The animal protagonist: Representing ‘the animal’ in law and cinema

Chapter 2

The animal protagonist

Representing ‘the animal’ in law and cinema

Connal Parsley1


In her renowned 1978 article ‘Eating Meat and Eating People,’2 Cora Diamond critiques an argument for animal rights advanced by Peter Singer and others. The argument is that if we see humans as possessing certain features that earn them the protection of rights (as does much analytic philosophy), then it is hypocritical – ‘speciesist’ (like ‘racist’) – to make further distinctions between members of species where the features of a given animal are the same as those of a given human. So for example, if we justify differential treatment between animals and humans on the grounds that humans can talk and animals can’t, then where we have an erstwhile ‘human’ who cannot talk, we would be hypocritical not to treat them like an animal. The philosophical idea this rests upon – that ‘being human plays no important role in moral thinking’ – has been called the anti-humanist thesis.3 Amongst many important features of Diamond’s dense and valuable article, the one that concerns this chapter is that her response – a rejection of this ‘bundle of capacities’ approach – reaffirms that there is something specifically human about human life. This amounts to the rejection of the analytic-philosophical notion of the ‘person’ (‘any being which possesses pre-moral capacities’4) in favour of the human.

But another tradition of knowledge about the ‘person,’ though removed from the field of moral philosophy, addresses the relation between humans and non-human animals in a similar way. Not by attempting to elide what is specific to human life, but rather tracing it in its historical modulation against the production of life known precisely as animal. This approach to the person, seen above all in biopolitical approaches to contemporary political philosophy, inquires about the power relations of this differential production of a particularly ‘human’ life. This philosophy often takes as its conceptual starting point Michel Foucault’s remark at the end of History of Sexuality Vol. 1 that, for millennia, man remained what he was for Aristotle: a living animal with the additional capacity for political existence; modern man is an animal whose politics places his existence as a living being in question.’5 With this claim Foucault marks the transformation of politics into biopolitics, or the intertwining of natural life with the mechanisms and calculations of state power. This intertwining has been the basis of many subsequent analyses of ‘life itself as intrinsically political, and the interrogation of the human–animal relations that belong to it has driven a good measure of the recent critique on politics and animality.

As a critical legal approach, this chapter addresses this power relationality of ‘life itself’6 by foregrounding the tradition of knowledge of the ‘person.’ Following the perspectives of Roberto Esposito and Giorgio Agamben, the person is considered as the principal practical technology through which ‘human’ life is formed. But the critical horizon of this enterprise is evidently distinct from Singer’s: Esposito directly criticizes Singer and others for their replication of the juridical structure of the person and the continued production – not elision – of hierarchized human–animal difference.7 The detail of this objection has recently been discussed elsewhere.8 Within this ambit, the current chapter has a particular focus. It pushes this critique through its inflection as both a conceptual arrangement, and a historical practice, of ‘representation.’ It does so in order to highlight how, as Piyel Haldar has shown, historically specific Christian and juridical practices of representing animal life were formative of the modern (human) subject.9 Drawing on Haldar’s work and more so that of Esposito and Agamben, it considers how contemporary practices of representing the animal – as well as our understanding of those practices – might relate to those historical ones that have made the institution of the person so successful. To this end, the chapter considers in detail an example from contemporary cinema. I discuss two possible readings of the recent Armenian film Border to ask how it either participates in or breaks with the older structures of representation that characterize the juridical person and its relation to animal life.

To conclude, drawing particularly on Agamben’s account, I offer some remarks on cinema’s significance to the current phase of representation and human–animal relations at large. This interdisciplinary account is offered with the intention of highlighting a decisive historical and technical relation between law and cinema that is exposed by a biopolitically-inflected inquiry into the person. It also suggests a ‘blind spot’ in legal approaches to the ‘question of the animal’ that draw exclusively from the domain of ‘law properly so-called.’ This can be seen particularly in Agamben’s reckoning with this problem through the Christian paradigm of salvation: the intersection between salvation and representation is not (only) a modern legal inheritance. Rather, as I will argue, it is also addressed through a taking-up of the representational image in cinematic practice (and paradoxically, as always in Agamben’s work, also an effacement of that understanding of the image). This interpretation of the film Border therefore shows how the contemporary situation forces new diagnoses, analytics and discursive connections that are capable of responding to the biopolitical tendency toward the coincision of life and law.


