De Iure Hominis et Homunculi: Rights, Tristram Shandy, and the Legal Language of Isolation
McGill University - Faculty of Law; Institute of Comparative Law
July 31, 2013
Werner Gephart & Jan Christoph Suntrup (eds.), Rechtsanalyse als Kulturforschung (Frankfurt am Main: Vittorio Klostermann, 2013, Forthcoming)
In Laurence Sterne’s 1759 comic novel, Tristram Shandy, we encounter a startling invocation of protected individual rights, the individual in this case being the hapless proto-human Homunculus destined to become the titular character. Decades before the revolutionary declarations of rights, Sterne, Thomas Jefferson’s favourite author in matters of moral philosophy, blatantly ridicules the idea of the self-evidence of rights. Sterne’s satirical “rights-talk” captures two important facets: the atomistic, alienating aspect of perceiving human relations through the lens of rights, as famously criticized by Marx and so many others ever since; and the way in which drawing on genuinely legal concepts has contributed to the development of this often criticized language of isolation. In this paper, I trace, in particular, the ideas of Natural law scholars like Grotius and Pufendorf (who is explicitly referred to by Sterne) who conceptualized rights as non-relational, as domains, modelled on the Roman law concepts of dominium, ownership, and patria, the power of a pater familias over his household, both concepts that are characterized by domination over objects or human beings. Yet a theory of rights that insists on the integrity of exclusive spheres of power cannot easily accommodate non-transgressive intersubjective action – most importantly, contract. Nonetheless, the rhetoric of the protected sphere of the subjective right never left the language of law.
Number of Pages in PDF File: 25
Keywords: Rights, Rights-Talk, Rights Critique, Human Rights, Natural Law, Roman Law, Ownership, Contract, Transfer Theory, Atomism, Alienation, Grotius, Pufendorf, Marx
JEL Classification: K00, K10, K11, K12, K19, K40, K49Accepted Paper Series
Date posted: August 5, 2013 ; Last revised: August 7, 2013
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