Clark, John H. Jr., Abracadabras in the Law, 229 N. Am. Rev. 584 (1930).
For more about these practices, see Evans, Edward Payson, The Criminal Prosecution and Capital Punishment of Animals (1906); see also
Finkelstein, Jacob J., The Goring Ox: Some Historical Perspectives on Deodans, Forfeitures, Wrongful Death, and the Western Notion of Sovereignty, 46 Temp. L. Q. 160–290 (1973).
Dayan, Colin, The Law Is a White Dog (2013).
Alexander Nékám, The Personality Conception of the Legal Entity (1938).
Christopher Stone, Should Trees have Legal Standing? And other Essays on Law, Morals and the Environment (1996).
For more about “As if” as a perspective to analyze law, see Tomlins, Christopher & Comaroff, John, “Law as …”: Theory and Practice in Legal History, 1 U.C. Irvine L. Rev. 1039 (2011); see
Fisk, Catherine L. & Gordon, Robert W., Foreword to “Law as …”: Theory and Method in Legal History, 1 U.C. Irvine l. Rev. 519 (2011); see also
Motha, Stewart, As if – Law, History, Ontology, 5 U.C. Irvine L. Rev. 327 (2015).
Weber, Max, Economy and Society. An Outline of Interpretative Sociology 641 (G. Roth & C. Wittich eds., 1978). Even when the use of the term “rationalization” is notoriously vague in Weber's analysis, this usually designates a general movement towards a systematic, methodological, universal, self-conscious way of thinking. That is to say, a form of thought “based on human reason and not on external systems like magic.” See
Likhovski, Assaf, Protestantism and the Rationalization of English Law: A Variation on a Theme by Weber, 33 L. & Soc. Rev. 365 (1999). It is interesting to highlight that terms such as “magic” and “irrationalism” have in this context more or less an interchangeable meaning. Moreover, according to Weber's description of the rationalization process, modern law and magic should be considered as being mutually exclusive phenomena. It is this discontinuity between magic and law that I want to question in this Paper.
See Weber, supra note 7, at 405.
Lavi, Shai J., Enchanting a Disenchanted Law: On Jewish Ritual and Secular History in Nineteenth-Century Germany, 1 U.C. Irvine L. Rev. 813 (2011); see also Tomlins & Comaroff, supra note 6, at 1060–61.
See Lavi, supra note 9, at 813–42.
See Georges Dumézil, Mitra-Varuna: An Essay on Two Indo-European Representations of Sovereignty (D. Coltman trans., 1988).
Bloch, Marc, Los Reyes Taumaturgos (M. Lara & J. Rodríguez Aguilar trans., 2006).
Webster, Hutton, Magic. A Sociological Study 287–93 (1948), reviewing many examples of chieftainships in different cultures.
James Frazer, The Golden Bough: A Study In Magic And Religion 11–13 (1925).
E.B Taylor, 1 Primitive Culture 116–19 (1920).
Taussig, Michael, Mimesis And Alterity 47–58 (1993), describing Frazer's sympathetic magic as a form of mimesis. With this characterization, Taussig points out that behind all forms of sympathetic magic lies as a foundation the mimetic faculty, that is, the capacity to imitate, to mimic or to double, a trait shared by all human beings, and we can add, by some nonhuman beings as well. For Taussig, this mimetic faculty is at the core of what produces resemblance and difference.
Bronislaw Malinowski, Magic, Science And Religion And Other Essays 67 (1948).
It is important to highlight that those early anthropologists lost sight of the normative character of the natural sciences to which they were attempting to compare magic. As it is easy to notice, legalistic assumptions, called “laws of nature” and a legalistic methodology, called “scientific method,” are in the foundations of all natural sciences. This unawareness might be the reason of anthropologists' difficulties to see straightaway the close relationship between law and magic, and also of their recurrent, although, involuntary, associations of these two phenomena.
Marcel Mauss, A General Theory Of Magic 23–24 (Robert Brain trans., 1972).
Derrida, Jacques, Force of Law: The Mystical Foundation of Authority, in Acts of Religion 241–42 (2002). Aligning with Derrida's claim, I can say that both law and magic need people to believe in them (give some credit or have some kind of faith in them) to be able to work and to have efficacy.