The dispositif of the person

In the critical legal arena, the person has for some time been addressed as a question of the ‘laws of appearance,’ emphasizing the visual modality of law’s genealogical attachment to life. This is a central principle of Peter Goodrich’s work, for example.10 Esposito’s analyses, though evidently compatible with Goodrich’s,11 move against a more resolutely political horizon.12 For Esposito, the dispositif of the person (a term borrowed from Foucault, and used also by Giorgio Agamben, amongst others,13) is characterized by the intrinsic duality of the human, which is split into two elements. It is ‘a totality composed of soul and body.’14 Crucially, these elements are organized into hierarchy in which the former dominates – and must dominate – over the latter. ‘Man is a person if and only if he masters the more properly animal part of his nature,’ as Esposito paraphrases Jacques Maritain. ‘[T]he degree of humanity present in all will derive from the greater or lesser intensity of de-animalization’ resulting from this mastery.15 This question of degree is politically salient, since it introduces another hierarchy, this time between those who are more or less persons. For Esposito, the result of any arrangement of life according to the dispositif of the person is that not only are there degrees of personhood (and resulting political privilege); but there are also non-persons. This means that this arrangement will always

distinguish between different types of human beings, some placed in positions of privilege, others crushed in a regime of absolute dependence, but … to be able to rightfully fall within the category of person one must have power, not only over one’s possessions, but also over certain beings, themselves reduced to the dimension of the possessed object.16

A dual line of power therefore passes both within the person, who owns their own animal life, and between persons and non-persons. This means that the process of personalization is actually a dynamic of personalization and depersonalization.17 And crucially for Esposito, this fact is intrinsic to the apparatus. As he puts it, the notion of personhood has failed to provide the concepts and practices that could ‘make good’ on the promise of rights, proving an ineffective apparatus for re-uniting ‘reason and biology,’ ‘life and rights, nomos and bios.’18 But unlike legal theorists like Alain Supiot who might view the legal person’s prospects for this ‘anthropological’ goal more optimistically,19 Esposito suggests that the person-structure is itself productive of the problem – a feature of his account that joins him to that of Giorgio Agamben (whose emphasis falls rather more overtly on the division ‘within man’).20 Here we can observe a familiar ironic structure emerging from the rights-personhood relation: one legal technology strives to guarantee the ‘full protection of the law,’ but deeper logics from within the same tradition guarantee its failure.21

These logics are what are brought to light across a great range of political philosophies and historical periods in the work of both thinkers. Although liberalism is a specific political target for Esposito, particularly the classical liberalism of Locke (in which the personhood arrangement manifests as the individual’s ownership of their own body and indeed self), he suggests it is particularly visible in Augustine and ‘extends to all Christian doctrine so that there cannot be the least doubt: although the body isn’t in itself something evil (because it too is a divine creation), nevertheless it constitutes that part of man which is animal.’22 In fact Esposito generalizes this fundamental arrangement (with certain reservations) across three main historico-legal sites: Roman juridical distinctions among persons and between persons and slaves, the Christian tradition (both Trinitarian dogma and Christology per se) and Modern thought from Hobbes on, culminating in the post-WWII period. Thus, Esposito attributes the person-structure to the ‘general functioning of law’ in the sense of its now-familiar necessarily inclusionary-exclusionary quality.23

