Equal Recognition Before the Law for People with Disabilities – A Kafkaesque Tragedy

Equal Recognition Before the Law for People with Disabilities – A Kafkaesque Tragedy

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The notion of a human having a “dis-ability to be a person” has no basis in reality. Yet this idea underpins laws the world over. In today’s post, Emre Barca, from RUSİHAK, weaves together thoughts on legal capacity and disability, with a nod to Franz Kafka and Aristotle.

After being born, human beings are accepted and registered by a sovereign authority and they become persons with some rights and responsibilities in the face of a legal system. The right to enter this system is granted under only one condition: being born as a human. So, we say every ‘man’ has the right to be recognized as a person and this is a ‘natural’ right, a right by nature, given to ‘man’ by the sovereign, whatever it might be, god, state or community.

I am tempted to read Kafka’s “Before the Law” in light of what I understand from being a ‘person’ and from taking part in the Right to Act campaign:

“Before the Law stands a doorkeeper. A man from the country comes to this doorkeeper and requests admittance to the Law. But the doorkeeper says that he can’t grant him admittance now.” (The Trial, p. 167, 1998, Schocken Books)

Starting with these words, Kafka tells us the story of the common man “before the law” waiting for the door to be opened to him. However, he dies in front of the door without being able to reach the law despite his lifetime efforts. When he is about to die, the doorkeeper says:

“Here no one else can gain entry, since this entrance was assigned only to you. I’m going now to close it.”

"Before the Law" was published in Kafka's lifetime, in 1915

“Before the Law” was published in Kafka’s lifetime, in 1915

This is the story of common man before the law: a door to law is assigned to common man under his name, his persona though he can neither reach the law nor see through it even once. But still he has the right to wait before the door to law, which is only assigned to him. Here, he is accepted, registered and recognized as a person by the law no matter if he dies without so much as a glimpse of it.

Nevertheless some of us are not even that lucky. Some of us may not have a door assigned or sometimes the door assigned to some of us is cancelled, shut for good well before death. In these cases either you are not recognized as a person just from the beginning or you lost your right to be a person. But how is it possible to deprive a human being of her right to be recognized as a person if this is her right by nature? Or how can one lose her ‘natural right’ to be a person without losing her humanity?

This happens when someone is considered ‘less human’ than the others, if not inhuman. That is, when someone lacks some characteristics that humans naturally have, she ‘naturally’ lacks the right to be a person. Or one loses her right to be a person when she loses some characteristics that humans have naturally. Dehumanization is mostly discussed in the academy as a feature of violence and is commonly considered an integral part of torture, slavery or genocide. However, it is also at work in legal discourses as well as procedures in society.

Imagine the Athenian democracy in which women, slaves and foreigners have no right to vote. They are among those who cannot be considered persons par excellence for they are less human than free Athenian males. Aristotle would claim that women are failed males and they struggle with a significant “handicap” (The History of Animals 775a4-17). And freed slaves were also deprived of political rights since their eventual freedom is not good enough to be recognized as fellow citizens in Athens–for they lack some characteristics inherent, proper to man by birth, they can never have a door assigned to them.

But it is also possible to lose your door if you lose those characteristics you once had. If it is detected that one loses her ‘mental capacity’ to a certain degree, then she is considered less human for the obvious fact that she is not able to properly ‘act’. She is then dis-abled and has no ability to be a proper ‘actor’, a person who deserves his own door before the law. The Ancient Greek root of word ‘person’, prosopon means ‘face’ or ‘mask’ that actors wear in Greek tragedy and it somewhat connotes how dis-ability to ‘act’ turns into the dis-ability to be a person in effect.

This ‘act’, this very serious play of being human, this performance of the person depends upon nothing but a fantasy that has to be concretized and measured in what is called ‘capacity’. “Capacity of what?” one would reasonably ask. “Through which capacity may the sovereign legitimately measure and decide the person to be incapacitated?” Love? Compassion? No way. Consciousness? Reason? Sanity?

the-trial-doorNo matter how rigorous is the measurement of one’s mental capacity, the horizon of this thinking is determined by the fantasy of perfection, completeness, unity and continuity of the sovereign. And the survival of this fantasy is bounded with the creation and the closure of definition of the imperfect, incomplete, fragmented and discontinuous body: disability.

Perhaps, the question is why we desperately need the ‘handicapped’ or ‘diabled’ to ‘act’ as a fully-functional person, as if it is possible for one to be perfectly functional continuously. As if disability is not just one of the descriptions of humanity.

In any case, one thing is certain, although it might be so under current laws, in reality there is no such thing as a living human having a “dis-ability to be a person”.

Emre Barca, 12. 06. 2015

 

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