For my YouTube video on Civil Death, click the link
The terms “political correctness” and “cancel culture” have always left me cold. Consider the uncompromising force of a charge of “racism”, “sexism”, “transphobia” or “antisemitism”. These terms cut like knives and are no laughing matter. If they stick, you perish. By contrast, “political correctness” and “cancel culture” are, or have become — perhaps due to our side’s remaining affinity for non-Orwellian language — mocking terms, mere euphemisms, which regrettably only help conceal the true violence that can hide behind a word or phrase.
We tend to treat censorship, ‘bannings’ and firings, and now even political prosecutions, as mere excesses, the spasmodic reactions of an immature or incapacitated opponent. These are just ‘adult temper tantrums’, something that can be addressed by making fun of the manifestation of the disorder until the senses of the afflicted are regained. Humour, like political Narcan, will revive their prostrate humanity. The dance of madness and insanity, like the women in the Bacchae, intoxicated by Dionysus, will end when we pull the plug on the atonal music. These rotating objects to which we subject external forces will be tossed outward and away from the central folly, and equilibrium restored in the marketplace of ideas where truth always prevails.
This is a grotesque underestimation of the infected and of the centripetal forces that contain them. Legal processes operate when a person is swallowed in the progressive tidal wave. It is not mere social conformity that confines us to our ‘safe spaces’, but also the prospect of the loss of our legal existence in the world. To be cancelled is not simply a fact. It involves the use and application of legal concepts that have been with us since Western law’s origins in the ancient world.
We cannot effectively oppose what we do not understand. Let us begin with a concept few have heard let alone understood. This is the legal concept of Civil Death. A person at law is really two people. A physical person — and this is the focus of the English common law tradition — and also a legal person, completely separate from the physical person. Legal personality is a concept that goes back to Roman law, carried into modernity by the Civil Law tradition in Europe. It is our unimpaired legal personality that allows us to make contracts, marry, make a will and participate in civic life, such as the right to vote.
It would be mistake to assume there are only two types of persons: (1) natural ones or human beings; and (2) fictional ones, like corporations. It is more complicated than that. Human beings need to be allocated a legal personality by the society or state to exercise rights and obligations. A useful summary follows.
Persons- Nature of Personality
According to Salmond, “A person is any being whom the law regards as capable of rights and bound by legal duties.” There are two kinds of persons, Natural persons, and Legal persons.
Legal persons are juristic, fictitious or artificial persons and a natural person is a human being with a natural personality and as per law, is capable of rights and duties. A legal person has a real existence but its personality is fictitious, because such a thing does not exist in fact but which is deemed to exist in the eye of law.1
Legal Personality/ Juristic Personality
We use the term “personality” for human beings alone because it is only them who can be the subject-matter of rights and duties, therefore of juristic personality. There are two essentials of a legal person such as corpus and the animus.
The corpus is the body into which the law infuses the animus on the other hand animus is the personality or the will of the person.2
Nature of Legal Personality
Legal personality is an artificial creation of law. Entities under the law are capable of being parties to a legal relationship. A natural person is a human being and legal persons are artificial persons, such as a corporation. Law creates such corporation and gives certain legal rights and duties of a human being.
A legal personality is what provides a person or organization rights and responsibilities by the law. Usually, we automatically assume that Humans have a legal personality. This is so as such legal systems are built for the use of human beings. These days, the concept of legal personality is frequently a part of discussions about the rights or legal responsibility of the entities such as corporations that cannot be defined by a single person.3
The duality of the natural and legal person means that they can have separate deaths; the legal person can die first, while the physical person is still breathing. This is called civil death.
Civil death or the death of the legal person is often defined as the lawful abrogation of civil rights as a consequence of a criminal conviction. The physical person still lives, in a jail cell, but his civil rights, except the right to life, have died. In the case of capital punishment, in French law, the sentence carried with it the death of the legal person, in some cases leading to the forfeiture of all property to the next of kin or the state and the dissolution of marriage, with your former wife becoming a “widow at law”. This occurred while the convict was still awaiting execution. In other words, legal death can precede physical death.4
The concept has never been limited to capital offences and the criminal. Civil death can occur in any number of other ways, such as with persons entering religious orders and, more to the point in modern times, as a tool against persons considered security risks: terrorists, political dissidents and persons deemed to threaten the national interest — such as a “politically exposed person” (PEP).