The person as theological technology

Tempering the essentialist appearance of this account can be done by paying attention to its critically important historico-practical features.24 In his 1988 Categorie dell’impolitico, Esposito narrates the development of the person with respect to features of political theology, particularly the German Roman Catholic revival of the early twentieth century.25 Within this ‘categorical horizon of Catholicism,’26 which focuses on the connection between specific notions of political power, representation and the Good, Esposito shows how within this horizon the person is the cipher of a particular style of the political organization of human life, and the role that this organization itself has in tying conceptual structures to concrete historical specificity. Through a definition of the term ‘authority’ in the work of Catholic theologian Romano Guardini, Esposito arrives at the following dense formula: ‘authority requires a visible person, who represents it historically.’27 The person is cast as a mediation between two poles: a transcendental ‘Idea,’ held in mind as an authentic source of power, but also a historically concrete reality (the concreteness and theatricality of this reality is explored in Goodrich’s recent essay on Esposito).28 The person is thus intrinsically linked to a question and practice of representation, since power requires a representative – whose paradigm is Christ – to function in the name of a presupposed, invisible ‘Idea.’

The situation is the same for Schmitt, as Esposito points out through a quotation from Roman Catholicism and Political Form that speaks to the other side of this problem: the need for concrete political representatives to refer upward and beyond the material to an Idea. ‘No political system can survive even a generation with only naked techniques of holding power. To the political belongs the idea, because there is no politics without authority and no authority without an ethos of belief.’29 We know that the concreteness of the representative was of particular importance for Schmitt, because it was personal authority that was so central in his infamous sovereign formula in Political Theology. But the political possibility of representation retained central importance in Constitutional Theory, as one of Schmitt’s ‘two principles of political form.’ Exceeding mere procedure and becoming ‘something existential,’30 representation – the principle that something that is presupposed as absent is made present – marked an elevated mode of life. importantly, Schmitt insists (quoting Vattel) that representation must be of a higher political unity, and that representational existence expresses a ‘higher’ possibility for human life:

In representation … a higher type of being comes into concrete appearance. The idea of representation rests on people existing as a political unity, as having a type of being that is higher, further enhanced, and more intense in comparison to the natural existence of some human group living together.31

Here we can clearly see how the inseparable pair of representation and personhood both express a hierarchical logic, in which, for Schmitt, Catholic structures are secularized and generalized as the expression of a higher and more properly human political existence. But crucially, in Schmitt’s historical situation this pair both facilitates the higher Idea and is itself the higher structure. In post-Hobbesian fashion, Schmitt valorizes not the content of the ‘Idea’ but what representation per se does for human life. When Schmitt says a ‘higher type of being comes into concrete appearance’ he is not so much referring to the absent ‘Idea’ (say, God) made present in representation, as the properly political human. This makes representation and its person, I would argue, into both a historically concrete form and a supernatural technology that again elevates political thought as a practice above mere ‘natural life’ (thus replaying the person-structure at the level of theory). My point is not therefore only to reiterate the privileged Catholic historical location for the divisions that have produced the contemporary situation of the person, but to emphasize its very coming to be seen in its technological nature – a problem to which we will now turn.

We can begin to do so by distinguishing between related kinds of historical locatedness of the ‘technology’ of the person. On the one hand, as Piyel Haldar has made clear in his leading paper on law and animality, actual Christian textual practices represented animal life precisely in order to evince and install human life as just this ‘something more’ than animal, the perfect animal: ‘not on the basis of biology but on his ability to unlock a code, to reveal a divine plan, and to incorporate within his own soul everything [the animal] enshrined.’32 As Haldar argues, these technical textual practices oriented the human towards divine salvation even as they enshrined it as fallen or lacking, thus providing the modern legal subject with some of its most intractable secularized problems. They also enshrined an ambivalence about the animal as both a cipher of creation’s perfection and ‘a reminder of man’s imperfect and abeyant subjectivity.’33 But in the other sense of the person’s historical locatedness, it is the return to visibility of the person-structure and the valorization of its anthropological function that underpins both the twentieth-century political theology of Schmitt or Guardini,34 and the more recent wave of anti-political-theological critical theory such as that of Esposito or Agamben. As Esposito shows, what was at stake for both Schmitt and Guardini in the coming era was precisely the fate of representation in becoming a radically depoliticizing, neutralizing technology, and the precarious position this gives to humanity.35

