. Rather, I concern myself with determining problems, unleashing them, revealing them within the framework of such complexity as to shut the mouths of prophets and legislators: all those who speak for others and above others. It is at that moment that the complexity of the problem will be able to appear in its connection with people’s lives; and consequently, the legitimacy of a common enterprise will be able to appear through concrete questions, difficult cases, revolutionary movements, reflections, and evidence (Foucault, 1978, p.159).

Introduction

In this chapter, the law is examined in relation to the ways in which legal discourses are framed around cases of parental resistance to the medical treatment of their children and the ways that resisting parents are held liable before the law. The chapter begins with an exploration of the role of the law in cases of parental resistance, and provides an overview of current legal theory and processes in New Zealand; it concentrates on legal discourses within judicial sources, such as judges, lawyers, and the police. In particular, these discourses are analysed as they relate to medical discourses because the two fields are connected by their links to state power and control, and by their combined uses of knowledge as power. To further illustrate the responses of the law in regard to ‘errant’ parents, legal particulars from the five cases previously described in the first chapter are included, and additional cases are noted as required in support of the discussion. In this way, some of the ideas concerning the nature of resistive actions within hegemonic discourses and practices that were outlined in the previous chapter are drawn out even further.

To assist in the discussion on the analytical elements of legal discourses, the chapter includes selected ideas from Bourdieu (1977a, 1984, 1991) and Foucault (1972, 1975, 1977, 1979); it also contains key aspects of an analytical frame taken from Stychin’s work on a critique of modern legal practices and their effect on a minority group (1995). Stychin’s (1995) analysis67 of the discursive elements and resistance towards homosexuality in law, with its frequent references to the social constructionist view of social identity and structured dualities lends itself to a similar analysis and deconstruction of the law’s position regarding ‘radically

67 _{Stychin’s analysis is elaborated upon through the use of discursive texts that seek to ground it in the concrete and}

situated experiences of political agents. This is necessary to articulate how particular subjects such as judges, lawyers and others take advantage of certain inconsistencies in legal discourse to effect change as they require it.

resisting parents.’ Furthermore, his elaboration of the pitfalls in the legal representation of artistic and pornographic representations that misrepresent marginalised groups in society and the subsequent problematisation of identity offer significant analytical weight to the debate. It will be argued that such representations are not far removed from representations of parental resistance; i.e. the view that individual identity is partial, contingent, and open to reconfiguration, but at the same time serves as the basis for assertions of collective identities (such as resisting parents) by particular groups (such as lawyers, judges and physicians) within society. Stychin’s argument that the tension between deconstruction and assertion of identity is irresolvable and best understood as a continuing contestation is therefore employed to analyse resisting parents.

The key arguments in this chapter are divided into three main discursive elements. In the first, which deals with parental identity and behaviours, it is maintained that parents are legally constructed in ways that are of benefit to the state but not necessarily for any parents who do not readily fit within (changing) legal norms. The notion of individualism and freedom of choice within society is therefore contentious. It is shown that in law, parents do not ‘own their own children’; instead they are guardians of their children until they reach an age where they too may become independent adults. It will also be argued that ‘legal truths’ are constructs shaped by social convention, and therefore the role of parents in society is highly debatable and constantly changing. When this role is legally examined because of parental resistance to medical treatment (and usually because a child has died because of it), there are further inconsistencies, not least of which being the legal response to the ascribed parental role of provider of the necessaries of life. Secondly, it is maintained that the law seeks to regulate parental behaviour through the use of normalising judgements. Such judgements are based upon inconsistencies, indeterminacy and incoherence, and sometimes contradictory variations that have much to do with legal interpretations of parental culture, but far less to do with anything resembling ‘absolute law’ or ‘strict rationality’. In the three main variations of legal responses to parental resistance, it will be shown that parental resistance to medical propositions for treatment alone attracted a largely punitive legal response, even when in one case (Baby L) the resistance to extending the life of the child through continuing treatment came from medical rather than parental sources. Thirdly, the connection between state and medicine is extended further when the law seeks to arbitrate and delimit parental behaviour in a binary fashion noted as ‘ordinary v strange’. This intervention reflects both medicine and society’s propensity for separating certain behaviours into binary elements of guilt or innocence, good and bad, acceptable and non-acceptable. Such oppositions thereby make it easier to regulate behaviours in society, and at the same time to reinforce governmentality through cultural devices such as the use of experts, authorities, judges and lawyers.