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Persons and Things

From the Body's Point of View
Polityerschienen am01.07.2015
What is the relationship between persons and things? And how does the body transform this relationship? In this highly original new book, Roberto Esposito - one of Italy's leading political philosophers - considers these questions and shows that starting from the body, rather than from the thing or the person, can help us to reconsider the status of both.

Ever since its beginnings, our civilization has been based on a strict, unequivocal distinction between persons and things, founded on the instrumental domination of persons over things. This opposition arose out of ancient Roman law and persisted throughout modernity, to take its place in our current global market, where it continues to generate growing contradictions. Although the distinction seems to appear clear and necessary to us, what we are continually witnessing in legal, economic, and technological practice is a reversal of perspectives: some categories of persons are becoming assimilated with things, while some types of things are taking on a personal profile.

With his customary rigour, Roberto Esposito argues that there exists an escape route out of this paradox, constituted by a new point of view founded in the body. Neither a person nor a thing, the human body becomes the decisive element in rethinking the concepts and values that govern our philosophical, legal, and political lexicons.


Roberto Esposito is Professor of the History of Political Thought at the University of Naplesmehr
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Produkt

KlappentextWhat is the relationship between persons and things? And how does the body transform this relationship? In this highly original new book, Roberto Esposito - one of Italy's leading political philosophers - considers these questions and shows that starting from the body, rather than from the thing or the person, can help us to reconsider the status of both.

Ever since its beginnings, our civilization has been based on a strict, unequivocal distinction between persons and things, founded on the instrumental domination of persons over things. This opposition arose out of ancient Roman law and persisted throughout modernity, to take its place in our current global market, where it continues to generate growing contradictions. Although the distinction seems to appear clear and necessary to us, what we are continually witnessing in legal, economic, and technological practice is a reversal of perspectives: some categories of persons are becoming assimilated with things, while some types of things are taking on a personal profile.

With his customary rigour, Roberto Esposito argues that there exists an escape route out of this paradox, constituted by a new point of view founded in the body. Neither a person nor a thing, the human body becomes the decisive element in rethinking the concepts and values that govern our philosophical, legal, and political lexicons.


Roberto Esposito is Professor of the History of Political Thought at the University of Naples
Details
Weitere ISBN/GTIN9780745690681
ProduktartE-Book
EinbandartE-Book
FormatEPUB
Verlag
Erscheinungsjahr2015
Erscheinungsdatum01.07.2015
Seiten144 Seiten
SpracheEnglisch
Dateigrösse189
Artikel-Nr.3201272
Rubriken
Genre9201

Inhalt/Kritik

Leseprobe
1
Persons
Possession

From time immemorial our civilization has been based on the most clear-cut division between persons and things. Persons are defined primarily by the fact that they are not things, and things by the fact that they are not persons. Between the two there appears to be nothing: neither the sound of words nor the commotion of bodies. The world itself seems to be nothing other than the natural fault across whose line persons acquire, or lose, things. Roman law, starting from Gaius Institutions, established the division between actions, persons, and things as the bedrock for all legal systems.1 True, this text hardly represents the entire Roman legal conception, but the influence it has exerted on modernity as a whole has been crucial. Few other formulations have exercised an effect of this magnitude for so long. The entire human experience has been cut off by a line that allows for no other possibilities. Every entity the law deals with, if not an action, is either a person or a thing, according to a simple, clear distinction - a thing is a non-person and a person is a non-thing.

The relation between them is one of instrumental domination, in the sense that the role of things is to serve or at least to belong to persons. Since a thing is what belongs to a person, then whoever possesses things enjoys the status of personhood and can exert his or her mastery over them. Certainly, there are some things that we cannot dominate and that, indeed, in some ways dominate us because they are more powerful than we are, such as the forces of nature - the height of the mountains, the waves of the ocean, and the trembling of the earth. But in general things are considered to be slaves who never say a word, at the service of persons.2 They literally take the place of servants. For if every tool could perform its own work when ordered, Aristotle remarks, quoting a famous verse from the Iliad (XVIII, 376) [. . .] the master-craftsmen would have no need of assistants and masters no need of slaves. 3 We need things. Without them, people would be deprived of everything they need to live, and, ultimately, of life itself. For this reason, the things that we possess are defined as goods, the totality of which constitutes what today we still call patrimony - with reference to pater. There s good reason to reflect on the fact that the idea of good coincides with the idea of a thing that we possess: a good is not some positive entity, or even a way of being, but something that we possess.4 This testifies to the absolute primacy of having over being that has characterized our culture for some time now: a thing is not first and foremost what it is but rather what someone has. It is a possession to which nobody else can lay claim. Although things were given to human beings in common, they always end up in the holdings of an owner who can have them at his or her disposal, use them, and even destroy them as he or she pleases. They are in the hands of anyone who possesses them.