What happens at the moment that the question of a properly human politics becomes something identifiable as technological is that precisely for that reason, the inessentiality of the human is immediately re-problematized, valorized, and made the ground of the debate. As the human is threatened by its own lack of essence (its technological nature), the question becomes less one of divining the right essence, and more one of our critical orientation to the problem of a technology that always threatens to reveal the human’s lack of a nature truly proper to it. This threatened revelation, should it come to pass, would also reveal the dependence of the notion of the human on a phantasmal animal life to define itself with, above, and against.36 But if realized, it might also allow the human to truly live with the consequences of the idea it harbours and produces. And yet, somehow this revelation never quite manages to conclude and be over with. This is the significance of what Agamben describes as the ‘anthropological machine’ of humanism. In embracing the plasticity of the human, who has ‘neither archetype nor proper place’ and can make itself into anything and represent himself through representing animal life, one of the effects of this machine is the discovery that the (inessential) human ‘lacks himself.’37 But whilst this machine ‘verifies the absence of a nature proper to Homo,’ rather than bringing it to light, it ‘hold[s] him suspended between a celestial and a terrestrial nature.’38 For Agamben, it is therefore critical to expose this machine because this would bring to light the fact that the human is just what is produced by the decision-caesura that in this sense ‘passes within man.’

This exposure is ideally meant to come with two further revelations attached. First, the absence of a proper human nature is converted by Agamben into a concomitant recognition of its constitutive lack of historical task (through Hegel via the Kojève–Bataille debate on post-history). This ‘inoperosità’ or inherent tasklessness has always been there within humanitas, but in our age comes to a special visibility.39 And second, the history of this process – which is history itself – is exposed as having always made use of man’s inessentiality by establishing salvation as the horizon of unlocking, as Haldar pointed out, its divine nature. Without this extra realization the structure of the modern human remains inscribed within historical time and a latent and unrealizable eschatology.

Modern law: technology and care

In a moment I will suggest that contemporary cinema might offer new possibilities for the exposure of the anthropological machine – possibilities that, at least in our age, cannot be addressed as a question of law – through the film Border. But what drives my turn to cinema? On one hand, my argument is that modern law and cinema are both important sites for the inheritance of a certain tradition of the representation of life, and particularly animal life, towards the production of a specifically human form of life (which, as such a product, is necessarily ‘technological’). But on the other, a turn to the experience of this representation in cinema comes from the awareness that these two sites are not ‘equal’ in a range of ways. The one most relevant to this argument is that modern law is distinguished by its constitutive inability to make the above realizations in its own name, and is, on the contrary, for that reason perhaps the single most historically central site of what Agamben calls ‘anthropogenesis.’

I have said that the anthropological machine works by keeping divided the animal part of the person from the extra, higher human part understood variously as soul, reason, logos. So evidently this division of the person does not correspond to the distinction between dispositif and living being (the dispositif is not itself the higher part of the human). This means that within this approach, neither can the human be understood as a biological entity, nor a set of subjective features, nor a moral content, but the fact and style of a living being’s capture and orientation by the apparatus.40 ‘Anthropogenesis’ is the ‘becoming human of the living being,’41 or the effect on life of capture by the representation-structure. This is what modern law does so well, moving toward a complete domination of animal physis ‘in the direction of human history,’42 and producing an ambiguous situation in which there is ‘the total humanization of the animal,’ but also the spectre of the ‘total animalization of man’ since all of animal physis then coincides with the political.43 As Agamben argues through Jean-Luc Nancy in Homo Sacer, in our age all living beings are subject to the topo-logic of modern law’s sovereignty, included within the law by very reason of their exclusion from its protection.44 So rather than offering any kind of resistance to this situation, modern law should be considered a special case of this technological practice of overcoming of physis by representing it and producing life itself as its subject (in the sense of a life subject to law). It is a short step from here to the lament that in modernity law is itself transformed into a technological machine, rather than taking the form of a prudent knowledge (of either technology or humanitas). What results is the continued entrenchment of the dispositif of the person over animal (or biological) life, that is, very significantly, driven by the protection of or care for that life. We could take as an example the concession of human rights to primates by a Spanish parliament (specifically, ‘the right to life, the protection of individual liberty and the prohibition of torture.’45) At the same time, modern law has long covertly declared the principle of formal mastery as dominant over biological life itself. As everyone knows, the need for a biological referent underpinning the formal structure of legal personhood disappeared with the principle of corporate personality.46

