Looking for “Persons” in the Law

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. The “new science of politics” had much more to say about conflict among human beings than about cooperation.

The authors of the Federalist Papers followed Locke and his forerunner Hobbes in placing greater emphasis on the dangers human beings pose to one another than on the human capacity for cooperative living. Though acknowledging that there are “qualities in human nature which justify a certain portion of esteem and confidence,” they asserted that “men are much more disposed to vex and oppress each other than to co-operate for their common good.” In their view, it is the dangerous propensities of human beings that give rise to the need for government and that pose a constant threat to governments once established. The U.S. Constitution was devised, accordingly, with structures to hold selfishness and ambition in check, and to channel potentially divisive energies into the pursuit of wealth, comfort, and security.

Mistrust of human nature went hand in glove with mistrust of government, which, after all, is composed of men. In the most famous passage of The Federalist, Madison wrote:

It may be a reflection on human nature that such devices [as checks and balances] should be necessary to control the abuses of government. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, no external or internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

A careful reading of the Federalist Papers, however, discloses something puzzling about its vision of personhood. On the one hand, the authors took an exceedingly dim view of human nature, saying things like: “If impulse and opportunity be suffered to coincide, we well know that neither moral nor religious motives can be relied on as an adequate control.” Yet, at the same time, they recognized that the success of the democratic experiment would be crucially dependent on the support of virtuous and public-spirited citizens and statesmen. (Indeed, James Madison specifically acknowledged that republican government required a higher degree of civic virtue than did any other form.)

So how can one explain the framers’ apparent unconcern about where they would find citizens with the qualities of character their innovative design for self-government demanded? The simplest and most probable explanation is that they relied on the small structures of civil society-families and tight-knit communities-to inculcate the republican virtues of self-restraint and care for the common good. The Founding Fathers had good reason to assume they could take the necessary cultural conditions for granted. The non-slave population of the thirteen states (about three million people) was mainly composed of farmers, merchants, and artisans who lived in self-governing townships bound together by widely shared moral and religious beliefs. Biblical religion was pervasive, as were habits of associating for all sorts of cooperative ventures, from building a neighbor’s barn to keeping the town roads and fences in repair.

The apparent contradiction between the ideas about man informing the Constitution and the sociable reality of life in the colonies diminishes when one recalls that the Constitution was constructed as a framework for a federal government. It specifically provides that all powers not specifically delegated to the federal government are reserved to the states. The laws of the states, at the time of the founding and until the mid-twentieth century, were informed by more capacious notions of personhood, influenced in countless ways by biblical and classical understandings of human nature. Those local arrangements (which in some states even included established churches) were promoted and protected by the Constitution’s federal structure. So, even though “fraternity” (or, as we would say today, “solidarity”) was absent from the political vocabulary of the founders, habits of cooperative living were fostered in numerous ways by local laws and customs.

As the population expanded, however, common understandings grew fewer and national law assumed more importance as a carrier of values. The stage was set for ideas that had served well enough for the purpose of establishing limited government to migrate from political theory into law. One of the first legal commentators to remark critically on the unusual degree of individualism in American law seems to have been the twentieth-century legal philosopher and comparatist Roscoe Pound. Pound noted that the idea of an “isolated individual was at the center of many of our most significant legal doctrines.”

While all modern legal systems could be said to be individualistic in comparison to premodern law, Pound regarded American legal thought as distinguished by “an ultra-individualism, an uncompromising insistence upon individual interests and individual property as a focal point of jurisprudence.” He speculated that this was due to a unique fusion of Puritanism with the pioneer spirit and with eighteenth-century ideas of natural right. These factors combined, he wrote, to give an “added emphasis to individualist ideas in the formative period of our legal system that served to stamp them upon our theory and practice and keep them alive and active,” even after English legal thought had taken a different direction.

Thus did political ideas originating in English power struggles between Crown and Parliament acquire the status of myth and symbol in the former English colony. The view of man as naturally independent, together with the idea of government as involving a necessary but regrettable sacrifice of some, but not all, of our natural liberty, fueled the mistrust of government that has long been characteristic of American constitutionalism. Even after the United States established its social security system in the 1930s, and even though the power of the federal government has vastly expanded, the legal system has never accepted the positive vision of an affirmatively acting state that informs many constitutions in the Romano-Germanic tradition. The American rights tradition has long emphasized political and civil liberties, framed as “negative rights” (restraints on government), but has not incorporated the post-World War II trend in many other liberal democracies to accord constitutional status to certain programmatic obligations on the part of the state toward citizens.

