Catherine Labrusse-Riou
Frontiers of the Human and Inhuman: What Does and
What Can the Law Tell?
Before coming to my subject, “the human and the inhuman, their boundaries,” I will begin with a few words about law as I see it in the framework of our theme “Design of the In/Human” in order to enter “a different world.”[1] Law is indeed different; it is not descriptive like science or technique, or like art; it is normative, but it also shows the state of society and its tensions, its organizing principles, and its values. Law uses words and sentences to shape reality, to sort out and resolve conflicts that constantly arise between individuals and groups, and refers to a system of norms and legitimate institutions.
The plasticity of law as shown by its evolution and its adaptability to social and political changes has its limits, drawn by its own structures and invariants (the principle of the separation of powers, the institution of family relationships, the liability principle, the institution of the judge, debate as a substitute for force, etc.). I will concentrate on two main aspects of the phenomenon of law: law is first of all the art of giving shape to life’s facts and realities, naming them as juridical categories each having their own sets of rules and making it possible to make distinctions and to oblige the judge to qualify the facts, to grasp them as juridical entities. Second, law also provides justice with a mode of resistance, which must be integrated into the political, economical, and social systems. This is the lawsuit, a fight but a peaceful fight, relying on the skill to argue pro et contra, on the skill to convince. Of course there is also law required for the making of judgments, but legislation will not be my subject. Thus the word “design” has its dual origin in the French dessin, meaning the sketched object, and in dessein, meaning the project; and both terms are intimately linked within the core of legal concepts and institutions.
Starting from the facts, I will attempt to show how the human and the inhuman enter contemporary law, and how difficult it is to distinguish them. The paradox is indeed that the inhuman is always a human act, individual or collective, a result of human systems. The temptation to repress the inhuman is therefore very strong and its legal naming is always an ordeal. The inhuman has to be imposed on us by the facts, it has to be named legally as “inhuman” in writing and in judgments. But what is an “inhuman and degrading treatment?” On the other hand, can law name the “human?” We will see that this requires an indirect approach using legal concepts that show various sides of human nature while avoiding turning the human into a legal concept. Law cannot function as a machine lest society and its individuals be considered machines. Law may be a technique among other techniques, but its function is by no means technical. Machines can work day and night, but humans must sleep, and preventing them from doing so is probably inhumane. But man (“when I say man I embrace of course all women,” a humorist once said; the French language is too synthetic and does not have the German double Mann – Mensch) is no machine; he makes mistakes, he hesitates, he argues, he asks questions, he rebels, he says no, he dreams and entertains fantasies, he has an inner life, a consciousness, freedom, he goes mad or becomes violent, he has feelings. He refuses, in a word, to be reduced to a technical object, even if others treat him as such, inhumanely, in a psychologically unbearable manner.[2] Yet human beings can also auto-destruct, act like machines, deny their own physical and moral nature, and enjoy this denial. Still, it remains difficult to admit this tendency towards self-destruction, including the self-destruction of law.
The dream of the “new man” underlies our ideologies and continues to be present in biotechnology; it keeps feeding the many utopias of recreation of the human. We remain dissatisfied with our condition; we want to leave it, for the best and for the worst. “Bioethics” would constitute the stage for our attempts at sorting out the good from the bad. But legal reason, faced with the multiplication of techniques for the manipulation of life, is helpless for lack of concepts beyond literary and artistic fiction; yet laws must be made, for judgments of legal versus illegal on issues such as in vitro human embryos. Technique and science are inscribed within a culture. They rely on a representation of the human that is fragmentary and hence that eliminates part, and often an essential part, of the human phenomenon. Among all the sciences relevant to legislation, we must bear in mind psychoanalysis. What is the desire at the origin of design as dessin and of design as dessein, what is the desire or the need inherent in the forms men use to give a meaning to their legal objects or legal rules? What are the forces and the unconscious impulses dictating obedience or transgression, or even worse, the inhumane behavior of men?[3] But again, law must still have its own words for signifying what is human and inhuman.
