Right to Identity: Proceedings of the Special Workshop “Right to Identity” held at the 27th World Congress of the International Association for Philosophy of Law and Social Philosophy in Washington DC, 2015 9783515112444

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Right to Identity Proceedings of the Special Workshop “Right to Identity” held at the 27th World Congress of the International Association for Philosophy of Law and Social Philosophy in Washington DC, 2015 Edited by Paul Tiedemann

ARSP Beiheft 147 Franz Steiner Verlag

Archiv für Rechts- und Sozialphilosophie

Right to Identity Edited by Paul Tiedemann

archiv für rechts- und sozialphilosophie archives for philosophy of law and social philosophy archives de philosophie du droit et de philosophie sociale archivo de filosofía jurídica y social Herausgegeben von der Internationalen Vereinigung für Rechts- und Sozialphilosophie (IVR) Redaktion: Dr. Annette Brockmöller, LL. M. Beiheft 147

Right to Identity Proceedings of the Special Workshop “Right to Identity” held at the 27th World Congress of the International Association for Philosophy of Law and Social Philosophy in Washington DC, 2015 Edited by Paul Tiedemann

Franz Steiner Verlag

Bibliografische Information der Deutschen Nationalbibliothek: Die Deutsche Nationalbibliothek verzeichnet diese Publikation in der Deutschen Nationalbibliografie; detaillierte bibliografische Daten sind im Internet über abrufbar. Dieses Werk einschließlich aller seiner Teile ist urheberrechtlich geschützt. Jede Verwertung außerhalb der engen Grenzen des Urheberrechtsgesetzes ist unzulässig und strafbar. © Franz Steiner Verlag, Stuttgart 2016 Satz: DTP + TEXT Eva Burri Druck: Druckhaus Nomos, Sinzheim Gedruckt auf säurefreiem, alterungsbeständigem Papier. Printed in Germany. Franz Steiner Verlag: ISBN 978-3-515-11244-4 (Print) Franz Steiner Verlag: ISBN 978-3-515-11245-1 (E-Book) Nomos Verlag: ISBN 978-3-8487-3012-4

Table of ConTenTs Paul Tiedemann Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

7

Paul Tiedemann Identity and Human Rights Considerations on a Human Right to Identity . . . . . . . . . . . . . . . . . . . . . . . . . . .

11

Zeynep İspir Human Dignity as a Common Identity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

43

Rainer Keil A Negative Right Related to Identity as a Right to Change: A Kantian Approach to Philosophical Aspects of Criminal Justice, Especially of Life Imprisonment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

53

Zhang Tu Is the Right to Identity a Fundamental Human Right? . . . . . . . . . . . . . . . . . .

89

Mariana Alves Lara/Fabio Queiroz Pereira/Felipe Quintella Machado de Carvalho Body Integrity Identity Disorder: An Interface between Body and Personal Identity . . . . . . . . . . . . . . . . . . . . . . 117 Janne Mende Collective Identity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129 Marcos Augusto Maliska Right to Identity in the Context of Constitutional Pluralism The Case Gelman vs . Uruguay and the Right to Family Identity . . . . . . . . . . . 151 Akihiko Morita, Natori Collective Human Right to Collective Identity . . . . . . . . . . . . . . . . . . . . . . . . 167 The Authors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179 Register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181

Paul Tiedemann, frankfurT am main/Giessen IntroductIon The meaning of the concept of human rights does not depend on whether rights in national or international codifications are denoted as such . Therefore, there can be rights that are explicitly mentioned in human-rights codifications that actually cannot be considered real human rights . It is equally conceivable that there are rights which have not been included in human-rights codifications that should nevertheless be recognized as such . These unwritten human rights only have a chance at future codification through human awareness . Awareness of new hitherto unwritten human rights does not arise in the context of abstract philosophical considerations . Rather, awareness arises when dealing with real conflicts and man-made human suffering . Since it is just the Courts of Justice that have to deal with such conflicts and have to find legal solutions, it stands to reason that it is the Courts that become aware of gaps in the system of codified human rights and “discover” new unwritten human rights . One prominent example is the discovering of the Right to Informational Self-Determination, which was first formulated by the German Federal Constitutional Court in 1983 and is now well established and recognized under the denomination Right to Personal Data Protection . The Inter-American Court of Human Rights recently claimed to have identified another gap in the human-rights-codifications, in particular in the American Convention of Human Rights, which is supposed to be filled with a new and unwritten human right which they have called Right to Identity. (For more details concerning this jurisprudence see the articles of Tiedemann and Zhang Tu) . The proposal is – already because of its prominent source – worth examination and discussion among legal and philosophical scholars . However, the proposal is not only of relevance in the context of the American Convention of Human Rights . Since a Right to Identity does not exist either in any other human-rights codification worldwide it is a proposal that should affect the interest of human rights scholars everywhere in the world . It was therefore a great honor to have the opportunity to discuss the issue on an international and multicultural level in the frame of a Special Workshop during the XXVII World Congress of the International Association for the Philosophy of Law and Social Philosophy that took place at the end of July 2015 in Washington DC . This ARSP-Beiheft contains the elaborated versions of the papers that where presented at this Workshop . The article of Janne Mende, who did not have the opportunity to participate in the workshop, is added . The first article (Paul Tiedemann: “Identity and Human Rights”) examines the different meanings of the term “identity” and relates each of them to specific human interests . It examines the possible conflicts in which these interests can be involved and to what extent the existing catalogues of written human rights keep in stock sufficient rights for the protection of the respective interest or to what extent new unwritten rights should be demanded . The article concentrates on the most relevant meanings of identity understood as individual identity . The following four articles focus also on an individualistic approach to identity in the context of human rights . Zeynep İspir (“Human Dignity as a Common Iden-

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Paul Tiedemann

tity”) considers the fact that all of our individual particularities which distinguish one from another can be made a crucial characteristic of our personality and identity . However, she argues that this is not a sufficient basis for the understanding of human rights . According to İspir, identity as a matter of human rights only comes in focus when we refer to the “sameness as human beings” . She discusses the question of whether the concept of human dignity expresses the common identity of human beings adequately and whether therefore the concept of human dignity should be considered as a yardstick for the justification of human rights . Reiner Keil (“A Negative Right related to Identity as a Right to Change: A Kantian Approach to Philosophical Aspects of Criminal Justice, especially of Life Imprisonment”) deals with the aspect of diachronic identity and asks whether and to what extend the present imputation of past acts to a person for the purpose of proportional future legal consequences is in terms of morality, justified or even compelling . Starting from the critical analysis of Kant’s fragmentary theory of punishment and his rigorous statements regarding punishment the author pleads for a permanent Right to Change One’s Identity . This right constitutes the crucial argument for limiting the term of punishment and to abolishing life imprisonment . Zhang Tu (“Is the Right to Identity a Fundamental Human Right?”) discusses the question of whether the Right to Identity can be considered a fundamental human right . She starts with Charles Taylor’s account of identity and considers the research question in light of two standards of human rights as two tests . One is a humanity standard which fundamentally takes human rights as moral rights; the other is a political conception of human rights, which understands human rights in view of our international human rights practice . According to the author neither of these standards can show that the Right to Identity as it is demanded by the Inter-American Court of Human Rights can be understood as a fundamental human right . Fabio Queiroz Pereira / Mariana Alves Lara / Felipe Quintella Machado de Carvalho (“Body Integrity Identity Disorder: An Interface between Body and Personal Identity”) deal with the aspect of body-identity . They discuss the case of a severe disorder of body-identity (Body Integrity Identity Disorder – BIID) and ask whether the desire of the concerned individuals to cut off one or some of their own limbs should be considered as protected by human rights and whether they are supposed to have access to an amputation surgery . The authors argue in favor of the opinion that the desire falls in the scope of private autonomy and is therefore to be recognized . The following articles are focused on a rather collective understanding of identity . Janne Mende (“Collective Identity”) analyzes the different meanings of the term “Collective Identity” by discussing strong and weak points of basic identity concepts from philosophy and social sciences . She stresses the fact that identity is constitutively and necessarily intrinsically entangled with its other, the non-identical . She analyzes the different forms that the other can take on in its relation to identity . She analyzes further the emancipatory and the repressive effects of these forms and scrutinizes on this basis the concept of collective identity in normative perspective . She examines the constitutive role of collective identity for individual identity and the relevance of its openness to its other and to other others . Marcos Augusto Maliska (“Right to Identity in the Context of Constitutional Pluralism”) discusses the right to collective identity under the aspect of constitutional pluralism . First he describes several collective identities which are protected

Introduction

9

under the Brazilian Constitution . In the second part of his essay he shows that protection of collective identity by the Constitution does not mean that the State has the right to define the content of the respective identity . The constitution of a pluralistic society has to be an open constitution . This means openness for different pre-understandings of the collective identity with which individuals identify . So the interpretation of the Constitution may not be based on a certain particular unambiguous understanding of the respective collective identity . Pluralism demands rather the recognition of the pre-understanding of those who identify with a particular social group as e . g . their family . Akihiko Morita (“Collective Human Right to Collective Identity”) defends the position that collective identity is an indispensable part of the individual identity . He argues that individual human rights are not sufficient to protect collective identity and demands therefore a collective right to collective identity . The Collective Human Right to Collective Identity must, however, stand under moral limitations in order to avoid the legitimation of suppression of minority groups or individual members in the given society . Morita locates his approach in the framework of Charles Taylor’s conception of interculturalism . Identity as a matter of law is a very wide field . The contributions of this book can only deal with some of the many aspects . So, this book does not give a final answer concerning the question of a Right to Identity but it is a small contribution to a dialogue that has just recently begun . I would like to express my gratitude to all the authors for the excellent cooperation, in particular for the delivery of the manuscripts exactly on time . I thank further Yasmine Akkad and Joshua Nolet for the careful and thorough pro bono revision of the texts in terms of proper English and reasonable style . This was a great work and not highly enough to appreciate . I am very grateful to Professor Mortimer Sellers of the University of Baltimore for establishing the connection to Yasmine Akkad and her colleague . My thanks apply finally to Dr . Annette Brockmöller, editor-in-chief of ARSP, for accepting the results of the Special Workshop “Right to Identity” for the ARSP-Beihefte series and Dr . Thomas Schaber, Katharina Stüdemann, and Sarah Schäfer of Franz-Steiner-Verlag for their excellent assistance .

Paul Tiedemann, frankfurT am main/Giessen IdentIty

and

Human rIgHts

consIderatIons

on a

Human RigHt

to

identity

absTraCT: On the basis of the “Gelman” judgment of the IACourtHR asks the author for the justification of the demand for a “right to identity” . This paper identifies six different meanings of the term “identity” (Synchronic I ., Diachronic I ., Ego-I ., Personal I, narrative I ., Role I .) and examines each of these meanings to the extent that there is a significant relationship to human rights . It is found that important aspects of identity are already under the protection of human rights . As far as that is not the case, but desirable, demanded rights must have a sufficiently clear description of the scope of protection in order to distinguish the right concerned from other human rights and in order to allow juridical subsumtion .

1. IntroductIon In its February 2011 Gelman judgment,1 the Inter-American Court of Human Rights (IACourtHR) determined that eight of the claimant’s rights from the catalogue of the American Convention of Human Rights (ACHR) were violated, in addition to the claimant’s unwritten “so called” Right to Identity – derecho a la identidad (MN 122) . The case involved a woman who was born in a Uruguayan torture prison in 1976, where her mother had been abducted from Argentina . The woman was taken away from her mother shortly after birth and fostered under a false identity by a Uruguayan couple . All traces of the mother were missing . Like the woman’s father, the mother was likely killed . The idea is not new according to which it is possible to take from the codified catalogues of human rights not only the expressively written human rights but also unwritten human rights . However, this requires that the catalogues are incomplete and have gaps . One can identify a gap only if one can find a general basic idea in the codified law that can be applied to facts, which are not covered from the scope of protection of the written rights . In this way the German Federal Constitutional Court has e . g . developed the right to informational self-determination from the basic principle of human dignity .2 Even the IACourtHR established a connection with human dignity by emphasizing that the right to identity “is consubstantial to the attributes of human dignity” (MN 123) .3 Concerning the content of the Right to Identity the Court refers to the Convention on the Rights of the Child by saying that “although it is a right that is not

1 2 3

IACourtHR, judg . of 24 .02 .2011–12 .607 – “Gelman v . Uruguay” – http://www .corteidh .or .cr/ docs/casos/articulos/seriec_221_ing .pdf [5 .10 .2015] Judg . of 15 .12 .1983, BVerfGE 65,1 [41] = http://www .servat .unibe .ch/dfr/bv065001 .html [5 .10 .2015] The official wording of the English version is: “…the right to identity is consubstantial to the attributes and human dignity .” I guess that this is a mistake and that “and” should be read as “of ”

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found expressly established in the [American] Convention [on Human Rights], it is possible to determine it on the basis of that provided in Article 8 of the Convention on the Rights of the Child, which established that said right encompasses the right to nationality, to a name, and to family relationships . Likewise, it can be conceptualized as the collection of attributes and characteristics that allow for the individualization of the person in a society, and, in that sense, encompasses a number of other rights according to the subject it treats and the circumstances of the case .” (MN 122) So it seems that the Right to Identity is not considered as a particularly new right apart from all the other mentioned rights but only as a collective name of a bundle of codified rights . In any case the content of the Right to Identity remains rather unclear according to the statements of the Court . The protection scope is not described positively . It is not even clear that the written catalogue of human rights of the ACHR in general contains a gap that can only be closed by a judicially developed right to identity . In the following I want to examine the question of whether there is such a gap in the human rights codifications that must be closed by a new and unwritten Right to Identity . This question should be examined in particular with regard to the catalogues of the International Covenant on Civil and Political Rights of 1966 (ICCPR)4, the American (ACHR)5 and the European Convention on Human Rights (ECHR) .6 First we must clarify which protection scope is meant when identity is mentioned . It turns out that the concept of identity is very ambiguous and has several distinguishable meanings . For the most important of these meanings it is to examine whether and to what extent human-rights-related relevance can be seen, which is not or not sufficiently covered from the existing body of codified human rights . Some meanings of identity are not discussed in this article . These are those for which by definition no subjective individual human right can be claimed, because they refer to a kind of identity that can only be assigned to groups or entire societies but not to single individuals . Insofar it should be pointed to the intense debate about what is referred to Karel Varek “human rights of third generation” .7

4 5 6 7

https://treaties .un .org/doc/Publication/UNTS/Volume%20999/volume-999-I-14668-English . pdf [5 .10 .2015] http://www .oas .org/dil/treaties_B-32_American_Convention_on_Human_Rights .htm [5 .10 .2015] http://www .echr .coe .int/Documents/Convention_ENG .pdf [5 .10 .2015] Christoph Menke / Arndt Pollmann, Philosophie der Menschenrechte. Zur Einführung, Hamburg 2nd edition, 2008, 118; Susanne Boshammer, Gruppen, Rechte, Gerechtigkeit. Die moralische Begründung der Rechte von Minderheiten, Berlin, 2003

Identity and Human Rights

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2. numerIc (syncHronIc) IdentIty The word “identity” goes back to the late-Latin root idem (= the same) . It is originally a term of philosophical logic . 2.1 The ConCePT of numeriC (synChroniC) idenTiTy The Principle of Identity (principium identitatis)8 – is beside of the Principle of Contradiction, the Principle of Excluded Middle, and the Principle of Sufficient Reason9 one of the basic principles or axioms of logic .10 There are different formulations of this principle . So, one can read, identity denoted a relation in which “every entity relates to itself and only to itself ” .11 From Christian Wolff (1679–1754) stems the formulation: If I can replace a thing B by a thing A and everything remains as it was before, so A and B are identical” .12 These formulations are so confusing because they speak about two entities whereas the principle of identity refers to one and the same entity . In the same way it is confusing to express the principle by means of modern predicate logic (Λ x(x = x): “For every x: x is identical with x”) . The proposition “x = x” is so trivial that a deeper meaning is hard to understand . By way of example, the poet Matthias Claudius (1740–1815) made fun of a 18th century logic lecture by saying that one could learn from the professor’s very clear demonstration that “a student was a student and not a rhinoceros” .13 Seriously and soberly Ludwig Wittgenstein has expressed what seemed so disturbing to the principle of identity: “To say of two things that they are identical is nonsense, and to say of one thing that it is identical with itself is to say nothing .“14 Only modern analytic philosophy of language, which began with Wittgenstein, seems to have clarified what it actually is with numeric identity . It is not about entities or things, and also not about the relationship between entities . Rather, it is about the relationship between entities and their names: “Identity of the object I express by identity of the sign and not by means of a sign of identity . Difference of the objects by difference of the signs .“15 We could, therefore, dispense with the concept of numeric identity, if we could, instead, determine that one and the same object may not have more than one and the same proper name .16 But this is not our 8 9 10 11 12 13 14 15 16

Cf . Niko Strobach, Einführung in die Logik, Darmstadt, 2005, 19103; Jan C . Joerden, Logik im Recht, Heidelberg/Berlin,: 2nd edition, 2010, 30 The Principle of Sufficient Reason means that the concept of the predicate is included by the concept of the subject – cf . H .-J . Engfer, Principium rationis sufficientis, in: Joachim Ritter / Karlfried Gründer (ed .), Historisches Wörterbuch der Philosophie, vol . 7, Darmstadt, 1989, row 1326 In general on the axioms of logic and the logical principles cf . Strobach (footnote 8), 19 Arnim Regenbogen / Uwe Mayer, Wörterbuch der philosophischen Begriffe, Hamburg, 1998, catchwords: “Identität” and “Prinzip der Identität des Ununterscheidbaren” Cited from Rudolf Eisler, Wörterbuch der philosophischen Begriffe, Berlin, 1904, catchword: “Identität, Satz der” – http://www .textlog .de/4002 .html [5 .10 .2015] Hans-Albrecht Koch, Die Universität. Geschichte einer europäischen Institution, Darmstadt, 2008, 127 Ludwig Wittgenstein, Tractatus logico-philosophicus, 1916 ed . by Kevin C . Clement – http://people .umass .edu/phil335-klement-2/tlp/tlp .pdf [5 .10 .2015], 5 .5303 Wittgenstein (footnote 14), 5 .53 Vincent Descombes, Das Rätsel der Identität, Berlin, 2013, 67

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practice . Sometimes we use different names for one and the same object or we use one and the same proper name for different objects . So, the author of the novel Night Train to Lisbon is called Pascal Mercier while the author of Das Handwerk der Freiheit is called Peter Bieri . However, Mercier and Bieri are the same person . Similarly, it is possible to denote different objects with one and the same name . Paul Tiedemann is not only the name of the author of this article . It is also the name of the former head coach of the East German handball team while both are different people . The equal sign in the formula Λ x (x = x) thus represents no relationship between objects, but a relationship between the different names for the same object: “Pascal Mercier” is identical to “Peter Bieri” . “Paul Tiedemann” (author) is not identical to “Paul Tiedemann” (coach) . The repetition of the proper name of an object is equivalent to the numeric identity17, also called synchronic identity .18 To be sure it is the same thing we first called the same proper name, we need a list of attributes, in whose presence we recognize the object as the same: The planet, which we denote by the proper name Venus, the morning star and the evening star, is exactly that planet in the solar system, which has the property to remain longest visible at daybreak, while being the first visible in the evening . The question of the numeric identity of a human individual always stems from the perspective of the other; hence, those who want to talk about the individual in his absence, and must therefore refer to him in a sufficiently clear manner . Confusion concerning numerical identity leads to confusion in communication about someone, but not in communication with someone . However, such confusion can also be a heavy burden for the individual concerned, because the smooth integration in a communicating community requires the possibility of communication about someone in his absence, so that he can be recognized by all other members of the community under the same criteria of recognition . For example, the confusion concerning numeric identity of an individual might have no consequences if he buys and pays cash at the supermarket . But if he wants to pay by credit card, the said confusion can lead to the result that his credit card will not be accepted . Hence the numeric identity of a human individual is a social category . It is important for the others to let them know about whom they speak . And it is important for the person concerned because it is a requirement of integration into the social communicative web . 2.2 relevanCe of numeriC idenTiTy in Terms of human riGhTs It is obvious that the proper name of a person is the elementary condition to attribute events or acts to her while she is absent . In modern civil status law, the proper name of a person is assigned to the person through an appropriate certificate, or an identification document such as an identity card . Since traditional name words are no longer sufficient to distinguish between different individuals, the identity documents contain not only the first and the family name, but also the date of birth, a passport photo, and possibly more indicators such as finger-prints or DNA sequen17 18

Descombes (footnote 16), 71 Michael Quante, Person, Berlin/New York, 2007, 9

Identity and Human Rights

15

ces . The identity certificate is supposed to ensure that the numeric identity of a person cannot be destroyed or distorted in a way that makes it impossible for her to take the legal position she deserves within the legal system and within the society . There can, therefore, be no doubt that there must be a right to accurate numeric identification . However, there is no need to postulate this as an unwritten human right . There is no gap concerning this matter in the ACHR . Rather, the necessary right to correct numeric identification is codified in Article 18 ACHR as Right to a Name .19 The scope of this right relates exactly to the protection of the correct and sufficiently unambiguous identification of the person . A comparable right also exists in the ICCPR . Articles 24 II ICCPR provides: “Every child shall be registered immediately after birth and shall have a name .” This right can also be interpreted as a right to correct numeric identification . In contrast, the ECHR does not include a right to name . The ECtHR derives such a right, however, from the right to private life (Article 8) . It has expressly stressed in this context that the right to private life embraces, among other things, the right to a name as means to personal identification .20 The notion of correct identification has, however, not been the focus of the Court’s case law . The focus only concerned whether, and to what extent, parents, or even the persons concerned, have a right to choose a name . However, there is hardly any doubt that the Court in a case like Gelman, would come to the conclusion of a violation of the right to private life . So, there is also from a European perspective, no need to demand a new right under the name “Right to Identity” . 3. dIacHronIc IdentIty (PersIstence) The so called diachronic identity, also known as persistence, comes into consideration as a second candidate of a human right to identity . 3.1 The ConCePT of PersisTenCe In addition to the numeric or synchronic identity the European philosophy has since ancient times always dealt with the problem of diachronic identity . This problem is described by the question of how it is possible to remain the same while one is changing and evolving with the times . Plutarchos reports in the context of his Life of Theseus that the Athenians stored the vessel, with which the hero was sailed to Crete and happily came back with the freed hostages, for more than 1000 years, “by replacing the rotten wood by solid new planks . So consequently the philosophers tended in their disputes about the growth of things always to rely on this vehicle, so that some said it would be and remain the same ship, while others, it would be a

19 20

Art . 18 ACHR: “Every person has the right to a given name and to the surnames of his parents or that of one of them . The law shall regulate the manner in which this right shall be ensured for all, by the use of assumed names if necessary .“ ECourtHR, judg . of . 02 .06 .2005 – Nr . 77785/01 –, “Znamenskaya v . Russia”, MN 23 with further references; cf . judg . of . 16 .05 .2013 – Nr . 20390/07 –, “Garnaga v . Ukraine”

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very different one” .21 The latter view shared also Heraclitus, according to whom you cannot step twice into the same river .22 What applies to ships or a river that applies also to human beings . From the comic poet Epicharmos the saying is delivered: “Those whose nature changes / must be different at each successive moment, / from the thing it was before . / So also, you and I are different people now from what we were but yesterday .”23 The quotation shows that the question of diachronic identity is an eminent practical problem, namely the problem of the current allocation of earlier acts with a present person . Plato solved this problem through the consideration that change is a lasting process of becoming and that things that are permanently in a state of becoming, never achieve the state of being . They do not really exist . Only the content of thoughts (“ideas”) could be considered as enduringly existing and therefore only ideas could really exist . According to Plato ideas are not products of human thinking but rather independent entities which can reveal themselves towards human beings . According to the philosophy of Plato Ideas should be considered as bearers of attributes . The attributes they are bearing can change but the bearer itself is immutable . The philosophical tradition coined the expression “substance” as denotation of the ideas as immutable bearers of properties and attributes .24 The properties (accidentiae) can change, grow and perish . The substances remain immutable . One of the Platonian Ideas was the immutable and immortal soul .25 The soul provides the persistence of a person and makes it possible to ascribe former actions to the present individual . The empirically perceptible human individual, with all its mutations regarding its body and its intellect, is only a contingent property of the immutable soul . The human being is not body or person, but the soul has the property from time to time to have a body or personhood . According to this understanding, it is not the human being who has a soul but it is the soul who has a human being . This theory has lost its power of persuasion through the criticism of the philosophy of the Enlightenment . Descartes’ radical doubt brought to light that the idea of the soul is neither based on empirical experience, nor on unavoidable logical implications . What we know for sure is that we are thinking . In other words, there is a process of thinking . But we do not know anything about a substance, which we can distinguish from this process, and which has the property and ability to think .26 John Locke regarded the substances as pure constructions of thoughts, as pure webs in which we connect sensations or reflections (concepts with which we denote sensations) . He called them complex ideas .27 21 22 23 24 25 26 27

Plutarchos: The Life of Theseus http://penelope .uchicago .edu/Thayer/E/Roman/Texts/ Plutarch/Lives/Theseus* .html [5 .10 .2015], 1, 23 Wilhelm Nestle, Die Vorsokratiker, Wiesbaden, 1978 (Heraklit fr . 58a, 93, 94) Diogenes Laertius: The Lives and Opinions of Eminent Philosophers, translated by C . D . Yonge, http://classicpersuasion .org/pw/diogenes/ [5 .10 .2015], III, 12 Jens Halfwassen, Catchword “Substanz”, in: Joachim Ritter / Karlfried Gründer (ed .): Historisches Wörterbuch der Philosophie, vol . 10, Darmstadt, 1998, row 495 Platon, Kratylos, 400c; Phaidon 79e–80b René Descartes, Discours de la méthode pout bien conduire sa raison et chercher la vérité dans les sciences, 1637, II VII Lohn Locke, An Essay Concerning Human Understanding, 1689, http://oll .libertyfund .org/ titles/762 [5 .10 .2015], Book II Ch . XIII, 19

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According to this new approach, there is, for example, no substance we can call sun, which has attributes including heat, the ability to radiate, the ability to shine, and the ability to move in a certain way . Instead, we combine different empirical experiences of heat, radiation, shining etc . to the complex idea of “sun” . Today, we prefer to talk about concepts instead of ideas and we would call the considerations above an analysis of the concept “sun” . We do this in the same way we combine the simple operations of claiming, concluding, and doubting to the complex idea (concept) of spirit, according to Locke . According to Locke, there is no metaphysical persistent bearer (substance) . What really exists is mutable . According to this approach, the traditional basis of attributation of former actions to a present person was lost, and Locke was coerced into finding a new solution to the problem of diachronic identity . Locke solved the problem by asserting that it made no sense to claim the persistence of particular material things . Only relations between things can be persistent . Persistence is a matter of systems and organisations, and not a matter of single entities . It is not the particular things that remain identical through the times, but only the organisation of things .28 Thus, Locke no longer understands diachronic identity in a materiel meaning, but rather in a formal meaning . Material entities, including the human body, are no longer considered substances in a Platonian meaning, but are considered events or processes that include dynamic change and mutation while the dynamic, as such, always remains the same during the time . According to this approach, it is very possible to step in the same river twice – as long as the watercourse remains the same . When it comes to the ascription of human actions, the persistence of the human body in the meaning of an enduring process is not really useful . The ascription of human actions, and the responsibility for these actions, is connected with the ability to reflect and to think . It is connected with intellectual abilities . Locke assigned these abilities neither to a soul nor to the body but to the personhood which he understood as a spiritual process and not as a biological one . But this approach confronted Locke with the problem of how it is possible to maintain a pure intellectual process on the basis of pure empirical experience . This was a serious problem because we have no sensations by which it would be possible to experience the thoughts of other persons . In order to avoid that personhood becomes a metaphysical construction like the Platonian soul, Locke tried to understand it from the first-person-perspective . Only by this approach (by inspection) was he able to avoid pure speculation and to ground the personal persistence on empirical experience, because from the first-person-perspective we have access to an empirical experience of our own thoughts .29 The person, according to Locke, is a complex idea of its own . The person differs from other living beings in that she has self-reflexive knowledge of herself . This self-reflexive knowledge constitutes “Ego-Consciousness” . Ego-consciousness accompanies the thinking of the person permanently through the time and always remains the same through time and space . As far as this consciousness can be extended backwards to past actions or thoughts the scope of diachronic identity of the 28 29

Locke (footnote 27), II, XXVII 4 Locke (footnote 27), II, XXVII, 9

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person extents .30 Just as a limb which is separated from the body is no longer covered by the bodily identity, past actions or thoughts are no longer covered by the identity of the person if the memory is lost .31 The diachronic identity of the person is not the persistence of material processes, but it is the persistence of memory . Since the memory or the ego-consciousness is only accessible from the first-person-perspective, it follows that the diachronic identity of a person can also only be accessible from the first-person-perspective . Therefore, Locke can solve the problem of attributation of former actions and thoughts to a present person only as long as it concerns the self-attributation of former actions and thoughts by the person concerned . It is, however, not possible to attribute foreign former actions and thoughts to a certain foreign person . Locke, however, has not quite realized this . So, he has become entangled in a contradiction when he, on the one hand, claims that law and justice reward and punishment is based on the diachronic identity of the person which is mediated on her memory32, but on the other hand added that it is justified when the courts attribute a fact if the defendant cannot remember it, “because the fact is proved against him, but want of consciousness cannot be proved for him” .33 Locke’s contemporaries already posed serious objections against Locke’s theory of diachronic identity that could not be resolved to this today . The most important are the transitivity-argument and the circular-argument .34 Locke’s most fundamental error was, however, that he wanted to construct the persistence of the person from a first-person-perspective, although his knowledge interest was focussed on the persistence of the person from the third-person-perspective (observer-perspective) . Locke’s theory fails because he does not begin with the idea of an over the time identical bearer, who has consciousness . Instead, he begins with the idea that there is a process of consciousness, which bears itself . I guess that the idea of a self-bearing-process of thinking, without a subject of the thought-producing-process, is not sufficient . It is even true that the Platonian idea of an immutable and immortal soul 30 31 32 33 34

Locke (footnote 27), II, XXVII, 9 Locke (footnote 27), II, XXVII, 11 Locke (footnote 27), II, XXVII, 18 Locke (footnote 27), II, XXVII, 22) Quante (footnote 18), 48 et pass . The transitive relation says that if A is identical with B and B is identical with C than A is identical with C . This means applied to Locke’s theory of the personal persistence the following: If a person in the moment she meet with B does remember A and if she in the moment when meeting C remembers on B but not on A anymore than this person is nevertheless identical with the person she was when meeting with A . But according to the theory of Locke the person in C would not be identical with the person in A because she could in C not remember of A . The defenders of Locke replay against this argument that the current memory would not matter . Relevant would only be the psychological continuity . However, with this argumentation the first-person-perspective is given up, because the psychological continuity between A and C is not given to the person from the first-person-perspective . It appears only from the observer-perspective to which Locke just does not refer to . The circular-argument points out that Locke’s theory already presupposes the personal diachronic identity and does not constitute it . Our memories can namely delude . So it is possible to remember to have done something that in fact was not done or what was done by somebody else . We need an additional criterion that makes us able to distinguish between true and false memories . This criterion can only be the diachronic identity . The same person is just presupposed as just the person who has met with what she is remembering . This shows again that the diachronic identity of the person is not a given fact from the first-person-perspective .

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is not convincing because of the lack of empirical significance . But there is a third way . We can consider the biological organism of the individual as the bearer of consciousness and personhood . The ego-consciousness is, in this case, not a sufficient complex idea . It should not function as an intellectual entity without a biological basis . Personhood should, rather, be considered a property that can be attributed to a biological organism or not . Personhood in this meaning should be thought as a kind of tool that is normally available for a full developed human organism . Under this assumption, later stages of forgetfulness or absence of personal competence cannot change anything at the time given accountability . This approach escapes both the transitivity-objection and the circle-argument . It makes the identification of individuals over time understandable from the observer-perspective .35 In this context it seems important to stress the fact that even the person concerned understands her own diachronic identity from a third-person perspective and not from a first-person perspective as Locke was thinking . The person concerned, like any other person, is only able to access her own diachronic identity if she occupies a third-person-position toward herself . Only from this point of view can she attribute actions, thoughts, or events to herself that she cannot remember anymore (e . g . her own birth) .36 However, we should realize that this approach comes with some costs . This concept of personhood no longer allows perceiving a person independently from the biological organism . This makes the perception of a personal God impossible . From a theological point of view these costs may be too high, but from a juridical point it seems to be acceptable . 3.2 relevanCe of diaChroniC idenTiTy in Terms of human riGhTs Similar to the numeric identity, the diachronic identity is not about the interests of the individual, whose persistence is in question . It is rather about the interests of the community that has the need to attribute former actions and thoughts to a particular person . A certain construction of diachronic identity becomes problematic for the person concerned if her own diachronic attributation differs from the attributation of the community . An example of this is the following: Person A is heavily handicapped on genetic causes . She has been not aborted as a fetus only because the doctors did not recognize the deformities . Now, as an adult, A sues the doctors for

35 36

Tim Henning, Personale Identität und personale Identitäten – ein Problemfeld der Philosophie, in: Hilarion G . Petzold (ed .), Identität. Ein Kernthema moderner Psychotherapie – interdisziplinäre Perspektiven, Wiesbaden, 2012, 19 et pass . Consider the following story (translated and shortened from German by the author): “Wait a minute – this was in the year, where Martin suffered from pneumonia .” – “Oh, Mum, I have had pneumonia?“, asks little Martin . The mother is stroking Martin’s hair and says it’s unfortunately been very bad . “Oh, tell me!” says Martin, “was I very ill? Had I get anaesthesia?” “You can say that it was a matter of life or dead”, says Dad . “Yes”, adds the mother, “and it was in the ninth night when the crisis came .” – “What is a crisis, Mum?” – “A crisis is”, says Dad, ” when it comes to the decision whether the patient will keep alive or whether he will die .” – “And what was decided at me?” (Manfred Hofmann, Martin und Isabel . Geschichten aus einer glücklichen Welt, Gütersloh, 2001, 67)

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compensation to cover his very high costs of living .37 In this case, A claims to have suffered damage because he has not already been killed as a fetus . The damage results from the undesired existence . A’s argumentation is based on the idea that his diachronic identity goes beyond his biological existence . He accuses the doctors of preventing him from a state in which he would not exist . Such an idea is only possible on the basis of a metaphysical theory of soul but not on the basis of the idea that the biological organism is the bearer of diachronic identity . According to the biological approach, persistence beyond biological existence is not thinkable, so that the doctors did not deprive A from a better state of life by failing to abort him . So, A does not suffer from a damage . Another aspect under which diachronic identity could play a role in law appears when it comes to the question, from which point in time a human being should be regarded as a bearer or owner of rights and from which point in time the protection scope of the right to life is applicable . One can ask this question so that it is about from which point in time a human being is identical with the human being to a later point or whether e . g . a fetus should be regarded as an aliud, i . e . still not a human being but only a pure “cell cluster” or at least a living entity that is not identical with the later living entity that has been developed from the former . This question is indeed not clarified in international human rights case law . The ECtHR has in its previous case law tried to avoid answering the question by recognizing a “margin of appreciation” in favor of the contract States .38 The IACourtHR has simply ignored the question .39 However, we can state that this question does not relate to a gap in the system of codified human rights . It is only a question of the interpretation of the right to life or of the right to legal capacity . The controversy relates only to the boundaries of the protection scope of these rights and not to new non-codified and unwritten human rights . 4. ego-IdentIty For John Locke and other philosophers who dealt with the problems of synchronic or diachronic identity, the human individual or person was not at the center of the interest . Human individuals or persons were only regarded as particularly problematic cases of application of a general theory of identity . The examples of human indi-

37 38 39

Cf . German Federal Supreme Court (BGH), judg . of 18 .01 .1983, BGHZ 86, 240 ECtHR, judg . of 16 .12 .2010–25579/05 – “A, B, C v . Ireland”; judg . of 26 .05 .2011–27617/04 – “R . R . v . Poland”, Mn 186 IACourtHR, dec . of 29 .05 .2013 – PM 114/13 – “Matter of B . regarding El Salvador” – http:// www .corteidh .or .cr/docs/medidas/B_se_01_ing .pdf [5 .10 .2015] . The doctors in El Salvador have had denied the abortion although the pregnant claimant was in a real and serious risk for life . The Supreme Court of El Salvador have had decided that the right to life does not only apply for the claimant but also for the fetus and that the state of health of the mother was just in the moment of the Court’s decision stable . Therefore the abortion in that very moment was considered as unlawful . The Court did not consider that the fetus because of an anencephaly was not able to survive . The IACourtHR does only deal with the right to life of the mother but says nothing about the question whether and to what extent this right stands in a conflict with the right to life of the fetus .

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viduals and persons served only for the purpose of testing and confirming the broader general theories . In contrast, modern discourses of identity in the frame of the humanities or the social sciences relate very specifically to the human being or person . Paul Ricœur pointed to the fact that this new approach no longer derives from the Latin root “idem” (= the same) but rather from the root “ipse” (= self) .40 In the subsequent sections, I will examine whether and to what extent identity in this modern understanding denotes a possible protection scope of a new human right known as “Right to Identity” . 4.1 The ConCePT of eGo-idenTiTy The new application of the expression Identity goes back to the German-American psychoanalyst and developmental psychologist Erik H . Erikson . The key concept of Erikson’s developmental psychology is the concept of Ego-Identity .41 Ego-Identity answers the question: “Who am I?” . Ego-Identity is therefore a concept that can only be understood from the first-person-perspective . This is the very perspective that is, in a radical sense, subjective and therefore not comparable to John Locke’s concept of identity . According to Erikson, the first-person-perspective relates not only to a mere act of perception, as in Locke, but to an act of self-distancing from what is perceived in the pure act of knowledge . In Erikson, the person appears in the first-person-perspective not only as an object of perception or as a knowing consciousness, but also as the subject of her own life . The question “Who am I?” is thus ambivalent . It refers on the one hand to the conscious knowledge about what I am and, on the other hand, to the choosing of one’s own way of life . Thus, the question becomes: “Who do I want to be?” This question refers not only to the margin of the free design of life, but also to those aspects of life that can no longer be changed . In this regard is asks whether I say “Yes” or “No” toward the conditions under which I have to live whether or not I can modify them . I cannot freely change or modify my physical conditions, my socialization, the culture in which I am living, the facts I have established in the past, and the like . However, I can always change the attitude I take toward these circumstances . Descombes therefore stresses the fact that the question “Who am I?” is not only meant in a constative sense, but also primarily in an existential sense .42 Normally people do not explicitly ask the question of Ego-Identity . Only if a life crises arises does the question emerge as an explicit one . In the normal crisis-free course of life there is no need to ask the question explicitly because the answer is already implicitly given . Erikson speaks of the rudimentary sense of ego identity that is shaped over the course of a child’s development .43 A baby develops such a rudimentary sense of identity on the basis of the experience of ensured care through the mother . In this stage, the answer to the question “Who am I?” is: “I am what I 40 41 42 43

Paul Ricœur, Soi-même comme un autre, Paris, 1990 – http://www .olimon .org/uan/ricoeur-soimeme .pdf [5 .10 .2015] –, 13 Erik H . Erikson, Childhood and Society, London, 1987 Descombes (footnote 16), 115 Erikson (footnote 41), 222

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am given .” This rudimentary self-image is accompanied by a sense of the constancy and continuity of its own, because it is connected with the trust that the benevolent supply is ensured and will continue in the long term . This refers to the state that Erikson calls basic trust .44 It is emotionally connected with the sense of being ‘alright’, of having the right to exist and, possibly, to expect recognition and appreciation .45 The basic trust is the foundation of any other development step . The failure of this phase of the ego identification, caused by the fact that the mother does not grant the sufficient supply of security, results in a lifelong basic mistrust, which can manifest itself in depression and in the inability to build strong interpersonal bonds . In the following stage of the child’s sense of ego identity the child unconsciously comes to the answer: “I am what I will .” This is the period of the so called Deviant Phase . Excessive demands (in terms of toilet training) or the forcible and systematic breaking of the child’s will is now perceived as a traumatic experience to be small, weak and unimportant . This experience triggers the feeling of deep shame . Lasting and systematic shaming of this kind results in the child regressing to the earlier stage . In this case the child will have major difficulties in developing a balanced relationship between love and hate, willingness and defiance . By contrast, if this development step is successful, the child creates a lasting sense of autonomy and pride . In the third phase the child comes to the unconscious conclusion: I am what I can imagine to become”; namely to become like the mother or like the father . The child plays so to say with the idea to be so pretty or so powerful and brilliant like the parent with whom it identifies itself . The identification with the parents leads to the internalisation of commandments and prohibitions . From now on, the child not only feels weak and ashamed when his misdeeds are discovered, but also begins to fear the discovery internally in front of his own conscience . In the fourth phase, a further element of the child’s ego identity is formed in the conviction: “I am what I produce or create .” In this phase, the child develops what Erikson calls a sense of industry .46 In this phase, the child no long wants to prevail his will, but wants to provide a service with which he can then identify himself and by which he can receive social respect as well as self-confidence . For this reason, the child elicits perseverance and hard work as well as a willingness and desire to learn and work . As in all other stages, this phase requires the recognition of the child’s efforts and outputs by the social environment . Otherwise the child will struggle with feelings of inadequacy and inferiority for life . In the adolescence phase, the unconscious infantile ego identity comes into a crisis . The physical development during puberty and the awakening of the sexual drive leads young people out of childhood biologically, while calling into question all identifications they have acquired during their childhood .47 They are “preoccupied with what they appear to be in the eyes of others as compared with what they feel they are, and with the question of how to connect the earlier cultivated roles and skills with the ideal prototypes of the day” .48 From the successful management of this crisis emerges a conscious integration of childhood identifications, which 44 45 46 47 48

Erikson (footnote 41), 223 Erikson (footnote 41), 224 Erikson (footnote 41), 233 Erikson (footnote 41) 234 Erik H . Erikson, Identity and the Life Circle, New York/London, 1994, 94

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Erikson calls the actual ego-identity . The manifestation of the actual identity is thus the “accrued confidence that one’s ability to maintain inner sameness and continuity […] is matched by the sameness and continuity of one’s meaning for others” .49 The accomplishment of the adolescence-phase relies on the fact that social environment and its offers for identification are no longer considered to be objectively given, so that one can – like a child – only react with the attitude of adaptation and conformation . The young people are rather confronted with the challenge of looking for a personal, self-chosen position . From this process emerges a very specific relationship to the environment that allows the adult to relate to them in an autonomic way .50 The adult who is equipped with a successful ego-identity will not follow a social norm because “one should do this”, but because it is a standard that he has made his own, so that he himself wants that which one should do . 4.2 relevanCe of eGo-idenTiTy in Terms of human riGhTs Erikson’s concept of identity was adopted in the 1950s in the social sciences, but received partly different meanings .51 This shift in meaning occurred not at least due to the fact that Erikson’s definition of ego-identity is very vague . This vagueness makes it impossible to make the concept of ego-identity fruitful for the question of meaning and sense of a human right to identity . Rather, it is first necessary to eliminate the vagueness sufficiently in order to work out the different dimensions of the question “Who am I?” It will be shown that we can differentiate the concept of egoidentity in terms of personal identity (personhood), the biographical or narrative identity (personality) and the social identity (role identity) . In the following section, I will develop these concepts in more detail in order to examine the possible relevance of each of them in terms of human rights . 5. Personal IdentIty (PersonHood) We should speak of personal identity or personhood if we answer “I am a person” in response to: “Who am I?” . The property of being a person is always brought up when we ask the question . So neither the question nor the answer refers to the point of whether or not we want to become a person . The function of the question, as well as of the answer, is only to consciously declare that we are a person and to find an explicit attitude to this fact . Theoretically we can take either an affirmative or a pejorative attitude . The explication will, however, show that a pejorative attitude to one’s own personhood is not possible .

49 50 51

Erikson (footnote 48), 94 Descombes (footnote 16), 29 Descombes (footnote 16), 32

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5.1 The ConCePT of Personhood Personhood52 denotes the property of entities having three-tier-propositional attitudes .53 Propositional attitudes are attitudes toward phenomenal contents of consciousness . Only living beings have a phenomenal consciousness . Personhood is therefore a property of entities that are living beings .54 Higher living beings, at least, have a phenomenal consciousness . Such beings are able to process tactile, auditory, visual, gustatory, olfactory, vestibular (sense of balance), thermal or other sensations (pain perception, body sensation, possibly magnetic sense) to contents which they perceive and to which they can respond through their behaviour . So they constitute in their phenomenal consciousness both the own body and the environment outside the body as well as the relationship between the two . The phenomenal consciousness further embraces the memory . Living beings equipped with phenomenal consciousness are able to recognize things and events they have experienced in the past . They are furthermore able to represent these things or events when absent in their consciousness, so that they can search for them or try to avoid them . Beyond this purely cognitive aspect, the phenomenal consciousness also has an emotional dimension . Living beings can, therefore, occupy the items they perceive or have perceived, with emotional feelings such as fear or attraction . Phenomenal consciousness has a certain quality of experience and sensation . It somehow feels to be in a certain state of experiencing . In this sense, Thomas Nagel has asked what it feels like to be a bat – a question that we cannot answer, of course, because we are not bats .55 Living entities that have the property of personhood not only possess a phenomenal consciousness in this sense, but further possess a propositional attitude of the first tier . Possessing a propositional attitude of the first tier means the ability to express the cognitive content of the phenomenal consciousness in a sentence by using a verb that expresses an intentional attitude (“I believe that p”; “I hope that p”; “I will that p”; etc .) . While phenomenal states are always simultaneously conscious states, propositional attitudes may be unconscious . You can have beliefs, fears or requests without any conscious awareness of having them . Further elements of personhood are propositional attitudes of the second tier (“I believe that John believes that p”; “I wish that John wishes that p”; etc .) . This is the ability to recognize and respect oneself and others as subjects of first-tier-propositional attitudes . Persons have the knowledge that they know, wish, fear, hope etc . and the knowledge that other persons know, wish, fear, hope etc . They are able to recognize in some processes of reality expressions or manifestations of propositional attitudes . This is the prerequisite to perceive other persons as persons and to be perceived by other persons as a person .

52 53 54 55

The following explication of the term personhood is closely leant to the analysis of Quante (footnote 18), 24 et pass ., who follows Daniel C . Dennett, Conditions of Personhood, in: Amélie Rorty (ed .): The Identities of Persons, Berkeley, 1976, 175 et pass . From Latin . propositio Quante’s thesis according to which the ability of phenomenal consciousness was not a needed condition of personhood is therefore not convincing – cf . Quante (footnote 18), 31 . Thomas Nagel, What is it like to be a bat?, in: The Philosophical Review 83 (1974), 435 – http:// organizations .utep .edu/Portals/1475/nagel_bat .pdf [5 .10 .2015]

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The final element of personhood is the ability of propositional attitudes of the third tier (“I believe that John believes that I believe that p”; etc .) . Persons can, thus, understand the intentions of other persons and understand that other persons can understand their own intentions as intentions . On the basis of propositional attitudes of the third tier, persons are able to communicate interpersonally . The ability of propositional attitudes of the third tier implicates self-consciousness . Self-consciousness is the consciousness to be the source of one’s own intentions . This consciousness is expressed by the indexical term “I” . The word “I” indicates that the person concerned regards herself as the source of her intentions .56 For the consciousness to be the source of one’s own intentions I propose the term authenticity .57 The self-consciousness embraces the consciousness of time and the consciousness of endurance of the own existence over the time . However, this time dimension of the self-consciousness may not be confused with John Locke’s identification of the person with the range of her memory . The person is rather able to assign periods of time to herself at which she cannot remember . Only by doing so is it possible to say “I (not it!) do not remember if I have experienced p or that I have experienced p .” The self-relation of the person is not purely cognitive . It is in two respects always associated with an attitude of esteem toward oneself . This is expressed by saying that a person does not only recognize herself in self-consciousness but that she also appreciates herself . The attitude of esteem toward oneself refers first to the relation between the propositional attitudes to each other . Insofar we speak about rationality . Secondly the attitude of esteem toward oneself refers to the relationship between the person and her environment . Insofar we speak about human dignity . Persons regard themselves as rational beings and as beings “endowed” with dignity . Rationality and human dignity are absolute values because they are the pre-conditions of personhood . The attitude of esteem of a person toward the relationship between the propositional attitudes (rationality) consists in the fact that persons always evaluate a consistent and coherent relationship between all their propositional attitudes positively . The cause of this attitude of esteem is that persons can understand themselves only as personal unities and as subject and source of intentional attitudes as long as these attitudes have a minimum standard of coherence and consistence . A severe lack of coherence and consistence makes it impossible to understand oneself . A person 56

57

It is interesting to realize that the word “I” in the English language is often avoided and replaced by “me”: “Who is there?” – “It’s me!” It seems to be regarded as embarrassing frankly to confess to be the source of one’s own intentions . On the other hand: The English use always the capital letter for writing “I” while in German we use the small letter “i” . In the Japanese language the word for “I” is avoided whenever possible . However – where no “I” there no responsibility! The expression authenticity goes back to the Greek adjective αὐθεντικός = genuine, pure . The corresponding Latin expression is auctoritas that we translate with authority or originality . In this original meaning is the concept introduced here . It should not be confused with the currently common meaning of authenticity as counter-concept of insincerity or opportunism . A person who conduct insincerely or opportunistic can nevertheless be authentic because it is her own decision to behave that way and therefore she is responsible for what she is doing . A kind of thinking or acting is not authentic if it cannot ascribed to the person concerned anymore because it is the result of force or manipulation . Authenticity does not relate to the originality of a certain way of life but rather to the capacity to originality at all .

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who does not understand herself is not able to develop the feeling of authenticity and the awareness to be someone and not only something . Furthermore, rationality is a fundamental value for every person because only on the basis of rationality is it possible to identify other persons as persons . This follows from the fact that we don’t have any sensation, which would make us able to experience the intentions of other persons in our phenomenal consciousness like heat or noise or light . Therefore we are coerced to interpret the outer behaviour of a living being as indicator of intentions . This can only be achieved if the behaviour of the other living being can be understood as one that is to a certain extent rationally comprehensible . The second attitude of absolute esteem (dignity) refers to the relationship between the person and her social environment . This attitude answers the question whether under certain conditions it could be possible for certain elements of the environment to be more important and more valuable than the own personhood of the person concerned, so that in a case of conflict the person has good reasons to renounce her own personhood . The idea that something else could have a higher value than the own personhood is, however, contradictory . Personhood is the ability to evaluate . Someone who gives up this ability for the sake of something else is no longer able to evaluate anything . In other words: the things that we want to prefer in comparison to our own personhood lose their value just in the moment of this act of evaluation . We cannot waive on our own personhood without losing the value of everything . It is therefore impossible for the person, to estimate anything higher than her own personhood . The person places herself irreducibly as an absolute value, which is resistant to any consideration and cannot be given up under any circumstances . In order to denote this absolute value of a person the term human dignity is available .58 Since the own personhood is equiprimordial with the personhood of any other person, we are coerced to evaluate the personhood of any other person in the same way .59 The existential basis of personhood is therefore not only the mutual recognition but also the mutual appreciation . Personhood is constituted on the mode of reciprocal recognition and appreciation .60 The margin within which a particular person is able to lead her own life can in practice be larger or smaller than the corresponding margin of another person . The individual margin is defined not only by external conditions, but also by the diversity of personal talents, the alertness of consciousness, the scope of the memories etc . However, the graduability for personal development does not alter the fact that the personhood as such is not subject to graduation . It might be situations in which it is not sure whether or not a living entity is already or still a person . But it is not thinkable that a living being has less personhood than others . Personhood is, ac58 59 60

Paul Tiedemann, Menschenwürde als Rechtsbegriff. Eine philosophische Klärung, Berlin, 3rd edition, 2012, 259 Tiedemann (footnote 58), 274 et pass . Quante (footnote 18), 31 . Reciprocity is here not meant in the meaning of “do ut des” . Ricœur uses the expression “Wechselseitigkeit” (Thomas Bedorf, Erkennen, Anerkennen und Verkennen . Paul Ricœurs Öffnung des Begriffs der Anerkennung, AZP 38 (2013), 328) that refers to the two sides of the same coin . We can also speak of equiprimordiality – Tiedemann (footnote 58), 274

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cording to Quante, a threshold-concept (Schwellenwertkonzept) .61 Personhood is not a matter of quantification . A living being cannot be more or less a person . It is either a person or it is not . 5.2 relevanCe of Personal idenTiTy in Terms of human riGhTs Personal identity is absolutely valuable for every person because it constitutes our existence as self-reflexive beings, as someone and not only as something .62 At the same time, personal identity proves to be extremely vulnerable . It only arises under favourable circumstances, which can be easily thwarted and hindered . It can, even after it has been created, be lost again when the network of mutual personal recognition and appreciation is destroyed . The existential importance of personhood and its vulnerability makes personal identity a suitable candidate for a human right . Is there, therefore, a good reason to require a human right to personal identity? This question could only be answered in the affirmative, if thus far, there would be no human rights pertaining to the protection of personal identity . A detailed analysis of the existing codifications of human rights shows, however, that the protective purpose of at least those human rights that can be described as basic human rights is the protection of personal identity .63 These rights relate to those specific risks which, according to historical experience, personhood was exposed to again and again . Some human rights protect physical and mental integrity whose severe violation leads to the loss of personal identity . This is evidenced by the ban of torture and inhuman and degrading treatment and punishment .64 “Someone who is overwhelmed by the pain of torture, learns his body like never before . His flesh realizes itself totally in self-negation . … [I]n torture the transformation of man into flesh is complete: Howling in pain, exposed to crude violence, not hoping for help any61 62 63

64

Quante (footnote 18), 34 Robert Spaemann, Personen. Versuche über den Unterschied zwischen „etwas” und „jemand”, Stuttgart, 1996 The differentiation between basic and non-basic human rights is in dispute . While on the one hand the thesis of the indivisibility and homogeneity of human rights is defended (cf . Vienna Declaration (1993): Vienna Declaration and Programme for Action, adopted by the World Conference on Human Rights on 25 June 1993, – http://www .unhchr .ch/huridocda/huridoca . nsf/(Symbol)/A .CONF .157 .23 .En [5 .10 .2015]), the EU legislation on the other hand distinguishes between basic and non-basic human rights (cf . e .g . Art . 9 of the Directive 2011/95/EU of 13 .12 .2011 on standards for the qualification as beneficiary of international protection of refugees (ABl EU Nr . L 337/9 v . 20 .12 .2011) . The distinguishing features are, however, nowhere described clearly . Considering the existential importance of the personal identity it seems to be compulsive to consider exactly those human rights as basic which serve for the protection of personhood while human rights which do not serve for this purpose should be regarded as non-basic . It is here not the place to discuss this issue in detail . The differentiation between torture, inhuman, and degrading treatment is up to now not clarified sufficiently . The ECtHR considers torture as an extreme variant of inhuman treatment . Inhuman treatment is a form of degrading treatment that is combined with physical or mental violence . A treatment is degrading if it is committed with the target to break a person’s physical resistance moral will . Cf . ECourtHR, judg . of 18 .01 .1978–5310/71 –, “Ireland v . UK”; judg . of 01 .06 .2010–22978/05 –, “Gäfgen v . Germany” .

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more, not capable to self-defence the tortured being is only body and nothing else more . … Who was tortured remains tortured . Indelibly is the torture burned into him, even if no any clinically objective traces can be demonstrated .”65 The circle of human rights that protect physical and mental integrity also include the ban of slavery, servitude, and forced labor . In all of these rights, the goal is to prevent persons from being treated as things and to protect against hindrances to the development and maintenance of personhood . Some other human rights protect intellectual integrity . These are the conditions which must be met before a person can lead her life on the basis of own considerations and reflections . These conditions are protected by the communication rights (right to free expression and speech, right to free information, right to assembly, right to association) and the ban of brain washing and intellectual manipulation .66 There might be risks for the personal identity, which are still not covered by the codified human rights, so that it is desirable to develop such rights by case law . But the “Right to Identity” as required by the IACourtHR does not relate to a specific protection scope, which is not covered by an existing human right . In contrast: The Court does not explain a gap in the catalogues of human rights . Taking into account the fact that there are several human rights that are supposed to protect the personal identity, we could consider whether it could be useful to take the expression “Right to Identity” as a collective name for all these human rights in order to separate them from all the other human rights . However, there is no need for such a collective name . It is much more important to identify particular risks that to require a specific scope of protection . There is also no need to identify the common basic principle of all these human rights . It is but useful and necessary to identify this basic principle in order to achieve appropriate interpretations of the rights concerned or in order to identify gaps of protection . The Gelman judgment does not deal with the right to identity in the meaning of such a basic principle . It discusses this right as an addition to other human rights and not as the basic principle of these rights . Such an approach is not only superfluous; it is also dangerous, because it suggests the view that the codified human rights are just not designed to protect the personal identity, so that a new human right for the protection of personal identity was needed . The postulate of a right to identity thus contributes to a general confusion about the understanding of human rights . It must also therefore be rejected . Furthermore, in order to denote the general basic principle behind the human rights that are supposed to protect personal identity, it is not necessary to create new terminology, because international law already contains sufficient concepts and expressions . In particular, there is the concept of human dignity . We can read in the preamble of the ICCPR as well as in the preamble of the International Covenant on Economic, Social, and Cultural Rights67 in relation to the following catalogue of human rights: “Recognizing that these rights derive from the inherent dignity of the human person …” . I have presented the language-analytical arguments in favour of 65 66 67

Jean Améry, Die Folter, in: id .: Bewältigungsversuche eines Überwältigten, Stuttgart, 7th edition, 2012, 70 (translated from German by the author) . Cf . Tiedemann (footnote 58), 359 et pass . https://treaties .un .org/doc/Publication/UNTS/Volume%20993/v993 .pdf [5 .10 .2015]

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an understanding of the legal concept of human dignity as related to the personal identity in another paper .68 6. BIograPHIcal (narratIve) IdentIty Previously it has been worked out that there are no good reasons to postulate a human right to identity when the numerical, diachronic or personal identity is understood as a protection scope of such a new right . In this chapter, I want to examine whether a need for a new human Right to Identity exists when identity is understood in the sense of biographical or narrative identity . 6.1 The ConCePT of bioGraPhiCal (narraTive) idenTiTy While the personal identity refers to the personhood of human individuals, the biographical or narrative identity refers to the personality of a human individual . The difference between personhood and personality is the fact that the former relates to the ability to develop a personality while the latter is the concrete result of the application of personhood . Personhood refers to the means of production while personality is the product that has been made by means of personhood . 69 Erikson’s question “Who am I?” refers to personality when it is meant as a question of what kind of personality the person concerned has developed and whether she wants to continue this way or wants to change her personality . The question refers to what the person concerned should do with her life . It is therefore, in a narrower sense, an existential question . It was Martin Heidegger who first discovered, or at least described, the existential meaning of the question “Who am I?” In the existential meaning, the question relates not to a current given reality, but rather to the future .70 It sounds more like: “Who do I want to be?” According to Ernst Tugendhat, this question implicates seven elements . It can: (1) only be asked from the first-person-perspective; (2) refer only to the future of the asking person; (3) it would not asked if persons would not care about their life . Further, the question implicates: (4) that the person has a certain margin in which she can choose different ways of life, i . e . different personalities; and (5) that the person is aware of the limits of this margin of freedom . The question always has (6) the meaning of “what is better?”; and finally (7) persons have the freedom to decide whether or not they want to ask this question .71 It is seductive 68 69

70 71

Tiedemann (footnote 58), 223 Personality is therefore not as Quante (footnote 18), 139, 155 says, an individual peculiarity of personhood . Both are rather categorical different . The picture an artist has painted is not a peculiarity of his brush or his technique but it is the product of the application of his resources . In terms of mere peculiarity we might say that he is best in watercolour painting . Corresponding in terms of personhood we could talk about a peculiarity if we want to say that a certain person is exceedingly autonomic or to a particular high degree very other-directed . Odo Marquard, Der Einzelne. Vorlesungen über Existenzphilosophie, Stuttgart, 2013, 196 Ernst Tugendhat, Selbstbewusstsein und Selbstbestimmung. Sprachanalytische Interpretationen . Frankfurt/M, 1979, 194 et pass .