Olivecrona, Karl, Law as Fact (1971); Karl Olivecrona, Legal Language and Reality, in Essays in Jurisprudence in Honour of Roscoe Pound 151–91 (R.A. Newman ed., 1962).
See generally Law and Magic: A Collection of Essays (C. Corcos ed., 2010); see also Tomlins & Comaroff, supra note 6; Fisk & Gordon, supra note 6; Jessie Allen, A Theory of Adjudication: Law as Magic, 41 Suffolk U. L. Rev. 773 (2008); Lior Barshark, The Totemic Authority of the Court, 11 L. & Critique 301 (2000); Kaius Tuori, The Magic of Mancipatio, Lv Revue Internationale Des Droits De L'antiquité 499 (2008); Hanna, Christopher H., The Magic in the Tax Legislative Process, 59 Smu L. Rev. 649 (2006); Suzanne Last Stone, Rabbinic Legal Magic: A New Look at Honi's Circle as the Construction of Law's Space, 17 Yale J.L. & Human. 97 (2013).
See Dayan, supra note 3.
Tambiah, Stanley, Culture, Thought, and Social Action: An Anthropological Perspective 78–79, 123–169 (1985); see also
Tambiah, Stanley, Magic, Science, Religion, and the Scope of Rationality 58 (1990).
Austin, John, How to Do Things with Words (1962); and Jacques Derrida, Declarations of Independence, 15 New Political Science 7–15 (1986); and Mauss, supra note 19, at 241.
See Dayan, supra note 3, at xii–xiii, 33–34, 40, 56, 87, 209, 215. These pages are particularly on point, although this issue is analyzed throughout the entire work.
In Argentine law, death represents the end of legal personhood, and a dead person (a corpse) is considered a “thing” that is “out of the market” (is not commercial or tradable). See
Lorenzetti, Ricardo, 1 Responsabilidad Civil De Los Médicos, 57–86 (1997).
For an explanation of the phenomenon of the enforced disappearances in Argentina, see Crenzel, Emilio, Memory of the Argentine Disappearences (2011); Jo Fisher, Mothers of the Disappeared (1989).
It was imperative to determine the legal status of the disappeared in order to regulate several important aspects of social life: Family issues (patria potestas, adoptions, inheritances), labor and pension issues, state compensations, etc.
Law No. 22.068, Sept. 6, 1979, B.O. 16/10/1979 (Arg.). Article 1 states: It can be declared the presumptive death of the person who disappeared from their home or residence, if there are no news from them, and the disappearance was reported to the authorities between November 6, 1974, the date in which the martial state was declared by decree 1368/74, and the date of promulgation of this law (author translation).
See Law No. 24.321, May 11, 1994, B.O. 10/06/1994. In Article 1, the law states: “Can be declared the absence by enforced disappearance of every person that have been involuntarily disappeared until December 10, 1983, of their home or place of residence, if there are no news of their whereabouts.” Article 2 states that “for the purposes of this law, enforced disappearance is when someone has been deprived of their freedom and this was followed by the disappearance of the victim, or if the victim had been kept captive in clandestine detention centers, or deprived, through any other mean, of the right to jurisdiction”, while Article 7 asserts that the effects of the declaration of “absence by enforced disappearance” will be analogous to the ones prescribed for the “presumption of death” (author translations).
The inscription of the disappeared as dead in the registries was politically unacceptable for some relatives because it equated the deaths of the desaparecidos with other “normal” deaths, and thus helped to “invisibilize” the very particular circumstances in which the disappeared died, especially when these deaths were the outcome of the dictatorial violence.
Under the International Convention for the Protection of All Persons from Enforced Disappearances and the Rome Statute of the International Criminal Court, the enforced disappearance is now an international crime. See International Convention for the Protection of All Persons from Enforced Disappearances, G.A. Res. 61/177, U.N. Doc. A/HRC/RES 2006/1 (Dec. 20, 2006); Rome Statute of the International Criminal Court, 2187 U.N.T.S. 90 (July 17, 1998). Accordingly, during these last years, many countries have incorporated this offense into their domestic laws. Nevertheless, this does not mean that victims are given a legal status or legal personhood as “disappeared” in these international or local settings, as it happens in Argentina.
