Image by Sarah Riley Case, ‘In/human presence’ (2014)
The first roundtable of the Law and the Inhuman workshop was entitled ‘The Inhuman in the Human’, and was curated and chaired by Kathleen Birrell. The two speakers were Daniel Matthews and Scott Veitch.
Kathleen Birrell: In this roundtable, we engaged with the displacement of the human by broader relational constellations of nonhuman entities, from the planetary to the microbial. That is, the inhuman that materially and discursively constitutes the human, as a creative and resistant agency in the human.
This rendering of the inhuman is prompted by the intellectual turn toward the mutuality of human and nonhuman emergence (Bennett 2010; Braidotti 2013; Haraway 2016; Davies 2022) and a renewed disruption of the binaries of modernity. This turn requires a consideration of how law is constituted, reconstituted and anticipated by inhuman socialities and normativities. This scholarship has coalesced in the idea of the inhumanities (Yusoff 2021; Grosz 2004; Deleuze and Guattari 1987), a disruptive analytic that reflects a broader concern with the nature and limits of the humanities as a form of knowledge in our contemporary context.
Despite the seemingly intractable binaries of modernity, experimental thinking between law and the inhuman signals a decentring of humanism while also foregrounding its endemic violence (cf. Büscher 2022). The violent erasures of empire are also subtended by ‘other earths’ and politics, and an understanding of geopower as a material force (Yusoff 2024; Grosz 2004). The revelation of this force foregrounds obligation, construed as material dependencies and earthly attachments of collective life (Matthews 2021; Latour 2017).
In this roundtable, we are exploring how the inhuman, and the inhumanities, challenge conventional notions of human normativity and subjectivity, and inhuman extraction and objectivity, revealing attendant dependencies and obligations and the possibility of reconfigured fields of normativity as ecological and technological forms become increasingly indistinct.
To discuss these themes and questions, we are joined by Scott Veitch and Daniel Matthews, whose work has inspired and prompted new thinking and experimentation in this field.
Kathleen: What is the ‘inhuman’? And how is it relevant for thinking about law and politics in the Anthropocene?
Daniel Matthews: There are three senses of the ‘inhuman’ that are relevant in this context. First, the inhuman as the nonhuman. Here the inhuman refers to an extremely wide spectrum of objects, forces and relations including nonhuman animal life, technology, material infrastructure etc. Second, the inhuman as radical alterity. The inhuman in this sense might be distinguished from the nonhuman in that it refers to materials or processes that appear to be disconnected from human temporal and spatial scales; geological matter or processes might be ‘inhuman’, or planetary time might be ‘inhuman’, because they operate within rhythms of logics which are radically other from human powers or interests, necessarily referring to space-times before and beyond the human. Third, the inhuman as a moral designation. As noted in human rights instruments by reference to ‘cruel, inhuman and degrading treatment’ (ECHR Art 3), the ‘inhuman’ in this sense refers to activities that no human should ever suffer or mete out. Clearly, this sense of the inhuman is closely connected to ideas of the inhumane.
Part of what is generative in thinking with and through the inhuman is the potential that these different senses of the term have for disrupting a putatively autonomous ‘human’. For me, this involves approaching the inhuman neither as a negative referent (i.e. something which is opposed to the human or by which the human can find some definitional or conceptual stability), nor as denoting a kind of hybridity or a compound concept, the sense of the ‘human-plus-the-nonhuman’ as a new kind of aggregate form, because (as Kathryn Yusoff persuasively argued) this tends to retain the ‘old’, ready-to-hand or ready-made designations of what is human and what is not, but then combines them in new ways. Instead, the inhuman might be a generative term to work with because it indicates something more radical than that. We might think of the inhuman as naming a space of indistinction which puts in question dominant or received conceptions of the opposition between the human and the nonhuman. In this sense, the ‘inhuman in the human’ describes something both deconstructive and generative, in that it puts existing conceptions of the human under pressure, or even under erasure, and in so doing makes possible new articulations of subjectivity, power, normativity and so on.
