The Radical Philosophy of Rights

Costas Douzinas

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781317687276
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

After 1989 human rights have expanded into a vernacular touching every aspect of social life. They are seen as the key concept in morals and politics and a main tool for forging individual and collective identities. They are the ideology after 'the end of ideologies' – the only values left after 'the end of history'. The response of the left to the rights revolution has been muted and unsure. Classical Marxist critiques of (natural) rights have made the left justly suspicious, and this is still the case today. Elaborating and addressing a series of foundational paradoxes of rights, this book – the third in Costas Douzinas's human rights trilogy, following The End of Human Rights and Human Rights and Empire – provides a long-overdue re-evaluation of the history and political uses of rights for the left.

The book examines the history and philosophy of the (legal) person, the subject, the human and dignity from classical Rome to postmodern Brussels. It traces the gradual abandonment of right, virtue and the common good for individual rights and self-interest. The limited and distorted conception of rights of liberal jurisprudence is contrasted with an alternative that sees rights as a relation involved in the struggle for recognition and an everyday utopia. The right to resistance and revolution, prohibited but regularly returning like the repressed, rescues law from sclerosis and presents a case study of the paradoxical nature of rights. Finally, the book offers a brief examination of law's encounter with radical politics informed by the author's strange experience as an 'accidental' politician in the first radical left government in Europe. The book's radical concept of legal philosophy and public law will be of considerable value to legal theorists, political philosophers and anyone with an interest in thinking and acting in ways that go beyond the limits of liberal, and neoliberal, ideology.

Part I
Law, persons, rights

Prologue

Are women and animals persons?

Are women persons? Are animals persons? Are women animals? Such questions have repeatedly occupied the law. Legal personality has not been exclusively bestowed on humans. As Yan Thomas has shown, the natural human being was given legal personality relatively late and only after the creation of corporate personality which acted as a model for the development.¹ The discrepancy has survived. Slaves have been excluded from humanity throughout history. Pigs, rats, leeches and insects were accused of crimes in the Middle Ages, formally summoned to courts of law, tried, convicted and punished.² Animals arraigned before courts included ‘asses, beetles, bloodsuckers, bulls, caterpillars, chickens, cock chafers, cows, dogs, dolphins, eels, field mice, flies, goats, grasshoppers, horses, locusts, mice, moles, pigeons, pigs, rats, serpents, sheep, slugs, snails, termites, weevils, wolves, worms, and miscellaneous vermin’.³ The punishments varied from execution by burning at the stake, and alive, to strangling and imprisonment for lighter offences. In 1522, rats were acquitted in Autun of the felony of eating and wantonly destroying the barley crops. An idol and a God have been given rights and duties;⁴ Christopher Stone ignited a major debate arguing that trees, parks and other natural objects too should be given rights.⁵ Greenbelt zones, it is argued, should become legal subjects with the power to go to court, through representatives, to protect the ecosystem from intrusion.⁶ Recently a river, a waterfall and the environment have been recognized in some jurisdictions as persons with limited rights. Artificial intelligence, automated electronic and vending machines have been given some legal rights.⁷

1 Yan Thomas, ‘Le sujet de droit, la personne et la nature. Sur la critique contemporaine du sujet de droit’ (1998) 100(3) Le Débat 85.

2 Jean Vartier, Les procès des animaux du Moyen Age à nos jours (Hachette 1970); Luc Ferry, The New Ecological Order (trans. Carol Volk, University of Chicago Press 1992) ix–xvi.

3 Gunther Teubner, ‘Rights of Non-humans? Electronic Agents and Animals as New Actors in Politics and Law’ (2006) 33(4) Journal of Law and Society 497, 498.

4 P.W. Duff, ‘The Personality of an Idol’ (1927) 3(1) Cambridge Law Journal 42.

5 Christopher Stone, ‘Should Trees Have Standing? Towards Legal Rights for Natural Objects’ (1972) 45 Southern California Law Review 450.

6 Marie-Angèle Hermitte, ‘Le concept de diversité biologique et la création d’un status de la nature’ in L’homme, la nature, le droit (Bourgeois 1988).

7 David J. Calverley, ‘Legal Rights for Machines Some Fundamental Concepts’ in Michael Anderson and Susan Leigh Anderson (eds), Machine Ethics (Cambridge University Press 2011).

The common law discovered that persons have gender as late as 1929. Almost a hundred years later, in April 2015, the Manhattan Supreme Court granted a writ of habeas corpus to two chimpanzees being held at Stony Brook University for medical experimentation.⁸ Women were given personhood in the early twentieth century, apes are on the way in the early twenty-first. The artificial nature of legal personhood denied to some humans but given to many non-humans has been fully confirmed in the post-modern world.