The American legal system thus displays several distinctive features when compared with continental European systems. The American rights tradition confers its highest priority on individual freedom from governmental constraints. Rights tend to be formulated without explicit mention of their limits or of their relation to responsibilities or to other rights. Personal freedom is protected by procedures but lacks an explicit normative structure.

A more complex dialect of freedom and responsibility characterizes the dignitarian rights language that one finds in several post-World War II documents-such as the German 1949 Basic Law and the 1948 Universal Declaration of Human Rights, as well as in the social teachings of the Catholic Church as elaborated by Popes John XXIII and John Paul II. In these documents, specific rights are typically formulated so as to make clear that they are related to one another, that certain groups as well as individuals have rights, and that political entities, as well as citizens, have responsibilities. Rights are envisioned not only as protected by fair procedures but also as grounded and situated in a normative framework based on human dignity. The first article of the postwar German Constitution, for example, provides this: “The dignity of man shall be inviolable. To respect and protect it shall be the highest duty of the State.”

Underlying these divergent concepts of rights are somewhat different notions about the person who is endowed with rights. While the rights-bearer in the U.S. constitutional tradition tends to be imagined as an independent, highly autonomous, self-determining being, the dignitarian systems tend to make explicit that each person is constituted in important ways by and through his relations with others. For example, American judges and lawyers frequently quote former justice Louis Brandeis’ dictum that the “most comprehensive of rights and the right most valued by civilized men” is “the right to be let alone” (an idea that would sound rather strange in many parts of the world). The German Constitutional Court, by contrast, takes a more relational view of personhood, as expressed in its often-cited 1954 decision stating: “The image of man in the Basic Law is not that of an isolated, sovereign individual. The tension between the individual and society is resolved in favor of coordination and interdependence with the community without touching the intrinsic value of the person.”

A postmodern touch was added to the legal portrait of the lone rights-bearer in 1992 when a plurality of U.S. Supreme Court justices advanced a vision of the self as invented and reinvented through the exercise of the individual’s will, limited by nothing but subjective preference. Ruling on the constitutionality of a state abortion law in Casey v. Planned Parenthood, the justices shifted the ground for abortion rights from privacy to liberty. To require a married woman to notify her husband of her intent to have an abortion, they held, would violate a woman’s liberty. In so holding, they announced a theory that endows human personhood with the freedom “to define one’s own concept of existence, of the meaning of the universe, and of the mystery of human life.” That freedom, they said, “lies at the heart of liberty” because “beliefs in these matters could not define the attributes of personhood were they formed under compulsion of the State.” Despite criticisms that such an unbounded definition of liberty, if taken seriously, would undermine the basis of all law, a majority of the Court reaffirmed it in 2003 in Lawrence v. Texas, the decision invalidating penalties for homosexual sodomy.

The Court majority’s current notion of freedom is thus quite distant from understandings of freedom that stress the dignity of the person as actualized through relations with others and through the development of one’s ability to exercise freedom wisely and well. Compare, for example, the German Constitutional Court’s statement in a 1977 case that “freedom within the meaning of the Basic Law is not that of an isolated and self-regarding individual but rather that of a person related to and bound by the community.”

Conspicuously missing from both the American and the German courts’ formulations is attention to how the exercise of our freedoms affects the kinds of persons we become, and the way in which the choices of citizens collectively affect the kind of society that we are bringing into being. Perhaps that is too much to expect. But in a legalistic, pluralistic society like that of the United States, the silences of the law can speak.

The highly individualistic concept of personhood advanced by Supreme Court majorities in the late twentieth century both reflected and legitimated attitudes that were then gaining ground in American culture-especially elite and media culture. A latter-day Tocqueville might observe that the sturdy self-reliance and independence of mind he so admired have been eroded in many quarters by understandings of liberty as individual freedom from all forms of social and legal constraint.

There are, of course, social and legal forces that serve as countercurrents to excessive individualism in American law. Nevertheless, many citizens in our legalistic and heterogeneous society tend to regard the Supreme Court’s pronouncements not merely as legal rulings but also as moral teachings grounded in the country’s most sacred civic document. Thus, when nine justices in black robes (or even a majority of them) solemnly announce that something is legally permissible-or constitutionally required-many people take such decisions as assurance that the behavior in question is morally acceptable as well.

