Being Before the Law

James French 3L

Being Before (the) Law

Independent Study Paper

Being Before (the) Law: Toward an Existential Definition of the Person in U.S. Law James French 3L, New York Law School I. U.S. V. MACIEL-ALCALA1 AND THE STRUGGLE FOR (LEGAL) MEANING By any initial estimation, U.S. v. Maciel-Alcala should have been a rather unassuming case, if it had even reached the Ninth Circuit and generated a reported decision at all. The underlying facts barely manage to eke out three paragraphs: One Alberto Maciel-Alcala, a Mexican citizen, allegedly stole the identity of California resident Ramon Ramirez, thereby obtaining a host of fraudulent documents including a U.S. passport.2 Upon returning from a subsequent trip to Mexico, Defendant Maciel-Alcala was detained and charged with attempting to pass himself off as a U.S. citizen as well as aggravated identity theft—a federal crime which provides for an “enhanced” penalty under 18 U.S.C. §1028A.3 Pleading guilty to the immigration-related charges, Mr. Maciel-Alacala at the last moment pulled the proverbial rabbit out of his hat, moving for acquittal on the ground that the government had failed to meet its burden of proof under the statute.4 Maciel-Alcala argued that the wording of the statute requires that the government prove the defendant knew that the victim of the theft was alive and not deceased, something Maciel-Alcala argued the government had failed to establish (and which the government conceded).5 It was at this point that the case became interesting; the California federal district court was now in the unenviable position of having to scrutinize the meaning of “another person” (which the court deemed synonymous with just “person”) in §1028A, knowing full well that criminal statutes are to be strictly and narrowly construed.6 The lower court decided for the government on the matter, interpreting the statute to include „persons‟ both living and dead, and the defendant (enterprisingly) appealed. As the Ninth Circuit conducted its de novo review7 the complexity of the issue became readily apparent. “Person,” the court lamented, invokes an incredibly broad array of „entities‟, conditions of humanity, and accepted fictions of law, which is to say nothing of the exponential numbers of legal and philosophical debates attendant thereto. As regarded the specific question of whether “another person” means another living or both living and deceased person, the court found no refuge in case law nor in competing dictionary definitions.8 Statutory definitions (or lack thereof) also proved of no avail.9 As the court noted, some federal statutes specified only
1 2

612 F.3d 1092, cert. denied by Maciel-Alcala v. U.S., 131 S.Ct. 673 (9th Cir. 2010). Id. at 1094-5. 3 Id. 4 Id. 5 Id. 6 This is connected in some measure to the “Rule of Lenity.” See, for e.g., U.S. v. Nader, 542 F.3d 713, 721 (9th Cir.2008). 7 Federal circuit courts have authority to conduct de novo review of questions regarding statutory interpretation. Id. at 1095, citing Rodriguez v. Smith, 541 F.3d 1180, 1183 (9th Cir.2008). 8 The court compared nearly every major English dictionary of note from the American Heritage 4 th Edition to the Oxford English Dictionary 2nd to Webster‟s Third International and Collegiate 10th Edition, all and none of which offered definitive answers; Black‟s Law Dictionary 8th Edition was unsurprisingly unhelpful as well. Id. at 1096. 9 Not surprising given that many federal statutes when they define „person‟ at all simply list a number of „entities‟ that are meant to be included such as corporations, states, foreign governments, government agencies, estates of deceased persons, etc. See, for e.g., 1 U.S.C.A. § 1 (Thomson Reuters, 2010). Page 1 of 17

James French 3L

Being Before (the) Law

Independent Study Paper

living persons, others expressly included both living and non-living (i.e., dead) persons, while the vast majority say nothing at all either way.10 Finally declaring the statute “ambiguous” on this point, the court expanded its zone of interpretive comfort, finally turning to legislative history and other evidence of Congressional intent to tip the scale of authorities toward one result or another. Reviewing several comments made during contemplation and drafting of the bill which was to become law, the court finally concluded that the statute encompassed both persons living and deceased as known to the perpetrator of the identity theft. In so doing, the court seemed to rely much more on logic and an analysis of alternatives than any actual authority. The Ninth Circuit seemed to decide that the risk of defendants raising lack of knowledge of their victim‟s animateness as an affirmative defense in these cases was untenable, constituting an incredibly obvious loophole which Congress could not in good sense have intended.11 Certiorari to the Supreme Court was subsequently denied.12 *** What does U.S. v. Maciel-Alcala demonstrate, if anything? In terms of its overall historical significance, it likely matters little: The case is at base simply an example of skillful lawyering and artful analysis which forced the circuit court to further circumscribe yet another statutory ambiguity. Maciel-Alcala is highly semantic, a play on words which only because of the seriousness of a federal aggravated identity theft conviction cannot be so easily dismissed. Hardly noteworthy by any protracted review of federal caselaw. Yet, from another angle of great import to the proceeding discussion, Maciel-Alcala is one of the clearest examples to be found of what a conspiracy theorist might call the greatest latent ambiguity in (U.S.) law: The definition of person, or more accurately, the lack of such a definition. Maciel-Alcala is but a phenotypic manifestation of a genotypic absence, and it is not alone. Court after court has struggled with the definition of „person‟ in cases both high and low profile. As an example of the former, take a case like Webster v. Reproductive Life Services, one of a series of challenges to state regulation of abortion which reached the Supreme Court in the last few decades.13 The court here was presented with a statute which not only prevented the use of state operated and/or funded facilities for “non-therapeutic” abortions but in its very preamble declared quite literally that “The life of each human being begins at conception.”14 Examination of the oral arguments in Webster confirm that it was indeed the very definition of “human being” which was being litigated. In one instance, the court posed the question outright: “… I am not sure whether we have a simple, precise definition of a human being…. Would you give us a definition of human being?,” to which the respondent (who was seeking leave to file an amicus curiae brief on behalf of the Plaintiff) could only answer, “A human being is a member of our species.”15 In less obvious and heated circumstances, various courts have opined on different