Other scholars have seen in this status of the Argentine disappeared a very particular “ghostly” or “spectral” condition. See Avery f. Gordon, Ghostly Matters: Haunting and the Sociological Imagination (1997); see also María Julia Daroqui, “Desaparecido”: Cuerpo Forastero de la Memoria Cultural Argentina, in 20/21 Estudios. Revista de Investigaciones Literarias y Culturales 35–50 (2003).
Dayan, supra note 3, at 49. It is interesting to note that Article 10 of law 24.321 performs this “resurrection” when states that in cases where the “dead presumption” had been already declared (in accordance wi th law 22.068), the relatives can ask the “reconversion” of this state to the “absence for enforced disappearance.”
The rites of death and resurrection are rituals of renewal. Originally they were related to the cultivation of the land and with the cycles of seasons. These rituals are represented in many cultures and myths (for example, in the very well-known stories of the dead and resurrection of gods, like Osiris, Jesus, etc.). Frazer describes with detail a series of these rites all over the world. See Frazer, supra note 11, at 691–701. For a more contemporary study, see Tryggve, Mattinger, The Riddle Of Resurrection (2001).
Gennep, Arnold Van, Los Ritos De Paso (J. Aranzadi trans., 2008), explaining rites of passage, and among them the rite of death and resurrection.
For more images of this practice, in which the pictures of the disappeared are placed in the seats of the courts, see Dandan, Alejandra, Tres filas con las fotos de los desaparecidos, Página /12 (Oct. 1, 2010), https://www.pagina12.com.ar/diario/elpais/1-154125-2010-10-01.html; En marzo comenzarán seis juicios por delitos de Lesa Humanidad, Telam. Agencia Nacional De Noticias (Feb. 28, 2012), http://memoria.telam.com.ar/noticia/comenzaran-seis-juicios-por-delitos-de-lesa-humanidad_n750; Son 15 los juicios que por delitos de lesa humanidad que se realizan en el país, Diario Registrado (Sept. 27, 2015), http://www.diarioregistrado.com/sociedad-/son-15-los-juicios-por-delitos-de-lesa-humanidad-que-se-realizan-en-el-pais_a56339d3a17bfa0004e87c653.
In anthropological theory, gift-giving has been understood as a form of exchange that is at the very foundation of human reciprocity and community. It is interesting to note that Mauss defined gift-giving as a “spiritual machinery.” See
Mauss, Marcel, The Gift: The Form and Reason for Exchange in Archaic Societies 9, 10–24 (W.D. Halls trans., 1990); see also
Benveniste, Emile, Vocabulario De Las Instituciones Indo-Europeas 63–66 (M. Armiño trans., 1983), showing that this exchangeability is in the very etymology of the term donum (gift).
It is interesting that Roberto Esposito finds in the etymology of communitas the word munus (co-munus), which points out to the donum (the gift, the exchange) at the core of the social. According to the Italian thinker, this gift is particular because it constitutes a duty (onus) and arises from a “lack,” a “fault,” a crime. See
Esposito, Roberto, Communitas: The Origin and Destiny of Community 3–4, 8 (T. Campbell trans., 2010). Moreover, Benveniste finds that munus could be linked to a group of words meaning “inheritance” (a family gift) through the suffix “nus” or “nes.” See Benveniste, supra note 40, at 63. Here we are close to associating munus with Manes, the spirits of ancestors that Romans worshiped (gift-given) in the domestic cult. It is important to note that when Romans founded a new town (a new community), a round hole was excavated and a stone called lapis manalis (“stone of the Manes”) was placed in the foundations, representing the gates to the underworld. It could be argued that the Manes were closely related to the munus at the foundations of the community. The connection of all these ancient practices with the behavior of the relatives of the desaparecidos during the trials is, to say the least, uncanny.
Derrida, Jacques, Given-Time: I. Counterfeit Money 41 (P. Kamuf trans., 1992).
