Embodying Vulnerability: A Feminist Theory of the Person

Matambanadzo, Saru M., Duke Journal of Gender Law & Policy

INTRODUCTION

Law is the social, economic, political and personal struggle that determines who counts as a member of the community. This struggle also determines how we should take account of the diverse interests of members of the community. Which entities, individuals or collectives do we consider members of the legal community? Of those entities, individuals and collectives, which rights, duties, privileges and protections should they enjoy? Legal rules create the contours of recognition for various entities, individuals and collectives. They define who counts and how we take account of them.

Legal disputes in a variety of areas can be understood as determinations about who counts and how we should take account of them. In family law, for example, custody disputes often concern determinations about which individuals are entitled to visitation or custody and which individuals are under an obligation to provide financial support. Legal rules, like the best interests of the child standard, (1) guide these determinations and shape adjudication. Immigration law bases the right to remain within a specific geographic nation state on who counts--i.e. which individuals are citizens (2) and permanent residents, (3) and which undocumented individuals may be deported. (4) The law also determines how we regard various diverse classes of foreign nationals to make determinations about which rights and considerations these individuals should enjoy. For example, certain immigrants may be granted a permanent visa while others are not. (5) In terms of federal tax law, the regulations governing joint or individual filing statuses determine which collective groups are recognized as a unit for the purpose of filing a federal tax return. (6) One man and one woman joined in a state sanctioned marriage can file jointly under federal law, accessing particular tax incentives, while two men, two women or one man, and four women may not. (7) Similarly, even though some families of two or more persons are prohibited from filing their taxes together, for the purposes of business ventures, groups of individual human beings shielded by the corporate form may file taxes together as a single unit. (8)

There are numerous ways to name the process of determining who counts and how we take account of them in law. Citizenship, (9) legal rights (10) and legal subjectivity (11) are various ways to speak about who counts in law and how we take account of them. Another way in which legal scholars talk about the issue of recognition for the purposes of structuring the legal community is accomplished through the concept of legal personhood. At the dawn of the twenty-first century, legal personhood has become a political battleground for activists and legislators. While some work to expand the community of legal persons to include unborn human beings like fetuses and zygotes, (12) others focus their efforts on pushing the boundaries of legal personhood beyond human beings to include great apes or whales and orcas. (13) And finally, some activists are concerned with limiting the community of legal persons to exclude collective legal entities like corporations, limited liability companies and unions. (14)

Recent activism concerning the status of persons and non-persons reveals how the legal boundaries of personhood have served as the background for debates in law and politics. In light of the recent legal and political activity concerning the boundaries of personhood, this article argues that feminist legal theory should engage with the question of legal personhood. To this end, it articulates one possible framework for a feminist legal theory of the person. Drawing on the work of scholars in vulnerability studies and embodiment theory, this article imagines and proposes an analytic framework to aid those who make and interpret the law when faced with the twenty-first century challenges of legal personhood.

Part I of this article examines the political battles around legal personhood in historical and contemporary contexts. It focuses on the diverse controversies concerning legal personhood for corporations and other associations, fetuses and embryos and non-human animals. In Part II, it examines the concept of legal personhood from a theoretical perspective. It simultaneously highlights the indeterminacy of legal personhood as a definitive concept and the normative force entailed by legal personhood in clarifying the distribution of rights, privileges and entitlements. Part HI begins to sketch one possible articulation of a feminist legal theory of the person from a perspective grounded in vulnerability studies and embodiment theory. It provides one possible framework for addressing the twenty-first century challenges of legal personhood from a feminist perspective, arguing for an analytic framework that takes the body and embodied vulnerability as central and essential aspects of legal personhood.

I. THE CHALLENGE OF LEGAL PERSONHOOD: HISTORICAL CONTEXT AND CONTEMPORARY CONTROVERSIES

In both historical and contemporary contexts, battles concerning legal personhood structure the legal, social and political realities of the United States. Historically, debates about legal personhood have had high stakes, concealing political contests regarding the distribution of legal privileges, political rights and social entitlements to groups and individuals. Legal personhood animated many political challenges in the United States from its founding forward. In the twenty-first century, legal personhood continues to create challenges to jurisprudence in the United States. Particularly in terms of battles concerning corporations, fetuses and embryos and non-human animals, controversies concerning legal personhood shaped political, social and legal activism. And today, the battles concerning legal personhood mark the boundary lines of the legal community and highlight places of complexity and contradiction in the status quo.