I. Human/ Inhuman: Words for Saying It… in Law?
The human appears to be too obvious, while the inhuman is a nameless horror. Every definition of the human is a trap because of the danger of reductionism. The only proper way to speak of man appearing on the legal stage would be that of narration: narrate the history of judgments and laws, a casuistic rather than the positing of concepts favored by a rhetoric of vague notions such as Man, human, inhuman, humanitarian, human rights, human dignity, etc.; then ask how judges and legislators interpreted these big words to solve concrete issues. But we have no time for this here and our choice of cases would be arbitrary. Since the human is not a legal category, in order to keep life livable, and in order to retain some axiological meaning in law (whose anthropological function has been dried up by positivism), we can rely on the plain existence of human beings and on the value they have.[4] The human being traditionally appears in law clad in the category of the “person” as opposed to “things,” and this allows it to distinguish human from non-human, but not the human from the inhuman.We must identify the words that will be used in law to designate the human and, by opposition, the inhuman. In civil law and in constitutional law, one speaks today of the “human” person being entitled to “human” rights; but the concept of a legal person can be applied to non-human entities too. These two concepts are not necessarily identical. “Human” dignity, moreover, has been made into a legal principle. But is the “undignified” also “inhuman?” “Man,” “human,” “inhuman” have entered the legal vocabulary, but their meaning in concrete situations is still an open question. International law speaks of “mankind,” enabling a global and universal notion of humanity beyond the diversity of cultures and nations.
Humanity, as a physical and moral entity, appeared very recently in law as a reaction to politically programmed and industrially executed mass massacres: “the inhuman” had to be formulated within law as a “crime against humanity,” where Humanity sees itself as the victim, a humanity not quantitative but qualitative, meaning that all human beings belong as equals to mankind. Criminal law must give a well-defined shape to this idea by distinguishing “crimes against humanity” from other offences against persons[5] and by asking what precisely has been violated in the human, beyond—but through the immediate victims; it must also characterize the constitutive acts of these crimes and understand the forces pushing people to give the orders and to participate collectively in them. We must also ask how our beautiful, lauded humanism could give birth to those crimes. More recently, humanity has appeared within international law as a kind of legal subject in the notion of a “patrimony of humanity” or in “humanitarian law” concerning the right of interference. These are marginal notions.
Be it in negative, the inhuman as absolute evil, or in positive, the human as the value that must be protected, the idea of humanity has not been, or has not yet been legally conceptualized to the extent of becoming a legal category and a legal subject. This is even unnecessary. Even though jurists have actively reflected upon the inhuman,[6] the human in general escapes all but casuistic juridical analyses, perhaps because legal practice knows men better than Man, so that the law can convey its images of man without referring to a concept. This is probably even preferable, since all definition means exclusion, and a hasty normative determination of the human could mean turning down as inhuman or non-human all those who would not readily fit into the definition. All political utopias ending in terror have promoted such images: Aryan Man, Communist New Man, the Enlightenment’s Rational Man, the autonomous and free man who sees laws only as constraints. Today we see mounting the legal stage in turn biological man, numerical and biometrical man, neuronal man, virtual man and more generally consumer man, man reduced to a monetary value, an anonymous and interchangeable being without substance but with very well-defined personal characteristics useful for supermarkets and banks. The inevitable modeling of the consumer is by no means neutral. The only acceptable ethical posture is to recognize that there is no legal “design” for man, neither in the concrete reality of the law nor in morals, but that there are men, living, dead or to be born, who must accept the other man’s singularity, strange as he may be, and their common membership in mankind, diverse as it may be.
But law does not lack resources for drawing boundaries within humanity between the human and the inhuman. Civil and criminal law have means of distinguishing persons and things and can use them to distinguish the human and the non-human. Yet the distinction between persons and things is becoming blurred under the impact of life sciences and information technology, and even more under the influence of the market. This leads jurists to revise their categories and legal practice to invent complex and hybrid goods where the line between subject and object becomes vague. Being and having merge in financial values. This is not new and the experience of the legal status of slaves in the colonies shows that the law was never short of resources to de-humanize their condition as objects of property or to prepare the legal suppression of slavery. Could it be that the reaction to subtler and less obvious modern forms of accepted slavery comes from the displacement of the human/ non-human opposition in favor the human/ inhuman? If the inhuman is part of the human,[7] it is the protection of human dignity that now sustains a distinguishing principle. Dignity is of course not a factual notion; it is more like an axiom, subject neither to proof nor to argument,[8] “intangible” according to the German Basic Law, open to characterization in concrete circumstances. The respect of human dignity requires man to be treated “humanely,” neither more—man not being God—nor less—man being neither a thing nor an animal. This seems simple enough, at least in appearance.