Let us not forget that etymologically phantasmata means “image” or “representation” of an object. Moreover, from Plato onwards, there is a very long tradition that associates simulacra and semblance with phantasms (images). I cannot help but keep relating the image of the many faces of the desaparecidos at the seats of courts with the issue that in Spanish the word “semblance” (semblanza) is closely linked to “face” (semblante). On another note, it should be said that Derrida associates the nature of gift-giving with the operation of a simulacra (a counterfeit). For him, given the impossibility of a genuine gift-giving, a gift only can “appears” as a phantom. See Derrida, supra note 42, at 14, 31. It could be said that not by chance the exchangeability (the gift) is the very condition of ghostliness. As Derrida has pointed out: “Spectrality has to do with the fact that a body is never present for itself, for what it is. It appears by disappearing or by making disappear what it represents: One for the other.” Derrida, supra note 20, at 276. But, we can wonder: Are not simulacra and counterfeit also the main features usually assigned to magic? Is this not a characteristic that derives from its impossible-possibility?
See Jean-Pierre Vernant, Myth and Thought Among the Greeks 321–33 (J. Lloyd and J. Fort trans., 2006), explaining that in ancient Greece—and also in Rome—when the body of a deceased person was missing, the funerary rites were still performed using an effigy (a kolossoi or kolossos) that substituted the absent corpse. The main reason of this is that they believed that if funerary rites were not performed correctly—for example, burying the body—the ghost of the dead person would be compelled to wander endlessly between the world of the living and that of the dead. The kolossoi was not merely an “image” of the missing, but her “double.” Vernant's words, easily recall us the paradoxical existence of the disappeared at court: “Through the Kolossos, the dead man returns to the light of day and manifest his presence in the sight of the living. It is a particular and ambiguous presence that is also the sign of an absence.” Id. at 323.
Of course, I cannot help but think here of Karl Marx's “commodity fetishism,” a term used to describe the process in which capitalism puts the world “upside down,” making commodity acquire animated life (we could say personhood) while people are objectified (“reified”) by the forces of the market. See
Marx, Karl, 1 Capital. A Critique of Political Economy, 81–96 (F. Engels ed., 1986). It is well accepted that Marx took the term from Charles de Brosses, who used it in a work of 1760 to describe the worshiping of certain talismans and amulets in West Africa. It seems that the word derives from the Portuguese word feitiço (charm, sorcery), which comes from the Latin factitious (made, artificial, made by art). According to the Oxford English Dictionary, a fetish is “an inanimate object worshiped for its supposed magical powers or because it is considered to be inhabited by a spirit.” In anthropological terms, nevertheless, a fetish is a non-living object (it could be a material thing, but also an idea) towards which we project life and agency (personhood). See
Taussig, Michael, Fieldwork Notebooks 5 (2011). Beyond this characterization, it is important to highlight the force of the fetish to personify objects. In this regard, in this plane of doublings and replacements, it can be said that the life projected to the fetish is projected in turn by the fetish to what it represents (a dead person, a spirit, an animal, etc.).
Bawden, Tom, Orangutan Inside Argentina Zoo Granted ‘NonHuman Person Rights’ in Landmark Ruling, The Independent (Dec. 22, 2014), http://www.independent.co.uk/news/world/americas/sandra-the-orangutan-inside-argentina-zoo-granted-human-rights-in-landmark-ruling-9940202.html; Court in Argentina Grants Basic Rights to Orangutan, BBC News (Dec. 21, 2014), http://www.bbc.co.uk/news/world-latin-america-30571577; Helen Regan, In Argentina, a Court Grants Sandra the Orangutan Basic Rights, Time (Dec. 22, 2014), http://time.com/3643541/argentina-sandra-orangutan-basic-rights/, among others.
It is interesting to add here that in 2012, before Sandra's case, legal personhood was granted to a non-animal-nonhuman being, a New Zealand river called Whanganui. See
Shuttleworth, Kate, Agreement Entitled Whanganui River to Legal Identity, New Zealand Herald (Aug. 30, 2012), http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10830586. More recently, after Sandra's case, legal personhood was granted to the Ganges and Yamuna Rivers in India, and to the Atrato River in Colombia. See
Safi, Michael, Ganges and Yamuna Rivers Granted Same Legal Rights as Human Beings, The Guardian (Mar. 21, 2017), https://www.theguardian.com/world/2017/mar/21/ganges-and-yamuna-rivers-granted-same-legal-rights-as-human-beings; Juan David Laverde Palma, Un salvavidas para el Atrato, El Espectador (Apr. 29, 2017), http://www.elespectador.com/noticias/nacional/un-salvavidas-para-el-atrato-articulo-691575.
