Looking for "Persons" in the Law

By Glendon, Mary Ann | First Things: A Monthly Journal of Religion and Public Life, December 2006 | Go to article overview
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Looking for "Persons" in the Law


Glendon, Mary Ann, First Things: A Monthly Journal of Religion and Public Life


Given the close relation between a country's law and its culture, it is only to be expected that there will be considerable variation in the way legal systems conceptualize human personhood. Like a nation's art, literature, songs, and poetry, law both reflects and helps to shape the stories we tell ourselves and our children about who we are as a people, where we came from, and what we aspire to be. In some countries, law's role in these narratives is relatively minor. But there is no place where law has played a more prominent role in a nation's conception of itself than in the United States.

The early Americans' peculiar attachment to the law was one of the first things Tocqueville noticed as he traveled about the new nation. "The spirit of the law," he wrote, "born within schools and courts ... infiltrates through society right down to the lowest ranks, till finally the whole people have contracted some of the ways and tastes of a magistrate." As the population has increased in size and diversity, the law has arguably become the principal carrier of the few values that command broad allegiance among citizens of many different cultural backgrounds.

In such a country, it was perhaps inevitable that legal images of personhood would exert a certain influence on the way we think about human nature. But concepts that may serve useful purposes within a particular discipline can be mischievous when they migrate into other contexts. Everyone understands, for example, that while "economic man" is a helpful tool for economists, a person motivated solely by rational profit maximization in real life would be a sociopath. Legal constructs need to be treated with similar caution, for as cultural anthropologist Clifford Geertz has pointed out, "Whatever law is after, it is not the whole story."

The predominant image of the human person in American law is of a creature who bears little resemblance to any human being that has ever lived: a free, self-determining, and self-sufficient individual. It's not that the image doesn't resonate. Comparative opinion studies tell us that Americans occupy one end of the world spectrum in the proportion who say they value freedom over equality, in the proportion who say they believe that success in life is determined by individual efforts, and in the proportion who attach more importance to freedom from state interference than to state guarantees of minimum subsistence in cases of need. According to a 2002 survey, the percentages of Americans who expressed such views were more than double the European figures. We are a gambling, profit-making, risk-taking people with a high rate of geographical, social, and marital mobility. But we also have an exceptional history of sociability, hospitality and generosity, banding together in all sorts of associations, welcoming strangers to our shores, and lending a helping hand even to our defeated enemies.

But a wholly self-sufficient person, Aristotle remarked long ago, is either a beast or a god. So how did such an incomplete concept about human nature gain such a prominent place in our legal story?

The eighteenth century was a time when revolutionaries and, later, statesmen in France and America were open to an unusual degree to the ideas of philosophers. That, perhaps, explains why the writings of the American founders contain a good deal of discussion about human nature. There are, in fact, dozens of references to "the nature of man" in the Federalist Papers. Those essays were strongly influenced by English political theorists who, in their efforts to delegitimate monarchical claims of divine right, had painted vivid pictures of man as free and solitary in an imaginary "state of nature." The state of affairs that writers like John Locke presented as "natural" bears little relation to what the social sciences tell us about human beings and simple societies. Family life and other forms of human sociability, not to mention women, are scarcely visible in their accounts.

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