Personhood And Identity In American Law

This book is an examination of how the law understands human identity and the whole notion of ‘human being’. On these two notions the law, usually unconsciously, builds the superstructure of ‘human rights’. It explores how the law understands the concept of a human being, and hence a person who is entitled to human rights. This involves a discussion of the legal treatment of those of so-called "marginal personhood" (e.g. high functioning non-human animals; humans of limited intellectual capacity, and fetuses). It also considers how we understand our identity as people, and hence how we fall into different legal categories: such as gender, religion and so on.The law makes a number of huge assumptions about some fundamental issues of human identity and authenticity – for instance that we can talk meaningfully about the entity that we call ‘our self’. Until now it has rarely, if ever, identified those assumptions, let alone interrogated them. This failure has led to the law being philosophically dubious and sometimes demonstrably unfit for purpose. Its failure is increasingly hard to cover up. What should happen legally, for instance, when a disease such as dementia eliminates or radically transforms all the characteristics that most people regard as foundational to the ‘self’? This book seeks to plug these gaps in the literature.

Draws on little-known legal cases brought by fat citizens as well as significant lawsuits over other forms of bodily difference (such as transgenderism), and asks why the boundaries of our antidiscrimination laws rest where they do. Fatness, argues Kirkland, is both similar to and provocatively different from other protected traits, raising long-standing dilemmas in antidiscrimination law into stark relief. Though options for defending difference may be scarce, Kirkland evaluates the available strategies and proposes new ways of navigating this new legal question. From publisher description.

We are witnessing in the last decade of the twentieth century more frequent demands by racial and ethnic groups for recognition of their distinctive histories and traditions as well as opportunities to develop and maintain the institutional infrastructure necessary to preserve them. Where it once seemed that the ideal of American citizenship was found in the promise of integration and in the hope that none of us would be singled out for, let alone judged by, our race or ethnicity, today integration, often taken to mean a denial of identity and history for subordinated racial, gender, sexual or ethnic groups, is often rejected, and new terms of inclusion are sought. The essays in Cultural Pluralism, Identity Politics, and the Law ask us to examine carefully the relation of cultural struggle and material transformation and law's role in both. Written by scholars from a variety of disciplines and theoretical inclinations, the essays challenge orthodox understandings of the nature of identity politics and contemporary debates about separatism and assimilation. They ask us to think seriously about the ways law has been, and is, implicated in these debates. The essays address questions such as the challenges posed for notions of legal justice and procedural fairness by cultural pluralism and identity politics, the role played by law in structuring the terms on which recognition, accommodation, and inclusion are accorded to groups in the United States, and how much of accepted notions of law are defined by an ideal of integration and assimilation. The contributors are Elizabeth Clark, Lauren Berlant, Dorothy Roberts, Georg Lipsitz, and Kenneth Karst.

A fascinating account of how the law determines or dismantles identity and personhood Abused dogs, prisoners tortured in Guantánamo and supermax facilities, or slaves killed by the state—all are deprived of personhood through legal acts. Such deprivations have recurred throughout history, and the law sustains these terrors and banishments even as it upholds the civil order. Examining such troubling cases, The Law Is a White Dog tackles key societal questions: How does the law construct our identities? How do its rules and sanctions make or unmake persons? And how do the supposedly rational claims of the law define marginal entities, both natural and supernatural, including ghosts, dogs, slaves, terrorist suspects, and felons? Reading the language, allusions, and symbols of legal discourse, and bridging distinctions between the human and nonhuman, Colin Dayan looks at how the law disfigures individuals and animals, and how slavery, punishment, and torture create unforeseen effects in our daily lives. Moving seamlessly across genres and disciplines, Dayan considers legal practices and spiritual beliefs from medieval England, the North American colonies, and the Caribbean that have survived in our legal discourse, and she explores the civil deaths of felons and slaves through lawful repression. Tracing the legacy of slavery in the United States in the structures of the contemporary American prison system and in the administrative detention of ghostly supermax facilities, she also demonstrates how contemporary jurisprudence regarding cruel and unusual punishment prepared the way for abuses in Abu Ghraib and Guantánamo. Using conventional historical and legal sources to answer unconventional questions, The Law Is a White Dog illuminates stark truths about civil society's ability to marginalize, exclude, and dehumanize.