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not to ask the question because avoiding the question gives the illusion of safety and, thus, relief from the burden of responsibility . Heidegger differs depending on whether the question is asked or not, between authentic and inauthentic existence .72 In the mode of authenticity the person relates to herself in the attitude of self-determination . Furthermore, in the mode of authenticity the person is not an observer of herself . She does not make herself an object of observation; rather, she has an idea of her own future life that has to be realized . In the existential meaning, the question “Who am I?” is not what the person concerned currently is, but, rather, what future she chose under the given limitations . The most important limitation of the margin of freedom is the image the person has of herself . The first condition of an authentic life is a realistic awareness of oneself . This question is addressed by the theory of narrative identity, as it has been developed by Paul Ricœur .73 Originally Ricœur started from the question which function the fictional literature has for the development of personality . He understands novels and theatre-plays as “laboratories”, in which by the way of literary thought experiments imaginative variations of personality can be tested .74 The reader of a novel receives – first on a trial basis – the offer to identify himself with the hero of the fictional story, but he is also required to distance himself from the hero insofar as he is aware of the differences between himself and the literary hero . By this way of self-interpretation, the person comes to the awareness of what personality she has and what alternatives she has .75 Self-interpretation is a hermeneutic process, consisting of the back and forth wandering gaze between the literary character and the individual personality . It is possible to be aware of the own personality in the mirror of a fictional story because the personality has, in the same way as the fictional story, a narrative structure . Personality appears, for the person concerned, as a story . The narrative identity is a story that makes the life context of the person visible . The narrative context appears on the one hand in what Ricœur calls character and, on the other hand, in what he calls Selbst-Ständigkeit (“Maintien de soi” = self-holding), based on Heidegger . The character is the totality of the distinguishing features that make it possible to re-identify the individual as the same . Thus, it relates to the recognition of a personality from the observer’s perspective and includes the totality of the permanent habitual attitudes of a person and a person’s identifications, i . e . the set of values, norms and ideals that the individual has internalized .76 Although the character is determined by passive acquisition and some sedimentation, their acquisition is but a historical process, which, as such, can be told and can, to a certain extent, become 72 73 74

75 76

Martin Heidegger, Sein und Zeit, Tübingen, 16th edition, 1986, 42 et pass . Apart of Ricœur’s theory of narrative identity other theories with a deviant content has been developed by several Anglo-Saxon philosophers, cf . László Tengelyi, Paul Ricœur und die Theorie der narrativen Identität, AZP 38 (2013), 263–279 . Ricœur (footnote 40), 139, see also: Paul Ricœur, Narrative Identität . Heidelberger Jahrbücher 31 (1987), 57–67, cited according to the reprint in: Paul Ricœur, Vom Text zur Person. Hermeneutische Aufsätze (1970–1999), Hamburg, 2007, S . 216 – http://www .philosophie .tu-berlin .de/ uploads/media/Ricoeur_-_Narrative_Identitaet .pdf [5 .10 .2015] . The first publication was in German . The French version appeared in Revue des Sciences humaines 95 (1991), Nr . 221, 35–47 Ricœur (footnote 74), 222; Ricœur (footnote 40), 138 FN 1 Ricœur (footnote 40), 146

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the object of existential decision . The core of the narrative identity is constituted less by the character than by the Selbst-Ständigkeit .77 Selbst-Ständigkeit is not about the recognition of the same . It is about the identity of the self from the first-person-perspective . The Selbst-Ständigkeit emerges in a person’s specific speech acts, of which Ricœur emphasizes the promise .78 The promise constitutes another kind of permanence that does not consist like the character in a quasi-substantial persistence, but rather in loyalty to the once given word . The durability is reflected here in the forward-looking project of life and not in what has been acquired in the past . “The subject as a self has its identity not as a closed and exclusive substantial identity, but in the sense of a person who by facing the other persons […] stands up for herself and for her own history .”79 So, in addition to the promise, other speech acts such as the witness, the confession, or repentance, are fundamental to the narrative identity of personality .80 In the given promise appears the relationship between past and future: The personality that the person was when she gave the promise, does she want to be in the future when she is going to accomplish the given word . The personality experiences itself as identical if it can consider itself today for the one who has promised something yesterday, what it will accomplish tomorrow .81 The margin for the shaping of the personality is more or less limited . These limits are highly dependent on a variety of biological factors, such as the body and gender, the physical constitution, the presence or absence of physical or mental infirmity and disease, the intelligence, the talents, temperaments, and many more . In the same way the natural environment, the social and cultural conditions, as well as the decisions and facts that the person made in the past limit the individual scope of shaping, the range of possibly free shaping of the personality is relatively narrow . But the range is more or less at zero only in very extreme cases . At the very least, the margin of free personality shaping can be close to zero when an individual was denied the ability to make any use of his capacity to create a personality . This is the case if a person is hindered from following his active impulses in his early childhood, or if an individual is later hindered from acting on the basis of own plans and intentions . An individual who is forced to live under such conditions will not be able to freely create his own personality . This is particularly the case for human beings in so-called “total institutions” like hospitals, prisons, and orphanages .82 Apart from such extreme cases, persons normally have a certain degree of margin within which they can freely shape their personality . The way persons make use of this freedom is very well demonstrated in Harry G . Frankfurt’s conception of second-order-volitions .83 According to this theory, the development of a personality 77 78 79 80 81 82 83

Ricœur (footnote 40), 149 Ricœur (footnote 40), 148 Theo Kobusch, Wer bin ich? AZP 38 (2013), 285 (translated from German by the author) Kobusch (footnote 79), 286 Ricœur (footnote 40), 352) Erving Goffman, Asylums . Essays on the Social Situation of mental Patients and Other Inmates, New York, 1961 Harry G . Frankfurt, Freedom of the Will and the Concept of a Person, in: The Journal of Philosophy 68 (1971), 11 – http://www .unc .edu/~dfrost/classes/Frankfurt71_Freedom%20of%20 the%20Will%20and%20the%20Concept%20of%20a%20Person .pdf [5 .10 .2015] .

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first appears in second-order-desires . These are desires according to which the person concerned wants to have, or wants not to have, certain first-order-desires . First-order-desires are spontaneously occurring wishes . In terms of their preferences and purposes, persons can wish to be different from what they currently are . They can wish that a certain first-order-desire remains unfulfilled . Frankfurt speaks of second-order-volitions when a person has chosen a second-order-desire to become effective, or in other words, for it to become her will . An act is accompanied by the feeling of authenticity only if it is the trial of realization of a second-order-volition . Otherwise the person experiences herself as driven, as forced to follow impulses which are not under her control and which become effective independent of whether the person has an affirmative or a pejorative attitude to them .84 In such a case, the person feels self-alienated and only feels to be something and not someone . Persons have the urgent need to ground their will, and the actions that are based on their will, in a coherent connection with their former wants and actions . If they succeed, they are able to tell a coherent story of their lives and indicate what kind of personality they are . By doing so, they receive an understanding of what we can call “the meaning of life .” By assigning meaning to their lives, they are able to extend the reflexive self-evaluation to themselves as permanent beings over the time . The need for biographical coherence does not depend on the results of the self-evaluation . It is possible for a person to tell the story of her life as a story of a personality she never wanted or at least no longer wants, such as a story of failure or a story of shame and guilt . Such a negative self-evaluation leads, however, to a deep existential crisis . A person copes with such a crisis only by carrying out a radical break from her previous biography and by starting the project of establishing a new and different personality . However, persons mostly tend to avoid the pain that is connected with a negative self-evaluation and to avoid the fear that is connected with the project of a complete renewing of personality . Therefore, they prefer to tell the story of their life in a more comfortable way even if this story differs more or less from the “true” story . The coherent biographical story is, therefore, often based on an unconscious, yet invented, ideology, and not on historical facts . The personality someone believes to be, and with whom the person positively identifies with, must not necessarily be the real personality of the person concerned . The shaping and construction of personality is not only at risk of self-deception of that kind . There is, furthermore, another risk that is particularly typical of human life under the conditions of postmodernity . The postmodern culture in advanced societies is characterized by a loss of ideals and models that could provide people with useful guidance . This phenomenon of postmodern societies is exactly what inspired Erikson and others to think about identity . This lack of models and examples has two important consequences . On the one hand, it enlarges the scope of possible personalities someone can choose . On the other hand, it also simultaneously enlarges the uncertainty and doubtfulness of any chosen way of life . This leads to a widespread culturally indicated crisis of identity, which former generations did not experience to the same extent . Human individuals are, much more than former 84

Cf . Peter Bieri, Das Handwerk der Freiheit . Über die Entdeckung des eigenen Willens, München/Wien, 2001, 88 et pass .

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generations, coerced into inventing the model themselves according to which they want to develop their personality . They tend to assemble this model as a mosaic of particular fragments of their own cultural tradition as well as foreign cultural traditions, or of models they learn from pop-stars, athletes or other celebrities . Heiner Keupp has coined this phenomenon, “Patchwork-Identity” .85 Others speak about “tinker-identity86 or tinker-existence .87 6.2 relevanCe of PersonaliTy in Terms of human riGhTs In terms of personality, there are different instances in which the need for human rights protection should be considered . The first instance refers to the possibility of developing personality at all . Under the living conditions of total institutions it is not possible to develop any kind of personality because a person needs a certain scope of freedom to take responsibility for her life and to develop any kind of personality . Human beings must, therefore, be protected against total institutions, i . e . a situation in which their developmental margin is reduced almost to zero . This scenario in fact describes, not a risk toward personality, but rather, a serious risk toward personhood . The protection against total institutions, therefore, is a matter of all those human rights that are supposed to protect personhood (cf . chapter 5) . The catalogues of codified human rights contain particular rights that are dedicated to protecting from intrusions of total institutions, in particular Art . 5 VI ACHR or Art . 10 ICCPR . Furthermore, the ban of inhumane and degrading treatment (in- and outside of “asylums”) also serves to protect against total institutions (Art . 5 ACHR, Art . 3 ECHR, Art . 7 ICCPR) .88 Therefore, there is no need for a new unwritten human Right to Identity in this regard . However, we have to clearly distinguish the problem of total institutions from the question of whether the personality that a person has already developed, deserves protection by human rights . In this context, we have to consider the following: It is possible that the personality someone has developed or wants to develop reduces the scope of freedom of his fellow humans in a way that is not acceptable . Someone can e . g . develop a very selfish personality that does not show any consideration for other people . Even more problematic would be a personality that finds meaning in becoming a dictator or a Mafia-boss . Next to Immanuel Kant, we can conclude that the freedom of creating a personality is always limited by the freedom

85

86 87 88

Heiner Keupp, Identität und Individualisierung: Riskante Chancen zwischen Selbstsorge und Zonen der Verwundbarkeit – sozialpsychologische Perspektiven, in: Hilarion G . Petzold (ed .): Identität. Ein Kernthema moderner Psychotherapie – interdisziplinäre Perspektiven, Wiesbaden, 2012, 77 et pass . Michael Klessmann, “Das Ganze ist das Unwahre” (Th . Adorno) . Theologische Anmerkungen zur Identitätsthematik, in: Hilarion G . Petzold (ed .): Identität. Ein Kernthema moderner Psychotherapie – interdisziplinäre Perspektiven, Wiesbaden, 2012, 173 Rolf Eickelpasch / Claudia Rademacher, Identität, Bielefeld, 2004 There is no corresponding fundamental right in the German Grundgesetz . The Federal Constitutional Court has derived such a unwritten right directly from the principle of human dignity . – cf . BVerfG, judg . of . 21 .06 .1977–1 BvL 14/76 –, BVerfGE 45, 187; see also ECourtHR, judg . of 09 .07 .2013–66069/09 et . al . – “Venter v . UK” .

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of anybody else from creating a personality .89 But where exactly are the limits? – This cannot be defined by strict rights . There is no protection scope that goes beyond any dispute and could constitute a matter of a strict human right . The determination of the limits is, in any particular case, a matter of social negotiation or even a matter of law . A second point is important: The personality someone can develop depends on the social niche he occupies . These niches are defined not only by the preferences of the person concerned, but also by certain social demands . Someone might, for example, prefer to become a teacher and to develop a personality typical for teachers . If the conditions of the market give the person concerned no possibility of becoming a teacher, she is hindered from developing the corresponding personality . Both of these considerations show that the protection of freedom of creating and maintaining personality cannot be a matter of human rights . There is no definite right to create or to maintain a certain personality . This does, however, not mean that personality is not and cannot be a matter of legal protection . The sufficient and appropriate means for protection are, however, not the human rights, but another principle of law; namely, the Principle of Liberty . As has been shown above, the human rights are designed to protect the freedom of will . The Principle of Liberty, on the other hand, serves to protect the freedom of action . According to this principle, everybody can do, or omit whatsoever he wants to do or to omit, so long as it is not prohibited by law . Secondly, the reduction of the freedom of action by law is only in accordance with the Principle of Liberty if the law is impartial and general, so that the reduction of freedom relates to everybody equally . Furthermore, the law that restricts the scope of everybody’s freedom to develop a personality according to individual preferences must be justified under the principle of proportionality: (1) The law must aim for a legitimate purpose, (2) the provision must be suitable to achieve the purpose, (3) the provision must be necessary to achieve the purpose, and (4) the relationship between the purpose and the deprivation of freedom must be adequate .90 It is not possible to derive material rights from the principle of proportionality or from the principle of liberty . These principles guarantee only a right to fair proceedings of consideration and weighing of the conflicting interests . They put the restriction of the freedom of action under the requirement of justification, but contrary to human rights, they do not guarantee an absolute scope of protection . However, under certain circumstances, there is a need for protection of personality under human rights . The most important of these circumstances relates to the protection of the freedom of conscience . The scope of protection of the freedom of conscience does not refer to the general protection of the freedom of creation and maintenance of a certain personality . Rather, it refers to a particular situation in which certain elements of a personality come into conflict with public duties of cooperation . This becomes clear if we remember Paul Ricœur’s theory that the narrative identity (personality) is based on a promise . The personality is characterized by a promise that a person makes toward 89 90

Immanuel Kant, The Philosophy of Law: An Exposition of the Fundamental Principles of Jurisprudence as the Science of Right [1796] – http://oll .libertyfund .org/titles/359 [5 .10 .2015] Lothar Hirschberg, Der Grundsatz der Verhältnismäßigkeit, Göttingen, 1981

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herself and through such promises she is able to recognize herself as the subject of her life through time . It is not necessary but possible that a particular promise of personality contains elements that can be understood as a promise that the person concerned makes not only toward herself, but also toward her fellow humans . But these fellow humans are not necessarily real individuals who may or may not have certain interests in the promise of the person concerned . Rather, the promise is made toward the “generalized other” .91 Insofar as a promise of personality is addressed to the generalized other, it is orientated at the expectations that any other has when we put aside all the particularities by which individuals can be distinguished from one another . The expectations of the generalized other are what the individual concerned considers to be the common expectations of any human being in his capacity as a human being . The expectations of the generalized other are the expectations that one can make to someone who knows how to be a human being in a proper way . The binding power of the promise toward the generalized other appears in the conscience of the person concerned . The content of the promise toward the generalized other is called moral obligation . A person, who acts contrary to the design of the personality she has chosen, is confronted with the feeling of shame and guilt . The feelings of shame and guilt are the natural reactions of the experience of divergence or dissent between the chosen design of personality and the realized actions of a person that are contrary to this design . The dissent indicates an endangering of the narrative identity . This risk can only be avoided by confronting the feeling and consciousness of shame and guilt . These feelings drive the person concerned to correct her behaviour and to bring it in accordance with her designed personality . Those who try to avoid the feeling of shame and guilt by strategies of displacement, run a risk of a senseless demolition of their narrative identity . However, the correction of behaviour is not the only way to harmonize the practice of life and the chosen design of personality . It is, namely, not only possible to change the behaviour . It is also possible to change the design of personality . For example, it seems to be a good idea for someone who has chosen the personality of a pianist to give up this profession and do something else if he cannot play piano and is not successful in learning it . The change of personality might not be easy . But it is bearable when it comes to the necessity to harmonize the practice and plan of life . However, it is bearable only as long as those aspects of personality are affected which is a matter of the promise toward oneself and not a matter of the promise toward the generalized other . The difference is obvious: In the former case, we have to justify the change of our personality only toward ourselves . In the latter case, we have to justify the change of personality toward the generalized other and this is not possible because we cannot change the moral standards for our own . This is why the binding power of our conscience is not avoidable . The self-inflicted ignorance of the conscience necessarily leads to a demolition of our narrative identity because it is no longer possible to tell a coherent story of our life . 91

George Herbert Mead, Mind, Self, and Society from the Standpoint of a Social Behaviorist, Chicago, 1934, 155

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Such a demolition of the individual life narrative cannot only be the result of self-inflicted ignorance of the conscience . It can also be the result of severe repression . A person who is initially coerced to act contrary to her conscience by repression can endure this situation in the long run only by identification with the oppressor by taking over his values and aims .92 Through such a process, the person becomes a shell in which a foreign personality lives, so to speak; namely, the personality of the oppressor . In this case, the person concerned suffers from a severe loss of authenticity that urgently calls for legal protection . However, this risk is not a good reason to require a new unwritten human right, because such a right already exists . It is the human Right to Freedom of Conscience as it is guaranteed by Art . 12 ACHR, Art . 9 ECHR, and Art . 18 ICCPR . The right to freedom of conscience is the most important right in the context of the biographical or narrative identity .93 The narrative identity can be further threatened by other serious intrusions . Among these intrusions are particular forms of manipulation of the individual or collective memory that force the victims to forget their own history and, with this, parts of their life story . Indeed, this is a field in which the stock of written human rights in international treaties does not seem to be sufficient . Therefore, it is useful and well justified to require some more specific human rights in this regard . Here the Right to Knowledge of Ancestry should be mentioned, which is recognized by the IACourtHR as well as other supreme courts .94 A right to protect against the manipulation of collective memory also seems to be needed . It should protect against legal provisions which criminalize the memory of the collective history, e . g . of the Genocide of the Armenians by the Ottoman Empire in 1915 .95 There may be other aspects of the biographical identity that deserve legal protection through human rights, but that have not yet been considered sufficiently in the international codifications . These include the right to sexual self-determination and the right to freedom of sexual orientation (cf . Art . 21 EU Charter of Fundamental Rights96) as well as the right to freedom of language (cf . Art . 18 Swiss Federal

92 93 94 95

96

Mathias Hirsch, Zwei Arten der Identifikation mit dem Aggressor nach Ferenczi und Anna Freud, in: Praxis der Kinderpsychologie und Kinderpsychiatrie 45 (1996) 6, S . 198–205 – http://psydok .sulb .uni-saarland .de/volltexte/2012/3909/pdf/45 .19966_1_39099 .pdf_new .pdf [5 .10 .2015] It is important not to confuse the right to freedom of conscience and the right to freedom of religion . Cf . Paul Tiedemann, Is there a Right to Freedom of Religion?, HRR 2014 DOI 10 .1007/ s12142-014-0342-2; printed version: HRR 16 (2015), 83–98 BVerfG, judg . of 31 .01 .1989–1 BvL 17/87 –, BVerfGE 79, 256 . Critical though: Tiedemann (footnote 58), 606 ff . According to Art . 31 of the Turkish Penal Code as amended by the law no . 5759, (into force since 08 .05 .2008) everybody is to be punished with imprisonment between six month and two years who i . a . “publicly disparages the Turkish Nation” . Statements concerning the Genocide at the Armenians are regarded as an intrusion of the personality of all Turkish citizens and results in civil claims for damages . The Turkish Nobel laureate Orhan Pamuk was sentenced in March 2011 to pay damages in the amount of 6,000 Turkish lira to six plaintiffs who felt offended by his remarks on Armenian Genocide; cf . http://www .nzz .ch/aktuell/feuilleton/uebersicht/diemeinungsfreiheit-laesst-auf-sich-warten-1 .10110481 [5 .10 .2015] http://www .europarl .europa .eu/charter/pdf/text_de .pdf [5 .10 .2015]

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Constitution97) . Such rights, however, must be specifically denoted . The general title “Right to Identity” does not provide the necessary clarity . 7. socIal IdentIty (role-IdentIty) The concept of role-identity was introduced in the social sciences by Erving Goffman (Goffman 1956) . It is based on the observation that human interactions are strongly influenced by the image that agents project about themselves and to what extent they can impress the recipients . 7.1 The ConCePT of role-idenTiTy Interactions regularly take place under circumstances where participants of a communication do not know enough about each other to sufficiently and appropriately react to each other’s actions . As a result of this absence of sufficient information, participants rely on their own impressions of the other participants . Thus, they rely on the image that they have of the other participants . Since each participant of an interaction knows that not only he, but also all the other participants are dependent on the impressions they make on each other, he is motivated to behave in a way that evokes the impression he wants to evoke in order to be treated how he wants to be treated . So, he will portray himself as an actor on a theatre-stage . In other words, he will perform a self-representation . The audience perceives this performance both as an assertion and as a promise, namely the assertion to be as it appears and the promise to behave permanently and consistently in a way that corresponds to the displayed personality .98 However, the claim to be the personality that is portrayed to the audience, in order for the audience to rely on it, is always principally untrue . The personality of a human individual is never as it seems because the individual tries to appear as rational, reliable and stable . The truth is, however, that human individuals are affected by spontaneous affects, moods, emotional impulses, and uncontrollable physical reactions that are characterized by severe fluctuations, which cannot be predicted . Individuals who behave in accordance with their spontaneous situation do not leave the impression of having a consistent and coherent personality whose behaviour is predictable and sufficiently reliable in the context of a successful interaction . Rather, they act more like young children, guided by their spontaneous emotions, moods and impulses and who, for that reason, cannot be considered a serious partner to an adult interaction . In order to ensure a successful interaction, participants must therefore suppress their spontaneous emotions, moods and impulses . As a result, the impression they make does not correspond to who they really are, but rather serves as a mask behind which they play a role in front of spectators . So, participants 97 98

https://www .admin .ch/opc/en/classified-compilation/19995395/201506140000/101 .pdf [5 .10 .2015] Erving Goffman, The Presentation of Self in Everyday Life, Edinburgh, 1956, 160 et pass . – http://monoskop .org/File:Goffman_Erving_The_Presentation_of_Self_in_Everyday_Life .pdf [5 .10 .2015]

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in an interaction always play as though they are actors in a theatre . The presentation follows a specific role, where the actors consciously or unconsciously identify themselves with the specific role they play . However, the role that someone plays is not solely based on his own choice . An individual can, in the long term, display only those roles that are accepted by his communication partners successfully . Role-identity is therefore not the answer to the question “Who am I?” but rather to the question “Which role is ascribed to me?”99 Goffman distinguishes between a sincere and a cynical performance . In the latter case the individual is conscious of the difference between what he really is in relation to the role that is ascribed to him and that he tries to play . In the former case the person believes that the role that she is playing does not only correspond to the image that society ascribes to her, but also to what she really is or what she really wants to be . In this case, the role-image corresponds to the ideal self-image . The need to always play a role in interpersonal interactions can lead the individual to internalize his role so intensely that he no longer manages to distinguish between his true self and his role-self . In such a case, the person concerned is not only the actor of her performance, but also the spectator of her own performance . She starts to believe that the impression that she makes on the stage is the only reality about herself and that there is no difference between her true personality and her role-image . This succeeds only if the person hides all the role discrediting facts from herself . Furthermore, there are aspects of her true personality that she cannot admit to herself . Goffman calls this state, “self-delusion” .100 In the state of self-delusion, the individual is no longer able to lead his own life on the basis of his own will and his own values . The individual will and values are replaced by the expectations of the “audience” . Such an individual does not lead his own, authentic life but is, rather, led by the ascriptions and expectations of the audience in front of whom he plays his role . In order to maintain self-consciousness of who one really is, and to avoid self-alienation, it is necessary not to stay and act on the “stage” of life permanently . In addition to the interaction area of the stage, there must also be an area of the stage that Goffman calls “backstage” .101 Unlike the interaction stage, the audience is excluded from the backstage . Therefore, a social interaction does not take place here . The individual is not compelled to play a role because he is no longer subjected to audience observation . Backstage, the individual can relax and recover from efforts associated with the maintenance of the role identity . He does so by dropping the mask, loosening self-control, “acting out of character” and behaving in a manner consistent with his spontaneous emotions, impulses, and moods . By doing so, the individual experiences himself as the personality he really is . Thus, it is possible to distance oneself from the roles that one has to play on the stage of life . This distance allows reflection concerning these roles, and the ability to criticise and modify the roles, or the ability to train and test new roles . Only by using a backstage approach can the person lead her own life and not become a passive match ball of foreign ascriptions . 99 Goffman (footnote 99), 162 100 Goffman (footnote 99), 49 101 Goffman (footnote 99), 69

Identity and Human Rights

39

The role-identity can, as long as one is not just forced to play the role of a loser or of a villain, convey a specific self-esteem . This self-esteem results from the acquisition of the appreciation that the audience has paid for the role performance . On the other hand, this self-esteem is shaken when the staging fails . This may happen if the concealment of emotions, moods, impulses and physical reactions does not or will not sufficiently succeed, thereby causing the performer to fall out of character . If such a case arises, embarrassment, and in severe cases, shame arises not only for the performer, but also for the audience that feels disappointed in his ascriptions .102 7.2 relevanCe of role-idenTiTy in Terms of human riGhTs Role-identity is a social ascription, which is carried out in the interest of a smooth process of social interaction . It thus serves collective purposes, and not individual interests . This fact does not speak in favour of a relevance of role-identity in terms of human rights . Human rights serves for the protection of specific individual interests and not for the protection of social interests . Successful interaction is, however, not only a matter of collective interest . The individual only has a basic interest in successful social interactions in order to integrate into society . Social integration is a basic need of man as a social being . Nevertheless, the individual interest in a certain role-identity cannot be considered a matter of protection in terms of human rights . The particular role-identity is a result of a process of negotiation between the individual concerned and his fellow humans . The individual can only offer a certain role model to the audience . Whether or not this offer will be accepted is up to the audience . It is, therefore, not possible to demand acceptance of a certain role-identity by the audience . It is similar to the theatre: The actors have no right to the applause of the audience . The performer cannot sue the audience for applause . The individual also does not have a right to maintenance of a certain reputation that he has achieved . The audience can change its mind about the reputation of a person . Again, the situation is like a theatre: Every single evening the actors must endeavour to receive the applause of the audience . The ascription of a certain role depends on the credibility of the self-performance, i . e . from the belief of the audience that cannot be forced . Without the belief of the audience, the role-identity loses the trustworthiness and becomes a mere farce . However, for purposes of fairness, the individual must have the opportunity to offer a certain role-identity or a certain new role-identity to the public . Intrusions in the freedom to offer a certain role-model to fellow humans can be subjected to protection by human rights . Role-identity can be protected against two different kinds of intrusion: defamation and stigmatization . Defamation consists of a mechanism of confining a person to a false (disadvantageous) role image . Defamation is a kind of manipulation of the audience, which is hindered from deciding whether it wants to accept the real performance that someone is playing . Defamation undermines the function, which the role identity has for 102 Concerning the shame of the audience it is today usual to speak of second-hand-shame (fremdschämen) .

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a successful social interaction . Therefore, there is no public interest in false discrediting statements of fact . At the same time, defamations exclude the person concerned from a functioning social interaction . Therefore, the legal protection against defamation is not only in the public interest, but also in the basal interest of each individual . Stigmatization consists of confining an individual to past actions or thoughts, of which he has distanced himself for a long time . Stigmatization ignores the fact that role-images can be changed . Stigmatization tells the story that the person concerned would display a certain (negative) role while, in fact, she does not display this role anymore . Stigmatization is, therefore, like defamation, an unfair intrusion on the freedom to offer certain role identities . It is a manipulation of the audience as well . Telling the truth about the deeds and thoughts of a person is not always stigmatization . It becomes this kind of manipulation only if a long time has passed and the person concerned has sustainably changed his attitudes toward certain (bad) actions and thoughts so that we can say that the person concerned has changed her role . Normally the audience will eventually forget the former role a person has played in the past and will be willing to accept the new one . The social mechanism of stigmatization hinders or even excludes such a forgetting significantly . An example of stigmatizations involves criminal records that will never be erased and will always be remembered every time the person concerned applies for a job . A more recent example of stigmatization is the permanent provision of true, but no longer current, role-identities on the Internet . The need for protection against defamation does not justify the demand for a new human right to (role) identity . Art . 11 ACHR as well as Art . 17 II ICCPR contain a right to personal honour and respect toward a good reputation . The ECHR does not contain such a clause . However, the ECtHR subsumed this right, under the protection scope of private life (Art . 8 ECHR) and recognizes the right not to be defamed, as an unwritten human right .103 In terms of the protection against stigmatization, there is, in fact, neither a written nor a well-established unwritten human right, and the debate concerning this issue is still in flux . In this context, it is appropriate to point to a recent judgment of the Court of Justice of the European Union in which the Court has roughly shaped a Right to be Forgotten where Internet providers can be obliged to delete personal data to avoid stigmatization . The Court derived this right from the right to protection of personal data that is codified in Art . 8 of the Charter of Fundamental Rights of the European Union .104 Another Supreme Court decision that should be mentioned in this context is a judgment of the German Federal Constitutional Court of 1973, in which the Court established the Right to Omission of a Television Program about a Crime. According to this right, it is prohibited to broadcast a TV movie about a crime at the time the offenders are scheduled for release from prison, if such a broadcast would complicate the reintegration of the offenders disproportionately .105 103 ECourtHR, judg . of 29 .07 .2004–64915/01 – “Chauvy et al . v . France” 104 CJEU, judg . of 13 .05 .2014 – C-131/12 – “Google Spain” (http://europa .eu/eu-law/case-law/ index_de .htm [5 .10 .2015]) 105 BVerfG, judg . of . 05 .06 .1973–1 BvR 536/72 – “Lebach”, BVerfGE 35, 202

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In the context of role-identity, we finally have to consider the need for protection of what Goffman calls the backstage . Here, it concerns the protection against denudation of those aspects of the personality that should remain suppressed and hidden in the role image to ensure consistency and coherence of the role . However, it is not possible to protect these aspects against transparency while the person concerned is acting on the stage and as long as these aspects play a role in the evaluation of the credibility of the performance . Therefore, there cannot be any human rights protection for a person who voluntarily appears on a television program and ridicules herself in front of the TV-audience, for example . The denudation of the hidden aspects of personality is, however, a matter of protection by human rights, if these aspects appear backstage only . Backstage, a person must have the right to express herself as she really is . Otherwise she will lose the awareness of her true personality and will become a match ball in the hand of the public . It should be stressed and clarified that protection of the backstage does not actually relate to the role-identity but, rather, relates to the narrative identity, i . e . the personality . The protection of the backstage concerns the right to privacy and the right to protection of married and family life (Art . 17 ICCPR, Art . 11 ACHR, Art . 8 ECHR) as well as the right to freedom of marriage (Art . 23 ICCPR, Art . 17 Abs . 2 ACHR, Art . 12 ECHR) . These rights are recognized by the international human rights codifications . There is no need to demand a new right to identity in this context . Only the limits of privacy can be a matter of dispute . But this relates not to new human rights, but only to the interpretation of written human rights . 8. conclusIon The inquiry has shown that identity is an equivocal concept . In terms of numerical and diachronic identity, as well as in terms of personal, narrative and role- identity, it is possible to show areas of conflict where a need for human rights protection becomes visible . These needs for protection are in most cases already covered by codified human rights . However, there are, undoubtedly, some fields of conflict where neither the codifications nor the case law of the international human rights courts of justice provide sufficient protection . A closer consideration deserves, last but not least, the aspect of physical identity that was not discussed in this paper . But that assumes an intensive examination with particular psychiatric approaches that must be reserved for further discussion .106 One thing should be made clear in this paper: The demand for a new “Right to Identity” is meaningless and pointless because what is to be understood here as identity remains unclarified . Human rights protection requires, among other things, clear and sophisticated language, not many meaningless words .

106 Andrea Moldzio, Ein phänomenologischer Blick auf schizophrene Psychosen, in: Brigitta Keinzel / Michael Ertl / Rudof P . Wagner (ed .): Ich bin tausend Ich. Probleme, Zugänge und Konzepte zur Therapie von Psychosen, Wien, 2002, 238 et pass .

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deutscHe Zusammenfassung Auf der Grundlage des Urteils „Gelman“ des Inter-Amerikanischen Gerichtshofs für Menschenrechte fragt der Autor nach einer Rechtfertigung für die Forderung nach einem „Recht auf Identität“ . Der Aufsatz identifiziert sechs verschiedene Bedeutungen des Begriffs „Identität“ (synchrone, diachrone, Ich-, personale, narrative und Rollenidentität) und untersucht jede dieser unterschiedlichen Bedeutungen darauf, inwiefern es eine signifikante Beziehung zu den Menschenrechten gibt . Der Autor kommt zu dem Ergebnis, dass viele wichtige Aspekte von Identität bereits durch Menschenrechte geschützt sind . Soweit das nicht der Fall, aber wünschenswert ist, müssen die Rechte, die zu fordern sind, eine hinreichend klare Bestimmung ihres Schutzbereichs aufweisen, um das betreffende Recht von anderen Menschenrechten unterscheiden zu können und juristische Subsumtion zu erlauben .

ZeyneP İsPİr*, ankara Human dIgnIty

as a

common IdentIty

absTraCT: We are living in a world that puts forward our differences, diversities among societies, among countries, among cultures . Law has been expected to fulfill the demands of these differences by regulation and adjudication . Mostly these demands are appropriate and even necessary since it may cause direct or indirect discrimination if we do not consider our dissimilarities . Such demands are also reasonable because as constituents of our identity, diversities provide a rich and meaningful life for whole of humanity . The problematic scenario is taking all distinctions as a ground for human rights . It makes the situation inextricable because we have many kinds of components in our identity and it is quiet easy to differentiate us from each other via them . Once we take identity as a starting point we should be aware of the danger of cultural or personal value judgements . They may shape some of our qualities of identities and may violate human rights although we are trying to protect them . For preventing these violations it seems convenient to see our “sameness as human beings” at the beginning . Throughout these thoughts the identity may be considered as a two-sided coin which indicates our sameness but also our discrepancies . These two are important for conceptualization of human rights . The question of this paper is whether the concept of human dignity might be used as a common identity for human beings or not . The role of the concept of human dignity for justification of human rights seems important for clarification of this debate . For this purpose, initially, this paper will try to discuss “the value of human being” for conceptualization of human dignity . The meaning of human dignity and its connection with identity seem interrelated with such kind of an understanding of “value” . Then it will be proposed to start with “human dignity as a common identity” for protection and promotion of human rights .

1. IntroductIon “A life spent writing has taught me to be wary of words. Those that seem clearest are often the most treacherous. ‘Identity’ is one of those false friends. We all think we know what the word means and go on trusting it, even when it’s slyly starting to say the opposite.”1 Identities enable us to live in a world that is composed of diversities . The components constitute our identities are important tools of our “world of meaning” . Mostly we tell ourselves, we give meaning to our life via them . There is not only one component in a person’s identity: languages, jobs, cultures, gender, religions, social positions, ethnicities etc . Each of them separately and altogether constitutes our identity as a whole . Therefore it seems plausible to say identity is “a total of properties, features, even relations that ‘build’ us” instead of a one and a single property . It is possible to add extra categories to those mentioned above . Although each category is called with the same name, if we are talking about a person it has differences in itself, too . Persons have different identities in their identities because of their *

1

The author thanks Prof . Dr . İoanna Kuçuradi and Prof . Dr . Dr . Paul Tiedemann for their critiques and comments throughout the writing process, all these debates gave an opportunity to conceive some nuances of their theories; thanks also to Prof . Dr . Gülriz Uygur for her essential remarks on the paper . Amin Maalouf, In the Name of Identity: Violence And The Need To Belong, translated by: Barbara Bray, New York, 2001, 9

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specific features, behaviors, expectations, their sense of belongings, and so on . Initially, we may think it is appropriate to make an analogy between a matryoshka doll and this multi-layered pattern of identity . However it seems inconvenient because of the different sizes of the dolls and the concept that each doll is including and covering the smaller one . It does not seem correct to design a hierarchy, priority, or privilege among the constituents of an identity . It is important to indicate this pattern specifically because lawyers are also being expected to understand the meaning and requirements of the concept of identity . We should understand the concept to see the problematic or favorable situation which occurs by the concept of identity, to listen the demands arise from some differences, and to foresee and take into account the requirements of differences when making legal regulations on human rights . Specifically, the last one is necessary both for regulation and adjudication phases . This paper will try to explain the answers of the “how” question but there is also a “why” question in this debate . Why is this identity question important for human rights? It is important because without making a proper connection between these two we might not be able to see the specific need(s) of a specific human right . If we do not connect them properly, we might have a right inflation problem and might even breach human rights . Finding criteria – to determine what is a human right, what it protects, from where it is getting its source – may help us handle some difficulties . This paper aims to propose one of the criteria that might be useful for theoretical and practical debates on human rights . 2. dIgnIty

of

“Human BeIngs”

We have problems in the human rights area arising from the demands of diversities or identities . “To see the sameness in being human” might be an offer to resolve these problems . For clarification of such sameness I propose the use of the concept of human dignity .2 It might seem as a reductive approach or a type of uniformization at first glance and we might think that it is inconvenient because we prefer to keep our unique properties to protect some constituents of our identity which are vulnerable against majority . However, the conceptualization of this argument ensures the protection of our uniqueness . Human dignity has been emphasized in here is “the dignity of human species” . The requirements of this notion – dignity of human species – may help us to determine which constituents of an identity should be protected, in which circumstances, and why and how should we find solutions . Thereby I would prefer to support the views which put the paradigm on “sameness to have dignity” instead only on “dif-

2

Unless having a clear conceptualization, which seems quite hard though, we should be aware of the danger to give a function of a magic wand to a concept . It seems that sometimes the concept of dignity is struggling with a disease of not to be used properly by lawyers when the concept is not clear or even convenient to use in a specific case or when it is been used only in a rhetorical sense . Besides this problem, human dignity may also have an exclusionary role by contrast with its inclusionary character because of a kind of mystification . It will not be able to mention in detail here; but it is possible to think about some religious arguments on dignity as an example .

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Human Dignity as a Common Identity

ferences” . I claim that only such a perspective seems to fulfill the demands of human rights of different identities . What does the “dignity of human being[s] as species”3 mean? In here, the emphasis will be on the place of human being in the universe among other living beings . This species’ features, capabilities, and capacities enable us to give it a specific position . There have been several attempts to answer this question .4 Today, especially after the Second World War, the concept is also popular in the jurisprudence area . Its relation with law has been discussed by most of the authors not only about human rights but also for definition of law, to explain the aim of law etc .5 This paper will try to give an overview of some arguments which have been presented in the discourse of human dignity, with the emphasis on “the value of human being” hereinafter, and its prospective connection with the concept of “personal identity” to share what kind of a dignity has being used for this paper’s skeleton . 3. tHe relatIonsHIP Between tHe concePt

of

value

and

Human dIgnIty

“Human dignity” makes sense when it is taken into account with the question of what kind of a living being that we are talking about: How can we explain its presence? Which properties of this living being need to be protected and why? If you examine their writings you can easily see that almost all scholars try to make a conceptualization on the concept are looking for the answers to this question . Taking human dignity as “an absolute value” was attempted also by Paul Tiedemann and his usage of the concept in relation with identity would be useful for the 3

4

5

Because of the different usages of the concept, dignity, might refer to something totally different sometimes . In their article, Christian Neuhäuser and Ralf Stoecker write about dignity proper which is sometimes called as “social dignity” or “contingent dignity” . The dignity that has taken into account in our debate is different from them and is based the value of human being whereas “dignity proper…depends on being treated with respect by others and on being able to present oneself as being of equal dignity in various practical contexts” . Dignity proper includes some meanings that we use or meet in everyday life as “decency, nobility, rank, honour, respect, esteem, grace, decorum, merit, self-respect, coolness, offence, humiliation, degradation, shame” (Christian Neuhäuser, / alf Stoecker, Human Dignity as Universal Nobility, in: Marcus Düwell / Jens Braarvig / Roger Brownsword / Dietmar Mieth (ed .): The Cambridge Handbook of Human Dignity – Interdisciplinary Perspective, Cambridge, 2014, 298) Cicero’s reason; Pico della Mirandola’s freedom and capacity to choose; Immanuel Kant’s dignity, autonomy, freedom and morality; Alan Gewirth’s agency; James Griffin’s personhood; Martha Nussbaum’s capability; İoanna Kuçuradi’s the value of human being etc . may be counted as examples in here . Works of Lon L . Fuller, Ronald Dworkin, Jeremy Waldron, John Tasioulas, Roger Brownsword might be counted as some examples . Because of the historical, political, and in the end due to the legal reasons, especially because of the first article of German constitution, academic contribution of Germany also from legal practice on the topic is undeniably important to determine the advantages and disadvantages of the concept . The first article of the German Constitution keeps the discussions alive and inspires other national and international mechanisms . For the situation and debates on the usage of human dignity by The Federal Constitutional Court in Germany see also Paul Tiedemann, Human Dignity as an Absolute Value, in: Winfried Brugger / Stephan Kirste (ed .): Human Dignity as a Foundation of Law, ARSP Beiheft 137, Stuttgart, 2013, 27

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scope of our argument . In his article titled “Human Dignity as an Absolute Value” he uses the distinction we meet in the area of philosophy of value and counts three types of value as intrinsic, extrinsic, and absolute value . Absolute value is being used “if something is always paramount and always enjoys priority, regardless of what it might be compared to and in which situation it might be compared” .6 He calls this absolute value dignity and states that there is a need to determine a “standard of value” which is special for dignity . This standard of value is “personal identity” .7 Personal identity contains two things within this perspective . One of them is about existence of each human being “the awareness that I am (pure existence)” and the other is about the recognition of our free will as human beings “the awareness of who I am (authenticity)” .8 Tiedemann sees a bridge between this kind of an identity (personal identity) and free will as follows: “I can only know who I am if I am aware that I am the author of my actions . I am aware of myself as the author of my actions if I can understand my actions as movements generated by my will and if I am aware of my will as based on my own considerations and reflections . A will that is based on my own considerations and reflections is called a free will . In other words, my personal identity (the awareness of who I am) is based on my awareness of my own free will . Authenticity means a free will and actions that are based on a free will . I am aware of my authenticity through my lifelong identification of my actions with myself as the author of my actions .”9

Actually, it seems that Tiedemann is also using a concept of human being who has a distinctive feature among other living beings as acting on her or his own, through her or his free will . Free will and freedom of a person are important for the concept of dignity and are incredibly meaningful in Kant’s writings as autonomy on the topic; it seems possible to read Tiedemann’s statements above in connection with Kantian conceptualization of autonomy and free will .10 I will use Tiedemann’s perspective in connection with the perspective of İoanna Kuçuradi who takes the concept of human dignity as “the awareness of the value of human being” .11 Even though there are important differences between these two approaches,12 some common features of them might be useful for this work . The capacity to prefer and evaluate something seems significant in Tiedemann’s understanding of free will and also for personal identity . He could reach the concept of human dignity as an absolute value with these terms . Kuçuradi would not deny the 6 7 8 9 10 11 12

Tiedemann, (footnote 5), 32 Tiedemann, (footnote 5), 33 Ibid . Ibid . Detailed analysis can be found in Immanuel Kant’s Groundwork of the Metaphysics of Morals . (English version of the book translated by Thomas Kingsmill Abbott see: http://www .gutenberg . org/cache/epub/5682/pg5682-images .html, [02 .09 .2015]) İoanna Kuçuradi, The Concept of Human Dignity and Human Rights, in: Hans Lenk (ed .), Human Rights: Concepts and Problems, Münster, 2013, 101 One of main differences should be pointed in here is the understanding of value between these two writers . Paul Tiedemann takes the value concept in a subjective manner; while İoanna Kuçuradi takes it in an objective sense . The other important difference is that Kuçuradi makes a distinction between “human being as a species” and “a person” when she formalizes her theory of dignity and gives a crucial role to this distinction; although it does not seem that is the foremost part of Tiedemann’s thoughts on dignity .

Human Dignity as a Common Identity

47

importance of our evaluation capacity as a part of distinctive human capacities and abilities that differentiate us from other living beings . Nevertheless, she would probably not restrict the scope of the dignity concept only with this feature and would extend this view to clarify the value of human being . Kuçuradi explains the dignity-value relation as below: “Thus, what we call ‘human dignity’ denotes the a w a r e n e s s o f t h e v a l u e o f t h e h u m a n b e i n g . It is this value that makes every human being worthy (digne in French) to be treated so as he or she has the possibility to actualize such potentialities of the human being and live in peace with himself or herself . It is the subjective correlative of the objective value of the human being .”13

According to this last sentence it is possible to say, the value of the human being comes into existence as human dignity in each person . We are sharing and having a piece of this value separately but also altogether which seems as an authentic feature of dignity as a concept . The crucial point is that dignity is not a value in Kuçuradi’s account, rather it depicts a kind of knowledge, at least an awareness of a value (“an awareness of the value of human being”) .14 In this perspective it is possible to see all the differences: different abilities, possibilities, capabilities, and so on that we all have distinctively or commonly with each other . But this view importantly emphasizes the value of human being as a common feature and it also includes the evaluation capacity and free will which Tiedemann insists on . Kuçuradi says: “Human dignity consists of the philosophical/anthropological knowledge of the value of the human species, i . e ., the knowledge of certain of its specificities and of the achievements of the human species in history resulting from them and which secure its special place in the universe . This knowledge makes necessary for all those who possess it, to treat all human beings, whatever their other natural and contingent specificities might be, in accordance with this value – even those who ignore it . It is also this knowledge that helps an individual become conscious of being first of all a h u m a n being, become aware of his or her human identity – our only common identity – whatever all his or her other identities might be”15

Tiedemann’s personal identity gives a kind of responsibility to act in a specific way to protect dignity . This point of view is quite similar to Kuçuradi’s writings on the knowledge of the value of human beings . This knowledge or at least the “awareness” urges each of us to act in accordance with it . So it seems that these two writers, though they are using different paths, reach an important point about the responsibility of our actions and its importance for the human dignity concept and for theoretical justification of human rights .16 The two approaches (of Kuçuradi and Tiedemann) mentioned above were an example of taking human dignity in connection with a value concept . Although they are not referring to the same meaning or using the same method scholars are also trying to make a connection between dignity and the concept of “value” . This enables us subsequently to conclude that, the idea, norms, or principles of human 13 14 15 16

Kuçuradi, (footnote 11), 101 (Italics are mine) It might be also possible to put forward that both Kuçuradi and Tiedemann agree that dignity is not an attribution; however it seems that they are using different argumentation to reach such a result . Kuçuradi, (footnote 11), 101 (Italics are mine .) Tiedemann, (footnote 5), 33, 35; Kuçuradi, (footnote 11), 99–104

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rights derive from a concept of “value” . If we are trying to understand human rights we should have “a clear concept of value as well as a clear concept of rights and duty” .17 4. IdentIty

and

dIgnIty

Once it is conceived what makes the human species special, this gives an opportunity to think on what requirements this species needs to be treated and how they should treat the other members of their species .18 This constructs the idea of and also the principles of action for human rights. Developing a functional strategy requires understanding the core, basic and common identity of all of us . We should not close our eyes to factual things by all means; because they are expressing human rights problems in everyday life . Therefore it is absolutely not the aim of this paper to reject “identity” concept as a factual phenomenon . So this claim is not denying the presence of identities, even it is giving a role to them to present us some human rights problems as a reason . However, it seems more efficient to start with a core sameness (let’s say to share a common human dignity as an identity) instead of starting with particular differences to solve each unique problem . Probably that unique case (or if the reason is in relation with a constituent of a particular identity) requires a special action to protect this “core sameness” . This very moment the particular identity steps into the situation as a tool to find a proper solution that might change from case to case . Then what is the role of an identity in a one specific problematic situation? Identities are tools for persons who need different strategies to actualize one common aim: to protect and improve the value of human being . They are means which present us different foreseen or unforeseen facts, a new problem set, espe-

17

18

Tiedemann, (footnote 5), 40; for the relation between human dignity, human obligation, and human rights see also Paul Tiedemann, The Relation Between Human Dignity and Human Rights – What Is Meant By Deriving Human Rights From Human Dignity, in: Winfried Brugger, Stephan Kirste (ed .), Human Dignity as a Foundation of Law, ARSP Beiheft 137, Stuttgart, 2013, 193–206 . Kuçuradi makes a connection between these concepts and states that: “single human rights are practical implications of human dignity . They demand from all individuals a kind of treatment for all individuals, which protects the value of the human being . This is why clearly conceived human rights are ‘universal’ norms” . (See: Kuçuradi, footnote 11, 101) This paper stresses on human beings for conceptualization of dignity but in literature it is possible to see other classifications for dignity . For example Micha Werner is questioning if there is a thing as collective dignity or not in his article and asks: “Does it make sense to talk about the dignity of (some of such) entities as the human species as a whole, indigenous peoples, states, religious communities, women, baseball teams or green-eyed men who get up at 7 .30? Can we even conceive of dignity as something that could be assigned to collectives?” See: Micha Werner, Individual and Collective Dignity, in: Düwell et al . (footnote 3), 343 . This distinction might be important when we are talking about cultural identities or group rights since we may need specific requirements in each unique situation . Nevertheless, the arguments that we mentioned up to now in this paper would be merit for each and every member of these collectives . For some critiques of today’s understanding on the concept of identity, cultural identities, group rights in the context of human rights, see: İoanna Kuçuradi, Universal Human Rights and Their Different Implications for Multiethnic and Multireligious Societies, in: Hans Lenk (ed .), Human Rights: Concepts and Problems, Münster, 2013, 125–133

Human Dignity as a Common Identity

49

cially when people meet discrimination because of one or more parts of their identity . We are born in some constituents of our identity, of course if we are taking them as parts of our identities: like gender, ethnicity, and culture . However, some of them might change by means of physiological, sociological, economical, or other personal reasons like our religion, our social environment, and our jobs . We also should be aware of overlapping areas (e . g . changing sexual identity) . It is understood that for some parts of our identity (again if we want to identify ourselves via them) we might not have a choice but for some of them, I guess, we can say that we are building ourselves with these parts .19 There might be some of us who are not counting some of these specific components as fundamental for their own identity among us .20 It also has a completely personal and sometimes psychological dimension that we are the only author and only subject of the story of our own identities . As it is mentioned before it would not be wrong to say that identity, almost always, includes more than one unique feature without a hierarchical order and may differ from person to person . If we aim to protect a thing peculiar to a species and if we have to move from identity we can use only one common identity we are sharing altogether . Another proposition that might be presented in this paper is that the common identity conception through the concept of human dignity ensures to take human rights dynamically . Once we explain human dignity via the value of the human being, we should create new protection mechanisms for human rights according to the specific circumstances . It is possible to see this effect because of technological, bioethical, and environmental issues .21 Some political and sociological events give direction to this expansion and dynamism . So besides the derivational role of human dignity for human rights, the view of putting human dignity as a common identity of all human beings may also undertake a functional role to take human rights in an active way . This permits us to think about new rights according to necessities and requirements of human rights which should be sensitive to new problems . The concept of human dignity opens an area in jurisdiction in this sense . New facts which we have not foreseen before may cause the derivation of new rights indispensably . However we should be aware of the risk of “rights inflation” because it may hinder the main problem . For example, a new problem or need might be thought within the scope of an existing right and might be protected more efficiently through an existing right . Taking human dignity as a criterion may help us to solve these difficulties for each unique case . If this argument is plausible then it is possible to use the human dignity concept for universal human rights notion which is under fire of “different identities” .

19 20 21

With our “personal identity” and “free will” . It seems as an important point we should take into account when we are elaborating a concept of identity in connection with dignity . For some new perspectives and problematic issues and latest contributions about the topic see: Düwell et al . (footnote 3) . Also see: Christopher Mc Crudden (ed .), Understanding Human Dignity, Oxford, 2013

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Zeynep İspir

5. conclusIon Nowadays there is an acute problem in our world’s agenda: refugees that try to escape from civil war in their countries to find a safer place . Let me take this issue as an example and look at it within the scope of this paper in this final section . For these people, the reason of the problem might be their identity (to be an opponent, to share a different ethnicity with the others, or maybe only being in there at that moment which has not got any relation with an identity that makes the situation more tragic .) . The reason might be related with an identity but their demands of human rights are demands of a human being, of a person in the end, not only of a person “from a specific country” . The demand is to be treated humanely in their own country and also in the new-host countries . They are looking for necessary conditions to actualize and improve their humanly capacities, capabilities, and their features . The things should be protected are human rights not identities in here . Then we can say the equal treatment demand of a specific difference – in accordance with human rights – occurs . This may be justified by human dignity . To put it more plainly, what should be protected and be asked our some specific kind of treatments are human rights, not identities . It is not possible “to determine” someone’s identity . Identities are facts that we have either this or that way . A specific demand of a specific identity is important when it is a demand of a human right . Unless we think on sameness, it seems quite hard to cover such demands of differences and a common identity ensures a ground, a justification for them . I would like to conclude with a reservation about identities: An identity might have reasonable claims of human rights . It is obvious that people are facing cruel and inhuman treatment because of their identities . Although in some cases identities (i . e . cultural, religious, or some political identities) also might ask something which is in contrary with human rights . Therefore there should always be an evaluation process when we face with a problem gets its source from the concept of identity . After this crucial note, if we need to start with an argument within the scope of a discussion about identity concept, my offer would be to start with this proposal: Human rights for identities needs a conceptualization of common identity derives from human dignity . Otherwise, taking “human rights to identities” as a starting point seems inconvenient yet it seems hard to get a criterion from this demand .

deutscHe Zusammenfassung Wir leben in einer Welt, die die Unterschiede zwischen den Menschen betont, nämlich die Unterschiede zwischen Gesellschaften, Ländern und Kulturen . Vom Recht wird erwartet, dass es mittels Gesetzgebung und Rechtsprechung den Ansprüchen genügt, die sich aus diesen Diversitäten ergeben . Meist sind diese Anforderungen angemessen und sogar notwendig, da es zu direkter oder indirekter Diskriminierung führt, wenn wir unsere Unterschiede nicht berücksichtigen . Der Anspruch auf Achtung der Unterschiede ist auch vernünftig, denn das, was uns verschieden macht, konstituiert zugleich unsere Identität und ermöglicht allen Menschen ein reiches und sinnvolles Leben . Problematisch ist es allerdings, wenn diese Diversitäten unter

Human Dignity as a Common Identity

51

den Menschen als Grund und Fundament der Menschenrechte betrachtet werden . Das führt zu Verwirrung, denn die Kriterien der Unterscheidung sind mannigfaltig und beliebig . Die verschiedenen Identitäten sind Ergebnis einer kulturellen oder persönlichen Wertentscheidung . Die Identifizierung mit dem, worin wir uns von anderen unterscheiden, beruht auf kulturellen und persönlichen Wertentscheidungen und birgt deshalb Gefahren . Denn die Verteidigung der jeweiligen selbst gewählten Identität kann gerade dadurch zur Verletzungen der Menschenrechte führen, dass man sich auf die Menschenrechte beruft . Es kommt deshalb nicht darauf an, die Verschiedenheiten, mit denen wir uns identifizieren, zum Ausgangspunkt der Grundlegung der Menschenrechte zu machen, sondern das, was uns als Menschen gemeinsam ist . Identität sollte deshalb als dasjenige gefasst werden, das sowohl das allen Menschen Gemeinsame als auch die Unterschiede zwischen den Menschen gleichsam wie die zwei Seiten ein- und derselben Münze erfasst . Beide Seiten sind wichtig für die Konzeptualisierung der Menschenrechte . Der Aufsatz geht der Frage nach, ob der Begriff der Menschenwürde geeignet ist, die gemeinsame Identität aller Menschen zu bezeichnen . In dem Artikel geht es zunächst darum den „Wert des Menschen“ im Hinblick auf den Begriff der Menschenwürde zu diskutieren . Menschenwürde vermittelt dann den allen Menschen gemeinsamen Wert und damit die allen Menschen gemeinsame Identität . Auf dieser Grundlage wird vorgeschlagen, die „Menschenwürde als gemeinsame Identität“ zum Ausgangspunkt einer Theorie der Menschenrechte zu nehmen .

rainer keil, heidelberG a negatIve rIgHt related

to

IdentIty

as a

a KantIan aPProacH to PHIlosoPHIcal asPects esPecIally of lIfe ImPrIsonment*1

of

rIgHt

to

cHange

crImInal JustIce,

absTraCT: The Federal Constitutional Court of the Federal Republic of Germany claims that life imprisonment is only compatible with human dignity, if the convict has a chance to regain liberty; the European Court of Human Rights has decided similarly . Some authors go further and demand the abolition of life imprisonment . This paper looks at philosophical reasons of justice that are associated with such claims . It pleads for a permanent right to change and determine one’s identity . While an enduring diachronic identity and the present imputation of past acts to a person for the purpose of proportional future legal consequences is a necessary assumption for punishments, this paper argues that this assumption has some moral validity – but a limited one . Reasoning from this, leads to an argument for limiting the term of punishment . Despite the importance of psychological changes caused by imprisonment, his paper will not investigate psychological changes in the course of the time of detention . It is more narrowly focused on the moral relevance of identity and the time of punishment . For the investigation, I will critically make use of the fragmentary theory of punishment Immanuel Kant offered in his practical moral philosophy . Starting from some rather rigorous statements that Kant made regarding punishment, this paper will proceed to the reconstruction of the reasons Kant offered for those statements . Several questions will have to be looked at including whether coercion in general, and specifically punishment, can be morally justified at all . Based on this we will have to look at the question of which reasons have to guide the judgement in order to find an adequate punishment in a concrete case . Once the question of adequate punishment is answered with proportionality on the basis of the legal-guilt-principle, its foundation in human dignity has to be examined . If the claim of human dignity, rooted in moral autonomy, to be respected is not only predicated on the basis of previous acts but also associated with the potential moral self-determination of the relevant human being, then this suggests a right to change as the basis for a claim to some limit as to the consequences of legal guilt . The rather problematic question what follows from this for life imprisonment and for detention for the purpose of incapacitation is discussed at the end of this paper . The further consequence, that this reasoning can hardly be compatible with the death penalty, is only touched briefly .