So we have on the one hand an excess of biological matter coming under the juridical rubric of the person, and on the other, its complete evacuation. Scholars have offered varying accounts of the ‘funny business’ going on with new configurations of biology, nature, subjectivity, rights and legal person-hood.47 Yan Thomas in particular notes a confusion, ‘commonplace among lawyers,’ between ‘a juridical construction and a psychological or social reality.’48 My own emphasis is on the problem of representation, and the primacy of the person’s legally-visible image.49 Modern law, concerned with protecting animal biological life, represents it within law’s powerful structures, making it visible and, as we say, giving it a face and a voice. But the more animal life is brought into the personhood structure and the visibility of law, the more it undergoes erasure as animal life, subjected to the humanizing effect of modern law.50 Modern legal representation is precisely a question of making visible and present something invisible and increasingly absent, that must nevertheless be presupposed in order for political appearance to function.51 This does not mean it literally becomes human: it is crucial that it is rhetorically preserved (or ‘presupposed’) as animal life (the same ‘animal life’ that was always included within man by personhood). This situation describes the biopolitical risk entailed for Agamben in the ‘total management of biological life,’52 where the fiction of an ‘external’ or ‘non-human’ animal life untouched by the humanizing apparatus drives the unending anthropogenesis of decision.

Before moving to a consideration of the film Border, a summary of the discussion so far will be useful. First, the person structure has an invariant conceptual character: it necessarily organizes life according to a hierarchy between a superior human element and an inferior animal one. Second, this has definite political consequences, meaning for Esposito, a hierarchy between persons, and the necessary exclusion of some life from the benefits of personhood. Third, for Agamben, this is referable to the ‘anthropological machine’ which produces the human ‘anthropogenically’ through the constant division and rearticulation of the human. Fourth, this person-structure is not ‘essential’ in two senses: one, it reveals that the human has no essence except the inessential decision distinguishing human and animal, meaning also that humans are not by nature ‘persons;’ and two, this technology is something historical in a particular way.53 It is a historical product of specific practices that are necessarily partly material and partly conceptual, but that are hidden, constituting something like a ‘blind spot’ that enables their practice to continue in the name of technological mastery.


Border is a 2009 feature film by independent Armenian director Harutyun Khachatryan.54 Set against the backdrop of the longstanding Armenia–Azerbaijan conflict, the action takes place in a landscape that we gather (but are not told) still smoulders from military skirmishes. Plumes of smoke rise from the rural landscape, a helicopter, out of sight, hovers in the soundtrack. The film depicts the situation of Armenian refugees at the Armenia–Azerbaijan border, but this is nowhere signaled to the viewer: though described as a ‘documentary’ and a ‘mixture of documentary and live-action movie),’55 Border is bereft of any overt political narrative and indeed any attempt to impart ‘information’ of any kind. There is no cultural, geographic, political or linguistic explanation, no voiceover or other narration, no place names, no character names, nor even any dialogue. We do see occasional unexplained, isolated scenes of military checkpoints, lines of refugees and sometimes ruined buildings, and the eponymous ‘border’ itself, interspersed amongst other bucolic scenes of daily life. But recognizing the setting and the identities of the people on-screen is strictly for those who know Armenian refugees when they see them.

Protagonist as perceptual prism

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