Printer Friendly

Interality and Legal Rights.

Introduction

This paper examines four different legal subject positions as examples of interality or in-betweenness (1) (Zhang, 2015). But their distinctive positions pose different legal advantages or disadvantages, depending on the specific nature of their state of interality.

Beginning with the dying patient's occupying a realm of liminality (Turner, 1969), at the end of the dying process, the law's recognition of this agent's right to die is currently enshrined in several states' death with dignity legislation. This will be interpreted as permitting medically assisted death with the aim of reducing various forms of indignity. Yet the patient can also be provided with the medical and cultural supports to experience a virtuous death, given the potential the state of liminality offers for integrity, hope, creative imagination and spiritual development.

The gender non-conforming legal subject occupying a position of betweenness in a culture based in sex and gender bipolarity, here described as interality as potentiality, has a unique set of interests not currently captured by the law in protecting the central interests of heterosexuals and homosexuals in privacy cases, sex discrimination law, and the jurisprudence of hate speech and hate crimes. Their non-conformity to binary sexuality when interpreted as a state of potentiality reveals their position as a positive liberatory force, but this has not yet been validated by the Court. The legal recognition of their interality can provide a fuller gamut of rights protection, in particular their right to authentic self- definition as well as the bases for self-esteem and self-actualization.

However, the third category of legal subject positions, i.e., that of refugees, described here as the ultimately transitioning group, has been interpreted historically in such a way as to ensure a condition of indefinite statelessness and rightlessness. Clearly the legal recognition of the despair, poverty, alienation, and general rightlessness of this group warrants the conclusion that it's a state that must be ameliorated by the international community as a whole.

Finally, the legal position of the sovereign as the one who is in a position to decide states of exception to legality and rights-protection occupies a position of beyondness that can be best understood as unreachability. In the extreme case of a declaration of a state of emergergency, rights are suspended, and the sovereign's absolute status entails that he is no longer accountable to his subjects for protection of their basic human rights.

Interality as Liminality: The Dying Patient

The terminally ill patient in ongoing intolerable pain occupies a distinctive state of liminality when undergoing the last stage of the dying process. This state of "in betweenness" between life and death warrant treating this legal subject's rights differently from the concerns underlying state laws allowing for medically assisted death for terminally ill persons. Such death with dignity legislation is primarily concerned with removal of barriers to such a death in the form of "indignities" (Allmark, 2002, p. 255). One interpretation of the scope of the law's reach in these cases is based on the interest in a dying process in which there are few or no affronts to human dignity. These are primarily being deprived of a voluntary choice regarding medically assisted death, and secondly, on being in great physical or mental pain. Medicine's ability to eliminate these affronts to dignity ground the right to a medically assisted death based on the basic interest in taking an active reasoned part in his own life, a distinctively Aristotelian perspective (Allmark, 2002).

A different set of interests are at stake for the patient in the final stages of the dying process than patients who don't occupy this position of interality. A wider gamut of human capacities can be tapped into, including our capacity for creative thought and imagination and for transcendence. These haven't been the focus of the death with dignity legislation since it is based primarily on protecting one's capacity for rational thought in the end stage of life. I will argue here that, in addition to the dying patient's interest in a death without indignity, the right to a medically assisted death for the dying patient, when viewed from the perspective of interality, calls for the provision of the conditions for a virtuous death, another Aristotelian approach.

One way to approach the issue of a medically assisted, planned death for terminally ill patients in ongoing intolerable pain is to view dying in relation to living instead of in terms of its connection to death (Callanan & Kelly, 1993). Medicine views death as a failure to cure or heal and views dying as its prelude. Yet dying is logically connected to living, more so than to death, given that death may be instantaneous.

Aristotle argues that a flourishing life is one characterized by "eudaemonia," the happiness made possible by living a purpose-driven virtuous life in the pursuit of a variety of commitments, projects and values. This conception of a flourishing life is made possible by the development of a number of different capabilities besides rationality, the cognitive capacity that has been the focus of rights-based ethical frameworks, including the death with dignity state legislation. But creative thought and intuition are also vital given that they provide the person with novel solutions to the ethical dilemmas faced in everyday life, because these capacities utilize language in ways similar to that of the poetic imagination. The ethical dilemma facing the terminally ill patient in unmanageable pain will be interpreted as follows. How can medicine best be utilized so as to provide the conditions for a virtuous death, in particular psychological and spiritual development?

