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The Concept of 'Person' in American Legal Theory
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10371 |
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Modern Thought
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| Issue
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12 / 1986 |
5,877 Words |
| Author
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Jude P. Dougherty
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In a sense, there is no such thing as American legal theory. Like science, legal theory transcends national boundaries. The legal theory regnant in the United States has plural origins with deep roots in classical and medieval philosophy and more immediate sources in the British common law.
To seek the roots of the current legal meaning of 'person' is to open the history of Western political thoughts, for it is the political theory of a given period that gives flesh to the term. My approach consequently will be both historical and philosophical.
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. The distinction between the psychological and the ontological is noted because, as we shall see, which perspective is embraced makes a great deal of difference.
At least five distinct usages of the term 'person' can be identified in American legal theory. The first arises in discussions of justice since persons are obviously the focus of rights and duties. The second is found in property law, where the right to possessions depends for its rationale on an amplified 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 status of the slave. And the fifth comes to be in the context of Roe v. Wade, which overturned statutes in Texas and Georgia prohibiting abortion.
1) It is evident that a concept of person cannot be merely technical or legal. Concepts of person are grounded in considerations of human nature. The beliefs, for example, in the absolute moral worth of the individual, the spiritual equality of individuals, and the essential rationality of man--all legacies from the Middle Ages--have their roots deep in Greek and Christian thought. Repudiation of these ideas would entail the repudiation of much of our common law. It is the belief in the absolute moral worth of the individual that prevents the individual from being submerged, if not obliterated, in a conception of race, class, nation, or some other collectivity that regards the individual as a means rather than as an end in himself. This is reflected in discussions of justice which make a basic distinction between what an individual owes to other individuals by virtue of contractual obligation and what he owes to the community by virtue of the benefits he enjoys through membership. These debts are envisaged as reciprocal. Not only is the individual bound to honor the contracts into which he has entered, but the community itself is obligated to the members whose allegiance it commands. Obligation implies adherence to a norm, and a norm logically presupposes a rational being as the addressee or subject of the norm. Otherwise it would make no sense to distinguish between laws of nature that one
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