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Doubling Down on the Posthuman
Uppinder Mehan   Jan 29, 2013   Ethical Technology  

In December of 2011 a podcast produced by Radiolab discussed a legal issue involving Marvel characters, including the X-Men, the Fantastic Four, and Spider-Man (although the episode focuses on the X-Men). The "attorneys for a company that imported Marvel character action figures noticed that imported dolls were subject to a higher tax than toys, per the Harmonized Tariff Schedule. More importantly, dolls were distinguished from toys by “representing only human beings and parts and accessories thereof.”

The company sued for a declaration that the action figures did not represent human beings and so should be classified as toys, subject to the significantly lower tax. Ultimately the United States Court of International Trade agreed with the company and held that mutants, the Fantastic Four and related villains, and Spider-Man and related villains were all non-human. Toy Biz, Inc. v. United States, 248 F.Supp.2d 1234(Ct. Int’l Trade 2003)."

In attempting to reach a judgment the court took into account an Explanatory note offered by the Harmonized Tariff Schedule which stated in part that the category "other toys" includes "toys representing animals or non-human creatures even if possessing predominantly human physical characteristics (e.g. angels, robots, devils, monsters)." Toy Biz points out that the various tentacles, claws, wings on a number of the items removes them from the only human category. The court agreed with Toy Biz that "represent" had to mean more than "resemble" because if the Marvell character action figures merely resembled human beings then they would be classifiable as both dolls and other toys which the Tariff clearly forbids.

The court rests its opinion that the action figures are toys, not dolls, on three observations: one, the figures exhibit at least one non-human characteristic; two, the characters are known as "mutants." "They are more than (or different than) humans;" and three, the figures are marketed and packaged as "mutants" or "people born with 'x-tra' power. The court turns to science fiction to define a mutant as "someone (possibly originally belonging to the human species) who has undergone change and become something other than human, someone with an extraordinary appearance or abilities." "The categories of 'robots,' 'monsters,' and 'mutants' are all," the court asserts, "even if humanoid, extrahuman (or non-human) categories of being" (Toy Biz).

A human, in the context of this court decision, looks like a human and is culturally marked as a human. The court assumes that we all share an awareness of what a human looks like and of what a human can do. And it is this shared awareness that the following commenters eloquently call into question.



It's frightening to consider that because Mattel wants to save money on tariffs, there will be legal precedence for dismissing variations in humanity as not human in the future. As a gay person whose presentation does give me away to some, i feel particularly sensitive to this. I identified so strongly with the Xmen growing up that this is sad and scary. I know it's customs law, but lawyers cull legal precedence from wherever they can.
Jan. 02 2012 04:20 PM

Robin Green from Kentucky:

In trying to determine if mutants "represent" humans, one should consider if they are the same species. Mutant characters have human parents, for the most part. Mutants are not reproductively isolated from humans. Professor X had a child with Moira MacTaggert, so humans and mutants produce viable offspring. Unless there is an example of a human/mutant offspring being sterile, it is far more likely that humans and mutants have not become separate species and would not for several generations.
Jan. 04 2012 09:27 PM


David Bush from Brasilia, Brazil:

Please allow me to submit a poem from the desk of Iron Man: First they came for Beast,

and I didn't speak out because I had no blue hair. Then they came for Wolverine,

and I did not speak out because I had no claws. Then they came for Wasp,

and I did not speak out because I had no insect-like wings.

Then they came for me

and there was no one left to speak out for me.
Jan. 10 2012 10:48 AM

And it is, in large part, this complex of concerns that makes the term 'posthuman' confusing. Posthuman is used in primarily two senses: a critique of a discursive figure known as the human, and as an evolutionary being that is transhuman. Despite the emphasis of progression in the transhumanist usage of 'posthuman,' both senses do make the 'human' time dependent. The critique of the discursive figure has its critical theory, feminist, postcolonial variants, but it is at heart a postmodern revaluation of Renaissance humanism. It seems to me that postmodern posthumanists such as Donna Haraway, N. Katherine Hayles, and Cary Wolfe value and have recourse to the humanist ideal of respect for the other as the basis for their critique of the human. In the critiques of postmodern posthumanists the posthuman puts the notion of the other under enormous pressure, argues for a radical alterity so that it can be properly and truly respected.

The focus here is primarily on the transhumanist position. Transhumanists such as Hans Moravec, Ray Kurzweil, Nick Bostrom argue not for the dissolution of a socially constructed formation known as a human but for an enhancement of the biological human that has something beyond convention at its core; something that is essential, unchanging, transcendent. The transhumanist believes in the possibility of a better human, a human+, a human 2.0.

In an article titled "In Defense of Posthuman Dignity" which appeared in a 2005 issue of the journal Bioethics, Nick Bostrom aims to reassure the reader that technology will be used to modify human nature and that we will still be humans, just enhanced. For Bostrom the idea of improving human nature is the natural progression from secular humanism and the Enlightenment. The combination of science, reason, technology and the understanding of the human as a universalized, individual subject lead, in Bostrom's understanding, to a belief that we can act not only upon the world but also on ourselves. That the techne that allows us to have mastery over the environment can and should also allow us to have mastery over our selves. Genetic engineering, information technology (increasingly biology is seen as a branch of IT, especially with the success of the human genome project), fully immersive virtual reality, nanotechnology, artificial intelligence, and others will give us greater control. We've always sought control over our bodies and our mental states and moods. According to transhumanists the distinction between the two kinds of control is one of degree and not kind.