8 Although within a day the judge struck the writ of habeas corpus from the order. See Alan Yuhas, ‘Chimpanzees granted petition to hear “legal persons’ status in court’ Guardian (London 22 April 2015) <https://www.theguardian.com/world/2015/apr/21/chimpanzees-granted-legal-persons-status-unlawful-imprisonment> accessed 14 August 2018.

In April 1872, ‘An Earnest Englishwoman’ published a letter in The Times entitled ‘Are Women Animals?’ Addressing British Parliamentarians, it read:

Whether women are the equals of men has been endlessly debated; whether they have souls has been a moot point; but can it be too much to ask for a definite acknowledgment that at least they are animals? ... Many hon. members may object to the proposed Bill enacting that, in statutes respecting the suffrage, ‘whenever words occur which import the masculine gender they shall be held to include women’; but could any object to the insertion of a clause in another Act that ‘whenever the word “animal’ occurs it shall be held to include women’?; Suffer me, through your columns, to appeal to our 650 representatives, and ask – IS not one among you then who will introduce such a motion? There could then be at least an equal interdict on wanton barbarity to cat, dog, or woman.⁹

9 Joanna Bourke, What it Means to Be Human (Virago 2012) 1.

The ‘Earnest Englishwoman’ was complaining about the status and treatment of women in the late nineteenth century. Women were treated in law as a ‘chattel’ by their fathers, husbands or guardians. Domestic rape and cruelty went unpunished, while the maltreatment of animals was commonly penalized. A similar treatment was meted out to women in the United States. Persons of colour were still slaves and could be treated as things to be bought and sold in many American jurisdictions. The infamous British Contagious Diseases Acts of the 1860s authorized the rounding-up of prostitutes and women judged to be promiscuous for mandatory venereal diseases testing and subsequent imprisonment. As Joanna Bourke drily comments, ‘the legislation treated women as a whole as nothing more than contagious animals, while at the same time they identified the real “mute creatures’ in class terms’.¹⁰ The legislation outraged women of all classes and led to the creation of a strong proto-feminist movement to which the Earnest Englishwoman probably belonged.

10 Ibid., 98.

In law, the late nineteenth and early twentieth centuries became known as the age of the ‘persons’ cases. Whenever the word ‘person’ appeared in a British statute it was taken to refer exclusively to men. The British Parliament repeatedly denied the franchise to women who could not be elected to public office. The suffrage movement had started but was not having much impact yet. The case of de Souza v. Cobden,¹¹ is instructive. Jane Cobden was elected to the London County Council under a statute, which ruled that a candidate should be ‘a fit person of full age’. Electoral legislation allowed challenges to the result within a year, after which point it was deemed valid. Cobden did not take her seat for a year in order to have her election validated. But once she took it and voted on a resolution she was prosecuted and convicted under a statute that made it a crime for ‘any person’ to act in office without being qualified. The Court of Appeal compared the two statutes and concluded that Cobden was a ‘person’ on some occasions, not on others. She was not a ‘person’ for the purpose of being elected to the Council; but she was a ‘person’ for the purposes of criminal law. By taking her seat and voting illegally she had committed a crime and was convicted.

11 1 QB 687 (AC 1891).

To the contemporary reader this was a perverse decision, and so it was. To be sure, the law will never shirk from a contradiction if it can help to keep the social order. It was not, however, perverse in its approach to legal personality. As we will argue, personhood is a bundle of obligations and rights given by the law and differing substantially from human to human. Refusing women political rights is discriminatory and morally wrong. But a legal person is what the law says, and law’s business has always been to differentiate and discriminate. The legal person and the human being behind it are two separate and distinct entities. Since women could not be equated to men, the Earnest Englishwoman was asking to be treated as an animal. The Society for the Prevention of Cruelty to Animals was founded in 1824 at a point where women were still considered the chattel of their fathers or husbands who could brutally punish them with minimal retribution.¹² Utilitarian principles of pleasure and suffering on the other hand had already created strong protections for animals, which should be ‘extended to all who need them in this country’.

12 Bourke, op.cit., Chapter 4.

But does a person have sex and gender? The common law discovered sex in 1929 in the case of Edwards v Canada (AG).¹³ Before Edwards, the word ‘person’ referred, in all important instances, exclusively to men. The case started when Emily Murphy, a feminist, put her name forward to Robert Boden, the Canadian Prime Minister, as a candidate for the Senate. Under the British North America Act 1867, s.24, the government could ‘summon qualified Persons to the Senate’. The PM refused to summon Ms Murphy because as a woman she was not a ‘person’. After a 500,000-strong petition backed Murphy, Boden stated that he could not appoint her because, according to a 1876 British common law ruling, ‘women are eligible for pains and penalties, but not rights and privileges’. At that point, the ‘Famous 5’ feminists – Henrietta Muir Edwards, Nellie McClung, Louise McKinney, Emily Murphy and Irene Parlby, asked the Supreme Court of Canada to rule on the matter.