From an Aristotelian perspective, the foundation of our demands on the state and other institutions lies in our interest in the full development of our basic human capabilities (Nussbaum, 2011). Nussbaum also argues that these potentialities go beyond that of rational autonomy, the Kantian basis for respect, dignity and basic rights, and include our capacities to love and be loved, for creative thought, for spiritual enlightenment and transcendence, for work and leisure, among others. A fuller gamut of capabilities to be supported by a rights-based framework suggests a dying patient's moral rights include the right to die in a manner consistent with the values, virtues and capabilities that characterized the patient during his lifetime. The implications of this Aristotelian account of a well-lived life and the state's role in supporting it for a virtuous death are as follows.

Although our interest in a good death has been interpreted as our desire for a death free from intolerable pain and in the company of loved ones, our interest in a virtuous death goes beyond these two conditions. A terminally ill person in constant, intolerable pain, who has lived virtuously in the pursuit of this commitments, will face a distinctive challenge to his values and character due to his situation. A life characterized by courage, hope, tolerance, empathy and generosity can morph into an existence marked by despair, anxiety, intolerance, self-absorption and fear (Callanan & Kelley, 1993). When a dying patient can have medical professionals present to diminish intolerable pain and provide cogent explanations of the dying processes, he will be empowered to exercise certain virtues and capabilities.

Aristotle argued that a person doesn't become fully the person he is to be known as until the moment of his death. Any of his ideals and purposes that have been unfulfilled will not become assimilated into his character or reputation. The virtue of integrity, interpreted as completeness, is often sought after when a person at the end of his life, is putting the pieces together to form what he can regard as a meaningful life, in particular, his life projects and commitments. When his death is planned for a specific time and place, with his loved ones and spiritual and medical guides present, the possibility of achieving such a state of peace is more likely to be achieved. Rather than the closure made possible by the saying of goodbyes and the asking and giving of forgiveness of those present, the person in this liminal state can access the psychological and spiritual resources of all those present who represent his commitments over his lifetime. Commonly referred to as having one's life flash before them, a person facing an imminent death under these conditions can communicate to those present the connections between having lived a good life and experiencing a meaningful death.

Although Aristotle didn't believe humans are capable of the immortality characterizing only the gods, he did believe it would behoove us to access the potential for the divine that we bear within our souls. Characterizing the wisdom available to the person seeking to become more like the gods, he recommends the development of our capacities for "eudamonia", i.e., in the form of contemplative thought (Aristotle, 1995). Understanding creative thought as approaching the resources of one's language in unconventional ways suggests a similarity to the manner in which poetry enables poets and readers to go beyond rational thought in the explanation of metaphysical questions, including the meaning of the liminal state of the dying.

Personal experiences of bearing witness to dying patients reveals many achieve such transcendence in the form of time-traveling to previous significant transformative life-stages or traveling forward in anticipation with contact with deceased loved ones in the next life (Callanan & Kelley, 1993). This potential for completeness and meaningfulness in a profound liminal state can be enhanced by the presence of medical professionals with experience in dealing with the final stages of living, because they can provide information about one's physiological states and can provide palliative medicine which often precipitates states of transcendence.

Aristotelian hope, "euelpis," also has features that well serve the dying person in this transitional state. He characterized hope as a mean between despair and false optimism, and argued that it presupposes that the hopeful person has experienced his own vulnerabilities and fears regarding certain undesirable outcomes. As such, it presupposes that the hopeful person has the courage needed to face the unknown. An intentional death surrounded by loved ones provides the opportunity to tap into his capacity for hope, e.g., that the life he's lived will have provided benefits to his survivors and the hope that death will not result in a worse form of consciousness than his embodied lived consciousness (Gawande, 2014).

Although it can be argued that terminally ill patients often have ample time to arrange such conversations prior to the event of their death, several reasons militate against this alternative. First, birth and death are profound metaphysical events and psychological states, as well as culturally and socially mediated conditions. The time immediately preceding death is a time of suspension of one's everyday worldview and as such provides the person with a receptivity to a universe markedly different form the world they currently occupy (Turner, 1969). Without the resources provided by an intentional medically assisted death, the patient can find himself dying alone and in great pain, despite the presence of Hospice care and loved ones in days prior. Secondly, our greatest responsibility as a society is to those who are the sickest and most vulnerable. If the terminally ill patient in constant intolerable pain has consulted with medical professionals and family to ensure his decision is rational and autonomous and desires an imminent death, it's unclear why his suffering should be extended against his wishes. Medicine's mission includes curing illness, sustaining life and health, as well as diminishing pain.