10

Maciel-Alcala at 1097, comparing, inter alia, 15 U.S.C. §8131(1(A) (the “cyberpiracy” statute, specifying „living‟ persons) with 18 U.S.C. §876(d) (part of extortion statute, includes threats to “reputation of a deceased person”) with 15 U.S.C. §1052(a) (part of trademark statute, covers disparagement of “persons, living or dead…”). 11 Id. at 1101. 12 Maciel-Alcala v. U.S., 131 S.Ct. 673 (U.S. Nov. 29, 2010). 13 492 U.S. 490 (1989). 14 Id. at 501. 15 Motion for Leave to File a Brief as Amicus Curiae on Behalf of Webster, 1989 WL 1127683 at 42-3 (U.S.), Webster v. Reproductive Health Services, 109 S.Ct. 3040 (1989). Page 2 of 17

James French 3L

Being Before (the) Law

Independent Study Paper

elements of personhood, such as the Kansas federal district court in Jantz v. Muci.16 This lone Kansas federal district court took it upon itself to define “personhood” in terms of certain immutable qualities, of which the court said sexuality (or sexual orientation) is a “defining trait.”17 II. INTRODUCTION A. Legal Treatments of Different Entities as (or as not) “Persons” As implicit as the concept of person is in the non-legal world—the everyday world as well as that of business, philosophy, and the academic „humanities‟ generally—it is equally if not more so in the legal. „Person‟ is of course defined in a number of situations usually highly specialized or equally specific, making no claim to comprehensiveness. Title 1 §1 of the United States Code purports to define “person” (and “whoever”) but instead merely lists an nonexclusive list of entities which will be treated as persons (as who): “[C]orporations, companies, associations, firms, partnerships, societies, and joint stock companies” and then, with remarkable brevity, “individuals.” And, of course, this definition appears in a list of other terms which apparently needed to be alternatively rescued from or returned to their common sense meanings (“words importing the masculine gender include the feminine as well”, “words importing the singular include and apply to several persons, parties, or things”18). What is perhaps more revealing than definitions of person literally—which are ubiquitous in statutes governing businesses and their officials, government agencies and officers, and securities regulation—are statutes and caselaw which address „special‟ or „qualified‟ persons, namely children and juveniles, mentally incompetent individuals, and (non-human) animals. 1. Children As American Jurisprudence on Infants succinctly states, children (or “minors”, “infants”) are considered in law to be “persons” but who are “under a legal disability,” lifted once the child reaches “majority” (i.e., adulthood), an age usually defined statutorily.19 As an example of a specific jurisdiction‟s treatment of the child under the law, New York Jurisprudence summarizes the rule of New York as holding that a child is “universally considered to be lacking in judgment, since his or her normal condition is that of incompetency [emphasis added].”20 While this otherwise might read as indicating the child has a particular quality of incompetence inherent in the (physical, mental) nature of childhood. Yet, reading further, the child‟s alleged „incompetence‟ seems to be tied to the child‟s “lack of the adult’s knowledge of the probable consequences of his or her acts or omissions [emphasis added]” as well as the “capacity to make effective use” of such knowledge if the child possessed it.21 Of course, infancy operates as a presumption when used as a defense (where the burden of „proving‟ infancy is often on the infant—i.e., on her or his guardian and counsel22).
16 17

759 F.Supp. 1543, rev’d and remanded by 976 F.2d 623 (D.Kansas 1991), Id. at 1548. 18 1 U.S.C.A. § 1 (Thomson Reuters, 2010). 19 42 Am. Jur. 2d Infants §1 (Thomson Reuters, 2010). 20 67 N.Y. Jur. 2d Infants, Etc. §3 (Thomson Reuters, December 2010). 21 Id. 22 See, for e.g., Levy v. Abramsohn, 39 Misc. 781 (Sup. Ct., N.Y. County, 1902). Page 3 of 17

