What is the human, anyway?
Colin Dayan is the Robert Penn Warren Professor in the Humanities at Vanderbilt University and Professor of Law. Her books include Haiti, History, and the Gods; The Law is a White Dog: How Legal Rituals Make and Unmake Persons; The Story of Cruel and Unusual; and, most recently, In the Belly of Her Ghost and Animal Quintet. Her articles on prisons, torture, dogs, and the South have appeared in The Yale Review, Southwest Review, the Los Angeles Review of Books, Boston Review, and the London Review of Books. In 2012 she was elected to the American Academy of Arts & Sciences.
Let me begin with Herman Melville, the lone writer in the so-called “American Renaissance” who tackled the question of the human as terminological quest romance and racial conundrum. In “Bartleby,” the bookish narrator gazes upon the recalcitrant scrivener and reflects elliptically: “had there been anything ordinarily human about him….”. In Melville’s novel Pierre, Isabel roots herself in the living landscape of her dream and loses “the power of being sensible of myself as something human.” Giving affect and sensitivity to the nonhuman, Melville encourages his readers to confront the limits and dangers of that value-laden term “humanity,” as well as enlightenment assumptions about the boundaries of consciousness. His whales have more affect and sensitivity than his mariners. Melville recognized the lure of whatever was, in his words, “something more than humanly significant.”
At the edge of a cherished humanism, I introduce an uncertain reservoir on which all creatures might draw but from which most humans have learned to cut themselves off completely. Instead of opposing humans to animals, we need to question the limits of humanity. At this time of pious surmises about humane treatment, teacup dogs (sized to fit the human palm) and all kinds of hybrids produced for consumption by people, we need to forego the question of how and where we draw the line between humans and animals. Instead, we need to apprehend how, where and why human beings, often quite arbitrarily, devise, formulate and apply the lines separating human and animal—or deliberately blur them.
In my forthcoming Animal Quintet, the more I thought about the South, the more I realized that animality not humanity is what I needed to think about. Reason is a problem not a privilege; and lives lived close to the soil and in the flesh have much to offer, not just for anthropologists, but for anyone who longs to know another kind of politics outside the wrack and ruin of humankind. Can we unmask the order of things by dislocating our attention from the habits of the human eye? My overriding aim is for us to question the status of the human, and like Melville’s Isabel, find ourselves reveling in a sentience that can be known only through what lies beyond human life. The experience of the crisis of spirit (popularly called “possession”) in vodou also captures that mutual adaptation and reciprocal entangling: taking us into another modality of spirit—a pre-linguistic place of inhabitation that promises to grant us parapossession at the wounds of dispossession.
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Gradations of personhood are articulated in law, whether stigmatized bodies or devalued minds. As a locus of embodied history, law became crucial to understanding what it meant when slaves, formerly property, were freed into another kind of status that simply exchanged one kind of bondage for another. Even after emancipation, to the extent that former slaves were allowed personalities before the law, they were regarded chiefly—almost solely—as potential criminals. The 13th Amendment to the Constitution abolished slavery “except as a punishment for crime whereof the party shall have been duly convicted.”
Haunting this prohibitive clause is the deodand in early law. Not only could objects kill, but they could cause death with intent. Whether inanimate (a tree or the wheel of a cart) or animate (a horse or dog), they were believed to possess an evil will and were known as “deodand,” meaning “what must be given to God” (Deo dandum). Whether beasts, slaves, or things, they had to be surrendered in recompense for blood casually shed.
In English law this peculiar practice centered on forfeiture of the offending object not to the victim or his kin, but to the Crown. Any personal chattel that caused the death of any reasonable creature was believed to carry homicidal taint and malicious influence. In these deaths by misadventure, the sword, cart, tree, dog, or horse that in legal language moved to the death of a person would be surrendered to the king as both expiatory offering and restitution by the owner of the wrong-doing thing. This medieval English practice resurfaced in eighteenth-century America, when slavery instituted a transatlantic domain of punishment and possession.