In conclusion, when dying is viewed as a final phase of a well-lived life, rather than as a preliminary to the failure of medicine in one's death, it becomes apparent that medicine can participate in extending the type of flourishing that comes from intentional, purposeful, virtuous action. By providing the resources of palliative medicine and the possibility of the presence of beloved persons and wise medical professionals, the type of hope and integrity that a person has instantiated during his life can be sustained in a well-lived dying. In the context of a virtuous death as described here, one can hope that one's commitments in the form of whom and what one is leaving behind will be well served as a result of authentic communication with one's loved ones in this liminal stage and that the despair and fear that accompanies facing death in intolerable pain will be mitigated by palliative medicine and trusted spiritual and medical advisors.

The Gender Non-Conforming Subject: Interality as Potentiality

Three existing legal paradigms for dealing with the rights of transsexuals, transgender, intersex and gender dysmorphic persons (hereafter referred to as the nonconforming subject) include: the jurisprudence of privacy rights; the law of sex discrimination and the Court's resolution of cases involving hate crimes. None of these provide the appropriate precedents or legal reasoning for resolving the particular forms of legal protection and personal and political empowerment of gender non-conforming person.

a. The jurisprudence of the right to privacy

The above-mentioned four groups share a central feature: their non-conformity to a culture of binary poles of sex and gender identity and to heteronormativity. Several issues arise regarding the applicability of the existing legal framework to the distinctive rights claims arising from their "in-betweenness", i.e., their position of interality. First, the Court's legal reasoning in early precedents regarding protecting heterosexuals' rights to privacy is based on protecting interests that aren't necessarily foremost to individual gender non-conforming persons: the protection of the sacred bonding occurring in marriage in the reproductive act, as well as the value of such emotional bonding in strengthening their commitments to the family (Griswold v Connecticut, 1965). Then in (Lawrence v Texas, 2003), the Court expanded its privacy protection to homosexual couples in their intimate relationships. Here, the central interest at stake as a basis for Lawrence v Texas' application of this right to privacy was characterized as the right to autonomy, in particular, in the choice of intimate sexual partners and in the forms of sexual expression. The legal reasoning appealed to in this case included the interest persons have in autonomous social relationships, and by implication, their vital role in psychological development and, by implication, moral maturity. A fuller defense of autonomy in the private sphere of choices about reproduction was provided by the Court in Planned Parenthood of Southeastern Pennsylvania v. Casey (Planned Parenthood of Southeastern Pennsylvania v Casey, 1972), where it was argued that persons are entitled to protection from government interference in the choices they make about their life plans and solutions to key issues involving the meaning of their lives.

Although not articulated in the legal reasoning in these privacy cases, the Court's protection of autonomous decisions regarding intimate relationships can be interpreted to include the central role one's personal identity plays in the narratives constituting their lives, including their most significant personal relationships. In viewing the non-conforming person's interest in autonomous personal relationships as characterized as occupying a position of interality, or betweenness, it becomes apparent that the value of autonomous personal relationships is diminished for these groups, because of the obstacles to their developing an authentic personal identity in our culture. The ongoing cultural and social discrimination against these groups constitutes a serious impediment to developing an authentic personal identity, because of the widespread nature of bullying, harassment, ridicule, disdain, incomprehension and hatred expressed against those who do not fit the norms of sex bipolarity.

It's not being claimed here that non-conforming persons don't have an interest in intimate sexual relationships, given the relationships between these forms of connection and love, psychological and moral growth, or self-actualization. Rather, what I'm claiming is that the culture of heteronormativity and binary sex identities makes it difficult for non-conforming persons to engage in such personal relationships with an authentic personal or sexual identity. The enormous cultural weight and social power behind compulsory binary sex identification has produced significant obstacles to authentic formation of one's identity in the form of bullying young non-conforming children, hostility, disdain, ridicule and social isolation, and family non-acceptance. One's capacities and opportunities for meaningful, genuine, loving and life-enhancing relationships with others are limited by the existence of these hindrances to unfettered authentic expression of one's individuality in personal relationships with family, friends and sex partners.