II. Persons and Things: An Endangered Distinction
I will now use positive law to indicate signs of the erosion of a distinction between persons and things, and the fragility of identifying the inhuman in legal sanctions against offences to human dignity. This distinction goes back to Roman law and has lost nothing of its pertinence, since it is quite obvious. But “person”[9] and “thing” are complex concepts and their boundaries are being increasingly blurred in a world where man seems to be losing his specific place, in an a-human world. This is a disturbing phenomenon. All that is not a person (a so-called “limitative” legal category) is a thing (a so-called “residual” category); hence the importance of a qualification, since by definition the person is a subject demanding respect, while the thing is an object to be ruled by subjects.II.1. Legal Person and/ or Human Person: A Form of Legal Schizophrenia
According to many contemporary jurists,[10] the law has always distinguished the legal person, a purely technical concept necessary for the allocation of rights and duties, from the human person owning rights properly human such as the right to the personality’s protection and more generally human rights. The human being as a person with two heads may seem a strange notion, verging on absurdity when applied to one and the same individual. The human person as a bio-psychological reality would thus mount the legal stage only by means of the empty notion of a legal person. The distinction seems pertinent if one is to distinguish criminal law, which protects human persons by means of objective rules, from civil law, which grants legal persons subjective rights.[11] But elsewhere the distinction between the concrete individual and his abstract legal concept becomes very doubtful.Here are some examples: a child born disabled because of a medical mistake during prenatal diagnosis that prevented the mother from undergoing pregnancy discontinuation may invoke in his own name, as a legal person, the possibility of not having been born as a disabled human person, since he was born all the same; this would require admitting that the concrete individual born with an infirmity and his double, the abstract legal person, are two different persons.[12] Legal technique and the associated schizophrenic game with doubles are not easily intelligible to the broader public. The verdicts of the Judicial Supreme Court indicate legal trial and error in regulating selective birth management as a form of a liberal eugenics in our modern states. Another example: a two-year old child hurts his playmate. His action is judged as “culpable;” though the concept of culpability is unreasonable at this age, he can be held to be guilty as a legal person. The person here acts only as a link within objective causality, but the human person has vanished behind the legal person, the bearer of rights and duties.
The distinction between human and legal subject explains, among other things, the jurist’s frequent unease about the human body. While being an inseparable constituent of the human person, the body can equally be treated as a property of the legal person or that of a third party through contract. This issue is at the heart of bioethical debates. The ambiguities with the human body’s legal status as a biological resource come directly from this conceptual splitting of human beings and hampers the recognition of the freedom of the human person to use his body as an object distinct from himself, for the best and for the worst.
II.2. The Human and the Machine: Resource and Limit for Fictions
This distinction has always been a problem, but the courts sometimes manage to disqualify the machine: the prosthesis, for instance, to be implanted in a patient’s body, has been considered a “person by destination,” an element of the human body belonging inseparably to the person, which cannot therefore be seized in case of non-payment even before the actual implantation. The thing has been assimilated to the person, to its destination, through fiction. Will this apply equally to integrated interconnected electronic medical or police implants in human bodies? It will then be more difficult to avoid the submission of the person to the machine unless one introduces compelling rules corresponding to the given case. The person/ machine relationship is difficult to characterize in this case: either man turns into a machine to serve the purposes of surveillance, using implants as tools, or the implants vanish as parts of the body.The issue has been raised whether computers in networks should be treated as legal persons owing to the fact that they work like the human brain, which is also supposed to use a binary logic. These analogies are misleading. Can a computer be made responsible? What assets will cover the damages it produces? There would be hardly any legal advantage in treating computers other than as goods. Or else the person will become a fiction.