Law’s artificial unreason coalesced in a continuum of reinvention in the colonies. Delivering the slave up to justice in the antebellum South, for example, freed the master from his chattel’s sin; and often the master would even receive restitution from the state for his loss. The “non-human” lurked in the background of these barters. Penal laws in terrorem (for dread or deterrence), the legal terror so much a part of the perpetuation of slavery, depended on keeping intact this fitful valuation of persons and things.
The very constitution of the slave was transformed, and this metamorphosis focused on the unique personhood of the slave. Can slaves have agency? Since slaves gain a legal personality in committing a crime, we can infer that slave law had to give them awareness and responsibility, the consciousness that Locke insisted on as necessary to the person, in rendering them accountable in law. Recall that for Locke person unlike human is a forensic term: a legally binding complex of consciousness, sensation, and memory. But given the necessities of civil incapacity for sustaining servile status, it should not be surprising that the task of judicial reasoning became double-edged: to pry away consciousness from the slave in civil society, but to re-attach it once the slave enters the region of crime. The fiction goes something like this: Slaves can commit criminal but not civil acts. Their only possible act, recognized by society and by law, is a negative one.
A series of legal fictions, thought puzzles and ethnographic quandaries prove that not only do slaves have no legal mind, but they can own nothing. No act of self-possession is legally possible. Everything redounds to the master. Sensibility, passion, affection, and appetite are incorporated into this representation of slaves, while the rational faculties such as the intellect, will, and the moral sense—or conscience, which, as in Locke’s Essay, is closely intertwined with consciousness, and hence personal identity—are excised from this portrayal. With that exemption, the legal rhetoric of protection and allowable injury continued—not just in the treatment of prisoners, or “slaves of the state,” but also in the treatment of other mammals. It is in the treatment of animals and the projection of “animal welfare” that we see how easily status can not only sustain prejudicial harm but lead to the possibility of further abuse, when animal treatment only has to meet “the minimally acceptable standard,” for example in the Animal Welfare Act of 1966. To apply personhood to animals is not invariably to secure them from harm but only to subject them to law.
Animal rights talk gives animals what it is we think we get as bearers of rights and obligations in standard liberal and moral terms. But it’s time to push beyond rituals of law and the residual humanism that lingers in such considerations of the rights of personhood. What, beyond personhood, might make something an object of moral concern? We need to question the boundaries of humanity, or, more precisely, the making and management of human boundary objects.
Empathetic entanglement, upsetting such divisions as human and non-human, may be the means out of rationality and the pernicious presumptions that have tormented other species and assailed our environment. In responding to the state of injury, pain and violence of this world, we need to step back and ask how we can know feeling that is not tied to our assumptions. This means that “personhood” and its opposite, “depersonalization”or “depersonification,” might not supply the terminological framework we need in trying to include all sentient beings in a new ethics of replenishment and redemption.
Let me again take the drama of vodou, and its lwa—its spirits or gods—as instructive. The lwa can only manifest in the corporeal envelope: in lineaments both human and nonhuman, spirits experience life and unfold their potential. The epistemology of vodou therefore offers a context for reconfiguring our understanding of the supernatural—not impalpable or ideal but rather all-too natural, or natural to the nth degree. Vodou’s understanding of sentient life takes us beyond personhood by exploding terms such as “humanism,” and its call to the “universal,” as it bridges the gaps between body and mind, dead and living, human and nonhuman.
Animality is what we should be thinking about, rather than claims for humanity. Animals live on the track between the mental and the physical and sometimes tease out a near-mystical disintegration of the bounds between them. Such knowing has everything to do with perception, attentiveness that unleashes another kind of intelligibility beyond the world of the human. Beyond personhood we might sketch a landscape of resistance that skirts transcendence and goes beyond human-centered ideas of personal identity. The world of the vulnerable and the violated prompts us to recognize the creatureliness of all things.