An appeal to interality and potentiality, a related concept, provides an explanation for the insufficiency of the precedents in privacy cases based on the experience and status of heterosexuals and homosexual persons. Not only is the value of autonomy diminished for those who face cultural and social obstacles to forming an authentic sex role identity, authenticity is a precondition of autonomy, as are freedom from coercion and manipulation in the development of one's identity. In addition, the specific nature of their position of "betweenness" suggests a closer look at how this interalogical status is also characterized by a state of potentiality.

A non-conforming person with a yet undetermined sex identity is in a state of potentiality with regard to their choice of where they may stand on a continuum of maleness and femaleness. Depending on their own individual combination of male and female identifiers (internal and external genitalia, chromosomal sex, sex hormones, gender personality traits, sexual preference and psychological affinity), a non-conforming person may find value in occupying state of potentiality due to their ambiguous sex identity. Not only does this position provide the non-conforming person with a zone of freedom from oppressive male and female sex stereotypes and social role expectations, their openness extends to their following a different trajectory of psychological and moral maturity.

Several cultures award intersex persons a distinctive role in religious ceremonies and as favored aunt or uncle in family events and rituals. Ways of worshipping can be developed that aren't predicated on patriarchal religions or on goddess religions that are based in warrior goddesses and prostitute/priestesses (Ehrenheich, 1998). The non-conforming individual understood as occupying a status of potentiality can be compared to that of the protean personality and its well-documented strengths (Lifton, 1993).

The non-conforming agent's desire for individuality can be satisfied through their differentiation from others with fixed identities. Interacting with others socially provides opportunities for the non-conformist to imagine more creative responses to life-problems facing them, Rather than viewing masculine and feminine ways of resolving ethical dilemmas (Gilligan, 1982), a non-conforming person can approach the contrasting ways of being human in terms of "complementarity, co-presence, interplay, mutual generation, inter-transformation, interdependence and dynamic equilibrium" (Zhang, 2016, p. 109). Zhang uses these concepts to describe the relationship between yin and yang (masculine and feminine metaphysical principles), but this interological approach to masculinity and femininity reveals that the androgynous person, who has a protean personality can develop a more nuanced, complex approach to their sex and gender identities. They can lead an ethical life characterized by contingency and less predictability than the person who bases their personality and role interpretation on a fixed culturally determined sex of personality characteristics based on sex.

b. Sex discrimination law

It has only been in the last two decades that transsexual persons have been protected by federal law in the areas of nondiscrimination based on sex in employment (Title VII). education, (Title IX} housing (Fair Housing Act) and health care (Affordable Care Act). On the other hand, the Supreme Court in January, 2019 supported President Trump's ban on allowing transgender persons in the military. Because of the cultural support for a binary view of sexuality and an ontological theory of personhood which presupposes persons are necessarily sexed beings, legislative and judicial supports for their equal treatment before the law can't be guaranteed.

Early precedents for interpreting "sex" more broadly than biological sex include cases in which employees were fired due to dressing in a way inconsistent with their presupposed sex identity (Price Waterhouse v Hopkins, 1989). The Supreme Court argued in that case that sex discrimination based on sex stereotypes (about how employees should dress and behave) is unlawful sex discrimination protected by Title VII.

However, in court cases dealing with discrimination based on sex, the Court has vacillated between applying the strict scrutiny test, which requires that the state has a compelling interest at stake; the mid-level standard of judicial review, which requires a showing of an important government interest; and the rational basis test, which allows for sex discrimination as long as a case can be made that the state has a legitimate interest, a relatively easy standard to prove. So, in a privacy case involving homosexual persons' right to engage in consensual sex (Bowers v Hardwick, 1986), the Court upheld Texas' sodomy laws based on the government's legitimate interest in upholding social mores. No evidence was provided regarding whether there was a majority of Americans who believed that homosexual sex is immoral.

From this perspective, the legal reasoning in Glenn vs. Bumby (Glenn v Bumby, 2011), is significant in the Court's claim that discrimination based on sex stereotypes should get heightened scrutiny, in contrast to previous sex discrimination cases that applied the two lesser forms of judicial review. Also significant in terms of its legal reasoning, the Court argued in Romer v Evans (Romer v Evans, 1996), that animus against a group (gays) is not a legitimate state interest (lowest level of scrutiny).