James French 3L

Being Before (the) Law

Independent Study Paper

These definitions and treatments evince a vacillation between treating children as actual persons but who are „merely‟ mentally (and physically) disabled and treating children as not „fully formed‟ and thus not entirely persons with all the dignities and rights and respect demanded by law and courtesy. 2. Incompetent Persons Various terms abound for those who fail to meet the criteria for the baseline sanity and stability demanded of „normal‟ adult persons; but regardless, in the modern view, those persons deemed incompetent are still held to be just that: Persons. For example, New York‟s Mental Hygiene Law refers to mental illness and developmental disabilities as afflictions upon those who would otherwise be “normal” persons: “A mentally disabled person is one who has a mental disability [emphasis added].”23 Here is perhaps one of the clearest examples of that second category of persons, Behavior, in operation. Throughout the same statute, for example, illnesses and disabilities are talked about as evidenced or manifested through (read: deviant) behavior. “ „Mental illness‟ means an affliction with a mental disease or mental condition which is manifested by a disorder or disturbance in behavior, feeling, thinking, or judgment … [emphasis added]”24; “ „Mental retardation‟ means subaverage intellectual functioning … [which] is associated with impairment in adaptive behavior [emphasis added]”25; “ „Developmental disability‟ means a disability of a person which … (a) … (2) is attributable to any other condition of a person found closely related to mental retardation because such condition results in similar impairment of general intellectual functioning or adaptive behavior…, and, … (d) constitutes a substantial handicap to such person‟s ability to function normally in society … [emphasis added]”26. Closely bound up with these definitions then is the idea that a „normal‟ person is expected to conform the guidelines of her or his culture—not in itself at all unusual since law is arguably at least partially about enforcing codes of behavior in a society; yet, in the case of mental incompetence, the failure or decision to not function “normally” in society can be the basis for a declaration of mental incompetence, a stigma and an excuse (if often justified) to curtail that person‟s freedom. Of course, the line between what will be tolerated and what will not be is often not a sharp one, especially at the boundaries. In In re Doe, for example, the parents of a “rebellious youth with a short attention span” and drug and alcohol problems sought to sequester the thenalmost 18 year old „youth‟ finances and be granted the power to limit the young man‟s movements and mandate “intensive counseling,” among other things.27 The court refused to grant the parents‟ request under New York‟s Mental Hygiene Law, holding that “a bad attitude and a fickle nature may not make for an attractive personality, but they do not warrant the deprivation of constitutionally protected rights and liberty.”28 3. Animals

23 24

N.Y. Ment. Hyg. L. §1.03(3) (McKinney‟s 2010). Id. at (20). 25 Id. at (21). 26 Id. at (22). The entire definition also includes disabilities of a person resulting from a variety of other named conditions (such as autism or dyslexia) with the additional overall requirement that the condition originated before the person turned 22 and is expected to last indefinitely. 27 181 Misc.2d 787 at 790-1 (Sup. Ct., Nassau County, 1999). 28 Id. at 791. Page 4 of 17

James French 3L

Being Before (the) Law

Independent Study Paper

The word “animal” is generally taken in common language to mean “every living creature except a human being”29—or, at least, every ambulatory living being excepting plants, vegetation, fungi, and microscopic organisms. Under the laws of most U.S. states, humans are given a biblical degree of control and domination over animals: “A person may have as absolute a dominion and property over domestic animals as he or she may have over any other useful and valuable chattel.”30 Almost without needing to say more one can perceive the claustrophobic propinquity of the horizon of animal rights as they currently (do not) exist in U.S. law. Laws governing the humane treatment of animals do not confer rights: They merely restrict the behavior of persons—humans (and corporations of humans). For example, most cruelty towards animals prohibitions contain language proscribing torture, cruelty, and unjustified injury, mutilation, and killing of any animal (which includes deliberately depriving an animal of “necessary sustenance”).31 The idea that an animal is a person is largely unheard of in statutes and caselaw (but not in law reviews and other secondary sources32). Animal personhood of course is not a new idea, dating back at least half a century in the U.S. in its developed form, and it is advocated for extensively by those concerned with animal rights.33 Research continues to try to answer what is perhaps (though not necessarily) more a philosophical question than a scientific one: Whether animals—some or all—have sentience in even the smallest degree. The biggest barrier to making such a determination if of course the fact that (most) animals are incapable (or, possibly, very unwilling) to engage in a human mode of communication.34 Though, as some would point out, human infants are also incapable of linguistic communication though most possess the potential for developing it. Notwithstanding the above however, environmental protection and conservation statutes with citizen-suit enforcement provisions—particularly the federal Endangered Species Act— offer examples of situations where animal species have actually been the named parties in a number of suits.35 Unhappy defendants have of course challenged such naming, and more substantively the standing issues involved—and have won.36 B. Towards Legal Personhood Why does „person‟ need to be defined? This inquiry admittedly could seem rather useless at first blush. However, as this discussion of U.S. v. Maciel-Alcala above demonstrates, I believe that by clarifying what is meant by person—indeed, what is meant by who as opposed to what—
29 30

