By JUDE DOUGHERTY
In a sense, there is no such thing as American legal theory. Like science, theory transcends national boundaries. The legal theory in the United States has deep roots in classical and medieval philosophy and more immediately in the British common law. To seek the roots of the current legal meaning of “person” is to open the history of Western political thought, for it is the political theory of a given period that gives flesh to the term.
In fact, the Greek and Roman sources of the Western concept of person are well known. Boethius’ famous definition has been repeated ever since the sixth century when in the context of a discussion of the Trinity, he defined person, using Aristotelian terminology, as “a supposit of a rational nature.”
Throughout most of Western history, discussions of the concept of person have usually taken place within a philosophical or theological context. This remained unchanged until the twentieth century, when a shift occurred from the ontological to the psychological — a shift reflected in the dicta of the courts as they began to place more confidence in psychology and the social sciences than in philosophical discussion. Given this sequence of events, to approach the topic historically is to approach it metaphysically, though only up to a point. Which perspective is taken, psychological or metaphysical, makes a great deal of difference.
At least five different usages of the term “person” can be detected in American legal theory. The first arises in discussions of justice, since persons are obviously the locus of rights and duties. The second is found in property law, where the right to possession depends on an expanded notion of person. The third appears as the notion of person is extended to the corporation. The fourth arises historically in debates concerning the legal rights of the slave. And the fifth arose in the context of Roe v. Wade and Doe v. Bolton, which overturned statutes in Texas and Georgia prohibiting abortion.
Alasdair McIntyre, in what has become something like a modern classic, Whose Justice, Which Rationality? has shown the difference a perspective can make. Emile Durkheim and Auguste Comte who stand at the birth of social science and psychology were both empiricists in the mold of David Hume. As McIntyre has shown clearly, one can be a disciple of David Hume or of Aristotle, but one cannot be a disciple of both.
Furthermore one cannot be either without appropriate social organizations, or without a congenial polis.
In 1962, Lord Patrick Devlin reminded his countrymen that if the morals of the community change, the laws will change too. He showed that the concept “person” cannot be merely technical or legal. Concepts of person are grounded in considerations of human nature, in the belief in the absolute moral worth of the human being, in the spiritual equality of individuals, and in the essential rationality of man.
These concepts are all a legacy from the Middle Ages, with roots deep in Greek and Christian thought. Repudiation of this legacy would entail the repudiation of much of British common law, and the same could be said of other Western nations.
In the United States common law is grounded in the belief in the absolute moral worth of the person that prevents the individual from being submerged if not obliterated in a conception of race, class, national origin, or some other collectivity that regards the individual as a means rather than an end. This is reflected in discussions of justice which makes a basic distinction between what an individual owes to other individuals by virtue of contractual obligation, and what he owes his community by virtue of the benefits he enjoys through membership.
Recognition of personal autonomy is the ultimate grounding of one’s legal standing — that is, of what ought to be acknowledged or respected by others and protected by the law. “Autonomy” means that a person can never become a mere means for the community. The American Republic was founded on the assumption that the state has the obligation to safeguard rights which it recognizes but does not confer. No matter how rights are conceived or how numerous they are proclaimed to be, they arise as claims against the positive or civil law. They are presented as personal entitlements which the community, though it may have the power to do so, is not free to abrogate. The recognition of rights follows upon a natural law concept of person and a judgment, of what leads to personal fulfillment.
Today, intellectual elites war against the principles on which the United States Constitution was founded. We hear arguments under the influence of Durkheim’s social theory that claim a person must be thought of as a social production. Some authors claim that to be considered a person one must be socially defined, a publicly visible embodied being, endowed with powers and capacities for public meaningful action. This excludes the child in utero. Such a definition contrasts sharply with the notion of person embodied in American law until Roe v. Wade.
For Durkheim crime is to be understood as a serious affront against the “collective experience,” that is, “the common morality which holds men together when sentiment is strong and precise.” The collective conscience need not be correct or dictated by any natural law. It is sufficient that the value it promotes be held strongly by the community.
One can give a list of cases where a commonsense notion of person was accepted in American courts. Most often “person” was defined for legal purposes as a human being, distinguished from a thing or a lower animal.
Courts commonly recognized that an unborn child falls within the meaning of person. To cite one example, the Kentucky Court of Appeals in Mitchell v. Couch found on behalf of the child en ventre if he sustained harm as a result of negligent injury done to his mother. The court said in its 1855 opinion: “A viable unborn child is an entity within the general meaning of the word ‘person’ because biologically speaking the child is a presently existing person, a living human being.”
From an empiricist point of view, such a ruling would have been impossible.
The question to be confronted is whether empiricism, the philosophical materialism of Durkheim and Comte and their successors, can support biblical morality and the law we have known. Social conscience takes a hundred-degree turn when empiricism is affirmed and the metaphysical is denied. Under such a construction there are no rights anterior to law and no rights contrary to law.
The implications for tort and contract law are enormous. Attribution of blame is attributed without causal evidence. One generation is held accountable for the deeds of another. Retribution it is called. Changing attitudes among legal theorists and decades of judicial activism have not only made tort litigation a risky business for industry, but have altered the traditional role of law in society and have obfuscated the purpose of law in general
There is nothing new here. All of this is well known, but given present social conflict and current political debate, a few basic principles and facts are worth recalling. It is commonly acknowledged that candidates for office will say almost anything to appeal to their “base” — that group of people willing to spent time, money, and energy to secure their candidate’s election. Currently, the “base” for one of the parties appears to consist of individuals who recognize “persons with rights” only insofar as they challenge the majority of society. We find lists of things that must be done for the mosaic minority by the majority whose rights are utterly discounted.
Not even Durkheim would have gone that far.
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