Currently, transsexuals and transgender persons are protected at the level of federal law which prohibits sex discrimination in a variety of contexts, yet in many court cases there occurs a conflict between the federal law, and the judge's own view about the reality of transgender sexuality (Weiss, 2001). So, transsexuals have been denied legal rights based on beliefs that a person cannot have an identity other than the one decided at their birth and recorded in subsequent documents. And continued harassment, humiliation and exclusion occurs regularly by government representatives that deny the possibility of transsexuality, including police, bureaucrats, health care workers, paramedics and other government agents, despite such discrimination having been declared illegal. (In addition, fifteen state laws exclude LGBT's from the class of potential victims to hate crimes, even though more crimes are committed against them than any other minority.)

The existing level of derision and disrespect has also resulted in the non-conforming persons' exclusion from the public realm and opportunities to engage in public discourse, another restriction on their psychosocial development, who can reasonably choose non-disclosure and invisibility in light of the negative consequence of coming out in the public realm. This entails that the choices faced by those who wish to develop their capacities through membership in social or political organizations are to become inauthentic in their denying their sexual identity or putting oneself into a position that could predictably result in harassment, ridicule and further marginalization in other realms of their private and social lives.

Until recently, the government's role in supporting sex normalization based on the binary sex paradigm included:

1. Issuing government ID's only on the condition of designating oneself as male or female;

2. Legalization of sex reassignment based on a parent's decision regarding their infant;

3. Public schools' requiring these groups' using the sex-segregated school bathrooms based on biological sex, not psychological sex (Weiss, 2001).

In addition, the level and ubiquity of mistreatment, cruelty and marginalization of non-conforming persons suggests that the ontology of personhood undergirding our worldview excludes those who can't be placed in the categories of binary sex role identification. This ontological hypothesis about the essential nature of persons as sexed in binary categories explains the confusion and dismay experienced by those who encounter gender non-conformists.

The expressions of government, social and cultural power in what Weiss refers to as "a gender caste system" violate the non-conforming person's most fundamental Constitutional right, the right to equal moral standing as a person (Weiss, 2001), In addition, the ubiquitous nature of this system of power results in the diminution of these groups' opportunities to develop self-esteem, including those fostering one's sense of belonging and empowerment, one's autonomous assessment of one's strengths and weaknesses, and one's exposure to valued role models. The enormity of the cultural weight in support of gender bipolarity reveals the rationale for the role given to the state in the form of the normalization of its individuals as either male or female. The destabilization of gender norms would have a tremendous impact on the family and other social groupings whose roles and expectations are predicated on conventional sex role stereotypes.

Rather than being excluded from basic opportunities to work and parent as in the case of sex discrimination against women in employment and education based on their relevant similarities or differences from males, the transsexuals predicament is that none of the precedent governing similar cases (employment discrimination, privacy rights, or hate crimes and speech) deal with the particular problem of their unequal moral standing in our gender caste based society and culture because of their betweenness.

c. Legal reasoning in hate speech and hate crime cases

Although it's obvious that the gender-non-conforming persons shares similar interests to the minorities who have been subjected to hate speech or hate crimes, there are certain aspects to this position of interality that should be noted. The Court's holdings on free speech include the argument that hate speech that can't be predicted to produce fighting on the part of its audience should not be prohibited (Chaplinsky v New Hampshire, 1942). In the Village of Skokie case the Court decided that since the Jewish community in Skokie (about 30% at that time) could have stayed home and thereby avoided the hate speech at the Neo Nazi rally, using J.S. Mill's reasoning regarding why offensive speech should not be criminalized (Nationalist Socialist Party of America v Village of Skokie, 1977). Mill argued that the person who's offended can walk away and spare themselves the emotional damage done by the offensive speech. However, the community of Auschwitz survivors had an additional claim on being protected by the state from Neo Nazi propaganda. The speech could be predicted to create a climate of fear in the survivor community, and demoralization in the understanding that the rally got state support. More recently Michigan State University allowed a neo-Nazi group on campus, based on the liberal value of free speech in a society based on the model of an open marketplace of ideas. Such an area of freedom was judged by Mill to contribute to the achievement of truth in the long run and still serves as a guiding principle in these cases.

The problem with supporting public presentations of hate speech based on its relationship to truth is that the hate group does not intend to engage the hated group in a debate about their equal value and moral standing in an open marketplace of ideas setting. Such speech is intended to produce the exclusion of the disdained persons from the public realm and from the country as well. But the difference between racial and ethnic minorities' interests and the gender non-conforming persons in these matters lies in the cultural weight thrown behind disdain and hostility toward the non-conforming group. This is evidenced in this group's mistreatment in more aspects of their lives, beginning with family non-acceptance, marginalization or exclusion from religious and social organizations, ridiculing and bullying in schools, humiliation in using the bathrooms in schools, and in the fear of their exposure as gender-non-conforming in the public sphere, given the violence or humiliation that could be predicted to occur. It's the level and scope of their disempowerment at the hands of so many representatives of society that characterizes the status of this non-conforming group.