N.Y. Agri. & Mkts. L. §350(1) (McKinney‟s 1999). 3 N.Y. Jr. 2d Animals §3 (Thomson Reuters 2010). 31 Referencing the language of New York‟s Agriculture and Markets Law §353 (McKinney‟s 2005). 32 See, for e.g., Berg, Jessica. “Of Elephants and Embryos: A Proposed Framework for Legal Personhood.” 59 Hastings L.J. 369 (2007) (arguing, inter alia, for using the concept of “juridical persons” to grant rights and protections to animals). 33 See, for e.g., Francione, Gary L. Animals as Persons: Essays on the Abolition of Animal Exploitation . New York, NY: Columbia U. Press, 2008. 34 Some researchers purport to have trained some animals to communicate via sign language. See, for e.g., the work of the Chimpanzee and Human Communication Institute at Central Washington University. http://www.cwu.edu/~cwuchci/index.html. 35 See, for e.g., American Bald Eagle v. Bhatti, 9 F.3d 163 (1 st Cir. 1993); Hawaiian Crow v. Lujan, 906 F. Supp. 549 (D. Haw. 1991). 36 See, for e.g., Citizens to End Animal Suffering & Exploitation, Inc. v. The New England Aquarium, 836 F.Supp. 45 (D.Mass. 1993). The suit was originally brought naming the Kama dolphin as the lead plaintiff. Page 5 of 17

James French 3L

Being Before (the) Law

Independent Study Paper

a number of ambiguities, potential conflicts, and unnecessary fictions (legal and otherwise) will be resolved and dealt with in good faith. This prolegomenon on the nature and substance of person in all its meanings and permutations, legal and philosophical, will attempt to answer the question of both what and who (a) person is in fact and should be in law. Drawing upon the answers already presented by Jean-Paul Sartre in his magnum opus, Being and Nothingness,37 this work will present a construction of (the) person with as much specificity as possible in order to provide a foundation for analyzing the variety of forms and variations of person found in law.

III. THE SIX CATEGORIES OF (THE) PERSON The different concepts of the person, while expressed differently across cultures and scholastic, academic, and religious fields, can be broken down, I believe, into six fundamental categories. Like primary colors, these categories—alone and intermixed, implicitly and explicitly—form the basis for all operative concepts of the person. Figure 1, below, provides a working visual illustration of the six primary categories of

Figure 1: The six categories of (the) person

(the) person in relation to each other. Each category is aligned on a spectrum between different
37

Hazel E. Barnes, trans. (W.A. Square Press 1984). Page 6 of 17

James French 3L

Being Before (the) Law

Independent Study Paper

opposed extremes—from scientific understanding to faith and from the most general to the most specific, for example. Some of the categories are best described as referring to what a person is, physically or metaphysically but nonetheless concretely. Others refer more directly to the elusive who and are thus more implicit. And, of course, the outlier is the juristic person, the deliberate legal fiction created for the treatment of corporations, government agencies, and other similar (non-)entities—which are ontologically human enterprises—which have been deliberately bequeathed an honorary fictitious „personhood‟. The Categories 1. Person as Consciousness We can begin with the notion that a person is one who is (or possesses) consciousness, either „simple‟ or self-consciousness, self-awareness—that is, sentience. This notion is the most expansive, and probably the least used in Western society, for it would by necessity have to include all non-human beings which possessed the elusive quality and power of consciousness. At the same time, such a definition could potentially exclude those human bodies which possessed no consciousness or the potential for consciousness (however that would be ascertained), including persons rendered permanently inanimate in a vegetative state, certain „persons‟ born without any vestige of mental faculty, and perhaps embryos and fetuses before a certain stage of development. Immediately, however, the question becomes: How does one find, define, and measure consciousness? Is consciousness a material thing which can be so analyzed? And even assuming so, is sentience and sapience a matter of degree? Should there be some kind of (scientific? metaphysical?) threshold whereupon a being becomes a person, a who instead of a what? As I will note later, these questions might be insurmountable and fall within the realm of belief, no matter in what gloss, scientific or otherwise. Sentience describes (self-)consciousness, awareness at the most basic level (however one would be able to rank levels of awareness). Sentience is often equated with intelligence in the singular noun form describing a being, an intelligence. Sapience, on the other hand, connotes „wisdom‟, knowledge, and the ability to act from experience, to demonstrate thoughtfulness which is of course a culture concept defining conduct and demeanor. Sapience thus is far more susceptible of misinterpretation and abuse, for too often „person‟—and the dignity that comes with personhood—is denied to those who are reckoned or presumed to lack forethought or rational decision making. Yet, far from being the objective marker it is propounded to be, sapience is highly cultural. 2. Person as (Human) Behavior Coming from the opposite direction, (the) person is often defined less in concrete terms and more in the sense of (being capable of) acting as a person. This connotes a number of different qualities which form the basis for the descriptors “humane,” “decent,” “civilized,” and so on, as well as in the general possession of “humanity” which encompasses the preceding and more. In Western society, a person-as-behavior is not generalized: It is a very specific being, one that is gendered and of a certain age and attainment and displaying a set of cultural accoutrements which sound in person-ality. Namely, this person is the white, educated, adult, male, that basis from which all other beings wishing to be treated as persons are judged. This concept of the person, the human, accounts for the treatment of children and mental invalids and at one time not too long ago accounted for the grossly disparate treatment of women and slaves. While in the case of children, and perhaps some persons suffering from various
Page 7 of 17