1. IntroductIon In this paper I intend to show that it is philosophically reasonable to plead for a right to change and to re-determine one’s identity . I will approach it as a negative right related to identity; that is, as a right not to be completely and solely identified with one’s past acts, when the legal consequences of such acts – including punishments for them – are determined and executed through coercion . This is particularly relevant for the question of the legitimacy of punishments that affect the totality of future life, such as life imprisonment . If such punishment is regulated or executed in such a manner as to preclude any substantial chance of ever regaining liberty, then the question of its legitimacy becomes particularly problematic . Therefore, it is not surprising, that the ques*

For very speedy and yet thorough reading of the first draft and for detailed, critical and extremely helpful feed-back I am deeply indebted to Koli Mitra, Washington, D . C .; also I owe great thanks to Benjamin S . Seay, Alexandria, Virginia for his critical and very helpful remarks to some passages, and to Linda Kalteis, Heidelberg, for her kind and helpful assistance with research .

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tion of human identity over a long period has been raised in the context of the discussion of life imprisonment .1 The discussion in this paper will proceed as follows . Its starting point will be the claim contrary to the one this paper will later focus on: That the view back to the committed crime and the assumption of a diachronic identity, which is implied in the supposed responsibility for the crime, are of central importance for the just determination of punishments (Section 2) . The underlying questions herein are prompted, in part, by a new political debate and by the judicial practice of the German Federal Constitutional Court and other European courts on life imprisonment, in which apparently Kantian concepts play an important role as arguments for the limitation of such punishments (Section 3) . This paper will investigate the role of the radically open and uncertain future – as opposed to the given and (more) certain past – in determining the justice of adjudging legal consequences . Aiming at philosophically well based reasons, which only focus on the justice of legal consequences, not directly on any pragmatically wishful effects, my argument will rely significantly on Immanuel Kant’s2 practical philosophy, from which some of 1

2

Tatjana Hörnle, Strafzumessungslehre im Lichte des Grundgesetzes, in: Eva Schumann (ed .), Das strafende Gesetz im sozialen Rechtsstaat, Berlin/NewYork, 2010, 103–137, 134–135; Gabriele Kett-Straub, Die lebenslange Freiheitsstrafe. Legitimation, Praxis, Strafaussetzung und besondere Schwere der Schuld, Tübingen, 2011, 161–162 . English translations of Immanuel Kant’s works are abbreviated as follows and taken from the following sources: – CPR: Critique of pure reason . Translated by F . Max Müller . 2nd edition, New York: MacMillan Company, 1922 – CPr: Critique of practical reason: Kant’s Critique of Practical Reason and Other Works on the Theory of Ethics, trans . Thomas Kingsmill Abbott, B . D ., Fellow and Tutor of Trinity College, Dublin, 4th revised ed . (London, 1889 – http://oll .libertyfund .org/titles/360 [4 .4 .2015] – GMM: Groundwork for the Metaphysics of Morals, in: Immanuel Kant, Groundwork for the Metaphysics of Morals, edited and translated by Allen W . Wood with essays by J . B . Schneewind, Marcia Baron, Shelly Kagan, Allen W . Wood, New Haven and London, 2002 – MM: Immanuel Kant, The Metaphysics of Morals, translated and edited by Mary Gregor, Cambridge, reprint 1998 of the 1st edition 1996) – MM/DR: Metaphysical First Principles of the Doctrine of Right (First part of MM) – MM/DV: Metaphysical First Principles of the Doctrine of Virtue (Second part of MM) – R: Religion within the Boundaries of Mere Reason, in: Immanuel Kant, Religion within the Boundaries of Mere Reason And Other Writings, translated and edited by Allen Wood/ George di Giovanni, Cambridge, 1998 If quoted in German, citations of Kant’s works refer to the relevant volume – Roman number – of Kants gesammelte Schriften as published by Königlich Preußische Akademie der Wissenschaften – now: Berlin-Brandenburgische Akademie der Wissenschaften – (abbreviation: AA) and found at http://korpora .zim .uni-due .de/Kant/verzeichnisse-gesamt .html ([3 .6 .2015] . I will use the following abbreviations to name the works: KpV: Kritik der praktischen Vernunft KrV: Kritik der reinen Vernunft, 2nd edition 1787 (quoted from AA III) or 1st edition 1781 (quoted according to AA IV) GMS: Grundlegung zur Metaphysik der Sitten MdS: Metaphysik der Sitten MdS/RL: Metaphysik der Sitten. Erster Teil. Metaphysische Anfangsgründe der Rechtslehre MdS/TL: Metaphysik der Sitten. Zweiter Teil. Metaphysische Anfangsgründe der Tugendlehre Rel: Die Religion innerhalb der Grenzen der bloßen Vernunft . Vorlesung über Ethik: Immanuel Kant, Eine Vorlesung über Ethik . Edited by Gerd Gerhardt, Frankfurt am Main, 1991

A Negative Right Related to Identity

55

the relevant concepts seem to stem . Additionally, this method seems adequate to me, since Kant appears particularly trustworthy in his basic approach, though often not in details of working it out . His philosophy tries to see the unconditional basis of reasoning in general and of moral reasoning in particular, which transcends all merely technical and instrumental considerations, yet, in general, tries to avoid dogmatisms, which do not adequately consider the finitude of human knowledge and moral insight . But, as we will see in Section 4, an initial review of Kant’s major work on law and right seems to reveal some statements in Kant’s Doctrine of Right as quite dogmatic . It seems, as if some of its rigorisms would not support or even allow anything, that might weaken the strict identification of a former perpetrator with her or his past identity, when she or he committed the criminal act . In Section 5 we will trace back Kant’s reasons for the strict orientation at the past committed crime for kind and severity of punishment to the basis of human dignity, as developed in the Second Critique or in the Groundwork . For background, it will be necessary to examine how Kant justifies coercion in general (Section 5 .1) in order to determine, that this does not suffice to justify punishment . Following this, we will explore Kant’s more specific justification of the institution of punishment (Section 5 .2) and discover that it is also insufficient for justifying any concrete criteria for the determination of the kind and severity of punishment . However, it will be shown, through an examination of Kant’s reasoning for the ius talionis, that he had good reasons associated with the respect for human dignity (as discussed in Sections 5 .4 and 5 .5), which he did not always work out adequately or demonstrate well, to justify a punishment proportional to legal guilt . A closer look at how this works will allow us to see (in Section 5 .6) that some parts of his Metaphysics of Morals do not take into account everything they should consider if the claims of the foundational works are taken seriously . Respect for dignity demands a future, which is somewhat open for new self-determination and self-identification, and it demands a right to change . In Section 6, I will try to harmonize this result with a passage in Kant’s Religion within the Boundaries of Mere Reason where he speaks of the new identity3 after a radical change of mind; though, with a view to punishment, it is relevant not as a matter of right, but of grace . In the context of law it seems important to integrate into a concept of justice the concept of future as a relevant aspect of identity . In Section 7, I will sketch some consequences of the right to change and to re-determine one’s identity . I will emphasize that this is not an argument for entirely abandoning the legal-guilt-principle for the legitimization of the type and severity of punishment or for replacing it with such purposes as special deterrence or rehabilitation as demanded by voices in the literature on criminal law policies (7 .1) . In this paper, the identification of the perpetrator with her or his past acts is still assumed as necessary for the determination of legal consequences – but it is not total, even in cases where the guilt (as measured by imputable external criminal acts only, not by internal immorality) has been so immense, that it suggests a very severe punishment . In Section 7 .2, I will briefly discuss the problems of uncertainty that are connected with the new right (7 .2 .1), the arguments for (7 .2 .1 .1) and against (7 .2 .1 .2) an absolute timelimit for terms of imprisonment, an example for the remaining odd cases (7 .2 .1 .3) and the moral abyss of detentions for the purpose of incapacitation of dangerous 3

Kant, R, p . 90: “the new human being”, German: Rel, AA VI, p . 74 .

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criminals . It will be stressed, that, despite important differences in principle, there are some similarities and overlaps in concrete results that follow from the point of view of this paper and one, which focusses on special deterrence and rehabilitation as purposes of punishment . A short look at how all of this relates to the death penalty will conclude the paper . 2. dIacHronIc IdentIty for tHe future

and

ImPutatIon: Present relevance

of tHe

Past

The constant identity (sameness)4 of a person5 within time6 is a necessary presupposition for the ascription or imputation of acts to this person, for arguing for her or his accountability for the acts, and for the imposition of legal consequences . It is, with a view to the agent, one key element of the broader difficulty – to adopt Rainer Zaczyk’s formulation – in terms of how “to build a valid connection between a later act (punishment) and a preceding first one (criminal act) .”7 This part of the discourse of “identity” thus focuses on the past . Acts or omissions committed or attempted in an earlier time are, in a judgement, presently ascribed to the person for future consequences . Christine Korsgaard has shown that such a supposition of a “unity over time”8 of the identity of the actor as agents is supported by a consideration that is usually recognized within the actor’s own perspective: Most often “the things we do that matter to us take up time .”9 And they are often “intelligible only in the context of projects that extend over long periods .”10 Especially in pursuing our “ultimate ends”11 by “choosing our careers, and pursuing our friendships and family lives, we

4

5 6

7

8 9 10 11

A more general discussion of problems of diachronic identity of things or persons can be found at Andre Gallois, “Identity Over Time”, in: The Stanford Encyclopedia of Philosophy (Summer 2012 Edition), Edward N . Zalta (ed .), URL: http://plato .stanford .edu/archives/sum2012/entries/ identity-time/ [5 .4 .2015] . Diachronic identity of persons is discussed within the context of Kant’s practical philosophy by Claudia Blöser, Zurechnung bei Kant, Berlin/Boston, 2014, 252 et pass . within chapter 8 on person as subject of imputation, which begins at p . 211 . It is beyond the topic of this paper to discuss, how, additionally, synchronic identity is a necessary requirement for imputation . Volker Haas shows some severe problems in how Kant works out his distinction between the homo noumenon and the homo phaenomenon for the possibility of imputation (Volker Haas, Der Straftäter als Zurechnungssubjekt . Ein Beitrag zum Personenbegriff bei Kant und Jakobs, in: Studi Senesi, CXXVI [2014], 349–361, at 352–354) . Claudia Blöser, Degrees of Responsibility in Kant’s Practical Philosophy, Kantian Review vol . 20, 2 (2015), 190, emphasizes, that both are “aspects” of the same acting human being . She shows this more precisely in her work on imputation in Kant’s work Blöser (footnote 5), 58 et pass . My translation from the following German text: “Die Schwierigkeit [aber bleibt], eine spätere Handlung (Strafe) mit einer vorausgegangenen ersten (der Tat) in eine gültige Verbindung zu bringen”, Rainer Zaczyk, Zur Begründung der Gerechtigkeit menschlichen Strafens, in: J . Arnold et alt . (ed .), Menschengerechtes Strafen, Festschrift für Albin Eser, München, 2005, 217 . Christine Korsgaard, Creating the Kingdom of Ends, Cambridge, 1996, 371 . Korsgaard (footnote 8), 371 Korsgaard (footnote 8), 371 Korsgaard (footnote 8), 371

57

A Negative Right Related to Identity

both presuppose and construct a continuity of identity and of agency .”12 Indeed, Claudia Blöser has convincingly shown, that diachronic identity can be understood as a postulate: a theoretical claim the truth of which cannot theoretically be decided on; its practical necessity follows from that one has to suppose one’s identity over time in order to be able to plan and carry through acts at all .13 In the perspective of the mature and healthy actor, the general character of her or his maxims already carry with them the reference to future .14 At first sight, it does therefore not appear evident, that, besides being very hard, there is reason to think it is unjust to bear consequences of acts based on such maxims, if these consequences were foreseeable and if the severity of these consequences is in kind and degree, as far as possible, commensurate with the committed act . 3. wHy QuestIon tHe oBvIous? german constItutIonal law for Broader PHIlosoPHIcal reflectIon

as

occasIon

3.1 human diGniTy and life imPrisonmenT in German ConsTiTuTional law In February 2015, Thomas Fischer, judge at the Bundesgerichtshof – German Federal Court of Justice – boldly demanded in the weekly Die Zeit: “Abolish life imprisonment! Life imprisonment is an unconstitutional idea of the past .”15 This statement was well placed during the course of a debate16 on the reform of the German criminal code’s tackling of murder17 and brought problems of an older court decision 12 13 14 15

16 17

Korsgaard (footnote 8), 371 Blöser (footnote 5), 252 Blöser, (footnote 5), 252 . My translation of the headline and first sentence of the article: Thomas Fischer, Schafft lebenslang ab!, in: Die Zeit Online, February 24, 2015 – http://www .zeit .de/gesellschaft/zeitgeschehen/2015–02/lebenslange-freiheitsstrafe-schuld#player0 [5 .4 .2015]: “Die lebenslange Freiheitsstrafe ist eine verfassungswidrige Idee aus der Vergangenheit .” The political problem is briefly discussed by Michael Kubiciel, Reform der Tötungsdelikte . Vorschlag zum tatbestandlichen Neuzuschnitt von Mord und Totschlag, KPKp 6/2014, http://www .ls-straf .jura .uni-koeln . de/8209 .html?&L=0 [23 .5 .2015], more thoroughly by Tonio Walter, Vom Beruf des Gesetzgebers zur Gesetzgebung – Zur Reform der Tötungsdelikte und gegen Fischer et al ., NStZ 2014, 373 et pass . An overview over the recent history of the debate on life imprisonment is given by Rüdiger Deckers et alt ., Zur Reform der Tötungsdelikte Mord und Totschlag – Überblick und eigener Vorschlag, NStZ 2014, 9 . For earlier initiatives compare e . g . Hartmut-Michael Weber, Die Abschaffung der lebenslangen Freiheitsstrafe, Baden-Baden, 1999; Uwe Wesel, Lebenslänglich ist zu lang, in: Die Zeit, June 2, 1995, http://www .zeit .de/1995/23/Lebenslaenglich_ist_zu_lang [5 .4 .2015]; Werner Nickolai/Richard Reindl (ed .), Lebenslänglich. Kontroverse um die Abschaffung der lebenslangen Freiheitsstrafe, Freiburg im Breisgau, 1993; Ulrich Baltzer, Zur Problematik der lebenslangen Freiheitsstrafe, StV 1989, 42; several articles in the volume Hartmut Weber and Projektgruppe Fulda (ed .), Lebenslang – wie lang? Argumente zur Abschaffung der lebenslangen Freiheitsstrafe, Weinheim, 1987 . Deckers et alt . (footnote 15); Michael Köhne, Immer noch reformbedürftig: Strafvorschriften zur vorsätzlichen Tötung, ZRP 2014, 21; Christoph Krehl, Verfassungsrechtliche Grenzen einer Reform der Tötungsdelikte, ZRP 2014, 98; Kubiciel (footnote 15); Walter (footnote 15) The official translation of section 211 Criminal Code in the version promulgated on 13 November 1998, Federal Law Gazette [Bundesgesetzblatt] I p . 3322, last amended by Article 1 of the

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back into the general public attention: In 1977 the Bundesverfassungsgericht – Federal Constitutional Court of the Federal Republic of Germany – had decided the question of the constitutionality of life imprisonment . The question in principle was, whether life imprisonment was contrary to Article 1 section 1 of Germany’s federal constitution, the Grundgesetz, Basic Law, which provides: “Human dignity shall be inviolable . To respect and protect it shall be the duty of all state authority .”18 The Federal Constitutional Court found it incompatible with its understanding of human dignity: “if the state claimed the competence to forcefully strip a human of his liberty without there being at least the chance for him [or her, R . K .] to ever be able to receive his share of liberty again .”19 Similar opinions were expressed by bodies of international organizations20 and by the European Court of Human

18

19

20

Law of 24 September 2013, Federal Law Gazette I p . 3671 and with the text of Article 6(18) of the Law of 10 October 2013, Federal Law Gazette I p . 3799, is this: “Section 211 Murder under specific aggravating circumstances (1) Whosoever commits murder under the conditions of this provision shall be liable to imprisonment for life . (2) A murderer under this provision is any person who kills a person for pleasure, for sexual gratification, out of greed or otherwise base motives, by stealth or cruelly or by means that pose a danger to the public or in order to facilitate or to cover up another offence .“ It can be found online on the site of the German Federal Ministry of Justice, http://www . gesetze-im-internet .de/englisch_stgb/englisch_stgb .html#p1803 [24 .5 .2015] . The valid German formulation is: “§ 211 Mord (1) Der Mörder wird mit lebenslanger Freiheitsstrafe bestraft . (2) Mörder ist, wer aus Mordlust, zur Befriedigung des Geschlechtstriebs, aus Habgier oder sonst aus niedrigen Beweggründen, heimtückisch oder grausam oder mit gemeingefährlichen Mitteln oder um eine andere Straftat zu ermöglichen oder zu verdecken, einen Menschen tötet .” It can presently [24 .5 .2015] still be found at: http://www .gesetze-im-internet .de/stgb/__211 .html . Article 1 section 1 of the Basic Law for the Federal Republic of Germany in the revised version published in the Federal Law Gazette Part III, classification number 100–1, as last amended by the Act of 11 July 2012 (Federal Law Gazette I p . 1478): Official translation of Professor Dr . Christian Tomuschat und Professor Dr . David P . Currie on the internet site of the Federal Ministry Of Justice And Consumers Protection, http://www .gesetze-im-internet .de/englisch_gg/ englisch_gg .html#p0015 [2 .5 .2015] . The German wording is: “Die Würde des Menschen ist unantastbar . Sie zu achten und zu schützen ist Verpflichtung aller staatlichen Gewalt .” My translation attempt from German – BVerfGE 45, 187 [228–229] –: “Mit einer so verstandenen Menschenwürde wäre es unvereinbar, wenn der Staat für sich in Anspruch nehmen würde, den Menschen zwangsweise seiner Freiheit zu entkleiden, ohne dass zumindest die Chance für ihn besteht, je wieder der Freiheit teilhaftig werden zu können .” A slightly different translation can be found at the Human & Constitutional Rights Resource Page of Columbia University Law School: http://www .hrcr .org/safrica/dignity/45bverfge187 .html [2 .4 .2015] . Comp . Council of Europe, Recommendation Rec(2003)22 of the Committee of Ministers to member states on conditional release at II .4 .a: “… the law should make conditional release available to all sentenced prisoners, including life-sentence prisoners .” Similar Council of Europe, European Committee for the Prevention of Torture and Inhuman or degrading treatment or Punishment (CPT), Memorandum “Actual/real life sentences” CPT (2007) 55 of June 27, 2007 prepared by Jørgen Worsaae Rasmussen, pp . 3–5 and also CPT-Report of 25 October 2012 CPT/Inf (2012) 26 as quoted in the ECtHR – grand chamber – judgement of July 9, 2013, Vinter et . alt . versus United Kingdom, Applications nos . 66069/09, 130/10 and 3896/10, at MN 64: “The CPT considers therefore that it is inhuman to imprison someone for life without any real hope of release . The Committee strongly urges the Swiss authorities to re-examine the concept of detention ‘for life’ accordingly .”

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Rights,21 which, among others, explicitly, in some detail and with emphasis refers to the Federal Constitutional Court’s reasoning22 and transfers it to the system of the European Convention for the Protection of Human Rights and Fundamental Freedoms .23 This doctrine apparently implies that the justice of punishment – beyond addressing the fact of the past criminal act, its present imputation to the accused person, the identification of this person with the perpetrator and its proportionality – also includes an element of openness to the future for the possibility of a new self-identification . The courts explicitly talk of the prisoner, who has internally changed and become undangerous to the general public .24 3.2 german constItutIonal law

and

Kant’s PractIcal PHIlosoPHy

The concisely sketched conclusion of the Federal Constitutional Court – reaffirmed as continuing legal practice in several more recent judgments and decisions25 – is preceded by a rather brief account of three main reasons, all of which are rooted in the constitutional protection of human dignity . Firstly, the court claims that the severity of the punishment has to bear a just relation to the severity of the committed criminal act as well as to the degree of guilt as culpability . Secondly, the Court’s reasoning has its foundation in the prohibition of cruel, inhuman or degrading treatment or punishment . Thirdly, it emphasizes that constitutional law demands that: “The perpetrator must not – by violating his constitutionally protected claims to be treated as socially valuable and to be respected – be turned into a mere object of the struggle against crimes .”26 All of these requirements can be understood as rendering a concrete formulation of the demands of Kant’s practical philosophy: The “substantive principle of individ-

21

22 23 24

25 26

ECtHR – Grand Chamber – judgement of February 12, 2008 – Application no . 21906/04 – “Kafkaris versus Cyprus”, MN 97–98; ECtHR – Grand Chamber – judgement of July 9, 2013, Applications nos . 66069/09, 130/10 and 3896/10 – “Vinter et . alt . versus United Kingdom” –, MN 110 et seq .; ECtHR, judgement of February 3, 2015, Application no . 57592/08 – “Hutchinson versus United Kingdom” – MN 20; concerning extradition to the United States: ECtHR, judgement of September 4, 2014, Application no . 140/10, “Trabelsi versus Belgium”, MN 138– 139 . Dirk van Zyl Smit / Pete Weatherby / Simon Creighton, Whole Life Sentences and the Tide of European Human Rights Jurisprudence: What Is to Be Done?, Human Rights Law Review, 14 (2014), 68 et pass . ECtHR – grand chamber – judgement of July 9, 2013, Applications nos . 66069/09, 130/10 and 3896/10, “Vinter et . alt . versus United Kingdom”, MN 113 . BVerfGE 113, 154, 164 (2005): “innerlich gewandelten, für die Allgemeinheit ungefährlich gewordenen Gefangenen”; similar ECtHR – grand chamber – judgement of July 9, 2013, “Vinter et . alt . versus United Kingdom”, MN 119: “consider whether any changes in the life prisoner are so significant, and such progress towards rehabilitation has been made in the course of the sentence, as to mean that continued detention can no longer be justified” . BVerfGE 64, 261, 272 (1983); BVerfGE 72, 105, 113 (1986); BVerfGE 109, 133, 150 (2004); BVerfGE 113, 154, 164 (2005); BVerfGE 131, 268, 287 (2012) . My translation attempt from the German text at BVerfGE 45, 187, 228 (1977): “Der Täter darf nicht zum bloßen Objekt der Verbrechensbekämpfung unter Verletzung seines verfassungsrechtlich geschützten sozialen Wertanspruchs und Achtungsanspruchs gemacht werden” .

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ual guilt”27 as basis for adjudging the kind and severity of punishment can be seen – at its core – as pre-designed in Kant’s formulation of the reasons for the lex talionis . The interdiction of cruel, inhuman or degrading punishment can be reconstructed as a more concrete formulation of what Kant discusses as demands for “the case of crimes that cannot be punished by a return for them because this would [either] be [impossible or] itself a punishable crime against humanity as such, for example rape as well as pederasty or bestiality” .28 The mere-object-doctrine is based – within the constitution – upon the idea that “the human being always has to remain an end in itself”29, almost literally taken from Kant, who had, for example, formulated: “Now I say that the human being, and in general every rational being, exists as end in itself, not merely as means to the discretionary use of this or that will, but in all its actions, those directed toward itself as well as those directed toward other rational beings, it must always at the same time be considered as an end .”30 Kant himself explicitly applied the formula to criminal law .31 If the conclusions that the Federal Constitutional Court’s reasoning had drawn from legal doctrine are also to be drawn from a perspective of moral justice, then this same reasoning does not only speak against certain ways of applying life imprisonment beyond the European or German legal context, but even more so against the institution of the death penalty, where it still exists . Therefore, it appears that the present political debate and its close connection to patterns of reasoning within Kant’s philosophy might provide an occasion for investigating the legitimacy of the Court’s reasoning with respect to some philosophical aspects of its claim to justice, within the Kantian system – beyond its validity merely within the existent German constitutional law . 4. Kant’s strIct Ius talIonIs

and tHe

deatH Penalty

In HIs

own vIew

Kant himself clearly demanded a strict implementation of the ius talionis with its view back to the past act as well as the supposed consequence – which, in the case of murder, to him meant a strict application of capital punishment . This is so obvious, that at first glance it might appear as something close to absurd to refer to his work for the introduction of a critical point of view based on his principles . On the other hand, Heiner Bielefeldt is right, when he points out, that Kant’s “critical way of thinking is essentially characterized by the rejection of all … claims to absoluteness, which he opposes decidedly with the assertion of the unavoidable unhuman finitude . Though human morality and human institutions of law are claimed un27 28 29 30 31

Federal Constitutional Court, Press Release No . 17/2013 of 19 March 2013 in English concerning the judgment of 19 March 2013 – legal regulation of plea bargaining –, http://www .bundesverfassungsgericht .de/SharedDocs/Pressemitteilungen/EN/2013/bvg13–017 .html [3 .4 .2015] Kant, MM/DR, 130; German: MdS/RL, AA VI, 363 . My translation from the German text at BVerfGE 45, 187, 228 (1977): “der Mensch muss immer Zweck an sich selbst bleiben” . Kant, GMM, p . 45; German: GMS AA IV p . 428 . Where the translation gives us “considered”, the original wording is “betrachtet”, which also means “looked at” or “viewed” and thus implies a perspective . Kant, MM/DR, 105; German: MdS/RL, AA VI, 331 .

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conditionally by justice, they can never satisfy this demand directly, but always only indirectly .”32 This gives us reason for a closer examination . I will briefly present (in Sections D .I and D .II, respectively) an overview over conclusions Kant drew and some reasons he gave for them, before engaging in a more detailed discussion of whether (and to what extent) he provides sufficient philosophical justification for his positions (Section E) . We will refrain from using Kant’s view as the argumentative “basis in quasi petrified axiomatic statements .”33 Instead, we will take him seriously and consider his explicit reference to the provisory and incomplete34 character of his conclusions on criminal law . We will see, whether the reasons he provided might open up the perspective to further considerations . 4.1 kanT’s riGorous sTaTemenTs on The deaTh PenalTy aT firsT siGhT Kant defended and even demanded the death penalty for murder: If, however, he has committed murder, he must die . Here, there is no substitute that will satisfy justice . There is no similarity between life, however wretched it may be, and death, hence no likeness between the crime and the retribution unless death is judicially carried out upon the wrongdoer, although it must still be freed from any mistreatment that could make the humanity in the person suffering it into something abominable .35

Kant considers – pragmatic – reasons for exceptions and clearly rejects them as unjust: What, therefore, should one think of the proposal to preserve the life of a criminal sentenced to death if he agrees to let dangerous experiments be made on him and is lucky enough to survive them, so that in this way physicians learn something new of benefit to the commonwealth? A court would reject with contempt such a proposal from a medical college, for justice ceases to be justice if it can be bought for any price whatsoever .36

To make his, apparently, purely justice-oriented perspective quite clear, he demonstrated it in the well-known island example: Even if a civil society were to be dissolved by consent of all its members (e . g ., if a people inhabiting an island decided to separate and disperse throughout the world), the last murderer remaining in prison would first have to be executed, so that each has done to him what his deeds deserve and … guilt does not cling to the people for not having insisted upon this punishment; for otherwise the people can be regarded as collaborators in this public violation of justice .37 32

33 34 35 36 37

My rather free translation of a text passage in Heiner Bielefeldt, Strafrechtliche Gerechtigkeit als Anspruch an den endlichen Menschen . Zu Kants kritischer Begründung des Strafrechts, Goldtammer’s Archiv für Strafrecht 1990, pp . 108–128, at p . 109: “zu seiner kritischen Denkungsart gehört wesentlich die Abweisung aller … Absolutheitsansprüche, denen gegenüber er entschieden die unaufhebbare Endlichkeit des Menschen zur Geltung bringt . Menschliche Sittlichkeit und menschliche Rechtsinstitutionen stehen zwar unter dem unbedingten Anspruch der Gerechtigkeit; die können diesen aber niemals direkt einlösen, sondern immer nur indirekt verwirklichen .“ My translation from German: “als gleichsam versteinerte Letztaussagen zugrunde gelegt” Rainer Zaczyk, supra note 8 at p . 215 . Kant, MM/DR, p . 6; German: MdS/RL, AA VI, p . 209 . Kant, MM/DR, p . 106; German: MdS/RL, AA VI, p . 333 . Kant, MM/DR, p . 105; German: MdS/RL, AA VI, p . 332 . Kant, MM/DR, p . 106; German: MdS/RL, AA VI, p . 333 .

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4.2 kanT on Criminal JusTiCe as reTribuTion aT firsT siGhT In his extreme island example Kant discusses and carries through his concept on how to find a punishment that is adequate in kind and degree . On the basis of equality between criminal act and punishment he proceeds to a rather rigorously understood requirement of retribution, which again he applies even to the death penalty . Before he discusses the examples, he postulates more generally what he wants to show through them: But what kind and what amount of punishment is it that public justice makes its principle and measure? None other than the principle of equality (in the position of the needle on the scale of justice), to incline no more to one side than to the other . Accordingly, whatever undeserved evil you inflict upon another within the people, that you inflict upon yourself … Only the law of retribution (ius talionis) – it being understood, of course, that it is applied by a court (not by your private judgment) – can specify definitely the quality and the quantity of punishment; all other principles are fluctuating and unsuited for a sentence of pure and strict justice because extraneous considerations are mixed into them .38

Kant does not explain exactly why retribution in such a rigorous form as a specific kind of equality should be just . If we want to find out whether we can follow Kant at all and, if yes, to what extent he convinces us, we have to look more thoroughly at his theory of punishment and consider where his reasons might either be incomplete or suggest conclusions which differ from the ones he draws . 5. Kant’s PosItIon In vIew of tHe BasIs of argumentatIon HIs fundamental worKs of PractIcal PHIlosoPHy

In

5.1 The General JusTifiCaTion of CoerCion does noT suffiCe To JusTify PunishmenT Punishment is a specific form of coercion, and may be, together with deportation, “coercive power in its most brutal form .”39 For understanding the nature and justification of punishment – and the nature and justification of the criteria for determining the legitimate kind and severity of any punishment, one might begin by looking at what Kant wrote about coercion in general . Coercion: an external “hindrance or resistance to freedom,”40 is, as has been worked out in secondary literature, a matter of fact41 as soon as two responsible human beings coexist and as the effects of their acts possibly influence each other .42 This aspect of the human condi-

38 39 40 41

42

Kant, MM/DR, p . 106–107; German: MdS/RL, AA VI, p . 332 . Jeffrie G . Murphy, The Nature and Justification of Criminal Punishment, in: Murphy, Kant: The Philosophy of Right, Macon, 1994, 119 . Kant, MM/DR, 25; German: MdS/RL, AA VI, 231 . Ingeborg Maus, Zur Theorie der Institutionalisierung bei Kant, in: id., Zur Aufklärung der Demokratietheorie: Rechts- und demokratietheoretische Überlegungen im Anschluß an Kant, Frankfurt/M, 1994, 287; similar: Wolfgang Kersting, Wohlgeordnete Freiheit, 3rd edition, Paderborn, 2007, 395 about the fact of ruling power by force (“Faktum der Herrschaft”) . Otfried Höffe, Kategorische Rechtsprinzipien, Frankfurt/M, 1995, 107; English: Categorical Principles Of Law, translated by M . Migotti, Pennsylvania, 2002, 71 .

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tion raises the practical question, which the moral concept43 of right44 conceives and the answer to which is supposed to be guided by the principle of right .45 The fact of coercion is fundamentally problematic from a normative perspective . This perspective is based on freedom; it implies the practical question “how should law be” or “what ought I to do?” together with my fellow human beings as citizen and self-determining co-legislator . Coercion resists external freedom . Thus reflection on coercion leads to the question of the conditions of its moral possibility .46 From this perspective, the social fact of coercion can be justified only if it is regulated in such a manner and with such content, that it functions as “hindering of a hindrance to freedom consistent with freedom in accordance with universal laws” .47 Yet, for our question this approach leads to disappointment . Punishments or threats of them might sometimes be “effective measures for eradicating crime”48 in the future; exactly insofar as they do, the justification for coercion in general may somehow contribute to the justification of punishment . But not only is it empirically very unclear to what extent punishments actually help to “eradicate crime,” but also, more importantly, punishments can do nothing to prevent or remove the already committed crime and its consequences . “The reality of assault, robbery or even more so of murder can never be made undone by any punishment .”49 If punishment cannot undo or contain the crime, which has already begun or been committed, then the general justification of coercion by itself – for Kant already valid in the state of nature – is not sufficient for the justification of punishment . If there is such a justification of punishment at all, it must be a specific one, which does not only refer to the possible deterring effect of punishment for others or to the prevention of future crimes of the convicted criminal . This result is supported by another reason: The fact of coercion, understood as an external “hindrance or resistance to freedom,”50 belongs to the human condition in which the actions of at least two people can have an influence upon each other . The requirement to enter a state of common determination of external freedom by law, “public lawful external coercion,”51 therefore is a priori necessary even among well-disposed and law abiding human beings52 . – But both does not apply to punishment . Kant is very clear about this: The more crime there is and the more urgent the question of the legitimacy of punishment appears, the further the reality of law is still away from the idea that ought to be approached .53 Crime, and hence the existence of punishment as a response to it, is a sign of a common and probable 43 44 45 46 47 48 49 50 51 52 53

Comp . Zaczyk, Selbstsein und Recht, Frankfurt/M, 2014,17: “mit dem Sein jedes Menschen zugleich der Begriff des Rechts verbunden ist .“ Kant, MM/DR, 23–24; German: MdS/RL, AA VI, 230 . Kant, MM/DR, 24–25; German: MdS/RL, AA VI, 230–231 . Kersting (footnote 41), 102 . Comp . Kant, MM/DR, 25; German: MdS/RL, AA VI, 231 and Kersting (footnote 41), 103 Kant, MM/DR, 130; German: MdS/RL, AA VI, 362 . Rainer Zaczyk, “Hat er aber gemordet, so muß er sterben” . Kant und das Strafrecht, in: Kugelstedt (ed .), Kant-Lektionen. Zur Philosophie Kants und zu Aspekten ihrer Wirkungsgeschichte, Würzburg, 2008, 247 (my translation) . Kant, MM/DR, 25; German: MdS/RL, AA VI, 231 . Kant, MM/DR, 90; German: MdS/RL, AA VI, 312 . Kant, MM/DR, 89; German: MdS/RL, AA VI, 312 . Kant, CPR, 258; German: KrV, AA III, 248 .

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condition, but not of a necessary human condition . It indicates a non-ideal state, nothing to strive for independently from circumstances . “In a perfect state no punishments would be necessary .”54 Additionally, in a strictly moral view, as applied in ethics and concerning the moral or immoral disposition, punishment is not within human competence at all: But punishment is not an act that the injured party can undertake on his private authority but rather an act of a court distinct from him, which gives effect to the law of a supreme authority over all those subject to it, and when (as we must in ethics) we regard human beings as in a rightful condition but in accordance only with laws of reason (not civil laws), then no one is authorized to inflict punishment and to avenge the wrongs sustained by them except who is also the supreme moral lawgiver; and he alone (namely God) can say ‘Vengeance is mine; I will repay .’55

With such words, Kant shows, that he is familiar with the danger of retaliation as primitive, unenlightened, barbaric and “pointless vengeance,”56 and with fundamental doubts concerning the moral justifiability of any57 punishment among human beings . 5.2 sPeCifiC CharaCTerisTiCs and The JusTifiCaTion of The insTiTuTion of PunishmenT Although an ideal state does not need punishment, Kant claims: “The mere idea of a civil constitution among human beings carries with it the concept of punitive justice belonging to the supreme authority .”58 If this is not a contradiction, it can only mean: A state should give as little occasion as possible for questions of crime and punishment to arise; but if empirical reality raises the issue of how to deal with already committed crimes, the idea rejects limiting considerations to merely pragmatic reasons of preventive coercion and demands to additionally consider the justice of such a reactive coercion: punishment . May purely moral reasoning rather suggest, that the situation of punishment cries out for change, and raise doubts as to whether and to what extent punishment is within human competence; yet, there are good reasons that suggest that the impunity of crimes, that have already occurred, is even more unacceptable . What is specific to punishment, is its character as “Erwiderung”59 – answer and reaction60 – to crime . Crime is defined as a particular kind of a breach of the law, namely as a violation of “the security a state gives each in his possession of what is his,”61 which makes it appear inappropriate for the culprit to keep the full legal status of citizenship: a “transgression of public law that makes someone who commits 54 55 56 57 58 59 60 61

Kant, CPR, 258; German: KrV, AA III, 248 . Kant, MM/DV, 207–208; German: MdS/TL, AA VI, 460 . Murphy (footnote 39), 120 Compare the recent debate between Neil Levy, Zimmerman’s The Immorality of Punishment: A Critical Essay, Criminal Law and Philosophy, vol . 9 (2015), 103 and Michael J . Zimmerman, The Immorality of Punishment: A Reply to Levy, Criminal Law and Philosophy, vol . 9 (2015), 113 Kant, MM/DR, 130; German: MdS/RL, AA VI, 362 . Kant, MdS/RL, AA VI, p . 363 with the 18th century spelling: “Erwiederung” . Mary Gregor translates: “return” (Kant, MM/DR, p . 130) . Kant, MM/DR, p . 130; German: MdS/RL, AA VI, p . 362 .

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it unfit to be citizen .”62 The nature of crime and of punishment as reaction to it is therefore understood as closely connected with the idea of an institutionalized system of distributive justice: with the “mere idea of a civil constitution .”63 As opposed to coercion in other contexts, Kant strictly rejects punishment in the state of nature: If it is not inflicted by a court – the institutional representation of distributive justice,64 then “vice punishes vice itself .”65 The personal and private desire of revenge is a vice, namely “the sweetest form of malice,”66 sweet in that it appears to have the greatest right or even obligation .67 But how do we come from this to a justification of punishment? Kant did not work out his answer precisely . From what he did write, it appears to me, that he supposed that the justification of punishment is based on several reasons . Two main components appear important, though it is not at all clear, how exactly they contribute to the justification of punishment . 5 .2 .1 Assertion of the Status Civilis and Deterrence Firstly, there is good reason to suppose that part of the justification of the institution of punishment is the expressive and effective assertion of the status civilis .68 Sharon Byrd has thoroughly shown that this also includes the deterring69 effect of the threat of punishment . Rehabilitation is also relevant . Even though Kant excludes the use of punishment of a culprit merely for such purposes, he also includes the “use [of punishment] for [the perpetrator] himself or his fellow citizens”70 and the operation of punishments as “effective measures for eradication crime”71 in his considerations . It is the effects of the threat of punishment, which, few years before publishing the Metaphysics of Morals, had still made him formulate that all punishments by a secular authority have a warning character72 and that government does not punish, because a crime has been committed, but, pragmatically, in order to prevent something like this from happening .73 Since the status civilis and its security are demanded by practical reason, such effects, which support its stability, appear to be74 relevant for 62 63 64 65 66 67 68 69 70 71 72 73 74

Kant, MM/DR, p . 105; German: MdS/RL, AA VI, p . 331 . Kant, MM/DR, p . 130; German: MdS/RL, AA VI, p . 362 . More precisely shown by B . Sharon Byrd und Joachim Hruschka, Lex iusti, lex iuridica und lex iustitiae in Kants Rechtslehre, ARSP vol . 91 (2005), pp . 484–500, at p . 486 . Kant, MM/DR, p . 105; German: MdS/RL, AA VI, p . 331 . Kant, MM/DV, p . 207; German: MdS/TL, AA VI, p . 460 . Kant, MM/DV, p . 207; German: MdS/TL, AA VI, p . 460 . B . Sharon Byrd/Joachim Hruschka, Kant’s Doctrine of Right. A Commentary, Cambridge, 2010, 265 . B . Sharon Byrd, Kant’s Theory of Punishment: Deterrence in Its Threat, Retribution in Its Execution, Law and Philosophy vol . 8 no . 2 (1989), 151 Kant, MM/DR, 105; German: MdS/RL, AA VI, 331 . Kant, MM/DR, 130; German: MdS/RL, AA VI, 362 . Kant, Vorlesung über Ethik, 64: “Alle obrigkeitlichen Strafen sind warnende Strafen” . Kant, Vorlesung über Ethik, 64: “Alle Strafen der … Obrigkeit sind pragmatische … Die Obrigkeit straft nicht, weil verbrochen ist, sondern damit nicht verbrochen werde .“ Regarding doubts concerning the example of the dissolving island society, which, according to Kant, still has to execute the last murderer, Byrd emphasizes, that “the island society is not returning to a state of nature” (Byrd (footnote 69), 199) . Similar, though with the aim of showing more generally the connection between the status civilis and punishment: Rainer Zaczyk, Staat

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a complete and valid justification even for a Kantian approach . Yet, the important point for this paper is that prevention, deterrence, and other possible effects are not a sufficient justification . 5 .2 .2 Distributive Justice Additionally, perhaps somehow connected with what we just discussed,75 Kant considers impunity as injustice .76 This is a view that is still often heard, for example when widely spread corruption prevails among public officers, when crimes committed by the Nazis are still tried seventy years after the horrors of that regime ended,77 when the Committee of Ministers of the Council of Europe adopts Guidelines on eradicating impunity for serious human rights violations “as a matter of justice”78 or when Amnesty International publishes a report on homicides by military police in Rio de Janeiro that are not adequately prosecuted .79 Perhaps Kant holds this position, because if “the law is to remain just, it is important to guarantee that those who disobey it will not gain an unfair advantage over those who obey”80 – an argument, the relevance of which can be drastically diminished by great inequality in society,81 perhaps he holds that view, because the extent to which the perpetrator violated the rights of the victim has to be an equally essential part of any consideration of a just punishment .82 One might try to understand Kant’s fragmentary statements by contrasting83 them to their opposite . Kant considers both private revenge and impunity84 of the violation of rules which are fundamental for public peace in the status civilis as unjust . In contrast to this, punishment is an act, though not “of a supreme authority,”85 yet at least of “public justice”86 as rendered “by a court (poena forensis) .”87 Punishment

75

76 77 78 79

80 81 82 83 84 85 86 87

und Strafe – Bemerkungen zum sogenannten “Inselbeispiel” in Kants Metaphysik der Sitten, in: G . Landwehr (ed .), Freiheit, Gleichheit, Selbständigkeit, Göttingen, 1999, 85 Thomas E . Hill, Kant on Punishment: Coherent Mix of Deterrence and Retribution? Annual Review of Law and Ethics, 5 (1995), 309 emphasizes, that if deterrence is considered part of justification considerations, it has to be shown, why and how a just punishment is particularly appropriate for this task . Kant, MM/DR, 109–110; German: MdS/RL, AA VI, 337 . Walter (footnote 15), 371 . Committee of Ministers of the Council of Europe, Guidelines on eradicating impunity for serious human rights violations, adopted on 30 March 2011, Human Rights Law Journal 31 (2011), 491, I .3 . Chapter “Impunity”, in: Amnesty International, You killed my son. Homicides by the military police in the city of Rio de Janeiro, London 2015, 68: “fight for justice”, https://www .amnesty .org/en/documents/amr19/2068/2015/en/ (retrieved August 23, 2015) . I am grateful to Paula Larruscahim and to Paul Schweizer, Amsterdam, for having drawn this report to my attention . Murphy (footnote 39), 121 . Jeffrie G . Murphy, Legal moralism and retribution revisited, Criminal Law and Philosophy 2007, 13 . Tatjana Hörnle, Tatproportionale Strafzumessung, Berlin, 1999, 106 . Compare for an approach to the justice of the institution of penalty arguing from its imagined opposite: Zaczyk, (footnote 75), 82 . Kant, MM/DR, 109; German: MdS/RL, AA VI, 337 . Kant, MM/DV, 207; German: MdS/TL, AA VI, 460 . Kant, MM/DR, 105; German: MdS/RL, AA VI, 332 . Kant, MM/DR, 105; German: MdS/RL, AA VI, 331 .

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removes88 or eradicates89 the violation of the general “security a state gives each .”90 Maybe it does so, because it “expresses” (Hill)91 disapproval, perhaps by attempting “to restore the balance between benefit and obedience” (Murphy),92 or perhaps more precisely, between the actually used external freedom of a person and the range of his or her external legitimate freedom in accordance with general law . Punishment and the possibility of its justification can, after all, only be understood within the context93 of “the postulate of public right: when you cannot avoid living side by side with all others, you ought to leave the state of nature and proceed with them into a rightful condition, that is, a condition of distributive justice,”94 the “civil condition (status civilis)”95 as “a state (civitas)” .96 5.3 from This does noT follow how we should deTermine a JusT PenalTy Even though the justice of the institution of punishment is connected with the real security of rights within the system of the status civilis, there is no97 direct way from this to the justice of a concrete penalty in an individual case . The effectiveness of (the threat of) punishment may always be considered, when the institution of punishment is being organized . Vice versa the certainty that (the threat of a) punishment in generalizable types of situations does not and cannot have any effect at all, may, even for Kant, be a consideration, which makes punishment impossible,98 as he shows in his discussion of the plank of Carneades;99 vice versa the ability to act with mercy is limited by the possibility of endangering the security of people .100

88 German: Kant, MdS/RL, AA VI, 362: “zu entfernen” is literally: to remove, to move to a more distant place . 89 Kant, MM/DR, 130 . 90 Kant, MM/DR, 130; German: MdS/RL, AA VI, 362 . 91 Thomas E . Hill, Punishment, Conscience and Moral Worth, in: Mark Timmons (ed .), Kant’s Metaphysics of Morals . Interpretative Essays. Oxford, 2002, 236: “Punishment … expresses public condemnation of external … acts contrary to laws that should be obeyed .” For an integration into a recent theory of punishment compare Hörnle (footnote 83), 112–118 and 135–137 . 92 Murphy (footnote 39), 121 . 93 Höffe (footnote 42), 226; English: 159; more thorough: Rainer Zaczyk (footnote 74), especially at 79–81 . 94 Kant, MM/DR, 86; German: MdS/RL, AA VI, 307 . 95 Kant, MM/DR, 89; German: MdS/RL, AA VI, 311 . 96 Kant, MM/DR, 89; German: MdS/RL, AA VI, 311 . 97 Emphasizing the distinction between the justification of the institution of criminal punishment as such, which Kant presupposes, and the justice of kind and degree of the concrete penalty, which Kant expressly treats: Höffe, (footnote 42), 227; English: 160 . Similar: Hill (footnote 91), 238 et pass . 98 “not to be judged inculpable (inculpabile) but only unpunishable (impunible)” (Kant, MM/ DR, 28; German: MdS/RL, AA VI, 236) . 99 Thoroughly discussed by Wilfried Küper, Immanuel Kant und das Brett des Karneades. Das zweideutige Notrecht in Kants Rechtslehre, Heidelberg, 1999; more recently by Jeffrie G . Murphy, Kant on the “Right of Necessity” and other Defenses in the Law of Homicide, in: id ., Punishment and the moral emotions, Oxford, 2012, 274 100 Kant, MM/DR, 110; German: MdS/RL, AA VI, 337 .

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But such considerations as the effect of a punishment upon one person or upon society in general are only “based on experience”101 and thus on theoretical knowledge . Expression of “punitive prudence”102 and “merely pragmatic,”103 these considerations can raise the issue of punishing and show that it is urgent or not urgent or damaging or helpful . But, not being rooted in practical reason, they alone cannot provide a basis for assessing a particular punishment morally, so as to be able to approve it as being just or to criticize it as unjust . A perspective of justice demands to base a sentence of punishment on considerations of what the perpetrator deserves on the basis of his or her limited external acts, that is, his objectively manifested104 “legal guilt,”105 and it emphasizes that it would be unjust if the punishment lost the character of a limited reaction to such specific acts . Even then, adequate reflection suggests that the act of judging should always be somewhat “reluctant”106 – aware of the dangers, that a judgment not just of an imputed criminal act, but of character and of responsibility for that character tends to “both exceed our epistemic capacities and risk engaging the cruelty latent in all of us .”107 The psychology of retributivism might cause the inclination of feeling comfortable with harsh punishments108 and even lessen the readiness to do justice to the person who committed a crime . It has to be emphasized, though, that the core idea of just punishment points at the direction of limiting and restricting, rather than lowering thresholds for punishments . In Kant’s words: “He must previously have been found punishable before any thought can be given to drawing from his punishment something of use for himself or his fellow citizens .”109 The only question is whether it is a matter of indifference to the legislator what kinds of punishment are adopted, as long as they are effective measures for eradicating crime … or whether the legislator must also take into account respect for the humanity in the person of the wrongdoer … simply on grounds of right .110

101 102 103 104 105

106 107 108

109 110

Kant, MM/DR, 130 (footnote); German: MdS/RL, AA VI, 363 . Kant, MM/DR, 130 (footnote); German: MdS/RL, AA VI, 363 . Kant, MM/DR, 130 (footnote); German: MdS/RL, AA VI, 363 . For the relevance of motives see at Hörnle (footnote 82), 272 . Murphy (footnote 81), 12 . Murphy distances himself here from Kant, who once seeks to pronounce a sentence “on every criminal in proportion to his inner wickedness” (Kant, MM/DR, 106; German: MdS/RL, AA VI, 333) . By doing so, Kant contradicts his more fundamental claim for the Doctrine of Right in general, that legally “it cannot be required that this principle [i . e .: the principle of right, R . K .] of all maxims be itself in turn my maxim, that is, it cannot be required that I make it the maxim of my action; for anyone can be free so long as I do not impair his freedom by my external action, even though I am quite indifferent to his freedom or would like in my heart to infringe upon it” (Kant, MM/DR, 24; German: MdS/RL, AA VI, 231) . Murphy (footnote 81), 17: “reluctant retributivist” . Murphy (footnote 81), 18 “When you play the game of criminal justice on the field of retributivism, you play it on the home ground of conservative law-and-order-politicians … The long-term effect of the new retributivism … will be to make the community feel more comfortable with punishment, encouraging prisons which are even more overcrowded and more brutal than at present” (Diana Gordon, The Justice Juggernaut . Fighting Street Crime, Controlling Citizens, 1990, p . 20 as quoted in: Karl-Ludwig Kunz, Kriminologie, 6th edition, Bern et alt ., 2011, 318, § 28) . Kant, MM/DR, 105; German: MdS/RL, AA VI, 331 . Kant, MM/DR, 130; German: MdS/RL, AA VI, 362–363 .

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It is here – in the following sentence: in close connection with the idea of respect for the wrongdoer – that Kant introduces the ius talionis: “I said that the ius talionis is by its form always the principle for the right to punish since it alone is the principle determining this idea a priori (not derived from experience of which measures would be most effective for eradicating crime) .”111 Hence, as “pure sanctioning norm” (Küper)112 – not as one aiming at an effect – the “law of punishment113 is a categorical imperative .”114 The term “categorical imperative,” as developed in the Groundwork, is distinct from a merely hypothetical imperative and thus from an instruction which only demands conditionally for the realization of another end . Kant claims, that punishment “can never be inflicted merely as a means to promote some other good for the criminal himself or for civil society . It must always be inflicted upon him only because he has committed a crime .”115 5.4 human diGniTy as JusTifyinG reason for basinG PunishmenT on The leGal-GuilT-PrinCiPle How exactly does Kant reason from a respect for humanity to the idea of the ius talionis, which we would nowadays be inclined to associate with extremely inhumane punishments rather than with respect for human dignity? An a priori foundation can only help, if it is not only – negatively – independent from experience and from the conditionality of the necessity for pursuing merely hypothetical ends, but also – positively – rooted in insight of practical (morally employed) reason into what ought to be done in a civil state and how its laws should be . Is it? Kant seems to base his answer – at least in the last consequence – on imputing not only the criminal act, but apparently and amazingly also the punishment to the criminal and her or his being author (causa libera):

111 Kant, MM/DR, 130; German: MdS/RL, AA VI, 363 . 112 Wilfried Küper, “Das Strafgesetz ist ein kategorischer Imperativ” . Zum “Strafgesetz” in Kants Rechtslehre, in: Müller-Dietz et alt . (ed .), Festschrift für Heike Jung zum 65. Geburtstag, BadenBaden, 2007, 497: “reine Sanktionsnorm” . 113 That such institutions as the South African Truth and Reconciliation Commission could be covered by this concept of a sanction does not seem far-fetched to me . Expecting confessions before granting amnesty, and writing records on the relevant events, they fulfil an “expressive function” (Colleen Murphy, A moral theory of political reconciliation, Cambridge, 2010, 156) and guarantee “acknowledgement” (loc . cit .) . They are expressly based on the premise that the object of investigation “is past wrongdoing” (loc . cit . 157) . All of this comes close to at least the expressive function of punishment . It does not seem wrong, that to a considerable degree justice was already done through the painful public disclosure of such wrongdoing as torturing and killing (considered by Murphy [footnote 99], 179–180) . It has been discussed, whether and in which ways the lack of a requirement of a public apology is rather a missed chance to demand (at least an insincere) public apology as part of the process of restorative justice (loc . cit . 170) or an adequate recognition of the fact of otherwise produced hypocrisy and cynicism (loc . cit . pp . 156–157) . 114 Kant, MM/DR, 105; German: MdS/RL, AA VI, 331 . 115 Kant, MM/DR, 105; German: MdS/RL, AA VI, 331 .

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Such an assumption carries with it conditions of its possibility, especially that nothing interrupts the link of such an imputation . This is one of the reasons, why punishing arbitrarily,117 or “inflict[ing] whatever punishments one chooses for these crimes would be literally contrary to the concept of punitive justice .”118 And this is why the equality of misdeed and punishment is the way of connecting the punishment to the imputable act of the perpetrator: “But what kind and what amount of punishment is it that public justice makes its principle and measure? None other than the principle of equality…Accordingly, whatever undeserved evil you inflict upon another within the people, that you inflict upon yourself . If you insult him, you insult yourself …”119 So, this way of closely connecting punishment and crime makes it possible to fulfil the basic requirement for the justification of punishment: “It must always be inflicted because he has committed a crime . For a human being can never be treated merely as means to the purposes of another or be put among the objects of rights to things: his innate personality protects him from this” .120 5.5 how and To whaT exTenT does iT JusTify asPeCTs of a law of reTribuTion Kant himself sees, though, that the application of the ius talionis causes several problems . 5 .5 .1 The Ius Talionis as Idee (Idea), not as Empirischer Begriff (Empirical Concept) One of these problems motivates Kant to distinguish between two aspects of punitive justice: “terms of its letter” and “terms of its spirit .”121 At least some cases only allow themselves to be resolved in accordance with the terms of the spirit of punitive justice . This might lead us to the deeper problem: Is the principle of legal guilt – or the ius talionis, as Kant formulates it – as the basis for determining the proportional kind and degree of punishment ever suitable for unmodified, direct empirical representation? Even the terminology Kant himself uses indicates that it is not – in contrast to the impression some of his rigorous statements might leave . To Kant, the Begriff or “concept of punitive justice”122 is imbedded in the Idee or “idea of a civil constitution .”123 What he expresses by ius talionis, is to him an “Idee,”124 an idea, namely an “a priori determining … idea as principle of criminal law .”125 In order to 116 117 118 119 120 121 122 123 124 125

Kant, MM/DR, p . 130; German: MdS/RL, AA VI, p . 363 . Kant, MdS/RL, AA VI, p . 363: “Willkürlich Strafen … zu verhängen” . Kant, MM/DR, p . 130; German: MdS/RL, AA VI, p . 363 . Kant, MM/DR, p . 105; German: MdS/RL, AA VI, p . 332 . Kant, MM/DR, p . 105; German: MdS/RL, AA VI, p . 331 . Both quotations at Kant, MM/DR, 130; German: MdS/RL, AA VI, 363 . Kant, MM/DR, 130; German: MdS/RL, AA VI, 362: “Begriff der Strafgerechtigkeit” . Kant, MM/DR, 130; German: MdS/RL, AA VI, 362: “Idee einer Staatsverfassung” . Kant, MdS/RL, AA VI, 363 . My translation from the German version of Kant, MdS/RL, AA VI, 363: “a priori bestimmende … Idee als Prinzip des Strafrechts”; rather freely translated by M . Gregor in Kant, MM/DR,

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understand this, it might be helpful, to look at how Kant uses such terms as Begriff – concept – or Idee – idea – in general .126 In his Critique of Pure Reason Kant distinguishes between three kinds of Begriffen (concepts): Firstly, there is the “empirischer … Begriff ” (empirical concept), secondly the pure concept originating in the understanding – “notion” – and thirdly the pure “Vernunftbegriff ” (“concept of reason”), or “Idee” (“idea”) .127 The empirical concept refers directly to an object by means of a characteristic, which several objects share,128 such as the color “red .”129 The notion originates in the understanding, “the faculty of rules,”130 of “comparison,”131 of “synthetical unity of the manifold .”132 For example, the act of “counting … is a synthesis according to concepts”133 and thus of this faculty . As opposed to this, the idea is a pure concept of reason, “to which the senses can supply no corresponding object .”134 It serves as something to strive for, as an “Urbild”135 or “archetype”,136 as a “maximum”,137 as something similar to Dworkin’s use of “principle”,138 of which he says, that it “states a reason that argues in one direction but does not necessitate a particular decision” .139 It is also similar to Robert Alexy’s principles as “optimization requirements”,140 which have a normative force requiring “that something be realized to the greatest extent possible given the legal and factual possibilities .”141 Kant did not call the ius talionis an empirical concept or, for practical contexts, a Pflicht (duty) nor did Kant use the term notion or pure concept of the faculty of understanding; he called it an Idee – an idea . Ideas, pure concepts of reason, urge to be realized, but can never have a completely adequate representation in empirical reality . The empirical representation of what Kant calls ius talionis is never directly possible . Kershnar’s rather typical example, in which a person clubs an old man at 3:02 am on June 4, 1993 in Lincoln, Nebraska shows this clearly: “It is no longer possible to impose an action with these same circumstances on the wrongdoer”;142 and it shows that it is not even trivial to see, which of these circumstances are to be considered important for the kind and severity of punishment . Kant himself dis-

126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142

130: “the principle determining this idea a priori” . In Kant’s German formulation of the sentence, it is the idea which determines a priori and thus serves as principle . Comp . Rainer Keil, Die Rechtsidee bei Kant, in: Jochen Bung / Brian Valerius / Sascha Ziemann (ed .), Normativität und Rechtskritik, ARSP-Beiheft 114 (2007), 50 . Quotations in English at Kant, CPR, 260; in German: Kant, KrV, AA III, 250 . Kant, CPR, 260; German: KrV, AA III, 250 . Comp . Kant, CPR, 261; German: KrV, AA III, 250 . Kant, CPR, 243; German: KrV, AA IV, 192 . Kant, CPR, 103; German: KrV, AA IV, 93 . Kant, CPR, 103; German: KrV, AA IV, 93 . Kant, CPR, 65; German: KrV, AA IV, 65 . Kant, CPR, 266; German: KrV, AA IV, 207 . Kant, KrV, AA IV, 202 . Kant, CPR, 258 . Kant, CPR, 258; German: KrV, AA IV, 202 . Ronald Dworkin, Taking Rights Seriously, Cambridge, 1978, 22 . Dworkin (footnote 138), 26 Robert Alexy, Theorie der Grundrechte, 2nd edition, Frankfurt/M, 1994, 75–76, English: A Theory of Constitutional Rights, Oxford, 2010, 47 . Alexy (footnote 140), 75; English: 47 . Stephen Kershnar, Kant on Freedom and the Appropriate Punishment, Annual Review of Law and Ethics 3 (1995), 311

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cussed more difficult examples such as a “fine imposed for a verbal injury”143 – where he sees “no relation to the offense”144 – or the problem of the reaction to theft .145 Hence the reason behind the idea of ius talionis cannot and does not demand exact equivalency between the empirical concept of the crime and the punishment . It does not require the physical event of the criminal act to be mirrored exactly by another physical event (punishment) .146 It rather demands, that the violation of right and law is adequately answered by a legal “return”,147 and that what is in kind and severity adequate is necessarily connected with the kind and severity of the criminal act itself: proportional . That practical reason – justice – demands such a connection is, as we saw, to Kant rooted in human dignity . 5 .5 .2 Limits Based on other Reasons of Justice: “Crime against Humanity Itself ” Some punishments, such as rape of the rapist, would themselves be “a punishable crime against humanity as such” .148 And “there can be disgraceful punishments that dishonor humanity itself (such as quartering a man, having him torn by dogs, cutting off his nose and ears) .”149 This reveals two implications . Firstly, this is only possible because the punishment is not at all or not only regarded as a quasi-automatic reaction morally imputed to no one or only to the criminal himself, but (also and more evidently so) as a practical act of a court with public authority consisting of another person or several other persons . Otherwise, a punishment could hardly be thought of as a crime itself . Perhaps more important is this further implication: If such a decision, which, as it at first appears, comes as near to a strict realization of the legal guilt principle as is thinkable, does not sufficiently meet the requirements of justice with view to the respect of human dignity – or in Kant’s words: “Menschheit” (humanity) – then this shows that the legal-guilt-principle or his idea of the ius talionis is only one component of punitive justice among several . This fits well into what we saw earlier: The ius talionis is an idea . Ideas, in practical philosophy, do not by themselves have the form of a duty – of a concrete “action to which someone is bound” .150 Hence they are not shaped as what Dworkin or Alexy would call a “rule”: “applicable in an allor-nothing fashion”151 as one of the “norms which are always either fulfilled or not .”152 Instead, ideas serve as “Gründe”,153 as argumentative grounds, as “grounds of obligation”,154 as reasons, as motivational origins or as causes of actions, as a 143 144 145 146 147 148 149 150 151 152 153

Kant, MM/DR, 106; German: MdS/RL, AA VI, 332 . Kant, MM/DR, 106; German: MdS/RL, AA VI, 332 . Both quotations at Kant, MM/DR, 130; German: MdS/RL, AA VI, 363 . Zaczyk (footnote 49), 253 . Kant, MM/DR, 130 . Kant, MM/DR, 130; German: MdS/RL, AA VI, 363 . Kant, MM/DV, 210; German: MdS/TL, AA VI, 463 . Kant, MM/DR, 15; German: MdS/RL, AA VI, 222 . Dworkin (footnote 138), 24 . Alexy (footnote 140), 76 (German: “Regeln”), English: 48 . Kant, KpV, AA V, 135: “[Ideen] … Gründe der Möglichkeit sind, das nothwendige Object der reinen praktischen Vernunft … wirklich zu machen” . 154 Kant, MM/DR, 16; German: MdS/RL, AA VI, 224: “Gründe der Verbindlichkeit (rationes obligandi)” .

