Posts Tagged ‘property’

Roberto Esposito “The Dispositif of the Person”

August 23, 2017 Leave a comment

Esposito, Roberto 2012. The Dispositif of the Person. Law, Culture and the Humanities 8: 17-30.

The concept of person functions as the crucial passage through which a biological material lacking in meaning becomes something intangible. Only a life that has crossed beforehand through the symbolic door of the person is believed to be sacred or is to be valued in terms of its qualities since only life is able to produce the proper credentials of a person. (18)

[…] the notion of person isn’t able to join together the epochal hiatus between life and rights, between nomos and bios, since it is the notion of person itself that produces it. (19)

When we move, however, from the doubled nature of Christ to what makes man a totality composed of soul and body, the qualitative difference between the two elements becomes decisive. Rather than being equal, these elements are actualized in an ordering [disposizione] or more precisely in a dispositif that layers or superimposes one under the other. Such an hierarchic effect, which is quite clear in Saint Augustine, extends to all Christian doctrine so that there cannot be the least doubt: although the body isn’t in itself something evil (because it too is a divine creation), nevertheless it constitutes that part of man which is animal. (20-21)

Here too in a formulation unsurpassed in its dogmatic clarity, the Christian idea of person is tethered to a unity that isn’t only constructed from a doubleness, but is put together in such a way that one of its elements is subordinated to another, separating it from God. Yet the distancing from God also means diminishing or degrading humanity since humanity only finds its ultimate truth in relation to the Creator. This explains how Saint Augustine can describe the necessity of meeting man’s bodily needs as an ‘‘illness’’ (De Trinitate, XI, 1,1) in the sense that this part isn’t properly human in man, or how Augustine can say that these needs make up the impersonal part of the person. (21)

Man is a person if and only if he masters the more properly animal part of his nature. He is also animal but only so as to be able to subject himself to that part which has received the charisma of person as a gift. (22)

On the one hand, person is the more general category since it encompasses the entire human species. On the other hand, it is the prism through which the human species is separated in the hierarchical division between types defined precisely by their constitutive difference. Such a characterization doesn’t have meaning outside of the ius, which is to say that the homines take on the guise of personae only de iure (and therefore are situated in distinct categories) is further proof of the performative power of law [diritto] in general and of the notion of person in particular. It is thanks to the category of person that human beings are unified in the form of their separation. (22)

Outside of this differential logic, a right would never exist as such, but instead would merely constitute a juridically irrelevant given; and indeed it wouldn’t even be spoken of as such. Consider in this regard the irresolvable antinomy of so-called natural rights, the aporia of defining an artifice as natural or a fact of nature as artificial. (23)

What is striking here, even more than the absolute clarity of the distinctions, are the zones of indistinction and transition which the first distinctions give rise to in their continual movement. If the servile res, those homines who are reduced to strumentum vocale, are in some way contained within the most generalized form of the person, this means that the category of person encompasses all the intermediate stages of the person over time; of the potential person as well as the semi-person up to and including the non-person. It also indicates that the person not only includes its own proper negative within it, but constantly reproduces the negative.8 Seen from this perspective, the mechanism of depersonalization is the reverse of personalization and vice-versa. It isn’t possible to personalize someone without depersonalizing or reifying others, without pushing someone over into the indefinite space that opens like a kind a trap door below the person. Silhouetted against the moving backdrop of the person looms the inert figure of the thing. (24)

The person doesn’t coincide with the body in which it inheres, just as the mask is never completely one with the actor’s face. In this case as well the element that most strongly characterizes the “machine” of the person is to be traced in the subtle interval that always differentiates it from the character [personaggio] that acts, regardless of the qualities of the actor. (25)

We should also note that from the end of the 18th century on, men are declared equal (at least in principle) as subjects of law [diritto]. Still the formal separation of different typologies of individuals, driven out from the domain of species, is transposed, so to speak within the single individual, and which is doubled across two different and layered spheres: one capable of reason and will and therefore fully human and the other reduced to biology, practically assimilated to the animal. While the first, called person, is considered to be the center of juridical imputation, the second, coinciding with the body, constitutes on the one hand the required layer and on the other hand a piece of property akin to an internal slave. (25)

John Locke “Second Treatise On Government”

Locke, John 1980. Second Treatise On Government. Indianapolis; Cambridge: Hackett Publishing.

