Meet the Book Author: Death: New Trajectories of Law

Marc Trabsky, La Trobe University

In our Meet the Book Author Series, the Journal of Law and Society and the Centre of Law and Society provide first-hand accounts from authors who have recently contributed notable socio-legal books to their respective fields. In this post, we hear from Marc Trabsky, whose new book Death: New Trajectories of Law was published in July 2023 with Routledge.

What is the book about?

My book examines how legal institutions reify the value of death in the twenty-first century. Its starting point is that bio-technological innovations have extended life to such an extent that death has become an epistemological problem for legal institutions. The book offers three case studies: legal definitions of death, legal technologies for registering a death, and the legal status of the corpse. First, it aims to show how doctrinal approaches to understanding these case studies are unable to account for how legal institutions recognise the value of death in the world. In other words, I argue for a socio-legal perspective – an interdisciplinary approach – to theorising how death becomes in law subject to the governing logic of economisation.

Second, the book aims to develop conceptual tools for analysing how law defines the moment of death, how law shapes what kind of deaths count, and how law facilitates the recycling of cadaveric tissue. I mobilise the concept of thanatopolitics, which I contend is quotidian in its distribution throughout a population, to comprehend how legal institutions ordinarily allow individuals to die. Unlike necro-politicsthanatopolitics is not the antithesis of bio-politics, but the continuity of its techniques in another direction of life. I also broaden my conceptualisation of law by categorising legal institutions as normalising insofar as they distribute law-making in more diverse forms, include non-legal claims to knowledge in their epistemologies, and anchor legal technologies in governmental practices.

Why did I write it?

I commenced the book at the beginning of 2020, and at that stage, the project was quite different from what eventuated. The direction of the book changed dramatically during the writing process, first due to my experiences of surviving a global pandemic, and second due to witnessing the sudden death of a family member and the suicide of a close friend.

First, I became obsessed, while in lockdown, with how to understand a collective fixation, from governments to individuals, with bureaucratic procedures for ‘counting the dead’. While I was familiar with the history of death registration – since the nineteenth century governments have been in the business of collating, monitoring, and manipulating patterns of death in different segments of the population – I found myself bewildered in late 2020 with the problem of how to understand the way enumerating the dead, particularly in the Global North, became seemingly more acute, urgent, and explicit. Moreover, the economisation of counting – that is, the way arguments about ‘opening the economy’ became coupled with flagrant calls that every population has a normal amount of death – completely changed the orientation of the book.

Second, my experiences of bereavement, particularly during the global pandemic, led me to theorise how legal institutions in everyday life become complicit with governments in letting individuals die. In short, I was concerned about all of the deaths that went unremarked during the pandemic, and yet were consequences of cost-benefit calculations about the allocation and rationing of healthcare resources. The question of how legal institutions ordinarily allow death, which may include, for example, questions of economic rationality, became incredibly personal for me. The mass deaths we collectively witnessed during the global pandemic, but also the more intimate deaths that I experienced during the writing process, both drove me to compose the book, while haunting its completion.

How did I go about doing this research? 

The research for the book began with the case studies. The hardest chapter to write was ‘Counting the Dead’, because I was witnessing the subject matter of the chapter as I was writing it. I had a large file of newspaper articles that I collected in 2020 and 2021 that served as a source of inspiration for writing the chapter. However, the research was overwhelming, both in the sheer number of articles written about the pandemic, but also the length to which commentators were willing to write so candidly about deaths of the other. Numerous journalists, academics and policymakers pointed out how many deaths hadn’t been counted, how many deaths were overcounted, and how many people would die in subsequent years from other, but related, causes. 

The second chapter on the ‘Economisation of Death’ was also difficult to write because it concerned an aspect of living and dying that we seldom want to discuss. The idea that decisions about who should live and who should die are contingent on the question of economic rationality is distressing, but the history I wrote about was important to expose. Much has been written about the history of organ donation – I conducted archival research online – but the approach I adopted by mobilising the concept of economisation was novel. The last chapter on ‘Recycling the Corpse’ on the other hand was the easiest to write because it centred on a well-documented case study from The International Consortium of Investigative Journalists on Skin & Bone (2012). The report is harrowing in its exposure of the rampant commodification of cadavers, but it has surprisingly not been extensively analysed in legal scholarship. The central aim with all of this research is to offer a ‘new trajectory in law’ by rethinking how death can be conceptualised from a socio-legal perspective.