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“source of the possibility of realizing the necessary object of pure reason” .155 “Gründe”, reasons, may get into conflict with other reasons . “When two such grounds conflict with each other, practical philosophy says that the stronger ground of obligation prevails (fortior obligandi ratio vincit) .”156 This might open up our perspective beyond Kant’s own examples for punishments, which are themselves crimes against humanity . 5.6 human diGniTy and fuTure: addiTional limiTs To The JusTifiCaTion of PunishmenT For this, we should now proceed from discussing examples to discussing reasons themselves – those for the principle of legal guilt and those for some of its limits . Kant’s assumption is that both the reason supporting the ius talionis as well as the reason for the impermissibility of such punishments as rape of the rapist and so forth have their common origin in the “respect for the humanity in the person of the wrongdoer” .157 This assumption leads to the question of where this respect is rooted? Since it has its basis in a reason which concerns practical philosophy in general – comprising Tugendlehre (ethics) and Rechtslehre (doctrine of right) – the ground it rests on has to be searched for in the foundational writings . I use the term “foundational writings” to mean the Groundwork for the Metaphysics of Morals and the Critique of Practical Reason, which form the foundation of both parts of the Metaphysics of Morals .158 In the Groundwork, Kant says, that the human being, and in general every rational being, exists as end in itself, not merely as means to the discretionary use of this or that will, but in all its actions, those directed toward itself as well as those directed toward other rational beings, it must always at the same time be considered as an end .159

A few pages later, he continues: In the realm of ends everything has either a price or a dignity . What has a price is such that something else can also be put in its place as its equivalent; by contrast, that which is elevated above all price, and admits of no equivalent, has a dignity . That … which constitutes the condition under which alone something can be an end in itself does not have merely a relative worth, i . e ., a price, but rather an inner worth, i . e ., dignity .160

155 Quoted according to Abbott’s translation: Kant, CPr, 233 . Philip McPherson Rudisill translates instead: “the basis of the possibility for making the necessary object of pure practical reason … an actuality” (The Critique of Practical Reason by Immanuel Kant translated by Philip McPherson Rudisill, Posted September 18, 2012, edited 1/31/2015, 1 .12, p . 174, http://kantwesley . com/Kant/CritiqueOfPracticalReason .pdf [read 10 .5 . 2015]) . For the original German formulation (in 18th century spelling) see above at footnote number 153 . 156 Kant, MM/DR, 17; German: MdS/RL, AA VI, 224 . 157 Kant, MM/DR, 130; German: MdS/RL, AA VI, 362 . 158 With regard to the Critique of Practical Reason: Kant, MM/DR, 3; German: MdS/RL, AA VI, 205; concerning the Groundwork: Kant, GMM, 7–8; German: GMS, AA IV, 391–392 . 159 Kant, GMM, 45; German: GMS, AA IV, 428 . 160 Kant, GMM, 52–53; German: GMS, AA IV, 434–435 .

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And then he names the source of dignity: Now morality is the condition under which alone a rational being can be an end in itself, because only through morality is it possible to be a legislative member in the realm of ends . Thus morality and humanity, insofar as it is capable of morality, is that alone which has dignity .161

Kant reasons similarly in his Critique of Practical Reason,162 where he speaks of the “respect inspiring idea of personality” .163 In spite of man being “unholy enough”,164 “he must regard humanity [in his own person] as holy .”165 In the Doctrine of Virtue Kant clarifies: “I cannot deny all respect to even a vicious man as a human being; I cannot withdraw at least the respect that belongs to him in his quality as a human being, even though by his deeds he makes himself unworthy of it .”166 And Kant reasons for this by stating: “By virtue of the autonomy of his freedom he is the subject of the moral law, which is holy .”167 If human dignity is rooted in autonomy, if dignity thus does not only show in the past and present realization of a freely chosen, reasonably motivated act,168 but, perhaps among others,169 also in the present and future potential to act freely as author and as subject of practical reason170 – then this is hardly compatible with any punishment, that amounts to treating someone as merely former agent, thus not including the perspective of her or his present potential to act autonomously any longer . Whereas there is good reason, after all, to suppose the identity of the present person with the former criminal by presently imputing the former act to her or him and by imposing an adequate future punishment on this person, the consequences of this have to be limited in view of the also good reason to demand to respect the potential for a new, reasonable orientation, self-determination and thus self-identification, which is also one of the sources of dignity . This does not allow the total identification with the criminal act inherent in life imprisonment without any possibility of regaining liberty . The latter is prone to be accompanied by damaging effects 161 162 163 164 165 166 167 168

Kant, GMM, 53; German: GMS, AA IV, 435 . Kant, CpR, 229; German: KpV, AA V, 131–132 . Kant, CpR, 181; German: KpV, AA V, 87 . Kant, CpR, 180; German: KpV, AA V, 87 . Kant, CpR, 180; German: KpV, AA V, 87 . Kant, MM/DV, 210; German: MdS/TL, AA VI, 463 . Kant, CpR, 180–181; German: KpV, AA V, 87 . Kant, CpR, 227 “We can now easily see that all worthiness depends on moral conduct”; German: KpV, AA V, 130: “Man kann jetzt leicht einsehen, daß alle Würdigkeit auf das sittliche Verhalten ankomme” . “Würdigkeit”, here translated by “worthiness”, can also be translated by “dignity” (comp . Oxford Dictionary Online at http://www .oxforddictionaries .com/de/ubersetzung/deutsch-englisch/W%C3 %BCrdigkeit [17 .5 .2015]) 169 The question, whether there are other sources of human dignity than the two aspects of human realization or potential to autonomy of reason, as I suppose, does not have to be resolved here . This question is e . g . important with a view to the possibility to explain the dignity of small children, mentally disabled people or human beings suffering from dementia (Jeffrie G . Murphy, The elusive nature of human dignity, in: idem (footnote 113), 260) . For the purpose of this paper it suffices to say, that the possibility and likelihood of further sources of human dignity is not excluded by assuming the ones we work with here . For a broad and thorough treatise see Paul Tiedemann, Menschenwürde als Rechtsbegriff. Eine philosophische Klärung, 3rd edition, Berlin, 2012, 117–155 . 170 Muphy calls it “autonomy simply as capacity to understand moral reasons and to be motivated by them” (Jeffrie G . Murphy (footnote 169), 260

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of imprisonment and by the danger that the negative effects of sentence become “stronger and stronger after an unusually long period of imprisonment” and with age,171 but especially with a lack of a perspective in freedom .172 Illegal acts may lead to a worse condition, but on “the other hand, the human’s status as a being capable both of reason and of assuming responsibility is an inalienable status that cannot be taken away from that human or any other human” (Merle) .173 Therefore, if the determination of the kind and severity of punishment is only based on considerations concerning the past act, this is not only pragmatically unwise by excluding possible consequences for public security (such as deterrence) or of rehabilitation of the culprit, but also contrary to demands of human dignity and thus unjust . As Merle put it: The assertion, that the human being’s past illegal actions should carry consequences should not lead us to stop treating this human being as a being capable of reason, except when this prevents his or her fellow human beings from exercising that same status . Otherwise, the perpetrator would be treated as a person capable of assuming responsibility only up to the crime; after the conviction, however, the criminal would lose this status, that is, his or her worth .174

A negative right not to be completely identified with the sum of past acts – a right to develop, change and shape a new identity – follows from this . 6. counter-cHecK: new Human BeIng, ImPutatIon, PunIsHment and mercy In tHe Religion witHin tHe BoundaRies of meRe Reason This result apparently conflicts with statements in Kant’s Religion within the Boundaries of Mere Reason . There Kant does not deal with external rights and with punishments for only limited external criminal acts, but with the moral or immoral disposition of mind .175 Yet, both his statements on religion and those about right are placed within the framework of a practical philosophy governed by the same practical reason: oriented at what ought to be done . Hence it does not appear inappropriate to note structural similarities between the questions of the ethical and religious relevance of a new reasonable self-determination for the consequences of previous dispositions and the question in the field of law, in which way and to what extend openness to a new autonomous self-determination limits the justice of a duty to bear consequences for previous illegal acts . At first sight, one might think, Kant liberated the human being from having to bear consequences after a turn to a moral disposition: An immoral disposition, in

171 ECtHR – Grand Chamber – judgement of July 9, 2013, “Vinter et . alt . versus United Kingdom”, MN 70 . 172 Comp . BVerfGE 72, 105, 116 case of 88 years old war criminal after 22 years of imprisonment) . 173 Jean-Christophe Merle, Strafen aus Respekt vor der Menschenwürde. Eine Kritik am Retributivismus aus der Perspektive des deutschen Idealismus, Berlin, 2007, 6; English translation: id ., German idealism and the concept of punishment, Cambridge et alt, 2009, 7 . 174 Merle (footnote 173), 6; English 7 . Where the English version gives “worth”, the German wording is: “Würde”, which is usually translated by “dignity” or “worthiness” . 175 Kant, R, 89; German: Rel, AA VI, 72 .

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Kant’s view, “brings with it … an infinity of guilt”,176 and therefore the perspective of “infinite punishment and exclusion from the Kingdom of God .”177 After a change towards a moral disposition, Kant considers the person as a “new human being”,178 even morally another human being .179 Therefore “punishment cannot be considered appropriate to his new quality” .180 Kant also expresses this by saying, that what is due to him as the old man, cannot be “zugerechnet”,181 that is imputed or “ascribed to him as ‘punishments’”182 in his quality as the new man . And yet we have, in Kant’s religious view, “no rightful claim”183 to an imputation of a good disposition, which in reality still is incomplete, or “in mere becoming” .184 That this change is, though in its quality conceivable as radical, in its manifestation in acts only gradual,185 is what prevents a complete cut, since there is the claim of “Supreme Justice, in whose sight no one deserving of punishment can go unpunished” .186 So Kant correspondingly describes the morally new human being as someone who, in the act of changing his or her disposition, readily accepts punishment for the old, though he or she is morally another and merely physically the same .187 This is, where, according to Kant, mercy becomes relevant . It is not justice, but grace that leads to the imputation of a “surplus over the merit from works”188 of the only incomplete new disposition and thus, to the overcoming of the perspective of infinite punishment . The short look at Kant’s Religion within the Boundaries of Mere Reason shows that Kant considers it a fundamental demand of justice in the field of religion that guilt is reacted upon by punishment; but at the same time he sees a tension between this and the perspective towards an open future, which practical reason demands: The new human being is not (merely) the same as the old . Since it is the same practical reason, which argues against impunity and against a perspective of infinite punishment, we might, with Kant against Kant, see in both perspectives reasonable aspects of justice . This seems to confirm that there is a rightful claim not to be fully identified with former acts . One further discovery deserves attention: The problem Kant deals with is, that the change he treats in the discussed passage is one he conceives as one in quality, identity and responsibility, but which in every concrete case only shows as a gradual

176 177 178 179 180 181 182 183 184 185 186 187 188

Kant, R, 89; German: Rel, AA VI, 72 . Kant, R, 89; German: Rel, AA VI, 72 . Kant, R, 90; German: Rel, AA VI, 73 . Kant, Rel, AA VI, 73: “moralisch ein anderer Mensch”; similarly later: Kant, R ., 90 “morally … another human being”; German Kant, Rel, AA VI, 74 . Kant, R, 89; German: Rel, AA VI, 73 . Kant, Rel, AA VI, 75, footnote . Kant, R, 91 . Kant, R, p . 91; German: Rel, AA VI, p . 75 . Kant, R, p . 91; German: Rel, AA VI, p . 75 . Kant, R, p . 91; German: Rel, AA VI, p . 75 . Kant, R, p . 89–90; German: Rel, AA VI, p . 73 . Kant, R, p . 90; German: Rel, AA VI, p . 74 . Kant, R, p . 91; German: Rel, AA VI, p . 75 .

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change and that this tension is, what makes him discuss the problem of reduction of punishment by mercy, though explicitly “fully in accord with … justice .”189 7. conseQuences to IdentIty

of tHe

rIgHt

to

cHange

as

negatIve rIgHt related

As we have seen above (at section 6), in his treatise on religion, Kant discusses the problem of the new self-determination as one of creating a new identity and thus of whether previously committed acts can still be imputed to the present new person; yet, since he supposes this process, as far as we know from its manifestation, to be incomplete, reasons for diachronic identity prevent the new self-determination from interrupting imputation of previous acts: Imputation appears not190 to admit of degrees . This is only true, if “imputation” is used in a very specific way: If it means that a committed act is ascribed to a person . Claudia Blöser has recently191 pointed out, that Kant, in a passage of his Doctrine of Right, does admit of degrees of responsibility: Subjectively, the degree to which an action can be imputed (imputabilitas) has to be assessed by the magnitude of the obstacles that had to be overcome . – The greater the natural obstacles (of sensitivity) and the less the moral obstacle (of duty) so much the more merit is to be accounted for a good deed, as when, for example, at considerable self-sacrifice I rescue a complete stranger from great distress . On the other hand, the less the natural obstacle and the greater the obstacle from grounds of duty, so much the more is a transgression to be imputed (as culpable) . – Hence the state of mind of the subject, whether he committed the deed in a state of agitation or with cool deliberation, makes a difference in imputation, which has results .192

Blöser demonstrates that in Kant’s text on practical philosophy there is an underlying distinction between “‘imputation of the deed’ (imputatio facti)”193 and the presupposed “responsibility as accountability”194 of a person195 on the one hand and on the other hand “the second level of imputation (imputatio legis) . This is the judgement about the person’s merit or demerit”196 or “praise or blameworthiness” .197 She shows, that with regard to accountability and the first level of imputation, Kant’s theory does not admit of degrees . This is due to the fact that transcendental freedom is required in order for one to be an accountable person with a free power of choice and to be the free author of a deed . With regard to praise or blameworthiness, however, degrees are possible .198 Praise and blameworthiness might not only depend on the magnitude of obstacles that had to be overcome – the difficulty it meant for the agent – to act according to the law or vice versa on the strength of the grounds of duty that has been 189 190 191 192 193 194 195 196 197 198

Kant, R, p . 92; German: Rel, AA VI, p . 76 . Tiedemann (footnote 169), 469 . Blöser (footnote 6), 191 . Kant, MM/DR, 19–20; German: MdS/RL, AA VI, 228 . Blöser (footnote 6), 194 . Blöser (footnote 6), 195 . Blöser (footnote 6), 195 . Blöser (footnote 6), 194 . Blöser (footnote 6), 195 . Blöser (footnote 6), 206 .

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violated by the original act . Instead, other considerations might become relevant in a similar way . Respect for human dignity, as rooted in the potential and actual autonomous self-determination after the committed crime suggests that for legal purposes later acts have to be considered, at least if the punishment otherwise concerns the totality of the perspective on the convict’s future life and if otherwise relevant social acts outside of prison are not possible any more . If diachronic identity cannot at the same time be assumed and not assumed, if therefore a new socially praiseworthy self-determination cannot interrupt imputation of former acts to the convict and make the punishment altogether unjust – then it appears, that in these cases at least some gradual relevance of later accountable behavior for the overall perspective has to be claimed, if the aim of doing justice to the convict is pursued . 7.1 whaT is noT The ConsequenCe: aboliTion of leGal GuilT as CriTerion; rePlaCemenT by rehabiliTaTion and sPeCial deTerrenCe As opposed to the claims of Jean-Christophe Merle, the consequence of this reasoning cannot be to give up the guilt-principle for the determination of punishment altogether and replace it completely by an orientation toward purposes such as special deterrence and rehabilitation .199 The orientation only at purposes of punishment, if meant seriously, neither allows us to determine a fair and proportional sentence, such as a term of imprisonment, nor even to formulate a principle of proportionality between crime and punishment . Merle draws all of these consequences explicitly .200 This would lead to an even wider range of discretion and responsibility for judges and make it more difficult to recognize, criticize, and publicly discuss arbitrary decisions of courts which carry through public hearings and procedures, publicly pronounce judgements, and act as independent but public institutions .201 The question of how punishment as unilateral coercion can be justified would simply be answered by the claim to fulfil a – heteronomous – purpose or set of purposes (such as rehabilitation, individual or general deterrence) and based on often empirically vague202 predictions on the effect of coercion . This answer does not respect the autonomous end in itself: at least not regarding the former criminal as an agent, whose crime as such would not be of importance as reason for the application of coercion but only as occasion for preventive and rehabilitating measures . Justice and dignity cannot be understood merely on the basis of external purpo199 Merle (footnote 173), 59 and 62; English: 68 and 71 . 200 Merle (footnote 173), 169; English 189–190 . 201 Rainer Keil, Öffentlichkeit als rechtsphilosophisches Prinzip der Aufklärung bei Bentham und Kant: Inspiration für aktuelle rechtspolitische Fragen? In: Zeitschrift für Rechtsphilosophie 10, 1 (2012), 33 et pass . 202 Valerie Wright, Deterrence in Criminal Justice. Evaluating Certainty vs. Severity of Punishment, Washington DC, November 2010, http://www .sentencingproject .org/doc/Deterrence%20Briefing%20 .pdf [21 .8 .2015]; Bernd-Dieter Meier, Sanktionsforschung, in: Hans Joachim Schneider (ed .), Internationales Handbuch der Kriminologie, vol 1 . Grundlagen der Kriminologie, Berlin, 2007, 971 et pass .; Karl-Ludwig Kunz, Kriminologie, 6th edition, Bern et . alt ., 2011, 277 et pass ., §§ 23–26; Michael Bock, Prävention und Empirie – Über das Verhältnis von Strafzwecken und Erfahrungswissen, JuS 1994, 93 et pass .; Dieter Dölling, Generalprävention durch Strafrecht: Realität oder Illusion? ZStW 102 (1990), 20 uses the term “Mosaikstücke” (pieces of mosaic) .

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ses – the structure and mode of dealing with the crime, the person who committed it and the victims must be part of the consideration if this person is to be respected . Legal certainty would otherwise be given up in favor of the balancing of extremely vague factual predictions and relative interests and values . 7.2 ConverGenCe of lookinG aT PoTenTial auTonomy and The PurPose of rehabiliTaTion Yet, this harsh statement based on a radical difference in principle should not be overemphasized with view to its consequences . It is not only the fundamentally humanitarian concern, which Merle’s proposal and the approach of this (admittedly very much less thorough and less daring) paper share . There is a convergence which becomes relevant and concrete when we have to deal with the question of how to treat convicted criminals sentenced to terms of imprisonment . 7 .2 .1 Uncertainty The legal-guilt-principle serves as a basis on which we can search for appropriate criteria for determining the kind and severity of punishment . If it is now recognized as relevant that the convict, even if convicted of such a severe crime as murder, is still more than just a convict; that she or he is also an agent, still capable of selfdetermination and new self-identification; and that this is a reason to argue for a somewhat open future, then this is a merely negative demand . While it is clear, that it does limit the range of the relevance of the guilt-principle, it is not clear exactly how and to what extent it does so . What can be said clearly is that a punishment that takes away any chance of ever regaining liberty has a strong moral argument against it: As opposed to the normally limited punishment for a usually limited criminal act (for example, theft, robbery or burglary) the most severe felonies and the following life imprisonment or even more evidently the death penalty create a situation where the punishment cannot be separated any more from the total life perspective of the convict . Therefore, with the formulation of a sentence which leads to the death penalty, to death row, or to life imprisonment without a chance of gaining liberty again, the perspective of a future with socially significant acts outside of jail is taken away, not only a criminal act, but a human being as such is being judged . Furthermore, a human life is treated as if it had a measurable value – a price203 – not as subject of the absolute dignity of a human living thing: as the point, where moral self-determination may take place and come into existence . Therefore, it seems clear that death penalty or provisions, which provide for life imprisonment as unavoidable and irreducible consequence of certain crimes, are not compatible with this aspect of dignity . But it is not evident how more concretely, this reason is to be harmonized with the other claim, according to which kind and severity of punishment have to be based on guilt, and should be as certain as possible, if this suggests life imprisonment . 203 Compare supra at footnote 161 .

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7 .2 .1 .1 Human Dignity and Merely Potential Self-Determination – Absolute Limit to Prison Terms? With a view to the most serious crimes, one could in general think of two alternatives: either of an absolute limit of terms of imprisonment or, secondly, of the possibility of life imprisonment and a later check with the possibility of a shorter term . The first of the two consequences – absolute limitation of each term204 – is already well-known from such countries as Norway, Slovenia, Croatia, Spain and Portugal .205 It would mark the distinction between the criminal act and punishment on the one side and the responsible person on the other . This way of dealing with the problem would thus emphasize, that dignity is inalienable, (partially) rooted in mere potentiality, thus (partially) independent from merit and that the person’s identity is more than its past criminal act . As opposed to conditional early release (below at Section 7 .2 .1 .2), planning of a future life would be possible .206 The expressive function of life sentencing could not be fulfilled as well as with life sentence combined with conditional early release (below at Section 7 .2 .1 .2) . Also, it would then be difficult to find a time limit, which is not exposed to the objection of being arbitrary . But in Germany, the present practice of a conditional early release after fifteen years is exposed to the latter objection, too .207 Some authors claim that the relation between the crime and the perpetrator has dissolved after fifteen years of imprisonment . After this time of exclusion from society he or she is supposed to be considered another human being in the view of potential victims: that of relatives and loved ones of the victim as well as that of the perpetrator himself or herself .208 Such a claim neither allows generalization nor the naming of an exact term . Yet it should, in its substance, not be dismissed as far-fetched altogether . Its psychological and sociological elements should be investigated more thoroughly, its suggestion be taken seriously in practical decisions . On the other side, the problem that detentions for the purpose of incapacitation may become more common (see below at Section d), if an absolute limit is introduced, should be considered . 7 .2 .1 .2 Human Dignity and Life Imprisonment with Regular Checks, which can Lead to a Shorter Term The other possibility – of life imprisonment combined with later checks, which could lead to a shorter term that actually has to be served – would instead affirm the serious responsibility and the relevance, which is connected with the potential to 204 Tonio Walter, supra footnote 15; Ulrich Baltzer, supra footnote 15 . 205 Gabriele Kett-Straub, supra note 2 at p . 70; more recently the European Court of Human Rights pointed out, that in these countries life imprisonment does not exist: “Andorra, Bosnia and Herzegovina, Croatia, Montenegro, Norway, Portugal, San Marino, Serbia and Spain . The maximum term of imprisonment in these countries ranges from twenty-one years in Norway to forty-five years in Bosnia and Herzegovina” (ECtHR – grand chamber – judgement of July 9, 2013, Applications nos . 66069/09, 130/10 and 3896/10 – Vinter et . alt . versus United Kingdom –, paragraphs 68) . 206 Gabriele Kett-Straub, supra footnote 1 at p . 337 . 207 Gabriele Kett-Straub, supra footnote 1 at pp . 161–162 . 208 Axel Montenbruck, Strafrechtsphilosophie, 3rd edition 2013, pp . 64–69, http://edocs .fu-berlin . de/docs/servlets/MCRFileNodeServlet/FUDOCS_derivate_000000002288/21 .01 .2013–2 .pdf?hosts (June 1, 2015); compare Gabriele Kett-Straub, supra note 2 at p . 161 .

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self-determination: If it is actualized – not necessarily as moral disposition, but at least by imputable acts in conformity with legal expectancies – this can be expected to be perceived and consequences may follow . This approach would closely knit the dimensions of dignity – capacity and realization of self-determination in accordance with general lawful freedom – together . It would make both of them relevant: the potential through a perspective, which is always kept open procedurally, the importance of the concrete realization as substantially important for regaining external freedom outside of prison again . Certainly both approaches allow a combination . For example, an absolute limit to imprisonment terms (for one act) could be provided for and yet the time of actual service would additionally depend on the result of checks . 7 .2 .1 .3 Troublesome Cases Difficult cases are certainly possible . Perhaps a very old and seriously ill man, full of long grown resentment, has, as he knows, a life expectancy of only a few months or weeks . Yet he is still lucid and able to act responsibly . In this state, he poisons his supposed enemy, who, consequently, has to die a painful and slow but certain death . In such a case, the reason for the perspective of a time after the prison term might be weaker than the arguments for punishment for the only recent felony,209 although he might not have to serve much of it anyway anymore; once the circumstances of disease force us to consider punishment as cruel and degrading, the weight of the counter-reason becomes stronger and this has to be considered in the process of modifying or ending the execution of the sentence . 7.2.1.4 PrevenTive deTenTion and inCaPaCiTaTion (e. G. German “siCherunGsverwahrunG”) All of this reasoning does not apply equally to those cases, wherein courts suppose a sufficiently concrete danger arising from the perpetrator for justifying further detention beyond what would be in proportion to guilt . This is for example provided for by the German Criminal Code in cases of some very serious crimes if the “propensity to commit serious offences” leads to the conclusion that the perpetrator “poses a danger to the general public” .210 Systematically, this would not be a punishment but a measure of incapacitation . The criminal act itself does not give the reason 209 Compare BVerfGE 64, 261, 281 (1983); BVerfGE 72, 105, 117 (1986) . 210 Section 66 subsection 1 phrase 1 of the German Criminal Code has this wording: “Detention for the purpose of incapacitation (1) The court shall make an incapacitation order in addition to the term of imprisonment if 1 . a person has been sentenced for an intentional offence to a term of imprisonment of not less than two years, and a) the offence was directed against life or limb, personal freedom or sexual self-determination, b) the offence falls under Chapters One, Seven, Twenty or Twenty-Eight of the Special Part, or under the Code of International Criminal Law or the Drugs Act, and the maximum sentence threatened is no less than ten years’ imprisonment, or c) violates section 145a insofar as the supervision order was made on the basis of an offence under a) or b) above, or if it violates § 323a insofar as the offence committed in the drunken state was one of those mentioned under a) or b) above .

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for the justification of kind and extent of coercion, but rather the occasion for the closer look at causes of future dangers . These dangers are then taken to be the justifying reason . Within a Kantian system of thought, such a further detention beyond what has been covered by guilt would not be punishment either . If the danger were empirically proven on a sound basis then a justification would be conceivable as an instance of coercion as the “hindering of a hindrance to freedom consistent with freedom in accordance with universal laws .”211 (See discussion above, in Section 5 .1) . Such measures are based on an extreme uncertainty about the empirical basis212 of predictions concerning danger and thus of the determination of the proper duration of custody connected with such measures . This uncertainty and the only heteronomous purposes leading to custody – very similar to the consequences of the theory on punishment we rejected above under Section 7 .1 – raise doubts concerning its compatibility with demands to respect human dignity .213 Unlimited and irreducible imprisonment merely on the basis of assumed danger clearly makes the concerned person an object of state treatment . Therefore, as Tatjana Hörnle has convincingly pointed out, sufficient precaution has to be taken that this person is not degraded to a mere object .214 This makes it especially urgent to have legal – procedural – provisions demanding regular and serious checks,215 in the course of which the concerned person is attentively heard by the court and thus at least made subject of the procedure . Offers for chances of rehabilitation and preparation for a possible responsible life in freedom are necessary .216 Which further – substantial – requirements have to be fulfilled for human dignity to be respected, especially whether responsibility of the concerned person for the remaining danger is of any importance,217 needs careful consideration . If a fully responsible perpetrator is concerned,

211 212 213 214 215 216 217

2 . the offender had been convicted for offences under No . 1 above, committed before the present offence, at least twice to a term of imprisonment of no less than one year each, 3 . the offender had for at least one of these offences before the present offence served at least two years in prison or under a custodial measure of rehabilitation and incapacitation, and 4 . a comprehensive evaluation at the time of the present conviction of the convicted person and his offences reveals that, due to his propensity to commit serious offences, particularly of a kind resulting in serious emotional trauma or physical injury to the victim, he poses a danger to the general public .“ The Criminal Code in the version promulgated on 13 November 1998, Federal Law Gazette [Bundesgesetzblatt] I p . 3322, last amended by Article 1 of the Law of 24 September 2013, Federal Law Gazette I p . 3671 and with the text of Article 6 (18) of the Law of 10 October 2013, Federal Law Gazette I p 3799 is quoted here according to the translation by Bohlander published by the German Federal Ministry of Justice at: http://www .gesetze-im-internet .de/englisch_stgb/ englisch_stgb .html#p0422 [29 .5 .2015] Kant, MM/DR, 25; German: MdS/RL, AA VI, 231 . Kunz (footnote 202), 315–316, § 27; Hartmut-Michael Weber, Die Abschaffung der lebenslangen Freiheitsstrafe, Baden-Baden, 1999, 168 et pass ., recognized in BVerfGE 109, 133, 166 (2004) . Thilo Weichert, Sicherungsverwahrung – verfassungsgemäß? StV 1989, 265 Hörnle (footnote 1), 131 . Compare for the requirements to be fulfilled for the compatibility of detention for the purpose of incapacitation with respect to human dignity according to German federal constitutional law BVerfGE 109, 133, 152 (2004) . BVerfGE 109, 133, 151 (2004); BVerfG, Judgment of 04 May 2011–2 BvR 2365/09, MN 108 . Hörnle (footnote 1), 132; doubts expressed in the following discussion by Frisch, loc . cit . 144 .

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the legislator might think about punishing with a high, but proportional punishment, which can later be drastically reduced, rather than using preventive detention . This and experiences in Spain, where after the abolition of life term imprisonment detention for the purpose of incapacitation supposedly has become quite common218 might speak against an absolute time limit for imprisonment terms so that there is flexibility for cases of extreme legal guilt with a connected reason for the assumption of danger of further extreme crimes . Quite different are, it seems to me, both normative and empirical questions which arise if the danger is not imputed to the perpetrator but supposed to be caused by a disease or mental disorder beyond the reach of the person who is assumed to be dangerous . In any of these cases damage to the integrity of the person has to be prevented,219 possibilities of rehabilitation offered, where feasible . 7 .2 .2 Rehabilitation and Potential to Self-Determination Brainwashing or a similar kind of treatment, which would prevent the prisoner from critically thinking and deciding about participation in rehabilitation measures, would not be compatible with human dignity220 based on autonomy . But that the possibility of rehabilitation is opened up with adequate attention and measures is an almost necessary consequence of the Kantian idea of humanity or human dignity,221 according to which the convicted perpetrator is to be considered as capable of relevant self-determination, which Merle222 also emphasizes . Merle’s reasoning, that rehabilitation is an “intention inherent in the goal of preserving the humanity in every person”,223 though still apparently heteronomous in its formulation is very close to the idea of the respect for the end in itself by offering adequate means for the prisoner to work herself or himself through to a more open future in society outside of prison . The lack of a concrete perspective of effective rehabilitation is what causes part of the horrors of long term imprisonment, especially of life imprisonment, where it is still applied as such, and adds to those of the death row in American prisons; it is closely connected with health problems suspected or proven to be caused by long-term imprisonment without meaningful rehabilitation measures .224 It is this lack, which is addressed both by the emphasis on the relation between dignity and potential which is postulated here, and by Merle’s purpose of rehabilitation – and by the limits both of them put on the justifiability of a long term imprisonment .

218 219 220 221

Kett-Straub (footnote 1), 70 . Tiedemann (footnote 169), 470 Tiedemann (footnote 169), 466 . Germany’s Federal Constitutional Court, in its decision BVerfGE 64, 261, 276 accordingly bases social rehabilitation as normatively demanded purpose of punishment among others on Article 1 section of the German Basic Law: human dignity . 222 Merle (footnote 173), 52–61 and 71; English: 61–71 . 223 Merle (footnote 173), 59; English: 68 . 224 BVerfGE 117, 71, 91 (2006)

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7.3 CaPiTal PunishmenT: relaTion To oTher relevanT arGumenTs The reasons that have been put forward here stand beside other reasons in the discussion about life sentences and also the death penalty . This article mainly focusses on one specific aspect of human dignity among several within225 the Kantian system of moral philosophy and makes it relevant for some questions concerning the punishment of life imprisonment . It does not claim to add a fundamentally new argument to the debate on death penalty or to even come close to anything like a comprehensive discussion of it . Within such a debate, though, it clearly stands in the greater context of arguments against this kind of punishment and against old and new attempts of its justification .226 The discussion on the death penalty knows other,227 much more obvious and probably stronger reasons, which have often been put forth: That judicial errors can under no circumstance even partially be made undone, yet at the same time – even in the most perfect judiciary system – not absolutely be avoided, is a problem, that speaks against the capital punishment, whereas the damage other punishments can cause due to errors and bias can be severe, but does not necessarily lead to a total loss of human existence . The assumption that the human being as the moral source of legitimacy of any law cannot with legitimacy be killed, seems much less farfetched and much stronger to me than as what it might appear at first sight . Kant did not accept it . Rather, in, as it appears to me, one of the weakest passages of his work, he refuted it on grounds that contradict more basic assumptions: The separation – “another person”228 – of the criminal homo phaenomenon governed by natural law from the law-giving morally self-determined homo noumenon he uses as a basis for his reasoning would not only make imputation impossible229 altogether .230 In other text passages Kant explicitly and convincingly treats the two not as separate, but as

225 Compare for other aspects supra footnote 169 . 226 Compare for such a new attempt Matthew H . Kramer, The Purgative Rationale for the Death Penalty: Replies to Steiker and Danaher, Criminal Law and Philosophy, 2015, 379, DOI 10 .1007/ s11572-013-9284-z [2 .6 .2015]; for a critique John Danaher, Kramer’s Purgative Rationale for Capital Punishment: A Critique, Criminal Law and Philosophy 2015, 225, DOI 10 .1007/s11572013-9251-8 [2 .6 .2015] and Carol S . Streiker, below footnote 227 . 227 Compare e . g . Carol S . Streiker’s review: Can/Should We Purge Evil Through Capital Punishment? Of the book Matthew H . Kramer: The Ethics of Capital Punishment: A Philosophical Investigation of Evil and its Consequences . Oxford University Press, New York, 2011, Criminal Law and Philosophy 2015, 367 DOI 10 .1007/s11572-013-9250-9 [2 .6 .2015] 228 Kant, MM/DR, 108; German: MdS/RL, AA VI, 335: “eine andere Person” . 229 Kant, MM/DR, 19: “Imputation (imputatio) in the moral sense is the judgement by which someone is regarded as the author (causa libera) of an action”; German: MdS/RL, AA VI, 227 . Kant, MM/DR, 16: “An action is called a deed insofar as it comes under obligatory laws and hence insofar as the subject, in doing so, is considered in terms of the freedom of his choice . By such an action the agent is regarded as the author of its effect, and this, together with the action itself, can be imputed to him, if one is previously acquainted with the law by virtue of which an obligation rests on these”; German: MdS/RL, AA VI, 223 . Compare also Kant, KrV, AA III, 375–376 for the imputation of a lie . 230 Compare Haas (footnote 6) .

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distinct aspects231 of the same232 person . The living unity of the unique finite being gifted with reason cannot be split up in reality as it can epistemologically;233 and reaching through to the moral person himself or herself cannot be justifiable within a “philosophy of right as freedom realized in life, since it would destroy the fundamental condition of all legal interaction” .234 Also it has to be doubted, whether there has ever been such a thing as a capital punishment which is not cruel and inhumane .235 These and many other reasons have their own right . The central point of the argument put forth in this paper is, that punishment – even if it is not seen as mere instrument of deterrence or rehabilitation, but regarded as an act of justice done to a human being – always relates to the past and to the future, both of the (former) perpetrator and the present human with the civil society he or she belongs to . It is difficult to grasp, how this should be possible, if the republic of citizens perpetuates the relevance of the crime – as divorce between it and the (former) criminal – by killing him or her with premeditation by a court . 8. summary Tracing back Immanuel Kant’s fragmentary theory of just punishment to its roots in his moral philosophy leads to respect for human dignity as the core idea . Being associated with autonomy, dignity demands not to reduce humans to mere means for other ends, including such ends as individual or general deterrence . In criminal law, this does not only have to happen by limiting punishment – as reaction to imputable acts – in kind and degree by proportionality to this act . But also, the human convicted of having committed a crime who is still capable of self-determination has to be treated in such a manner that he or she is not reduced to passivity and so to speak taken as a merely former person . The relevance of his or her present decisions and openness of a perspective of in liberty is a demand not only of pragmatism or of grace, but of justice based on the same reason as the legal-guilt principle . While punishment necessarily is based on imputation and thus on the assumption 231 Blöser (footnote 6), 190 . 232 Kant, MM/DR, 18: “regarded as”; German: MdS/RL, AA VI, 226: “als … betrachtet” . Before this already in the Second Critique: Kant, CPr, p . 210: “one and the same acting being, as an appearance (even to his own inner sense) has a causality in the world of sense that always conforms to the mechanism of nature, but with respect to the same events, so far as the acting person regards himself at the same time as noumenon (as pure intelligence in an existence not dependent on the condition of time) he can contain a principle by which that causality acting according to laws of nature is determined but which is itself free from all laws of nature .” German: KpV, V, 114: “ein und dasselbe handelnde Wesen als Erscheinung (selbst vor seinem eignen innern Sinne) eine Causalität in der Sinnenwelt hat, die jederzeit dem Naturmechanism gemäß ist, in Ansehung derselben Begebenheit aber, sofern sich die handelnde Person zugleich als Noumenon betrachtet (als reine Intelligenz, in seinem nicht der Zeit nach bestimmbaren Dasein), einen Bestimmungsgrund jener Causalität nach Naturgesetzen, der selbst von allem Naturgesetze frei ist, enthalten könne .“ 233 Zaczyk (footnote 49), 254 . 234 “Damit ist gewiss, dass die Todesstrafe nach einer Philosophie des Rechts als im Leben verwirklichter Freiheit nicht zu rechtfertigen ist, denn sie vernichtet die Grundbedingung allen rechtlichen Umgangs überhaupt” (Zaczyk (footnote 49), 84) . 235 Tiedemann (footnote 169), 342 .

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of diachronic identity, respect for the remaining autonomy and possibility of a new self-identification weakens this claim by the counterclaim, not to reduce a human being and his or her perspective completely to the consequences of her or his past act . Both reasons have to be harmonized, if doing justice to the concerned persons is aimed at . This harmonization is difficult and not directly possible, since imputation does not seem to admit of degrees .236 At first sight, there can only be identity over time and imputation of the past act or the impossibility of imputation and thus no (more) punishment; yet responsibility in the sense of merit or demerit (praise- or blameworthiness) does admit of degrees . Here the appreciation of the human capacity to autonomy and post crime behavior becomes relevant . The reason for a proportional punishment and the argument which weakens it more and more over time can only be represented indirectly by having consequences in kind and degree of the penalty or of its execution . Irreducible life imprisonment is incompatible with this . Strong reasons for absolute limits to imprisonment have been found in the Kantian argumentation as reconstructed here . On the other hand the alleged tendency in countries with absolute maximum prison terms to switch towards preventive detention and incapacitation as well as the emphasis on the remaining serious responsibility of the prisoner for her or his future are serious considerations that might rather speak for the possibility of life sentences with as clearly as possible designed paths leading to checks and the possibility of reductions of the prison term . This decision cannot be taken without additional pragmatic and empirical input . Rehabilitation – if realized by offers for preparing for life in freedom (not, for instance, compulsory measures of brainwashing) – is an aim which is strongly supported by the claim of being respected in dignity as capable of autonomy; this also concerns preventive detention . The death penalty totally reduces the convict to the consequence of his horrible past criminal act . It completely destroys the openness to the future that is demanded as a minimum of respect for his post-crime human dignity as person who is, in principle, able to reasonable self-determination; this supports other arguments against the legitimacy of this form of punishment . deutscHe Zusammenfassung Das Bundesverfassungsgericht hat entschieden, dass die lebenslange Freiheitsstrafe nur dann mit der Menschenwürde vereinbar ist, wenn Verurteilte die Chance haben, der Freiheit wieder teilhaftig zu werden; der Europäische Gerichtshof für Menschenrechte hat ähnlich judiziert . Manche Autoren gehen weiter und fordern die Abschaffung der lebenslangen Freiheitsstrafe . Dieses Paper prüft philosophische Gründe der Gerechtigkeit, die mit solchen Forderungen verbunden sind . Es plädiert für ein Recht, sich zu ändern und die eigene Identität zu bestimmen . Während eine die Zeit überdauernde diachronische Identität und die gegenwärtige Zurechnung vergangener Handlungen zu einer Person notwendige Voraussetzung für die Bestimmung verhältnismäßiger Strafen ist, argumentiert dieses Paper, dass diese Annahme zwar ihre moralische Berechtigung hat – aber eine begrenzte . Dies führt zu einer Argumentation für eine Begrenzung von Haftstrafen . Trotz ihrer Bedeutung für eine angemes236 Tiedemann (footnote 169), 469 .

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sene Beurteilung von Haftstrafen und ihrer Dauer wird dieses Paper nicht psychische Veränderungen während der Dauer der Haft untersuchen . Sein Interesse gilt spezifischer der gerechtigkeitstheoretischen und moralischen Bedeutung von Identität und Zeit für die Bestimmung von Haftstrafen . Die Untersuchung stützt sich auf die fragmentarische Straftheorie Immanuel Kants, wie er sie in seiner praktischen Philosophie entwickelt hat . Dabei werde ich zunächst einige seiner eher rigoristischen Aussagen zu Strafen in den Blick nehmen, um hiernach zur Rekonstruktion der Gründe, auf welche Kant seine Lehre stützte, voranzuschreiten . Mehrere Probleme werden hierfür diskutiert . Hierzu gehören die Fragen, ob Zwang im Allgemeinen und Strafe im Besonderen überhaupt moralisch gerechtfertigt werden können . Hierauf aufbauend geht es um die Frage, welche Gründe ein Urteil über die Bemessung einer konkreten Strafe in einem bestimmten Fall determinieren sollen . Sobald die Frage nach der angemessenen Strafe einstweilen mit Tatproportionalität auf der Basis individuellen Verschuldens beantwortet ist, muss deren Grundlage in der Menschenwürde genauer betrachtet werden . Wenn der Achtungsanspruch menschlicher Würde, der in moralischer Autonomie wurzelt, nicht allein mit vergangenen Handlungen, sondern auch mit dem bleibenden Potential des Menschen zur Selbstbestimmung assoziiert wird, dann legt dies nahe, ein Recht, sich zu ändern anzunehmen und auf dieses Recht Begrenzungen des Maßstabes der Tatproportionalität zu stützen . Die problematische Frage, was hieraus für die lebenslange Freiheitsstrafe und für Sicherungsverwahrung folgt, wird erörtert . Die weitere Folgerung, dass eine solche Argumentation sich schwerlich mit der Todesstrafe vereinbaren lässt, wird am Ende kurz angedeutet .

ZhanG Tu, leiden Is

tHe

rIgHt

to

IdentIty

a

fundamental Human rIgHt?*

absTraCT: Recently, the Inter-American Court of Human Rights has verified an unwritten right to identity in spite of lack of codification in any international conventions . The central research question of this article is to explore whether the right to identity is conceptually a fundamental human right . Regarding the understanding of identity, this article engages in the interpretation of Charles Taylor’s account of identity and recognition for a deeper examination of the concept of identity than that of the court’s reasoning . The article further considers the research question in light of two standards of human rights as two tests . One is a humanity ground which fundamentally takes human rights as moral right; the other is a political conception of human rights, which understands human rights in view of our international human rights practice .

1. case law

of

Inter-amerIcan court

of

Human rIgHts

In 2014, the Inter-American Court of Human Rights released its opinion in the case of Expelled Dominican and Haitian Persons vs. The Dominican Republic, in which the Court officially confirmed the Right to Identity . This case was brought by 28 individuals, who were both Haitians and Dominicans of Haitian descent, 15 of whom were children, alleging that the Dominican Republic was responsible for the arbitrary arrest and mass expulsion of Haitians and Dominicans of Haitian descent .1 They claimed that the Dominican Republic had violated their rights to nationality by issuing a retroactive judgment declaring that people born in the Dominican Republic were not citizens if their parents were foreigners . The petitioners also alleged the Dominican Republic officials had destroyed their identity documents and refused to register the birth of individuals of Haitian descent who were born in the Dominican Republic .2 The Court decided the Dominican Republic violated the rights to juridical personality, a name, a nationality, an identity, equal protection before the law, personal liberty, privacy, a fair trial, judicial protection, freedom of movement and residence, the obligation of non-discrimination, rights of the child, and rights of the family .3 Among all the verdicts the court decided, it is worth noting that there is only one right, the right to identity, which cannot be found in the American Convention on Human Rights (nor can it be found in other international conventions) . The Court had officially developed such an unwritten human right through case law .

*

1 2 3

The basic idea of this essay was first presented to the workshop on The Future of Human Rights: History, Norms & Institutions, Utrecht University, May 27th – 29th 2015 . I thank the participants at that workshop for their comments . I benefited enormously from Paul Cliteur’s insightful suggestions . Dominicanas y Haitianas Expulsadas v. República Dominicana (2014), Excepciones Preliminares, Fondo, Reparaciones y Costas, Inter-Am . Ct . H .R . (Series C) No .282, para . 155–158, (Aug . 28, 2014) . Ibid . Ibid ., para . 265–268, 364–368, 381–389, 439–441 .

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It was not the first time that the Inter-American Court of Human Rights wrestled with the decision of claiming such a particular unwritten right . In the case of the Serrano-Cruz Sisters v. El Salvador (2005), two children, Ernestina and Erlinda Serrano Cruz, seven and three years old respectively, were captured by soldiers of the Salvadoran Army during a military operation in 1982 . In 1993, their mother filed a complaint arising from the sisters’ disappearance .4 The Court found that the state of El Salvador had violated their right to a hearing within reasonable time by a competent and independent tribunal, as well as their right to judicial protection, and their right to humane treatment, but did not violate rights of the family, right to a name, rights of the child and right to life .5 The dissenting Judge, A .A Cançado Trindade, lamented that the Court lost an opportunity to develop case law by avoiding the question of the right to identity .6 Judge Trindade argued there is no way in which the right to identity can be disassociated from the legal personality of the individual as a subject of domestic and international law . Judge Trindade’s arguments consist of legal delineations of such a right and a philosophical exploration of the very concept of “identity” . Judge Trindade takes the meaning and scope of the right to identity as something that transcends subjective rights . Identity expresses what is most personal in each human being by extending to one’s relationships with one’s fellow human beings and with the outside world . “The right to identity presumes the right to know personal and family information, and to have access to this to satisfy an existential need and safeguard individual rights . Moreover, the right also has an important cultural content, and is essential for relationships between each individual and the rest of society, and even for his understanding of the outside world and one’s place in it . One is not a person without a specific identity . One is constituted as a being that includes his supreme purpose within oneself, and realizes this throughout his life, under one’s own responsibility…The right to identity reinforces the protection of human rights, protecting each individual against the denigration or violation of his ‘personal truth’ . The right to identity, which encompasses the attributes and characteristics that individualize each human being, seeks to ensure that the individual is faithfully represented in his projection towards his social environment and the outside world .”7

Precisely in this sense, the right to identity has a direct impact on an individual’s legal personality and thus expands the protection of human beings and exceeds the right to judicial personality within the sphere of law . Even if the right to identity is not expressly established in the American Convention on Human Rights, Judge Trindade believes its material content is still implied in and can be inferred from, other related articles, with respect to specific cases . For instance, regarding this case, Article 3 (right to juridical personality), 7 (right to personal liberty), 12 (freedom of conscience and religion), 13 (freedom of thought and expression), 20 (right to nationality) 17 (rights of the family), and Article 18 (rights to a name) .8 4 5 6 7 8

The Serrano Cruz Sisters v. El Salvador (2005), Preliminary Objections, Inter-Am . Ct . H .R . (Series C) No . 118, para . 2, (Nov . 23, 2004) . The Serrano Cruz Sisters v. El Salvador (2005), Interpretation of the Judgment of Merits, Reparations and Costs, Inter-Am . Ct . H .R . (Series C) No . 131, para . 1, (Sept . 9, 2005) . The Serrano Cruz Sisters v. El Salvador (2005), Interpretation of Merits, Separate Dissenting Opinion of Judge Antônio Augusto Cançado Trindade, Inter-Am . Ct . H .R . (ser . C) No . 120, para . 13, (Sept . 9, 2005) . Ibid ., para . 14–15, 19 . Ibid ., para . 20–24 .

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There is parallelism between the rationale of Judge Trindade’s dissenting opinion and the Court’s decision in the 2014 case . In the case of Expelled Dominican and Haitian Persons vs. The Dominican Republic (2014), the court did exactly what Judge Trindade suggested ten years ago, claiming the right to identity in light of Articles 3, 17, 18, and 20 . The Court held that the right to nationality and the right to name are part of what has been called the right to identity . The recognition of the identity of persons is one of the means through which it facilitates the exercise of rights to legal personality, name, nationality, registration in the registry office, and family relationships, among other rights recognized in international instruments such as the Declaración Americana de los Derechos y Deberes del Hombre and the American Convention .9 The Court understands the right to identity as the set of attributes and features that allow for the identification of the person in society and, in this sense, includes several other rights under the subject of rights in question and the circumstances of the case . The Court implies that the right to identity is indispensable in maintaining one’s personhood and dignity, “…the lack of recognition of identity can mean that a person has no legal proof of their existence, preventing the full exercise of their civil, political, economic, social and cultural rights… the right to identity is inseparable from the attributes and human dignity; therefore it is a fundamental human right, towards everyone as an expression of a collective interest of the international community a whole, from which no derogation or suspension in cases provided for by the Convention .”10

As it is shown now, the right to identity is evidently not equivalent to the right to juridical personality . Both Judge Trindade’s dissenting opinion in the 2005 case, and the court’s majority decision in the 2014 case, explicitly distinguish between the right to identity and the right to juridical personality . Judge Trindade claimed the right to identity extends the protection of human persons beyond the rights to juridical personality, which have already been laid down in laws, because the juridical personality cannot suffice to express what identity manifests in each human being . The Court’s majority opinion in the 2014 case recognized identity as an umbrella concept for all personal information and attributions and, thus, the right to juridical personality, name, nationality, and family, all constitute the right to identity, making the right to identity concrete . The fact that Judge Trindade’s dissenting opinion concerning the right to identity in the 2005 case had become the court’s ruling reason in the 2014 case demonstrates the increasing recognition of the importance of the right to identity . However, the particular concept of identity, and the claim of such a right, is not without doubts . Unlike concepts with clear definitions and denotations such as nationality, name, family or juridical personality, identity is a vague concept . If it cannot be identified with legal personality, what does the concept of identity possibly entail? How does one understand the pertinence of identity in political and legal discourses? With regards to the right talk of identity, the vagueness is even graver . Is the claim of the right to identity justified at all? Can we claim a right to something as long as it significantly matters to us? I will assume that it is justifiable to claim such 9 10

Dominicanas y Haitianas Expulsadas v. República Dominicana (2014), Excepciones Preliminares, Fondo, Reparaciones y Costas, Inter-Am . Ct . H .R . (Series C) No .282, para . 267 (Aug . 28, 2014) . Ibid .

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a right for my purpose, which is the question we are facing: conceptually can we claim the right to identity as a human right? Are there any master standards or grounds to determine which type of right can be codified as a human right? Does the right to identity conform to any of these standards or grounds? If the right to identity is not a human right conceptually, did the Court simply tolerate such a right? What is the best way to address the right to identity? 2. IdentIty

and

recognItIon

In the past decade, the increasingly expansive claim of the right to identity has made us ponder questions associated with the term identity . The interpretation that the Inter-American Court of Human Rights has offered is parallel to Charles Taylor’s theoretical narrative of identity . According to the Court, the social embeddedness, and closely intertwined relationship between each individual and his outside society, illustrates the essential content of identity . This social embeddedness is also what Taylor argues is a matter of identity, which is the contextual limits to the imagination of the self and of the ways in which we are able to think or imagine the whole of society .11 Taylor argues, from the standpoint of the individual’s sense of self, that it is impossible to imagine oneself outside of a certain horizon . Moreover, our most important actions are those of society as a whole . Charles Taylor, as one of the most important thinkers in this era, has provided a vitally significant and eloquent account of identity in his works . Taylor has developed a comprehensive theoretical structure of his own, ranging from metaphysics, epistemology, moral philosophy and political philosophy . One motif that runs throughout his works and conjoins them together is what it means to be a human agent, a person, or a self . His utmost concern is how to become a good person and how to live a good life, which he thinks has been overlooked by moral philosophy . While the sole focal on monological selfhood makes the exploration of identity only relevant in metaphysics and ethics, the fundamental dialogical nature of human life brings out the concept of “recognition”, by which the pertinence of identity has spread to political philosophy . According to Taylor, the contemporary politics has witnessed an increasing demand for recognition of identities of some minor groups . He thinks this trend is justified inasmuch as people’s identity is partly shaped by recognition or the absence of recognition . A person or group of people can suffer oppression and even feel reduced from personhood due to a lack of recognition or misrecognition .12

11 12

See Charles Taylor, West Secularity, in: Craig Calhoun / Mark Juergensmeyer / Jonathan Van Antwerpen (ed .), Rethinking Secularism, Oxford, 2011, 49 . See Charles Taylor, The Politics of Recognition, in: Amy Gutmann (ed .), Multiculturalism: Examining the Politics of Recognition, Princeton, 1994, 25 .

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2.1 from idenTiTy To reCoGniTion Taylor does not explicitly distinguish identity from personhood in his works, nevertheless he does not use these terms interchangeably .13 Among all of his works, Taylor has offered rich, complex, and also quite dispensed, accounts of selfhood and identity . For Taylor, selfhood or personhood is mainly what distinguishes humans from other beings like animals, while identity is a feature or the substantive content of a selfhood . In a nutshell, while the concept of personhood aims to capture what distinguishes human beings from other beings, identity, which is common to all humans, mainly answers questions like “who I am”, “who is she”, and “who are they” . In grasping the defining feature of personhood, Taylor carefully distinguishes the terms “personhood” and “agent” . As for him, being an agent is a necessary, but not sufficient, condition of being a person . Animals also exercise agency insofar as they devise ways to realize their desires and achieve their ends . However, in contrast with animals which also have desires and exercisability, human beings have a second-order desire of their original desires, namely humans have the capacity to reflect and evaluate their original or what he called first-order desires qualitatively not just quantitatively, to see whether those first-order desires are worth realizing or not . In short, the ability to make qualitative discriminations among one’s desires and goals is what intrinsically distinguishes human beings from animals . Later, Taylor entitles this capacity “strong evaluation”, namely recognizing some goods are qualitatively higher than others, which, according to Taylor, partly constitutes a human being’s moral identity . This capacity for strong evaluation is also connected with another important concept, “purpose”, or humans’ goals for their lives . And the important difference between humans and animals is also a matter of our recognizing certain goals .14 This point is inseparable from Taylor’s teleological philosophical basis .15 To have a purpose designates that one desires a particular outcome and strives or acts to achieve it .16 In The Source of the Self, by Taylor, the process of achie13

14 15

16

Ruth Abbey thinks Taylor uses selfhood, personhood and identity interchangeably without too much concern of their terminological exactitudes as long as these terms all relate to what it is to be human . See Ruth Abbey, Charles Taylor, Teddington, 2000, 57 . This judgment of Taylor, as far as I see, is plainly mistaken . Truly indeed Taylor uses these terms all in connection with the idea of human agency, however, even lack of specific explanation from Taylor himself (which is indeed a problem of Taylor’s account), the differences of these terms are very significant and fairly conspicuous . For example, in The Sources of the Self: The Making of the Modern Identity, Cambridge (Mass .), 1989, Taylor once said on page 32, “where we speak of people as selves, meaning that they are beings of the requisite depth and complexity to have an identity in the above sense…”, and on page 33 “…the notion of self which connects it to our need for identity…”, and one page later, “what I am as a self, my identity, is essentially defined by the way things have significance for me” . It is conceded that sometimes Taylor uses selfhood in the sense he uses identity, but never conversely so . Charles Taylor, The Concept of A Person, in: id ., Philosophical Papers Volume I Human Agency and Language, Cambridge, 1985, 104 . In the Introduction to Philosophy in an Age of Pluralism: The Philosophy of Charles Taylor in Question, Cambridge, 1985, 1 Sir Isaiah Berlin notifies that, basically Charles Taylor is a teleologist, he truly believes that human beings, and perhaps the entire universe, have a basic purpose: “What people have believed, striven after, developed into, lived in the light of, and finally, the ultimate goals towards which human beings as such are by their very natures determined to move .” See Abbey (footnote 13), 62 .