This generative capacity of the inhuman is clearly not something that can be simply affirmed or welcomed. History shows that the mixing of human and nonhuman can have deeply exploitative, abusive, even murderous ends: slaves, Indigenous peoples, and women have all been constructed as the site in which the human and nonhuman enter a ‘zone of indistinction’ (producing the less-than-human, the sub-human, the not-yet-human) that allows for extraction, dispossession, reification, ownership and so on. Indeed, the articulation of a zone of indistinction between human and non-human helps explain how a dominant, racialized, gendered conception of the human emerged in the first place. It is this negative sense of the inhuman that gives rise to the need for legal and moral regulation that tries to reassert or reclaim a sense of the properly human. And in this context the inhuman functions as a negative referent that allows for the dignity and autonomy of the ‘properly human’ to be asserted and defended.
But there is also a more positive (and a more deconstructive) dimension, in the sense that the inhuman can give rise to new individual or collective subjectivities that are increasingly attuned to ecological and geological relations. To recast human communities as having a constitutive relation to the non-human is to think in terms of ‘geo-social formations’ (Clark and Yusoff, 2017), or to understand those ‘geo-powers’ that work within and through the human, not opposed to the human (Grosz, 2017), or to think of collectives as ‘earthly multitudes’ (Clark and Szerszynksi, 2020). These approaches are in various ways re-framing collectives in such a way that disavows and undercuts the gendered, racialized conceptions of the human that have dominated so many modern renderings of collective agency by foregrounding the non-human forces on which human communities depend on and work through. So, this more positive or generative dimension to the inhuman hopes not to do away with the ‘human’ entirely or deny the importance of human collective agency, but aims to render the human in ways that are more attuned to the uncertain, Anthropocenic conditions of the present.
I do not see this as simply an ontological inquiry into the nature of human subjectivity, a kind of geological-material extension of ‘deconstruction of the subject’ initiated by Derrida et al. There is a politics implied by this work, but to me this is more a question of re-thinking the political, that is the primary conditions of relationality that underpins the work conducted in the more immediate realm of politics. So, in the sense that Jean-Luc Nancy and Phillippe Lacoue Labarthe sought in the 1980s to ‘re-treat’ the nature of the political by ‘retreating’ from the overdetermined world of everyday politics, the inhuman aims to approach the human anew by retreating from commonplace constructions of the ‘human’ as property-owning, rights-bearing, racialized, gendered etc. and the various forms of knowledge and relationality (built around subject/object, nature/culture divisions, and inflected by aspirations of mastery, domination and so on) that these constructions imply.
Kathleen: How does the inhuman challenge conventional (Western) conceptions of normativity? Acknowledging that normativity is commonly understood to turn on ideas of political freedom, autonomy, judgment, decision and so on.
Scott Veitch: Theist fantasies notwithstanding, human-centric normativities have been the principal if not sole focus of legal, political, and moral theories in modern western thought and practice. Maintaining this paradigm today, however, seems like a humanist hubris; like a pre-Copernican stubbornness in the face of the evidence. The conventional normative field is being reconfigured in multiple dimensions and jurisprudential enquiry needs to pay attention to this if it wants to be relevant to anything, theoretical or practical, now and in the future.
It is important to try to be clear about what normativity means in this context. By normative I mean activities that refer to or are guided by some implicit or explicit standard, rule, or telos. The ‘normative field’ includes all possible varieties of these. This is worth emphasising since an unfortunate usage has emerged recently whereby ‘normative jurisprudence’ is taken to refer primarily to the question of value, for example, moral or political or stances in jurisprudential enquiry: utilitarian, liberal, socialist, etc. These are indeed normative in the sense of presenting what ought to be done as an evaluative programme, but they are better understood within the category of moral and political theories. Normative in the sense used here forms the larger category where normativity is understood as one, foundational way of regulating activities; ‘norms’, used here in an expansive sense, are varied and ubiquitous across different forms. This point is important not just terminologically, but because it opens our awareness to more phenomena than the restrictive version does.
Daniel: In moving us beyond a ‘pre-Copernican stubbornness’, Margaret Davies’s work – especially in EcoLaw – is crucial. Davies’s intervention is a welcome effort to jolt legal theory out of its rather narrow obsessions. What Davies’s conception of ‘EcoLaw’ shows is that normativity is found throughout the natural world, in the form of bio-norms and geo-norms. By adopting a wider notion of normativity than commonly adopted in legal theory – which tends to focus exclusively on the (human) capacity for rule-following or rule-breaking behaviour – Margaret encourages us to think of normativity as being a matter of (i) customary, habituated patterns or practices; (ii) relations of connection, contract or entanglement; (iii) and a matter of purpose, teleology or direction. These are the three co-ordinates that help her think about both how human normative systems compare with non-human normative ordering, but also to emphasize the continuity between human normative systems and non-human normative systems.