Interality as Transition: The Right of Refugees to Asylum

It has been well documented and well argued that the in-between status of persecuted and terrorized persons fleeing their homes are in the worst possible legal position: stateless and therefore rightless (Arendt, 1966). It was the fact of their being caught between their former home and their destination as refuge that produced the limited responses of the UN Convention on the right to asylum as a right of non-refoulement (UN Convention Relating to the Status of Refugees, 1951). This means that the host country at which they've arrived has no positive duty to provide the refugee with basic necessities for survival and a home base for the continuation of their life as refugees. Instead it's a negative right which merely requires that the host country not send them back to the source of their threatened violence or death. The fact that many of the mid-century refugees were being persecuted or killed because of their ethnicity that provided a basis for existing nations' time refusal to incorporate them into their country as citizens. They were fearful of their secession once they became part of the existing nation state. It was their in-between status that produced such a meager response to these extremely needy groups, because they were perceived as a threat to the autonomy of the host country. For this reason, they have been characterized as "the ultimate transitioning group" and hence as a destabilizing force in their new environment(Helton,2000). Helton argues that their situation of being economically destitute and without possibilities of employment in the camps results in their becoming easy prey for recruitment by militia, rebel or government forces.

Although the gender non-conforming has fared worse than other categories of sexual identities (e.g. homosexuals), and although many of them can be identified as in a state of transition to another gender, and have been perceived as a destabilizing force in a binary sex identifying society, it's the refugees' status of being in a state of transition that has caused even greater violations of basic human rights that qualified them as the ultimate transitioning figure. In other words, the refusal of autonomous nation states to accept them as candidates for citizenship or residency positions them as permanently rightless and therefore as potentially being excluded from a position of claiming rights into an indefinite future. Stuck in a limbo in which they can't return or else face imminent death and one in which they're denied the resources to secure permanent status as citizens in a safe country that warrants viewing them as the paradigmatic transitioning agents confined to rightlessness in perpetuity.

The difference between refugees fleeing imminent death through genocide or mass murder and economic immigrants is that economic immigrants are perceived primarily in economic rather than political terms, i.e. in terms of their capacity to contribute to the economic well-being of the host country. With so many countries experiencing a low birth rate, they have even been welcomed albeit as transient laborers. (Dubai, Germany). Refugees who are fleeing persecution due to their ethnicity have been perceived as a threat to existing countries' autonomy given that they will form cultural communities, which themselves could prefer independent political status, (Kurds in Turkey and Syria; Royingas in Myanmar).

Arendt describes the dilemma of stateless refugees as existing in a legal environment in which they lack the legal status to make rights claims in the courts, and argues that to the extent that refugees languish in refugee camps (on an average of 18 years), a long term political and legal consequence of this condition is that they will lack the resources that provide the basis for the establishment of their cultural and therefore personal identity. This condition is legally disempowering, given its predictable effect on their self-confidence and self-esteem. Detention centers in the U.S. frequently fail to provide refugees of the option to consult with attorneys who speak their language, further exacerbating their rightless condition. Alienation from their culture and support networks over the long run results in their lacking the connection to those who would have contributed to the solidification of their cultural, political and personal identity, and as Arendt argues, the diminution of their ability for free, spontaneous action and in their voicing of their distinctive needs, interests and perspectives in their changed political setting. Such a condition of dependence places refugees at a distinct disadvantage, namely, their vulnerability to merely reacting to others' political rhetoric or manipulation of their will (Arendt, 1966).

The political position of statelessness and rightlessness of political refugees suggests that their betweenness in relation to recognized nations is a sufficient condition of their continual state of disenfranchisement and disempowerment. Yet this political and legal status of interality is a result of the international community's denial of a metaphysics of relationality and an ethic international obligation to rescue necessitous strangers. A metaphysics of interality based on viewing persons as constituted by social relations as opposed to one based on fixed entities warrant a closer look at how refugees' relations to their home countries and the international community as a whole produced their dilemma of rightlessness.

