This issue of Law and Literature, entitled “Legal Bodies: Corpus/Persona/Communitas,” investigates the various ways that literary and artistic texts have interrogated the modes in which different fields of law have historically conceptualized the notion of “personhood.” The guiding assumption behind this issue is that personhood is not a (biologically) given, stable property of human beings that precedes their interaction with the law, but rather that the notion of personhood is assigned to selected “bodies” by discursive regimes, such as law, medicine, politics, religion, and education. The issue focuses on historical and current (re-)conceptualizations of the notion of personhood within the domain of law, as well as on the various ways that literature, art, and culture are the domains in which the implications and scope of personhood's legal, political, or medical conceptualizations can be articulated and thought through, and in which alternative understandings of personhood can be proposed.
Derived from phersu, the ancient Etruscan term for mask, Roman law adopted the term “persona” to distinguish holders of full civil rights from those who lacked such civil personhood: women, children, slaves, and foreigners. The term's origin in the theatre indicates that, for the Romans, personhood was not an inalienable property of human beings but was understood as something that was affixed to a natural body, attributing to it a public role and a legal position protected by a set of regulations. As Roberto Esposito recalls, the distinction between persons and non-persons grounds Roman law (and the European legal tradition that emerged out of Roman law), but is also a product of the legal institution.Footnote1 Law, to use Giorgio Agamben's metaphor, functions as an “anthropological machine,” an apparatus that in assigning personhood to various bodies creates differences between “legal bodies” and “mere biological bodies.”Footnote2
This abstract machine, however, does not function independently from the cultural and socio-political sphere that surrounds it. The legitimacy of the legal distinctions between persons and non-persons relies on culturally shared ideas about what it means to be “a person.” Yet hegemonic assumptions about which particular bodies have a “natural” right to legal protection are continually challenged by counterhegemonic forces – cultural, social, and political currents that seek to claim personhood for different sets of bodies, hoping to widen or restrict personhood's reach. Personhood, therefore, can never be a “clean” legal concept. Its abstract, formal meaning is inevitably shot through with conflicting ideas, fantasies, traces of stories, memories of its former uses as well utopian aspirations for its future applications. These countervailing elements “fill in” the concept and give it color, imbuing it with connotations and meanings that at certain times lubricate the machinery of law, and at other times bring it to a grinding halt.
We therefore propose that the notion of personhood, despite the quasi-natural status it has acquired in legal practice, does not refer to a stable concept, but should instead be understood as an index that points to a series of conflicting ideas and ongoing debates. The debate about personhood forms the terrain where the legal field intersects with the political, social, and cultural sphere. Plays, books, films, and other cultural expressions continually challenge what is debated in the courtroom; and sometimes counter-tribunals are staged within these media, which seek to supplement what takes place in the “proper” legal setting. Drawing on the theatrical roots of the term “persona,” these challenges to the more limited legal conception of personhood often assume the form of a dramatization: a scenario in which non-persons (animals, the brain-dead, intelligent machines) appear to us as “persons,” with liabilities, claims, and grievances – persons that call on us or seem to invite our judgments.
Although legal definitions of personhood have rarely gone unchallenged, as the history of the struggles against slavery and for women's and workers’ rights demonstrates, there have been, in recent decades, a series of developments that have transformed the issue of personhood into a matter that is not only theoretically interesting but also politically urgent. Debates encompassing considerations of animal rights, the legal implications of drone warfare, and the claims made by the right-to-die movement pose challenges to received notions of personhood, responsibility, and agency. These debates are sometimes articulated in carefully argued legal and political terms, but at other times they take the shape of declarations of rights or of tentative philosophical or artistic investigations, occurring within the walls of the academy or the art gallery and explored on the fringes of popular culture. This issue of Law and Literature seeks to highlight some of these debates and to tease out their implications for legal scholarship.
The issue originated from a three-day conference hosted by Leiden University in May 2014, which gathered a group of ninety scholars from several disciplines and in different stages of their careers, as well as various artists, activists, and performers, to reflect on the manifold ways that the question of personhood could be raised. By juxtaposing legal and political debates to analyses of culture and of specific artistic expressions, we aimed to understand the debate about personhood not as comprising a series of isolated instances, but rather as part of a continuum of reflections that range from the technical, precise, and philosophical to the intuitive, experimental, ludic, and even downright silly.