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ving the purpose of self is called “orientation to the good” .17 However, one’s orientation to the good cannot be made without human interaction, which draws out the other dimension of identity . Taylor argues that moral identity alone is not enough to understand a person, and emphasizes that, except for one’s moral and spiritual aspect, one’s wider culture and community (surrounding as a horizon, which nevertheless is often neglected) is also significant .18 The full definition of one’s identity, aside from one’s moral standing, usually involves references to a defining community: “one’s identity is defined by the commitments and identifications which provide the frame or horizon within which one can try to determine from case to case what is good, or value, or what ought to be done, or what one endorses or opposes .”19 What is more important in defining one’s identity is that the two dimensions of one’s identity are not on the same level . According to Taylor, people’s self-definition and their views of the good and value are also embedded in the frame or horizon in which they live . For Taylor, the answer of “who I am” is to a large extent, or even decisively depends upon, “where I am from” and certainly not just in a geographical sense . “…it is the background against which our tastes and desires and opinions and aspiration make sense .”20 For Taylor, a self can never be described without reference to those who surround it . In other words, the understanding of one’s identity, which normally involves others, is also an understanding of what is of crucial importance to one .21 That is why, like the famous saying goes, one cannot be a self on one’s own . One is a self only in relation to certain others who are essential to one’s self-understanding . The discovering of one’s own identity is thus not conducted in isolation, as the crucial feature of human life is its fundamentally “dialogical” character, which is the defining feature of Taylor’s account of identity . Taylor derives such a character from the pattern of human language . He thinks that it is through our acquisition of rich human languages of expression that we become full human agents, capable of understanding ourselves, and hence, capable of defining an identity .22 And it is through exchanges with others who matter to us that we acquire the languages needed for self-definition . It is exactly why the human mind is in this sense not monological but dialogical . Likewise, the matter as the definition of identity is always in dialogue with, sometimes in struggle against, the identities that our significant others want to recognize in us .23 Therefore, our identity is partly shaped by recognition or its absence . Because of this particular aspect of human life, the significance of the concept of recognition comes into play . Taylor’s philosophical explication of identity has thus engendered a political relevance .

17 18 19 20 21 22 23

Taylor implicitly indicates this except without using the particular term “purpose” when he said that “we are only selves insofar as we move in a certain space of questions, as we seek and find an orientation to the good” . See Taylor (footnote 13), 34 . See ibid ., 36 . Ibid ., 27 . Taylor (footnote 12), 33–34 . Taylor (footnote 13), 35 . See Charles Taylor, The Ethics of Authenticity, Cambridge (Mass), 1991, 32–33 . See Taylor (footnote 13), 35 .

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2.2 reCoGniTion and The PoliTiCs of differenCe With the rising ideal of authenticity, recognition has played an essential role in contemporary democratic culture . In the individual sphere, or what Taylor calls “an intimate plane”, it has become evident that how much an original identity needs is vulnerable to the recognition given or withheld by significant others . For Taylor, the importance of recognition not only works on an intimate plane, but on the social level, and a politics of equal recognition has come to play an increasingly larger role . Taylor continues to explain that a politics of equal recognition could entail two rather different things . One is an uprising of a politics of universalism, which emphasizes the equal dignity of all citizens and advances the equalization of rights and entitlements in politics . The other is the upheaval of a politics of difference which is associated with the development of the modern notion of identity .24 Taylor strongly endorses the politics of difference while being critical of the politics of universalism . A politics of difference denotes two requirements: one is a universalistic basis that everyone should be recognized for one’s unique identity; but with the politics of difference, what we are called upon to recognize is the distinctiveness and the uniqueness of an individual or group from others . The central idea of a politic of difference according to Taylor is that we give due acknowledgement and status only to what is universally present through recognizing what is peculiar to each . Taylor criticizes the first form of the politics of universalism, represented by liberalism and rooted in the view of Kantian autonomy, which is blind to the ways in which citizens differ, and can only give a very limited acknowledgement of distinct cultural identities . Taylor also thinks the first form of the politics of universalism that liberalism adopts is inhospitable to political difference because it fails to accommodate the collective goal, which is survival of distinct societies . It insists on uniform application of the rules defining these rights without exception . By contrast, the politics of difference, campaigned by multiculturalism, can respect diversity especially when dealing with those who do not share its common goals and who make the distinctions the basis of differential treatment . It will weigh the importance of certain forms of uniform treatment against the importance of cultural survival comparably, thus it is, to certain degrees, grounded in the judgment that the integrity of cultures has an important place in what constitutes a good life . Apart from recognizing the equal value of different cultures and allowing them survive, Taylor further argues for acknowledging their worth . Precisely on basis of this claim, Taylor criticizes the narrowness of Will Kymlicka’s arguments for politics of culture difference .25 Taylor believes Kymlicka’s reasoning, which departs from liberalism, is only applicable for existing minority culture groups and cannot reach the vision Taylor himself hopes for: to justify measures designed to ensure cultural survival through indefinite future generations . Liberalism fails to actively do so and its failure rests upon its negative freedom view, which merely stops at freedom of external interference . It is only achievable by a political ideal departing from positive freedom which also involves actively making it possible to fulfil one’s self-realization and purpose . His underlying assumption of this viewpoint is that the distinctiveness 24 25

See ibid . Will Kymlicka, Liberalism, Community and Culture, Oxford, 1989

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of certain individuals and groups is a political virtue that deserves to be actively preserved and treasured . Taylor uses the famous affirmative actions, and the subsequent reverse discrimination in American constitutional history, to illustrate his points . Taylor does not agree to take reverse discrimination as a temporary measure which would eventually level the playing field and allow the “blind to difference” mode to come back into force .26 Conversely, he argues the affirmative action and reverse discriminations ought to be defended on the grounds of difference, the goal of which is “to maintain and cherish distinctness, not just now but forever . After all, if we’re concerned with identity, then what is more legitimate than one’s aspiration that it never be lost?”27 3. two standards

In

IdentIfyIng Human rIgHts

To determine whether the right to identity can be conceptually considered a human right, just as determining which norms should count as human rights, is a difficult task . With the continuing pressure to expand lists of human rights to include new areas, an ever growing number of rights are claimed to be human rights, such as the right to sexual pleasure, the right to a secure, healthy and ecologically sound environment, the right to protection and preservation of air, soil, water, sea-ice, flora and fauna, and the essential processes and areas necessary to maintain biological diversity and ecosystems, etc .28 My particular focus in this article following this recent trend has brought us to a fundamental, recurrent, yet nonetheless daunting, question: what is the conceptual ground or standard of human rights? Regardless of the differences held by theorists in the same camp, there are, basically, two quite distinct standards in addressing this question . The first one considers human rights fundamentally as moral rights . Echoing the natural right tradition in the 17th century, it holds the reason that rights are designated as human rights is because all humans, by virtue of their humanity, hold such rights .29 I will call the first standard the humanity one . In recent times, Alan Gewirth, James Griffin, John Tasioulas and Jeremy Waldron are representatives among those who ground their foundation of human rights on humanity . The second camp, led by John Rawls, Charles Beitz, and Joseph Raz, refuse to treat human rights as moral rights, and the standard it develops is a political conception of human rights in view of international human rights practice . It regards human rights as a class of urgent rights which set limits to the sovereignty of states, in that their actual or anticipated violation is a defensible reason for taking action against the violator in the international arena .30 I will call this standard the political conception standard .

26 27 28 29 30

See ibid . Ibid . Joseph Raz, Human Rights without Foundation, in: Samantha Besson / John Tasioulas (ed .), The Philosophy of International Law, Oxford, 2010, 322 . Jeremy Waldron, Human Rights: A Critique of the Raz/Rawls Approach, No . 13–32, NYU School of Law, Public Law Research Paper, June, (2013), 2 . Raz (footnote 28), 328 .

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3.1 The humaniTy sTandard Within the first camp, albeit with some challenges, the most predominant approach is human dignity embedded in personhood, which is the position the Inter-American Court of Human Right embraced in the 2014 case . Apart from the personhood (dignity) approach, freedom is also often referred to as a precondition for human rights .31 3 .1 .1 Freedom In viewing human rights as moral rights deriving from human nature, Alan Gewirth argues that in order to look for valid moral criteria to justify or ground human rights, the general concept of morality must be considered . No matter what divergent views differing philosophers hold about morality, Gewirth thinks that what all moralities have in common is that they are concerned with human actions . The necessary conditions of making human action possible constitute the grounds for basing certain claims and having them because the claim must be universally made or accepted by every rational human agent, thereby providing a sufficient criterion for the existence of human rights . Therefore, Gewirth justifies the foundation of human rights upon the importance of some necessary goods in human action .32 As Gewirth stated, “it is possible and indeed logically necessary to infer, from the fact that certain objects are the proximate necessary conditions of human action that all rational agents logically must hold or claim, at least implicitly, that they have rights to such objects .”33 According to Gewirth, these necessary conditions of successful human actions are freedom and well-being, which are logically involved in the structure of human action . Freedom consists of controlling one’s behavior by one’s unforced choice while having knowledge of relevant circumstances, and well-being consists of having the other substantive general abilities and conditions required for agency . And the moral requirement not only to avoid harming, but to actively assist one another in achieving and maintaining a state of “well-being,” is also what dignity has imposed on human beings .34 Amartya Sen also developed a basic account of human rights by relating the importance of human rights to the significance of human actions . In accordance with the humanity standard, Sen also considers this question an ethical one, and takes human rights to be moral rights . Along with Gewirth, his analysis is an analysis of factors which are relevant to the morality of human actions . According to Sen, establishing the basis of human rights on the significance of freedoms motivates us not only to celebrate our own rights and liberties, but also to take an interest in the significant freedoms of others, and not just in their own pleasures and desire-fulfillment .35 For a freedom to be considered a part of the evaluative system of human rights, Sen proposes a twofold threshold condition, one being special importance and the other being social influenceability . Specifically, 1) it is important enough to 31 32 33 34 35

Icelandic Human Rights Center (ed .), Human Rights Reference Handbook, 4th ed ., 2009, 12 . See Alan Gewirth, The Basis and Content of Human Rights, Georgia Law Review 13 (1978), 1149 . Ibid, 1148 . Ibid, 1149 . See Amartya Sen, Elements of a Theory of Human Rights, Philosophy and Public Affairs 32 (2004), 329 .

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justify requiring that others should be ready to pay substantial attention in order to decide what they reasonably do to advance it; 2) it also has to satisfy a condition of plausibility that others could make a material difference through taking such an interest .36 3 .1 .2 Personhood (Dignity37) The dignity approach basically claims that without those basic rights concerning people’s primary material and non-material needs, no human being can lead a dignified existence .38 The Universal Declaration of Human Rights and the Internatio36 37

38

Ibid . Recently, Jeremy Waldron severely challenged the idea of taking dignity as the foundation of human rights . He implies there is still an underlying idea beneath dignity . Regarding those affirmative assertions of the intimate relationship between dignity and human rights in international conventions, he thinks they are false, misconceived, confused or merely rhetorical . Simply attending to the conventions reveals no clear or consistent stance on either what it might mean for human dignity to be the foundation of human rights or whether a foundational role is the best way to understand human dignity’s relation to all human rights . Waldron distinguishes four ways in which one concept might be the foundation of another and examines the relationship between human rights and dignity . The foundational relationship could be 1) as a matter of history and genealogy; 2) as a source of the validity of another; 3) one being logically derivable from the other; 4) one helps the interpretation of the other . Waldron discards the first relationship without too much hesitation as it is wrong to treat human dignity as the historical precursor of human rights, while in many respects the reverse story seems more plausible . Waldron illustrates the second relationship by virtue of a comparison of dignity as ultimate source for the legitimacy of human rights norms and Hans Kelsen’s basic norm of a legal system . However, it is not a complete comparison as Waldron points this comparison has blurred the difference between the dynamics and the static of a legal system according to Kelsen . The third foundational relationship, a derivation relationship, which is also the most robust kind, Waldron examines precisely reflects the static analysis of the relation between human dignity and human rights . According to Waldron, James Griffin’s analysis in On Human Rights falls into this category when he “derives” autonomy and liberty from his starting conception of “the dignity of the human person”, which is best understood as normative agency . However, James Griffin opened his introduction by claiming “what we see human rights as protection of our normative agency…is not a derivation of human rights from normative agency; it is a proposal based on a hunch that this way of remedying the indeterminateness of the term will best suit its role in ethics .” The fourth relation Waldron considers and leans towards, understanding human rights in a loosely way oriented to a class of human rights that is in some sense given and that does not extend to any expansion of the list of rights beyond what we started with . Waldron argues “what we need of foundation is a way of understanding the point of rights that will help us interpret particular rights provisions as well as help determine the spirit in which we should proceed in advancing rights-based claims .” In light of this loose approach of foundational relation, the possibility of mistaking a feature common to all rights for something that plays one of these foundational roles increases . The importance and ubiquity of some features, for instance autonomy and equality, of human rights might lead us to mistake them for foundational elements . Waldron implies the claim of dignity as the foundation of human rights may commit the analogous mistake . Previously, John Tasioulas claims human dignity as a moral status, for Waldron, it equalizes jettisoning the talk of dignity as the foundation of rights inasmuch as status itself not only abbreviates a list of rights and also refers to the idea that underlies and unifies them . See Jeremy Waldron, Is Dignity the Foundation of Human Rights?, in: Rowan Cruft / S . Matthew Liao / Massimo Renzo (ed .), Philosophical Foundations of Human Rights, Oxford, 2015, 117–137 Icelandic Human Rights Center (footnote 31), 11 .

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nal Covenant on Civil and Political Right recognizes the intimate relationship between human dignity and human rights .39 The reasoning of the Inter-American Court of Human Rights in the 2014 case is also based on the justification of the right to identity as a fundamental human right, and on its inseparability from human dignity . In our academies and human rights practice, the understanding and application of human dignity is far from unanimous . The ontological basis and historical sources of human dignity are inexhaustible topics, which are certainly beyond the scope of this article . For my purposes in this article, I will adopt John Tasioulous’ characterization of human dignity as what is entailed in humans’ personhood . That is to say, human dignity is “…an intrinsically valuable moral status inhering in being human and shared equally by all human beings, transcending them above non-human animals but whose normative significance is graspable independently of the interests of the human beings who possess it…it consists in the fact that humans belong to a species which is in turn characterized by a variety of capacities and features: a characteristic form of embodiment; a finite life-span of a certain rough duration; capacities for physical growth and reproduction; psychological capacities, such as perception, self-consciousness, and memory; and, specifically rational capacities, such as the capacities for language-use, for registering a diverse range of normative considerations (including evaluative considerations, prudential, moral, aesthetic, and others besides), and for aligning one’s judgments, emotions, and actions with those considerations . Call this the human nature conception of human dignity, insofar as it grounds the value of human dignity in the characteristic elements that constitute human nature .”40

James Griffin has offered a compelling account of grounding human rights in personhood in On Human Right (2008) . Griffin believes that one of the most important grounds for human rights is personhood and that out of the notion of personhood we can generate the majority of the conventional list of human rights .41 Griffin’s explication of personhood and human existence corresponds with Charles Taylor’s account to a considerably great extent . Along with Taylor, Griffin believes that human beings are distinguished from animals because they have a conception of themselves and of their experiences and future visions . Human beings form ideas of what a good life would be like and try to realize such ideas . Human beings value their status as humans, who are being able to deliberate, assess, choose and act in order to realize a good life especially highly, even more than our happiness . Therefore, human rights are protections of our human standing or our personhood . Griffin breaks down the concept of personhood into several components, which are seen as privileged and protected, including, autonomy, authenticity (or he called “one’s choice must be real”42), minimum education and information, minimum provision of resources and capabilities, and last but not least, liberty, which others must not for39 40 41

42

In Article 1 of UDHR, it states that, “All human beings are born free and equal in dignity and rights”, while the ICCPR claims that the human rights derive from the inherent dignity of the human person . John Tasioulas, On the Foundations of Human Rights, in: Cruft/Liao/Renzo (footnote 37), 54 . Griffin thinks the personhood consideration is often not up to fixing anything approaching a determinate enough line for practice . In order to make the content of the right to personhood determinate enough to be an effective guide to behavior, therefore we need a further ground, practicalities . For this article’s purpose, I will only focus on the substantive ground of personhood . See James Griffin, On Human Rights, Oxford, 2008, 33, 37 . Ibid ., 33 .

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cibly stop one from pursuing what one sees as a worthwhile life . In favor of a teleological morality (which is also what Charles Taylor leans towards), Griffin argues that what we attach value to this account of human rights, specifically our capacity to choose and to pursue our conception of a worthwhile life .43 Griffin anticipates a certain objection that he has “smuggled a particular ideal of good life into his notion of personhood”44 . He emphasizes that the rights to those components do not promote human good, but merely promote what is needed for human status . Griffin distinguishes the difference between having “a conception of a worthwhile life” and other concepts like having “an examined life” or “a plan of life” . According to Griffin, the ideal of having a plan for life is exceedingly rare and not necessarily desirable as we are constantly learning more about the world and our values keep changing . Having an examined life requires an arduous reasoning to understand virtue and recognize vice . But having a conception of worthwhile life in Griffin’s sense is rather elementary as long as we have the capacity to identify the good, whatever the extent of the capacity and whatever its source . Having a conception of a worthwhile life does not require the whole shape of one’s life, rather it is the mere possession of this common capacity to identify the good that guarantees persons the protection of human rights .45 No matter what the disparities the above theorists have, what they have in common concerning human rights are: 1) they are grounded in the nature of humanity; 2) the right holder is a human being; and 3) the rights are vitally important moral rights . However, works by John Rawls, Charles Beitz and Joseph Raz fundamentally challenge such above accounts of human rights . Instead, they put the notion of human rights on the field of contemporary political philosophy and international legal practice, and put forward their political or practical account of human rights . 3.2 The PoliTiCal ConCePTion sTandard: human riGhTs in view of PraCTiCe 3 .2 .1 The Deficiencies of the Humanity Standard From the point of view of the writers in the second camp, the humanity standard suffers several fatal flaws . First of all, the humanity standard assumes the objects of rights are of value is the reason, or part of the reason, why the right-holders have the right, whereas neglects a claim to right requesting the justification of others’ duty not to interfere with it . Something is of value to someone does not even begin to establish that anyone else has a duty to secure or protect one’s possession or enjoyment of that thing .46 Something is of value to one does not endow one with a right to it, because a successful justification of a person’s right to it not only requires justifying one’s claim to it, but also requires a claim against some others to act in

43 44 45 46

See ibid ., 32, 33, 45 . Raz (footnote 28), 325 . See Griffin (footnote 41), 45–46 . See Joseph Raz, Human Rights in the Emerging World Order, Transnational Legal Theory 1 (2010), 37 .

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ways that will make the claim available to that person .47 Second, the political standard argues that the way of understanding human rights’ nature offered by the humanity standard is so remote from the practice of human rights, whereas the ethical doctrine of human rights should articulate standards by which the practice of human rights can be judged, and standards which will indicate what human rights we have .48 “It would be a mistake to identity the objects of interest with objects that originate in one or another theoretical project whose conception and motivation differ from those of the contemporary practice .”49 The third flaw is a subsequent one . The humanity camp’s failure of attending to human rights practice renders its failure in validating its claim of universal rights as setting limits to sovereignty, which is the predominant hallmark in human rights practice . In view of the political standard, considering human rights as rights against states in the international arena, human rights need not be universal or foundational . 3 .2 .2 The Political Account of Human Rights: A Practice-Sensitive Turning With respect to the above deficiencies of the humanity camp, the political camp places the standard of human rights in light of the role human rights plays in the international politics . In The Law of Peoples (1999), Rawls continues his political liberalism project, abstaining from the quest for philosophical foundations, and also extends his frame of political liberalism to an international circle . The idea of public reason in Political Liberalism is also integral to The Law of Peoples, which extends the idea of a social contract to the Society of Peoples, and lays out the general principles that can and should be accepted by both liberal and non-liberal (but decent) societies as the standard for regulating their behavior toward one another .50 Liberals, and decent peoples together, constitute a “Society of Peoples” whose affairs are regulated by a “Law of Peoples” which defines the content of this society’s public reason and serves as a common basis of justification for international political action .51 The account of human rights is presented as one element of a larger conception of public reason worked out for an international society of liberal democratic and decent peoples organized politically as states .52 Human rights are recognized by Rawls as (minimum) necessary conditions of any system of social cooperation53, expressing a special class of urgent rights, and do not depend on any particular comprehensive religious doctrine or philosophical doctrine of human nature . The basic function of human rights is to set a necessary but not sufficient standard for the decency of do47 48 49 50 51 52 53

See James Nickel, How Human Rights Generate Duties to Protect and Provide, Human Rights Quarterly 15 (1993), 78 . See Raz (footnote 28), 322 . Charles Beitz, The Idea of Human Rights, Oxford, 2009, 72 . John Rawls, The Law of Peoples, Cambridge (Mass .), 1999, VI . Beitz (footnote 49), 97 . Ibid ., 96 . Rawls did not supply any arguments for social cooperation in The Law of Peoples, but in Political Liberalism, he claims social cooperation 1) is essentially voluntary; 2) is to be distinguished from efficiently coordinated behavior which not necessarily involves purpose and endorsement from its participants; 3) it also embraces an idea of reciprocity and fair terms of cooperation, which defines “reasonable” . See Samuel Freeman, The Law of Peoples, Social Cooperation, Human Rights, and Distributive Justice, Social Philosophy and Policy 23 (2006), 36 .

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mestic political and social institutions . According to Rawls, if human rights are fulfilled, then it would be sufficient to exclude justified and forceful intervention by outsiders . Therefore, on the one hand, they restrict the justifying reasons for war and its conduct; on the other hand, they specify limits to a regime’s internal autonomy .54 In other words, it is to say human rights, functioning as a standard of international legitimacy, is necessary for a society to be a member of the society of peoples and sufficient to guarantee a society against international intervention .55 Additionally, they also set a limit to pluralism among people .56 It is noteworthy that, although the account of human rights Rawls has provided is a political one, it is nevertheless honored by both liberal and decent hierarchical regimes as universal . That is to say, the human rights Rawls proposed are intrinsic to The Law of Peoples and have a political or moral effect irrespective of circumstances, including outlaw states .57 What Rawls has propounded here is an “overlapping consensus” of human rights, analogous with what he proposed in Political Liberalism . Political liberalism seeks an overlapping consensus among reasonable and rational citizens regarding the most reasonable conception of political principles on questions of constitutional essentials and basic matters of justice, and thus forsakes pursuing any metaphysical or moral truth with respect to any comprehensive doctrine . In this case, it is regardless of the divergent conceptions of personhood, or philosophical controversies of its foundation, that the law of peoples seeks an overlapping consensus part among liberal and decent hierarchical regimes concerning the most reasonable conception of human rights . It is precisely in this sense that Rawls’ account of human rights is “political” . Rawls’ political conception of human rights has deeply influenced others in this regard . Charles Beitz accepts Rawls’ political account of human rights and broadens it further . Beitz argues to identify the roles that the idea of human rights plays within a discursive practice .58 He calls it practical conception, which means it understands human rights in light of international practice . Beitz does not consider that there is any assumption of a prior layer of fundamental rights whose nature and content can be separately discovered in the international arena and then used to evaluate international doctrine . Nor do human rights have to derive or infer from them . To Beitz, a practical conception of human rights, which prescinds it from taking any comprehensive or philosophical view about the basis of human rights, can take the function of human rights in international practice as the basis . Nevertheless, it does not mean a practical conception regarding the present practice is beyond criticism . Beitz explains that any social practice has to serve certain purposes . With regard to human rights, its doctrines should certainly be suited to the public political role it is expected to play as well as the interpretation of the role, which constrains its doctrines . In the case of a large scale of human rights violations, 54 55 56 57

58

See Rawls (footnote 50), 68, 79–80 . See Beitz (footnote 49), 100 . John Rawls (footnote 50), 80 . The list of human rights Rawls has in mind is as followed: the right to life (to the means of subsistence and security); to liberty (to freedom from slavery, serfdom, and forced occupation, and to a sufficient measure of liberty of conscience to ensure freedom of religion and thought); to property (personal property); to formal equality as expressed by the rules of natural justice (similar cases be treated similarly) . See ibid ., 65, 80 . Beitz (footnote 49), 102 .

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outside international agents thereby have reasons to intervene . Beitz summarizes three elements in his practical conception of human rights: 1) their purpose is to protect urgent individual interests against certain predictable dangers; 2); political institutions of states, including their constitutions, laws, and public policies, are the first subjects of duty; 3) they are matters of international concern that a government’s failure in fulfilling the corresponding duties could be a reason for action to outside agents .59 The last point in particular concerns Joseph Raz who thinks it is the kernel of human rights . On one central issue, Raz sides with Rawls, as evidenced by human rights practice, in recognizing human rights as rights that set limits to sovereignty of states . Raz underscores the humanity camp’s deficiency in attending international human rights practice . Raz thereby characterizes the essence of human rights in consideration of human rights practice simply saying “human rights are rights against states .”60 Along with Beitz, Raz also agrees with Rawls regarding a political conception of human rights . Rawls would agree and emphasize that the political conception of human rights can and should accept universality of morality . The adoption of the political standard does not, in any sense, imply a rejection of its having a moral foundation . Particularly for Raz, the political sense of human rights connotes a demanding of its institutional recognition, which transfers the general moral right to a legal right . Confronting the question of what rights can be claimed as human rights, Raz has eventually offered a three layered answer: first, some interests and important values of individuals combined with showing how social conditions require its satisfaction establish a moral right; second, in some cases, the first layer of interests and values to individuals impose duties on states to promote or protect such interests and values; third, states’ violation of them are likely to invoke intervention from outside .61 While the first layer and the second layer make up what constitutes a legal or institutional right, the third layer is the one which, according to Raz and other political standard endorsers, distinguishes human rights from other institutional rights . Compared to Rawls’ statement, Raz accentuates the difference between the limits of sovereignty and the limits of legitimate authority . Raz argues that only the notion of the former is the counterpart of rightful international intervention, whereas the criterion of the latter depends on the morality of the authority’s actions .62 Unlike the limits of legitimate authority, owing to the great moral significance of state autonomy, the limits of sovereignty have set a much more demanding standard . Regardless of the discrepancies among the political camp theorists (which are abundant63), the following consensuses nevertheless unite them in the same camp . 59 60 61 62 63

See ibid ., 102–103, 105, 109 . Raz (footnote 28), 329 . See ibid ., 334 . Ibid ., 330 . For example, even though both of Rawls and Raz adopt the political conception of human rights, while Rawls does so in the spirit of political liberalism Raz simply rejects any foundation for human rights . Rawls (and also Beitz) thinks we should abstain ourselves from discussing the philosophical or moral foundation of human rights instead of denying any such foundation, because that is not necessary but he makes no judgment that there is no such moral foundation for human rights . Reasonable people, in this case, decent regimes tend to disagree about the foundation, however, an overlapping consensus about it is achievable . But for Raz, human

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For one, in contrast with the humanity standard, they forsake looking for any philosophical or moral foundation for human rights . Rather, they all adopt a political conception of human rights . Secondly, in jettisoning the philosophical foundation of human rights, they turn to the international human rights practice to construe human rights . Lastly, their understandings of human rights are inseparable from the corresponding duty subject, namely states . The role and purpose of human rights is relevant to the place of states in international society . The implementation of human rights and its failure would cause repercussions on the states too . Among all the political standard endorsers, Raz’s account best illustrates the fundamental divergence they have with the humanity camp, due to its earnest emphasis on the practical aspect of human rights . The concept of human rights is, even in the legal context, fundamentally, a moral concept for the theorists in the humanity camp . While the theorists in the humanity camp strive to explore the philosophical foundation for human rights, what they have in mind is a picture of what human rights should be like independent of the current laws that form the basis of that “foundation” . Conversely, the political standard treats human rights as a purely legal precept, which only makes sense in connection with laws . Once certain human rights are recognized and institutionalized, their authorities can only be invoked by laws . The political standard lays human rights in the international arena to discover what human rights are in accordance with international human rights laws and practice, and refrains from exploring the foundation of human rights . 4. Is

tHe

rIgHt to IdentIty

a

fundamental Human rIgHt? two tests

As the two standards of recognizing what a human right is are identified, we are almost at the center of answering whether the right to identity is a fundamental human right . I will consider the two standards of understanding human rights as two tests to see whether the right to identity accords with either one of the standards . There are two caveats . First, in exploring whether the right to identity conforms to any standard or ground of human rights, I am not discussing or evaluating the merits or disadvantages of any camp of human rights foundation theory . Nor do I aim to compare which standard is a more promising one, or which is a much bigger question than what I can address here . My aim is simply to see whether such a right could conceptually fit into either of the standards at all . Second, by examining whether the right to identity is a fundamental human right, I do not mean it is exactly what Taylor has in mind, insofar as he already expressed his view on this as “not sure”64 . Rather, what

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rights itself does not entail any foundation, inasmuch as any rights cannot be enforced are simply moral rights . That is to say, moral rights have their foundations, be it interest or value of people, but there is no such foundation for human rights . Another example, although Beitz adopts and accepts the political or what he calls practical conception of human rights as what Rawls does, he does not (so does Raz) consider adhering to human rights as necessary for a society to be a member of the international society . Taylor does not discuss whether human being’s identity is worthy of protection by incorporating it into human rights, nevertheless, Taylor claims the logic behind demands for recognition of multiculturalism depends upon a premise that we owe equal respect to all cultures . Withholding the presumption would be seen as prejudiced or of ill-will . It might even be tantamount to a denial of equal status, and if important consequences flow for people’s identity from the

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I am discussing is the claim of the right to identity itself, which gains its philosophical significance from Taylor’s account, but does not necessarily amount to what Taylor himself claims . 4.1 does The riGhT To idenTiTy belonG To The humaniTy CamP? 4 .1 .1 Puzzled Identity Taylor implies that we should give citizens’ traditional cultures status comparable to their civil and political rights, if every citizen enjoys equal civil rights then equality entails that citizens should enjoy the same rights to culture as well . Taylor also claims this demand for equal recognition to cultures flows from the equal dignity of human beings . Although human dignity and personhood are not necessarily seen as two identical foundations for human rights in the humanity camp, insofar as Taylor is concerned, they both transcend other beings and therefore by which we think of ourselves as commanding the respect from others around us .65 In the 2014 case, the Court understands the protection of the right to identity as what protects personhood and human dignity . Is that understanding eligible? The personhood approach to the humanity standard concerns the capacity to form a conception of a good life, which distinguishes human beings from animals . And it thus determines such a human standing or personhood of human beings as deserving of human rights protection . It appears that Taylor’s account of identity and his claim for recognition to human identity fall precisely under this category of a ground for human rights . However, the decisive discrepancy between the right to personhood and the right to identity is that, while personhood is a concept of generality, identity is nonetheless a concept of particularity . While personhood is a general feature of each human being, identity is a concept representing all kinds of social affixations, which varies among every human being . Being a citizen, a male or a female, a homosexual or a heterosexual, a member of a certain racial and ethnical group, or a member of a specific religious and cultural sect, can all be part of the particular elements constituting someone’s identity . The claim of the right to identity is thus both vague and ambiguous . Does it mean the right to someone’s particular identity characteristics? Then how do we distinguish such a claim from other widely discussed rights, such as group rights? More importantly, can a claim of val-

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absence of recognition, then a case can be made for insisting on the universalization of the presumption as a logical extension of the politics of dignity . That is to say, for equality’s sake, just as all people must have equal civil and political rights, like voting rights, accordingly, all should enjoy the value of their traditional culture . And precisely with regard to whether such an enjoyment should be entitled as a right, Taylor is not sure . However, if the recognition is merely a respect which does not anticipate forthcoming legal action, then it is very hard to explain Taylor’s insistence of affirmative action and the reverse discrimination . It is also in discord with his critique of Kymlicka’s version of insufficient defense for the politics of difference as well . Or, is what Taylor argues in those examples merely an endeavor of theorization or revolutionary fight for universalizing the right to identity? For what it is worth, in my view, either Taylor has such a vision or aspiration of demanding this recognition as a universal right, or he has already recognized so . See Taylor (footnote 13), 5, 15 .

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uing one of my particular social identities be stretched as far as a claim deriving from my personhood? Sometimes it makes sense but sometimes it does not . For instance, to decide whether asking for my right as a Christian is built upon my personhood maybe a very tricky case . But it would not be too difficult to determine whether the claim of my right to my identity as a resident of Leiden stems from my personhood . Owing to its particularity, identity cannot entail a general reference of content like personhood . Or is it plausible that, as Taylor implies, identity refers to the whole set of someone’s social affixations and embeddedness? Previously I argued that identity answers questions concerning the definition, characterization, or recognition of oneself . For Taylor, it is one’s background and horizon that provides these answers . However, exactly what is involved in this horizon is not clear at all . Taylor’s account leaned towards a culture and community dominant occupation in one’s horizon insomuch as one’s cultural backdrop and community has shaped one’s identity and life purpose . What about other features, for instance, parents’ occupation, friends, one’s political standing, or one’s sense of morality? The influence of these features shaping people’s lives and identities are in blank uncertainties . 4 .1 .2 The Underlying Idea of Identity: Authenticity One may say that identity is, nevertheless, not the most foundational concept . In Taylor’s later works (mainly in The Ethics of Authenticity and “The Politics of Recognition”), his account of identity has been more connected with another modern ideal, authenticity . According to Taylor, the sense of personal identity (one that is particular to a person and that one discovers in oneself) has emerged along with the ideal of being true to oneself and one’s own particular way, namely authenticity, due to the collapse of social hierarchies .66 According to Taylor, in those earlier societies, a person’s identity was largely fixed by his or her social position . That is, the background that made sense of what the person recognized as important .67 Authenticity itself decisively undermines the hierarchically derived identification . As this emerges, it calls on one to articulate and discover one’s own original way of being, so as to accomplish the goals of self-fulfillment and self-realization . The emphasis on one’s inner voice and authenticity, in turn, characterizes the modern identity . Thus, the ideal of authenticity remains at the bedrock of Taylor’s arguments of recognition of identity . “Articulate” to Taylor is actually a moral concept . It makes the force of an ideal that people are already living more palpable and more vivid, and empowers them to live up to it in a fuller and more integral fashion .68 Authenticity suggests that, as human beings, we have to stay true to ourselves . By “staying true to ourselves,” what Taylor really means is to take individuals’ motives, feelings and desires to an outweighing position compared to reason in making moral decisions . Taylor’s arguments regarding authenticity revive the idea that there are motives, desires and aspirations that are so intrinsically valuable that they should 66

67 68

See Taylor (footnote 12), 26 . Taylor associates the importance of the ideal of authenticity with Herder, who is its major early articulator rather than its originator, Rousseau . Herder put forward the idea that each of us has an original way of being human . Each person has his or her own “measure” is his way of putting it . Taylor (footnote 22), 47 Ibid ., 22

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not always be crushed by the inner restrictions of rational reflection .69 Moreover, authenticity requires that these motives and desires be expressive of one’s self-identity . The demand for authenticity may point to the possibility that one can lead an autonomous life, however, this way of life fails to express one’s self identity .70 Hence, authenticity entails an aspect that lies beyond the scope of Kantian autonomy . It is important to note that Taylor’s account of authenticity, compared to the Kantian concept of autonomy, contains an essential element of overriding internal obstacles, such as an irrational fear of something which might prevent one from being the real self . In deciding who has the authority to judge whether one’s desires are authentic and whether these desires would frustrate one’s purposes or not, Taylor argues that oneself cannot be the final authority .71 Authenticity is understood by Taylor as self-referential to aim but not to content . That is to say, this has to be one’s own orientation but one’s goals must express or fulfill one’s desires or aspirations, as against something that stands beyond them . Taylor points out that authenticity needs the appropriation of values that make up our collective horizons . For Taylor, the process of articulating one’s identity involves determining questions of goodness and morality in relation to one’s community . Authenticity supposes demands such as history, nature, the needs of fellow human beings, the duties of citizenship, the call to God, or other crucial matters to define an identity for oneself meaningfully . The ideal of authenticity incorporates some notions of society, or at least of how people ought to live together . 72 Moreover, according to Taylor, one’s community or horizon is the decisive factor in articulating and discovering one’s identity . Therefore, it cannot be up to the individual to decide what is important and what is not . One needs to connect his own conception of it to one’s horizon, within which one is “capable of taking a stand” . Hence we can see that the cardinal element of identity is maintaining connections to questions of collective value beyond one’s own autonomous preferences, is initially what authenticity requires . 4 .1 .3 Deviant Narrative of Authenticity However, Taylor’s narrative of authenticity is rather peculiar and essentially runs counter to the personhood account of human rights .73 First, Taylor jumps too quickly to the conclusion that one cannot be the final authority of his own desires . 69 70 71 72 73

See ibid ., 75–76 . See Somogy Varga / Charles Guignon, “Authenticity”, in: Edward N . Zalta (ed .), The Stanford Encyclopedia of Philosophy (Fall 2014 Edition) – http://plato .stanford .edu/archives/fall2014/entries/ authenticity/ [6 .10 .2015] See Charles Taylor, What is Wrong with Negative Liberty, in: id ., Philosophical Papers Volume II, Philosophy and the Human Sciences, Cambridge, 1985, 216 . See Taylor (footnote 22), 40–41, 44 . Some critics have raised objections of Taylor’s narrative of authenticity . For instance, the focus on one’s own inner feelings and attitudes may breed a self-centered preoccupation with oneself that is anti-social and destructive of altruism and compassion toward others . Also, It might however be objected that supposing that the “inner” is a morally worthy guide is deeply misguided and builds upon an overly optimistic idea of human nature . Others have expressed serious concerns about the conception of the self that underlies the idea of authenticity . The underlying assumption that considers the individual separate from the environment is an absurd assumption that erodes that bond between the individual and community, which ultimately is the source

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Admittedly, it is true that, to some extent, one needs to determine what is important and what is good in light of one’s “collective horizon”, or the cultural background and community one lives in . This fact by no means entails that one is deprived of the position of final authority of his own desires or motives . A sufficient (not just necessary) reason why the decision of one’s cultural and community background is able to take precedence over one’s so-called “inauthentic”, nevertheless made on one’s own, decision, is lacking . Taylor’s arguments suggest that when one’s own decision (reflected upon one’s reason or pure desire) contradicts what one’s horizon points to, one should forsake his own goal and follow the latter, but there is no sufficient outweighing reason to support this suggestion . As Jeremy Waldron has indicated, “We need cultural meanings, but we do not need homogenous cultural frameworks . We need to understand our choices in the contexts in which they make sense, but we do not need any single context to structure all our choices .”74 It is, thus, very peculiar to assert that the culture or community one belongs to is in charge of giving shape and meaning to one’s life . Second, whether the cultural background or community could supply one with a determinate directive answer about one’s judgment of his authenticity is conceptually ambiguous . Inasmuch as a collective horizon of one’s background does not necessarily direct one to a determinate direction, and even directs to kaleidoscopic answers in some cases . A teleological framework may neglect the inner conflicts within one’s identity (not in Taylor’s case though), but the conflicts within oneself are indispensable to a healthy personality . Each person has, or can have, a variety, or multiplicity of different, and perhaps disparate, communal allegiances, which require management .75 Supposedly, a black Christian heterosexual male and a white Jewish homosexual female may find themselves trapped in rather confusing horizons . How shall they determine their authenticity? Will they form their sense of morality or goodness mainly in accordance with their gender backgrounds, religious outlooks, sexual orientations, or races? Thus, it is very peculiar to assume that there is a single and coherent culture that gives shape and meaning to one’s life . Accordingly, as previously noted, Taylor argues personal identity is defined by the commitments and identifications which provide the frame or horizon within which one can attempt to distinguish between different levels of goodness . However, the recognition of identity does not necessarily lead to moral goodness . As an important source of inspiration for Taylor’s moral pluralism, Aristotle claims that there are qualitatively different yet valuable things to be incorporated in a good or full human life . Taylor agrees with but nevertheless departs from Aristotle where Aristotle believes these goods could be combined and there is no necessary conflict between them . Taylor claims that modern individuals are not just faced with more goods, but also confronted with the fact that some of the things worthy of affirmation are irreconcilable with others .76 This is where strong evaluation, Taylor’s resolution to the problem of moral pluralism (that individuals always feel the pull of some goods as

74 75 76

of the authentic self . See Somogy Varga / Charles Guignon, “Authenticity”, in: Edward N . Zalta (footnote 70) . It is however not the place and not my purpose to examine them . Jeremy Waldron, Minority Cultures and The Cosmopolitan Alternative, University of Michigan Journal of Law Reform 25 (1991), 786 . Ibid ., 789 . See Abbey, (footnote 13), 12

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incomparably higher than others), comes into play . The problem of moral pluralism is not solved by the recognition of strong evaluation . Although Taylor claims that individuals necessarily value some goods more strongly than others, there is usually more than one of these strongly valued goods on any person’s moral horizon . Moreover, these strongly valued goods can still come into conflict with one another .77 Unless Taylor has something like a stored pyramid of values in mind, the frustration of conflicts cannot be resolved after all . Finally, this narrative of authenticity is politically dangerous . Insisting that one cannot claim one’s own desires or purpose, but only one’s collective horizon, is not only counterintuitive, it also opens the gates for totalitarian governments . In sum, Taylor’s accounts of authenticity do not suffice to bolster its dominant standing in personhood ethics . This peculiar narrative of authenticity subtly transfers the vital standing of humans to their underlying background culture, and thus, the claim of right to identity as a human right actually becomes a claim of right to culture, or right to community, etc . Admittedly, culture or community occupies an indispensable place in human life . Even if the goal of “maintaining and cherishing cultural distinctness not just now but forever” takes up a fundamental priority in the agenda of human rights, it by no means signifies that the distinct culture or community one aims to maintain and cherish would remain the way it is “not just now but forever” . Waldron questions the forever distinctness of culture by saying, “cultures live and grow, change and sometimes wither away; they amalgamate with other cultures, or they adapt themselves to geographical or demographic necessity .”78 Therefore, to artificially preserve or protect cultural distinctness is overlooking its ability to adapt and change in differing circumstances . Waldron continues, “to preserve a culture is often to take a favored “snapshot” version of it, and insist that this version must persist at all costs, in its defined purity, irrespective of the surrounding social, economic, and political circumstances .”79 Waldron suggests that the real way to preserve culture is not to protect its distinctness, but to operate it in a context of genuine choice . Someone may object that Taylor does not necessarily imply a permanently static cultural background of individuals and that culture or community itself can also evolve in time . What Taylor has wished for is simply the preservation and appreciation of one’s culture and community per se no matter if it is eternal or temporal . However, this objection does not touch the exact static part of Taylor’s argument, the perpetual doomed interlaced relationship between individuals and their cultural or community background . The possibility of leaping out from this interlaced relationship, namely the possibility of refusing to be part of certain communities any longer (such as some of the Amish people choose to leave the Amish community) is exactly what autonomy or free choice means . Isaiah Berlin has carefully distinguished such a Hegelian position from a reasonable aspiration of searching for status . Berlin shares the understanding with Taylor that such a search is perfectly sensible, but he refuses to entitle the search for recognition or status of freedom or liberty . Berlin also thinks one is a social being in a 77 78 79

Ibid ., 23 . Waldron (footnote 74), 788 . Ibid .

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deeper sense than that of interaction with others . It is not only that one’s material life depends on such interaction with others, nor that one is just who one is as a result of social forces, but “that some, perhaps all, of my ideas about myself, in particular my sense of my own moral and social identity, are intelligible only in terms of the social network in which I am an element .”80 Therefore, in seeking for recognition and status, one seeks to avoid being degraded in any manner, including being ignored, patronized, or despised, or being taken too much for granted . The only persons who can recognize one as such are the members of the society to which one feels a sense of belonging . And the desire to be understood and recognized is so grave that one may prefer to be bullied and misgoverned by some member of one’s own social class or community as long as one feels recognized .81 Berlin clarifies that the desire for recognition is a desire for solidarity, fraternity, and mutual understanding, but not for liberty . Berlin points out the confusion of desire for liberty with this craving for recognition, which is further confounded by being identified with the notion of social self-direction, or positive freedom, where the self to be liberated is no longer the individual but the social whole, which makes it possible for men, “while submitting to the authority of oligarchs or dictators to claim that this is in some sense liberates them .”82 Although Berlin confirms the importance of searching for recognition or status, he warns us that we must distinguish it from a traditional Hegelian approach which treats the social network, or what Taylor calls the horizon and framework, as something that determines one’s nature . The Hegelian approach reckons that one is made by one’s society or history, and to escape from them is impossible and any such attempt is irrational . Whereas what Berlin describes as one’s search for status does not imply that all of one’s attributes are intrinsic and inalienable, and thus, certainly does not prevent one from leaping out of one’s proper element, otherwise the talks of “choice” or “decision” are all just meaningless .83 4.2 does The riGhT To idenTiTy Conform To The PoliTiCal ConCePTion sTandard? Differing from some traditional theorists in the humanity camp, Taylor indeed recognizes the importance of personhood or dignity itself insufficient to establish rights upon it . To conduct rights talk also invokes restrictions on others’ behaviors so that the value has to be enforceable to be entitled as a right . To decide whether the right to identity fits into the standard of the political conception of human rights, would require observing its place in international human rights practice to judge whether: 1) the right to identity fits the purpose of human rights; and 2) the violation of it would be enough to produce restraint on sovereignty . As is shown in the last section, as opposed to the humanity standard, one of the most conspicuous features of the political conception standard is its practice-sensi80 81 82 83

Isaiah Berlin, Two Concepts of Liberty, in: Henry Hardy (ed .), Liberty: Incorporating Four Essays on Liberty, Oxford, 2002, 201 . See ibid ., 203 . Ibid ., 204 . See ibid ., 206, footnote 1 .

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tive direction . Before evaluating whether the right to identity fits in the political conception standard, we shall be cautious in not adopting a rigid adherence to the practice-sensitive view . Inasmuch as a rigor practice-sensitive view of political conception standard may end up failing to provide any answer at all . A rigid practice sensitive view would recourse to the verdicts of the Serrano Cruz Sisters v. El Salvador (2005) and Dominicanas y Haitianas Expulsadas v. República Dominicana (2014) as the only references thus far . After all, they are what the current international human practices have presented in this issue . However, these two court decisions have different verdicts concerning the right to identity, are we following the more recent one like we do when it comes to domestic laws? What if in the future, some other international courts (apart from Inter-American court of Human rights), such as the European Court of Human Rights, have reached a contradictory decision about the right to identity? How do we determine its legal standing in light of the practices? Would the disorganized practices regarding rights to identity go hand in hand with the idea of formulating a stable set of human rights that can be codified in charters? These forward-looking questions manifest a latent predicament of the robust version of the political conception standard . The political conception standard suggests human rights are rights that, if violated, would justify interventions that infringe sovereignty . The reasoning direction of this standard nevertheless is from practice to theory . We start by figuring out under what circumstances it is justifiable to infringe upon sovereignty, and then ascertain what rights can be human rights given under whose name the intervention would be undertaken . David Miller points out that human rights are the conclusion of the argument, not the premise . He explains that the problem with the political conception standard is the order . When thinking about intervention, normally we begin by considering what should be regarded as serious violations of human rights, for instance, people being deprived of subsistence, people being tortured, people being stripped of freedom of expression or religion, etc . Then some form of intervention of sovereignty is considered, whether undertaken directly through military action, or indirectly by applying pressure to the rulers of the regime that is carrying out the violation, such as economic sanctions, which are deployed to control the damages caused by those violations . The political conception standard nonetheless moves in the opposite direction . It begins with human rights violations, and ends with reasons to infringe sovereignty .84 So, David Miller concludes that we need to have a presupposed theory of human rights in the first place . In the absence of a presupposed theory, it is likely that a rigid practice sensitive view of human rights cannot answer this article’s question . It would be best for us to retreat from the above rigid practice-sensitive view of human rights to consider whether the right to identity can be considered a fundamental human right . Like what Beitz suggested before, every social practice has some purpose to serve . What we can do is interpret whether to regard the right to identity as a fundamental human right, which serves the purpose of human rights or not . The theorists in the political conception camp nevertheless have not come to a complete consensus on this . For Rawls, the basic function of human rights is to set 84

See David Miller, Joseph Raz on Human Rights: A Critical Appraisal, in: Cruft/Liao/Renzo (footnote 37), 235 .

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a necessary but not sufficient standard for the decency of domestic political and social institutions . Raz is in the same vein with Rawls except with a much more straightforward fashion that the next step of failing to fulfil the function of human rights would be implementing constraints or interventions on sovereignty . Therefore, if we treat the right to identity as a fundamental human right, then failing to respect such a right would cost the state their qualification as a decent member of international society, and thus, further actions from the international community can be anticipated . In light of the understanding of what the right to identity entails, it is obviously too stringent for state policies, if not wholly unreasonable . Moreover, no matter whether the right to identity would be considered a domestic legal right, if the failure of fulfilling the right to identity is enough to generate forceful intervention from abroad, then the moral significance of state autonomy is also under-appreciated . As Raz argues, the doctrine of domestic justice cannot simply be extended to the international arena .85 It would amount to asking international institutions to uphold a multiculturalism directive society, which is an intervention on states’ “constitutional essentials and matters of basic justice”86 . That is because, in a democratic society, free and informed agreement on questions regarding constitutional essentials and matters of basic justice can only be reached by reasonable and rational citizens relying upon widely shared political values . Beitz argues that the purpose of human rights is to protect urgent individual interests against certain predictable dangers to which they are vulnerable under typical life circumstances in a modern world order composed of states .87 And the expansion of human rights is not necessarily a problematic issue . International human rights are appropriate to the institutions of modern or modernizing societies, organized as political states, coexisting in a global political economy, and in which human beings face a series of predictable threats .88 Thus, the nature of these predictable threats determines the list of human rights .89 Then the question has evolved to: would the violation of rights to identity result in standard threats against indi85

86

87 88 89

Raz explains that the core point is, “much of the content of the moral principles which govern social relations and the structure of social organization is determined by the contingent practices of different societies . Hence the principles which should govern international relations cannot just be a generalization of the principles of justice which govern any individual society .” See Joseph Raz, Human Rights without Foundation (footnote 28), 331 . Constitutional essentials and matters of basic justice are raised by Rawls in Political Liberalism . By constitutional essentials, Rawls refers to two kinds, one is fundamental principles that specify the general structure of government and the political process, like the powers of the legislature, executive and the judiciary, the scope of majority rule, and second, equal basic rights and liberties of citizenship that legislative majorities are to respect, such the right to vote and to participate in politics, liberty of conscience, freedom of thought and of association and the protections of the rule of law . Rawls also proposed four grounds for distinguishing the constitutional essentials by the basic freedoms from the principles governing social and economic inequalities, including, more urgent needs to settle, far easier to tell whether they are realized, much easier to gain agreement and they specify different roles for the basic structure . Whereas matters of basic justice relate to the basic structure of society and so would concern questions of basic economic and social justice and other things not covered by a constitution . John Rawls, (footnote 50), 227, 230, footnote 23 on l . Beitz (footnote 49), 109 . Ibid ., 58 . Ibid .

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vidual interests? A “standard” threat is a threat that is reasonably predictable under the social circumstances in which the right is intended to operate .90 The human rights of international doctrine and practice are not understood or practiced as blanket protections of urgent interests under every circumstance; rather, the protections are normally involved in a limited range and type of threat .91 Basic human rights are essential to a normal, healthy life, as their deprivation can become very serious, and may result in threats to physical security and threats to economic security or subsistence . The deprivation of fundamental rights is a standard threat to rights generally .92 Beitz’s restriction of human rights with the notion of “standard threats” blocks the right to identity in general at the gate of human rights . The misrecognition of identity can “inflict a grievous wound, saddling its victims with a crippling self-hatred” . The damage of failing to fulfill identity, Taylor’s account suggests, is severe, nevertheless, not standard threats to individuals’ security . The two tests have shown that the right to identity in general is not a fundamental human right . It may invite the following objections that did the court in the 2014 case make a mistake by claiming such a right? Would it not be possible that, to some extent, the right to identity can be of vital need in case of “standard threats” for right-bearers? Just like the 2014 case, were not the descendants of Dominica and Haiti’s right to identity facing standard threats? In the 2014 case, was the court just “tolerating” such a right? In the future human rights judicial practices, how should the courts address such a right? 4.3 a TenTaTive way of addressinG suCh a riGhT As far as I am concerned, the conclusion that the right to identity is not a fundamental human right, is fully compatible with international courts’ decision in referring to, or mentioning, part of the right to identity . Inasmuch as the object of such rights is to protect urgent individual interests against the standard dangers, the right to identity is the characterization of those interests . In the 2014 case, the descendants of Dominica and Haiti are in vital need of the right to identity . To seek judicial protection for them, however, does not have to invoke the idea of the right to identity, since their essential interests can be inferred from other articles in the convention . In the 2014 case, the violations of petitioners’ right to nationality, name, family relationships and juridical personality have posed severe threats to their physical security . Lacking a conceptual justification of the right to identity, the judicial body, as a powerful branch in implementing international human rights, has the authority, and ought, to judge, case by case, under what circumstances, the violations by states have caused what level of hurt to individuals, and whether they have 90

91 92

The notion of standard threats is proposed by Henry Shue as the element which distinguishes basic rights from other general moral rights in the sense that only the deprivation of basic rights would engender standard threats . Shue thinks a fundamental purpose of acknowledging any basic rights at all is to prevent, or to eliminate, insofar as possible the degree of vulnerability that leaves people at the mercy of others . See Henry Shue, Basic Rights: Subsistence, Affluence, and U. S. Foreign Policy, Princeton, 1980, 29, 30 . Beitz (footnote 49), 111 . Shue (footnote 90), 33–34 .

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gone as far as to constitute the standard threats . Is this case-by-case deciding process of international judicial bodies just a toleration of judicial claims to identity? I think it is not . The term “toleration”–from the Latin tolerare in a general sense means: to put up with, countenance or suffer–generally refers to the conditional acceptance of, or non-interference with beliefs, actions or practices that one considers to be wrong but still “tolerable,” such that they should not be prohibited or constrained .”93 Toleration in the classic sense refers to a permission toleration which also can be found in historical writings and politics of toleration . According to it, with respect to what we are discussing, toleration in a relationship between an authority and a “different” minority (or various minorities) means that the authority gives qualified permission to the minority .94 The key element of a tolerance rule is disapproving . To qualify as a tolerance rule, the authority is, as a matter of fact, disapproving what it is tolerating . It is, however, not the position the Inter-American Court of Human Rights adopted in the 2014 case . The Court indeed held that the rights to identity had been violated and strongly disagreed with such violations . The Court is genuine when it incorporates the rights to identity into its decision and reasoning . Although the right to identity is best not to understand as a fundamental human right, international courts nevertheless are able to make genuine judgments regarding whether there are any standard threats involved in any part of individuals’ identities . The Court finds that the petitioners’ exercise of rights to nationality, juridical personhood, family relationships, and proof of identity had all been violated in the 2014 case . One’s nationality, juridical personhood, and family are all the inalienable and objective elements of one’s identity and the court makes its decisions on the ground that the recognition of the identity of persons facilitates the exercise of rights to nationality, juridical personhood, family relationships . The Court’s decision has inevitably forced us to break down the concept of identity into various component concepts, which further manifest the vagueness and indefiniteness of identity . One’s religion, ethnic background, sexual orientation, and cultural background are already widely seen or acquiesced as part of one’s identity . To approve rights to identity as fundamental human rights would inescapably invite more debates concerning what can be seen as giving rise to one’s identity . Current international human rights legislation, judicial verdicts, and enforcement have already given some of the background of identity human rights protection regardless of the theoretical contests, such as, freedom of religion . 93 94

Rainer Forst, “Toleration”, in: Edward N . Zalta (ed .), The Stanford Encyclopedia of Philosophy (Summer 2012 Edition) – http://plato .stanford .edu/archives/sum2012/entries/toleration/ [6 .10 .2015] Ibid . For groups that are roughly equal in power, and who see that for the sake of social peace and the pursuit of their own interests mutual toleration is the best of all possible alternatives, the relation of tolerance is not vertical but horizontal, that is the subjects are the objects of toleration as well . They prefer peaceful coexistence to conflict and agree to a reciprocal compromise, to a certain expediency status . If we go further, there is a third conception of respect toleration, which is the tolerating parties respecting one another in a more reciprocal sense . No matter how they differ from each other in their ethical beliefs about the good and way of life, they recognize one another as moral and political equals in the sense that their communal life should be guided by all parties equally . There is an even further conception of toleration named esteem conception implying an even fuller, more demanding notion of mutual recognition between citizens than the respect toleration does .

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5. concludIng marKs In this article, I argued that the right to identity, conceptually, is not a fundamental human right . It fails the two tests provided by two standards of human rights, respectively . Either it goes astray from the personhood account of human rights, or sets too demanding a requirement for states, the duty subject of human rights according to international human rights practice . The unfolding claim of the right to identity indeed corresponds to the world’s increasingly multicultural evolving trend . The future of the right to identity remains to be seen . What this paper suggests, plainly, is when we have specific reference and language to decide precisely which right has been violated or is facing the standard threats; we’d better not encourage the elusive expression of the right to identity . deutscHe Zusammenfassung Vor kurzem hat der Interamerikanische Gerichtshof für Menschenrechte ein ungeschriebenes Recht auf Identität geprüft, obwohl ein solches Recht in keinem internationalen Übereinkommen kodifiziert ist . Im Mittelpunkt dieses Aufsatzes steht die Untersuchung, ob das Recht auf Identität konzeptionell als fundamentales Menschenrecht angesehen werden kann . Für eine gründlichere Untersuchung als derjenigen, die der Gerichtshof vorgenommen hat, greift der Artikel für den Begriff der Identität auf Charles Taylors Interpretation von Identität und Anerkennung zurück . Die Forschungsfrage wird im Licht von zwei verschiedenen Kriterien für die Bestimmung von Menschenrechten geprüft, nämlich zum einen unter dem Kriterium der Menschlichkeit, demzufolge Menschenrechte grundsätzlich moralische Rechte sind, und zum anderen unter dem Kriterium einer politischen Konzeption, die Menschenrechte nach Maßgabe unserer internationalen Menschenrechtspraxis identifiziert .

mariana alves lara, nova lima fabio queiroZ Pereira, nova lima feliPe quinTella maChado de Carvalho, nova lima

Mariana Alves Lara/Fabio Queiroz Pereira/Felipe Quintella Machado de Carvalho

Body IntegrIty IdentIty dIsorder an Interface

Between

Body

and

Personal IdentIty

absTraCT: Both understanding what identity is, and how its interaction with the corporeal element works, constitute a fundamental topic in contemporary philosophical considerations . Corporeal experiences are a part of the individual’s identity formation process . Nevertheless, such experiences find strict boundaries for their accomplishment, both in the social environment and in the legal system, which often limit the autonomy of the individual in carrying out his or her choices . Such boundaries mainly come from Christian morality, which conceives of the body as a sacred vessel that cannot be mutilated or even modified . But, as it happens, the fact that desires to have body parts amputated have been reported in medical literature, must be opposed to said view . Amongst those who wish to cut off limbs, sufferers of Body Integrity Identity Disorder (BIID) stand out . An individual diagnosed as such suffers from a condition wherein the individual’s brain does not recognize a part of the individual’s body, usually a limb, as his or her own . Such a condition leads to intense suffering and to the desire to amputate the offensive limb . But, in Law, some ethical and legal positions are used to restrict the individual’s freedom to dispose of his or her body by means of an amputation surgery . Therefore, a discussion concerning the limits of individual autonomy, and the interferences on one’s free fulfillment, arises . Allowing the amputation of the limb by an adequate technical-professional leads to less hazards, including injuries or even death, which may happen in cases of self-mutilation . The individual’s autonomy must be respected, mainly because of the fact that sufferers of BIID are not delusional and are fully capable . The person is the center of the Law and the possibilities of the construction of identity must be wide enough for him or her to reach complete fulfillment . In conclusion, a wider range of possibilities of corporeal experiences becomes necessary, without the state’s interference in this scope of private autonomy .