James French 3L

Being Before (the) Law

Independent Study Paper

mental illnesses (or who are, perhaps, “differently mentally abled”, no political correctness intended) I do not mean to critique this disparate treatment as entirely without logic and practicality (more on this below). At base, the justification for treating women differently than men was actively justified by claiming that women were not equally persons in the way men were, not only in terms of physical features but in capacity for maturity and rationality. When it comes to children, their disparate treatment in criminal and civil law continues to be based on the premise that children are fundamentally not persons, lacking the rationality and indeed the degree of sapience necessary to uplift them from the status of blameless animals qua glorified material cause and effect machines to persons endowed with responsibility. Just as one cannot criminally not „punish‟ an animal for „committing‟ a crime—which per scienter an animal is incapable of committing—so too one cannot punish a child for committing „crimes‟ which the child has neither the capacity nor the appreciation to commit in bad faith. 3. Person as the Human Species (Homo Sapien) When the scientist speaks of person—or better, human—s/he generally refers to the human species, classed as homo sapien. This concept of the person is the most detached from the philosophical, ethical, spiritual, and metaphysical notions of person and refers to the biological species of human. To the scientist, sapience is a consequence and quality of the species of human beings (and perhaps other species as well to varying degrees) and the endowment of humans with personhood is strictly a posteriori when considered at all (since being a person has social and philosophical, not scientific, implications). Note the order of knowledge: While biological, specifically evolutionary science places the human species on a grand timeline of life on earth, in terms of the progress of human knowledge this ordering of the living universe appears cosmologically second. In other words, there were persons before there were humans because it is only for persons that humans exist as a concept and a species. In fact, the whole notion of species, biology, even the universe comes from persons and is sustained by them. Before persons, even numbers would not exist as such— the number of something being a non-existent quality added by someone conscious of things in general and able to differentiate among them. The same applies even to life in general, the definition of which, and the proper circumlocution of beings which are alive (a-life), continues to difficult to definitively state than it would seem—see, for example, the debate over viruses and self-replicating protein molecules (prions). In law, rarely is the human species of much concern because the parties before a court— before the law—are already persons.38 To say that these persons are humans is almost always unnecessary with the exception of juristic persons like corporations (but even then their nonhuman entity status is rarely of much concern). 4. Person as (having a) Human Body Distinct from the notion of the human species in general is the idea that persons are only those who possess a human body. Even this concept is deceptively simple for there are so many configurations possible for the human body. Even when it comes to genetics the dividing line

38

Of course, there have been instances where non corporate non-humans have been named as parties. See footnote 33 below. Page 8 of 17

James French 3L

Being Before (the) Law

Independent Study Paper

between humans and non-humans is more blurred than common understanding trusts.39 For, again, what is the definition of „human‟? Is it to have one head, two arms, two legs, a heart, a pair of lungs, a pair of kidneys, one set of reproductive organs and genitalia, two eyes, one nose, one mouth, and two ears (among other things of course)? By modern standards, any person (note that personhood is bestowed a priori even before the question is posed) who lacks one or more of these qualities is still, in Western society, largely regarded as a person—if, perhaps, a person with a disability or deformity. There are pairs of human bodies born fused to one another indissolubly yet each is treated as a person.40 Despite the difficulties, the relative rarity of encounters which would challenge the average (“normal”) person‟s concept of personhood, the notion of a person as being one with a human body is a prevailing one. As above, however, what is a human body is a different from the body if a person in that in many ways the Western template person-body is again the white, adult, fully-abled, male body. Some thinkers historically characterized women as a separate „species‟ of a kind and thus not persons in the same way (white, adult, fully-abled) men are persons; the same with slaves and later blacks qua a separate “race.”41 5. Person as (having) Dignity Coming at the problem once again from the reverse, another way person is defined is by the quality or possession of dignity. This dignity is not the dignity which appears in the current 9th edition of Black’s Law Dictionary (defining dignity as that quality and honor which nobility possess as a consequence of their “elevated” station).42 Unfortunately, a better definition of how dignity operates in modern (U.S.) usage and language is difficult to find. Wikipedia (a source of information valuable at the very least for tracking the varieties of word usage from popular culture to highly specialized science and philosophy) begins its article on dignity by stating that dignity “signif[ies] that a being has an innate right to respect and ethical treatment.”43 Dignity, like person, is in fact and operation highly implicit, rarely defined though often invoked in a conclusory manner. It is a proscription against certain behaviors towards another and it is a complimentary quality said to be possessed by those (persons) that comport themselves in a certain manner with consistency. Thus, dignity in an operative way defines the person in a very real way: By implication. A being which has dignity—possession as a quality—is a person; no person does not have dignity though their dignity can be (lawfully) curtailed in certain circumstances (but this never denies that there is a fundamental dignity present qua rights). But what is dignity? I believe that dignity means freedom: A being which has dignity has freedom in the existential sense of the word, meaning a person is a being which chooses itself—its way of being and interacting (its psyche or personality)—and its goals, projects, ambitions, and actions. This is a freedom that must be respected. And respect in this context means recognizing and refraining from infringing upon another person‟s freedom, limiting self-determination. The deprivation of dignity inheres in
39