In keeping with the spirit of the conference, the present issue now broaches the question of personhood on three different levels: those of the body (the corpus), the individual (persona), and the communal (communitas). The six essays included here were written by scholars from several fields (the humanities, history, law) and bear the traces of different disciplinary traditions and modes of argumentation. Yet they are all propelled by the idea that an understanding of the formal legal notion of personhood needs to be informed by an analysis of our changing cultural ideas of the general notion of the person.
In the opening article, Jeanne Gaakeer, both a judge and a legal scholar, offers a genealogy of what she calls the “fiction” of legal and corporate personhood. Finding her inspiration in James Boyd White's “constitutive rhetoric,” which underlines how literary and rhetorical forms shape legal practice, Gaakeer highlights how the theatrical origin of personhood as a term determined its functioning within Roman law, then traces the development of this conception in relation to corporate bodies, noting that from the 17th century onwards, legal personhood was linked not only to bodies but also to machines. Legal persons, Gaakeer argues, are always artificial, the product of law's capacity to create new realities that, in turn, demand new disciplinary modes of dealing with them. Gaakeer goes on to consider how legal corporate personhood was practically dealt with in public and private law in the United States over the course of the 19th century. On the basis of several specific cases she demonstrates that legal corporate personhood was intrinsically connected to the issue of property and the capacity of bodies (individual and collective) to sign contracts. Still, as Gaakeer puts it, “contract and the body, either of the natural person or the corporation, were not quiet spots,” precisely because they repeatedly raised the question of which bodies – natural as well as legal – were considered capable of signing such contracts.
Turning to our contemporary situation, Gaakeer finds that we encounter more situations in which “the legal subject and the human, natural person […] no longer necessarily coincide.” This raises the question whether the unitary concept of legal personhood, which still dominates legal and political debates, should not be replaced by an altogether different understanding. Gaakeer proposes that Paul Ricoeur's narrative approach to the question of personhood, and in particular his distinction between ipse and idem, may be a means to rethink our notion of the person that avoids some of the possible pitfalls of legal discourse. As Gaakeer states: “the ‘narrative identity’ approach is a tool to bridge gaps between the idem and ipse,” for “while the idem stands for the more immutable kind of identity, its connection to the ipse's changing identity throughout a life time takes place by means of narrative, thus connecting (biological) sameness to selfhood.” This approach, Gaakeer holds, emphasizes a plural situation, in which there is “to each his own mask.”
The relation shared by body, selfhood, and legal personhood is also central to the contribution of Yasco Horsman. Taking, like Gaakeer, Hannah Arendt's remarks on the theatrical origin of the Roman notion of persona as his point of departure, Horsman focuses on the role of the voice in Arendt's understanding of personhood. Arendt highlights the voice's bodily nature when she states that theatrical masks have a dual function: they affix personae to bodies, hiding their unique features, but a mask also has a hole, which lets the voice of the speaker sound through it. Horsman then raises the question whether the voice, in its material, basic, and “stupid” (in the etymological sense of both stunning and foolish) materiality, has the capacity to utter a “cry for justice” in a mode that differs from what is available to the legal person. He discusses this question in relation to the debates about animal rights, and to two cultural texts that revolve around the possibility of animal personhood: the film Planet of the Apes (1968) and Franz Kafka's story “A Report to an Academy” (1917). Each text is about a “body” that seeks to claim personhood in front of a tribunal made up of members of another species. In Planet of the Apes, a film that upon its release was read as an allegory of racial relations in the United States, a human being stranded on a planet run by primates seeks to defend the legal standing of a group of humanoids kept in slavery by the apes, by recognizing in their speechless voices a call for justice. According to Horsman, the pivotal question on which the film turns is
whether the humanoid growl [of the non-person] can be construed as an apostrophe, a form of address, or whether […] recognizing these growls as calls for justice relies on the figure of prosopopeia, […] projecting a speaking voice onto something that ultimately remains without language.