We heard recently that Nigel Farage’s bank account had been abruptly closed and he had been refused accounts by several other banks because of his supposed status as a PEP. GBN recently reported that up to 5 millions Brits are at risk of bank account closure. In Canada, the ‘trucker protest’ was broken by seizing assets and cancelling bank accounts, a form of summary legal execution. Neil Oliver, the archeologist and YouTuber, referred to it as ‘social murder’. To be precise, it is the application of capital punishment against the legal personality of the target. It is the ultimate form of violence against your civic life, without the need for a bloody physical execution. Those who have been victims of civil death, experience it as form of violence.
We tend to describes these types of events as Orwellian, dystopian or tyrannical, all true no doubt. But when you understand this in its legal historical/context, as an attack on our legal personality, and as the imposition of a sentence of civil death on enemies of the regime, then the true animus we are dealing with becomes transparent. Those who have the power to cancel bank accounts, passports, our ability to enter into contracts and travel freely, and are willing to use that power, may be fools — but they are deadly serious ones.
An early application of civil death was to deny a traitor fire or water within the precincts of Rome, effectively the denial of the necessities of life. In ancient Greece, convicts could be politically excommunicated, denied basic rights such as the ability to vote or appear in court. Even Themistocles, who saved Athens from a second Persian invasion by persuading the Athenians to build a fleet of 200 ships, was subsequently un-personed by ostracism5 , and forced into exiled, ending his days in the service of a Persian King.
Civil death turns a person into a legal ‘Zombie’, the ‘walking dead’. Only the right to live remains (with capital punishment, not for long), but little else.
In the film the Duellists, by Ridley Scott, based on a novel by Joseph Conrad, d’Hubert opts to forgo his right to kill Feraud by pronouncing that Feraud will conduct himself toward D’Hubert, in the future, in every respect as if he were ‘dead’.
To be declared legally dead by the total state, means the loss of rights, without necessarily knowing why, without a human to explain the sentence, and if some suspension of sentence is achieved, living in perpetual fear that the cancellation of bank accounts, or passports, the imposition of travel restrictions or the denial of identity itself will return.
On November 8, 2015, Hossam Bahgat a prominent journalist and human rights activist was arrested in Egypt. He was eventually released, but under sentence of civil death, including the confiscation of his passport, the seizure of his assets and subject to constant surveillance.6
In Tanya Monforte’s, “A Theory of Civil Death: Legal Status and Security Under Neoliberalism”, she writes:
“To Understand civil death is nothing less than to understand the productive and destructive force of law as a social ordering system that distributes power in its different forms.”7
Monforte identified a series of new legal techniques that have come to be associated with contemporary or new civil death, including: asset freezes, travel bans, arms embargoes on individuals, contract freezes, that do not flow from a criminal conviction at all, but rather from change in our status, or diminution in our capacity, literally, the ancient Roman capitis deminutio.8
Farage and dissidents like Jeremy MacKenzie in Canada fit into this new class of the civilly dead. Although the Supreme Court of Canada declared the institution of civil death a breach of ‘human rights’ in the case of Sauve v. Canada, which granted prisoner the right to vote,9 the legal system has otherwise remained silent as neo-civil death has exploded in its scope and application around the world.
In England, the practical application of civil death, in its full violent form, can be traced back to the concept of attainder or outlawry:
At early common law, a person convicted and sentenced for treason or other felony was placed, by operation of law, in a state of attainder. Three important incidents were consequent upon such attainder: first, forfeiture, whereby all the felon’s property, both real and personal, was forfeited to the Crown; second, corruption of blood, whereby the attainted person lost the capacity to inherit and the power to transmit his estate to his heirs; and third, the incident commonly termed civil death, which consisted substantially [of] complete extinction of the felon’s civil rights. In England, this barbarous doctrine of attainder, forfeiture, and corruption of blood, has now been entirely abolished by statute…”10
Despite what the scholars may write, civil death has been anything but abolished in fact. Civil Death has found a renewed life and vigour under so-called liberal and ill-liberal total states alike, in which capital punishment is regarded as too messy and in which killing the legal person is far more socially acceptable.
