The Symbolic Meaning of Legal Subjectivity

Abstract

The legitimacy of the law is not to be found, as is often claimed, in procedural justice, but in the core function of the law: the symbolic insertion of every new generation into the community of legal subjects. This symbolic function is most ambitiously expressed in the Universal Declaration of Human Rights: “All human beings are born free and equal in dignity and rights.” This insertion has a transcendent character, since the legal community refers to another world, where freedom, equality and dignity eventually will prevail. This transcendent dimension of the law reflects the human desire for redemption from the human condition, from suffering, imperfections and evil. But the law not only provokes the desire for redemption, it structures that desire at the same time, by subjecting people to rules and dogmatism. In this way the law prevents that human desire for a counterfactual world will become unlimited, delirious or even destructive.

However, the humanistic faith in civilization by law has given place to a faith in redemption from human suffering and evil by biotechnology. Why change and civilize the phenotype of man if the genotype can be optimized by genetic manipulation? Why inserting man into a transcendent, symbolic community of legal subjects, promising ultimate salvation from human suffering, if that salvation can be realized in the here-and-now?

According to post-humanist philosophers, the transcendent dimensions of the law, in particular the transcendent principle of human dignity, are an obstacle to the inevitable development of a new, genetic modified, human species.

The appeal of post-humanists to strip the law of its transcendent dimensions is not without risks. These dimensions should be upheld as far and as long as critical standards, like human dignity, can be derived from it. Without this practical wisdom the legitimacy of the law might ultimately disappear.