The case was reported in newspapers all over the world, as can be confirmed with a quick Google search. Moreover, news following the subsequent events of the case has been reported all throughout 2015 and 2016 in different world newspapers and magazines. Even complete special stories have been dedicated to the case, as can be seen in the recent note by George Johnson. See
Johnson, George, The Battle for the Great Apes, 9 Pacific Standard 56–63 (2016).
See Cámara Federal de Casación Penal, Sala II [Federal Criminal Court of Cassation, 2nd Chamber], 68831/2014/CFCP, “Orangutana Sandra s/recurso de casación s/habeas corpus,” (2014) (Arg.).
Juzgado N°2 en lo Contencioso Administrativo y Tributario de la CABA [Administrative and Tax Disputes Court N°2 of Buenos Aires City], A2174-2015/0, “Asociación de funcionarios y abogados por los derechos de los animales y otros contra GCBA s/amparo,” (Oct. 21, 2015) (Arg.) (author translation) (emphasis added).
People ex rel. Nonhuman Rights Project, Inc. v. Lavery, 124 A.D.3d 148, 152 (N.Y. App. Div. 2014) (emphasis added).
See Dayan, supra, note 3.
The literal classic English translation of habeas corpus is: “You should have the person” or “you shall have the body.” Habeas is translated as “to have, to hold,” and corpus (literally “body”) is translated as “person” in this context. See Oxford English Dictionary. It is interesting that according to the Cambridge English Dictionary the habeas corpus is: “A legal order that states that a person in prison must appear… before a court of law” (emphasis added). Furthermore, it is curious to notice that the form used in some Fourteenth Century English-French documents and writs is habeas corpus ad subjiciendum, which means, “to produce or have the person to be subjected to examination”. See Black's Law Dictionary 837 (rev. 4th ed. 1968) (emphasis added). We can see that the issues of “appearance,” “production,” “examination,” and “personhood” are in some way intrinsically related to the history of this legal instrument. I am confident that a genealogy of the habeas corpus, which probably can be traced back to the Roman Interdictio de Homine Libero Exhibendo and maybe even further in time, may shed light on how law historically framed and shaped persons/things, and on the all too magical nature of this process.
Orangutan, Oxford English Dictionary (2d ed. 1987).
See generally Alejandro Estrada et al., Impending Extinction Crisis of the World's Primates: Why Primates Matters, 3 Sci. Adv. 1 (2017).
See Eduardo Viveiros De Castro, Cannibal Metaphysics (P. Skafish trans., 2009).
Wagner, Roy, The Invention of Culture (1981).
Kopenawa, Davi & Albert, Bruce, The Falling Sky: Words of a Yanomami Shaman (2013).
The term “shamanism” has been used over the years to describe many different practices around the world. Even when all these practices usually have some traits in common, also may have big “cosmological” differences. That is why I must emphasize that in this Paper I am referring only to the forms of shamanism described in the works quoted above.
In a similar vein, Taussig has noted that mimesis has a complex relation with alterity: The former can close the doors to the latter—like in law's case—or can be a passage to other forms of being—like in shamanism. After all, mimesis is always a mean to relate to otherness. In Taussig's terms, we can think in “mimesis as an art of becoming something else, of becoming other.” See Taussig supra note 16, at 36.
Claude Lévi-Strauss, The Raw and the Cooked: Mythologiques, Volume 1 (J. Weightman & D. Weightman trans. 1983).
Claude Lévi-Strauss, Race and History, in 2 Structural Anthropology 329 (M. Layton trans. 1978); Claude Lévi-Strauss, Tristes Tropiques 76 (J. Weightman & D. Weightman trans., 1992).