The latter expression must be understood in its most literal sense. The hand that grasps and holds is one of the distinguishing features of the human species. With many animals, observes Elias Canetti, it is the armed mouth itself which does the seizing, instead of hand or claw. Among men the hand which never lets go has become the very emblem of power. 5 When we talk about our hand as the organ that humanizes the world by creating artifacts or sealing promises, there is a tendency to neglect a much more ancient act, that of bare appropriation. The thing belongs first and foremost to whoever grabs it. To be on hand means, prior to being readily available, to be in the grip of whoever possesses it. In order to lay claim to the disputed ownership of a thing, in the Roman forum the litigants physically placed a hand on it before the magistrate. Conserere manum, to cross your hands on the disputed thing, was an act closely linked to the physical grasp of it.6 To complete the ritual of ownership, the individual who claimed to be the  owner touched it with a rod (the festuca) while pronouncing the solemn formula I declare this thing to belong to me . . . in accordance with quiritarian right. 7 The property aspect prevailed even over the identity of the thing. What essentially qualified the thing was not its content, but rather the fact of its being someone s and no one else s, in a form that could not be contested.

This judicial practice hearkens back to an even more ancient ritual, popular in the Lazio region in primitive times, associated with the declaration of war. Livy tells us that the declaration was preceded by a request made to the other people for the return of things held unlawfully. Res repetere, to request things, was the last warning before taking them back by force. If they were not handed over, after an invocation to the gods, war was declared (1, 32, 5-14). War itself was always conducted, ultimately, for things - to defend one s own things or to acquire those of others through violence. As Canetti observes, at length other, more patient means of increase are rejected and they are thought of as contemptible. A kind of state religion of war develops, with the speediest possible increase as its aim. 8 For thousands of years, the primary motive for war was looting. Because of this, no traditional commander would have dared to prohibit his men from pillaging. For untold times the capture of things - the mass of booty heaped on the ground at the foot of the winner - stood for power relations between human beings. The land itself was the first thing that the invading army took possession of - by treading on it, conquering it, and enclosing it. Military victory smiled on those who were able, in the end, to take possession of a given territory, on which they planted a flag that was different from the one that fluttered over it before. From that moment on, all the things included in the conquered territory became the spoils of the new owner.

The relationship between war and property long preceded the legally defined one, especially in ancient Rome, the homeland of law: for centuries war was the sole means of acquiring anything unavailable to peoples who lacked other resources. It was the most common way to acquire property - so much so that for a long time piracy was considered more honorable than trade. At its origin, property always refers to a prior appropriation. In its primordial form, property is neither transmitted nor inherited: it is seized. As we might expect, both the transfer of ownership and what would later be called the right of succession were unknown in ancient Roman law. Property had nothing behind it, except the act that made it so.9 In ancient Rome there was no crime of robbery - partly because the first Roman women were taken in a mythical abduction from neighboring peoples in order to inflict damage on them. In stating that the Romans believed that whatever was taken from an enemy a man considered to be absolutely his own, Gaius is saying that, when it comes to acquiring things, there is no insurmountable boundary between law and violence.10 The possible etymological link between praedium (landed estate) and praeda (plunder, property taken in war) implies the fact that the territorial ground is linked to praedatio (depredation, plundering). Not unexpectedly, public acts involving sales and purchases were stamped with the figure of a lance stuck in the ground to represent the strength of the acquired right. Compared to the sharp tip of the lance, the rounded wood of the stick was nothing but a pale symbol. In order for something to become unequivocally one s own, it had to have been torn from nature or from other people. That which is your own, in the strict sense, is what you take with your hand, manu captum, according to the solemn institution of mancipium. Of course, a legally regulated transfer of property did exist. But the first property was always created by occupying an empty space or by taking possession of an object that had no owner. Whatever had not yet fallen into someone s hands was available to whoever appropriated it. The first owner was identical to the first occupier, just as a wild animal belonged to whoever first sighted it. With respect to this initial act, the role of the ius was nothing more than a guarantee. The law protected the owner from anyone who threatened him or disputed his title to the property, reversing the burden of proof onto the disputant.11

Roman law is in its essence patrimonialistic. Rudolf von Jhering was right in this sense when he observed that at its foundation there lies the bare economic relationship.12 Even the state, to the extent that this term can be used to describe ancient Rome, was always thought about in terms of private law. This is why it lacked both a genuine theory of sovereignty and a subjective view of the law - in other words, it is not the legal title that makes someone the owner of a good, but its effective ownership. Vindicatio in rem, laying a claim to a thing, consisted in saying res mea est (the thing is...
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