In a paen to the wonders that we may visit upon ourselves Bostrom seems to give away his argument. "Ultimately," he says, "it is possible that such enhancements may make us, or our descendants, 'posthuman', beings who may have indefinite health-spans, much greater intellectual faculties than any current human being - and perhaps entirely new sensibilities or modalities - as well as the ability to control their own emotions" (203). He seems to suggest that transhumans may have sensibilities or modes of embodiment that may make it difficult to see them as human. This is the fear of the group he calls the Bioconservatives, the two most prominent being Leon Kass and Francis Fukuyama.

The bioconservatives fear that there is something uniquely human even though we cannot say exactly what it is. Fukuyama calls it dignity but he adopts a rather peculiar usage of the term: "something unique about the human race that entitles every member of the species to a higher moral status than the rest of the natural world" (Our Posthuman Future, 160). Bostrom correctly points out that Fukuyama seems to fear that if some decide to become enhanced then the competitive pressure would force more and more to seek out the relative advantages of the transhuman. Soon, those who do not have the means or the desire to be enhanced will be regarded as less than human; they will not be part of the new normal. Bostrom counters with a more conventional definition of dignity, one that brings transhumanists closer to posthumanists in doubling down on the human: dignity as moral status, in particular the inalienable right to be treated with a basic level of respect, and a second meaning of being honorable and worthy.

As posthumanists analyze and demonstrate as the need arises, respect for the other and who gets to be in the charmed circle of having dignity and worth is a changeable thing. I argue that given our shared biological substrate we will be unable to ever see another human as a complete other, that, indeed our respect for the other is dependent on there being some similarity. Earlier I mentioned artificial intelligence as one of the sciences on which transhumanist hopes depend. AI is what will enable us to translate our bodies into fully immersive virtual realities, will enable us to create our realities.

There has long been a hope in AI that by mimicking human intelligence there may arise a silicon-based life form, but if the AI is itself a copy of ourselves or helps us create virtual copies of ourselves, then we are all still human. Artificial life, on the other hand, exposes the humanist limit of both posthumanism and transhumanism. The researchers in Artificial Life begin with a bit of code and a couple of simple algorithms geared to survival and let the principles of evolution do the rest. The life that develops from these beginnings is more a "property of the organization of matter, rather than a property of the matter which is organized" is Langdon's understanding in his work with A-Life. Lyotard's observation that the "phenomonological body in its space-time continuum of sensibility and perception [is] necessary to produce 'human' thought" applies to inhuman thought (quoted in Farnell 76).

There may be a way to bring the posties and the trannies closer together. Most posthumanists such as N. Katherine Hayles, Donna Haraway, Sheryl Vint turn to the body as a counter to the

universalizing tendency of humanism. Gendered and racialized bodies are especially problematic in a parochial universalism but as Ross Farnell points out in his study of Greg Egan's novel Permutation City, human bodies process information in a particular manner and construct reality in accordance with that manner. The two would still remain philosophically divided however; the posthumanist prefering to remain becoming or put the human under erasure and the transhumanist prefering to move on to a better human.


Bostrom, Nick. "In Defence of Posthuman Dignity," Bioethics, Vol. 19, No. 3, pp. 202-214

Farnell, Ross. “Attempting Immortality: AI, A-Life, and the Posthuman in Greg Egan's Permutation CityScience Fiction Studies Vol. 27, No. 1 (Mar., 2000), pp. 69-91

Fukuyama, Francis. Our Posthuman Future. Picador: New York, 2002.

Harmonized Tariff Schedule:

Toy Biz

United States Court of International Trade:


Uppinder Mehan teaches at the University of Houston-Victoria and writes about postcolonial literature and theory and science fiction.


This is an interesting piece, but like many discussions of trans and post humanism it is seriously deficient in assuming that the technological descendants will be human. Humans are the descendants of nonhumans and might well have nonhuman descendants. Bostrom’s conception of the posthuman is parochial: really just that of an amplified human and arguably represents a tiny region of posthuman possibility space. See for example

“if some decide to become enhanced then the competitive pressure would force more and more to seek out the relative advantages of the transhuman. Soon, those who do not have the means or the desire to be enhanced will be regarded as less than human; they will not be part of the new normal.”

This is exactly what the gay marriage movement has spawned:  deciding with the help of law to become enhanced beyond human nature.  Whether genetics and nanotech can achieve this is a philosophical question.  When law purports to achieve it it is plain folly and abject totalitarianism.  In either case, to ignore the self-evident is a mistake. 

Things come-to-be from what they accidentally are not, but coming-to-be is not a movement, since the aformentioned privation of being is non-being per se; therefore, all coming-to-be is instead only a perfection.  This commits us to teleology and a definable essence, and suggests to me that all enhanced humans will remain humans, either invigorated or maimed.

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