Manifestations of an increasingly “ultra-individualistic” anthropology can be traced in numerous laws and policies relating to the family, schools, religion, and voluntary associations. American church-state law since the 1940s, for example, has been so influenced by the notion of religion as a private affair “between an individual and his God” that it has often failed to protect the associational and institutional dimensions of religious freedom. In private law, the influence of the myth of the self-sufficient individual connected to others only by choice is strikingly illustrated by two doctrines that are quite widely at variance with common sense, one in family law and the other in tort law.

Modern, gender-neutral American divorce law has accepted the principle that economic self-sufficiency should be the goal for both spouses after marriage comes to an end. This unrealistic principle leaves one large class of women, namely mothers, with fewer legal protections than they would have in most other countries at comparable levels of economic development. The United States is more lax than France and Germany in requiring former providers to fulfill their support obligations and less generous than the Nordic countries where public assistance to single mothers is concerned.

A second example concerns the American tort-law doctrine that a person has no legal duty to come to the aid of another person in peril, even if he can do so without harm to himself. The doctrine, as it exists in all but a handful of states, is so profoundly at odds with ordinary moral intuitions that it comes as a shock to most law students. Yet, unless persons have entered into a legally recognized relationship with one another, our tort law treats them as “strangers” having no duty to one another except to avoid the active infliction of harm. The terminology is telling: The drowning man and I are “strangers” rather than fellow citizens or fellow members of the human family. I have no legal obligation to toss him a lifeline.

The Romano-Germanic legal systems, by contrast, impose both civil and criminal penalties for a failure to rescue where the deed could have been accomplished without undue risk to the rescuer. The practical significance of this difference is small, for actual cases of failure to rescue rarely arise. But as a leading French scholar has pointed out, the chief importance of the legal duty to rescue is pedagogical: It is “to serve as a reminder that we are members of society and ought to act responsibly.” By the same token, one might speculate that the chief importance of legal silence on this point in the United States is that it represents a lost opportunity to reinforce the sense of being part of a community for which all share a common responsibility.

In public law, there is a precise parallel to the absence of a duty to rescue, as illustrated in the 1989 case of DeShaney v. Winnebago County, where a little boy and his mother sued a state social-services department for the brain damage he suffered after state agents failed to remove him from the home of his violent father in whose custody they had placed him. The Supreme Court affirmed the denial of liability in that case, saying that the Constitution imposes no duty on government to protect the health and welfare of its citizens, “even where such aid may be necessary to secure life, liberty or property interests of which the government itself may not deprive the individual.”

In another such case, where police negligently failed to remove a man from a burning automobile, lawyers argued that the constitutional right not to be “deprived of life, liberty or property without due process of law” included the right to receive basic services from the state. But that claim of a positive right was shot down by Judge Richard Posner of the Seventh Circuit Court of Appeals in no uncertain terms: “The problem with this argument is that the Constitution is a charter of negative rather than positive liberties . . . . The men who wrote the Bill of Rights were not concerned that government might do too little for the people, but that it might do too much to them.”

The most significant countervailing example to the individualistic themes I have emphasized is probably that of our country’s social-assistance programs. Yet even in the social-welfare area, an ingrained ideal of self-sufficiency shows its power by fostering a certain institutionalized disdain for persons who cannot be self-sufficient. That disdain for dependency may well explain why social assistance is so often offered grudgingly and administered disrespectfully.

In recent years, proposals have emerged that are more consistent with our traditions of generosity. Various initiatives would test the proposition that many social services could be delivered more efficiently, effectively, and humanely through the intermediate institutions of civil society, including faith-based institutions, than by the government. But the prospects for such programs are uncertain. In many places, hyper-individualistic understandings of religious freedom have blocked these experiments or impeded their progress. Moreover, as Pope Benedict XVI pointed out in his first encyclical, Deus Caritas Est, there is a risk that the religious institutions participating in such programs will relinquish or be forced to relinquish their distinctive character.