“Functional and Comparative Genomics Fact Sheet.” Human Genome Project, U.S. Dep‟t of Energy Office of Science (19 July 2010). http://www.ornl.gov/sci/techresources/Human_Genome/faq/compgen.shtml#moreinfo. Accessed 15 Dec. 2010. 40 Melville, Barbara. “Chimerism and Mosaicism in Humans.” Suite101.com (31 Jan. 2010). http://www.suite101.com/content/basics-of-chimerism-and-mosaicism-in-humans-a195690. Accessed 15 Dec. 2010. 41 See, for e.g., Gould, Steven Jay. “The Geometer of Race.” Discover 15 , 65-9 (Nov. 1994). 42 “Dignity.” Black‟s Law Dictionary 9th ed. (Thompson-Reuters, 2010). 43 “Dignity.” Wikipedia (30 October 2009). Accessed 7 December 2010. http://en.wikipedia.org/wiki/Dignity. Page 9 of 17

James French 3L

Being Before (the) Law

Independent Study Paper

those situations where the State, or authorized „lay‟ persons, have permission to curtail another person‟s freedom. For example, personal dignity can be violently deprived when a person is incarcerated, incarceration being essentially a curtailing of a person‟s freedom (freedom of movement, freedom of choosing one‟s activities and enterprises, freedom of association, etc.). Children‟s dignity—however much children are said to have to begin with—is legally curtailable by their parents or legal guardians or the State, allowing parents and guardians to limit a child‟s movements, prescribe their daily activities, and proscribe forbidden behaviors. Those with „severe‟ mental illnesses that make them a danger to themselves or others can legally have their dignity delimited by psychiatric institutionalization. Yet, in each of these situations there are due process protections in place to protect a person‟s unjust deprivation of freedom, which is the same as their dignity as persons. Dignity means fundamentally a respect for a person‟s personhood, their freedoms, including of self-direction, choice, and the inviolability of their body and possessions (which in a sense become a part of a person‟s body). By way of illustration, in order for slavery to have been in any way justified (and of course it can‟t be, just like rape can never be justified by its very definition), the slave had to be reduced to less than a person (by the master and the masters‟ society) because otherwise the slave, qua person, would have dignity demanding respect necessitating a much more difficult and increasingly tenuous explanation for the deprivation of the slave‟s rights and freedoms.44 Hence racial classifications—hierarchies—which stripped of personhood those so-called „races‟ of humans considered by Caucasians to be „beneath‟ them in the natural order so that there would be, ostensibly, no infringement of a dignity which never existed.45 Likewise, women had to be reduced (by men) to something less than persons in order for their subjugation to have any semblance of justification (which, of course, it can‟t have). Dignity is a common and popular conception of the person. Activists who decry the inhumane treatment of groups of people, whether it be prisoners, ethnic groups targeted for genocide, women, non-heterosexuals, or non-white racial groups (and there are many more), invoke the concept of dignity to appeal to their audience‟s sense that the people they are advocating for are just that and should not be deprived of the dignity that inheres in their personhood (the age old “Do unto thy neighbor…” axiom).46 Yet, International Human Rights professor Christopher McCruden cautions against the use of “dignity” as an operative concept in the international human rights arena.47 McCruden, after surveying the myriad definitions dignity has taken judicially and historically, concludes that, “Dignity appears to become other than impossibly vague only when it is tethered to a coherent community of interpretation.”48 He cautions that dignity should have some underlying, coherent interpretation in order to be useful,

44

Hence the infamous Dred Scott decision in which Justice Taney in broad strokes denied to all members of the black race the potential for citizenship on any level. For an insightful analysis of the Dred Scott decision on this point, see: Chamblers Jr., Henry L. “Dred Scott: Tiered Citizenship and Tiered Personhood.” 82 Chi. -Kent L. Rev. 209 (2007). 45 Gould, “The Geometer of Race.” (see footnote 7 above). 46 Amnesty International, for example, follows the Universal Declaration of Human Rights of the United Nations which enshrines, inter alia, “the dignity and worth of the human person.” “Preamble,” The Universal Declaration of Human Rights. United Nations, 10 Dec. 1948. Available at: http://www.un.org/en/documents/udhr/index.shtml. Accessed 15 Dec. 2010. 47 McCruden, Christopher. “Human Dignity and Judicial Interpretation of Human Rights.” The European Journal of International Law 19:4, 655-724 (2008). 48 Id. at 723. Page 10 of 17

