Maternity as a Legal Fiction: Infanticide and Sir Walter Scott's The Heart of Midlothian

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Women's Rights Law Reporter


This article explores the complex reification and mythologizing of the feminine in law and literature, using Sir Walter Scott's influential historical novel, The Heart of Midlothian, to explicate the legal stories surrounding the category of "maternity." First, we will begin with Scott's legal background in order to examine how his legal expertise influences his novels. Second, we will examine the law of infanticide in Scotland and England during the time frame of the novel, focusing on the legal fiction of presumptive guilt underpinning the infanticide statute at issue. Third, we will explore the interrelated maternity narratives of the statute and the novel in light of Rene' Girard's work on "persecution texts" (i.e., documents legitimizing collective violence against a scapegoat figure). My conclusion is that Walter Scott's The Heart of Midlothian and the 1690 infanticide statute which fuels its plot activate a complex of tensions around the concept of maternity. The text's narrative structure mirrors the key element of the statute- concealment. Scott gives us depths and surfaces, interiors and exteriors. He conceals in order to reveal, hides in order that we may find. In particular, Scott reveals the statute's operation as a persecution text and critiques the scapegoat role into which unwed mothers are forced. But in critiquing an already obsolete statute and revealing the persecution of women underpinning that statute, the text itself also constructs another, hidden scapegoat- the murderous mother.

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Publication Date

Fall 1996