From the founding of the United States to the so-called "First Wave" suffragette struggles of the late nineteenth and early twentieth century, controversies concerning legal personhood shaped political, social and legal activism. (15) Historically, in the United States, the rights of personhood were granted to white male property owning citizens. (16) During the nineteenth century, suffragettes demanded an expansion of personhood to include married and unmarried women living in the shadow of coverture. Coverture, according to feminist thinkers like Elizabeth Cady Stanton and Lucretia Mott, made women less than full persons under law, rendering them, "in the eye of the law, civilly dead." (17) In the United States, for example, while women were considered legal persons, (18) they were accorded neither the rights and privileges nor the duties and obligations of full legal personhood. (19) Women, like African Americans and others, were excluded from the full privileges and benefits of legal personhood. (20) While women were considered citizens of the United States, they were often excluded from the statutory interpretation of persons eligible for certain rights and privileges under law. (21) And once married, women were limited in their ability to exercise many basic capacities and rights of legal personhood at common law, such as making contracts and owning property. (22) Women could lose their nationality as American citizens and the rights of American citizenship by marrying a foreigner. (23) They could be explicitly excluded from juries by state law, (24) and states were under no obligation to make laws that qualified women for jury service. (25) Even where a state permitted women to be jurors, they were not compelled to serve and could be exempted from mandatory jury service by statute. (26) While the Nineteenth Amendment (27) has often been thought of as granting women the right to vote, this amendment's prohibition against discrimination because of sex was not always adopted in practice. Despite the hard work of suffragists and the hopes that the possibility of the franchise engendered, this amendment was not initially applied in a way that radically altered the position of women in the United States. On the contrary, it was interpreted in a way that did not universally guarantee women the right to vote. Courts instead interpreted this amendment narrowly, claiming that it simply meant that while states could not pass legislation explicitly prohibiting women from voting, they could systematically apply requirements for the franchise that would severely curtail the right to vote for most women. (28) The accordance of a positive right to vote was left to the states to confer upon women. Thus many women gained the de jure right to vote while de facto exclusion from the franchise was still permissible. (29)

Struggles to expand the boundaries of legal personhood have long been part of the feminist legal project, not only in terms of protecting and expanding the legal personhood of women. In the nineteenth century, many feminists in the United States were part of the abolitionist movement which sought to expand the scope of legal personhood to include African Americans as free individuals. (30) Many feminist abolitionists like Elizabeth Cady Stanton regarded the conditions of marriage and the status of coverture (31) to be akin to slavery. (32) In the nineteenth century, feminists in the U.S. actively participated in the abolitionist movement, seeking increased recognition of the legal personhood of African Americans and women in terms of political and social equality. (33) From late nineteenth century activists fighting for suffrage and full citizenship rights for all persons, both male and female, (34) to mid-twentieth century legal battles attempting to cast off the disabilities of coverture, (35) women in the United States have fought not only for legal personhood but also for the citizenship rights essential to realize the fullest form of legal personhood possible. In a global context, in spite of efforts in international law to ensure full equality for women, (36) discriminatory laws denying women full access to legal personhood continue to impact women's lives. (37) And while gender is not the only limitation to membership in the legal community of persons, (38) one's status as a woman or a man has historically shaped the way in which legal persons are recognized and legal personhood is realized.

In the twenty-first century, legal personhood has emerged as a contested issue of which feminist theory should take account. Currently, human beings that have been born are considered persons for the purposes of law, even if they are not treated equally in terms of status. (39) From the halls of the legislature, to the chambers of the courtroom, issues concerning the threshold of legal personhood have re-emerged for a diverse array of persons and non-persons. Legal personhood for corporations and other juridical persons, human embryos and fetuses, animals and human/animal hybrids and others has become the subject of controversy, activism and political action. The following sections highlight the problem of personhood by examining law reform efforts from various parties, including local grass roots activists and high-profile national figures. It examines the problem of personhood with a focus on controversies concerning corporations, fetuses and embryos and non-human animals.