James French 3L

Being Before (the) Law

Independent Study Paper

which necessitates choice rather than invention since dignity has an incredible wealth of historical context behind it. 6. Juristic49 Persons And finally, we come to the treatment of certain organizations—groups of people in a social organization—as single „persons‟ under the law of the U.S. (and other countries). While no one would contend that when a corporation is treated as a person the corporation is actually thought of as a person, the number of rights and privileges corporations have won through their juristic personhood status is noteworthy, if for the amount of bad faith involved. More on juristic persons will follow below. IV. THE EXISTENTIAL PERSON So what should a person be defined as? After all, „person‟ is a word, a description, a label placed on a certain set of beings (by other beings which call themselves persons first and seek to extend the concept after). As much as I have divided the concepts of person into the above categories, the words person, people, human, and so many other words are used interchangeably to refer more or less to the same thing, and sometimes to very different things. Therefore, the definition to follow is a suggestion for what the word „person‟ should mean in the interests of disambiguation and „good faith‟ in communication and thought. The following discussion is a summarization (and, to a lesser degree, interpretation) of Jean Paul Sartre‟s essential thesis in Being and Nothingness.50 The following should not be construed as the author‟s original work (at least inseparably) and instead should be considered a paraphrase of Sartre passim in his Being & Nothingness. *** What. Ontologically, (a) person is, should be defined as, (a) consciousness. Consciousness is not a thing, it is a relation; in fact, it is relation. Consciousness is not an object, physical or spiritual: It is negation, the standing-apart-from. When consciousness is conscious of an object—a rock, for example—consciousness is conscious of the rock apart from other rocks, the ground, the rest of existence, the rest of Being. First, however, consciousness is conscious that it is not the rock. Being conscious of a thing (something) means being conscious of not being that thing, of being distinct, divisible, apart from it; this is the basis for all other consciousnesses, such as being conscious that this rock is not this other rock (“third party” consciousness one could say). Consciousness is (the) not, consciousness is nothingness. By being conscious, we first are conscious of ourselves as not being the rest of the universe, that we are fundamentally apart from it. From there, we are conscious of things in isolation: Conscious of a rock as being separate from the ground and from other rocks and from the rest of the universe of being, conscious of the sky as separate from the ground and from outer space, and so on. Anything that we are conscious of, we are not. Or, in other words, we are not (read separate from, apart from but not necessarily by physical distance) any thing that we are conscious of; we are apart from all objects, all Being. And since persons are self-aware, that means we are not ourselves, we are apart from any static unchanging essence that is us (i.e., our personality, our
49 50

Alternatively termed “juridical” or “artificial” persons. Hazel E. Barnes, trans. (Gallimard 1948). Page 11 of 17

James French 3L

Being Before (the) Law

Independent Study Paper

soul). This is not a nonsensical logic puzzle: It expresses an important truth about consciousness: It never is anything, not a personality, not a soul, not a static being or attitude. Persons are change incarnate, never solidified. There is no self; there is only the self image that consciousness contemplates and thus is always separated from and free of. This is why we can contemplate ourselves and indeed talk about ourselves in the third person; being able to abstract ourselves means that in fact we are not a being. The moment we become something, we would cease to be consciousness. And this might be, in fact, what happens when a consciousness—a person—dies. Who. So what are we? And what is an individual, a who? The answer is nothing—not in the degrading sense of being worth nothing but in the sense that we are not a thing, not an object. Persons are freedom. Freedom in its existential and ontological sense means that since we are not anything, we are not in any way constrained to be(ing) a certain thing or a certain way at an ontological level in how we choose to relate to the rest of the universe. We are relation. Persons are always free in imagination and thought and are free to try anything whether they are successful or not. Indeed, when a person contemplates doing something she/he/it but decides it is impossible, this because the person has, in their freedom, contemplated an action but decided, also in their freedom, that the effort would be wasted (which may of course be true). As an illustration, in an existential—and only in an existential sense—all slaves are also ontologically free because, as persons, as consciousnesses, they can dream of escaping slavery and in their thoughts and goals at least can choose to try whatever they wish, whether to escape, for example, or curry favor with their masters for gentler treatment, or resign and accept their condition of servitude.51 Why else would slavery be so abhorrent if it weren‟t a curtailment of someone‟s freedom, of their dignity? Thus, in another sense, person—consciousness—is a project, a goal, an enterprise, a will. Even the most slothful person has a project in mind (that of being slothful) and is choosing their approach to life.52 Consciousness always has a point of view however: Its body (existentialists use the term facticity). Consciousness is conscious of all of existence, the entire universe, all of Being, but from one point of view, from one position and place and one particular thing: Its body. We are all conscious of the entire universe at once but from a singular point of view, our bodies. Thus, first of all, a person is conscious of her/his/its body. In a movie, there are almost no limits to what can be shown: Computer generated imagery (and more mundane techniques) can show almost limitless scenes right down to the universe unfolding (always somewhat metaphorically of course; see, for e.g., the opening animations accompanying “The Right of Spring” in the original Fantasia); yet, the movie is always just one point of view. The screen can only show one image at one time. Of course, that image can be composed of limitless smaller images next to each other in a grid, yet we can only see one whole picture at one time. Yet, the point of view is not a limitation. It can become so for a consciousness later when a person wishes to try to do something that the body makes impossible or difficult; yet difficulty only arises when we first
51