Normativity is operative at both micro- and macro- scales. As Davies contends, a virus has its own customary, habituated ways of reproducing; it does so through specific connections with elements of other living bodies; and it has a teleology orientated towards exponential replication. From the perspective of a ‘viral normativity’, the human is an object within its own normative world. And, of course, from the perspective of human normative orders, the virus is the object of regulation and, as we know from the COVID pandemic, a whole panoply of legal and social norms might be mobilized to control it. At the macro scale, we might understand the transformations within the earth system that we associate with the Anthropocene as a nonhuman regulatory change (working within both bio- and geo-norms) through which the earth system is striving to find a new form of stability. From the point of view of the earth system, humans might be considered the object of this non-human mode of regulation. At the same time, of course, humans are subjects and authors of regulatory practices within the human realm which take the earth system itself to be the object of regulatory intervention, as we see in discourses of earth system governance and earth system law.
The point here is that human normative systems look very different from this inhuman perspective. The old idea of human normative systems regulating a non-normative nature (through relations of domination, mastery etc.) becomes redundant. We are ourselves subject to heteronormative forces, in a way that the aspiration of modern normative systems, built around ideas of autonomy (self-rule), sought to overcome or surpass. This is not to say that we ought not treat viruses or even the earth system as the object of regulation, though as we know there are many risks involved in undertaking such tasks. Instead, this view re-situates human normative systems in a very different scenography to that constructed within traditional legal theory. Indeed, to return to the notion of the inhuman that I sketched at the outset, this idea that human normative systems sit in a non-hierarchical relationship with other normative systems, and the sense that there is a nested continuity between human normativity and non-human normativity, forces us to think about human normative systems as one normative world that intersects and competes with a plurality of other normative systems. In this respect, the focus on rational, rule-following behaviour feels rather parochial, referring to one very specific element of one dimension of a highly variegated normative universe.
What though does this say of some of the values mentioned in the question: autonomy, freedom, judgment, decision? My own sense is that these remain essential to human normative systems but they have to be resituated within this more complex normative scene that Davies’s important work has identified. Take the notion of autonomy or ‘self-rule’, which is a highly cherished aspiration for human normative orders. The promise of political modernity is that we might live in self-governing communities. To me, this aspiration remains as relevant and urgent as ever, but the emphasis on non-human normativities forces us to resituate that claim in relation to a range of other non-human actors who themselves have their own, distinctive aspirations for autonomy that intersect and butt-up-against our own. In this respect, I find Latour’s evocation of the need for ‘diplomacy’ in this context useful, as it recognizes the legitimate claims to autonomy by multiple earthly actors that have to be negotiated. Entering into diplomatic relations with the non-human does not entail giving up on autonomy, it is an expression of it.
Scott: Two sources and styles of normativity have emerged that suggest the field of normativity is being reconfigured in ways that require a jurisprudential reassessment, for both explanatory and action-oriented reasons. And it is here that the designation ‘inhuman’, in a double sense of the term, may be helpful. Drawing on what Daniel set out above, the ‘inhuman’ may be understood firstly to mark the interface of non-human and human normativities. Remaining aware of the negative connotations of this, it seems to me that this formulation nonetheless offers a constructive and imaginative way of thinking about the relations that operate amongst the range of different normative sources and styles. In particular they force the jurisprudential imagination beyond the purview of what pass as standard legal sources and resources: institutions, doctrines, theories of legal validity, human rights and so on.
The first source or style of normativity is not new in itself, but its presence has registered – and been experienced – in new ways. Acknowledged unevenly, the importance of ‘natural’ normativities is largely, and belatedly, visible due to the negative impact of human activities that cause severe ecological destruction. Margaret Davies’s work on normativity in EcoLaw is exemplary in this respect. The second source or style of normativity is genuinely new: the emergence and pervasiveness of certain new digital technologies such as generative AI, large language models, and their embedded as well as public facing forms such as ChatGPT. Their power is already being felt across a range of human (and non-human) forms and institutions, and their normative style and effects are only beginning to be understood and grappled with. As the reality of Artificial General Intelligence comes closer, assessing the repositioning of human normativities within the larger field of productive digital technologies becomes ever more pressing.