Some of the most important Spanish legal scholars and theologians of the time, such as Matías de Paz, Francisco de Vitoria, Domingo de Soto, Bartolomé de Las Casas, Juan Ginés de Sephúlveda, among others, wrote about this issue and participated in heated debates that attempted to determine the “nature” of the Indians. It should be noted that Aristotelian Thomism was the ideological frame of these discussions about the human or nonhuman (animal) condition of the inhabitants of the New World. The hierarchical categories that this tradition of thought established between beings—beginning with the justification of “natural slavery” by Aristotle himself—allowed to situate Indians, in the better case, in the lower step of an ontological ladder that had Europeans on the top. See
Hanke, Lewis, Aristotle and the American Indians: A Study in Race Prejudice in the Modern World 12–28 (1959). Of course, behind these debates about Indian personhood, we can find the magic of a very material dispossession: The appropriation of Indians' lands and labor force in the process of colonization. Probably, the most remembered of these discussions about Indians “souls” were the ones that took place in Valladolid in 1550–1551, between Las Casas and sepúlveda. It is interesting to notice that these politico-theological debates have been considered as the inception of international law. See e.g., Oscar Guardiola-Rivera, Absolute Contingency and the Prescriptive Force of International Law, Chiapas-Valladolid, ca. 1550, in Events: The Force Of International Law 29 (F. Johns et al. eds., 2011); Martti Koskenniemi, Colonization of the ‘Indies‘—The Origin of International Law, in XXI La Idea De América En El Pensamiento Ius Internacionalista Del Siglo 43–44 (2010); see also
Anghie, Antony, Imperialism, Soveregnity and the Making of International Law 13–28 (2004).
According to Viveiros de Castro, this cosmology was shared by Amerindian societies from Alaska to Tierra del Fuego; and puts upside down the Western distinction between subject and object, soul-body, form-substance, or culture-nature. See Eduardo Viveiros De Castro, La Mirada Del Jaguar 270 (L. Tennina trans., 2013).
In very general terms, following Michael Foucault's famous classification, I understand for “technology” the skills, methods, and processes used by men in the production of signs, power, things, but also of persons. See Technologies of the Self: A Seminar with Michel Foucault (L. H. Martin et al. eds., 1988); see also Fabian Ludueña, La Comunidad De Los Espectros 11–14 (2010), following Foucault and Sloterdijk in defining “anthropotechnology” as the technique through which the homo sapiens acts over their own animal nature in order to produce what is usually called the “human”.
I want to counter here some “inattentive” but possible critique that this characterization of law or magic as technologies could get. I would like to say that if we leave behind the traditional dichotomy between “enchantment/disenchantment,” as I asked to do before, there is no restraint to conceive magic as a form of “technology.” The only thing that could stop us from considering law, magic, religion and many other manifestations as technologies within the same horizon of inquiry is the modern division between “rational” (sciences, techniques, etc.) and “irrational” (magic, religion, etc.) practices. To throw down the barriers that the “enchantment/disenchantment” dichotomy erects means also to build bridges between different traditions of thought that nowadays seems—but only seems—to go in alternative directions. I mean, can we think in a perspective or horizon of inquiry that merges shamans and cyborgs? Can we think of current “devices” and “gadgets” as talismans or amulets of power? Can we think of algorithms as spells or rituals? Are not the robots, effigies and puppets of ourselves? In the very technological but also mystical era in which we live, these seem a fruitful epistemological strategy to adopt. This epistemological path, that shows a magical world resurfacing in a hyper-technological one, can be seen in an emerging trend that could be generally called “techno-animism” or “techno-shamanism.” See
Jensen, Casper & Block, Anders, Techno-animism in Japan: Shinto Cosmograms, Actor-Network Theory, and the Enabling Powers of NonHuman Agencies, 30 Theory Culture & Soc. 84–115 (2013). In any case, I have the impression that, taken together, the collection of essays of which this paper forms part also goes in this very interesting direction.
See Mauss, supra note 19.
See Eduardo Viveiros de Castro, Perspectival Anthropology and the Method of Controlled Equivocation, TIPITÍ: J. Soc. Anthropology Lowland S. Am. 16 (2004).