The same issue has arisen concerning robots. But this is a false problem for the law. The human passion for automatons and puppets will never turn these into legal persons. The jurist’s imagination is held within bounds by the reality principle. But this should not necessarily prevent the human person from being eventually treated, without saying so, as a “defective product,” as a thing lacking the biological qualities designed by genetic control prior to his birth. The logic of the law may indeed lead to uttering the cruel truth about biomedical techniques of reproduction when they fail. The individual would then be treated as a thing while being a person all the same. There are situations where the jurist is caught in an ethical impasse.
But it can also happen that things become humanized, the distinction between persons and things occurring within the machine: invoking respect for privacy, a verdict has ruled against an employer’s reading the personal electronic mail of an employee stored in the company’s computer.
II.3. Man and Animal
The debate is raging: some say animals are legal persons enjoying rights through representatives and seeing no reason for distinguishing them from humans. Genetics and animal protection work in their favor. If the genetic patrimony of large apes is hardly different from that of human beings, the apes must be the same species and deserve the same rights. Even superior rights, if one believes Peter Singer, who prefers large apes to disabled children. In fact, the argument of the identity of the gene pools only shows that genetics is not the difference. The legal issue has been settled and domestic animals are goods protected by objective law against human cruelty. As for wild animals, there are many kinds: those protected against man, those harmful, and those without a master and hence free for use, though only under hunting legislation. Qualifying animals as “persons” and granting them rights accordingly is useless and only adds to the confusion, whereas animal protection can be enforced by objective law.Xenografts may give a new turn to the question by further blurring the distinction between man and animal. Like the prosthesis, the animal organ integrated into the human body will share the person’s status. A court enforced compensation for the accidental death of a blind man’s dog as a form of bodily damage. The blind man could have received cash for the dog, but this would not have been sufficient. The court chose to take into account the dog’s function for the blind man and to compensate the loss as damage to his person.
This casuistic is confusing, but it reveals a crisis of categories caused by modern technologies as much as a free play of categories in legal practice, be they of things or of persons. A human person may be granted legal personality as a matter of fact, but this need not invariably ensure him a “humane” treatment.
II.4. The Person as a Monetary Value
Ethical rhetoric considers the person as having no financial value, since he is not a good. Slavery has been abolished; the person cannot be sold; he has been removed from legal trade, or, in terms of legal vocabulary, he is unavailable for trade by contract. This guarantees his freedom and protects him from slavery. Are these principles mere illusions?[13] Labor law was born precisely because of the reintroduction of the person, and more precisely of the worker’s body, into a contract that took into account, at the time of the civil code, only the economic value of labor as property of the employer.[14] The transformation of “labor” into a complex good, subject or not to ownership, required more than a century of fighting and many human disasters. The same holds for intellectual property and more precisely for authors’ rights, since the work of art still counts as “man’s work” and founds a moral right different from the copyright system. But the prevailing economic view may be right in accepting this alliance of the person with money and to consider only the economic value of work or art, free for contractual use in complicity with the authors themselves, at least a few of them.But there is more. The rights of the personality have become in turn property rights. A reversal has occurred: the protection of privacy (against the State, the employer, the press, individuals, etc.) has been transformed into the individual’s right to expose himself and to alienate attributes of his own person, his image, facts of his private life, traits of his character, his body, or to use his fame to supply the press or for commercial advertisement, even to identify himself with brand labels. All this has monetary value and brings profit for projections of the human person without making him into a slave, since he himself profits from it.[15] The stakes have been set and jurists have acknowledged a phenomenon now framed and not opposed by law. It will be the task of anthropology to interpret this consequence of the confusion of private and public space, or a space given over to public use by the great common denominator that reduces all things to mere ciphers. But this commercial logic induces resistances originating in the growing authority of “human dignity” over commercial freedom. What lies hidden behind this idea?
