Helge Dedek's "DeIure Hominis et Homunculi: Rights, Tristram Shandy, and the Legal Language ofIsolation" is on SSRN.
The article will be published in Werner Gephart & Jan Christoph Suntrup (eds.),
Rechtsanalyse als Kulturforschung (Frankfurt am Main: Vittorio Klostermann,
2013, Forthcoming):
In
Laurence Sterne’s 1759 comic novel, Tristram Shandy, we encounter a startling
invocation of protected individual rights, the individual in this case being
the hapless proto-human Homunculus destined to become the titular character.
Decades before the revolutionary declarations of rights, Sterne, Thomas
Jefferson’s favourite author in matters of moral philosophy, blatantly
ridicules the idea of the self-evidence of rights. Sterne’s satirical
“rights-talk” captures two important facets: the atomistic, alienating aspect
of perceiving human relations through the lens of rights, as famously
criticized by Marx and so many others ever since; and the way in which drawing
on genuinely legal concepts has contributed to the development of this often
criticized language of isolation. In this paper, I trace, in particular, the
ideas of Natural law scholars like Grotius and Pufendorf (who is explicitly
referred to by Sterne) who conceptualized rights as non-relational, as domains,
modelled on the Roman law concepts of dominium, ownership, and patria, the
power of a pater familias over his household, both concepts that are
characterized by domination over objects or human beings. Yet a theory of
rights that insists on the integrity of exclusive spheres of power cannot
easily accommodate non-transgressive intersubjective action – most importantly,
contract. Nonetheless, the rhetoric of the protected sphere of the subjective
right never left the language of law.
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