Although the factors resulting in large populations of refugees vary (civil war, ethnic rivalry, religious persecution and fanaticism), these conditions are exacerbated by global forces and events (world wars, colonialism, imperialism, multinational policies of agriculture, extractive industries, arms shipments, financial support of repressive, corrupt governments). The political status of interality as marginalization outside the rights protection of any particular nation state or of the international organizations is a result of the denial of the global economic and political relationships which produced many of the national political upheavals beleaguering the refugee population. Likewise, the solutions and duties are global: duties placed on the international community of nations to provide refuge in locations that can provide the maximal potential for refugee groups' material and psychological well-being.

This interological approach appeals to an ontology of personhood based on a more extensive set of social relations beyond that of the face to face relationships of local communities of home countries. It also suggests that refugees can provide clear benefits to the countries which do provide refuge and ultimately citizenship, because they can provide the citizens with whom they come into contact a wealth of cultural resources and testimony about their experiences that can enhance an understanding of world politics and their own country's role in world history. They can also expand the consciousness of others with whom they interact by providing them with the bases for critical reflection on the limitations of their own cultural endowments, thereby enhancing their autonomy understood as the capacity for critical self-evaluation.

Sovereignty: Interality as Unreachable Beyondness

The status of the sovereign as absolute executive is formulated in various constructions of social contract theory (Hobbes, 1982). In summary, he's beyond the reach of the courts as well as legislatures, because disagreements between then could put a state back into a pre-political state of nature. The interpretation of the role of the absolute executive is to prevent putting his subjects into such a state of war. Promulgated laws and professional judges and court rules are viewed by social contract theorists as essential to a state of peace, and produce relations based on trust, itself interpreted as based in mutuality of concerns rather than on moral sense of reliability,

One interpretation of the nature of this position of absolute power renders it as a state of exception (Schmitt, 1985). Essentially, Schmitt argued that the sovereign decides the scope and parameters of law and the extent and nature of the law's exceptions, including the exceptionality of his own position as beyond the authority of courts and congresses.

Yet this beyondness has a distinctively negative quality, a state of being beyond the reach of any other domain of power, and by implication of accountability. A different perspective on the sovereign's position of exceptionality is provided by a Platonic interpretation of his specialness as lying in his extraordinary relationship to Wisdom, and by implication to understanding the demands of justice for his subjects. His cognitive abilities are such that not only is he motivated to seek wisdom in his problem-solving about justice, he is also motivated and qualified to seek justice for its own sake. His rare abilities for reasoning and judgment, as well as the highest standards of personal integrity and moral development, position him to be the sole judge of how best to implement the ideal of the good society for all his populace.

In contrast, Schmitt's 20th century analysis of this status of exceptionality regards it as extremely risky for citizens because checks and balances on his authority and power can't be relied on when states of emergencies or military engagement are called for, especially in the situation in which he is the sole agent who can determine when wars must be fought and whether or not to use nuclear weapons, Yet arguments about the necessity of the absolute power of the chief executive are predicated on questionable Hobbesian beliefs about the relationships constituting the civil body of citizens:that relationships of mutuality, reciprocity, trust and cooperation are only possible under the conditions of absolute sovereignty. An interological analysis of this set of complex relationships is beyond the scope of this essay.

In conclusion, the above discussion of legal subjects in a position of interality suggests not only that the recognition of the legal claims of dying patients and gender non-conforming persons occupy a betweenness that calls for the law to recognize their differences from other legal claimants. The central interest at stake for those in the final stage of the dying process is to be able to experience a virtuous death, in addition to the interest dying persons have in a death with dignity or a good death. The interological approach used is based not only on the spiritual and psychological benefits from being in a state of liminality but also based on recognizing the value of the presence of those with whom they have developed special relationships. The interological perspective on the legal rights of gender non-conforming persons reveals that the claims these persons have in terms of their non-conformity to the existing binary forms of sexual identity arise due to their potentiality for developing an authentic form of sexual identity, which clearly differs from that of conventional sex roles. Examining the tragic condition of the 6.5 million refugees worldwide from an interological nexus warrants a critical examination of the myriad ways the international community has contributed to this egregious form of basic rights violation. It also suggests that the solution needs to be addressed in terms of the collective resources of the global community, rather than falling on the shoulders of those in spatial proximity to those on the move. Finally, an interological political analysis of the social, political and cultural conditions that have been the springboard for rationalizing the power of the sovereign is beyond the scope of this essay. But, to the extent that this type analysis hasn't been thematized in social contract theory, it suggests it's long overdue.

Notes.