A. The Controversy of Corporate Personhood

Corporate personhood has become a controversial proposition in the wake of the Supreme Court's 2010 decision, Citizens United v. Federal Election Commission. (40) This decision expanded political speech rights for corporations, noting that corporations and other associations should not be treated differently under the First Amendment simply because they are not individuals. (41) After all, "[t]he First Amendment protects more than just the individual on a soapbox and the lonely pamphleteer." (42) Drawing on these principles, one could surmise that the First Amendment protects the speech of corporations in part because of the individuals collectively associating behind the corporate form. (43) While some have hailed the decision as a positive expansion of political speech for associations (44) and a logical extension of the Supreme Court's jurisprudence in First Amendment law, (45) others have argued it is a problematic expansion of political rights for corporations and corporate personhood. (46) One of the most interesting side effects of this debate has been the impact it has had on the popular imagination, as activists and commentators perpetuate the perception that corporate personhood provides a foundation for ensuring legal recognition and special constitutional protections for corporate collective entities. (47) Although Citizens United was not explicitly decided in reference to corporate personhood, some activists (48) claim that the root of the problem with the decision lies with the underlying conceptual assumption that "corporations are persons." (49) Even though the Citizens United decision concerned free speech, it has made corporate personhood controversial in the United States. (50) Activists have tried to engage the popular political imagination with the problem of corporate personhood. (51) While some have been absurdist (52) and some have been outrageous, (53) many other engagements with corporate personhood have attempted to prompt serious law reform. (54)

Various political interest groups have taken on the cause of repealing constitutional corporate personhood, and state and local governments have enacted legislation to address the problems raised thereby. Legislation designed to dismantle corporate personhood has been introduced in Montana, (55) Vermont (56) and Washington. (57) On March 8, 2011 in Minnesota, a state constitutional amendment for the 2012 general election was introduced that would limit the definition of person to natural persons, excluding corporations from constitutional personhood. (58) Similar amendments and initiatives have been adopted by other local governments, (59) and proposed by political parties (60) and public interests groups. (61) These proposals either limit free speech rights for corporations (62) or actively deny corporations personhood. (63) At the federal level, Congressman Ted Deutch of Florida and Senator Bernie Sanders of Vermont introduced a constitutional amendment limiting constitutional rights to "natural persons" and eliminating constitutional rights for "for-profit corporations, limited liability companies, or other private entitles established for business purposes." (64)

B. Fetuses and Embryos: The "Pro-Life" Personhood Movement

Corporations are not the only legal subjects that may present significant challenges to the current conception of legal personhood in the United States. While some have attempted to roll back the expansion of legal recognition for corporate persons, others have made attempts to expand the community of legal persons in the United States by seeking recognition for fetuses and embryos. While the U.S. Constitution does not define the concept of a person explicitly, according to the Supreme Court, "the word 'person,' as used in the Fourteenth Amendment, does not include the unborn." (65) Some states, however, have made efforts to expand constitutional protections for fetuses and embryos. The state of Georgia has been on the cutting edge of these legal efforts. In 2009, the Option of Adoption Act was passed, which changed the definition of "child" to include a human embryo. (66) That same year, S.R. 328 was passed. This bill acknowledged "the right to life is paramount and the need for protection of the lives of the innocent at every stage." (67) Georgia legislators have introduced a significant amount of legislation proposing expanded personhood protections for fetuses and embryos. For example, in 2007, the Georgia state house proposed HR 536, the "Paramount Right to Life" amendment. This amendment would extend constitutional protection to unborn children "from the moment of fertilization without regard to age, race, sex, health, function, or condition of dependency." (68) In 2009, a proposed amendment to the Georgia Constitution stated that the "right to life is vested in each human being from the moment of fertilization." (69) In 2011, this amendment was reintroduced as H.R. 1072. (70)

Georgia is not alone. Over two thirds of the states have passed legislation providing some legal recognition of fetuses for the purposes of homicide, (71) or for other purposes. (72) Other states have made laws that, while stopping short of recognizing fetal personhood, limit abortion on the basis of fetal pain. (73) Legislative efforts have even been proposed to expand the community of persons to include fetuses and embryos from the time of conception. (74) In other states, activists have attempted to expand fetal personhood through ballots initiatives and referendum. (75) And, while such campaigns have not always been successful, (76) activists committed to expanding legal personhood to include fetuses have been persistent in their efforts to make change in what they characterize as a crucial contemporary civil rights struggle. (77)

