David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
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Cases involving attires, hairstyles, names, or manners of speaking have been increasingly attracting the attention of constitutional and socio-legal scholars. No longer viewed as marginal or esoteric, claims about the significance of a person's-self presentation are now recognized as testing the limits of basic constitutional principles. Employing an overarching perspective that analyzes appearance cases outside of their doctrinal context, I argue that the legal inquiry, which focuses on whether a plaintiff's appearance reflects his or her identity accurately and stably, is flawed, since it relies on unattainable conceptions of the nature of identity and the meaning created by appearance. Diverging from current legal scholarship, which treats appearance cases only in the context of minority rights, I suggest that appearance adjudication should shift its focus from inquiring about the extent to which the appearance is connected to its bearer's identity to inquiring about the significance of appearance to his or her personhood. This shift reflects the notion that the vulnerability and complexity of appearance are part of the universal human experience, and not just the plight of minorities. Such a normative shift will produce a more adequate legal treatment of claims regarding the personal and social significance of appearance. Developing an alternative theoretical framework, I propose understanding appearance as the poetics of personhood. Both in appearance and in poetry the medium is inherent to the meaning it creates, and thus both appearance and poetry are hard to rearticulate in categorical or non-figurative language. My approach can transform the legal discourse from considering identity in the abstract to accommodating the experiences, voices, and interactions of concrete, embodied individuals, who may not always be able to articulate a rational justification for their appearance, but are still certain of its central role in their personhood.
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