Defining the Human & Legal Subjecthood

A review of Defining Human: Species, Sanity, and Legal Subjecthood, by Kris Weller.

Why is the pain of others the least pain, the pain that hurts less? In Regarding the Pain of Others, Susan Sontag invites us to experience a sense of shareability with the suffering and expressions of pain captured on crystallized moments of photography, urging us to rethink our conceptions on what being human is also about (Susan Sontag, Regarding the Pain of Others. New York: Farrar, Straus & Giroux, 2003, pp. 90-91). Kris Weller’s dissertation, entitled Defining Human: Species, Sanity and Legal Subjecthood, goes further than Sontag’s endeavor by questioning and proposing an alternative human reconceptualization. In Weller’s dissertation the Others are those lacking a full legal subjecthood and equal rights, i.e. nonhuman animals, and humans with mental differences (pp. 17-19). By examining several judicial discourses (historical and contemporary) concerning the law’s production of inequality, and by exploring the autobiographies of Temple Grandin and Dawn Prince-Hughes (two intellectuals with autism who reflected extensively on their own interactions with nonhuman animals), Weller investigates how American law perceives the human figure. Using always a combined and innovative approach of the same unequal legal subjects, and thus creating an impressive logical articulation about them, Weller’s dissertation is a powerful deconstruction of disability, animality and personhood that intends to advance and establish a practical posthumanist ethics (p. 130). It is a trim and generous dissertation that aims for ethico-legal inclusiveness and that “concerns which violences are tolerated, where and between whom, and which are not, and is as much about gender, race, class, and sexuality are legally constructed as it is about mental and species difference” (p. 12). Thus, Weller addresses a major gap not only in the history of consciousness and critical legal theory but also in interdisciplinary science studies.

In the Introduction Weller sets up the theoretical scene by referring to personal responsive experiences described in a first person narrative. She speaks from not of. This is what Arjun Appadurai would refer to as the anthropological representation of voice of the one that interacts and observes (Arjun Appadurai, “Place and Voice in Anthropological Theory”,  Introduction to special issue of Cultural Anthropology 3 (1988), pp. 16-20). Moreover, she defines what constitutes responsibility by framing “Donna Haraway’s articulations on response/response-ability/responsibility” (p. 3), arguing that subjects in United States law are nonresponsive (p. 5) and that her motivations derived from the use of “speciesism”, “sanism” and “mentalism” in animal rights and cognitive disability rights discourses (p. 6). Weller rejects the categorical idea of “human-animal relations” (p. 8) and develops the assumption that “nonhuman animals have subjectivities worthy of human consideration” (p. 9), suggesting that “human-animal relationships are never only human/animal, but always some-humans/other(ed)-humans/animal” (p. 9). Towards the end of the introductory chapter, Weller explains why she has applied specific terminologies and why her project can be regarded as “sociolegal postrealist” hence it depends more on critical legal theory discernment than on empirical studies (p. 20).

Chapter 1 begins by presenting the precedents of Jones v. Beame cases involving the welfare of animals under care of three New York City zoos, and the well-being of humans discharged from New York State mental hospitals into hotel rooms and apartments in the City of Long Beach, New York (pp. 21-44). The New York Court of Appeals consolidated and dismissed both cases with a justiciability doctrinal argument, stating that the judicial branch “has no power to review” (p. 29) because they derived from administrative decisions made by governmental agencies, “relegitimizing the court system by delimiting its boundaries as one part of a tripartite governmental system” (p. 23). By analyzing the Jones v. Bowen cases, the author develops the idea of capture, addressing simultaneously the relationships between captivity and legal personhood in US law, and that captivity and the control of others is a founding principle of US law since its inception (pp. 48-70). Additionally, Weller explores the right of capture on US Constitution by assessing the quasi-person/quasi-property status of slaves, women, the legal human subject and human rights (pp. 71-80). She reinforces the idea that “the entanglement of violence against and captivity of humans and nonhumans is helpful in establishing how fundamental the right of capture is to our conceptions of what it is to be human and why it is inextricable from legal notions of human freedom” in order to establish true measures of social justice (p. 64).

Chapter 2 looks at moral responsibility and responsible engagement, highlighting the neurodiversity concept. She brings together the question of meaningful interiority in humans on the autism spectrum and “inside” narratives (pp. 88-103). In order to attempt to define humans, Weller juxtaposes Temple Grandin and Dawn Prince-Hughes’ biographies. The author critiques Grandin’s perspective at the discursive level about nonhuman animals and emotional attachment by operating the “killability” concept. This in Weller’s opinion creates a disruption with the nonhumans’ identification process as “Grandin assures herself and us that nothing is lost in the death of an animal as long as the death does not involve anxiety or physical suffering” (p. 120), referring to Grandin’s empathy for cows in slaughterhouses. Weller positions herself more closely to Dawn Prince-Hughes’ definition of humanity that “neither depends on the nonhuman society rejection nor accepting the terms of human society” (p. 126).

In Chapter 3 Kris Weller turns to the aspirational legal human as a differently supported relationality. The author argues that legal subjecthood remains compromised. She cites several examples and court cases of oppression and vulnerability based on the right of capture. She also highlights that legal personhood is not only a matter of national identity, it is mainly a matter of human identity (pp. 131-185). Furthermore, Weller put also into contrast the guardianship model, its pros and cons, suggesting legal philosopher Ani Satz’s equal protection as one of the best convergence solutions (p. 193) (see Ani B. Satz, “Animals as a Vulnerable Subjects: Beyond Interest-Convergence, Hierarchy, and Property”, Animal Law 16 (2009), pp. 7-13).

In the concluding chapter Weller refers to examples of successful projects where the posthumanist ethics was applied (e.g. Maison Thomas Philippe, a retreat near Sisteron in Southern France for families struggling with mental illness, as well as the deinstitutionalization of psychiatric care in the town of Geel in Belgium) (pp. 207-223), concluding with an astonishing remark: “Humans are animals; human rights are always already animal rights, and we must get that right, because it matters right now”. This dissertation provides therefore an invaluable contribution to the “animal experience” understanding (p. 202).

Rui M. Sá
Department of Anthropology
Universidade Nova de Lisboa
ruimoutinhosa@gmail.com

Primary Sources

LexisNexis Academic US Legal Archives
ProQuest Historical Newspapers Archives
Academic and scientific literature (books, journal articles, dissertations)
Autobiographies
Newspapers and internet new resources (e.g. The New York Times, CNSNews.com)

Dissertation Information

University of California, Santa Cruz. 2010. 240pp. Primary Advisor: Donna Haraway.

 

Image: Photo taken at the Duke Lemur Center, by Kris Weller.

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