1. Zhang (2015) describes "interology" as the study of "interality," both terms coined by Geling Shang. Interality is conceptualized as an interzone or a zone of proximity. As such it provides for a space of possibilities and life-enhancing transformations.

2. Turner (1969) focused on major historical shifts and different rites of passage in order to reveal distinctive aspects of liminality embedded in these, with liminality understood as an intermediate state of being "in between" in which individuals are stripped from their usual identity and their constituting social differences while being on the verge of personal or social transformation.

3. Gilligan (1982) argues that adolescent males and females undergo different trajectories of moral development and reasoning, based on their different forms of personal identity formation. Adolescent males build their identity on differentiation from family relationships, whereas females develop their identity in the context of their forming personal relationships, including the role expectations of them in their families. Psychological theorists such as Lawrence Kohlberg err in evaluating the masculine moral frameworks of decision making in the form of rights as superior to that of the feminine model based on caretaking.

Correspondence to:

Michaeleen Kelly

Emerita Professor of Philosophy

Aquinas College

1700 Fulton E

Grand Rapids, MI 49506

Email: kellymic@aquinas.edu

References

Allmark, P. (2002). Death with dignity. Journal of Medical Ethics, 28, 255-257.

Arendt, H. (1966). Origins of totalitarianism, 3rd edition. New York: Harcourt & Brace.

Aristotle. (1995). Nicomachean Ethics Book I, Chapter 1:1095a(5-12) Aristotle Selections, ed. Terrence Irwin and Gail Fine. Indianapolis: Hackett Publishing Co., Inc.

Aristotle, op. cit. Nicomachean Ethics Book X, Chapter 7.

Bowers v Hardwick 478 U.S>186(1986).

Callanan, M., & Kelley, P. (1993). Final gifts: Understanding the special awareness, needs and communications of the dying. New York: Bantam Books.

Chaplinsky v New Hampshire, 315U.S.568 (1942).

Ehrenreich, B. (1998). Blood rites: Origins and history of the passions of war. New York: Henry Holt & Co.

Gawande, A. (2014). Being mortal. New York: Metropolitan Books.

Gilligan, C. (1982). In a different voice: Psychological theory and women's development. Cambridge: Harvard University Press.

Glenn v Brumby. 724F.Supp.2d1284(2011).

Griswold v Connecticut. 381U.S.479(1965).

Helton, A. (2000). The price of indifference: Refugees and humanitarian action in the new century. Cambridge: Oxford University Press.

Hobbes, T. (1982). Leviathan. London: Penguin Classics.

Lawrence v Texas. 539U.S.558(2003).

Lifton, R. J. (1993). The protean self: Human resilience in an age of fragmentation. Chicago: University of Chicago Press.

Nussbaum, M. (2011). Creating capabilities: The human development approach. Cambridge: Harvard University Press.

Planned Parenthood of Southeastern Pennsylvania v Casey 505 US 833 (1972).

Price Waterhouse v Hopkins 490U.S.228 (1989).

Schmitt, C. (1985). Political theology: Four chapters on the concept of sovereignty. Trans., George Schwab. Chicago: University of Chicago Press.

Turner, V. (1969). The ritual process: Structure and anti-structure. Chicago: Aldine Press.

UN Convention relating to the status of refugees, 1951.

Weiss, J. T. (2001). The gender caste system: Identity, privacy and heteronormativity. 10 Law & Sexuality 123 Tulane Law School.

Zhang, P. (2018). Qi and the virtual in Daoist and Zen literature: A comparison with Western vitalist thought. China Media Research, 14(4), 99-109.

Zhang, P. (2016). The four ecologies, post-evolution and singularity. Explorations in Media Ecology, 15(3 & 4), 343-354.

Zhang P. (2015). The human seriousness of interality: An East Asian take. China Media Research, 11(2), 93-103.

9/30/2019

Michaeleen Kelly, Aquinas College, USA
COPYRIGHT 2019 Edmondson Intercultural Enterprises
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 2019 Gale, Cengage Learning. All rights reserved.

Article Details
Printer friendly Cite/link Email Feedback
Author:Kelly, Michaeleen
Publication:China Media Research
Date:Oct 1, 2019
Words:6991
Previous Article:Of Interality and Media Ecology.
Next Article:Schizoanalysis of PokemonGo.
Topics:

Terms of use | Privacy policy | Copyright © 2020 Farlex, Inc. | Feedback | For webmasters