III. Dignity: The Criterion to Distinguish the Human from the Inhuman?
The explicit introduction of dignity into legal principles, those of international, as well as, constitutional and internal law, is recent and has been heavily discussed. Many see in it a return to a moral right opposing individual freedom. The indisputable fact that dignity has no a priori definition only exacerbates this ideological attitude. It is feared that judges will thereby obtain exorbitant powers. But legal standards must be made concrete; the art of it lies precisely in defining their value strictly enough so as to avoid devaluation.III.1. Strength and Fragility of the Criterion
Human dignity may appear as the last recourse to save some of humanism whose pride has been diminished by the consciousness of great evil done by men to men, including the good that they may have meant.[16] The amorality of economical and political systems must indeed be kept within limits using a norm exterior to their own logic. But one must be equally careful with big words without consequence, these hypocritical alibis of a feckless morality.[17] Still dignity, the theme of an obnoxiously pervasive literature, is causing in-depth debate. One must choose between two opposing positions that leave no room for compromise: a subjective concept of dignity ceding all freedom to the individual, the sovereign and autonomous subject, to decide what for him is dignified or undignified. Free will is then almighty and personal consent suffices to justify undignified relationships or behavior; dignity is thus open to negotiation and the State can no longer impose respect for it against the will of individuals; freedom rules but there is a loss of social bonds. According to the second position, which seems indeed to be that of French and German courts, dignity is an objective value, an axiom, not open to discussion, to negotiation, to exception. As a fundamental right it is new, even though the word itself is not new.[18] It is not a human right in the classical sense since it lacks a matching opposite principle; standing above all, it sets limits to all right, power, and freedom. It is not a subjective right but a duty, a task even toward the least dignified among us: Klaus Barbie enjoyed an equitable trial.[19]It is therefore essential to determine the exact meaning of dignity to avoid it becoming an idle word, or to identify circumstances in which ignorance of its meaning must be sanctioned. I will give only legally positive examples on account of the controversies and the disputes concerning its content and function. Bear in mind, however, that law defines neither dignity nor good in general, trying instead to determine its contrary, namely evil.
III.2. The Human Being: A Subject with Dignity
One of the advantages of the principle is to allow going beyond the person to reach the human even in the absence of the person. The dead, for instance, who are no longer persons, are still human beings and are protected on account of human dignity.[20] By applying the same reasoning to human embryos and their cells, they not being persons yet still being human individuals, one should conclude that human dignity opposes their scientific and imminent industrial use.The content of the principle of dignity requires distinguishing criminal law from other legal areas not concerned primarily with repression but only with setting limits to otherwise perfectly legal activities.
III.3. Criminal Offences against Dignity and Humanity
III.3.a. Crimes against Humanity
The definition of a criminal offence must be accurate and obey the principle of legality.[21] Prior to the 1994 definition of these crimes in criminal law, French courts had to characterize them for the trials of Klaus Barbie (1987), Paul Touvier (1994), and Maurice Papon (1998): cases and verdicts that were as interesting as they were horrible and that highlighted a long repressed French history. The qualification as crime against humanity has since fallen under international law thanks to the creation of the International Criminal Court, but without weakening the powers of national law and legislation.Designating these crimes as “inhuman” clearly indicates that mass killings not only aim at destroying life, but that their main objective is the destruction of an entire human group for political, racial, religious, or ethnic reasons (list not exhaustive), and hence to deprive mankind of a particular cultural and historical element of its diversity. The inhuman also manifests itself in the posture taken by the defendants, who nearly never seem to be able to realize what they did nor to take responsibility for their acts. But then there is also the rationality behind the organization of these crimes, which is just as significant: an insane rationality, but still a rationality!
The inhuman is conceived differently in “offences against human dignity,” as in C.L. articles 225-1 to 224, which sanction discrimination, trade with human beings, pandering or the prostitution of minors, offences against the respect due to the dead, labor or lodging conditions contrary to human dignity, etc. There is much to say about the concept of dignity in these texts and about what they consider to be “undignified.” The difference from crimes against humanity lies not only in the physical acts that constitute one or the other, but also in the fact that crimes against humanity presuppose “coordinated planning” and an authoritative organization involving several public or private persons. But in both cases the offence is against “human dignity,” as well as, against human life.