The full implications of civil death today, are no different than in medieval times. A medieval French author once wrote that that civil death, “sunders completely every bond between society and the man who has incurred it; he has ceased to be a citizen … he is without a country; he does not exist save as a human being, and this, by a sort of commiseration which has no source in the law.”11
Hannah Arendt, the historian and political philosopher (as well as CIA asset), wrote of the central role of civil death in the functioning of the totalitarian state. It begins with the deprivation of a citizens legal status, followed by the complete loss of political status, and eventually the killing of the juridical person in man.12 Arendt described “rightlessness” as the paradoxical condition in which rights can be granted but not enjoyed. In a state of civil death, a person may have the right to life, but with no way of earning a living, the right is meaningless. Many who still believe they have fundamental rights in places like the UK and Canada, may soon understand that ‘cancel culture’ and civil death, are really the same thing. Arendt’s comments on how the police behave in a totalitarian state apply with equal force to the new civil death regimes, with crimes replaced with vices so that what is punished are characteristics or attributes that are enduring or intrinsic to persons in ways in which actions are not. Rights are then replaced with privileges. This trend is eerily apparently in modern progressive Western states like Ireland and Canada. Germany’s descent into non-personness is more advanced still as it had a head start.
In Turkey, after the failed coup in 2016, civil death was meted out to thousands. Political dissent in any form, and even guilt by association, triggered expulsion from jobs and the confiscation of passports. 165,000 civil servants were barred from holding government jobs.
In India, the transition to a national identification system was described by its critics as preparing the conditions for civil death, in that it gave the state the power to “switch” off a person’s legal personality.
In Canada, civil death has a long and illustrious history in dealing with political opposition. It did not start with the ‘trucker’ protests. After the rebellions in 1837 in upper and lower Canada, civil death was reintroduced as a pillar of the public law to punish traitors. The civil death statute in the Code of Lower Canada after the 1837 rebellion was particularly harsh, including declaring the offender legally dead, forfeiture of all property to the state, incapacity to make a will or contract and the dissolution of marriage.
With the emergence of the nation state, the withholding of rights emerges as perhaps the most important form of social control. It played an important role after the US civil war as a way of punishing rebels by the confiscation of their property, paying for the war and as a tool of “racial justice”. Equality ideology and civil death seem to have formed a close and happy association.
Although civil death has been formally abolished in most countries, by the legislatures or by the courts, neo-civil death is, as I have tried to illustrate, anything but dead. It thrives in fact with every cancelled job, cancelled profession, cancelled bank account, travel ban and with every digital identification system, while the “legal” profession remains largely silent.
That silence is more remarkable when we consider the implications. Writing on the subject of Civil Death, in 1775, Francois Richer wrote: “The subject matter is one of the greatest importance in jurisprudence, as it treats of the legal bonds between a society and its members, of the individual and the state.”
https://www.toppr.com/guides/legal-aptitude/jurisprudence/persons-nature-of-personality/#:~:text=Legal%20personality%20is%20an%20artificial,persons%2C%20such%20as%20a%20corporation.
https://www.toppr.com/guides/legal-aptitude/jurisprudence/persons-nature-of-personality/#:~:text=Legal%20personality%20is%20an%20artificial,persons%2C%20such%20as%20a%20corporation.
https://www.toppr.com/guides/legal-aptitude/jurisprudence/persons-nature-of-personality/#:~:text=Legal%20personality%20is%20an%20artificial,persons%2C%20such%20as%20a%20corporation.
For a wealth of information on the concept and history of Civil Death, See T.M. Monforte, Law, McGill University, Montreal, Doctor of Law thesis, Submitted August 2021 and available at Academia.edu.
Ostracism (Greek: ὀστρακισμός, ostrakismos) was an Athenian democratic procedure in which any citizen could be expelled from the city-state of Athens for ten years. While some instances clearly expressed popular anger at the citizen, ostracism was often used preemptively. It was used as a way of neutralizing someone thought to be a threat to the state or a potential tyrant, though in many cases popular opinion often informed the expulsion. The word "ostracism" continues to be used for various cases of social shunning.
See Monforte, supra.
See Monforte, supra.
Capitis deminutio or capitis diminutio (diminished capacity) is a term used in Roman law, referring to the extinguishing, either in whole or in part, of a person's former status and legal capacity. There were three changes of state or condition attended with different consequences: maxima, media, and minima.
Sauve v. Canada (Chief Electoral Officer), [2002] SCC 68
“Civil Status of Convicts” (1914) Columbia Law Rev at 594
Ewald, A, “Civil Death the Ideological Paradox of Criminal Disenfranchisement” (2002) at 1049.
Arendt, “The Origins of Totalitarianism” (Harcourt, 1968)
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