Due to their importance, two other normative forms of human organization must nevertheless be highlighted and factored into any analysis of the ‘inhuman’: capitalist and legal forms. To a large extent these are continuous rather than new, but even so they contribute to shaping the normative field in crucial ways.
The significance of capitalism in this context is due to a number of factors: it is the dominant economic form globally; it impacts systematically on other social, political, and legal norms and possibilities; its indelible mode of operating is exploitative and inegalitarian; and, which is decisive in this setting, its operation is causally implicated in both global environmental damage and to the rise and prevalence of new technological normativities.
The legal form inveigles with each of the others. From a jurisprudential perspective, there exists a plurality of legal techniques and modes of operation that variously support, block, enhance, code or hide other normative forms. Modern law does not act singularly, but multiply, deploying the different capacities it has institutionally, doctrinally, and conceptually. In each of these modes, legal forms can both empower and disempower, make visible and make disappear, structure the imagination and limit it. For example, legal institutions create and channel certain possibilities and disabilities in the organization and exercise of power (through legislative or judicial bodies, say); areas of legal doctrine – tort, administrative law, criminal law and so on – make possible some and limit other forms of understanding and action; and conceptually, forms of jurisdiction, sovereignty, or rights tend to structure implicitly – and complicitly – other normative forms, in ways that organize both material and imaginative conditions.
There are thus continuities and discontinuities within the reconfiguring of the normative field. Understanding the interfaces amongst the various normative forms and forces – human, nonhuman, ‘inhuman’ – requires a kind of attention or even mapping that has not yet been adequately carried out in jurisprudential work.
Kathleen: In your work you have emphasized the importance of obligations ahead of rights in the context of ecological and climatic change. How do obligations relate to the inhuman?
Daniel: In an interview with Kathryn Yusoff and Nigel Clark (2017), Elizabeth Grosz rejects the language of obligation when thinking about the inhuman. She says that rather than focus on obligations as an ethical question, we should instead focus on the ontological or existential question of being inhuman, the fact that we are immersed in inhuman forces and relations, whether we acknowledge it or not. The sense of obligation that I find particularly useful in this context is precisely to think of obligations that are operative at this existential register, obligations that are implied by the very nature of living in community, irredeemably ‘with’ others. In this context, I have found Simone Weil’s writing on obligations particularly useful because she suggests that we think of obligations not as corresponding to rights but to need and dependency. Such obligations are collective in nature: the flourishing of collectives depends on the satisfaction of basic needs, and obligations are one way of understanding this collective duty to meet such needs. Obligations foreground dependencies and the network of reciprocities and solidarities on which individual and collective flourishing relies. To prioritize obligations is to work against what Alasdair MacIntyre calls ‘the illusion of self-sufficiency’ that is so central to modern, liberal ideologies.
Obligations foreground dependencies, needs and relationality. Obligations also emphasize a sense of indebtedness – we owe our existence to others; limits – in the sense that we don’t live in a boundary-less world, that we are limited and determined in various ways, obligations define these limits; relationality – if obligations correspond to needs, then they speak to an essential relationality, both amongst other humans and non-humans. These qualities seem to have far greater purchase in thinking through the implications of the inhuman than a thinking of rights, which tend to be individualistic, connected to conceptions of privilege or freedom and are often understood to be universal rather than situated in particular communities, needs or contexts. Finally, obligations built on the question of need require forms of attention in Weil’s idiom. So, they imply different ways in which the human can be sensitized tonon-human forces and relations. Prioritizing obligations ahead of rights entails a perspectival reorientation vis-à-vis rights. To what are we indebted? To what are we related? How are we limited?
This prioritizing of obligations opens up some deeper questions about the nature of the legal subject than that achieved through the extension of rights to elements of the natural world. Whilst these strategies have lots of practical potential, the approach here is closer to the ‘compound’ or ‘hybrid’ forms of subjectivity that I mentioned earlier. Here the political community is extended to include new non-human rights-holders that sit alongside existing human and non-human rights-holders. But this retains the existing categories and conceptions, and does not allow for a deeper exploration of how the rights form, and a conception of the human as an individual rights-bearing subject, are themselves implicated in the production of environmental harms.
A focus on obligations built around needs and dependencies that cross the human and the non-human, attentive to how we are indebted to non-human forces and relations, as well as the non-negotiable limits which can sustain a community, opens up a much more productive front on which to think about how the non-human might be legally or politically addressed, than simply extending (an arguably compromised) rights form to elements of the natural world.