A similar question, Horsman argues, is at the heart of Kafka's story, which takes the form of an ape's fictional address to an audience of human beings. Horsman suggests that the story offers a subtle parody of Martin Buber's ideas on personhood and responsibility as the products of a dialogical “I–Thou” relation. Kafka's story highlights how Buber's ideas presuppose a shared language, raising the question whether a pre-linguistic vocal sound can precede such a scene. Horsman then proceeds to argue that most participants in contemporary animal rights debates follow a Buberian logic in their approach to animals, often evoking scenes of human–animal contact in which animals are depicted as truly addressing human beings. Although cultural representations of such scenes of interspecies contact can easily be dismissed as silly, they carry a considerable dose of pathos and are a recurring topos in the discourse of animal rights activism. Turning to J. M. Coetzee's Elizabeth Costello: Eight Lessons (2003), Horsman suggests that the “silliness” of such scenes of interspecies contact may be an inherent risk that haunts every “serious” discourse that seeks to render the personhood of animals. He then returns to Arendt's thesis that personhood as derived from the ancient Roman conception is the key term in our legal and political discourses, the “fundamental chord,” as she puts it, which “sounds through the histories of mankind.” Within this chord, Horsman holds, “there resounds something different: a voice, an animal roar, a bray or a growl, which may, perhaps, simply be the resonating of the body, of that which the “person” had separated itself from in order to acquire personhood,” yet which does seem to make a particular call on us, once we let ourselves be touched by it. This call, Horsman holds, needs to be stifled in the court of law, whose functioning relies on a distinction between the person and the non-person. It therefore needs the “courts” of art and culture to be made audible.
How we are affected via (non-)personhood, and how personhood may be an issue of affect rather than of epistemological distinctions, are concerns central to the contribution by Greta Olson. Her main question is whether we should reconsider the very field of literature and law in terms of its ability to address issues of justice in terms of affect. Consideration of this question is followed by a discussion of the more specific question of how such a reconsideration would relate to the debate on personhood. Here Olson first discusses the notion of affect in its formulation by Spinoza and traces it, via Bergson, to Deleuze and Massumi. She then argues that the focus on affect implies a shift away from the predominantly narrative modes that define legal encounters, and indicates more generally a movement away from the representational and symbolic modes (à la Lacan or Legendre) that have defined the legal scene in distinguishing a human person from all other beings and things. In this context, Olson notes that using affect “as an umbrella term to describe assemblages of nodes, waves, materials, and intensities, has replaced Foucauldian ‘discourse’ – the disciplining and inscription of bodies through privileged narratives and accompanying fields of knowledge – as the leading term in current critical commentary.”
Olson then contrasts this approach to that of the Anglo-Saxon tradition of legal studies that has focused on affect by understanding law as revolving around issues of suffering and inequality, or around injuries that affect people. She sees a sharp distinction between the work of scholars such as Martha Nussbaum, Theodore Ziolkowski, Jeanne Gaakeer, and, before them, James Boyd White, who rely on a “narratively constructed personhood which implicitly assumes an essential, constant sense of self,” and the (post-)humanistic project that has been undertaken by scholars studying affect. This leads her to consider current theories of affect and embodiedness, notably in Christoph Menke's and Panu Minkkinen's work, in order to tease out their implications for our understanding of justice and responsibility. New theories of affect, Olson holds, invite us to rethink the nature of the “body” that suffers an injustice in terms that are not dominated by the limitations of personhood. “Access to affect, understood in the positive sense as a non-rational recognition of the other's suffering, allows one to take responsibility for this suffering rather than intellectualizing or narrating it causally,” Olson writes, ending her essay with a programmatic call for critique of the law to shift from “law and literature” to “law and affect” in order to bypass what she calls (following legal theorist Andreas Fischer-Lescano and sociologist Susanne Krasmann) the state and the law's false claims to rationality.
The contribution of Martin Kayman is, like Olson's, concerned with distinct scholarly traditions in the domains of law and literature. But Kayman focuses on a what he terms a “corporeal turn,” which can be traced in different “bodies” in the domain of law and which involves different modes of reading. For instance, various familiar forms of close reading, along with more context-oriented forms of what can be called “symptomatic reading,” are now being confronted with what can subsumed under the heading “distant reading” – a mode of reading that has a radically different textual corpus. Kayman asks what kinds of legitimacy are involved in these different modes of reading, and, to answer this question, turns to the different political and legal understandings of the notion of corpus, each of which, he holds, can be mapped onto different approaches to reading. To illustrate his thesis he analyses the debates about the attempt to create a single judicial area in the European Union with regard to financial malpractice, placed under the supervision of a European Public Prosecutor's Office. The proposal to set up such an organization, brought out in 1997 under the title Corpus Juris, led to an indignant outcry in the UK. As Kayman suggests, this may have been provoked by the use of the word “corpus.” Whereas in the English tradition “corpus” basically means body, the Roman tradition has provided the term with what Kayman calls “an ontological excess” or a “body-plus.” This latter tradition derives ultimately from the religious notion of the Corpus Christi, a body that is “both dead and alive” and solicits feelings of faith and of allegiance.