Happily, in the United States, our practice is often better than our theory. But theoretical concepts can wreak havoc on good practices when they migrate from their proper context into everyday life. The American framers’ concept of the human person, though incomplete from a philosophical or anthropological point of view, was not inappropriate for the limited purpose of designing a federal framework within which civic life could flourish under conditions of ordered liberty. What needs to be kept in sight (but unfortunately is too often forgotten) is that the liberal principles enshrined in the United States’ founding documents were political principles that were never meant to serve as moral guides for all of social and private life. Those principles, with their encoded image of the free, self-determining individual, grounded important and lasting political achievements: the establishment of a republic with democratic elements, the protection of liberty, and the promotion of individual initiative. Moreover, I believe a convincing case can be made that the Constitution contains implicit principles of subsidiarity that could have fostered the development of stronger moral and juridical foundations for the American version of the democratic experiment. But the concept of subsidiarity is little understood in the United States, whereas the tendency to think in terms of individual, state, and market without intermediaries is very strong.

The framers understood perfectly well that the success of the democratic experiment would depend on the habits and attitudes of the citizenry, but they relied on social, rather than legal, norms and institutions to inculcate the necessary qualities. Their vision for America was that of a people “free by the laws, and restrained by the manners” (as Montesquieu once described the English). But, as the population expanded and became more diverse and mobile, common understandings grew thinner, and national law assumed more importance as a repository of common values.

With the expansion of federal power in the twentieth century and the corresponding limitation of the power of state and local governments, the ability of citizens to have a say in shaping those values has diminished. In the latter half of the twentieth century, the Supreme Court removed a great many issues from ordinary local democratic political processes. Initially, this was done to protect racial minorities. But, in later cases, such as those involving abortion, education, and religion, courts drastically restricted the rights of citizens in general, and parents in particular, to help establish, through legislation, the conditions under which they live, work, and raise their children. This experience in the United States should serve as a cautionary example for other nations.

With the growing influence of legal-as distinct from social-norms, the flaws in legal concepts of personhood began to be more problematic, as did the founders’ silence regarding matters they had taken for granted or left up to the states (the family, the common good, the responsibilities that are correlative with rights). Ideas that had been useful for the purpose of establishing limited government began to pervade social discourse, to the detriment of the cultural supports on which a liberal democratic regime depends. Decreasingly tempered by social norms, legal structures designed to channel human energy into the pursuit of private satisfactions may have fostered materialism and personal alienation, discouraging active citizenship.

By embracing the notion of individual autonomy as fully as it has, and by ignoring or downgrading healthy forms of interdependence, the U.S. legal system may have rendered our society less hospitable to the weak, the vulnerable, and the dependent-as well as to those who care for them. Certainly it has distanced legal norms from the lives that many Americans are struggling to live. There is often, as Charles Taylor has observed, “a lack of fit between what people officially and consciously believe, even pride themselves on believing, on the one hand, and what they need in order to make sense of some of their moral reactions, on the other.”

I would not wish to be understood as devaluing the sturdy self-reliance and freedom-loving individualism that is so much a part of American culture. The concern I have expressed here is that the ascendancy of law as a carrier of common values has promoted the spread of hyper-libertarian, ultra-individualist ideas that can undermine the very conditions that are essential for the maintenance of a free republic.

The best hope for an eventual correction, I would suggest, resides in that aspect of human personhood to which John Paul II referred in the conclusion to his great encyclical Fides et Ratio: “I ask everyone to look more deeply at man, whom Christ has saved in the mystery of his love, and at the human being’s unceasing search for truth and meaning. Different philosophical systems have lured people into believing that they are their own absolute master, able to decide their own destiny and future in complete autonomy, trusting only in themselves and their own powers. But this can never be the grandeur of the human being.”

The authors of the Federalist Papers, for all their misgivings about human nature, would not have written those essays explaining the new Constitution to the public if they did not believe that human beings are engaged in an “unceasing search for truth and meaning.” They would not have appealed to reason if they did not believe their fellow citizens were capable of making reasoned judgments. The ability of men and women to reflect on their existence, to make judgments concerning the good life, to review those judgments in the light of reason and experience, and to take responsibility for their decisions is one on which all successful legal systems depend. That human capacity for reflection and responsible choice is what makes the difference between being carried along by events and being able to shift probabilities in a more favorable direction. It is what enables us to use legal, economic, sociological, and political concepts for what they are worth without becoming their slaves.

Mary Ann Glendon is Learned Hand Professor of Law at Harvard University.