Scott: I agree with these last points. In a short book – Obligations: New Trajectories in Law (2021) – I tried to show how obligations operate forcefully to structure social relations in ways that challenge the rhetoric that we now live in an ‘age of rights’. But at the end of the book, I argued that obligations can also provide positive resources in social relations, and that these found expression in practices of solidarity. There is no reason why the priority of obligations that defines solidarity cannot be extended beyond the realm of human relations. Many non-western traditions do precisely this. But solidarity demands that certain things are non-negotiable; one cannot build relations of solidarity on foundations of exploitation (which is why there can never be solidarity between capitalists and workers). The notion of solidarity as joint liability seems to hold out opportunities for re-thinking priorities and perspectives when faced with the challenges we have been discussing here. Whether commodification or even juridification need to be excluded, on the basis of maintaining certain values as non-negotiable, suggests provocative lines of thinking going forward.
Kathleen: Does the notion of the inhuman have any implications for what ought to be done practically as well as theoretically?
Scott: Yes, many; and the two senses are closely related. Let me just pick out one. There is, as Daniel also pointed out, one meaning of the ‘inhuman’ that I agree should not be lost sight of. This refers to a specific mode of human action, consequence, and response. This is the critical, evaluative understanding of ‘inhuman’ that paradoxically describes what only humans are capable of visiting on each other, and on non-humans, but which they ought not to. Daniel describes this with reference to the legal standard of ‘inhuman or degrading treatment’; Robert Burns captured it in the idea of ‘man’s inhumanity to man’. It is important to pay close and constant attention to whether and where this is occurring and to call it out and to organize to stop it. Yet if it is necessarily a form of human action and judgment, it is one that, ironically, might be lost sight of as normative forces multiply or slip out of human grasp where they are superseded by non-human forms. But I think this sense of the inhuman, its presence, and the damage it does, makes an insistent demand on our attention.
Hence an updated jurisprudence responds to the developments observed here in ways that both force us to seek out and to describe the relations amongst normativities and thereby improve our understanding of contemporary human activities and their consequences; and, it invites us to think clearly and practically about what might be required of humans for them to act better in the world. In trying to do the latter, paying attention to the two senses of the inhuman identified here re-focuses our theoretical concerns in ways that are attuned to new normativities and their relationship with existing ones. The implications of this theoretical adjustment are vast and as yet unchartered. But in practical terms the stakes are high: in hurtling towards planetary devastation and increasing species loss, preserving the old certainties – state sovereignty, capitalist profit, human exceptionalism – at all costs will seem, from some future point, as simply this: acts of inhumanity. That is why the ‘inhuman in the human’ demands our attention now.
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Scott Veitch is the Paul KC Chung Professor in Jurisprudence at the University of Hong Kong. Prior to this appointment, he was Professor of Jurisprudence at the University of Glasgow. Scott’s research and teaching draw on historical, philosophical and sociological insights into law and legal institutions. His research has engaged with the politics of domestic and international law, critical aspects of legal reasoning, the role of law in processes of transition, and the relations between legal concepts and political economy, with a recent focus on the role of obligations in the contemporary legal and political imaginary.
Daniel Matthews is Reader in Law at the University of Warwick, and Director of Postgraduate Research. Prior to this appointment, he was Assistant Professor of Law at the University of Hong Kong. His research draws on critical legal theory, political theory, literature, aesthetics and ecology to examine the challenge of planetary climatic change to orthodox and critical approaches to sovereignty. These themes are explored in detail in his award-winning monograph, Earthbound: The Aesthetics of Sovereignty in the Anthropocene (2021).
Kathleen Birrell is Senior Lecturer in Law at La Trobe University, Vice President of the Law, Literature and Humanities Association of Australasia, and Editor of the Journal of Human Rights and the Environment. Prior to joining La Trobe Law School, she was a McKenzie Postdoctoral Fellow at Melbourne Law School and published her monograph, Indigeneity: Before and Beyond the Law (2016). Her current research adopts critical legal methodologies to explore the implications of new materialism and geophilosophy for legal theory and praxis, with a focus on the limits and possibilities of rights and obligations.
Excellent discussion though the “inhuman” in the sense of the “inhumane” should have called an ‘immoral’ designation not a “moral designation”.