This theological aura does not sit easily with the common-law tradition and the particular mode in which it acquires its force. According to Kayman, “the fictional ontology of the Common Law is less akin to that of a religious or scientific law than to an element of what Jacques Rancière describes as the field of politics as a ‘distribution of the sensible.’” Kayman suggests that monuments can be taken as embodiments of such a distribution, and to illustrate his point he turns to the case of artist-provocateur Paul Kelleher's decapitation of a marble statue of Margaret Thatcher in London's Guildhall Art Gallery. With his act, Kayman contends, Kelleher “broke the law.” In his analysis of the court case that followed, Kayman finds that this incident demonstrates that the common law acquires legitimacy not so much by faith but by confidence, which relies, ultimately, on a distribution of different reading responsibilities assigned to different bodies: the representatives of the community and of the legal institution. Thus, this court case, Kayman holds, throws a light on the often overlooked political dimension of the “distant reading” practices currently being developed in the humanities, in which the responsibilities once given to individual readers are handed over to automatized processes, and digital technologies are applied “to otherwise unreadable bodies or body-like entities.”
Both Kelleher's case in court and the rise of digital humanities are instances that illustrate how each reading practice relies on a politics of reading. “There is no corpus verum without allegiance to a corpus fictum or mysticum,” Kayman writes, “no confidence in the truth of verdicts without belief in the fictitious monuments of the unwritten law and the institutions they sustain.” Yet confidence and belief become matters of fabrication when it is “managed within a hierarchy to elide its fictionality.” It is precisely this elision that depends on a certain mode of reading, which in turns depends “on a set of identities between individuals, communities and institutions.” The domains of law and the humanities need each other, Kayman concludes, because the problem remains, “as ever, the place of fiction in cultural narratives, including those of law.”
With the two final contributions by literary scholar Herschel Farbman and legal historian Malick Ghachem, respectively, we move to consider the status of corporate personhood. Taking up the work of modernist author Virginia Woolf, Farbman's essay seeks to situate its exploration of personality and impersonality in the context of early 20th-century debates about corporate personhood. Woolf's particular mode of writing, Farbman proposes, helps us to reflect on a key ethical, political, and legal question raised by the emergence of corporate personhood, namely its “responsibility.” Is it possible, Farbman asks, to conceptualize responsibility in terms other than those of personal responsibility, which takes the figure of the natural person (a “whole, unified being”) as its model? Whereas political critiques of the corporation have often proposed that we treat corporations as “persons” in order to hold them accountable (Farbman cites Jerome Christensen's work in this regard), Farbman suggests that Woolf's writings (implicitly) explore a form of responsibility that accepts fragmentation and the loss of personhood. He makes this argument through a careful reading of several of her essays and novels, which highlight what he calls Woolf's adoption of a “dramatic mode of writing” that replaces a central authorial voice with a tapestry of fragmented voices. Citing Plato's Republic, Farbman reminds us that the dramatic mode has often been understood as a politically irresponsible genre, since authors of dramatic texts, by adopting the personae of different characters, refuse to speak in “propria persona,” and thereby avoid assuming responsibility for their words. But Woolf's texts, Farbman holds, should be seen not as an evasion of responsibility but as a search for a mode of writing that in fact embodies an ethical and political stance – a position that challenges the “unity” of personhood and that searches for a mode of writing responsive to the unfinished, fragmentary nature of human beings, attuned to, as he puts it, “that part of every person that can never belong to the world of personhood.” This attentiveness to what is hidden behind the mask of personhood is what Woolf calls a reading of characters. “Reading,” according to Farbman, is for Woolf “what one is doing whenever one is dealing with the otherness of another person.”