III.3.b. Crimes against Mankind
The idea of crimes against humanity has been discarded in France as a means of preventing and sanctioning offences against humanity such as biotechnologies of human reproduction. French legislation here started on a slippery slope, more so than elsewhere (Italy or Germany), though less so than in more liberal countries (England, Spain). France agreed in 2004 to designate eugenics and reproductive cloning as “crimes against mankind;” this therefore entails the use of “humanity” in the biological sense. But the definition of these practices has proven very difficult. Why refer to “mankind” rather than humanity? Eugenics is defined as the “organization of the selection of persons,” but the organizers deny practicing a eugenic policy and case law follows suit; the practices have eugenic effects, but mostly without an organizational intention.[22] Certain practices plausibly designated as eugenic will escape sanction unless an improbable legal turnaround occurs.Cloning is a crime against mankind defined in C.L. article 214-2 as “an intervention aiming at the birth of a child genetically identical to another person.” Its being a crime would not prevent the recognition of an actually cloned individual as a human being; but, unless we assume his sexual otherness, it is difficult to conceive how he would feel as a free and normal being or who would be his natural parents. The regressive tendencies of certain biomedical practices do not aim at a hominization of the species nor at its humanization. Trials are rare, perhaps because embryos reduced to laboratory material “for the progress of science” neither suffer nor could they complain.
III.4. Other Sanctions for Offences against Dignity
These may occur within various contexts: here are a few examples from case law showing how dignity sets limits to freedom.On May 28, 1996, the Judicial Supreme Court in Paris condemned the Benetton company for using an advertisement that showed the bodies of faceless and therefore unidentifiable AIDS patients, tattooed with a motif similar to that of deported persons, on the grounds that it “exploited to commercial ends a picture that is derogatory to the dignity of the patients and is an abuse of the freedom of expression.”
On October 29, 1995, the Adminstrative Supreme Court confirmed a mayoral decision to prohibit “dwarf throwing,” a spectacle that consists in having a spectator throw a dwarf, where the projectile is a physically disabled person. The dwarf invoked labor freedom for his defense and the producer of the show invoked freedom of enterprise. The case went all the way up to the United Nations Committee for Human Rights (Declaration of July 15, 2002, Wackenheim c/France), which took the same position as the Administrative Supreme Court. The prohibition must protect the dwarf’s dignity, but also that of the spectators, since it is undignified to enjoy another person’s disability and to exploit it for pleasure.
On December 20, 2000, the Judicial Supreme Court ruled that the publication of a photograph showing the body and face of a murdered person lying on the highway was an offence to human dignity (the person was the Prefect of Southern Corsica). The decision was justified by the indecency of the picture and by its use to produce a sensational effect.
On October 14, 2004, the Court of Justice of the European Community ruled that respect for human dignity could justify a member state prohibiting the marketing of a game that simulates homicidal acts, as a legitimate restriction of commercial freedom.
Finally, on November 25, 2008, the High Chamber of the European Patent Office banned the patenting of cells coming from human embryos as being contrary to public order and to human dignity.
One should also quote many decisions concerning detained persons, police behavior, discrimination, the right to decent housing, humiliating practices and bodily punishments that show civilizational progress on the one hand, but the increase of all kinds of violence on the other. In conclusion, I do not want to suggest that I have much faith in the efficiency of the law, which never prevents evil, not even the worst of it. But at least law names evil and fights against it.
Our positive law is in many respects in havoc and its picture of man suggests a being afflicted with schizophrenia. The human subject is a divided being, psychoanalysis says, and the law would be our mirror, showing us a mirror image of society and of its contradictions. But the law still provides a non-political yet combative means to restore reason and justice, even if these are fragile and occasional. Law may have only a symbolic value, but it remains, in spite of its mistakes, a sign of the possible humanization of our Western traditions: even if the biological evolution of man and hominization have come to an end, as biologists claim, our humanization continues. Let us bear in mind the anthropological danger once we have identified it. This is a labor of Sisyphus that cannot be carried out by jurists alone.
Stuttgart, November 21, 2009