Concepts of Humanity in Philosophy, Psychology, Law and Science, Lecture notes of Legal and Social Theory

Download Concepts of Humanity in Philosophy, Psychology, Law and Science and more Lecture notes Legal and Social Theory in PDF only on Docsity! What is Human? Introduction Psychology, philosophy, law and science all claim to have a good, or useful, account of what it is to be human.    Are any of these accounts authoritative / true / correct?  How would we decide?  What consequences might this have for law and law- making?  Is there a 'human nature'? If so, does this 'evolve'?  Is 'human' a fact, a value, or both? 1 Human: Fact or Value? 1 Introduction What are we? Animals? Members of a species? Individuals? Persons? Why might it matter for law? Are there things that are good for all human animals? Are there ways of living that are right for our species? Could we be persons or individuals without law? 1 Human: Fact or Value? 1c Humanity and Values Human Nature shared basic commitments. Free Will our difference to nature. ‘Humanity’ as Value opposed to inhumanity. ‘Humanity’ as Fact a species with distinctive needs. - Glover, J., Humanity: A Moral History of the Twentieth Century, London: Pimlico, 2001. 2 Human as Fact: The Political Animal 2 Introduction Aristotle (384BCE-322BCE): - The human animal has a species-specific, i.e. natural, form of life. - A good human life is an objective standard. - Law should reflect and support humans living a good life. 2 Human as Fact: The Political Animal 2a The Human Species An animal with - the political animal is an an essence (unchanging) biological species. A Speaking Animal - complex communication. A Reasoning Animal - choosing own ends. A Communal Animal - naturally social. - ECHR Article 8. 3 Human as Fact: Freud and the Psyche 3 Introduction Freud (1856-1939). The Psyche: - In the Pre-Modern era an immaterial Soul (psyche) was taken for granted. - This carried through into Modernity in the assumption that we have an immaterial 'mind'. - This remains a contradiction within science: the mind has no empirical qualities, we only witness its effects. - Solomon, R. C., Continental Philosophy Since 1750: The Rise and Fall of the Self, Oxford: OUP, 1988. 3 Human as Fact: Freud and the Psyche 3a The Human Animal Modern biologism: - post Darwin, blurring of boundaries between species. Freud’s Early Mechanistic Psychology: - our psyche (soul / self) contains forces and energies - like fluids - that may be ‘channelled’ / ‘dammed’ / ‘redirected’. Mature Freud: - physical sensation and the formation of the self, - socialisation and the structuring of the self. - German Constitutional Court, Life Imprisonment Case 45 BVerfGE at 277. 3 Human as Fact: Freud and the Psyche 3b Primitive Desires as the Foundation of Law Primitive drives have served to shape social life and social being, mirroring the formation of the individual's personality. The drive for pleasure and for control led to instances of incest and patricide (the killing of fathers). These crimes led to the most primitive laws: the prohibition of incest and the prohibition of murder within one's own familial and social group. -Freud, S., Totem and Taboo, London: Ark Paperbacks,1983. 4 Human as Value: Humanism 4a Humanity and Persons The Universal: Roman Law appealed to the universal status of ‘person subject to law’ be they slave or free man. Birth of ‘Humanity’: the Renaissance stressed the Divinely ordained elevated status of Man. The Enlightenment: man’s elevated status is intrinsic due to natural reason and freedom. - Davies, T., Humanism, London: Routledge, 1997. 4 Human as Value: Humanism 4b Liberty Modernity’s emphasis on freedom and self-creation. Autonomy different to liberty: importance of imposing laws upon oneself; humans as law-givers. Revolutionary era: ideology of liberty but blindness to difference and otherness. - Frasik v. Poland (Application no. 22933/02) ECHR 2010. 4 Human as Value: Humanism 4c Fraternity and Equality Equality: - people should not simply be means to ends (i.e. slaves), - question: is equality natural or unnatural? Fraternity: - essentially modern notion that our ethical commitments go beyond our family and community. - R v. Immigration Officer at Prague Airport and another ex parte European Roma Rights Centre and others [2004] UKHL 55. 5 Human as Value: Feminism 5b Identity Politics The Three waves of feminism: 1 Suffrage: politically clear; philosophically limited. 2 Biology and essentialism: militant and revolutionary. 3 Society and anti-essentialism: philosophically clear; politically limited. - Gamble (ed.), The Routledge Companion to Feminism and Postfeminism, London: Routledge, 2008. 5 Human as Value: Feminism 5c ‘The Natural’ as Ideology Women routinely viewed as closer to 'nature' (nurturing and caring roles in the family) and therefore less rational and more bound by the necessity that characterises nature. Appeal to ‘natural’ behaviours, roles and instincts simply disguises oppression. Oppression, sterilisation, and incarceration of women (particularly ‘promiscuous’ / ‘hysterical’ women) justified in terms of 'natural female behaviour' & ‘public health’. - Bridgeman & Millns, Feminist Perspectives on Law: Law's Engagement with the Female Body, London: Sweet and Maxwell, 1998. 6 Human as Value: Postmodernism 6 Introduction Postmodern thought involves thoroughgoing scepticism about most knowledge claims. Any universal claims about humans - persons, men, women - are likely to have been formed in the pursuit of exercising power. Even liberating or emancipatory projects like feminism are informed by a 'will to power' and a 'hijacking' of the idea of the human. 6 Human as Value: Postmodernism 6c The Death of Man There is no sound basis for morality; there is no pre- determined 'way to be' as a person in the world. We give shape and form of our lives but this is a process of aesthetic experimentation without any goal. ‘Man’, as both Ancient and Modern philosophy has understood it, is unstable, unsustainable, and potentially repressive: - humans will change; ‘humanity’ can be understood as a modern myth. - Dahlab v. Switzerland (ECHR Case no. 42393/98, ECHR 2001‑V). Conclusions What are We? Psychology Philosophy Law Science ↓ ↓ ↓ ↓ Self Subject Person Human ↓ ↓ ↓ ↓ Mind ‘Subject of ‘Subject to 'Subject to natural experience’ law’ laws and human conventions’ Toolkit Knowledge and Self Knowledge  Self Reflection  Knowledge and Belief Classification  Object and Subject / Objective and Subjective  Rational, Irrational, A-rational