The perennial question posed by the philosophically-inclined lawyer is 'What is law?' or perhaps 'What is the nature of law?' This book poses an associated, but no less fundamental, question about law which has received much less attention in the legal literature. It is: 'Who is law for?' Whenever people go to law, they are judged for their suitability as legal persons. They are given or refused rights and duties on the basis of ideas about who matters. These ideas are basic to legal-decision making; they form the intellectual and moral underpinning of legal thought. They help to determine whether law is essentially for rational human beings or whether it also speaks to and for human infants, adults with impaired reasoning, the comotose, foetuses and even animals. Are these the right kind of beings to enter legal relationships and so become legal persons. Are they, for example, sufficiently rational, or sacred or simply human? Is law meant for them? This book reveals and evaluates the type of thinking that goes into these fundamental legal and metaphysical determinations about who should be capable of bearing legal rights and duties.
It identifies and analyses four influential ways of thinking about law's person, each with its own metaphysical suppositions. One approach derives from rationalist philosophy, a second from religion, a third from evolutionary biology while the fourth is strictly legalistic and so endeavours to eschew metaphysics altogether. The book offers a clear, coherent and critical account of these complex moral and intellectual processes entailed in the making of legal persons.
Ngaire Naffine is Professor of Law at the University of Adelaide, Australia.
1. The Question: Who is Law For? Is this the Right Question? The Question Disputed Matching Law to Life: the Question Affirmed Competing Views of Human Nature and their Implications for Law The Concept of the Person and its Problematic Nature Instability of the Concept of the Legal Person Social Significance of the Concept and its Implications for Justice Law's Changing Community of Persons The Mission Finding the Legal Person 2. The Debate: Legalists v Realists The Positions The Legalists The Metaphysical Realists The Rationalists The Religionists The Naturalists Setting the Boundaries of Personhood Disciplinary Influences The Thinkers and their Creation Stories Etymology of Persons 3. Strictly Legal Persons The Person as a Purely Legal Creation Law as a Closed System The Legal Person as Legal Language Use Hart and Wittgenstein Keeping the Legal Legal 4. Loosening the Strictures The Legal Person as a Cluster Concept Division Between Persons and Property Chameleon Nature of Personality Strictly Conceived The Legalist's Person in the Courtroom Can We be Strict about Persons? Hohfeld on Legal Conceptions Real Uses of Persons 5. Moral Agents and Responsibility Creation Story The Legal and the Philosophical Person Influence of Kant Gray on Legal Persons and the Rational Will Will Theory of the Person Respect for Persons and Responsibility The Legal Subject of Criminal Law Two Criminal Legal Thinkers The Uncompromising Michael Moore John Gardner: the English Rationalist Are We Really So Rational? 6. Persons of Limited Reason Ronald Dworkin on the Patient as Author of a Life Safeguarding the Future Person: Dena Davis and the Child's Right to an Open Future Persons in Training: Mrs Gillick and the Contraceptive Advice Rationalists on Non-persons Recognising Reason Emotional Intelligence 7. The Divine Spark: the Principle of Human Sanctity The Human Rights Movement and the Revival of Belief in Human Preciousness Ronald Dworkin on Human Sanctity The Human Person and the Catholic Church John Finnis on Law's Person Implications 8. Human and Non-human Animals: the Implications of Darwin What We might have Expected after Darwin Intelligent Design and Kitzmiller v Dover Humans as Animals Dismantling the Human/Animal Divide Peter Singer and the Levelling of Humans The Cases of Baby Theresa and Baby Fae Animal Lawyers and the Elevation of Animals Steven Wise and the Intelligent Apes Gary Francione and the Abolition of Property in Animals Legal Response Cass Sunstein: Questioning the Species Divide Buttressing Humanity 9. Embodiment: Humans as Biological Beings Kant and the Body in Law Principle of Bodily Integrity Making Sense of the Legal Body: the Compromised Naturalism of Ronald Dworkin Dawkins v Dworkin Humbling Naturalism of Gray and Fernandez-Armesto Embracing our Creature Status: Moral Philosophers and Legal Feminists Jennifer Nedelsky and the Bounded Self Reconciling Agency and Animality 10. The Myths We Live By Cash Value Four Metaphysical Approaches A Fifth Approach: the Relational Person Legal Philosophies as Acts of Faith and Incommensurable World Views Distinctive Nature of the Legal Enterprise Why Law is Still Flexible Should Personality be Severed from Human Beings? Implications for Justice The Myths We Live By