1. IntroductIon Nowadays, the relationship between body and identity is a fundamental topic in philosophical considerations . Understanding what identity is, as well as how it interacts with the corporeal element, is something that must be constantly reviewed . As a consequence of this, it is possible to foresee the outlining and maturation of new ideas concerning what identity is . Such conceptual reformulation, in its turn, may have severe consequences, especially in Law, resulting in the remodeling of old legal concepts . Corporeal experiences are a part of the process of an individual’s identity formation . Nevertheless, corporeal experiences happen according to severe parameters, both in the social and in the legal orders, which many times end up limiting the individual’s autonomy in making choices . These limitations are mainly due to Christian morality, which conceives of the body as a sacred vessel that cannot be mutilated or even modified .1 The religious influence persists until today, and is de1

About this view, Brunello Stancioli and Nara Pereira Carvalho state that: “the understanding of this anti-natural idea of the uses of the body must be sought in the history of the body in the

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scribed by Antônio Cota Marçal as one of the elements that upholds undue public influences (by the State) in one’s private autonomy . According to him: “It is certainly because of religious beliefs and practices maintained by tradition and which are incompatible with the principles of the constituted Democratic State of Law that undue interferences of the State in the scope of individuals’ private choice are sustained . For example, the prohibition of euthanasia and abortion, restrictions to the use and disposal of the individual’s own body, the imposition of a certain matrimonial regime to people over sixty, the prevalence of public false interests in legitimate private interests, the lack of recognition of gay unions .”2

Aside from the religious conception, the body is also thought of as an instrument of work . This utilitarian view causes corporeal physical integrity to be considered an ideal element to be materialized in practice, hence, reinforcing the understanding of the body as a unit that should not suffer interventions . From this perspective, “the body must be explored in all its potentialities to achieve useful results . Therefore, any enterprise which at first may reduce the human body’s field of action and diminish its utility and productivity – especially economic – tends to be regarded as inadmissible” .3 A reality that must be opposed to said sacralization and mechanization of the body, is that of the desire for amputation of healthy limbs reported in medical literature . As it happens, some individuals do not feel adjusted in their bodies morphology, which leads them to aspire to the extirpation of arms, legs, fingers etc . Patients suffering from Body Integrity Identity Disorder – BIID –, a pathology normally characterized as psychiatric and neurological,4 stand out in a wide group of people who wish to amputate healthy body parts . Since they cannot receive medical help,5 people who have such amputation desires end up using their own methods to cut off the unwanted limb . They often use firearm shots, chainsaws, axes and chisels, and even insert what they consider

2 3 4

5

western world . Middle Ages can be conceived as the time of the greatest rejection and expunge of corporeal practices . Christianity imposed a body control regime, limiting sexuality and corporeal hedonism . Controlling the body was the means used for the control of subjectivity itself . […] Natural law served, too, as a means to maintain the status quo of the idea of body . Even if not demonized explicitly, until today it is considered by many as sacred and untouchable .” Brunello Stancioli / Nara Pereira Carvalho, Da integridade física ao livre uso do corpo: releitura de um direito da personalidade, in: Ana Carolina Brochado Teixeira / Gustavo Pereira Leite Ribeiro (ed .), Manual de Teoria Geral do Direito Civil, Belo Horizonte, 2011, 270 . Antônio Cota Marçal, Posfácio: pessoa e identidade pessoal, in: Brunello Stancioli, Renúncia ao exercício do direito da personalidade ou como alguém se torna o que quiser, Belo Horizonte, 2010, 149 (Freely translated from the Portuguese original) Laís Godoi Lopes / Mariana Alves Lara, Vivências pessoais do corpo e integridade física, in: Anais do I Congresso da Associação Mineira de Pós-graduandos em Direito, 2010, 524–542 . About BIID: “Whichever interpretation of aetiology of the disorder is correct, however, BIID falls within the purview of neuroethics . BIID is a neuroethical issue because it raises ethical questions, and because answering those questions requires us to engage with the sciences of the mind . The major ethical issue raised by BIID focuses on the question of the permissibility of amputation as a means of treating the disorder” . Cf . Neil Levy, Neuroethics: Challenges for the 21st century, Cambridge, 2007, 4 Robert Smith, a Scottish surgeon, became notorious when he asked for permission to amputate healthy limbs of two patients . Thenceforth, a debate started in the United Kingdom about the ethical character of healthy limb amputations .

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the offensive limb into recipients with dry ice until it gangrenes, which then allows it to be properly amputated by an appropriate surgical procedure at a hospital . Therefore, a discussion about the limits of individual autonomy and the interferences in one’s free fulfillment arises . If identity is thought of in dynamic terms, as opposed to corporeal experiences, the problem becomes even more relevant . The questions reside, then, in the possibility of wavering physical integrity in the name of personal identity fulfillment .6 The present work intends to problematize the formation of identity by means of corporeal manipulation in the extreme cases of individuals diagnosed as sufferers of Body Integrity Identity Disorder . Thinking of identity as an element that is constructed in the interaction between oneself and the other, it is important to question and to problematize the possibility of amputating healthy limbs as a therapeutic method to be used on those individuals . 2. amPutatIon desIres

and

BIId (Body integRity identity disoRdeR)

In spite of reports of amputation desires in medical literature, the study of such pathological condition is a new issue that arose a short time ago . One of the great reasons for this seems to be the advent and development of the Internet, which allows for communication between bearers of such wishes (of cutting off healthy body parts) . It is possible to find, in the virtual environment, several websites and blogs on the topic, which allow a constant exchange of experiences among people who feel uneasy about their own corporeal morphology and wish to amputate a healthy limb . After identifying a large number of reported cases, Professor of Clinical Psychiatry at the University of Columbia, Michael First, discovered the existence of a rare disorder through empirical research, which he named Body Integrity Identity Disorder – BIID . First carried out his research with a sample of fifty-two individuals who wished to amputate a limb or who had already amputated one themselves .7 He decided to keep the volunteers anonymous, using a method consisting of a telephone interview and comprising of 126 questions .8 Some interesting data arising from his research can be highlighted . Firstly, it was noticed that amputation desires often began at childhood or at the beginning of adolescence . In most cases among the interviewees, the desire was to amputate the lower part of one of the legs . Besides not conceiving of any aesthetic issue with the amputation, most interviewees declared their attraction to amputees . None of the

6

7 8

Brunello Stancioli states, in this line of thought: “The limit of the exercise of freedom and autonomy is exactly on the waiver . The search for good or righteous life follows the path of moral and ethical detachment, besides, substantially, rights waiver, related to the change in life status” . Cf . Brunello Stancioli, Renúncia ao exercício de direitos da personalidade ou como alguém se torna o que quiser, Belo Horizonte, 2010, 117 . Michael First, Desire for amputation of a limb: paraphilia, psychosis, or a new type of identity disorder, Psychological Medicine 34 (2004), 1 . First (footnote 7), 3

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research participants obtained significant results diminishing their amputation desires from psychotherapy or the use of medication .9 Furthermore, First reported that none of the interviewees thought of the limb in question as defective or embarrassing to their appearance . It is also important to emphasize that none of the individuals was in a delusional state, and that those whose main motivation for the amputation was sexual attraction were not considered in the research conclusions, having been characterized as sufferers of apotemnophilia . In his conclusions, First coined the term Body Integrity Identity Disorder to identify a rare disorder in the development of the fundamental perception, from the physical point of view, of who one is . Tim Bayne and Neil Levy, after refuting some hypotheses, corroborated the ideas exposed by First, presenting the following explanation for the amputation desires in sufferers of BIID: “A more plausible possibility is that BIID involves a mismatch between the wannabe’s body and their body image . One’s body image is a consciously accessible representation of the general shape and structure of one’s body . The body image is derived from a number of sources, including visual experience, proprioceptive experience, and tactile experience . It structures one’s bodily sensations (aches, pains, tickles, and so on), and forms the basis of one’s beliefs about oneself .”10

This way, BIID would be an identity disorder in which the person cannot become adjusted to his or her corporeal reality . The image the person has of his or her body is not equivalent to its authentic morphology . Due to such incompatibility between the brain image and the corporeal reality, the individual starts wishing, very strongly, to amputate the limb with which he or she does not identify – usually referred to as alien or offensive limb . According to renowned Brazilian neuroscientist Miguel Nicolelis, the corporeal image that each individual possesses of him or herself is, in fact, a product of a representation of the human brain, the actual “architecture of reality” . Nicolelis stated that: “The clinical evidence obtained from these patients underscores that our body image, that inexpugnable refuge of our carefully groomed individuality and mental uniqueness, emerges graciously as a dynamic by-product of the collective electrical activity of brain circuits to remain malleable and responsive to events occurring within, on, and beyond the physical boundaries of our mortal skin . Just like any good and sensible modeler of reality, the brain has endowed us with what feels like a true and concrete physical instantiation of the self, a stimulated body .”11

Another condition related to the topic is that of ghost limbs . People who suffer from such a disorder think that a part of their body that is actually no longer there is, in fact, still there . It is estimated that at least ninety percent of the individuals who have undergone an amputation procedure – legs, arms, breast, teeth, genitalia or internal organs – experience this feeling and relate that the ghost limb moves or experiences excruciating pain, a condition that can last for several years . 9 10 11

Michael First (footnote 7), 3–7 Tim Bayne / Neil Levy, Amputees by choice: body integrity identity disorder and the ethics of amputation, Journal of Applied Philosophy 22, n . 1 (2005), 78 . Miguel Nicolelis, Beyond boundaries: the new neuroscience of connecting brains and machines – and how it will change our lives, New York, 2011, 65–66 .

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On the other hand, the destruction of part of the neuromatrix can cause the loss of the feeling of possession of a body part . For example, after a cerebral trauma, a tumor or a stroke that causes damages in one of the parietal lobes, the patient can develop hemiagnosia (also called hemispatial neglect), becoming indifferent to one of the sides of the body . In such cases, the person denies that the limbs on the forgotten side belong to his or her body . BIID is another case of the inconsistency between the body experience of the individual and the actual structure of the individual’s body . In relation to such inconsistency, Michael First posed yet another open question: could the surgical procedure of amputation be thought of as the potential treatment for the disorder?12 Answering the question posed by Michael First, Sabine Müller, post-doctoral researcher at Charité – Universitätsmedizin Berlin believes that while all the potential available diagnosis methods (magnetic resonance tomography investigations, especially through positron emissions) are not used, treatments which generate irreversible effects should not be implemented . The author believes in the existence of less invasive and more effective therapies such as neurophysiologic rehabilitation, transcranial magnetic stimulation, or electric stimulation of the affected areas . Such appropriate brain therapies would be causal therapies, and not simply a cure of the symptom, as would be the case if an amputation took place .13 But it so happens that, in current medicine, there are no such appropriate brain therapies to undermine the amputation desires . The methods cited by Sabine Müller as less invasive and more efficient are not known in medical literature as techniques that can generate positive effects, including the reduction of amputation desires . In addition, empirical data revealed by Michael First’s research shows that sufferers of BIID do not report positive effects in the reduction of amputation desires when medication is used . That is, there are no appropriate medical or ambulatory techniques to improve the clinical condition of these individuals . Besides, as explained by Jenny Slatman and Guy Widdershoven, the idea that it is better to adjust the body to the neuronal corporeal image does not take into account that brain manipulation is too risky and that its exact procedure is still, in fact, impossible .14 As stated earlier, the expression Body Integrity Identity Disorder – BIID – was first suggested by Michael First . It is important, nonetheless, to establish the differences between that condition and other ones often associated with it, such as wannabes, apotemnophilia, and Body Dysmorphic Disorder – BDD . Wannabe is an ordinary and generic word to characterize any individual who has wishes to amputate any body part . The denomination is not used in reference to what causes the desires of self-mutilation, but rather to refer, in general, to anyone who has any such desire . Apotemnophilia, in its turn, is a kind of paraphilia (sexual behavior in which the main source of pleasure is not sexual intercourse) . Individuals with apotemnophilia feel sexually aroused by mutilated people or by the possibility of becoming

12 13 14

First (footnote 7), 8–9 . Sabine Müller, Body integrity identity disorder (BIID) – is the amputation of healthy limbs ethically justified? The American Journal of Bioethics, 9, n . 1, (2009), 42 . Jenny Slatman / Guy Widdershoven, Being whole after amputation, The American Journal of Bioethics, 9, n . 1 (2009), 48 .

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amputees themselves . In Michael First’s research, people who fit this profile were not taken into consideration . Lastly, the cases of Body Dysmorphic Disorder – BDD – are similar to anorexia, since the person believes that a certain body part is sick, or simply hideous . As a consequence of such misconception of his or her body, the person starts to worry extremely about its existence, and then to desire its amputation . It is clear, therefore, that persons identified as sufferers of BIID must be considered in a different framework provided by science, which distinguishes them from the ones discussed above . The reasoning regarding the construction of personal identity in sufferers of BIID must, then, take the peculiar aspects of the condition in consideration . 3. IdentIty

and

Body

Identity has been thought of exclusively in terms of the somatic criterion . However, from John Locke onwards, the corporeal element has been considered insufficient when defining the self . According to Antônio Cota Marçal, “Locke backed away from the theological and metaphysical discussions of his time, when he stated that ‘being a person’ is different from ‘being human’, and that the persistence in time and space is due to the fact that the person has the same conscience and not to maintaining the same body or an immaterial soul” .15 The substance that forms the corporeal element cannot, thus, be seen as a synonym of personal identity . However, the existing interaction between bodily experiences and the construction of a person’s identity must be considered an important catalyst in the development of both elements . Each person’s experiences depend on the body’s instrumentality . “The body is a part of reality and at the same time it is the mediator of all forms of the exercise of personhood .”16 In this context, the corporeal element is a revealing point of identity, according to Brunello Stancioli and Nara Pereira Carvalho: “The body is one the greatest revealers of identity . It mediates symbolic communication, ever more intense in a time of mass media and of an almost infinite reproducibility of image . Thinking of physical integrity in the traditional frames of the intangible becomes, thus, inappropriate . Aesthetic, medical, sports and sexual use of the body undermine the attempts to sacralize it . The challenge which arises is another one: the search for the real autonomy in the use of one’s own body .”17

In the social environment, the first form of identification of a person is necessarily the corporeal element . Thus, the way one recognizes oneself and one’s bodily image in the view of other persons, is determinative in the construction of one’s own personal identity .18 There is no way to think of the concepts as absolutely separated, 15 16 17 18

Marçal (footnote 2), 161 Stancioli/Carvalho (footnote 1), 272 Stancioli/Carvalho (footnote 1), 283 . “There remain, however, some body modifications which generate great malaise among people, because they suggest a distance from the physical which is considered natural/ideal for a human being . There are brandings (hot iron scars), subcutaneous prostheses, tongue bifurcation and teeth sharpening […] . This way, and apart from the different degrees of social acceptance, it can

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because it is the bodily experiences that most influence the formation of one’s identity . Nonetheless, what really must be highlighted is that, besides the dynamic relationship between the two elements, identification of identity, or even of the person, cannot be conceived as the person’s body anymore . Corporeal interventions are actually possibilities of free development of personal identity .19 Considering this, it is then possible to think of body experiments as a means to construct, deconstruct, or reconstruct identity . When undergoing cosmetic surgery, for example, a person becomes refreshed because he or she is receiving new characteristics, whether physical (changes in substance) or psychological . This is what Antônio Cota Marçal thinks: “It can be noticed that abstract and metaphysical entities such as essence, substance, nature and specific differences, thought of before as absolutely contrasting and empirically undeterminable, are giving way to identifiable relations of psychosocial character, and for graduations or degree relations, regarding human personhood, unit and personality . In this context, tolerance, respect and recognition – which had already been presented as virtues and of wide application in legal relations –, are imposed nowadays as conditions of possibility to advance in the endless construction and reconstruction of the self, of the other, of ends and values, of beliefs and practices, all constitutive elements of the life in society phenomenon .”20

Identity is from then on analyzed in a dynamic perspective . Bodily experiences throughout one’s life contribute to the constant construction of personal identity . The body, in this context, cannot be presented as the limit to the conception of identity . On the other hand, bodily experiences are indeed a part of the process of construction of the person’s identity, which illustrates the importance of the interaction between the body and the social environment in which it is inserted . According to Anthony Giddens, the body, like the self, has become “a site of interaction, appropriation and reappropriation” .21 It has become “fully available to be ‘worked upon’ by the influences of high modernity’” .22 This way, the body can be understood as: “a biocultural apparatus; it is the means of being in the world, in time and space; it is the mediating element between the axes of the human person, which allows his or her interaction with the surroundings, with other people, and with him or herself . This interaction includes having feelings and sensations and being noticed by the others . Lastly, the body is a conforming element of identity and, for this reason, highly plastic and mutable .”23

In this context, the conception of identity suggested by Derek Parfit stands out . Parfit works with several mental experiments in attempt to supply outlines for what personal identity might be . His conception is called reductionist and consists of considering that personal identity is constructed by permanent interactive relations

19 20 21 22 23

be observed that the body is a space of aesthetic and cultural-artistic manifestation . It is, thus, one of the first elements of identification and identity: how the person wants to be recognized in the social environment . And those are not solipsistic, isolated manifestations, but always social constructions .” Carvalho (footnote 4), 275 Stancioli (footnote 1), 121 . Marçal (footnote 2), 182 . Anthony Giddens, Modernity and self-identity: self and society in the late modern age, Cambridge, 1991 Giddens (footnote 24) Mariana Lara, O Direito à Liberdade de Uso e (Auto)Manipulação do Corpo, Belo Horizonte, 2014, 52 .

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surrounding facts, which ensure psychological continuity24 and psychological connectedness25 of the person with him or herself and of human beings in space and time .26 The existence of an indetermination intrinsically revealed in the idea of identity itself is then noticed . Its core does not show to be indissociable of the somatic criterion . However, its construction, based on psychological continuity and connectedness, happens by means of past corporeal relations . This new way of dealing with the understanding of identity leads to the rejection of the notion that identity is a static element . What can actually be noticed is a constant process of formation, based on the aforementioned elements . 4. an Interface

wItH

law

The concept of identity has a peculiar importance in the law . Several legal concepts are pondered from the perspective of an unchangeable identity that follows the person throughout his or her life . Working with a dynamic concept of identity would lead to a restructuring of all the existing legal framework . Thinking in terms of the existing limits in our law regarding corporeal experiences, a new conception of law based on a person’s freedom of development is necessary . The dynamic sense of identity is necessarily connected to a great autonomy of the person in guiding this process . When it comes to sufferers of BIID, this free construction of identity becomes even stronger, considering that those people are not adjusted to their corporeal reality and suffer extremely while keeping the unwanted limbs . The Brazilian Civil Code, in its Article 13, considers acts of disposal of one’s own body, forbidding them when they result in any permanent reduction of physical integrity or when they offend morality: “Article 13 . Unless by medical request, any act of disposal of one’s own body is forbidden, when it results in permanent reduction of one’s physical integrity or when it offends morality . Sole Paragraph . The acts determined in this article shall be allowed for purposes of transplant as established in legislation .”

In this sense, by interpreting the rule literally, and in isolation from the constitutional context, it would be illegal for a person diagnosed with BIID to undergo an amputation surgery . Since the removal of a body part would lead to a reduction of physical integrity – considered from the point of view of body wholeness –, apart

24

25

26

“Most of the relations which matter can be provisionally referred under the heading psychological continuity (which includes causal continuity) . My claim is thus that we use the language of personal identity in order to imply such continuity . This is close to the view that psychological continuity provides a criterion of identity” . Derek Parfit, Personal Identity, The Philosophical Review, 80, n . 1 (1970), 11 . “Psychological connectedness, as I define it, requires the holding of these direct psychological relations . Connectedness is not transitive, since these relations are not transitive . […] Psychological continuity, in contrast, only requires overlapping chains of direct psychological relations . So continuity is transitive” . Parfit (footnote 27), 20 . Marçal (footnote 2), 180 .

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from “offending morality”,27 there would be no space for questions concerning one’s autonomy in guiding one’s life up to the point of undergoing a surgical procedure resulting in an amputation .28 Nonetheless, the person must be considered the center of the law, according to what the Constitution sets forth, when it conceives of human dignity as one of the fundaments of the Republic in Article 1 . Allowing a person to make his or her own choices, even if they result in reduction of physical integrity, means contributing to the dynamic process of identity formation . As has been stated before, the concept of identity, then, must be considered dynamic, revealing a connection with the somatic criterion, but not being limited by it . The relational ties, the experiences, and the actions that we go through in life would, therefore, be central elements in the process of the construction of our personal identity . The body, in this context, cannot be conceived of as a limitation for the conception of identity . To the contrary, identity is not in the corporeal element, but its interaction with corporeal experiences is, indeed, a part of the process of construction of the person, revealing the importance of the interaction between the body and the environment in which it is found . Hence the need to rethink law considering this new conception, since, in this scenario, it is possible to conceive of the possibility of amputation as the materialization of human dignity for sufferers of BIID . In this context, the aforementioned Article 13 of the Brazilian Civil Code is incompatible with the ideas of autonomy and dignity, which are fundaments of the Federative Republic of Brazil, according to Article 1 of the Constitution . The individual’s right to free use and to (self)manipulation of the body must be defended, so that the person can reconstruct his or her body according to his or her autonomy, always seeking higher levels of emancipation . Every limitation to this right must be exceptional, circumstantial, and justified .29 Furthermore, scientific arguments can be found to corroborate the legal arguments as important fundaments for the right of a person to decide to amputate a certain body part . One argument is the fact that sufferers of BIID, because they do not accept a particular body part, try to carry out amputations themselves, which causes great risks of extensive injuries or even death . While there are no other means for restraining the desires for amputation, surgery is the least damaging solution, considering that the attempts of self-mutilation may have much graver consequences than the procedure carried out by a professional, with all due care .30 27

28 29 30

About the idea of “bons costumes” – “good customs”, translated here as “morality” – in article 13 of the Civil Code, Gustavo Tepedino et al. assert: “In a plural society which protects constitutionally the most varied standards of living and privileges tolerance and non-discrimination, it is hard to justify the prohibition of personal acts which do not affect anyone else, under the pretext of violation of good customs [morality] .” Gustavo Tepedino et . al ., Código Civil Interpretado conforme a Constituição da República, Vol . I . 2nd edition, Rio de Janeiro, 2011, 37 . In this sense: Cristiano Chaves de Farias / Nelson Rosenvald, Direito civil: teoria geral . 9th edition, Rio de Janeiro, 2011, 206, and Carlos Nelson Konder, O consentimento no biodireito: os casos dos transexuais e dos wannabes, Revista Trimestral de Direito Civil 15, julho-setembro 2003, 67 . Lara (footnote 23), 124–125 . Bayne (footnote 10), 80 .

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Another argument is the person’s autonomy . A person’s idea of what is best for him or her must be taken into consideration when a medical decision is made . Thus, a patient suffering from BIID seems to have enough autonomy to decide the technique employed in his or her treatment, even if the chosen one is amputation, as long as he or she is duly informed and does not lack legal capacity .31 Lastly, another argument is the therapeutic effects of amputation in those who have undergone the procedure . As stated previously, the use of medication and other medical techniques did not succeed in restraining the desires for amputation . However, patients who had their limbs cut off, either by self-injury or a proper surgery, reached a high level of satisfaction, without any signs of regret . Because those patients bear great suffering due to their condition and such suffering cannot be treated by a less severe method, the satisfaction following the amputation makes it worth it .32 5. conclusIon In the case of sufferers of BIID, the corporeal image in the brain does not correspond to the morphological reality of the body . Such incongruence leads to intense suffering and to a significant desire to amputate the offensive limb . In Law, most ethical-legal positions defend the impossibility of the person’s full freedom to dispose of his or her body up to the point of undergoing an amputation procedure . As a consequence, sufferers of BIID end up finding their own way of cutting off the unwanted limb, which aggravates the resulting injuries, and can even lead to death . Some scientific arguments provide the bases for a legal position that allows for the surgical procedures of amputation . Allowing the amputation by means of a proper technical-professional procedure results in a reduction of the losses that occur as a consequence of the injuries, and even of deaths that occur as a result of self-mutilation . Moreover, the person’s autonomy must be respected, mainly in regard to the fact that sufferers of BIID are not delusional, but, to the contrary, are fully capable . Besides, in the cases in which the limb was amputated, the individuals exhibited extreme satisfaction as a result, without any signs of regret . Thus, there are extremely positive therapeutic effects when the amputation procedure is carried out . Furthermore, it is important to think of the body as an element in constant interaction with personal identity . Taking this into consideration, the possibility must be granted to the person to achieve satisfaction and fulfillment . The person is the center of the Law and the possibilities of the construction of one’s identity must be wide enough . Human dignity is necessarily dependent upon the construction of personal identity . Lastly, it is important to notice that, when the discussion is based on extreme cases such as the ones involving individuals who suffer from the disorder described in this work, rethinking Law in favor of the person stands to reason . Thinking of the Law as something stagnant and detached from social reality cannot lead to justice . 31 32

Bayne (footnote 10), 82 . Bayne (footnote 10), 84 .

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Therefore, legally allowing wider possibilities of corporeal experiences becomes just as necessary as overriding public interferences in private autonomy . deutscHe Zusammenfassung Der Zusammenhang von körperlicher Selbsterfahrung und Identität ist ein wichtiger Gegenstand zeitgenössischer Philosophie . Das gilt umso mehr als körperliche Selbsterfahrung sowohl durch die soziale Umwelt als auch durch das Recht in erheblichem Maße eingeschränkt ist . Diese Beschränkungen wurzeln hauptsächlich in christlichen Moralvorstellungen, wonach der Körper ein heiliges Gefäß ist, das weder verstümmelt noch modifiziert werden darf . Dieser Sichtweise stehen jene in der medizinischen Literatur beschriebenen Fälle entgegen, in denen Menschen das dringende Verlangen verspüren, sich von Teilen ihres Körpers zu trennen . Unter denen, die den Wunsch empfinden, sich einen Körperteil abzuschneiden, sind jene hervorzuheben, die an Körperintegritätsidentitätsstörung (Body Integrity Identity Disorder – BIID) leiden . Unter dieser Krankheit leiden Menschen, die nicht in der Lage sind, einzelne Gliedmaßen ihres Körpers als eigene wahrzunehmen . Dies führt bei den Betroffenen zu einem immensen Leiden und zu dem drängenden Verlangen, das als fremd und widerlich empfundene Körperteil zu amputieren . Auf den Ebenen der Ethik und des Rechts wird jedoch üblicherweise die Position vertreten, dass die Freiheit des Individuums nicht die Befugnis umfasst, im Wege einer chirurgischen Amputation über seinen Körper zu verfügen . Das hat eine Diskussion über die Grenzen der individuellen Autonomie hervorgerufen . Die Autonomie des Individuums muss vor allem deshalb respektiert werden, weil diejenigen, die an BIID leiden, nicht an einem Wahn erkrankt sind, sondern als voll zurechnungsfähig zu gelten haben . Die Person steht im Mittelpunkt des Rechts und die Möglichkeiten der Konstruktion von Identität müssen so weitreichend wie möglich sein . Die körperlichen Selbsterfahrung muss in größerem Umfang ermöglicht werden und der Staat darf in diesen Bereich privater Autonomie nicht eingreifen .

Janne mende, kassel collectIve IdentIty absTraCT: This article analyzes the meaning and scope of collective identity in its various manifestations in philosophy, the social sciences, and the law . It introduces the concept of individual identity, which is often considered to be the counterpart of collective identity . Individual identity is presented as intrinsically entangled with its other, the non-identical, containing emancipatory and repressive effects on all sides . On this basis, the article questions the assumption of a close relationship between individual and collective identity by illustrating how collective identity is formed through internal and external ascriptions, and how collective identity presents just one possible intermediary mechanism between the individual and society . This central feature distinguishes the relationship between collective identity and individual identity from the relationship between the identical and the non-identical, or between the individual and society . Whereas the latter build an essential and indispensable mutually constitutive relationship, collective identity is not the only constituting mechanism for individual identity . Analytically, this approach highlights a tripolar constellation between the individual, intermediary, and society . Normatively, it allows for the discussion of collective identity with regard to its openness to its non-identical, and to other intermediaries .

1. IntroductIon A human right to collective identity is taking form in international law and practice . It has increasingly become the subject of concern in human rights declarations1 and in human rights courts’ judgments . At the same time, its scope, content and meaning is highly controversial . This is due to the analytical and normative openness of the term identity, which, in different approaches and epochs, entails various and contradictory meanings, both analytically and normatively .2 Analytically, identity may refer to individual or collective, personal or social, political or cultural identity, all of which can be linked to an abundance of further associations and affiliations . The relationship between individual identity and collective identity, too, is discussed controversially . Some see a clear distinction between the two .3 Other, more influential accounts underscore the social dimension of every human identity, even the most private or individual one .4 It is due to this 1

2

3 4

The United Nations Declaration on the Rights of Indigenous Peoples from 2007 plays a leading role in this development . While it is not legally binding, it is normatively important for the implementation of identity language into international and national law . Cf . Janne Mende, A human right to culture and identity?, 2016 (forthcoming) . The development of minority rights and collective rights points in a similar direction . For the term’s vast development, cf . e .g . Philip Gleason, Identifying identity, The Journal of American History 69 (1983), 910–931, 912 ff .; Rogers Brubaker / Frederick Cooper, Beyond “identity”, Theory and Society 29 (2000), 1–47, 2 ff .; Karen A . Cerulo, Identitiy construction, Annual Review of Sociology 23 (1997), 385–409; William James Millar Mackenzie, Political identity, Basingstoke, 1978 Rawi Abdelal / Yoshiko M . Herrera / Alastair Iain Johnston / Rose McDermott, Identity as a variable, Perspectives on Politics 4 (2006), 695–711, 701 In these approaches, identity is based on dialog, recognition, interaction and interdependency . Cf . e .g . Richard Jenkins, Social identity, 2008, 17; Paul Gilroy, The black Atlantic, 1993, 53; Charles Taylor, The politics of recognition, in: id ., Multiculturalism, 1994, 25–73, 34; Craig J .

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analytical openness that some do not regard identity to be a useful concept for scholarship, much less for law . “If identity is everywhere, it is nowhere .”5 It entails too much and, simultaneously, too little . Not enhancing a specific meaning, but claiming vast significance, it can mean anything and nothing: it is a “plastic word” .6 Normatively, the effects and implications of identity are discussed even more controversially . Discussions center around the questions to what extent identity is ineluctable for agency and a self, whether it is rigid and static or fluid and dynamic, whether it is culturally constructed and therefore not a valid universal concept, and whether the aim of scholarship should not be “to rediscover the roots of our identity, but to commit itself to its dissipation .”7 The normative discussion concerning collective identity evokes even stronger positions in terms of affirmation or rejection . Is collective identity an emancipatory common good that should be enhanced and protected by law, and that provides the basis not only for political struggles, but also for personal identity and agency? Or is collective identity rather externally ascribed and consequently forms a repressive “group membership from which there is in principle no escape”?8 The main challenge of the analytically and normatively heterogeneous questions and answers lies in the growing political and juridical significance of identity . Identity is “among the most normatively significant and behaviorally consequential aspects of politics”9 of which the development of a potential right to identity in international law is one of the most significant examples . The following article is dedicated to the analysis of the meanings and scope of collective identity by discussing both the strong and the weak points of basic identity concepts from philosophy and the social sciences . In order to tackle the analytical and normative dimensions of collective identity, Part I discusses a concept that is often considered to be the counterpart of collective identity: the concept of individual identity . The article is based on the claim that identity is constitutively and necessarily intrinsically entangled with its other, the non-identical . Part I analyses the different specific (Chapter I .1) and general (Chapter I .2) forms that the other can take on in its relation to identity . Chapter I .3 illustrates that those forms cannot be dichotomously separated from each other . A normative perspective elucidates the emancipatory and the repressive effects on all sides . On this basis, Part II scrutinizes the concept of collective identity . It questions the common assumption of an intrinsic relationship between individual and collective identity by looking at the specific ways in which collective identity is formed by internal and external ascriptions (Chapter II .1) . Subsequently, the constitutive role

5 6 7 8 9

Calhoun, Social theory and the politics of identity, in Craig J . Calhoun (ed .), Social theory and the politics of identity, 1994, 9–36, 20 . Brubaker/Cooper (footnote 2), 1 Uwe Pörksen, Plastic words, 1995 Michel Foucault, Nietzsche, genealogy, history, in: Paul Rabinow (ed .), The Foucault reader, 1984, 76–100, 95 Geoff Dench, Minorities in the open society, 2003, quoted in Zygmunt Bauman, Community, 2003, 89 Rogers Smith, Identities, interests, and the future of political science, Perspectives on Politics 2 (2004), 301–312, 302

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of collective identity for individual identity can be qualified in that the former is not the only constituting mechanism for the latter (Chapter II .2) . This account provides the basis for a normative discussion of collective identity in which its openness towards its other and towards other others is at stake (Chapter II .3) . 2. IndIvIdual

IdentIty

2.1 idenTiTy and iTs sPeCifiC oTher In the 20th century, an influential strand in scholarship on identity established an understanding of identity as a dialogical and intersubjective category . Notwithstanding the differences between the approaches within that strand, they jointly counter the assumption that an individual’s identity may be something that one achieves alone, in a monological manner, simply by introspection or by self-engagement . This insight far exceeds 20th century philosophy . A purely monological introspection does not lead to identity: “of this we are utterly incapable; as soon as we attempt to do so, and, by turning our cognition inwards, strive for once to attain complete self-reflection, we lose ourselves in a bottomless void, find ourselves resembling the hollow glass ball out of whose emptiness a voice speaks that has no cause within the ball, and, in trying to grasp ourselves, we clutch, shuddering, at nothing but an insubstantial ghost .”10

Taylor is one of the most prominent contemporary representatives of this strand . He develops his concept of a dialogical identity based on two ideas: The first idea is that of reciprocal recognition which Taylor borrows from Hegel’s chapter on lordship and bondage in the Phenomenology of Spirit. The ratio is that my recognition as an individual by someone else is dependent on my recognition of someone else as an individual . “They recognize themselves as mutually recognizing one other .”11 The second idea that is central to Taylor’s dialogical identity concept is based on Mead’s symbolic interaction theory: “we are what we are in our relationship to other individuals through taking the attitude of the other individuals toward ourselves so that we stimulate ourselves by our own gesture” .12 Taylor especially uses Mead’s conceptualization of the significant other–i . e . someone who is relevant to a person– to introduce his concept of a dialogical identity: “This crucial feature of human life is its fundamentally dialogical character . We become full human agents, capable of understanding ourselves, and hence of defining our identity, through our acquisition of rich human languages of expression . […] People do not acquire the languages needed for self-definition on their own . Rather, we are introduced to them through interaction with others who matter to us – what George Herbert Mead called ‘significant others .’ The genesis of the human mind is in this sense not monological, not something each person accomplishes on his or her own, but dialogical . […] We define our identity always in dialogue with, sometimes in struggle against, the things our significant others want to see in us . […] Thus my discovering my own identity doesn’t mean that I work it out in isolation, but that I negotiate it

10 11 12

Arthur Schopenhauer, The world as will and idea, 1995, 358 Georg Wilhelm Friedrich Hegel, Phenomenology of spirit, 1977: § 184, emphasis deleted; cf . Charles Taylor, Hegel, 1975, 153 ff . George Herbert Mead, Mind, self, and society, 1979, 279

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All individual interests, wishes, values, tastes, desires and opinions, or everything that builds an individual identity, only makes sense or even can only come into being in a dialogical and intersubjective way . In other words, every constitution of an identity, and thus of a subject with agency and a self, is in need of its other: of something that is outside, something that is not identical . The ratio of this constellation goes back to Hegel’s theory far beyond his master-slave-chapter . Hegel develops the relationship between an inside and an outside (between something that is identical and something that is not identical: something and an other) as a constitutive element for both sides . Hegel states that both sides are interchangeable in that both are something, and both are an other . In this mutual constitution, they are interrelated . “Something is therefore immediate, self-referring existence and at first it has a limit with respect to an other; limit is the non-being of the other, not of the something itself; in limit, something marks the boundary of its other . – But other is itself a something in general . The limit that something has with respect to an other is, therefore, also the limit of the other as a something; it is the limit of this something in virtue of which the something holds the first something as its other away from itself, or is a non-being of that something . The limit is thus not only the non-being of the other, but of the one something just as of the other, and consequently of the something in general . But the limit is equally, essentially, the non-being of the other; thus, through its limit, something at the same time is . In limiting, something is of course thereby reduced to being limited itself; but, as the ceasing of the other in it, its limit is at the same time itself only the being of the something” .14

Something (an inside, an identity) needs a limit to its constitution for its formation, identification and definition . This limit excludes the other (an outside, the nonidentical) . It cuts off everything that is not identical, or that does not belong to something . Consequently and simultaneously, this limit builds and constitutes the other which, through its differentiation from something other, becomes something, too . The recourse to Hegel shows that while dialogical identity approaches are based on this idea, the entanglement between identity and its other exceeds the image of a dialog between individuals . This entanglement and its meaning for contemporary identity concepts can be established more clearly with Adorno . Adorno, also based on Hegel, develops an account of this entanglement by emphasizing that both sides – the identity and the non-identical – are not only extrinsically mediated, but also intrinsically . The non-identical (the ‘more’ of the identical) is not just exterior to the identical, it is not just the other that is differentiated by a limit . Rather, through constituting the identical, it can be found inside the identical . “This ‘more’ is not imposed upon it but remains immanent to it […] . The innermost core of the object proves to be simultaneously extraneous to it, the phenomenon of its seclusion, the reflex of an identifying, stabilizing procedure .”15 Identity and its other–the identical and the non-identical–are mediated in that each is an intrinsic part of the other . At the same time they are entangled, both remain two contradictory, opposing mo13 14 15

Taylor, The politics of recognition, 32 f ., emphasis added Georg Wilhelm Friedrich Hegel, The science of logic, 2010, 98 f . Theodor W . Adorno, Negative dialectics, 2004, 161

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ments . One is constituted only through the other, always containing its opposite in itself . This mediated relationship has enormous normative implications: Both sides can contain emancipatory and repressive elements, elements of freedom and elements of determinism . “Freedom and intelligible character are akin to identity and nonidentity, but we cannot clearly and distinctly enter them on one side or the other . The subjects are free, after the Kantian model, in so far as they are aware of and identical with themselves; and then again, they are unfree in such identity in so far as they are subjected to, and will perpetuate, its compulsion . They are unfree as diffuse, nonidentical nature; and yet, as that nature they are free because their overpowering impulse–the subject’s nonidentity with itself is nothing else–will also rid them of identity’s coercive character .”16

Identity is the basis for agency, a consciousness of the self and coherence . As such, it is emancipatory: It allows freedom from nature, from mere instinct, reflex and immediacy . It enables experience, learning, development, planning and contemplation . At the same time, identity can become repressive . It can restrict desire, choice, or freedom to think or to act, when it takes on a rigid form that ascribes certain social roles or characteristics to a particular identity . Then again, the non-identical entails freedom against this compulsion of identity . The non-identical promises deviation, variation, choice, and distance . At the same time, the non-identical can be repressive, when it renders reflection and a coherent consciousness impossible in favor of nature and instinct . The philosophically broader categories of the identical and the non-identical build a basis to emphasize and strengthen the intersubjective, dialogical strand of identity theories . Thus, the latter can be provided with a substantially and normatively important foundation: The notion of a pure identity or of a pure non-identical is hypothetical, as both constitute each other and already contain each other, while still building two distinct poles . There is no existence of identity or its other prior to their mutually constitutive relationship . Neither is their separation absolute or dichotomous . There would be no individual identity without its other and vice versa . What is more, the constitutive mediation between the two, their mutual containment is not only analytically uncircumventable, but normatively important . Freedom, agency, autonomy, critical distance and reflection are in need of both poles . This way, an identity theory can circumvent any one-sided hypostatization or essentialism of identity on the one hand, or the non-identical or the other (or difference, another highly controversial and normatively charged term), on the other hand . 2.2 idenTiTy and iTs General oTher The rather indeterminate use of the term other, or non-identical, highlights an issue that is discussed in dialogical identity theories with more or less emphasis . The other is often imagined as another individual (or other individuals) . For Hegel, the lord’s other is the bondsman and the bondsman’s other is the lord, but their, or any inter16

Adorno (footnote 15), 299

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subjective, relationship does not take place in a social vacuum . According to Hegel, the type of surrounding society and the potential for concrete freedom the society does or does not provide is of utmost importance for the possible outcome of the relationship between lord and bondsman .17 For Mead, the generalized other–e . g . in the form of social institutions18–is at least as important as the significant other . Any intersubjective process is embedded in some type of society or social institutions, entailing values, norms, rules, and expectations . The inevitability of this embeddedness is distinctly conceptualized in Adorno’s notion of the relationship between the individual and society . It is no accident that its structure resembles that of the relationship between identity and the non-identical . The individual and society are intertwined in such an intrinsic and constitutive way that one does not exist without the other . They imply and, more importantly, they contain each other . No side can exist without the other side . This means that there is no ‘first’ and no order of appearance . At the same time, they build two different sides of the relationship and remain contradictory . They do not dissolve into one holistic identical amalgam (a synthesis) . Their relationship is characterized by internal and external relations, dynamic processes, and contradictions that are accompanied by mutuality and similarities . The relationship is neither substantially determinative, nor historically static . It takes on a variety of forms and types with different roles of autonomy and power within it . But what they do have in common is that there is no individual exterior to society and no society independent of individuals . Both do not exist outside of their mediation, “because the concept of the mediation between the two opposed categories–individuals on one side and society on the other–is implicit in both” .19 This way, autonomy and agency as possible features of an emancipatory identity can be regarded as constituted through and enabled by society . Consequently, the form of society–its constraining and its enabling aspects–conditions the extent and form of autonomy, or the question of emancipatory or repressive identity constitution . The important point is that a normative identity theory that strives for an individual’s autonomy, choice, or freedom cannot aim to abolish society per se, but can only aim to abolish society’s constraining elements . In other words, an individual’s autonomy, or an emancipatory identity, is only possible within an emancipatory society . This constellation reappears in various forms in contemporary identity theories, which, in turn, gain their foundation here . The inevitability of society can be found in Taylor’s concept of the moral space . The moral space provides individuals with strong values and ideas about good life and human dignity: “living within such strongly qualified horizons is constitutive of human agency, that stepping outside these limits would be tantamount to stepping outside what we would recognize as integral, that is, undamaged human personhood .”20 The moral space can be changed at times, but it can never be left behind . Individuality and identity can only exist within it . When underpinned with 17 18 19 20

Hegel (footnote 11): § 182 ff .; cf . Jürgen Ritsert, Asymmetrische und reine Anerkennung, in: Benno Hafeneger (ed .), Pädagogik der Anerkennung, 2002, 80–103, 88 Mead (footnote 12), 261 Theodor W . Adorno, Introduction to sociology, 2002, 38 Charles Taylor, Sources of the self, 1989, 27

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Adorno’s concept of the mediation between individual and society,21 Taylor’s moral space can be brought together with autonomy . This way, the moral space would not rigorously determinate values and restrict individual agency, but it would be the prerequisite for autonomy just as for any other social constellation .22 Still, Taylor’s approach makes it difficult to analyze the moral space in both its emancipatory and its repressive facets, and to criticize the latter . In opposition to that, Young makes the potentially restraining effects very clear . “Individual actors find themselves located in certain positions in relation to others, in a web of social relations that varies across societies, and which changes in a particular social history . Contemporary American society positions me as a woman, white, Anglo, professional, and so on . Without my choice, I find myself designated in certain ways by others that imply specific norms and status in relation to others . Any of us finds ourselves positioned in multiple ways in modern societies . […] Social positioning conditions the lives of individuals by posing constraints on action and distributing benefits and burdens .”23

Society, institutions, and structures position individuals in certain ways . By providing structures and scopes of action and by structuring behavior and agency, they simultaneously enable and constrain agency . From a normative perspective, the decisive question lies in the form and proportion of one or the other . From an analytical standpoint, however, Young proceeds remarkably: “It is a mistake to think that structural positioning forms the identity of persons” .24 Similarly, Alcoff underlines the power of society and structures which still leave space for the formation of an own identity: “Individuals make their own identity, but not under conditions of their own choosing .”25 Young and Alcoff emphasize that an individual can take its own stance with regard to its social surrounding . In other words, social positioning does not rigidly determine identity . In a sharp interpretation, this assumption would either contradict dialogical identity theories and place the source for identity formation just inside the individual–a theory that has been convincingly disproved; or this assumption would erect a binary differentiation between significant others, i . e . other individuals who are part of my identity formation on the one hand, and general others, i . e . society, social institutions, structures and processes that position me, but that have no influence on my identity, on the other hand . In this view, the mediated relation between identity and the non-identical on the one hand (Chapter I .1), and the relation between individual and society on the other hand (Chapter I .2), would be two strictly separate constellations . In the following chapter, this assumption will be disproved by showing how identity is built upon internal and external ascriptions, the latter containing society, the moral space, social positioning as well as the specific other .

21 22 23 24 25

Both base their work on Hegel, hence this underpinning is not too far-fetched . But see next chapter, where Taylor’s conception turns out to be more rigid . Iris Marion Young, Deferring group representation, in: Ian Shapiro / Will Kymlicka (ed .), Ethnicity and group rights, 1997, 349–476, 365; also see Iris Marion Young, Gender as seriality, Signs: Journal of Women in Culture and Society 19 (1994), 713–738, 726 Young, Deferring group representation, 365 Linda Martín Alcoff, Introduction, in: Linda Martín Alcoff / Eduardo Mendieta (ed .), Identities, 2003, 1–8, 3

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2.3 inTernal and exTernal dimensions of idenTiTy In sharp contrast to the denial of a social positioning’s or a stereotype’s ability to affect an individual identity, Jenkins puts the mediation between internal and external identity ascriptions in the foreground of his identity theory . He even claims that “it is the power of categorization–the subjugation of the internal moment of identification by the external–that characterizes the modern human world .”26 Identity simultaneously consists of internal and external moments . It cannot even be understood by considering only one side . Invoking a mediated constellation between internal and external dimensions, Jenkins emphasizes that he does not mean to reify the distinction between them, or to understand them as sequential . The two poles implicate and need each other and this usually happens simultaneously during the process of identification . Identity is a social process of interaction that is never settled .27 Drawing on the concept of intrinsic and extrinsic mediation introduced above, Jenkins’ concept seems to be an extrinsic constellation of internal and external moments dissolving into the synthesis of identity . In the theory of intrinsic mediation, the two moments contain and constitute each other . Each is part of the other . The internal processes of identification do not spring from an isolated, self-sufficient self which then is confronted with external ascriptions . Rather, these internal ascriptions are already always touched and formed by interaction with the outside world and they depend on some kind of (formal or informal) recognition from the outside world (in its various general and specific forms) . The same goes for external processes of identification . They do not work unilaterally, striking an individual like a comet . External ascriptions, such as social positioning, discourses, appellations, powers and techniques of attribution, categorization, and identification are not directly translated into internal ascriptions . How the former influence the latter differs . This is what Young and Alcoff aim at in a less sharp interpretation: the external ascriptions are not rigidly determining . Internal and external moments can either clash or they can converge . They can build new forms and their respective parts in these processes can be of different extent . In other words: while the moments constitute each other, they develop a certain degree of independence . Normatively, Young and Alcoff emphasize the decisive point that the relationship between external and internal attributions is not just dialogically structured, but also contains repressive moments . For example, repressive or coercive moments seem to be clearly identifiable in those processes of external attribution and categorization that display only minimal mutuality with internal attribution . In best case scenarios, they can be identified as stereotypes and be rejected . Other external attributes, however, (some famous ones include gender, nationality or ethnicity) shape, form, and influence self-perception in a deeply constitutive and identity-influencing way . In most real life scenarios, external attributes are not a matter of critical distance, choice, or freedom .28 At the same time, external and internal ascriptions can also be productive and emancipatory, enabling agency and a coherent self . This aspect is emphasized in dialogical identity theories . 26 27 28

Jenkins (footnote 4), 201, emphasis added Jenkins (footnote 4), 47, 17 This is mirrored in the struggles of people who don’t want to be identified as male or female .

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The frame of analysis elaborated so far helps to develop an understanding of identity that is neither a pure external attribution, nor an identity originating from an isolated inner self . Identity consists of external attributions that can be translated, formed, and changed . The term external attribution is compound of an objective, i . e . a societal, and an inter-subjective, i . e . a dialogical level . Both levels are deeply intertwined with each other in several respects . Simply put: There is no inter-subjective dialog that is not formed and touched by society (and vice versa) . Both levels can, and do, contain repressive elements of power, dominance, inequality, and constraint that are not always easy to transform . The decisive point is that internal and external ascriptions are not just two different bundles that collide at some point and then build a whole identity . Both kinds of ascriptions are constituted through each other; they form and influence, and at times struggle against, each other . 3. collectIve IdentIty A common strand of identity theory places individual and collective identity in a mutually constitutive relationship . “Collective identities are in constant interplay with personal identities” .29 Jenkins argues that: “with respect to identification, the individually unique and the collectively shared can be understood as similar in important respects; the individual and the collective are routinely entangled with each other; individual and collective identifications only come into being within interaction; the processes by which each is produced and reproduced are analogous; the theorization of identification must therefore accommodate the individual and the collective in equal measure .”30

If this were true, the mediation between individual and collective identity would bear a decisive normative consequence with regard to a right to collective identity . Identity building as a dialogical process that is based on recognition can fail, when recognition is denied . This would apply to collective identity to a greater extent . If a collective identity is being negated, marginalized, or suppressed, then this misrecognition is internalized and damages the individual identity .31 According to this perspective, a collective identity is constitutive for individual identity and, thus, should be politically recognized and legally protected . However, this assumption must be qualified and re-conceptualized in several respects . In order to get a clearer look at the analytical and normative substance of collective identity, it is necessary to examine the ways collective identity is compounded by internal and external ascriptions (3 .1), and to what extent collective identity is constitutive for individual identity (3 .2) . Integrating the concept of collective identity into the mutually constitutive relationship between individual iden-

29 30 31

Francesca Poletta / James M . Jasper, Collective identity and social movements, Annual Review of Sociology 27 (2001), 283–305, 298 Jenkins (footnote 4), 37 f . Taylor, The politics of recognition, 25 f ., but see Richard D . Ashmore / Kay Deaux / Tracy McLaughlin-Volpe, An organizing framework for collective identity: Articulation and significance of multidimensionality, Psychological Bulletin 130 (2004), 80–114, 101 f .

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tity and society enables us to discuss collective identity on a normative basis, beyond the scope of the usual controversies (3 .3) . 3.1 ColleCTive idenTiTy and The inTernal-exTernal disTinCTion It is necessary to draw a distinction between the relationship between internal and external ascriptions, on the one hand, and the relationship between individual and collective identity, on the other hand . Nevertheless, their conflation is a commonly made assumption: “Individuals and groups remain analytically distinct objects, each requiring its own conceptualization . The essential difference lies in the collective meaning inherent in social identities . Whereas individual identities are subjective, collective identities are ‘intersubjective’” .32

In this approach, individual identity is equated with internal (intrasubjective) aspects and collective identity is equated with external (intersubjective) aspects . In contrast, the previous chapters demonstrated how individual identities are never strictly built subjectively, but are, rather, always formed and constituted in relation to external ascriptions . These include intersubjective aspects (dialog, recognition, expectations by significant others) as well as societal ones (categories, positioning, the generalized other) . But how does this constellation apply to collective identity? Jenkins mentions a fundamental differentiation that is implicitly based on the distinction between the internal-external and the individual-collective relation: “a distinction can be made between a collectivity which identifies and defines itself (a group for itself) and a collectivity which is identified and defined by others (a category in itself) .”33 In short, Jenkins differentiates between internal and external ascriptions of a collective identity . This approach can be placed in a broader, and simultaneously more inclusive, perspective: Just as individual identity is constituted by the interplay between internal and external ascriptions (which again are mutually constitutive), so is collective identity . It contains a group’s internal descriptions and a society’s ascriptions; both can intermingle or stand in sharp contrast .34 Both internal and external ascriptions form individual and collective identity, but this is not one and the same process . It takes place at different levels . The relationship between internally and externally attributed identities can, therefore, not be conflated with individual and collective identity . On this basis, an analysis of the internal-external relation’s role concerning the constitution of collective identity becomes possible . Historically, multiple cases demonstrated how non-dominant groups internalized the external, dominant (generally white, male) gaze, and saw themselves as inferior . The Black Power movement and the subsequent African-American movement are both examples of how non-dominant groups consciously took these attrib32 33 34

Abdelal/Herrera/Johnston/McDermott (footnote 3), 701 Jenkins (footnote 4), 43 Ashmore/Deaux/McLaughlin-Volpe (footnote 31), 83 ff . provide an overview of different elements of collective identity from a psychological perspective, including self-categorization, placing self in social category, evaluation, attachment, interdependence, social embeddedness and group story, among others .

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utes and recoded them as positive, thus turning an externally attributed, negative collective identity into one providing collective dignity and self-consciousness . The reason behind this step is racist mechanisms which call for more than “to require being treated with equal dignity despite being Black, for that will require a concession that being Black counts naturally or to some degree against one’s dignity . And so one will end up asking to be respected as a Black .”35 More often than not, there will be a normative difference between a mainly internally ascribed and a mainly externally ascribed collective identity . As a rule of thumb, the more a collective identity is formed by external ascriptions, the less emancipatory and autonomous it probably is .36 But this does not lead to the opposite assumption that only collective identity is valid, if it is internally ascribed . External ascriptions constitute collective identity just as they constitute individual identity . Some external ascriptions may influence collective identity more intensely than others . They may be so influential, strong, and socially embedded, that they cannot just be ignored or escaped . At the same time, because they are socially embedded, they are contingent and changeable . Therefore, there is no collective identity that is a “category in itself ”37 in that it would be static, objective, and naturally given . Thus, it is usually an emancipatory step to challenge externally ascribed collective stereotypes . The problem is that an internally ascribed collective identity can contain as much restraint as an externally ascribed collective identity . “Demanding respect for people as blacks and as gays requires that there are some scripts that go with being an African-American or having same-sex-desires . There will be proper ways of being black and gay, there will be expectations to be met, demands will be made . It is at this point that someone who takes autonomy seriously will ask whether we have not replaced one kind of tyranny with another . […] I would like not to have to choose . I would like other options .”38

In other words, there is no such thing as “a group for itself ”39 (i . e . a purely internally ascribed collective identity) either, for two reasons . First, internal ascriptions can never be dichotomously separated from external ascriptions . This becomes even more manifest when internal ascriptions rely on a pure reversal of dominant external ascriptions without bursting them . The example above shows how demanding respect for being Black, instead of despite being Black, changes the valuation of being Black, but not the ascription of being Black .40 It is difficult to avoid a reversal of dominant ascriptions rather than destroying them or inventing new ones, because of the strength of external ascriptions and because of the impossibility of inventing un-societal, purely internal ascriptions . Second, there can never be an absolute identity between a collective and its individuals, no matter how dominant internal ascriptions may be vis-à-vis external ascriptions . 35 36 37 38 39 40

Kwame Anthony Appiah, Identity, authenticity, survival, in: Charles Taylor (ed .), Multiculturalism, 1994, 149–163, 161; also see Stuart Hall, New ethnicities, in: Stuart Hall (ed .), David Morley / Kuan-Hsing Chen, 1996, 442–451, 443; Frantz Fanon, Black skin, white masks, 1986 Similarly: Ashmore/Deaux/McLaughlin-Volpe (footnote 31), 90 Jenkins (footnote 4), 43 Appiah, Identity, authenticity, survival, 162 f . Jenkins (footnote 4), 43 The term Black refers to a social, not a biological categorization .

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While internal collective ascriptions and the reframing of external ascriptions can provide a basis for social struggles, they can also constrain agency and critical distance for the individuals within that collective . There are three reasons for this . First, “Whereas collective identity is explicitly connected to a group of people outside the self, personal identity typically refers to characteristics of the self that one believes, in isolation or combination, to be unique to the self .”42 Second, from this feature arise collective scripts that structure and categorize common behavior and norms . Third, collectives contain not only heterogeneous individuals, but they position individuals along power imbalances and inequalities . At this point, the fundamental difference between individual and collective identity gains traction . Both are constituted by external and internal ascriptions, and both can contain empowering and restraining elements . But they can never be identical . What role, then, does collective identity play for individual identity? So far, it has been established that an individual’s identity constitution always takes place in society–it cannot be non-societal . Does a similar necessity apply to collective identity? This question is the topic of the following chapter . 3.2 ColleCTive idenTiTy as ConsTiTuenT for individual idenTiTy? Is collective identity constitutive for individual identity in an uncircumventable way? Taylor’s identity theory shifts its priority to collective identity at this very point . As shown above, he emphasizes the moral space in which every identity and subject constitution takes place . But he does not stop there, where the moral space could be interpreted as society . According to Taylor, the moral space only takes concrete form and realization in, and as a culture, a community . There is no abstract moral space that is not culturally shaped .43 At first glance, this is compatible with the mutually constitutive relationship discussed above, in which individual autonomy is enabled and restrained through society or through, in this case, culture . But Taylor’s insistence on the necessity of a collective’s internal cohesion places the question of individual autonomy in the background, in favor of a collective identity . Taylor explains that every collective in the form of a political community is a restraint . He assumes that such a (partly) restraining community is in need of a strong binding tie that only a collective identity can provide, as long as the community is grounded in liberty, and not force . “The difference is that patriotism is based on an identification with others in a particular common enterprise . I am not dedicated to defending the liberty of just anyone, but I feel the bond 41 42 43

Bauman (footnote 8), 89 f . Ashmore/Deaux/McLaughlin-Volpe (footnote 31), 82, emphasis added Charles Taylor, Why do nations have to become states?, in: Guy Laforest (ed .), Reconciling the solitudes, 1993, 40–58, 54 f .

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of solidarity with my compatriots in our common enterprise, the common expression of our respective dignity . […] I may not know most of my compatriots, and may not particularly want them as friends when I do meet them . But particularity enters in because my bond to these people passes through our participation in a common political entity . Functioning republics are like families in this crucial respect, that part of what binds people together is their common history . […] It requires that we probe the relations of identity and community, and distinguish the different possibilities, in particular, the possible place of we-identities as against merely convergent I-identities […] . This thesis, to repeat, is that the essential condition of a free (nondespotic) regime is that the citizens have this kind of patriotic identification .”44

For Taylor, collective identity is a necessary prerequisite to the existence of a community, which is a necessary prerequisite to the constitution of individual identity . According to this perspective, not just any society, but one’s (own) community is of the utmost importance for the construction of a collective and of an individual identity, because the broader, abstract general society, or moral frame, provides neither the strong identifying and identity-building ties that come with commonality, nor the necessarily cultural concretion of norms and morals . Habermas, who engaged in direct dialog with Taylor on the subject of collective identity and multiculturalism, presents a sharp contrast to that assumption . At first, similar to Taylor, Habermas presumes that collective identity is constitutive for individual identity . But in modern, complex societies, collective identity is no longer marked by mutual tradition, common experience and knowledge, as is the case in Taylor’s community . Therefore, according to Habermas, a new concept of rational collective identity is necessary . “The new identity of a society which extends beyond state boundaries can neither be related to a specific territory nor rest upon any specific organization . The distinguishing characteristic of this new identity can also no longer be that of association or membership . Collective identity, and this is the thesis I intend to advance, can today only be grounded in the consciousness of universal and equal chances to participate in the kind of communication processes by which identity formation becomes a continuous learning process . Here the individual is no longer confronted by collective identity as a traditional authority, as a fixed objectivity on the basis of which self-identity can be built . Rather, individuals are the participants in the shaping of the collective will underlying the design of a common identity .”45

Habermas envisions a mutually constitutive relationship between individual and collective identity, where individuals are not only built by the collective, but also make up the collective . This is why Habermas embraces the idea of rights and politics that recognize a collective identity, insofar and only if it supports an individual’s autonomy and agency .46 According to Habermas, is collective identity equivalent to society as discussed above, describing an individual’s general social and socializing context? Or does collective identity solely relate to a specific, significant cultural community, as Taylor points out?

