Abstract
Thus far we have identified a particular problem in international human rights discourse: a distortion of the Universal Declaration of Human Rights paradigm driven in large part by global corporate entities in the context of contemporary globalisation. We have also reflected on the case offered for corporate human rights and found it wanting in both normative and conceptual terms. The interim conclusion offered at the end of the last chapter stressed the importance of problematising the ‘human’ rights of corporations if human rights are to survive as constructs capable of adequately protecting human beings and communities from such powerful economic legal actors — particularly in a globalised context.
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Notes
See J. Morsink, ‘World War Two and the Declaration’ (1993) 15 Human Rights Quarterly 357–405 for a full discussion of the drafting process of the UDHR and its focal concerns.
M. Johnson, ‘Preface’ in M. Johnson, The Body in the Mind: The Bodily Basis of Meaning, Imagination and Reason (Chicago and London: Chicago University Press, 1987) at x.
V. Seidler ‘Embodied Knowledge and Virtual Space’ in J. Wood (ed.) The Virtual Embodied (London, Routledge, 1998) at 17,
cited by B. Ajana, ‘Disembodiment and Cyberspace: A Phenomenological Approach’ (2005) Electronic Journal of Sociology (available at: http://www.sociology.org/content/2005/tier1/ajana.html. Last accessed 19 April 2007).
P. Halewood, ‘Law’s Bodies: Disembodiment and the Structure of Liberal Property Rights’ (1996) 81 Iowa Law Review 1331–1393 at 1338.
G. Lakoff and M. Johnson, ‘Kantian Morality’ in G. Lakoff and M. Johnson, Philosophy in the Flesh: The Embodied Mind and its Challenge to Western Thought (New York: Basic Books, 1999) 415–439 at 439.
J. Richardson, ‘A Refrain: Feminist Metaphysics and Law’ in J. Richardson and R. Sandland (eds) Feminist Perspectives on Law and Theory (London: Cavendish, 2000) 119–134 at 128.
P. Cheah, D. Fraser and J. Grbich (eds) Thinking Through the Body of Law (St Leonards: Allen and Unwin, 1996) at xv,
cited by S.D. Sclater, ‘Introduction’ in A. Bainham, S.D. Sclater and M. Richards, Body Lore and Laws (Oxford: Hart, 2002) at 1.
C. Smart, Feminism and the Power of Law (London: Routledge, 1989). See her chapter ‘Law, Power and Women’s Bodies’ for a fuller account of this argument.
For more on this, see Chapter 7 below, which links embodied vulnerability to the drafting process of the UDHR. The chapter also briefly introduces the historical role of the body in the generation of the empathy that underlay the birth of rights discourse in the eighteenth century — a point often overlooked but fully discussed by L. Hunt, Inventing Human Rights: A History (New York: W.W. Norton and Co, 2007).
C. Douzinas and A. Gearey, Critical Jurisprudence (Oxford: Hart Publishing, 2005) 127–128.
E.F. Keller, Reflections on Gender and Science (Yale, Yale University Press, 1985) at 79,
cited by K. Green, ‘Being Here — What a Woman Can Say About Land Law’ in A. Bottomley (ed.) Feminist Perspectives on the Foundational Subjects of Law (London: Cavendish, 1996).
A. Bottomley, ‘The Many Appearances of the Body in Feminist Scholarship’ in A. Bainham, S.D. Sclater, and M. Richards, Body Lore and Laws (Oxford: Hart, 2002) at 134–135.
A.M. Jaggar and S.R. Bordo (eds) Gender/Body/Knowledge: Feminist Reconstructions of Being and Knowing (New Brunswick, NJ: Rutgers University Press, 1989) at 4.
S. Ahmed, ‘Deconstruction and Law’s Other: Towards a Feminist Theory of Embodied Legal Rights’ (1995) 4 Social and Legal Studies 55–73 at 56.
N. Naffine, ‘The Body Bag’ in N. Naffine and R. Owens (eds) Sexing the Subject of Law (Sydney: Sweet and Maxwell, 1997) 79–93 at 84.
There is no reason to fear the extension of legal subjectivity to non-human entities — in fact, there are strong normative arguments for adopting a flexible, formal construct of legal personality capable of protecting a range of entities and beings. See, for further discussion, C.D. Stone, Should Trees Have Standing? And Other Essays on Law, Morals and the Environment (New York: Oceana, 1996). See also Naffine’s insightful exploration of the legal subject in Law’s Meaning of Life: Philosophy, Religion, Darwin and the Legal Person (Legal Theory Today) (Portland: Hart Publishing, 2009).
See, for an extended examination of the teleology of human rights as a transcendent critique of positive human rights law, C. Douzinas, The End of Human Rights (Oxford: Hart, 2000).
N. Naffine, ‘Who are Law’s Persons? From Cheshire Cats to Responsible Subjects’ (2003) 66 Modern Law Review, 346–367, at 356, abstract.
