Interrupting the Legal Person: Volume 87B

Reflecting on the myriad instances where juridical recognition demands a story, confession, testimony on suffering, or evidence of trauma – this chapter considers the role of storytelling and narrative in constituting the legal person, their persona, and relationship they have to a community or the state. What are the forces that drive the demand to give an account of oneself? What are the reasons for, and implications of, resisting the injunction to reveal all? Going beyond the usual bounds of juridically recognised testimony and evidence – the author considers how memory moves across time and space in human and non-human material formations. These questions are posed to open discussion of a wider concern about the autonomy and heteronomy of law. Looking beyond the separation of law and morality in positivist jurisprudence – the autonomy/heteronomy distinction is a means of getting at the co-constitution of the human and non-human. The discussion thus ranges across the philosophies of history that constitute autonomy/heteronomy – examining the tension between confidential stories of those who have suffered abuse, and the state’s archival drive to preserve such material; literary and metaphorical devices for narrating the past; and a consideration of nature and destruction where the human plays an infinitesimal part in making history.

In the first decades of the nineteenth century to the first decade of the twentieth century, the US Federal and Supreme Courts heard several cases on the legal status of ships. During this period, Chief Justice John Marshall and Justice Joseph Story determined that a ship was a legal person that was capable to contract and could be punished for wrongdoing. Over the nineteenth century, Marshall and Story also heard appeals on the illegal slave trade and on the status of fugitive slaves crossing state lines, cases that raised questions as to whether enslaved peoples were persons or property. Although Marshall and Story did not discuss the ship and the slave together, in this chapter, the author asks what might be gained in doing so. Specifically, what might a reading of the ship and the slave as juridical figures reveal about the history of legal personhood? The genealogy of positive and negative legal personhood that the author begins to trace here draws inspiration and guidance from scholars writing critically of slavery. In different ways, this literature emphasises the significance of maritime worlds to conceptions of racial terror, freedom, and fugitivity. Building on these insights, the author reads the ship and the slave as central characters in the history of legal personhood, a reading that highlights the interconnections between maritime law and the laws of slavery and foregrounds the changing intensities of Anglo imperial power and racial and colonial violence in shaping the legal person.

The initial jurisprudential response to the gig economy above has included the exploration of two new legal personae: algorithmic persons and dependent contractors. The author uses the word ‘exploration’ here, because neither figure has become an established character on the legal landscape in the United States – yet. Given the sector’s claims of absolute novelty, it may seem that the best way to develop regulations is to identify new positions and actors, define them, and then apply existing regulations and expectations or develop new ones accordingly. This chapter explains why this approach is misguided. First, legal personae have only a tangential relationship with actually existing human beings. Much regulatory energy could be caught up in elaborate definitions and descriptions intended to develop robust regulation, only to find that they create the blueprint for future business models that avert these very frameworks. Second, these legal personae are developed within the existing frameworks of employment law and corporate regulation, which in the United States, are determined by a phantasmagoric understanding of ‘the market’. Unless this basic framework is questioned, one can expect that these new legal personae will fail to protect actual workers and consumers.

This chapter compares a ‘deific decree’ insanity case with constitutional originalism debates as a way to understand the boundaries of the legal person and the nature of law. The criminal defendant who claims innocence on the ground that ‘God told me to’ does not embody a conflict between law and religion, but a conflict between law’s demand for intersubjectivity and the subjectivity of a ‘higher truth known only to me’. In the same way, the originalist interpreter of the constitution rejects precedent in favour of a higher truth that need not be ‘like’ anything before. One approach to broaching this conflict between law and revelation is to understand law’s domain as temporal and incomplete – to imagine a humble rather than absolute law. On this view, the person is also not ‘absolute subjectivity’, but is compelled by legal fidelity to treat like alike and therefore under an obligation to imagine a ‘me’ as ‘we’. Or, to put it another way, to bring the person and the law into relationship is to reject a ‘revelatory’ interpretation of ‘original’ or ‘divine’ law in favour of an incompletely intersubjective common law that links me to we through customs and time. At the same time, by acknowledging law’s incompleteness, we can see unreasonable revelation sometimes as a possibility and not always as an insanity.

Law requires translations in order to make the mundane world legible to the legal sphere. This translation requires transposing an infinite landscape of ethical possibilities into a set number of categories, modes of speech, reasoning, and histories. The body represents both a challenge to this translation while illuminating the historical contingency of the contaminants that ineluctably shape law’s responsiveness. This chapter is concerned with the way the figure of the body in law acts as a kind of absent presence through the writ of habeas corpus, what Roberto Esposito (2015) calls ‘the silent mechanism that facilitates the passage from one mechanism to another through the chain of symbols engendered by its very presence’. The author would like to trace this chain of symbols which permits the passage from differing legal mechanisms through the history of the writ of habeas corpus to examine how it served as one vehicle through which law established predominance in Colonial British Columbia. Through British Columbia colonial legal history, this chapter will examine how Habeas corpus was used to more than merely seize jurisdiction but, more pointedly, to mobilise images of sovereignty to bolster local, contingent, and contextual forms of authority and sovereignty. In the end, the author’s argument will contribute to an understanding of the various mechanisms and discourses that sought to envelope the differing peoples, landscapes, and topographies of British Columbia into a single normative and affective legal atmosphere, as lawmakers sought to distinguish themselves from their southern neighbour’s colonial experience.

This chapter examines the 1999 trial of Aaron McKinney for the murder of Matthew Shepard, a gay student at the University of Wyoming whose death propelled forward an incipient movement to legislate against hate crimes. It explores the competing ways in which Aaron McKinney was conjured as a legal persona, defined through the opposing lenses of gay panic and of homophobic hate. It situates those personae in conflicting narratives of criminal culpability emerging out of indeterminate legal doctrines and definitions (the unwritten law; the meaning of ‘malice’), and argues that in conjuring them, adversarial criminal trials necessarily destabilise the ‘default legal person’. In doing so, trials performatively reconstruct the past in ways that both mark and mask a past events. In the McKinney case, contests over his culpability emerged against a backdrop of loss, both epistemological and affective, generating a projective reckoning with Shepard’s death in ways that enabled a politically transformational mourning process.

In this short chapter, we seek to begin to understand what it might mean to ‘interrupt the legal person’. We do this in two parts. In the first part, we begin with the phrase itself and interrogate its components. Interrogating these components leads us to think of the legal person as a technical and grammatical question that varies across different legal traditions and jurisdictions, i.e., across different ways of living and speaking law (recall that juris-diction says to speak the law). In the second part, we briefly explore four versions or declinations of interruptions, each corresponding to a different kind of juris-diction or legal tradition. We see this chapter as itself a friendly interruption in (or of) a broad and rich conversation so as to encourage ourselves to be struck again by some things we may take for granted.