44 45 46

Charles Taylor, Cross purposes, in Liberalism and the moral life, ed . Nancy L . Rosenblum, 1989, 159–182, 166, 170 Jürgen Habermas, On social identity, Telos (1974), 91–103, 99 Jürgen Habermas, Struggles for recognition in the democratic constitutional state, in: Charles Taylor (ed .), Multiculturalism, 1994, 107–148, 113

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Habermas introduces a model based on cognitive developmental psychology that includes both levels .47 Individual identity develops in stages, from the first, infant stage with no subjective separation between the self and the other, up to the final stage of individualization and formation of agency, self-consciousness, ratio, and reflection . The middle stages are marked by successively growing collectives, from the family to the modern state . Habermas concedes that this form of individual development might fail,48 but this does not impede his highly normative conclusion that the final stage of identity is marked by constitutional democracy and a universal, rational, discursive moral . Both individual and collective identity “apparently become more and more general and abstract, until finally the projection mechanism as such becomes conscious, and identity formation takes on a reflective form, in the knowledge that to a certain extent individuals and societies themselves establish their identities .”49 Habermas imagines an open, discursive, dynamic, cosmopolite, universal collective identity that is supposed to support a rational, reflective, individual identity . This constellation is based on the detachment of collective identity from traditional, specific (communal) values and its attachment to universal, abstract, generalized values that are based on democracy and communicative reasoning .50 This implies that collective ties, values, or identities beneath that generalized level no longer play a role for the fully developed individual (although they are integrated in its development in earlier stages) . But in his discussion with Taylor, Habermas places a new emphasis on collectives and cultures that are beneath a general, state-level society . He claims that a state should be able to allow for different collectives, cultures and truths, so long as the latter does not contradict the state’s democracy and constitution . Accordingly, individual members of a state should have the possibility to choose between different collectives and cultures, so long as these represent different interpretations of the constitutional democracy . The broader, rational, collective “identity of the political community […] is founded on the constitutional principles anchored in the political culture and not on the basic ethical orientations of the cultural form of life predominant in that country” .51 This democratic constitutional, general, societal, collective identity must not be restricted in any way . Rather, it is a matter of law and of rational public discourse . Collectives can be expected–even demanded–to assent to the constitutional democracy . However, they cannot be expected to acculturate . Acculturation means: “not only to conform externally but to become habituated to the way of life, the practices, and customs of the local culture . This means an assimilation that penetrates to the level of ethical-cultural integration and thereby has a deeper impact on the collective identity of the immigrants’ culture of origin than the political socialization required” .52

47 48 49 50 51 52

Jürgen Habermas, Historical materialism and the development of normative structures, in Communication and the evolution of society, 1979, 95–129, 100 ff . Jürgen Habermas, Moral development and ego identity, Telos (1975), 41–55, 42 Habermas, Historical materialism and the development of normative structures, 116 Habermas (footnote 45), 99; Jürgen Habermas, The concept of human dignity and the realistic utopia of human rights, Metaphilosophy 41 (2010), 464–480 Habermas (footnote 46), 139 Habermas (footnote 46), 138

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Habermas hereby distinguishes between two levels of collective identity that both play a role for the fully developed individual: the general, state-level, constitutional, political, universal, rational, collective identity on the one hand, and the particular, cultural, customary, sub-state-level collective identity on the other hand . Law shall protect both, as long as they are compatible with constitutional democracy and individual autonomy . In the following paragraphs, a discussion of the similarities and differences between Habermas’ and Taylor’s influential approaches will help to provide an understanding of the characteristics of collective identity and its subsequent meaning for individual identity . Habermas’ and Taylor’s approach differ in two important respects in terms of their normative orientation . First, Habermas’ normative yardstick is, clearly, individual autonomy and a rational individual identity, which always trumps the sub-state cultural collective identity . This means that cultural collective identity should be protected so long as individuals choose it . Accordingly, Habermas infers that those cultural collective identities that are repressive, or those that are not valued or chosen by their members, would become automatically extinct, as long as individual autonomy and choice is constitutionally guaranteed .53 In opposition to that, Taylor assumes that certain cultural collective identities are valuable in their own right and should be protected from extinction by law, because they are the basis for individual identity . While both approaches envision a mutual constitution of sub-state collective and individual identity, they differ in their normative emphasis on the former or the latter, respectively . Second, Habermas’ general collective identity is based on a universalistic notion that presumes the possibility of rational discourse and consent . The legitimacy of Habermas’ sub-state collective identity hinges on its compatibility with constitutional democracy, too .54 Taylor, by contrast, denies the possibility of a universal, moral frame that exists above culturally formed values and differences . He demands the assumption that every culture might be of equal value, because “we are very far away from that ultimate horizon from which the relative worth of different cultures might be evident” .55 Taylor implies, and at times explicates, the possibility, or even the necessity, of moral decisions between multiculturalist and liberalist values . Nevertheless, he hardly discloses his own normative foundation and strives for an analytical explanation of his approach .

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Note that Okin and others rightly point out that choice for or against one’s culture or collective identity is not as easy, autonomous and gender-neutral as it would seem here, because of power inequalities and dominance within a culture or collective, because of deeply socializing mechanisms and because of lacking alternatives or resources . Susan Moller Okin, “Mistresses of their own destiny”, Ethics 112 (2002), 205–230; Ayelet Shachar, On citizenship and multicultural vulnerability, Political Theory 28 (2000), 64–89 . This normative account is highly controversial, though . It is rejected as a form of eurocentrism that makes the protection of non-Western or non-dominant collectives and cultures necessary in the first place . See Michael McDonald, Should communities have rights?, Canadian Journal of Law and Jurisprudence 4 (1991), 217–237; Michael J . Sandel, Liberalism and the limits of justice, 1982; Chandran Kukathas, Are there any cultural rights?, Political Theory 20 (1992), 105–139 Taylor, The politics of recognition, 73

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Based on these differences between Taylor and Habermas, it would seem that collective identity can be discussed either as a normative or as an analytical category . But this distinction is hardly a reliable solution . The main problem is that analytical and normative readings are hard to distinguish–even less so, when it comes to the question of legal protection . If collective identity is dealt with as (human) right, as demand or as basis of demands, it inevitably receives a normative component . The protection and maintenance of collective identity is, genuinely, a normative yardstick . Therefore, if collective identity is to be a right or a demand, it necessarily has to be discussed in terms of its emancipatory or repressive aspects, or at least in terms of its compatibility with existing law . Then again, the main issue to which (human) rights demands for collective identity relate is the protection of minorities, cultural, religious or ethnic groups . More often than not, minority groups are characterized by partly negating the state doctrine and its law to which they have been involuntarily subsumed and from which they demand their (cultural or political) distinction . This is based on the assumption that a state is not culturally neutral, but based on the dominance of one (only sometimes more than one) specific culture to the detriment of other, marginalized cultures .56 Nevertheless, the ratio of collective and minority rights, Habermas, and Taylor have one factor in common . Habermas’ concepts of the general collective identity and the sub-state collective identity reappear in the notion of the state and sub-state particular cultures . Taylor’s moral frame concedes a kind of general supra-level that is too general, however, to provide for socialization and individualization, which rely on smaller and closer (cultural) communities . This commonality between the approaches leads to a conceptualization of collective identity as an interim level, an intermediary between individual identity and society . Adorno’s model of the mutually constitutive relationship between individual and society, which was introduced above, is able to integrate such an intermediary level . What is more, Adorno considers it as necessary: “The tension between individual and society, the antagonism between the general and the concrete inevitably implies that the individual does not integrate directly into the societal whole, but that intermediary levels are required .”57 The most important feature of such a tripolar constellation is the mutual constitution and interference between all of the levels: the individual, the societal, and the intermediary . At the same time, all levels develop a degree of independence . This does not mean that they contain a part that is simply not touched by the other levels, but rather, despite and simultaneously through their mutual constitution, they develop an independency that makes them non-identical vis-à-vis their constitutive counterparts . None of the levels works unilinear, but, rather, their internal and external mutual constitution works in both directions . Furthermore, all of the levels, in addition to their relations and constellations, are dynamic, time-bound, historically, and socially contingent . 56 57

Will Kymlicka, States, nations and cultures, 1997, 22 ff .; Will Kymlicka, Contemporary political philosophy, 2002 Theodor W . Adorno, Gruppe, in: Institut für Sozialforschung (ed .), Soziologische Exkurse, 1956, 55–69, 55, (translation JM)

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This tripolar constellation offers a new perspective . It leads to the question of exactly how the three levels interact and intermingle . In order to analyze the constellation of individual, intermediary, and society, the entanglements between: a) individual and society; b) between intermediary and society; and c) between individual and intermediary have to be considered . While the first aspect has been discussed extensively above, the implications of the latter are tremendous: Regarding b): An analysis of the constellation between intermediary and society reveals the ways in which groups (or communities or collectives) are constituted and affected by a state society and the particular functions they fulfill within that society . Vice versa, a society is not just the sum of its groups, but is shaped by them, too . This approach exceeds images of society as just an abstract, general, unobtainable frame, just as it surpasses identity-building as a linear process of consecutive collectives that get larger and more abstract along the developmental stages . It also transcends an image of society as simply “the field upon which the individual and the collective meet and meld” .58 Finally, it embeds the intersubjective dialog within society . The relationship between the intermediary and society bears a significant consequence . The intermediary that throughout this text has been discussed in terms of groups, collectives, cultural communities, collective identities, and intersubjective dialog, is neither identical to society nor dichotomously separate from it . Intermediary and society are just as inter-twined as are intermediary and individual, or society and individual . This means that the loss of a collective identity does not put an individual in a hypothetical non-societal vacuum like the loss of the society-level would . Regarding c): The constellation allows consideration of different intermediary’s influences on individuals which rarely identify via only one collective: “one is, and is not, many things at the same time .”59 This means that the intermediary takes multiple forms . At this point, a differentiation between the forms of groups, collectives, cultures, communities, intersubjective relations and collective identities gains traction . A group may be characterized by familial ties (which again are socially built, not naturally), friendship, nationality, ethnicity, class, common interest, language etc . Not every group or collective constitutes a collective identity, and not every collective identity is defined in terms of culture . It is not only one (or one’s own) cultural group that is available for individualization and identification, but an abundance of culturally and non-culturally defined possibilities . Those may apply consecutively as represented in Habermas’ model of stages, but more often than not, they will be overlapping . Some will be stronger, more influential, or harder to leave than others . The important point is this: If a certain collective identity is not the only possible intermediary, then it can be criticized, changed, or even abandoned . It is this possibility, and the existence of alternatives, that allows critical distance, individual autonomy, and non-identity within collective identity . In conclusion, collective identity may be one constitutive element for individual identity, just as it may be one form of an intermediary level, but it is not the only 58 59

Jenkins (footnote 4), 38 Marc Goodale, Reclaiming modernity, American Ethnologist 33 (2006), 634–649, 641; generally also Mead (footnote 12)

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one . This is the central feature that distinguishes the relationship between collective identity and individual identity from the relationship between the identical and the non-identical, or between individual and society . Whereas the latter build an essential and indispensable mutually constitutive relationship, collective identity represents just one possible intermediary mechanism for the constitution of individual identity . Note that this discussion relates to the constellation’s potential on a general, abstract level . Which collectives and intermediaries allow for which freedoms and exactly which restraints, and how they interact with individual and societal possibilities, is a question for empirical, normatively embedded analysis . 3.3 ColleCTive idenTiTy as normaTive ChallenGe In the tripolar constellation between individual, intermediary, and society, collective identity is one possible form the interim level between individual and society can take on . It can take on restraining as well as emancipatory dimensions . It is important to take into account the fact that the differentiation between restraining and emancipatory aspects may follow different normative yardsticks . One of those yardsticks that is often referred to in discussions concerning collective rights, communitarianism, and multiculturalism, is the emphasis of individual freedom and agency, or the survival of a cultural collective, respectively . For the purposes of this chapter, it is not necessary to go deeper into the broad discussion that encompasses liberal, multicultural, and communitarian notions as well as approaches to individual human rights and collective or cultural human rights .60 This is because the analysis, thus far, already provides two alternative possible yardsticks . First, a possible normative yardstick for a differentiation between emancipatory and repressive aspects of collective identity is the question of whether collective identity allows for its own relativization, or even dissolution, in favor of other intermediary forms of socialization and identity-building . This goes back to the hypothesis that collective identity represents just one of a vast variety of intermediary mechanisms . The controversy concerning the scope of collective identity as a normative, legal, or political tool is not solved by this question, however . Accounts of strategic essentialism count on a collective identity’s capability to do exactly that: to dissolve and disintegrate as soon as the danger of reification and restraint lurks . But before that, a strategic essentialist collective identity will hopefully help to strengthen social and political demands of disadvantaged groups .61 Other perspectives also refer to the necessity of political and collective identities, because every ‘we’ needs a ‘them’ (in Hegelian terms: an other) .62

60 61 62

But for a detailed analysis see Mende (footnote 1) . Gayatri Chakravorty Spivak, In other worlds, 1988; Gayatri Chakravorty Spivak / Sara Danius / Stefan Jonsson, An Interview with Gayatri Chakravorty Spivak, Boundary 2 20 (1993), 24–50; also see Young (footnote 23); John Nagle, Multiculturalism’s double-bind, 2009 Chantal Mouffe, Democratic politics and the question of identity, in: John Rajchman (ed .), The identity in question, 1995, 33–46, 39

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Critics of collective identity, in contrast, seriously doubt that collective identity can be established in such an open, potentially self-relativizing manner . The reason is that collective identity is only referred to when no other substance is available . As a result, collective identity can only be an empty, but highly emotionalized signifier . “One speaks of collective identity only in times of huge intellectual poverty […] . It is only referred to, for example, when one knows that that the reality of the concerning group differs substantially from one’s expectations, or when a group is in such an uncertain condition that it would not be wise to openly speak about what is holding that group together and what is undermining it .”63

A second reason as to why critics doubt the possibility of an open collective identity lies in its relation to its other . Collective identity needs the construction and exclusion of an other (preferably a collective other) in order to constitute itself as collective identity .64 At first glance, this analytical constellation does not pose a normative problem because it plainly resembles the mutually constitutive relationship between individual identity and its non-identical other . On second glance, however, the differences between an individual (the carrier of an individual identity) and a collective (the carrier of a collective identity) prohibit this analogy in several respects . Individual agency and self-consciousness is bound to an individual’s individualization and, thereby, its differentiation from the other . This does not apply in the same way to a collective, for reasons mentioned above: collectives are composed of heterogeneous individuals who can never form one identical body (but who are supposed to feature commonalities and sameness) . In addition to that, critics of collective identity assume that the very concept of collective identity makes the intrinsic, mutually constitutive relationship between identity and its non-identical invisible .65 History seems to confirm this view, when not only the construction of another collective is used to affirm the own collective, but when the other collective is characterized as inferior and as dichotomously separated from the own, representing everything that is deemed to be bad, immoral, or otherwise pejoratively marked . In contrast, Chapter I showed how the non-identical is never just outside, but also inside the identical . If this relationship is neglected, so are the emancipatory aspects that come with the non-identical . This applies to the individual level as well as to the collective level . From this springs a second yardstick for the differentiation between emancipatory and repressive forms of collective identity . A collective identity seems to be more open, and potentially self-relativizing, if it recognizes the mutually constitutive and intertwined relationship between identity and the non-identical . Such an emancipatory collective identity would then acknowledge aspects of the other in its own, and aspects of its own in the other . A repressive collective identity, in contrast, would be excluding, homogenizing the inside as well as the outside, and dichotomously separated from its other .

63 64 65

Lutz Niethammer, Kollektive Identität, 2000, 466 (translation JM) Niethammer (footnote 63), 11 ff .; also see Mouffe, Democratic politics and the question of identity, 39 Niethammer (footnote 63), 627

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While this article presents neither the time nor the place to decide whether an emancipatory form of collective identity is possible, it provides two possible yardsticks beyond the usual controversies . It goes without saying that those yardsticks can be complemented, or even contradicted by others . In any case, the important premise for a substantial discussion on collective identity is the disclosure of normative orientations and implications . 4. conclusIon This article sought to capture and reveal essential aspects of the concept of identity, and subsequently, collective identity . Analytically, identity is based on the mutually constitutive relationship to its non-identical other . This relationship is marked by an opposition among its parts that, at the same time, contain each other . What is more, none of the parts would exist without their counterpart, or beyond their relationship . Additionally, this relationship is always socially embedded and historically contingent . Stemming from this, concepts of collective identity can be grounded in a tripolar, mutually constitutive relationship between individual, society, and an intermediary level . On this basis, collective identity becomes visible as one of many intermediary mechanisms between individual identity and society . Usually, various intermediary mechanisms apply simultaneously, they overlap and interfere . Therefore, a collective identity may be constitutive for individual identity, but it may also be criticized, abandoned, or dissolved in favor of other intermediary mechanisms . In conclusion, identity always has to be discussed in terms of its inherent relationships, contradictions and constellations . This applies to individual identity as well as to collective identity . Normatively, identity and all sides of its relations can contain emancipatory and repressive aspects . Therefore, the parts that constitute identity (the identical or the non-identical, internal or external ascriptions) can neither be ripped apart, nor can emancipatory or repressive aspects be found at only one side of the relation . Quite the opposite: It is the mediated relation that builds one prerequisite for an emancipatory identity, and it is the overemphasis of just one side that leads to restraint and rigidity . Still, the mediated relation can appear in various, emancipatory as well as repressive moments and forms . Therefore, mediation alone is not sufficient for an emancipatory approach . This also means that the term identity usually does not provide a sufficient basis for legal and political approaches . It is a matter of case-specific and empirical research to ascertain which constellations and which forms of collective identity have which consequences . It is a matter of the applied normative yardsticks to evaluate those consequences as emancipatory or repressive . This article proposes two possible yardsticks that relate to an open, self-relativizing collective identity that is able to acknowledge its intrinsic relationship to its other . They are open to discussion .

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deutscHe Zusammenfassung Der Artikel geht den verschiedenen Bedeutungsgehalten kollektiver Identität in Philosophie, Sozialwissenschaften und Recht nach . Er führt zunächst in das Konzept individueller Identität ein, die oft als Gegenstück zu kollektiver Identität angeführt wird . Es wird gezeigt, inwiefern individuelle Identität mit ihrem Nicht-Identischen intrinsisch vermittelt ist und dabei alle Seiten emanzipatorische und repressive Aspekte aufweisen können . Auf dieser Grundlage wird die enge Beziehung zwischen kollektiver und individueller Identität in Frage gestellt . Stattdessen wird vorgeschlagen, kollektive Identität als eine von vielen möglichen Zwischeninstanzen zwischen Individuum und Gesellschaft zu verstehen, die sich durch ein Ineinander interner und externer Zuschreibungen herstellt . Damit unterscheidet sich die Beziehung zwischen individueller und kollektiver Identität maßgeblich von der Beziehung zwischen Identischem und Nicht-Identischem und von der Beziehung zwischen Individuum und Gesellschaft . Während letztere in ihrer gegenseitigen Konstitution unauflösbar miteinander vermittelt sind, stellt kollektive Identität nur einen von vielen Konstitutionsmechanismen für individuelle Identität dar . Analytisch stellt dieser Zugang eine tripolare Konstellation zwischen Individuum, Zwischeninstanz und Gesellschaft zur Verfügung . Normativ kann kollektive Identität mit Blick auf deren Offenheit für ihr Anderes und für weitere Zwischeninstanzen diskutiert werden .

marCos auGusTo maliska, CuriTiba (Pr) rIgHt

to

IdentIty

tHe case gelman

vs.

In tHe

context

uruguay

and tHe

of

constItutIonal PluralIsm

rIgHt

to

famIly IdentIty

absTraCT: The right to identity has special significance in the constitutional pluralism, because identity and pluralism are interconnected . Pluralism expresses different identities living under the same political order . The political order will also require identity of its citizens . So in addition to a common identity to all who are under the constitutional order, there are other identities which express the diversity of society . The concept of openness is used to indicate a fundamental element to characterize constitutions from pluralistic societies . The constitutional order is open to its society in the sense that the constitution does not only guarantee the pluralism but also opens itself up to it . Collective identities protected by the Constitution constitute not just rights regulated by the Constitution, but fundamental rights . Fundamental rights are the basis of a constitution . They are the core of constitutional order and bind the entire legal system . Fundamental rights are not only part of the formal constitution but also a main factor of the material constitution . The right to family identity means the right to have a father, a mother, and to belong to a family . The right to family identity means the right to know the truth about his/her origin and the right to belong to one’s own history . The individual’s history is described initially as a family history . The family identity does not necessarily refer to an unambiguous understanding of family . The Brazilian constitutional order has an open concept of family . If one can speak of family identity, this identity does not mean that it is homogeneous . There are several forms of family identity . Family identity means having ties to a social group which can be composed in different ways .

1. IntroductIon The concept of identity can be studied from various perspectives . This paper investigates the right to identity in the context of constitutional pluralism . The paper takes as its starting point the decision of the Inter-American Court of Human Rights in the case Gelman vs . Uruguay and investigates the right to family identity . The right to identity has special significance in the so called constitutional pluralism because recognition by the constitution of a plurality of social and legal systems also requires a reflection on the identity of this plurality . Identity and pluralism are interconnected . Pluralism expresses different identities living under the same political order . The political order will also require identity of its citizens . So in addition to a common identity to all who are under the constitutional order, there are other identities which express the diversity of society . The same person has multiple identities . As a citizen he/she has the same identity like all who live under the political order . As a member of a religious community, a political party, a region of the country, a certain culture, he/she has special identities like all who subscribe as member in the group . This paper focusses on the right to family identity . Everyone belongs to a family, has a family identity . The family identity does not necessarily refer to an unambiguous understanding of family . Specifically, the Brazilian constitutional order has an open concept of family . Therefore, even if one can speak of family identity, this identity does not mean that it is homogeneous . There are several forms of family identity . Family identity is having ties to a social group which can be composed in

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different ways . It is necessary to observe that the constitutional pluralism even allows a search for a family identity that expresses the will of its members . This paper is divided into three parts . First, it addresses the many identities protected by the Brazilian Constitution including the national identity, the political identity, the local identity, the religious identity, the indigenous identity, the cultural identity, and the family identity . The second part presents the openness of the constitutional order . The right to identity should take up the plurality of social associations that characterize modern societies . These associations form collective identities that have enormous significance for the individual’s right to identity . The concept of openness characterizes the peculiarity of constitutions of pluralistic societies . The constitutional order of that kind is open to the inside, to its society in the sense that the constitution does not only guarantee the pluralism but also opens itself up to it . The relationship between pluralism and the constitution must be guided by the mediation that there is no pluralism without the constitution . The existence of unity is necessary because of a minimum requirement able to promote the link with the plural . In this respect, the principles of the constitutional order have central importance in the reference of unity . In the third and final part the right to identity is treated as fundamental right . The opening of the fundamental rights catalog to the principles adopted by the Constitution allows the recognition of the fundamental right to identity as an expression of collective identity . The right to family identity means the right to have a surname . Everyone has the right to carry the surname of their parents . This right includes the right to know the truth about his/her origin and the right to belong to one’s own history .

2. tHe IdentItIes Protected

By tHe

BraZIlIan constItutIon

Identity is a concept that refers to an individual as well the social group(s) to which he/she belongs . There are collective identities and individual identities . Collective identities highlight the social characteristic of a group that can be identified with a political community in a broad sense, i . e . nationality, as can be identified with a smaller group in the context of pluralism that characterizes democratic societies like family community, indigenous community or religious community . The Brazilian Constitution expressly protects identities like the national identity (right to nationality, art . 12), the political identity (right to join a political party, art . 17), the local identity (right to federalism, art . 18), the religious identity (art . 5, section VI), the indigenous identity (art . 231), the cultural identity (protection of popular culture, indigenous culture, African Brazilian culture and other cultures of groups participating in the national development, art . 215), and the family identity (art . 226) . Individual identities, in turn, point out the individual characteristics that relate to the group to which individual belongs . There is no independent life outside the social group! An individual is linked to the social contexts in which he/she is found . These contexts can be the larger context of nationality or other contexts mentioned above . Individual identity gives meaning to the person, gives him/her a personal story, gives him/her meaning for his/her life, and allows him/her to map out a plan of his/her life from an individual point of view which takes place in the context of his/her social insertion .

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The notion of collective identity can be linked to the concept of association developed by the sociologist of law Eugen Ehrlich . According to Ehrlich, society is not formed by a group of isolated individuals but by a group of associations . Every individual belongs to a social association . A social association can be the State, the family, the political party, cooperatives, communities, etc . The world of life and the Law don’t know the individual detached from his/her context .1 According to the Constitution (Article 5º XVI to XXI) all persons may hold peaceful meetings, without weapons, in places open to the public, regardless of authorization provided that they do not frustrate another meeting previously called at the same place, subject only to prior notice to the competent authority . Freedom of association for lawful purposes is fully guaranteed although any paramilitary association is forbidden . The creation of associations and, under the terms of the law that of cooperatives is not subject to authorization, and state interference in their operation is forbidden . Associations may only be compulsorily dissolved or have their activities suspended by a judicial decision . Additionally, no one shall be compelled to become associated or to remain associated . When expressly authorized, associations shall have the legitimacy to represent their members either judicially or extrajudicially . The legal doctrine considers the right to association and the right to meeting linked to freedom of expression and the democratic system of government . The basic distinction between theses rights can be found in the transitory nature of the right to meeting and the lasting nature of the right to association .2 Freedom of meeting is identified as an instrument of free expression, of thought, and includes the right to protest . The right to meet sets the right to freedom of expression collectively . The body of persons to set up a meeting should have a purpose, which can be an exposure of beliefs or a defense of a position in different fields like politics, religious, arts, or philosophy .3 The right to association, in turn, implies the gathering of people in a common direction .4 An association does not follow a proper legal form but constitutes the organized union will of individuals or legal entities to achieve a common purpose .5 2.1 The naTional idenTiTy: riGhT To naTionaliTy The right to nationality is regulated in Article 12 of the Constitution . It is the right to belong to the Brazilian nationality (i . e . the right to join the national community) . The Brazilian nationality is obtained by birth or by naturalization . Brazilian by birth are (i) those born in the Federative Republic of Brazil, even if of foreign parents, provided that they are not at the service of their country; (ii) those born abroad, of a Brazilian father or a Brazilian mother, provided that either of them is at the service of the Federative Republic of Brazil; (iii) those born abroad, to a Bra1 2 3 4 5

Eugen Ehrlich, Grundlegung der Soziologie des Rechts, 1989, 34 ff . Paulo G . Gonet Branco, Comentário ao Art . 5º, XVI a XXI, in: Comentários à Constituição do Brasil, hg . von J . J . Gomes Canotilho / Gilmar F . Mendes / Ingo W . Sarlet / Lenio L . Streck, 2013, 305–308 . Gonet Branco (footnote 2), 305–306 . Gonet Branco (footnote 2), 308 . Konrad Hesse, Grundzüge des Verfassungsrechts der Bundesrepublik Deutschland, 1999, 178 .

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zilian father or a Brazilian mother, provided that they are registered with a competent Brazilian authority, or come to reside in the Federative Republic of Brazil, and opt for the Brazilian nationality at any time after reaching majority . Brazilian by naturalization are those who, as set forth by law, acquire Brazilian nationality . The only requirement for naturalization of persons originating from Portuguese-speaking countries is residence for one uninterrupted year and good moral repute . Foreigners of any nationality are required to maintain fifteen uninterrupted years of residency in the Federative Republic of Brazil without a criminal conviction and must apply for the Brazilian nationality . The law may not establish any distinction between native-born and naturalized Brazilians, except in circumstances stated in the Constitution . The following offices are exclusive for native-born Brazilians: a) the President and Vice-President of the Republic; b) the President of the Chamber of Deputies; c) the President of the Federal Senate; d) the Justice of the Supreme Federal Court; e) those who work in the diplomatic sector; f) officers of the Armed Forces; and g) the Minister of Defense . According to Maués the right to nationality is a fundamental right and can be conceptualized in Brazilian Law as the right to join the political community and the right to exercise on equal terms the other rights recognized in the Constitution .6 2.2 The PoliTiCal idenTiTy: riGhT To Join a PoliTiCal ParTy. The political identity is guaranteed by the Constitution in Article 17 as follows: The creation, amalgamation, merger and, extinction of political parties is free, with due regard for national sovereignty, the democratic regime, the plurality of political parties, the fundamental rights of the individual, and observing the following precepts: (i) national character; (ii) prohibition from receiving financial assistance from a foreign entity or government or from subordination to same; (iii) rendering of accounts to the Electoral Courts; and (iv) operation in the National Congress in accordance with the law . Political parties are ensured of autonomy to define their internal structure, organization and operation, and to adopt the selection criteria and the composition of their electoral coalitions, without being required to follow the same party alliances at the national, state, Federal District, or municipal levels, and their by-laws shall establish rules of party loyalty and discipline . The right to political identity in Brazilian constitutional law finds support in the principle of political pluralism (i . e . in the democratic form of political self-organization adopted by the Constitutional State) . The principle of political pluralism is characterized by opposition to any attempt monopoly in the politics, economy, communication, society, culture or education . The principle of multi-party-system is based on commitment to the institutionalization of a political system that is based on the existence of several parties representing the various segments of society with equal conditions to come to power through free and democratic elections .7 6 7

Antonio Moreira Maués, Comentário ao Art . 12, in: J . J . Gomes Canotilho / Gilmar F . Mendes / Ingo W . Sarlet / Lenio L . Streck (ed .), Comentários à Constituição do Brasil, 2013, 649–650 . Orides Mezzaroba, Comentário ao Art . 17, in: Gomes Canotilho et al . (footnote 6), 691–692 .

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2.3 The loCal idenTiTy: riGhT To federalism The Constitution states the rules for Brazilian federalism . Art . 18 provides that the political and administrative organization of the Federative Republic of Brazil comprises the Union, the states, the Federal District, and the municipalities, all of which are autonomous as written in the Constitution . The Federative Republic of Brazil has 27 member states of the federation . The country is divided into five regions: (i) the Midwest is comprised of the following states: Goiás, Mato Grosso, and Mato Grosso do Sul and the Federal District . The Midwest has a territory of 1,604,852 km2 (18 .9 % of the country) . Its population is about 15 million; (ii) the Northeast consists of the following states: Maranhão, Piauí, Ceará, Rio Grande do Norte, Paraiba, Pernambuco, Alagoas, Sergipe, and Bahia . The Northeast has a territory of 1,556,001 km2 (18 .2 % of the country) . Its population is just over 56 million; (iii) the North is formed by the states: Acre, Amazonas, Roraima, Rondônia, Pará, Amapá, and Tocantins . The North has a territory of 3,851,560 km2 (45 .2 % of the country), and a population of just over 17 million inhabitants – making it the region with the lowest population density; (iv) the Southeast, which consists of the states: Minas Gerais, Espírito Santo, Rio de Janeiro, and São Paulo . The Southeast has a territory of 927,286 km2 (10 .6 % of the country) . Its population is about 85 million; (v) the South, which is comprised of the states of Paraná, Santa Catarina, and Rio Grande do Sul has a territory of 575,316 km2 (6 .8 % of national territory) and its population is over 29 million inhabitants .8 The Federative Republic of Brazil has 5,570 municipalities .9 Municipalities are territorial communities with legal personality under public law and political autonomy within the limits set by the federal constitution . Each municipality has a fundamental law, a sort of municipal constitution, which states the political and administrative organization of the municipality . Municipalities have an executive branch that is led by the mayor and the legislative branch headed by the city council . The judicial power is organized into districts, which may cover several municipalities . The federated organization of the Brazilian State is based on the deep social and cultural diversity of its vast territory . This regional diversity of customs and traditions has in federalism a way to preserve identities . The federalism recognizes the social and cultural diversity in the form of political self-organization of the member states . According to Assis Brasil, there is no identity of customs and traditions of the peoples of the southern and northern Brazil . Federalism is a necessary to the country .10 2.4 The reliGious idenTiTy The right to religious identity is guaranteed in Article 5 subsection VI of the Constitution: freedom of conscience and of belief is inviolable, the free exercise of religious cults being ensured and, under the terms of the law, the protection of places of worship and their rites being guaranteed . 8 9 10

See ftp://ftp .ibge .gov .br/Estimativas_de_Populacao/Estimativas_2014/estimativas_2014_TCU . pdf [3 . 6 .2015] See http://7a12 .ibge .gov .br/pt/voce-sabia/curiosidades/municipios-novos [3 .6 .2015] Assis Brasil, A República Federal, 1885, 222 .

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The religious identity includes two distinct fundamental rights: freedom of conscience and freedom of religion . Freedom of conscience is the moral autonomy of the individual, namely the right to self-determination in regard to ethical and existential standards . Freedom of religion, on the other hand, is a complex right which includes the right to have or not to have a religion . Religious freedom also includes the protection of religious associations (churches) to guarantee (i) a general right of self-determination; (ii) the freedom of exercise of religious services and worship; (iii) the right to self-financing; and (iv) non-religious activities .11 2.5 The indiGenous idenTiTy According to the Constitution Indians shall have their social organization, customs, languages, creeds, and traditions recognized, as well as their original rights to the lands they traditionally occupy, it being incumbent upon the Union to demarcate them, protect, and ensure respect for all of their property (Article 231) . According to Marés de Souza Filho the Brazilian Constitution of 1988 was the first Latin American constitution to break with the integrationist tradition guaranteeing the Indians the right to continue to be Indians . The Constitution recognizes as legitimate a social order that it does not know, founded on the so-called customs, and traditions . The recognition of socially organized people in a different way is the paradigm of modernity .12 2.6 The CulTural idenTiTy Article 215 paragraph 1 of the Constitution states that the State shall protect the expressions of popular, Indian, and Afro-Brazilian cultures, as well as those of other groups participating in the national civilization process . The Brazilian Constitution guarantees the cultural rights as individual and collective rights . As an individual right means that everyone has the right to culture within the social group to which he/she belongs . As a collective right has been the recognition of a collective identity .13 2.7 The family idenTiTy Article 226 of the Constitution states that the family, which is the foundation of society, shall enjoy special protection from the State: (i) marriage is civil and the marriage ceremony is free of charge; (ii) religious marriage has civil effects, in accordance with the law; (iii) for purposes of protection by the State, the stable union 11 12 13

Jayme Weingartner Neto, Comentário ao Art . 5 VI a VIII, in: in: Gomes Canotilho et al . (footnote 6), 266–270 . Carlos F . Marés de Souza Filho, Comentário ao Art . 231, in: Gomes Canotilho et al . (footnote 6), 2149–2150 . Carlos A . Molinaro and Fernando A . de C . Dantas, Comentário ao Art . 215, in: Gomes Canotilho et al . (footnote 6), 1983 .

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between a man and a woman is recognized as a family entity,14 and the law shall facilitate the conversion of such entity into marriage; (iv) the community formed by either parent and their descendants is also considered as a family entity; (v) the rights and the duties of marital society shall be exercised equally by the man and the woman; (vi) civil marriage may be dissolved by divorce; (vii) based on the principles of human dignity and responsible parenthood, family planning is a free choice of the couple, it being within the competence of the State to provide educational and scientific resources for the exercise of this right, any coercion by official or private agencies is forbidden; and (viii) the State shall ensure assistance to the family in the person of each of its members, creating mechanisms to suppress violence within the family . The Supreme Federal Court (STF) recognized a family as the continuing, public, and lasting union of people of the same sex . This recognition implies equal treatment to unions of people of the opposite sex . According to the Court, the sex of a person unless a constitutional norm expresses or implies to the contrary, is not itself a factor of legal inequality . Notably, the Constitution prohibits discrimination . The right of sexual preference emanates from the principle of “human dignity”: the right to self-esteem, the highest point of individual conscience, and the right to pursue happiness . Prohibition of prejudice proclaims the right to sexual freedom . The concrete use of sexuality is a part of the autonomy of the people . The use of sexuality when seen in the scope of intimacy and privacy is guaranteed by the Constitution . When the Constitution of 1988 uses word the “family”, it does not limit its formation to people of opposite sex or restrict the concept of family to the state’s registry or religious liturgy . Family as a private institution that is voluntarily formed between adults is autonomous in relation to state and civil society . Family is the primary institutional locus in establishing fundamental rights that the Constitution means “intimacy and privacy” . Couples of the opposite sex and couples of the same sex have the subjective right to form a family . An interpretation of the Constitution cannot reduce the concept of family .15 3. oPen constItutIonal order The concept of openness is used to indicate a fundamental element of the constitutional order in the context of a network of constitutions as well as to characterize constitutions from pluralistic societies .16 Thus, the constitutional order is open to the inside, to its society in the sense that the constitution does not only guarantee the pluralism but also opens itself up to it . The modern constitutional state followed the paradigm of the state constitution: there is only one constitution – the state constitution – and only one power to create constitutions, the constituent power . The social function of a constitution was similar to the state: it integrates faiths, 14 15 16

See ADPF 132/RJ – STF Decision on gay marriage Decision on gay marriage – ADPF 132/RJ – Rio de Janeiro . Date: May 05, 2011 . On the double meaning (outside and inside) the constitutional opening, see, among others, Peter Häberle . Estado Constitucional Cooperativo, 2007, 2; Udo Di Fabio . Das Recht offener Staaten, 1998, 5 and Marcos A . Maliska, Fundamentos da Constituição. Abertura. Cooperação. Integração, 2013 .

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cultures, groups, races, nations, and people in the same territory and under state sovereignty . The integrative function of the constitution now requires a revision caused by the phenomena of legal pluralism and social multiculturalism .17 Legal pluralism is a heterogeneous variety of rights within the same society . The pluralism of rights presupposes a multicultural society (cultural pluralism) formed by various cultural groups that produce norms relating to, for example, weddings, fashion, contracts, and teaching religion, which act in the same society and interact with the norms produced by dominant culture . The multicultural objections require the theory of the constitution to insist on a new role for the constitution: to structure and ensure a pluralistic constitutional system .18 Overcoming the understanding that societies for which the constitutional order is based are homogeneous (i . e . societies whose sociological, psychological, linguistic, and anthropological aspects lead to a certain identity) creates challenges for the constitutional order . The assertion of equal opportunities in the context of diversities becomes a key reference for the existence of this political organization: the radicalization of democracy as the right to freedom and equality led to diversity . Recognition of diversity is a recent phenomenon . From the theoretical point of view it is linked to the so-called post-modernity . Post-modernism rejects the idea of a necessary correspondence between language and that which it purports to describe; it rejects the idea that there can be any ‘grand narrative’ which reveals the essential character of society, whether this is a progressive narrative such as that of Enlightenment humanism or a more critical narrative such as Marxism . Notably, postmodernists reject linear ideas such as progress, and universal truths or values . Postmodernists also reject the idea of humans having fixed, unitary identities, instead they see identities as a continuing process of experimentation and self-definition within changing relationships . Postmodernists reject any imposition of a singular, transcendent point of view, and any ascription of stable, singular meanings to acts, events, persons or things .19 From the political and social point of view, the recognition of diversity occurred in the social movements of opposition that denounced modern society’s oppression of women, blacks, indigenous, foreigners . and others minorities, even though promises of freedom and equality have existed since the eighteenth-century . Marking this change was the counterculture movement of the 1960’s, which by breaking from dominant culture brought significant consequences for the recognition of new rights based on the diversity of a pluralistic society . These social movements were generally characterized as “new social movements” as opposed to the old, traditional social movements, which were motivated by the emphasis on economic growth and social security . The social actors in the

17 18 19

José J . Gomes Canotilho, Direito Constitucional e Teoria da Constituição, 2003, 1450–1451 . Gomes Canotilho (footnote 17), 1451 . Barbara Hudson, Justice in the Risk Society. Challenging and Re-affirming Justice in Late Modernity, 2003, 179 . Hudson differentiates skeptics post moderns, which describe the postmodern era as a time of fragmentation, social chaos and absence of moral parameters and others post moderns, which depart from the skeptical criticism, but they are affirmative on ideals like justice, freedom and equality .

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old paradigm acted as economic interest groups . The core values are: freedom and security in private consumption and material progress .20 The new social movements that arouse in the context of these societies in transition are found in developed societies and in developing societies . When the enumeration of new social movements in developed countries includes ecological, feminist, pacifist, anti-racist, consumers’ and self-help movements, the list in Latin America is much more heterogeneous .21 Thus, the recognition of diversity highlights the social and cultural dimension, which expands the discussion of political struggle for rights beyond a purely economic view of society . In the context of the Brazilian constitutionalism, one can say that all this social and cultural transformation which promoted the revision of customs drew attention to environmental causes as well as fought to better life’s conditions of the historically-exploited social strata of Brazilian society, significantly influenced the Brazilian Constitution of 1988 . Therefore, the constitutional text of 1988 recognized this broad range of rights, which has required the constitutional law, in particular, a theoretical apparatus compatible with the guarantees of those rights and also with a political unity inherent of the constituent purpose . In this sense, the openness of the constitutional order to the inside points to common elements that promote the unity of this pluralistic society . Pluralism and the constitution have a dependent relationship, so that we do not have pluralism without the constitution and the constitution having the possibility of affirming the principle of equality does not exist without diversity . The affirmation that the constitution guarantees pluralism implies a complex relationship because the delimitation of the extent of pluralism or even the possibility of this delimitation is a great difficulty . Pluralism is intrinsic to the dynamics of societies (i . e . there is no prompt and ready plural order) but a plural order constantly in change, in which new rights are continually affirmed . Modern democracy was based on the principle of homogeneity (i . e . it diluted the tension between the different people and groups by processes of assimilation and denial of others) .22 The so-called national state was built from a hegemonic group that imposed its way of life for all those who live in that territory (i . e . the national state was molded from a world view not necessarily shared by all who were under that state order) . From this point of view the national state has not had a glorious history . The emotional ties of belonging to the nation were irrational elements that led to totalitarianism in its fascist and Nazi versions . The feeling of belonging to the nation was strong enough to break the ties of protection and loyalty that marked the relationship between the monarch and the people . This rapid acceptance of the new model had its price, because this same force that sustained the modern state was also decisive in denying all the fundamental values of constitutionalism: the fundamental rights have been filtered by national sentiment .

20 21 22

Maria da Glória Gohn, Teorias dos movimentos sociais. Paradigmas clássicos e contemporâneos, 2004, 166 . Boaventura de Sousa Santos, Pela mão de Alice. O social e o político na pós-modernidade, 1995, 257 . Zygmunt Bauman, O mal-estar da Pós-modernidade, 1998, 30 .

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The relationship between pluralism and the constitution must be guided by the mediation that there is no pluralism without the constitution .23 The existence of unity is necessary because of a minimum requirement able to promote the link with the plural . In this respect, the principles of the constitutional order have central importance in the reference of unity . Societies with a greater degree of homogeneity possessed better conditions to find a consensus to establish principles of social justice for society as a whole . Here one can see the concept of “belonging”, which is the key to building a political community founded on social justice .24 Feeling equal due to speaking the same language, having the same customs, and the same skin color were fundamental in creating ideal conditions of social welfare . However, we currently live in societies that have moved away from these characteristics . Neither “assimilation” nor “coexistence” is the appropriate model but the construction of “solidarity among different people”, a “nation of citizens” which is not identified with the common origin of its citizens is .25 According to the criteria of justice a society can only exist for a long time if it recognizes the equality of all citizens is oriented for the common good, solidarity, and for the common feeling of belonging of all citizens .26 Is it possible to create a feeling of belonging to the same political community among different people? Can there be solidarity among different people? Instead of relying on common ethical values, the solidarity among citizens is the reciprocal recognition of citizens with the effective right to belong to the community (i . e . protection against legal, political and social exclusion) .27 Principles of justice are universal and answer concrete needs, interests and values . On the one hand, in accordance with these principles, the ethical identity of individuals is recognized and protected by law, which is created within the political community with political autonomy by citizens with full rights . On the other hand, the thesis that all principles of justice have a link to the context should be related to the diversity of contexts – from a substantive ethic to a Universalist moral – in which people are normatively substantive members of communities, but part of different communities . From this multiple establishment of normative worlds, follows different ways of mutual recognition and normative justification .28 Although the diversity is demarcated in the context of social inclusion of the individual, it is dealing with “ways of life” and “different world views”, which claim rights and seek to assert themselves in the political community (in the broad sense) in which they live . The constitution as legal document of politics and the political dimension understood in a broad sense (i . e . no more within the sphere of the state, 23 24 25 26 27 28

For the need to overcome the opposition monist Law versus legal pluralism, see Marcos A . Maliska, Pluralismo Jurídico e Direito Moderno. Notas para pensar a racionalidade jurídica na modernidade, 2000 . In the words of Forst, from the communitarian point of view, a political community should be a culturally integrated ethical community based on social unity, democratic self-government, and solidarity . Rainer Forst, Contextos da Justiça, 2010, 129 . Jürgen Habermas, Zeit der Übergänge, 2001 . Forst (footnote 24), 130 . Forst (footnote 24), 281 . Forst (footnote 24), 276 .

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but also within the non-state public sphere of the civil society) contemplates the following two dimensions: (i) law, which protects the ethical identity of the people, and (ii) social communities (plural) of the political community (singular)(i . e . the substantiality of the contexts in which people are members) . Ensuring equal consideration in the field of diversity certainly establishes new forms of distribution of power no longer rely solely on the traditional formula of negative liberty where “natural” forces delimit the place that each one would occupy, but instead rely on interventions that seek to redress inequalities . Diversity promotes inequality . The various segments of society occupy different social positions because of their characteristics and have differentiated deciding power . The ability to influence and decide varies according to the prestige of the place one occupies in society . The constitution recognizes differences and encourages the state and civil society to implement equal opportunities without annihilation of diversity and seeks to reorder the exercise of power both in society and the state . In some ways, the radicalization of democracy effectively provides a permanent redefinition of social positions . A democratic society does not hold with the priori definition of social roles . Modern freedom must be understood as equality at the starting point, so that each one seeks his own happiness . The equality at the starting point in a pluralistic society, in turn, is only possible with the precise intervention in the “natural” order of things . The cultural dimension of social life, historically constructed by the subjects themselves, consolidated in the name of maintaining order hierarchical social divisions that a constitution committed to pluralism does not legitimatize . The constitutional justice as a political unit of a community must pay attention to equal opportunities in terms of minimum social conditions available to all . On the other hand, the availability should not be treated as an obligation towards a particular way of life . A plural society’s views of what constitutes good life vary according to the cultural and social perspectives in which the subject is found . The constitution does not only guarantee pluralism but also opens itself up to it . In this sense, the constitution enables dialogue in which there is no substantial imposition . The relationship between the constitution and pluralism should consider that in a constitutional order, respect for different people implies acceptance, that all orders legitimized by the constitution have no absolute character . 4. tHe rIgHt

to

IdentIty

as a

fundamental rIgHt: tHe famIly IdentIty

Fundamental rights enumerated in Article 5 of the Brazilian Constitution are not exclusive . Article 5 paragraph 2 states that the formal concept of fundamental rights also has a material concept . There are rights that are fundamental rights because of their content . Thus, even if they do not appear in Article 5 of the constitution, they are also fundamental rights because they have the content of a fundamental right .29 A discussion on the openness of the system of fundamental rights leads to a reflection on the fundamentality of such rights . Thus, besides the formal fundamentality of fundamental rights, there is material fundamentality, because fundamental 29

Ingo Sarlet, A Eficácia dos Direitos Fundamentais, 2009, 78 .

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rights are constituent elements of a material constitution containing key decisions on basic structure of state and society . Fundamental rights are the basis of a constitution . They are the core of constitutional order and bind the entire legal system . Fundamental rights are part of the essence of a constitutional state in addition to the definition of state form, system of government and organization of power . They are not only part of the formal constitution, but also a main factor of material constitution .30 A constitution is a fundamental document of the community . It is more than state law because it covers not only the issues of the state but also themes of the community, sphere of civil society such as marriage, family, property, freedom of art, and science: in short it covers various aspects of community life . A constitution is not only the state’s constitution, but also the society’s constitution . Historically, fundamental rights were rights of defense against state power and presented themselves in a vertical relationship with the state . Today it is possible for a fundamental right can be invoked against an individual or a private organization as well and not only against the state .31 On October 11, 2005, the Supreme Federal Court ruled on case RE 201819/RS that the Brazilian Union of Composers (a private non-profit organization) cannot exclude a partner without guaranteeing the right to self-defense . According to the court, violations of fundamental rights do not occur only in the context of relations between citizens and the state but also in relations between individuals and private institutions . Thus, fundamental rights guaranteed by the constitution do not only directly bind governments but they also directly bind individuals and private institutions against private powers . Private autonomy guaranteed by the constitution is not immune to constitutional principles that guarantee fundamental rights of the members of private institutions because private autonomy has constitutional limitations and cannot be exercised to the detriment or to disrespect fundamental rights and guarantees of third parties . Free will does not give private institutions power to transgress or ignore restrictions defined by the constitution . Normative efficacy of the constitution is also imposed on private institutions . The right to identity as a fundamental right, especially the distinction between individual identity and collective identity, needs to be understood in the context of constitutional pluralism . According to Brugger “significance” is the second element of human rights formula because it resembles the fundamental anthropological fact that the individual’s development is supported by the culture in which he/she is found . Culture is the second nature of human being .32 Collective identities guaranteed in the Brazilian Constitution constitute, to use Brugger’s terminology, significant elements of human rights . Thus, collective identities protected by the Constitution constitute not just rights regulated by the Constitution, but fundamental rights . Article 5 paragraph 2 of the Brazilian Constitution states that the fundamental rights and guarantees expressed in the Constitution do not exclude others deriving from the regime and 30 31 32

Sarlet (footnote 29), 58 . Sarlet (footnote 29), 374 et pass . Winfried Brugger, A Pessoa Humana dos Direitos Humanos, Cadernos da Escola de Direito e Relações Internacionais da UniBrasil 5 (2005), 261–262 .

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from the principles adopted by it, or from the international treaties in which the Federative Republic of Brazil is a party . Collective identities guaranteed by the Constitution express individual identities (i . e . individual identities are linked to collective identities) . Thus, national identity constitutes a fundamental element for other human rights . Although one can speak of internalization of law, in particular human rights, the current reality still holds citizenship in the framework of the national state . Moreover, belonging to a nation is a precondition for other rights . Being part of a political community in a broad sense, a political community that supports the constitutional order means having the institutional and substantive requirements for citizenship . The right to political identity comes from the fact that in an open constitutional State there is no univocal political thought . Political groups have the right to defend their own worldview . Individual’s political life exists only if he/she has the right to share his/her political thought with those who think like him/her . Federalism in Brazil expresses the complexity of a large country . The right to local identity is guaranteed by the political autonomy that both the states of the Federation and the municipalities have . Thus, the local people form a collective identity that exercises the right to self-government . Local autonomy promotes local identity because it determines its social, cultural, and economic characteristics . Religious identity characterizes the modern state . It may be impossible to think modernity without the right to religious freedom . The individual character of faith and belief does not preclude the collective dimension of religious identity, which comes true in the group in which the individual is linked . The protection of individual religious identity needs the protection of collective religious identity . The countries of the American continent must recognize the legitimacy of social organization, customs, languages, creeds, and traditions of the native people who inhabited these lands before European settlers . The right to indigenous identity is a right guaranteed in all democratic constitutions of American countries . It is the recognition of social and cultural identity of indigenous peoples . The Indian’s identity can only be thought as a collective identity . The fundamental rights of Indians are linked to preserve their collective identity . Brazil is characterized by a large cultural diversity and this cultural diversity is protected by the Constitution . The protection of cultural diversity is key element to maintaining the principle of pluralism as a structuring principle of the Brazilian constitutional order . The right to cultural identity also means the right to pluralism . The Brazilian Constitution states that the family is the foundation of society . The individual’s life is linked to various social associations . Two of them have significant role in his/her development: the State and the family . Thus, the right to family identity means the right to have a surname . Every person carries the family name and the family community gives identity to the individual . The individual’s history is described initially as a family history . Everyone has the right to have a father, a mother, to belong to a family . The case Gelman vs . Uruguay tried by the Inter-American Court of Human Rights recognized this right to identity . The Brazilian Civil Code provides special protection to the individual’s name: Article 16 provides that everyone has the right to name and surname; Article 17 provides that person’s name cannot be used by others in publications and rep-

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resentations that expose it to public contempt, even when there is no defamatory intention; you cannot use someone else’s name in commercial advertisement without permission (Article 18); and the pseudonym adopted for legal activities enjoys the protection given to the name (Article 19) . The right to name established by the Brazilian Civil Code is in line with the judgment in Gelman vs . Uruguay . The right to family name expresses the right to identity . Everyone has the right to carry the surname of their parents . This right includes the right to know the truth about his/her identity . Specifically, this right to identity constitutes the first right to identity, the right to know the truth about his/her origin . One issue not addressed in Gelman vs . Uruguay is whether a person born through artificial insemination has the right to know his/her genetic origin, his/her biological identity . Should it prevail in such cases semen donor secrecy or the person’s right on his/her biological identity?33 Such a situation differs significantly from Gelman vs . Uruguay, because artificial insemination is not a crime and the donor’s identity remains unknown . The confidentiality of the donor’s identity is a requirement for the use of semen . In this case it would not be properly speaking of the right to family identity, but only of biological identity . Does the biological identity confer the right to a name and to belong to the donor’s family? Or does biological identity confer only the right to know the donor’s genetic information for medical treatment, prevention or identification of diseases . If the right to name is part of the right to family identity, the case of biological identity is not exactly the same issue of family identity . The right to biological identity would be limited to the identification of the donor’s genetic information for medical treatment, prevention or identification of diseases .34 Thus, cases of artificial insemination do not properly generate the right to information about the donor’s identity for family identity purposes, for belonging to the donor’s family .35 33

34 35

Focusing on artificial insemination by donor, Salem examines the social logic which underlies the principle of anonymity of the semen donor . Her central argument is that “the strategy of disguising his identity, and other similar social devices, evince a two-folded aspect: on one hand, they convey an uneasiness anchored on the identification between family and biology/ nature . From this point of view, the social mechanisms analyzed point to a priority conferred to biological constraints over the social ones . But on the other hand, and at the same time, the strategy of anonymity and other similar ones can be deemed as social devices meant to bypass the strength, supposedly irresistible, of natural ties . From this point of view, human will and/ or culture are conceived as capable of manipulating and subordinating natural forces . Based on this inherent duplicity of the social devices analyzed, Salem suggests that they are expressive of a wider dilemma: the one of the tension in the way of conceiving the relative strength between nature over culture or culture over nature” . Tania Salem, O Princípio do Anonimato na Inseminação Artificial com Doador (IAD), Physis – Revista de Saúde Coletiva 5 (1995), 33–68 . Access to donor’s genetic information does not mean access to donor’s identity . In this sense, see: Andréa Mignoni Zanatta / Germano Enricone, Inseminação artificial: doação anônima de sêmen e a possibilidade jurídica de quebra de sigilo, Perspectiva 34 (2010) 101–115 . According to Spode and Silva “the biological paternity, happened through artificial insemination does not should be confused with the partner-affective paternity . This, constructed through bows of affection, love and attention, prevails on that one . When the subject is the generation

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On the other hand, Gelman vs . Uruguay fits perfectly with the right to family identity because the violent way that the person was separated from her biological parents, which breaks the person’s right to family identity but gives her the right to know the truth about her history . The right to family identity also includes adoption . The adopted person has the right to know the identity of his/her biological parents, because in these cases there has been an interruption in the process that converges to family identity . For some reason, which the person has the right to know, his/her biological parents did not become parents effectively . According to Lobo the right to know the genetic information does not mean necessarily the right to filiation . The right to know the genetic information is a right of personality, that every human being is holder . The genetic information can only interfere in family relationships as evidence to legally acknowledge paternity or maternity, or to contest them, if there is no state of filiation . When there is state of filiation, the right to know the genetic information cannot be used to deny it .36 The right to filiation needs to be understood from the notion of the right to identity because from this point of view the various rights involved can be harmonized . The right to identity developed in this article implies the person’s right to know the truth about his/her own history, the right to know his/her origin, to know his/her identity . This right cannot be restricted to know the truth about his/her origin . This right should be understood as the right to belong to one’s own history . The right to identity also means the right to belong, to identify himself or herself as part of something . In the case of family identity it means the right to belong to the family, to integrate the family to which he/she belongs . Thus, the right to filiation cannot exclude the possibility of belonging . If an adopted person wants to know the identity of his/her biological parents and wants to maintain with them a family relationship, this right must be recognized . The family identity includes biological parents and foster parents . The right to identity in the sense of the right to know the truth about his/her history should take into account this situation . We have here a new concept of family, due to the opening of the Constitution .

36

of a son through procedure effected with semen proceeding from an anonymous giver, it must be known that this does not possess any relation with the conceived, except the congenital one . Therefore, the giver of the semen cannot be considered “father”, in the current connotation of the term, exempting himself of the obligation to give pension or even to grant affection to the individual generated from his genetic material . However, the conceived one has the right to know its biological origin paternal, exactly for a reason or purpose curiosity . Of contrary form, he would have his personality and self-determination reached, fact that would oppose basic principle of the Right . Moreover, the probabilities of incestuous relations between brothers or father/giver and son contribute for a conclusion favorable to the end of the anonymity of the individual assignor of the masculine genetic material” . Sheila Spode / Tatiana Vanessa Saccol da Silva, O Direito ao conhecimento da origem genética em face da inseminação artificial com sêmen de doador anônimo, Revista Eletrônica do Curso de Direito da UFSM 2 (2007) . Paulo L . Netto Lobo, Direito ao Estado de Filiação e Direito à Origem Genética: uma distinção necessária, CEJ 27 (2004), 47–56 .