This has long been the case. The law has a remarkable history of, and facility for, personification: See W.W. Hyde, ‘The Prosecution and Punishment of Animals and Lifeless Things in the Middle Ages and Modern Times’ (1916) 64 University of Pennsylvania Law Review 696–730. The imputation to animals of a form of criminal intent is surely a warning against the perils of anthropomorphism in the attribution of legal responsibility.
See U. Baxi, Human Rights in a Post-human World: Critical Essays (Oxford: Oxford University Press, 2007).
See G. Teubner, ‘Rights of Non-humans? Electronic Agents and Animals as New Actors in Politics and Law’ (2006) 33 Journal of Law and Society, 497–521. See also, for a discussion in the context of human rights theory, U. Baxi, ‘The Posthuman and Human Rights’ in U. Baxi, Human Rights in a Post-human World, above n 28 at 197–239.
Post-human discourse already proclaims the impossibility of this: See D. Haraway, Simians, Cyborgs, and Women: The Reinvention of Nature (London: Free Association Books, 1991). Haraway concludes that ‘we are all chimeras, theorized and fabricated hybrids of machine and organism: in short we are cyborgs’ (at 150). However, this figuration does not and cannot detract from the fact that, as yet, most of us have a visibly human embodiment, and a concomitant vulnerability, distinguishable in important ways, from the machines with which our lives are lived as ‘hybrids’. Metaphorical hybridity takes nothing essential from our embodied vulnerability as human beings. Actual cyborgs certainly qualify the term ‘human’ in the term ‘human rights’, as Baxi argues (in Human Rights in a Post-human World, above n 28 at 204) but there is no reason why a nuanced post-human rights theory could not carefully calibrate any ethically and conceptually relevant distinctions between actual and metaphorical cyborgs and their characteristics.
A. Nekam, The Personality Conception of the Legal Entity (Boston: Harvard University Press, 1938).
The term ‘person’ has almost inseparable links with the idea of the human person and related theories of human personality. Their intimate convergence has caused considerable complexity in the theory of legal personhood and explains, to some extent, the assumption that, to extend legal subjectivity, is to extend the definition of humanity, discussed above. For a range of discussions on the theory of persons and personality see A. Peacocke and G. Gillet, Persons and Personality: A Contemporary Inquiry (Oxford: Blackwell, 1987).
D.P. Derham, ‘Theories of Legal Personality’ in L.C. Webb (ed.) Legal Personality and Political Pluralism (New York: Cambridge University Press, 1958) at 7,
adopting a distinction drawn by A. Kocourek, Jural Relations (Indianapolis: Bobbs-Merrill, 1928) at 291–292.
N. Naffine, ‘The Nature of Legal Personality’ in M. Davies and N. Naffine, Are Persons Property? Legal Debates about Property and Personality (Aldershot: Ashgate, 2001) at 52. See also R. Tur, ‘The “Person” in Law’ in A. Peacocke and G. Gillett (eds) Persons and Personality, above n 35 at 123.
D. Kinley (ed.) Human Rights in Australian Law: Principles, Practice and Potential (Sydney: Federation, 1988) at 5 — cited by N. Naffine, ‘The Nature of Legal Personality’, above n 37 at 55.
See P.W. Duff, Personality in Roman Private Law (Cambridge, Cambridge University Press, 1938) at 3.
M. Radin, ‘The Endless Problem of Corporate Personality’ (1932) 32 Columbia Law Review 643–667 at 645.
G.W. Keeton, The Elementary Principles of Jurisprudence (London: Sir Isaac Pitman and Sons, 1930) at 117, cited by N. Naffine, ‘The Nature of Legal Personality’, above n 37 at 57.
W.H. Rattigan, Roman Law of Persons (London: Wildy and Sons, 1873) at 3, cited by N. Naffine, ‘The Nature of Legal Personality’, above n 37 at 60.
As documented, most famously, by H. Maine, Ancient Law: Its Connection with the Early History of Society and its Relation to Modern Ideas (London: John Murray, 1930).
C.B. Macpherson, The Political Theory of Possessive Individualism: Hobbes to Locke (Oxford: Clarendon Press, 1964).
H. Kelsen, Pure Theory of Law (Berkeley: University of California Press, 1967) 173–174.
For more, see W.N. Hohfeld, ‘Some Fundamental Legal Conceptions as Applied in Judicial Reasoning’ (1913) 23 Yale Law Journal 16–59
and W.N. Hohfeld, ‘Fundamental Legal Conceptions as Applied in Judicial Reasoning’ (1917) 26 Yale Law Journal 710–770
and the useful discussion of Hohfeld’s scheme in A. Halpin, Rights and Law: Analysis and Theory (Oxford: Hart Publishing, 1997).
See A. Norrie, Crime, Reason and History: A Critical Introduction to Criminal Law 2nd edn (London: Butterworths, 2001);
M.J. Horwitz, ‘Comment: The Historical Contingency of the Role of History’ (1981) 90 Yale Law Journal 1057–1059 at 1057.