Precisely such a depersonalizing mode of reading, which is fostered by Woolf's writing, needs to be understood in contrast with the altogether different type of impersonality that is central to the legal notion of corporate personhood, as was debated in the period of Woolf's literary experiments. The split and disjointed nature of Woolf characters, in Farbman's reading, ultimately points to the limitations and finitude of human being, whose bodily deaths always entail a scattering of their property and possessions. “Corporations,” he writes, “meanwhile, are persons under the law whose personal property is not subject to this scattering. […] The fundamental – and not necessarily tractable – problem is that the corporate person does not have to die.” This is, as Farbman concludes in a section that focuses on Thomas Jefferson, a fundamental problem for democracies that strive to emancipate individuals from the “aristocratic” forces that gather property in an attempt at long-term preservation. Farbman writes: “Equality at birth is a foggy ideal; equality when it comes to death is a much more reliable principle to which to appeal.” According to Farbman, the novel – or rather the modernist novel as developed by Woolf – together with the mode of reading that it teaches its readers, is an excellent starting point for both a critique of corporate personhood and a site that allows one to develop an ethos that can resist the logic of such personhood.
With the final contribution by Malick Ghachem, we come to a discussion of the historical birth of corporations, the specific financial scenarios that led to that birth, and the first forms of resistance against it. His case is the French West Indies Company, the history of which is sketched in the context of contemporary anxieties about the status of corporate personhood per se. Whereas in our contemporary situation corporations make up a large but also clearly limited set of legal bodies, the 18th century was a time in which corporations, much more fluidly defined, flourished on all levels of society. The distinct prefigurations of modern corporations were the great monopoly Indies franchises: the Dutch East India Company, the British East India Company, and the French Indies Company. With respect to these entities, Ghachem asks how local communities contested their exclusive trading privileges, and with what consequences for the understanding of the state, the company, and the individual. Having delved into the archives, Ghachem has discovered widespread revolts throughout the century against these corporations, and he takes as his case studies the uprising against the French Indies Company in Saint-Domingue (colonial Haiti) in the early 1720s and the East India Company's North American crisis during the early 1770s. In the cases he cites, the state came to the rescue of corporations in times of financial crisis and, as a result, corporations were perceived as being granted liberties for reasons of commercial interest. In addition, in these instances the protest against these corporations was not a matter of bringing them to court but consisted instead of direct attacks on their material manifestations – in the form of individual persons, goods, or other forms of property. Thus, the true nature of corporations was unveiled.
Such exposure was called for in the context of a fundamental ambiguity with regard to corporations’ power and growth. This ambiguity is already traceable in the work of the German scholar Otto von Giercke (1841–1921), who insisted “on the reality of the corporation's moral personhood while decrying in Romantic, anti-capitalist terms its tendency towards financial despotism.” As such, Giercke can be seen as a prefiguration of contemporary responses to the power of corporations. Compelled to delve into the historical basis of the corporate veil, Ghachem then asks how corporate personhood can be “neither an ontological reality unto itself nor a mere fiction that can be casually tossed aside.” To answer the question he turns to his two historical cases. Here the Tea Crisis in particular gets a new interpretation, because it is read not so much in the light of the formation of the United States but as an episode in the dismantling of corporate mercantilism in the North Atlantic.
The Tea Crisis concerned a moment when the British company “suddenly broke out of its ‘East India’ confines and became, for a brief time, an Atlantic power as well – a company of ‘the Two Indies.’” In fact, the company acquired a monopoly by law with the Tea Act, which would prove to be disastrous. Or, as the events showed, the companies, whether French or English, were susceptible to “disaggregation.” The similarity between the Saint-Domingue uprising in the 1720s and the Tea Act revolt in the 1770s is due not to the precedent of one to the other, but is rather the result of structural forces and affinities. First, in both cases the rhetoric of enslavement was used to fuel the revolt. Popular rebellion was directed against a company's rule that was perceived as despotic. Second, in both cases the revolt was specific in its attack on particular persons, goods, or property held by the company. Third, the revolts were aimed at “continuous legal protection from the state” for the companies, which was perceived as unjust. As a result, the companies would fall apart, only to be followed by new commercial corporate bodies, which are, in turn and up until this day, also often helped financially by the state and its prerogatives.
Notes
1. See Roberto Esposito, Persons and Things, trans. Zakiya Hanafi (Cambridge: Polity, 2015).
2. Giorgio Agamben, The Open: Man and Animal, trans. Kevin Attell (Stanford: Stanford University Press, 2003).