13 Henrietta Muir Edwards and others v The Attorney General of Canada [1929] UKPC 86, [1930] AC 124 (18 October 1929), PC (on appeal from Canada).

The legal question was put succinctly: ‘Does the word “Persons” in section 24 of the British North America Act, 1867, include female persons?’¹⁴ The difference between the gendered human being and the abstract (legal) person could not be stated more strikingly. Before the mid-1800s, legal language distinguished between male and female persons and stated clearly the instances when the law applied to one sex only. However, at some point between 1822 and 1878, the law stopped referring to the two sexes expressly. The reference of the term ‘person’ exclusively to males was no longer spelt out. Under a general presumption in interpretation, the law applied to both sexes without the need for a specific mention. This was the reason that Canadian women formulated their question in gendered terms. The Canadian Supreme Court unanimously concluded that women were not persons. Women could not enter the British Parliament in 1876, the year the Constitution Act was passed in Westminster. Therefore, for the drafters of the 1867 Act, persons must have male sex for the purpose of holding political office.

14 Reference re meaning of the word ‘Persons’’ in s. 24 of British North America Act, [1928] SCR 276, 1928 CanLII 55 (SCC).

The ‘Famous 5’ persisted and appealed to the Privy Council in London. On 18 October 1929, the Council overturned the decision of the Supreme Court by deciding that the word ‘person’ did indeed include persons of the female gender. The term ‘qualified persons’ could be read broadly to include women. For the Council, the reversal was plain logic.

To those who ask why the word [‘person’] should include females, the obvious answer is why should it not … [T]heir Lordships have come to the conclusion that the word ‘persons’ in sec. 24 includes members both of the male and female sex and that, therefore, ... women are eligible to be summoned to and become members of the Senate of Canada.

In or about 1929, women were admitted to the status of personhood. What about animals? The great apes are biologically close to humans; chimpanzees share with us 98% of their DNA. The animal rights movement has had a number of successes recently. The Spanish Parliament gave limited rights to great apes in 2003. It is illegal to kill, torture, arbitrarily imprison or use apes for medical experimentation. Peter Singer and Paola Cavalieri, the directors of the Great Ape Project and main advocates of the law, have argued that apes are a ‘community of equals’ with humans.¹⁵ They feel fear and happiness, they use language and tools and remember the past. Spain’s Catholic bishops, on the other hand, attacked the law because it defies God, who placed humans above animals. One did not stop at the biblical story: equating animals with humans would lead to the legalization of ‘abortion, euthanasia and ethnic cleansing’.¹⁶

15 Paola Cavalieri and Peter Singer, The Great Ape Project: Equality Beyond Humanity (St Martin’s Griffin 1994).

16 Donald G. McNeil Jr, ‘When Human Rights Extend to Nonhumans’ New York Times (New York 13 July 2008) <https://www.nytimes.com/2008/07/13/weekinreview/13mcneil.html> accessed 14 August 2018.

Singer’s utilitarian strategy aims to create sympathy and care by drawing on the similarities between humans and apes. A second legal strategy utilizes the difference between legal personhood and the entity behind it. Steven Wise, an animal rights campaigner and the Director of the Nonhuman Rights Project, has been trying to turn apes into ‘nonhuman persons’ and extend this way basic legal protections. They have been trying to get a court to issue a writ of habeas corpus and examine the lawfulness of an animal’s incarceration in a lab or zoo. Their strategy is not to seek to equate apes with humans, but to obtain direct albeit partial legal personhood. Their hope is that if they succeed, apes will be entitled to legal protection and possible release from captivity. In 2014, Wise applied for habeas corpus in New York on behalf of Tommy, a privately owned chimpanzee.¹⁷ As ‘autonomous and self-determining’ beings, Wise argued, chimpanzees possess legal rights, which preclude Tommy’s captivity. Tommy should be compared to a human child who ‘can understand that he does not want to be imprisoned for his life in a cage’, but, unlike a human adult, cannot be held legally responsible for his actions.¹⁸ The judge noted that legal personhood comes with ‘responsibilit...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Introduction: life between university and parliament
• PART I Law, persons, rights
• PART II The paradoxes of rights
• PART III The right to resistance
• Bibliography
• Index