B. De Sousa Santos, Toward a New Legal Common Sense: Law, Globalization and Emancipation (London: Butterworths, 2002) at 41.
F.H. Lawson, ‘The Creative Use of Legal Concepts’ (1957) 32 New York University Law Review 907, at 915.
S.A. Schane, ‘The Corporation is a Person: The Language of a Legal Fiction’ (1987) 61 Tulane Law Review 563–609.
L. Moran, ‘Corporate Criminal Capacity: Nostalgia for Representation’ (1992) 1 Social and Legal Studies 371–391 at 373.
F. Hallis, Corporate Personality (London: Oxford University Press, 1930), 138.
S.J. Stoljar, ‘Corporate Theory Re-Examined’ in S.J. Stoljar, Groups and Entities: An Inquiry into Corporate Theory (Canberra: Australian National University Press, 1973).
F.W. Maitland, Domesday Book and Beyond: Three Essays in the Early History of England (Cambridge: Cambridge University Press, 1897) at xxxvi, cited by S.J. Stoljar, ‘Corporate Theory Re-Examined’, above n 101 at 185.
R. Grantham and C. Rickett, ‘The Bookmaker’s Legacy to Company Law Doctrine’ in R. Grantham and C. Rickett, Corporate Personality in the Twentieth Century (Oxford: Hart Publishing, 1998) at 1.
The corporation cannot suffer the same order of harms as an embodied human being, and this point is implicitly acknowledged by Addo when he notes that corporations have no inherent capacity to ‘suffer harms associated with human rights violations’: M. Addo, ‘The Corporation as a Victim of Human Rights Violations’ in M. Addo (ed.) Human Rights Standards and the Responsibility of Transnational Corporations (Hague: Kluwer, 1999) at 188.
See C.J. Mayer, ‘Personalising the Impersonal: Corporations and the Bill of Rights’ (1990) 41 Hastings Law Journal 577–663;
G.A. Marks, ‘The Personification of the Business Corporation in American Law’ (1987) 54 The University of Chicago Law Review 1441–1483 at 1464–1478.
See also Federman’s account of this process in C. Federman, ‘Constructing Kinds of Persons in 1886: Corporate and Criminal’ (2003) 14 Law and Critique 167–189.
M. Neocleous, ‘Staging Power: Marx, Hobbes and the Personification of Capital’, Law and Critique 14 (2003), at 156–157.
For a fascinating discussion of how this ideological gender tilt emerges at the level of internalised social power relations within the corporate managerial contexts, suggesting a strong patriarchal control of corporate culture, see A. Belcher, ‘Gendered Company: Views of Corporate Governance at the Institute of Directors’ (1997) 5 Feminist Legal Studies 57–76.
M. Horwitz, ‘Santa Clara Revisited: The Development of Corporate Theory’ (1985) 88 West Virginia Law Review 173–224, cited by S. Schane, ‘The Corporation is a Person’, above n 90 at 567, n 16.
For more, see A. Grear ‘A Tale of the Land, the Insider, the Outsider and Human Rights’, above n 85. In purely rights-orientated terms, it is possible to conceive of property as a defensive boundary — against forms of oppression — and to see ‘property in oneself’ as a form of recognition of the right to bodily integrity. See J. McLean, Property as Power and Resistance’ in J. McLean, Property and the Constitution (Oxford: Hart Publishing, 1999) 1–10 at 1;
E.M. Wood, The Origin of Capitalism: A Longer View (London: Verso, 2002) at 108–109;
D. Thompson (ed.) The Essential E.P. Thompson (New York: New Press, 2001) at 287–315. It is also possible to conceive of property as being a right not to be excluded from certain fundamental social goods.
Such a re-conceptualisation of property is offered, for example, by C.B. Macpherson in The Political Theory of Possessive Individualism, above n 52 and by C. Reich, ‘The New Property’ (1964) 73 Yale Law Journal 733–787.
See, for a particularly illuminating account, J. Nedelsky, ‘Law, Boundaries and the Bounded Self’ (1990) 30 Representations 162–189.
See for example the oft-quoted ‘every man has a property in his own person; this nobody has any right to but himself. The labor of his body and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature has provided and left it in, he has mixed his labor with, and joined to it something that is his own, and thereby makes it his property’. J. Locke, Second Treatise (edited by T. Peardon) (Indianapolis: Bobbs-Merrill, 1952) at 17.
K. O’Donovan, ‘With Sense, Consent or Just a Con? Legal Subjects in the Discourses of Autonomy’ in N. Naffine and R. Owens (eds) Sexing the Subject of Law (Sydney: Law Book Company, 1997) 46, cited by Davies and Naffine, Are Persons Property?, above n 37 at 5.
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© 2010 Anna Grear
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Grear, A. (2010). Law, Persons and Disembodiment. In: Redirecting Human Rights. Global Ethics Series. Palgrave Macmillan, London. https://doi.org/10.1057/9780230274631_4
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