[…] no body has originally a private dominion, exclusive of the rest of mankind, in any of them, as they are thus in their natural state: yet being given for the use of men, there must of necessity be a means to appropriate them some way or other, before they can be of any use, or at all beneficial to any particular man. (18-19)

Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this no body has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his. Whatsoever he removes out of the state that nature hath provided, and left it in, he hat mixed his labour with, and joined to it something that is his own, and thereby makes it his property. (19)

We see in commons, which remain so by compact, that it is the taking any part of what is common, and removing it out of the state nature leaves it in, which begins the property; without which the common is of no use. And the taking of this or that, does not depend on the express consent of all the commoners. (19)

But the chief matter of property being now not the fruits of the earth, and the beasts that subsist on it, but the earth itself; as that which takes in and carries with it all the rest; I think it is plain, that property in that too is acquired as the former. As much land as a man tills, plants, improves, cultivates, and can use the product of, so much is his property. He by his labour does, as it were, inclose it from the common. (21)

[…] the condition of human life, which requires labour and materials to work on, necessarily introduces private possessions. (22)

[…] though the things of nature are given in common, yet man, by being master of himself, and properietor of his own person, and the actions or labour of it, had still in himself the great foundation of property; and that, which made up the great part of what he applied to the support or comfort of his being, when invention and arts had improved the conveniences of life, was perfectly his own, and did not belong in common to others. (27)

[…] but freedom is not, as we are told, a liberty for every man to do what he lists: (for who could be free, when every other man’s humour might domineer over him?) but a liberty to dispose, and order as he lists, his person, actions, possessions, and his whole property, within the allowance of those laws under which he is, and therein not to be subject to the arbitrary will of another, but freely follow his own. (32)

Man being born, as has been proved, with a title to perfect freedom, and an uncontrouled enjoyment of all the rights and privileges of the law of nature, equally with any other man, or number of men in the world, hath by nature a power, not only to preserve his property, that is, his life, liberty and estate, against the injuries and attempts of other men; but to judge of, and punish the breaches of that law in others, as he is persuaded the offence deserves, even with death itself, in crimes where the heinousness of the fact, in his opinion, requires it. But because no political society can be, nor subsist, without having in itself the power to preserve the property, and in order thereunto, punish the offences of all those of that society; there, and there only is political society, where every one of the members hath quitted this natural power, resigned it up into the hands of the community in all cases that exclude him not from appealing for protection to the law established by it. (46)

Those who are united into one body, and have a common established law and judicature to appeal to, with authority to decide controversies between them, and punish offenders, are in civil society one with another: but those who have no such common appeal, I mean on earth, are still in the state of nature, each being, where there is no other, judge for himself, and executioner; which is, as I have before shewed it, the perfect state of nature. (47)

And thus the common-wealth comes by a power to set down what punishment shall belong to the several transgressions which they think worthy of it, committed amongst the members of that society, (which is the power of making laws) as well as it has the power to punish any injury done unto any of its members, by any one that is not of it, (which is the power of war and peace;) and all this for the preservation of the property of all the members of that society, as far as is possible. (47)

If man in the state of nature be so free, as has been said; if he be absolute lord of his own person and possessions, equal to the greatest, and subject to no body, why will he part with his freedom? why will he give up his empire, and subject himself to the dominion and controul of any other power? To which it is obvious to answer, that though in the state of nature he hath such a right, yet the enjoyment of it is very uncertain, and constantly exposed to the invasion of others: for all being kings as much as he, every man his equal, and the greater part no strict observers of equity and justice, the enjoyment of the property he has in this state is very unsafe, very unsecure. This makes him willing to quit a condition, which, however free, is full of fears and continual dangers: and it is not without reason, that he seeks out, and is willing to join in society with others, who are already united, or have a mind to unite, for the mutual preservation of their lives, liberties and estates, which I call by the general name, property. (65-66)

[…] The supreme power cannot take from any man any part of his property without his own consent: for the preservation of property being the end of government, and that for which men enter into society, it necessarily supposes and requires, that the people should have property, without which they must be supposed to lose that, by entering into society, which was the end for which they entered into it; too gross an absurdity for any man to own. (73)