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deutscHe Zusammenfassung Das Recht auf Identität hat eine besondere Bedeutung im Hinblick auf den konstitutionellen Pluralismus, weil Identität und Pluralismus eng miteinander verbunden sind . Pluralismus meint verschiedene Identitäten unter derselben politischen Ordnung . Die politische Ordnung ist andererseits auf die Identität ihrer Bürger angewiesen . Deshalb gibt es nicht nur eine gemeinsame Identität aller Menschen unter einer Verfassungsordnung, sondern auch Identitäten, durch die sich die Verschiedenheit innerhalb der Gesellschaft ausdrückt . Das Konzept der Offenheit wird verwendet, um ein grundlegendes Element anzuzeigen, durch das die Verfassungen von pluralistischen Gesellschaften charakterisieren sind . Die Verfassungsordnung ist offen zur Gesellschaft in dem Sinne, dass die Verfassung nicht nur Pluralismus garantiert, sondern sich selbst für den Pluralismus öffnet . Kollektive Identitäten, die durch die Verfassung geschützt werden, konstituieren nicht nur einfache Rechte, sondern Grundrechte . Grundrechte sind die Grundlage der Verfassung . Sie bilden den Kern der Verfassung und binden das gesamte Rechtssystem . Grundrechte sind nicht nur Teil der formalen Verfassung, sondern auch Hauptfaktor der materialen Verfassung . Das Recht auf Identität der Familie bezieht sich auf das Recht, einen Vater und eine Mutter zu haben und zu einer Familie zu gehören . Es umfasst das Recht der Kenntnis der eigenen Abstammung und das Recht auf die eigene Geschichte . Die Geschichte des einzelnen Individuums lässt sich zunächst als Geschichte der Familie beschreiben . Die Familienidentität bezieht sich nicht notwendigerweise auf ein bestimmtes und eindeutiges Verständnis der Familie . Die brasilianische Verfassung beinhaltet ein offenes Konzept von Familie . Sie setzt kein homogenes Verständnis von Familie voraus, sondern anerkennt vielmehr verschiedene Formen der Identifikation als Familie . Familiäre Identität gibt es da, wo es Bindungen zu einer sozialen Gruppe gibt, welche auf verschiedene Weise gebildet sein kann .

akihiko moriTa, urayasu collectIve Human rIgHt

to

collectIve IdentIty

absTraCT: In this paper, I insist that we need a collective human right to collective identity . This is because collective identity is one in which the members of a community/group have a sense of being an indispensable part of an individual identity, with distinct characteristics as group and individual human rights are not sufficient to protect collective identity . I have also tried to locate the argument within the framework of inter-culturalism presented by Charles Taylor . In my account, Taylor’s inter-culturalism, a variation of his non-procedural liberalism, which aims at ensuring equal opportunity for participation in making new collective identity while admitting the de-facto existence of pervasive collective identity in the given community, could deal with conflicts that are presently unsolvable because it aims at opening a public space for all in creating new collective identity .

1. IntroductIon Prof . Paul Tiedemann posed the following questions for the special workshop “Right to Identity” at the 27th World Congress of the International Association for the Philosophy of Law and Social Philosophy (IVR) .1 1) Is there really a need to develop a new human right in order to protect identity? 2) What is identity? Are there many different concepts of identity? Which of them are worth protection through human rights? 3) Should we understand the right to identity as a human right or rather as a civil right? In this paper, I will argue that we need a collective human right to protect collective identity . First, I will examine and articulate the concept of collective identity, referring to the works of Charles Taylor and Dwight Newman . I basically hold that identity has collective and individual dimensions because, for instance, members of ethnic minority group cannot feel as though they are being treated equally unless the ethnic group gains equal recognition in a given society . I also highlight the importance of collective identity for reconciliation of past conflicts . Second, I will examine the need to develop collective human rights to protect collective identity and present my own proposition . I insist that individual human rights are not sufficient for protecting collective interests and that we need collective human rights to collective identity . In order to demonstrate my proposition, I will introduce the general framework for collective human rights developed by Dwight Newman as well as the interpretivist conception of law developed by Ronald Dworkin . Third, I will introduce the moral conditions that limit the collective human rights to collec1

The discussion about human rights in the contemporary multicultural society started when Paul Tiedemann, Amos Nascimento and I have organized the special workshop at the 25th World Congress of the international association for the philosophy of law and social philosophy (IVR) in Frankfurt, Germany in 2011 and continued at the 26th IVR in Belo Horizonte, Brazil in 2013 with Dwight Newman . I have been benefitted quite a lot from discussions with three of them and the other participants in developing and articulating my own thought about the moral foundations of human rights and would like to thank all of them in this occasion .

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tive identity so that the collective human right does not legally suppress minority groups and/or individual members in a given society, referring to the Community Conditions labelled by Dwight Newman which set the appropriate moral conditions that collective human rights must follow . Fourth, I will locate my argument in the framework of inter-culturalism presented by Charles Taylor . In my account, Taylor’s inter-culturalism, which is an approach for seeking unity through differences, including the one flowing from deep religious or non-religious faiths, could deal with the contemporary deep conflicts concerning collective identities . In conclusion, I will hold that we need collective human right to collective identity, mainly in states, but also in regional bodies such as the EU and ASEAN, so that each community can be treated equally in terms of representation and participation in the creation of new identities in the given political community . 2. wHat

Is

collectIve IdentIty?

The right to identity is already codified in major international human rights treaties . For instance, the Convention on the Rights of the Child (hereinafter referred as “CRC”), adopted at the United Nations General Assembly on November 20th 1989, expressly stipulates the right to identity .2 Article 8 1 . States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference . 2 . Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity . Article 30 In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language .

More recently, the United Nations Declaration of the Rights of Indigenous People3 confirms the existence of collective rights of the indigenous people . Article 1 Indigenous peoples have the right to the full enjoyment, as a collective or as individual, of all human rights and fundamental freedoms as recognized in the Charter of the United Nations, the Universal Declaration of Human Rights and international human rights law .

So, what we should examine here is whether we need collective human right to collective identity . As a first step in this endeavor, I will examine the concept of collective identity . Identity, in my account, is the master narrative which provides meaning and value for an individual’s life, consisting of the stories of where we come from and where we are going . In this sense, religion or deep faith in other forms is a major part of such master narratives . For instance, in some parts of East Asia, people share the 2 3

UN Doc A/RES/44/25(1989) . GA Res61/295 UN Doc A/RES/47/1(2007) .

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deep belief that the life of an individual does not end with physical death but continues with a web of communities that he or she belonged to . Charles Taylor holds that identity is partly shaped by recognition through social interaction . In this sense, formation of identity is not monological, but dialogical .4In my account, identity has collective and individual dimensions because, for instance, members of ethnic minority groups cannot feel as though they are being treated equally unless the ethnic group gains equal recognition in the given society . Collective identity is one in which the members of a community/group have a sense of being an indispensable part of an individual identity, with distinct characteristics as a group .5 To demonstrate the existence of collective identity, I will introduce a concrete case in which Muslim students at an international dormitory in a university in China, (where students of different ethnic backgrounds lived together) felt annoyed by the fact that pork meats were cooked and offered to non-Muslim students in the dormitory canteen . As a result, the Muslim students finally decided to evacuate the dorm . Should the university have banned the cooking of pork meats in the dorm canteen in order to respect the religious beliefs of Muslim students? Or should the university have asked Muslim students to tolerate pork dishes served in the public canteen because the public space should be secularly maintained? Here, being Muslim constitutes an inseparable part of the students’ individual identity and apparently, being Muslim is an attribute of collective identity because it can be identified even after the present generation of the Muslim community passes away . The dorm canteen is a part of a common/public space in which both Muslim students and non-Muslim students wished to experience a sense of belonging and therefore neither of them could accept the others’ precepts on diet . This case arguably demonstrates the existence of collective identity and also attests to the very fact that there are often conflicts between groups with different collective identities . In connection with identity, I also would like to refer to the concept of personhood, which Tiedemann mentioned in his recent article .6 Tiedemann holds that human rights serve to protect every individual’s personhood .7 So, we must examine the relationship between the concept of identity and the concept of personhood in order to discuss the human right to identity . Historically, personhood was an anti-liberal conception .8In Samuel Moyn’s account, personalism was meant to repudiate the materialism of liberalism and communism in the 1930’s . The conception 4 5

6 7 8

Charles Taylor, Multiculturalism and “the Politics of Recognition”, ed . by Amy Gutmann, Princeton, 1992, 32–33 . Dwight Newman says, “A set is a collection of persons that one would identify as a different set if the included persons change . A collectivity is a collection of persons such that one would still identify it as the same collectivity were some or all of the included persons to change (provided some other conditions were met) and such that the included persons properly identify themselves non-trivially as members of this collectivity .” Cf . Dwight Newman, Community and Collective Rights, A theoretical Framework for Rights Held by Groups, Oxford and Portland, Oregon, 2011, 4 . Paul Tiedemann, Is There a Human Right to Freedom of Religion?, Human Rights Review 16 (2015), 83–98 . Tiedemann (footnote 6), 83 Samuel Moyn, Personalism, community, and the Origins of Human Rights, in: Stefan-Ludwig Hoffmann (ed .), Human Rights in the twentieth century, Cambridge, 2011, 87 .

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of person, or personhood, implies its connection to community which individualism rejects and constitutes as the source of values against communism as well .9In the Western context, personhood originally has had communitarian connotations . If we follow Tiedemann’s definition that human rights aim at protecting every individual’s personhood, it literally denotes two dimensions of identity, both individual and collective . Individual identity, the content of personhood, therefore presumes the collective identity in which each individual develops his own individual identity through dialogical reflection . Finally, I would like to highlight the importance of shared narratives for reconciliation of past conflicts that have been globally recognized . A shared common narrative/memory is the collective identity with distinct group characteristics which are irreducible to common identity shared by individual members of a group because it remains identical even after the whole members of a group change decades after the conflict . The concept note dated 14 January 2014, from the Permanent Representative of Jordan to the United Nations addressed to the Secretary-General, states as follows: “Most of what the United Nations has achieved in maintaining international peace and security has been mainly physical . What the United Nations has not understood well enough is how it can help forge a deeper reconciliation among ex-combatants and their people based on an agreed or shared narrative, a shared memory, of a troubled past .”10

Newman mentioned that the rectification of past injuries through the treatment of a modern group depends on a connection between the modern group and the historic group, which might best be realized through the existence of a collectivity having the same identity .11 In sum, collective identity exists, and is distinct from individual identity . 3. collectIve Human rIgHt

to

collectIve IdentIty

Now, I introduce a general theoretical framework for collective rights developed by Newman for further elaboration of my argument . Newman focuses on a moral right, not a legal right . In his account, a moral right is an entitlement or justified claim whose justification does not depend on whether any legal or political system recognizes the right whereas a legal right is an entitlement or justified claim that a legal system recognizes according to the correct interpretation of its own rules and principles .12 In his theory, a right exists when an interest is sufficient to ground duty and a right is a justified entitlement of X to Y against Z .13

9 10 11 12 13

Moyn (footnote 8), 88 Letter dated 14 January from the Permanent Representative of Jordan to the United Nations addressed to the Secretary-General . Concept Note: War, its lessons and the search for a permanent peace . S/2014/30 . Newman (footnote 5), 65 Newman (footnote 5), 11 . Newman (footnote 5), 10, 28 .

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Newman holds that if we accept certain individual rights, we presuppose certain collective rights . His proposition is based on two factors: (a) the primary interest of the collectivity in certain objects; and (b) the necessary dependence of certain individual interests on collective interests . Newman’s reasoning is as follows: “An individual interest necessarily depends on a collective interest if and only if the individual interest either does not meaningfully exist or cannot meaningfully be fulfilled in the absence of a collective interest being fulfilled . To establish that the existence of certain individual rights implies the existence of collective moral rights, then, we need only show that some individual interests are necessarily dependent on collective interests .”14

A shared narrative/memory is arguably a collective object that is irreducible to individual objects and substantially contributes to the well-being of a community, which meets (a) . A shared narrative/memory is the object of individual interests, which is necessarily dependent on collective interest because we cannot imagine individual narrative without presupposing the commonly shared narrative, or the collective identity, which meets (b) . So, if one follows the formation of Dwight Newman, a shared narrative/memory as a collective identity would imply the existence of collective moral rights to collective identity . However, there is one issue to be addressed concerning Newman’s theoretical framework . His insistence that a collective human right is a moral right is arguably derived from the natural law tradition and must answer a question as to its justifiability . As Robert Alexy explained, moral rights are valid if and only if they are justifiable whereas positive rights are valid if they are duly issued and socially efficacious .15 In his account, explicative-existential argument qua objective-subjective argument is the most qualified justification of human rights . A justification of human rights as moral rights is explicative in the sense that the justification presupposes rule of discourse given its discourse-theoretic-character which contains the idea of freedom and equality . A justification of human rights as moral rights is also existential as it depends on our decision whether we want to see ourselves as discursive or reasonable creatures .16 I don’t fully agree with Alexy, particularly with his proposition that human capability of explication entails the rule of discourse or discourse ethics because I think that discourse ethics alone cannot provide a sufficient foundation for a right .17Instead, I would like to introduce the interpretivist conception of law developed by Ronald Dworkin to respond to the question of justifiability of human rights . In Dworkin’s account, rights and duties must be respected not only because they were agreed through political decisions but also because they are derived from the scheme of principles on which those political decisions depend . In his account, law can be justified as a source of coercive power because it flows from legal exercise 14 15 16 17

Newman (footnote 5), 76–77 . Robert Alexy, The Existence of Human Rights, in: IVR (ed .), Abstract book of the 25th IVR World Congress of Philosophy of Law and Social Philosophy, 2011, 87 Alexy (footnote 15), 88–89 . Charles Taylor criticizes Jürgen Habermas that a “discourse ethics”, in which Habermas finds a secular foundation for rights, is quite unconvincing: Charles Taylor, Why we need a radical redefinition of secularism?, in: Eduardo Mendieta / Jonathan Vanantwerpen (ed .), The Power of Religion in the Public Sphere, New York, 2011, 54 .

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guided by the principle of integrity which asks lawmakers to attempt to make the total set of laws morally coherent in political society .18 Dworkin holds that moral beliefs affect legal deliberation both in court and in parliament through individual interpretation in argumentation . In his account, legal rights flow from past political decisions in accordance with the best interpretation of what it means . The best interpretation in Dworkin’s sense means constructive interpretations, which aim at providing the best account for justifying the connection between past political decisions and present coercion . In my account, Dworkin seemed to consider only a sovereign state to be political community, but his theory could be modified to account for the phenomena of international/regional law including international human rights laws . Alexander Green developed what he believes to be a more consistent interpretation of Dworkin’s theory which holds that the normative core of law as integrity is the importance of treating legal subjects, states and individuals, equally, as befits their moral status .19 In my account, international human rights law can be justified if it flows from a legal exercise guided by the principles, including the principle of integrity that asks members of the global community to make the total set of laws morally coherent . What is morally coherent itself, however, is an object for interpretation and open for contestation . My proposition is that collective human rights should be and could be justified through different moral interpretations in political communities, states and other entities such as the EU and ASEAN . 4. moral condItIons for collectIve Human rIgHts for collectIve IdentIty As demonstrated in the above case involving the university dorm canteen in China, collective rights sometimes conflict and interfere with individual rights and other collective rights . Following the humanistic principle articulated by Josef Raz, which says that it is individual well-being that is of ‘ultimate concern’,20 Newman developed and presented his own solution as follows: “Collective rights necessarily conflict with individual rights and/or with one another if conflicts of rights are pervasive . Pervasive conflicts are avoided by collectivities meeting appropriate moral conditions, labelled the Community Conditions, (consisting of) the Service Principle that a collectivity serve its members in a broad sense and the Mutual Principle that a collectivity not act in a manner showing disregard for the equivalently weighty interests of non-members .” 21

The Service Principle, in his account, is the claim that collectivity could legitimately mediate for its members only for advancing a collective interest consistent with the 18 19 20 21

Ronald Dworkin, Law’s Empire, Oxford, 1998 (First published 1986), 176, 196–201, 211 . Alexander Green, Legal interpretivism beyond the State, in academia .edu, May 30, 2014 – https://www .academia .edu/7294741/Legal_Interpretivism_beyond_The_State [13 .6 .2015], 9, 13 Josef Raz, Morality of Freedom, Oxford, 1986, 194 Newman (footnote 5), 29

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humanistic principle . This principle holds that the well-being of individual persons is of ultimate concern and that collectivity must provide goods that are morally worth preferring over the goods that could be attained without it22 . Arguably, a shared narrative/memory is considered goods morally worth preserving if it is open for reinterpretation for better individual interests as the ultimate concern23 . Newman reiterates that the claim that the well-being of an individual person should be of ultimate concern does not mean that collective moral claims ought to yield to individual moral claims24 . In this connection, he highlights the difference between ultimate moral priority and practical moral priority, saying that a collective interest could in an intermediate fashion take priority over individual interests for the sake of a greater purpose25 . In practical cases, we could not automatically decide which interest, either collective or individual, would take priority . In my account, we decide priority between collective and individual interests through interpretation, and hence we cannot escape judgements about what constitutes a good life for a specific community . The Mutuality Principle, which derives from the humanistic principle, is a necessary partner to the Service Principle and asks that collectivity should not inappropriately entrench upon the interests of non-member individuals or other collectivities . Newman carefully mentions that the Mutuality Principle is not a strict demand that a collectivity should not have negative effects on non-members because such a demand will lead to the rejection of all real collectivities26 . In my account, the Mutual Principle, premised on the humanistic principle that collective interests could be sought only insofar as they serve the well-being of individual persons, also needs interpretation based on which practical moral priority could be taken . 5. Inter-culturalIsm as a frameworK of dIscussIon on collectIve Human rIgHts to collectIve IdentIty Now, I will try to locate the above argument on collective human rights in the framework of inter-culturalism presented by Charles Taylor . In the 2010’s, inter-culturalism has been taking over multiculturalism as a political ideology . At the 47th Munich Security Conference in February 2011, the British Prime Minister, David Cameron, pointed out that the root-cause of terrorism committed by the second and third generation of Muslim immigrants in their countries was, fundamentally, the identity crisis of such people . In his account, multiculturalism, stressing the importance of treating different ethnic groups equally and relativizing the mainstream political culture in the host country, promoted ghettoization of such minority groups . Cameron holds that shying away from assimilating the immigrants into the British mainstream community (which is based on the collective liberal identity of Britain, including notions of freedom of expression, religious freedom, rule of law, and democracy and equality) has fatally weakened the collective identity as an indispensable part and background of individual identity of those 22 23 24 25 26

Newman (footnote 5), 107 Newman (footnote 5), 123–125 Newman (footnote 5), 109 Newman (footnote 5), 111 Newman (footnote 5), 137

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minority groups .27 White Paper on Intercultural Dialogue “Living Together As Equals in Dignity”, launched by the Council of Europe on May 7th 200828concluded that old approaches to the management of cultural diversity such as multiculturalism were no longer adequate in societies where the degree of diversity (rather than its existence) was unprecedented and ever-growing .29 However, as examined and clarified by Meer and Modood,30 the major elements of inter-culturalism, which encourage communication, recognize dynamic identities, promote unity and critique illiberal cultural practices, are also fundamental features of multiculturalism . Therefore, there does not seem to be much of a difference between the two concepts as a set of concrete policies for integration and management of ethnocultural diversity . In Taylor’s account, the difference between inter-culturalism and multiculturalism lies in their stories .31Stories refer to commonly held narratives that provide meaning and value for life and death, and constitute the background of social imaginaries, which make common practices and a widely shared sense of legitimacy in certain societies possible . Taylor reiterates that we need not only specific policies but also the articulated stories of what we are doing to transform the society32 . Taylor contrasts inter-culturalism in Quebec with multiculturalism in English Canada as follows: The ‘multi’ story decenters the traditional ethno-historical identity and refuses to put any other in its place . All such identities coexist in the society, but none is officialized . The ‘inter’ story starts from the reigning historical identity but sees it evolving in a process in which all citizens, of whatever identity, have a voice, and no-one’s input has a privileged status .33

In my account, inter-culturalism is an approach for managing cultural and religious diversity by explicitly addressing the de-facto inequality from the perspective of each ethnic master-narrative in a given society and ensuring that all parties have equal participation in the process of creating the new collective identity . In other words, inter-culturalism is an approach for seeking unity through differences by focusing on the collective identities of different groups . In my account, Taylor’s inter-culturalism is a variation of his non-procedural liberalism . Taylor holds that one has to distinguish the fundamental liberties, or those that should never be infringed upon and therefore ought to be unassailably entrenched, on the one hand, from privileges and immunities that are important, but that can be revoked or restricted for reasons of public policy on the other hand, provided there is a strong reason to do it .34 For example, Taylor raised the collective will of the French speaking community in Quebec that wanted future generation to 27 28 29 30 31 32 33 34

Full transcript of speech on radicalization and Islamic extremism by David Cameron in Munich dated 5 February 2011 on The stagger: http://www .newstatesman .com/blogs/the-staggers/2011/02/terr7 .10 .2015]orism-islam-ideology [7 .10 .2015] Council of Europe, White Paper on Intercultural Dialogue “Living Together As Equals in Diginity”, Strassbourg, June, 2008 Council of Europe, (footnote 28), 9 Nasar Meer / Tariq Modood, How does Interculturalism contrast with Multiculturalism?, Journal of Intercultural Studies 33, No .2 (2012), 175–196 . Charles Taylor, Interculturalism or Multiculturalism, Philosophy and Social Criticism, 38 (2012), 413 Taylor (footnote 31), 415–416 Taylor (footnote 31), 418 Taylor (footnote 4), 59

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have the opportunity to use the French language, so that the subsequent future generations could continue to identify as French-speakers .35 In Taylor’s account, this model of a liberal society is based on judgments concerning what constitutes a good life, and in which the integrity of culture has an important place . Taylor holds that this model can be liberal so long as it can offer adequate safeguards for fundamental rights and so long as rigid procedural liberalism can rapidly become impractical in tomorrow’s world .36 In the Building the Future, produced in 2008 by the Consultation Commission on Accommodation Practices Related to Cultural Differences for which Charles Taylor was appointed one of its commissioners, it is recommended that the public expression of differences should be allowed so that these differences can be assimilated and accepted, rather than concealed, marginalized or suppressed .3738 The principle of respect for different cultures and public interaction among them arguably echoes Taylor’s inter-culturalism, focusing on the master narratives in a given society and characterized by its keen sense of majority and minority duality . In my account, inter-culturalism, aiming at ensuring equal opportunity for participation in new collective identity making while admitting the de-facto existence of pervasive collective identity in the given community, may deal with conflicts that are unsolvable at present because it could provide an open public space, thereby facilitating necessary accommodation . I will pose a possible solution to the dormitory canteen case in China . In my opinion, if the university firmly sticks to the principle of non-discrimination and equal treatment as it should be, it could, following consensus between non-Muslim and Muslim students, construct the kitchen counter with separate sections for halal food so that Muslim students remain with non-Muslim students while simultaneously keeping their religious rites . Finally, I would like to touch upon the contemporary conflicts flowing from different religious and/or non-religious faiths within and beyond states such as local terrorists in advanced countries, and emerging socio-religious movements such as ISIS . I think that inter-culturalism, formulated by Charles Taylor, could address such deep conflicts because his theory could embrace and deal with conflicts derived squarely from spiritual searches, which are highly subjective but unavoidable for humans in modern society . When Taylor discussed the loss of meaning of life, he repudiated Habermas’ discourse theory as it elides the experiential problem under public discourse and hence does not fit “the search for moral sources outside the subject through languages which resonate within him or her, the grasping of an order which is inseparably indexed to a personal vision” .39 What these contemporary 35 36 37 38 39

Taylor (footnote 4), 58–59 Taylor (footnote 4), 59, 61 Gerald Bouchard / Charles Taylor, Building the Future: A Time for Reconciliation, 2008 – http://red . pucp .edu .pe/wp-content/uploads/biblioteca/buildingthefutureGerardBouchardycharlestaylor . pdf [7 .10 .2015] For a full discussion of the main themes of Building the Future and their intersection with Taylor’s political thought, see Ruth Abbey, Plus Ça Change: Charles Taylor On Accommodating Quebec’s Minority Cultures, Thesis Eleven, No .99, Nov ., 2009 . Charles Taylor, Sources of the Self: the Making of the Modern Identity, Cambridge (Mass), 1989, 509–510 .

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serious and deep conflicts show us is, in my account, genuine deficit in the current framework mainly developed in the West . Such a framework, unconsciously adopts the historical experience of the West and excessively depends upon pure and practical reason, which does not fit in the rest of the world . When conflict flows from the deepest and hence uncompromisable faiths, as John Rawls admitted and suggested, citizens should be allowed to present their views about it, which are derived from their comprehensive doctrines .40He referred to the issue of public support for church schools in highlighting his position: Those on different sides are likely to come to doubt one another’s allegiance to basic constitutional and political value . It is wise, then, for all sides to introduce their comprehensive doctrines, whether religious or secular, so as to open the way for them to explain to one another how their views do indeed support those basic political values .41

In order to treat religious and non-religious discourse equally, we need another framework which is different from the one of “Reason Alone”, that is, in Taylor’s account, one of the fruits of the Enlightenment myth in the West, consisting of: (a) the belief that non-religiously informed reason, which Taylor calls “Reason Alone,” can legitimately satisfy any honest, unconfused thinker; and (b) the belief that religiously based conclusions will always be dubious and only persuasive to people who have already accepted the dogmas in question .42 In his account, reason is deeply rooted in background cultures, religious or non-religious, and we need mutual understanding and recognition for preserving and developing the public sphere at this level . In my account, his intercultural framework makes it possible to address the deep-faith rooted conflicts without relying solely on “Reason Alone” . However, there is one fundamental question about Taylor’s intercultural framework despite its several advantages . In my account, Taylor managed to address the issue of conflict regarding deep faith, both religious and non-religious, because of his fundamental belief in the ultimate goodness of this world created by God . In his Judeo-Christian theistic framework, understanding the human world morally while grasping the image of humans as objects of natural science, is made possible because we are already engaged in coping with our world,43 which is, as a creation of God, ultimately good . We need further study in order to examine whether this framework could apply in non-Judeo-Christian contexts, which cannot be explored fully in this article and, hence, should be left for future exploration .

40 41 42 43

John Rawls, Political Liberalism, New York, 2005, 245, 247–251 . Rawls (footnote 40), 464 Charles Taylor, Die Blosse Vernunft (“Reason Alone”), in: id ., Dilemmas and Connections, Selected Essays, Cambridge (Mass)/London, 2011, 328 . Charles Taylor, Philosophical Arguments, Cambridge (Mass), 1995, 11 .

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6. conclusIon In theory and in practice, the concept of collective human rights to collective identity has emerged, but there is certain resistance against this movement . For instance, Japan and the UK proclaimed that they did not accept the concept of collective rights in international law .44 In this paper, I attempted to demonstrate the existence of collective human rights to collective identity, and to provide proper moral conditions to appropriately limit the boundaries of collective human rights to collective identity, by relying upon the general framework of collective moral rights developed by Dwight Newman . I also attempted to locate the argument concerning collective human rights to collective identity in the framework of inter-culturalism . It is my understanding that inter-culturalism, developed in Quebec and focusing on the master narratives in a given society characterized by its keen sense of majority and minority duality, could be a plausible framework for addressing the issue of collective human rights to collective identity . My conclusion is that, although we may have to examine the framework for addressing the issues of collective identity, we need collective human rights to collective identity (mainly in states, but also regional bodies such as the EU and ASEAN) so that each community can be treated equally when it comes to representation and participation in the creation of a new identity in the given political community . deutscHe Zusammenfassung Der Autor verteidigt die Existenz eines kollektiven Menschenrechts auf kollektive Identität . Kollektive Identität meint den Sinn dafür, dass Mitgliedschaft in einer Gemeinschaft oder Gruppe unverzichtbarer Bestandteil der individuellen Identität ist . Die individuellen Menschenrechte reichen nicht aus, um die kollektive Identität zu schützen . Der Autor entwickelt sein Argument im Rahmen von Charles Taylors Konzept der Interkulturalität . Dieses Konzept ist Teil seiner Konzeption eines nichtprozeduralen Liberalismus, der darauf gerichtet ist, gleiche Möglichkeiten der Partizipation sicherzustellen . Diese bezieht sich auf die Schaffung neuer kollektiver Identitäten bei gleichzeitiger Anerkennung der Existenz einer durchdringenden kollektiven Identität der gegebenen Gemeinschaft . Dieses Konzept offeriert Lösungen für gesellschaftliche Konflikte, die gegenwärtig unlösbar erscheinen, dadurch, dass es den öffentlichen Raum für alle öffnet, die neue kollektive Identitäten schaffen wollen .

44

Statement by the UK p . 21 and statement by Japan p . 20 in UN Doc A/61/PV .107 (2007) .

tHe autHors Zeynep İspir PhD candidate and, since 2005, research assistant at Ankara University Faculty of Law Philosophy of Law and Sociology of Law Department, Ankara, Turkey Fields of interest: Philosophy of law, value theory, ethics, legal ethics, philosophical foundations of human rights, human dignity Personal website: http://cv .ankara .edu .tr/kisi .php?id=ispir@law .ankara .edu .tr°er=2 E-Mail: ispir@law .ankara .edu .tr Rainer Keil Dr . iur ., consultant at the Faculty of Law at the University of Heidelberg, Germany . Fields of interest: philosophy of law, Kant, human rights, asylum law, theory of democracy, legal education . Personal website: http://www .jura .uni-heidelberg .de/fakultaet/KeilHD-JF12-index .html E-Mail: keilr@jurs .uni-heidelberg .de Mariana Alves Lara PhD candidate at the University of São Paulo, lawyer, assistant professor at Milton Campos Law School in Nova Lima, MG, Brazil Fields of interest: civil law, legal incapacity of the human person E-Mail: mariana@mcampos .br Marcos Augusto Maliska Dr . iur, professor of constitutional law at Centro Universitário Autônomo do Brasil (UniBrasil), Federal Attorney in Curitiba, PR, Brazil . Fields of interest: constitutional law, legal sociology, Eugen Ehrlich E-Mail: marcosmaliska@yahoo .com .br Janne Mende Dr . rer . soc ., researcher at the International Center for Development and Decent Work, University of Kassel, Germany Fields of interest: human rights, globalization, global governance, privacy, non-state actors, culture and identity, minority rights, indigenous rights, gender . Personal website: https://www .uni-kassel .de/fb05/fachgruppen/politikwissenschaft/ globalisierung-und-politik/team/dr-janne-mende .html E-Mail: janne .mende@uni-kassel .de Akihiko Morita PhD, professor at Shokei Gakuin University, Department for the Study of Contemporary Society, Faculty of Comprehensive Human Sciences in Natori, Miyagi, Japan . Fields of interest: philosophy of human rights, international human rights and human rights education E-Mail: a_morita@shokei .ac .jp

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The Authors

Fabio Queiroz Pereira PhD candidate at Universidade Federal de Minas Gerais in Belo Horizonte, lawyer, assistant professor at Milton Campos Law School in Nova Lima, MG, Brazil Fields of interest: civil law, E-Mail: fabio .queiroz@gmail .com Felipe Quintella Machado de Carvalho PhD candidate at Universidade Federal de Minas Gerais in Belo Horizonte, lawyer, assistant professor at Milton Campos Law School in Nova Lima, MG, Brazil Fields of interest: civil law, history of law, sources of the law, civil rights of gay people Personal website: www .felipequintella .com .br E-Mail: felipe .quintella@gmail .com Paul Tiedemann Dr . iur ., Dr . phil ., retired judge, honorable professor at Justus-Liebig-University Giessen, Germany, Adjunct Professor (Üniversite öğretim üyesi Professor) at ÖzyeğinUniversity, Istanbul, Board Member of the Özyeğin Research Institute for German Law (Alman Hukuku Araştirma Merkezi) Fields of interest: philosophy of human rights, human dignity, asylum law, legal clinical education, the interrelation of legal philosophy and legal practice . Personal website: http://www .dr-tiedemann .de E-Mail: Paul .Tiedemann@recht .uni-giessen .de Zhang Tu Ph . D candidate at Department of Jurisprudence, Law Faculty, Leiden University, The Netherlands . Fields of interest: legal philosophy, political philosophy, liberalism, secularism and religious liberty . E-Mail: t .zhang@law .leidenuniv .nl

RegisteR

Abbey, Ruth 93 Abdelal, Rawi 129 abortion 19, 118 accidentiae 16 acculturation 142 ACHR → American Convention of Human Rights adolescence phase 22 Adorno, Theodor W. 132, 134, 135, 144 affiliation 160 Alcoff, Linda Martin 135 Alexy, Robert 71, 72, 171 American Convention on Human Rights 7, 15, 33, 40, 89, 90 Améry, Jean 28 Amnesty International 66 amputation 117, 118 analytic philosophy 13 apotemnophilia 121 Appiah, Kwame Anthony 139 Aristotle 108 artificial insemination 164 ascription 135, 138, 139 Ashmore, Richard D. 137 assimilation 160 authenticity 25, 30, 32, 95, 106, 107, 109 authority 103 autonomy 8, 22, 23, 46, 74, 125, 134, 140, 143, 162 Baltzer, Ulrich 57 basic mistrust 22 basic trust 22 Bauman, Zygmunt 140, 159 Bayne, Tim 120 Bedorf, Thomas 26 Beitz, Charles 96, 100–103, 112, 113 Berlin, Isaiah 109, 110 Bielefeldt, Heiner 60, 61 Bieri, Peter 14, 32 BIID 117, 118 Blöser, Claudia 56, 57, 77 Bock, Michael 78 body 17, 117 Body Dysmorphic Disorder 121, 122 Body Integrity Disorder 117, 118 Boshammer, Susanne 12 Bouchard, Gerald 175 brain washing 28, 83 Branco, Paulo G. Gonet 153 Brazilian Civil Code 124, 125 Brownsword, Roger 45

Brubaker, Rogers 129 Brugger, Winfried 162 Bundesverfassungsgericht ➝ Federal Constitutional Court (Germany) BVerfG ➝ Federal Constitutional Court (Germany) Byrd, Sharon 65 Calhoun, Craig J. 130 Cameron, David 173 Carvalho, Nara Pereira 117, 122 case “Dominicanas y Haitianas Expulsadas” 111 case “Expelled Dominican and Haitian Persons” 89 case “Gelman” 11, 15, 28, 151, 163 case “Serrano Cruz Sisters” 111 categorical imperative 69 Cerulo, Karen A. 129 Charter of Fundamental Rights of the European Union 40 Cicero, Marcus Tullius 45 circular-argument 18, 19 Claudius, Matthias 13 coercion 62, 63 collective human right 167 Committee of Ministers (Council of Europe) 66 communitarism 146, 170 concepts 17, 71 conscience 22 Constitution (Brazil) 9, 151, 152 Constitution (Germany) 45, 58 constitutional pluralism 8, 151 contradiction, principle of 13 Convention on the Rights of the Child 11, 12, 168 Cooper, Frederick 129 corporeal intervention 123 Court of Justice of the European Union 40 Creighton, Simon 59 Danaher, John 84 death penalty 8, 60, 61, 79, 83, 84 Deaux, Kay 137 Deckers, Rüdiger 57 Declaración Americana de los Derechos y Deberes del Hombre 91 defamation 39 degrading treatment 27, 33 democracy 142 Dench, Geoff 130 Dennett, Daniel C. 24 Descartes, René 16

182 Descombes, Vincent 13, 14, 21 deviant phase 22 dignity 73, 80, 91, 98, 125 – collective 48 – contingent 45 – social 45 Diogenes Laertius 16 discrimination 49 distributive justice 66 diversity 158 DNA sequence 14 Dölling, Dieter 78 duty 71 Dworkin, Ronald 45, 71, 72, 167, 171, 172 dynamism 49 ECHR ➝ European Convention of Human Rights ECtHR ➝ European Court of Human Rights Ego-Consciousness 17 Ehrlich, Eugen 153 Eisler, Rudolf 13 emancipatority 144, 147 end in itself 60 Engfer, H.-J. 13 Enlightenment 6 Enricone, Germano 164 Epicharmos 16 equiprimordiality 26 Erikson, Erik H. 21, 22, 29, 32 eternal life 169 ethnic minority 140, 167, 168 European Convention on Human Rights 12, 15, 40 European Court of Human Rights 15, 20, 27, 40, 53, 58, 59, 111 euthanasia 118 family 142 Fanon, Frantz 139 Farias, Cristiano Chaves de 125 Federal Constitutional Court (Germany) 7, 11, 40, 53, 54, 59 federalism 63 fetus 19 finger prints 14 First, Michael 119 first-order-desires 93 first-person-perspective 17, 21 Fischer, Thomas 57 forced labor 28 Forst, Rainer 114, 160 Foucault, Michel 130 Frankfurt, Harry G. 31 freedom 33 – of action 34 – of will 34

Register Freeman, Samuel 101 Fuller, Lon L. 45 Gallois, André 56 gaps 7, 12, 20 generalized other 35, 134, 138 genetic origin 164 Gewirth, Alan 45, 96, 97 ghost limbs 120 Giddens, Anthony 123 Gilroy, Paul 129 Gleason, Philip 129 Glória Gohn, Maria da 159 God 19, 64, 107, 176 Goffman, Erving 31, 37, 41 Gomes Canotilho, Fosé J. 158 Goodale, Marc 145 Green, Alexander 172 Griffin, James 45, 96, 98–100 Guidelines on eradicating impunity for serious human rights violations 66 Guignon, Charles 107 guilt 32, 35, 59 – legal 53, 68, 70, 79 Haas, Volker 56 Habermas, Jürgen 141–145, 160, 171 Halfwassen, Jens 16 Hall, Stuart 139 Hegel, Georg Wilhelm Friedrich 109, 110, 131–133 Heidegger, Martin 29, 30 Henning, Tim 19 Heraclitus 16 Herrera, Yoshiki M. 129 Hesse, Konrad 153 Hill, Thomas E. 66 Hirsch, Mathias 36 Höffe, Ottfried 62 Hofmann, Manfred 19 homicide 66 homo noumenon 56 homo phaenomenon 56 homogeneity, principle of 159 Hörnle, Tatjana 54, 82 Hruschka, Joachim 65 Hudson, Barbara 158 human being 46 human dignity 7, 11, 25, 26, 28, 43, 44, 47, 55, 58, 99 human obligation 48 human rights 7, 12, 102 human rights of third generation 12 human rights, basic 27 human rights, collective 167 human rights, individual 167 human species 44, 48

183

Register humanity standard 8, 96 IACourtHR ➝ Inter-American Court of Human Rights ICCPR ➝ International Covenant on Civil and Political Rights idea(s) 6, 18, 71 idem 13 identification 15, 122, 136, 145 identification with the oppressor 36 identity card 14 identity – biographical 29 – bodily 18, 41, 117 – collective 8, 129, 137, 152, 167, 175 – cultural 48. 152, 156 – diachronic 8, 11, 15, 17, 53, 56, 77, 86 – Ego- 11, 20, 21 – family 152, 156, 165 – group- 12 – indigenous 152, 156 – individual 8, 129–131, 152 – local 152 – narrative 11, 29, 30, 35, 41 – national 152 – numeric 13 – patchwork- 33 – personal 11, 23, 45, 46, 123 – political 152, 154, 163 – principle of 13 – religious 152, 163 – role- 11, 23, 37 – social 23, 37 – synchronic 11, 13, 56 imprisonment 80 individualization 12, 142, 144, 145 inhuman treatment 27, 33 integrity, intellectual 28 Inter-American Court of Human Rights 7, 8, 11, 20, 28, 36, 89, 90, 97, 98, 111, 114, 151, 163 interculturalism 9, 167, 173–175 International Covenant of Economic, Social, and Cultural Rights 28 International Covenant on Civil and Political Rights 12, 15, 28, 33, 40, 99 introspection 131 ipse 21 İspir, Zeynep 7 ius talionis 55, 60, 69, 70 Jasper, James M. 137 Jenkins, Richard 129, 136, 138 Joerden, Jan C. 13 Johnston, Alistaier Ian 129 Kant, Immanuel 8, 33, 45, 46, 53, 60, 95 Keil, Rainer 8, 71, 78

Kelsen, Hans 98 Kershnar, Stephen 71 Kersting, Wolfgang 62 Keupp, Heiner 33 Kobusch, Theo 31 Koch, Hans-Albrecht 13 Köhne, Michael 57 Konder, Carlos Nelson 125 Korsgaard, Christine 56 Kramer, Matthew H. 84 Krehl, Christoph 57 Kubiciel, Michael 57 Kuçuradi, İoanna 43, 45, 46, 47, 48 Kukathas, Chandran 143 Kunz, Bernd-Dieter 78 Küper, Wilfried 67, 69 Kymlicka, Will 95, 144 Lara, Mariana Alves 8, 118, 123 legal personality 90 Levy, Neil 64, 120 liberty 34, 110 life imprisonment 53, 79, 80 Lobo, Paulo L Netto 165 Locke, John 16, 20, 25, 122 logic 13 Lopes, Lais Godoi 118 Maalouf, Amin 43 Mackenzie, William James Millar 129 Maliska, Macos A. 8, 160 manipulation, intellectual 28 Marçal, Antônio Cota 118, 122 Marés de Souza Filho, Carlos F. 156 margin of appreciation 20 Marquard, Odo 29 master narrative 168 Maués, Antonio Moreira 154 Maus, Ingeborg 62 Mayer, Uwe 13 McDermott, Rose 129 McDonald, Michael 143 McLaughlin-Volpe, Tracy 137 Mead, George Herbert 35, 131, 134 meaning of life 32 mediation, theory of intrinsic 136 Meer, Nasar 174 Meier, Bernd-Dieter 78 memory 18, 24, 36, 170 Mende, Janne 7, 8, 129 Menke, Christoph 12 Merle, Jean-Christophe 75, 78 Mezzaroba, Orides 154 Miller, David 111 minority group 168 minority rights 144 Mirandolla, Pico della 45

184 Modood, Tariq 174 Moldzio, Andrea 41 Molinaro, Carlos A. 156 moral law 74 moral obligation 35 moral right 8, 96, 170 morality 8, 117 Morita, Akihiko 9 Mouffe, Chantal 146 Moyn, Samuel 169 Müller, Sabine 121 multiculturalism 141, 146, 173 Murphy, Jeffrie G. 62, 66 Nagel, Thomas 24 Nagle, John 146 name 13, 14, 164 native people 163 natural right tradition 96 Nestle, Wilhelm 16 Neuhäuser, Christian 45 Newman, Dwight 167–170 Nickel, James 101 Nicolelis, Miguel 120 Niethammer, Lutz 147 non-identical 132 Nussbaum, Martha 45 Okin, Susan Moller 143 openness, concept of 157 optimization requirement 71 Pamuk, Orhan 36 Parfit, Derek 123 persistence 15 person 17, 43, 47, 50 personality 8, 23, 29 personhood 16–19, 23–25, 91, 93, 97, 98, 105, 169, phenomenal consciousness 24 philosophy of language 13 physical integrity 118, 124 Plato 16 pluralism 8, 102, 151, 154 Plutarchos 15 Poletta, Francesca 137 political conception standard 8, 96, 111 Pollmann, Arndt 12 Pörksen, Uwe 130 postmodern culture 32 predicate logic 13 preventive detention 81 price 22, 79 pride 22 principle 71 promise 31, 34 properties 16 proportionality 34

Register propositional attitudes 24 puberty 22 punishment 8, 18, 62, 63, 53 Quante, Michael 14, 24, 26, 27, 29 Queiroz Pereira, Fabio 8 Quintella, Felipe 8 rationality 25, 26 Rawls, John 96, 100–102, 112, 176 Raz, Joseph 96, 100, 103, 112, 172 reality 120 recognition 92, 93, 110 refugees 50 Regenbogen, Anim 13 repression 144, 147 retributivism 68 revenge 64 Ricœur, Paul 21, 26, 30, 31, 34 right inflation 44, 49 right to – a name 12, 90 – assembling 153 – association 153 – be defamed 40 – be forgotten 40 – change one’s identity 53, 54 – collective identity 129 – family identity 165 – family life 12, 41, 90 113, 151, 165 – federalism 155 – freedom of conscience 34, 36, 90 – freedom of expression 28, 90 153 – freedom of language 36 – freedom of marriage 41 – freedom of religion 75, 90 – freedom of sexual orientation 36 – have a surname 152 – identity 7, 90, 104, 113 – indigenous identity 163 – Informational Self-Determination 7, 11 – judicial personality 90, 113 – know personal and family information 90 – knowledge of ancestry 36, 165 – life 20 – name 113, 164 – nationality 12, 90, 113 – omission of a television program about a crime 40 – Personal Data Protection 7 – personal liberty 90 – personhood 105 – political identity 163 – privacy 41 – private life 15, 40 – religious identity 155 – sexual self-determination 36

Register right, legal 170 rights 100 rights, group 48 Ritsert, Jürgen 134 role-self 38 Rosenvald, Nelson 125 rule 72 Saccol da Silva, Tatiana V. 165 Salem, Tania 164 sameness 8, 43, 44, 48, 56, 147 Sandel, Michael J. 143 Sarlet, Ingo 161 Schopenhauer, Arthur 131 second-order-volitions 31 Selbst-Ständigkeit ➝ self-holding self 38, 140 self-alienation 38 self-consciousness 25, 38, 142 self-definition 94 self-delution 38 self-determination 74, 80 self-fulfillment 106 self-holding 30, 31 self-identification 74, 86 self-interpretation 30 self-manipulation 125 self-negation 27 self-organisation, political 155 self-realization 106 Sen, Amartya 97 sense of industry 22 Shachar, Ayelet 143 shame 22, 32, 35, 39 Shue, Henry 113 Slatman, Jenny 121 slavery 28 Smith, Robert 118 Smith, Rogers 130 social contract 101 socialization 144 solidarity 160 soul 16, 18 Sousa Santos, Bonaventura de 159 sovereignty 103, 111 speech acts 31 Spivak, Hayatri Chakravorty 146 Spode, Sheila 165 Stancioli, Brunello 117, 119, 122 stigmatization 40 Stoecker, Ralf 45

185 Streiker, Carol S. 84 Strobach, Niko 13 substance 16 sufficient reason, principle of 13 Supreme Federal Court (Brazil) 157, 162 Supreme Federal Court (Germany) 57 Tasioulas, John 45, 96, 99 Taylor, Charles 8, 9, 92, 93, 94, 99, 100, 104–107, 109, 113, 129, 131–134, 140, 141, 143, 167–169, 171–175 Tengelyi, Lásló 30 Tepedino, Gustavo 125 third-person-perspective 19 Tiedemann, Paul 7, 14, 26, 28, 29, 36, 43, 45, 74, 167, 169 toleration 114 torture 27 total institutions 31, 33 transitivity-argument 18, 19 transplant 124 Trinidade, A.A. Cançado 90 Tugendhat, Ernst 29 Tyl Smit, Dirk van 59 UN Declaration of the Rights of Indigenous People 168 Universal Declaration of Human Rights 98 Utilitarism 118 value 43, 45, 46, 100 Varek, Karel 12 Varga, Somogy 107 vengeance 64 Vienna Declaration 27 Waldron, Jeremy 45, 96, 98, 108, 109 Walter, Tonio 57 wannabes 121 Weatherby, Pete 59 Weber, Hartmut-Michael 82 Weichert, Thilo 82 Weingartner Neto, Jayme 156 Werner, Micha 48 Wesel, Uwe 57 Widdershoven, Guy 121 Wittgenstein, Ludwig 13 Wolff, Christian 13 Wright, Valerie 78 Young, Iris Marion 135 Zaczyk, Rainer 56 Zanatta, Andréa Mignoni 164 Zhang Tu 8

a rc h i v f ü r r e c h t s - u n d s o z i a l p h i l o s o p h i e

–

beihefte

Herausgeben von der Internationalen Vereinigung für Rechts- und Sozialphilosophie (IVR). Die Bände 1–4 sind im Luchterhand-Fachverlag erschienen.

Franz Steiner Verlag

ISSN 0341–079x

113. Horst Dreier / Eric Hilgendorf (Hg.) Kulturelle Identität als Grund und Grenze des Rechts Akten der Tagung der Internationalen Vereinigung für Rechts- und Sozialphilosophie vom 28.–30. September 2006 in Würzburg 2008. 374 S., geb. ISBN 978-3-515-09101-5 114. Jochen Bung / Brian Valerius / Sascha Ziemann (Hg.) Normativität und Rechtskritik Tagungen des Jungen Forums Rechtsphilosophie in der Internationalen Vereinigung für Rechts- und Sozialphilosophie im September 2006 in Würzburg und im März 2007 in Frankfurt am Main 2007. 269 S., kt. ISBN 978-3-515-09130-5 115. Marcel Senn / Dániel Puskás (Hg.) Rechtswissenschaft als Kulturwissenschaft? Kongress der Schweizerischen Vereinigung für Rechts- und Sozialphilosophie vom 15.–16. Juni 2007 an der Universität Zürich 2007. 220 S., kt. ISBN 978-3-515-09149-7 116. Annette Brockmöller / Eric Hilgendorf (Hg.) Rechtsphilosophie im 20. Jahrhundert 100 Jahre Archiv für Rechtsund Sozialphilosophie 2009. 207 S., kt. ISBN 978-3-515-09285-2 117. Marcel Senn / Barbara Fritschi (Hg.) Rechtswissenschaft und Hermeneutik Kongress der Schweizerischen Vereinigung für Rechts- und Sozialphilosophie vom 16.–17. Mai 2008 an der Universität Zürich 2009. 258 S., kt. ISBN 978-3-515-09155-8 118. Bart C. Labuschagne / Ari M. Solon (Hg.) Religion and State From separation to cooperation? Proceedings of the Special Workshop

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“Legal-philosophical reflections for a de-secularized world” held at the 23rd World Congress of the International Association for Philosophy of Law and Social Philosophy in Kraków, 2007 2009. 209 S., kt. ISBN 978-3-515-09368-2 Martin Borowski (Hg.) On the Nature of Legal Principles Proceedings of the Special Workshop “The Principles Theory” held at the 23rd World Congress of the International Association for Philosophy of Law and Social Philosophy in Kraków, 2007 2010. 182 S., kt. ISBN 978-3-515-09608-9 Friedrich Toepel (Hg.) Free Will in Criminal Law and Procedure Proceedings of the 23rd and 24th World Congress of the International Association for Philosophy of Law and Social Philosophy in Kraków, 2007, and in Beijing, 2009 2010. 122 S., kt. ISBN 978-3-515-09320-0 Marcel Senn / Bénédict Winiger / Barbara Fritschi / Philippe Avramov (Hg.) Recht und Globalisierung / Droit et Mondialisation Kongress der Schweizerischen Vereinigung für Rechts- und Sozialphilosophie, 15.–16. Mai 2009, Universität Genf / Congrès de l’Association Suisse de Philosophie du Droit et de Philosophie Sociale, 15–16 mai 2009, Université de Genève 2010. 196 S., kt. ISBN 978-3-515-09673-7 Imer B. Flores / Uygur Gülriz (Hg.) Alternative Methods in the Education of Philosophy of Law and the Importance of Legal Philosophy in the Legal Education Proceedings of the 23rd World Congress of the International Associaction for Philosophy of Law and Social Philosophy “Law and Legal Cultures in the 21st Century: Diver-

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sity and Unity” in Kraków, 2007 2010. 114 S., kt. ISBN 978-3-515-09695-9 Sascha Ziemann Archiv für Rechts- und Sozialphilosophie: Bibliographie und Dokumentation (1907–2009) 2010. 434 S., kt. ISBN 978-3-515-09719-2 Jan-Reinard Sieckmann (Hg.) Legal Reasoning: The Methods of Balancing Proceedings of the Special Workshop “Legal Reasoning: The Methods of Balancing” held at the 24th World Congress of the International Association for Philosophy of Law and Social Philosophy (IVR), Beijing, 2009 2010. 205 S., kt. ISBN 978-3-515-09723-9 Edward Schramm / Wibke Frey / Lorenz Kähler / Sabine Müller-Mall / Friederike Wapler (Hg.) Konflikte im Recht – Recht der Konflikte Tagungen des Jungen Forums Rechtsphilosophie in der Internationalen Vereinigung für Rechts- und Sozialphilosophie in Tübingen und Göttingen 2010. 308 S., kt. ISBN 978-3-515-09729-1 Kristian Kühl (Hg.) Zur Kompetenz der Rechtsphilosophie in Rechtsfragen Tagung der Deutschen Sektion der Internationalen Vereinigung für Rechts- und Sozialphilosophie vom 24.–26. September 2008 in Tübingen 2011. 140 S., kt. ISBN 978-3-515-09816-8 Stephan Kirste / Anne van Aaken / Michael Anderheiden / Pasquale Policastro (Hg.) Interdisciplinary Research in Jurisprudence and Constitutionalism 2012. 267 S. mit 2 Abb. und 2 Tab., kt. ISBN 978-3-515-09941-7 Stephan Ast / Julia Hänni / Klaus Mathis / Benno Zabel (Hg.) Gleichheit und Universalität Tagungen des Jungen Forums Rechtsphilosophie (JFR) in der Internationalen Vereinigung für Rechts- und Sozialphilosophie (IVR) im September 2010 in Halle (Saale) und im Februar 2011 in Luzern

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2012. 315 S., kt. ISBN 978-3-515-10067-0 Bénédict Winiger / Matthias Mahlmann / Philippe Avramov / Peter Gailhofer (Hg.) Recht und Verantwortung / Droit et responsabilité Kongress der Schweizerischen Vereinigung für Rechts- und Sozialphilosophie, 11.–12. Juni 2010, Universität Zürich / Congrès de l’Association Suisse de Philosophie du Droit et de Philosophie Sociale, 11–12 juin 2010, Université de Zurich 2012. 206 S. mit 6 Abb., kt. ISBN 978-3-515-10066-3 Thomas Bustamante / Oche Onazi (Hg.) Global Harmony and the Rule of Law Proceedings of the 24th World Congress of the International Association for Philosophy of Law and Social Philosophy, Beijing, 2009. Vol. 1 2012. 133 S., kt. ISBN 978-3-515-10081-6 Thomas Bustamante / Oche Onazi (Hg.) Human Rights, Language and Law Proceedings of the 24th World Congress of the International Association for Philosophy of Law and Social Philosophy, Beijing, 2009. Vol. 2 2012. 192 S., kt. ISBN 978-3-515-10082-3 Yasutomo Morigiwa / Hirohide Takikawa (Hg.) Judicial Minimalism – For and Against Proceedings of the 9th Kobe Lectures. Tokyo, Nagoya, and Kyoto, June 2008 2012. 99 S., kt. ISBN 978-3-515-10136-3 Thomas Bustamante / Carlos Bernal Pulido (Hg.) On the Philosophy of Precedent Proceedings of the 24th World Congress of the International Association for Philosophy of Law and Social Philosophy, Beijing, 2009 Volume 3 2012. 144 S., kt. ISBN 978-3-515-10150-9 Matthias Kaufmann / Joachim Renzikowski (Hg.) Zurechnung und Verantwortung Tagung der Deutschen Sektion der Internationalen Vereinigung für Rechts- und Sozialphilosophie vom 22.–24. September

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2010 in Halle (Saale) 2012. 184 S., kt. ISBN 978-3-515-10180-6 Carsten Bäcker / Sascha Ziemann (Hg.) Junge Rechtsphilosophie 2012. 214 S., kt. ISBN 978-3-515-10268-1 Ulfrid Neumann / Klaus Günther / Lorenz Schulz (Hg.) Law, Science, Technology Plenary lectures presented at the 25th World Congress of the International Association for Philosophy of Law and Social Philosophy, Frankfurt am Main, 2011 2012. 173 S., kt. ISBN 978-3-515-10328-2 Winfried Brugger / Stephan Kirste (Hg.) Human Dignity as a Foundation of Law Proceedings of the Special Workshop held at the 24th World Congress of the International Association for Philosophy of Law and Social Philosophy in Beijing, 2009 2013. 267 S., kt. ISBN 978-3-515-10440-1 Philippe Avramov / Mike Bacher / Paolo Becchi / Bénédict Winiger (Hg.) Ethik und Recht in der Bioethik / Ethique et Droit en matière de Bioéthique Kongress der Schweizerischen Vereinigung für Rechts- und Sozialphilosophie, 11.–12. Mai 2012, Universität Luzern / Congrès de l’Association Suisse de Philosophie du Droit et de Philosophie Sociale, 11–12 mai 2012, Université de Lucerne 2013. 226 S., kt. ISBN 978-3-515-10436-4 Tetsu Sakurai / Makoto Usami (Hg.) Human Rights and Global Justice The 10th Kobe Lectures, July 2011 2014. 167 S., kt. ISBN 978-3-515-10489-0 Bernhard Jakl / Beatrice Brunhöber / Ariane Grieser / Juliane Ottmann / Tim Wihl (Hg.) Recht und Frieden – Wozu Recht? Tagungen des Jungen Forums Rechtsphilosophie (JFR) in der Internationalen Vereinigung für Rechts- und Sozialphilosophie (IVR) im September 2012 in Münster und im April 2013 in Berlin 2014. 206 S. mit 3 Abb., kt. ISBN 978-3-515-10806-5

141. Axel Tschentscher / Caroline Lehner / Matthias Mahlmann / Anne Kühler (Hg.) Soziale Gerechtigkeit heute Kongress der Schweizerischen Vereinigung für Rechts- und Sozialphilosophie, 7. Juni 2013, Universität Bern 2015. 139 S., kt. ISBN 978-3-515-10907-9 142. Daniela Demko / Kurt Seelmann / Paolo Becchi (Hg.) Würde und Autonomie Fachtagung der Schweizerischen Vereinigung für Rechts- und Sozialphilosophie, 24.–25. April 2013, Landgut Castelen, Augst 2015. 216 S., kt. ISBN 978-3-515-10949-9 143. Jean-Christophe Merle / Alexandre T. G. Trivisonno (Hg.) Kant’s Theory of Law Proceedings of the Special Workshop “Kant’s Concept of Law” held at the 26th World Congress of the International Association for Philosophy of Law and Social Philosophy in Belo Horizonte, 2013 2015. 138 S., kt. ISBN 978-3-515-11037-2 144. Júlio Aguiar de Oliveira / Stanley L. Paulson / Alexandre T. G. Trivisonno (Hg.) Alexy’s Theory of Law Proceedings of the Special Workshop “Alexy’s Theory of Law” held at the 26th World Congress of the International Association for Philosophy of Law and Social Philosophy in Belo Horizonte, 2013 2015. 187 S., kt. ISBN 978-3-515-11043-3 145. Annette Brockmöller / Stephan Kirste / Ulfrid Neumann (Hg.) Wert und Wahrheit in der Rechtswissenschaft 2015. 113 S., kt. ISBN 978-3-515-11053-2 146. Marcelo Campos Galuppo / Monica Sette Lopes / Karine Salgado / Thomas Bustamante / Lucas Gontijo (Hg.) Human Rights, Rule of Law and the Contemporary Social Challenges in Complex Societies Proceedings of the 26th World Congress of the International Association for Philosophy of Law and Social Philosophy in Belo Horizonte, 2013 2015. 155 S. mit 2. Abb., kt. ISBN 978-3-515-11130-0

According to the case law of the Inter-American Court of Human Rights, the catalogue of human rights as it is expressed in the American Convention of Human Rights, as well as in all the other international codifications of human rights, contains a serious gap. It does not provide a particular right for the protection of identity. Therefore, the Court demands the creation of an unwritten human right to identity by case law in addition to the written codices of human rights in international law. The philosophers, lawyers and political scientists

joined in this book discuss this assumption under different aspects and from different cultural and legal backgrounds (Brazil, China, Germany, Japan, and Turkey). The book contains contributions that analyze the meaning(s) of the concept “identity” based on an individual approach as well as on the basis of a collective approach. It deals with certain aspects of identity in the context of certain fields of positive law, including criminal law and family law, and it questions the real need for a new right to identity.

www.steiner-verlag.de Franz Steiner Verlag

ISBN 978-3-515-11244-4

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