Embryos and other pre-birth human tissue also present a challenge to the contours of legal personhood. Reproductive technology has facilitated the possibility of separate existence for human tissue, creating indeterminacy in law for a variety of individuals, entities and collectives. For example, questions about what happens to unimplanted embryos may arise for potential parents and for the facilities housing these unused embryos. While some of these issues may be resolved through contracts between potential parents and the facilities in question, or between the potential parents themselves, the legal status of embryos does not lend certainty to these scenarios. In the United States, embryos currently occupy a place of liminal legal recognition, receiving different levels of protection and recognition in different jurisdictions. In some jurisdictions they are juridical persons, (78) while in others they are property subject to contract law (79) or occupy an intermediate space between persons and property. (80)

C. Animal Activism and the Possibilities of Personhood

The legal status of animals has also become an area of scholarly and political dispute. (81) The exclusion of non-human animals from the legal status of personhood has theoretical roots that can be traced to the teleological worldview of ancient Greek and Roman philosophers, (82) and to metaphysical religious traditions of "Western" thought. (83) In the United States, as in many other English-speaking countries, non-human animals are not persons but "things." (84) As things, animals are considered property and not generally eligible for the full scope of legal protections, rights and privileges enjoyed by human beings or other persons like corporations. (85) A recent case, brought by activists from the People for the Ethical Treatment of Animals (PETA) on behalf of killer whales owned by Sea World, held that non-human animals were not part of the community of persons recognized by the Thirteenth Amendment. (86)

The status of animals as property, however, does not mean that they have been completely excluded from the community of persons. Animals occupy the legal status of quasi-persons, being recognized as holding some rights and protections but not others. Although animals generally lack standing to sue on their own behalf, in some limited circumstances, non-human animals have been accorded standing to sue through a guardian ad litem. (87) Currently, one state, one Canadian city and 17 U.S. cities reference pet owners as "guardians." (88) Animals have also received protection in the context of anti-cruelty and animal welfare laws, (89) and their owners may seek some legal protections for them in terms of tort law and the law of trusts and estates. (90) Animal activists have tried to increase legal recognition for great apes and other non-human hominids. (91) There is even some evidence that many countries are moving toward increased legal recognition for animals and their well-being. (92) Some argue that there has been a serious divergence in law between the U.S. and the E.U. concerning agriculture and animal welfare law. (93) Nevertheless, even the most well intentioned legal change does not have a substantial impact on the lives of many animals. (94) Although there are many who have challenged the division between persons and animals, and have argued that animals should be accorded more protections and rights, (95) legal definitions of personhood render animals different from, and less than, human beings in most cases. (96) The issue of legal personhood for animals will become even more complicated as the possibility of human-animal hybrids emerges, (97) artificial intelligence becomes more sophisticated, (98) and as things previously conceptualized as property come to be recognized as worthy of legal consideration. (99)

If current campaigns to expand or limit personhood in law are any measure, the problems of legal personhood will continue to plague us. Although some may claim that the questions of legal personhood have been settled, (100) or that the best course of dealing with questions of legal personhood is not to think about them, (101) the recent political action around fetal and corporate personhood--and the future challenges emerging from individuals and entities formerly conceptualized as things--shows us that the legal contours of personhood are open to new interpretations and possibilities. If, as W.E.B. Dubois noted, the problem of the twentieth century was the color line, (102) one could argue that the problem of the twenty-first century will become the lines we draw in law between persons and non-persons. In the wake of populist responses to the Supreme Court's expansion of political speech rights for collectives and associations shrouded in juridical personhood, the re-emerging debate around the legal status of embryos and fetal personhood and the arising issues regarding the potential recognition of animals as legal persons, it is time for legal scholarship--particularly in feminist theory--to re-engage with the question of legal personhood and its meaning.

The continuing challenges of personhood should matter to feminist legal theorists for several reasons. First, constructing the contours and limits of the community of persons has consistently been part of the feminist legal project. From the early efforts of suffragettes (103) to contemporary feminist efforts to examine intersectionality, (104) equality, (105) motherhood, (106) family, (107) sexuality (108) and subjectivity, (109) feminist legal theorists have challenged the legal and political status quo in an effort to secure increased recognition for women as persons. (110) Second, …

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Publication information: Article title: Embodying Vulnerability: A Feminist Theory of the Person. Contributors: Matambanadzo, Saru M. - Author. Journal title: Duke Journal of Gender Law & Policy. Volume: 20. Issue: 1 Publication date: Fall 2012. Page number: 45+. © 2009 Duke Journal of Gender Law & Policy. COPYRIGHT 2012 Gale Group.

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