According to the case law of the Inter-American Court of Human Rights, the catalogue of human rights as it is expressed in the American Convention of Human Rights, as well as in all the other international codifications of human rights, contains a serious gap. It does not provide a particular right for the protection of identity. Therefore, the Court demands the creation of an unwritten human right to identity by case law in addition to the written codices of human rights in international law. The philosophers, lawyers and political scientists joined in this book discuss this assumption under different aspects and from different cultural and legal backgrounds (Brazil, China, Germany, Japan, and Turkey). The book contains contributions that analyze the meaning(s) of the concept "identity" based on an individual approach as well as on the basis of a collective approach. It deals with certain aspects of identity in the context of certain fields of positive law, including criminal law and family law, and it questions the real need for a new right to identity.

Many questions about moral and legal judgments hinge on how we understand the identity of the agents. The intractability of many of these questions stems, this book argues, from ignoring how we actually connect actions with agents. When making everyday judgments about the morality or legality of actions, we do not use Aristotelian logic but what is termed “character logic”. The difference is crucial because implicit in character logic is an understanding of personal identity that is both coherent and intuitively familiar. A person, as we conceptualize him in moral and legal contexts, is a character of resolve. By unpacking what it means to be a character of resolve, this book reveals what underwrites our most fundamental beliefs about a person’s rights and responsibilities. It also provides a new and useful perspective on a variety of issues about rights and responsibilities that perennially occupy philosophers. This book discusses the following: • How we can make better sense of “human rights” if we think of them as “personal rights”. • How the right to be civilly disobedient, in contrast with ordinary law-breaking, can be justified as a personal right. • What basis we have for holding that someone’s responsibility is diminished. • How it makes sense to hold someone responsible for acting irresponsibly. • How it makes sense to distinguish a juvenile offender from someone who should be tried in criminal court. • What kind of correction we should expect from our correctional institutions and how we should design them to achieve that. By making explicit the axioms of character logic and exploring their origins and justification, the book provides a conceptually powerful tool for interpreting the protocols of a person-respecting society.

How does materiality matter to legal scholarship? What can affect studies offer to legal scholars? What are the connections among visual studies, art history, and the knowledge and experience of law? What can the disciplines of book history, digital humanities, performance studies, disability studies, and post-colonial studies contribute to contemporary and historical understandings of law? These are only some of the important questions addressed in this wide-ranging collection of law and humanities scholarship. Collecting 45 new essays by leading international scholars, The Oxford Handbook of Law and Humanities showcases the work of law and humanities across disciplines, addressing methods, concepts and themes, genres, and areas of the law. The essays explore under-researched domains such as comics, videos, police files, form contracts, and paratexts, and shed new light on traditional topics, such as free speech, intellectual property, international law, indigenous peoples, immigration, evidence, and human rights. The Handbook provides an exciting new agenda for scholarship in law and humanities, and will be essential reading for anyone interested in the intersections of law and humanistic inquiry.

Salvage Work examines contemporary literary responses to the law’s construction of personhood in the Americas. Tracking the extraordinary afterlives of the legal slave personality from the nineteenth century into the twenty-first, Angela Naimou shows the legal slave to be a fractured but generative figure for contemporary legal personhood across categories of race, citizenship, gender, and labor. What emerges is a compelling and original study of how law invents categories of identification and how literature contends with the person as a legal fiction. Through readings of Francisco Goldman’s The Ordinary Seaman, Edwidge Danticat’s Krik?Krak!, Rosario Ferre’s Sweet Diamond Dust (Maldito Amor), Gayl Jones’s Song for Anninho and Mosquito, and John Edgar Wideman’s Fanon, Naimou shows how literary engagements with legal personhood reconfigure formal narrative conventions in Black Atlantic historiography, the immigrant novel, the anticolonial romance, the trope of the talking book, and the bildungsroman. Revealing links between colonial, civic, slave, labor, immigration, and penal law, Salvage Work reframes debates over civil and human rights by revealing the shared hemispheric histories and effects of legal personhood across seemingly disparate identities—including the human and the corporate person, the political refugee and the economic migrant, and the stateless person and the citizen. In depicting the material remains of the legal slave personality in the de-industrialized neoliberal era, these literary texts develop a salvage aesthetic that invites us to rethink our political and aesthetic imagination of personhood. Questioning liberal frameworks for civil and human rights as well as what Naimou calls death-bound theories of personhood—in which forms of human life are primarily described as wasted, disposable, bare, or dead in law—Salvage Work thus responds to critical discussions of biopolitics and neoliberal globalization by exploring the potential for contemporary literature to reclaim the individual from the legal regimes that have marked her.