In any other sense of freedom the slave is obviously everything but free, but I use the illustration is to differentiate between existential freedom and the common (Western/U.S.) definition of freedom, both of which are valid but have very different meanings. 52 As Pierre Bourdieu points out passim in all his works, this ontological freedom is very, very basic. Almost as soon as a (human) child is born, s/he/it becomes socialized to act in certain ways which then become routine to the child, embedded even in their body. Nonetheless, all consciousnesses, all persons, are ontologically free and no matter how “routine” behavior might be, they still consciously act and freely constrain themselves to these routines. See, for e.g., Bourdieu, Pierre. Pascalian Meditations. Palo Alto, CA: Stanford U. Press, 2000. Page 12 of 17

James French 3L

Being Before (the) Law

Independent Study Paper

have a project or a goal in mind, and thus difficulty is not an objective quality of our body or the universe. It is only later that we come to think of our bodies as limitations—for example, when we wish to fly like birds and are unable to do so, in which case we would have to project or imagine flying first in order to see our body as a limitation to this goal later. And of course, our bodies are still not us. Many people become (rightfully) angry when they are equated simply with their material body—their features and characteristics. Objectification is so insulting to many people because it equates them with objects, and persons are fundamentally not objects.53 Yet, because consciousness must be embodied in a viewpoint, the body is (for lack of a better term) the basis of consciousness, its starting point and foundation, its jumping-off platform. But because consciousness is not and thus is never static, always changing, the body always represents the past, the trail consciousness leaves behind. Hence memory and recollection, and the physiological effects of emotion which linger beyond their triggering point almost by inertia. Whenever consciousness examines its body—either by recalling memory or observing the body, feeling the body—it is invoking its past, removed from the present by the infinitesimal schism between being and consciousness where consciousness in fact is the break, the nothingness. While things—the universe—exist outside of consciousness, one cannot speak objectively, as in science, about individual things (objects) without interposing consciousness first. Outside of consciousness, the entire universe simply is. All qualities—empty, full, soft, hard, cold, warm, alone, separate, together, etc.—are seen (or experienced) by (a) consciousness. In order for there to be things plurally, there has to be consciousness separating these things (“this is not that which is not this other” and so on). Even qualities like “together” or “one” are consciousness‟s negation: In order for things to be together they have to separate first. Before you can say this wall is together with this building, you already have separated the two by thinking about them as separate, if only for a moment. Quality is pure consciousness: This thing as opposed to that, this color as opposed to a different one. First Impressions, Initial Difficulties If the above sounds in metaphysics it is because consciousness is not a concrete, material being like the aforementioned rock; nor is it simply a concept like numbers. It is real but it is not a thing. If the above is true, if the person is consciousness as constructed above, what does this mean for life and law? First, the definition above may be frustratingly impractical. Unfortunately, I believe it cannot be otherwise without sacrificing veracity. Consciousness is not any thing; and this of course presents problems for its identification and definition (whereby one seeks to make something out of consciousness). Since it is not substantial in the sense of having a „substance‟ or essence (at most it „leaves behind‟ such an essence) consciousness by definition is that which can never be taken as a being.54 A „test‟ for consciousness might be possible, although we would
53

The concept of point-of-view should not be confused with the idea that the body is the “seat” of consciousness qua a “soul.” Consciousness always is a point of view, it is not a separate entity. Consciousness is not memories or an “essence”—it is not a personality: It is relation. Memories are more or less physical things which we are conscious of; and to be conscious of something is to stand-apart-from it. The soul may be in fact another „body‟ which consciousness „inhabits‟ (for lack of a better word), but consciousness itself would then be the relation to the soul. A disembodied soul could still contemplate itself and thus would never be the soul. 54 Sartre, in Being & Nothingness, describes consciousness as “being what it is not and not being what it is” passim in his work, with variations here and there for illustrative purposes. While certainly accurate, he also uses a less riddle-like definition when he says that consciousness is a “presence to self,” defining „presence‟ as implying the negation that is consciousness. In other words, the be present to something implies not being that thing; and since Page 13 of 17

James French 3L

Being Before (the) Law

Independent Study Paper

have to be resigned that such a test—like all true tests perhaps—could never be 100% accurate. Indeed, any so-called “markers” of consciousness might simply be coincidental.55 For example, probably the vast majority of post-natal human beings are consciousnesses—i.e., are persons. Does it follow then that consciousness only arises in certain bodies—specifically, human bodies? If one (rightly) rejects this rather blatant example of speciesism, then the question becomes, in identifying other beings which are (or “house”) consciousness, how to divorce „pure‟ consciousness from human consciousness, from human expressions as indicators of consciousness? What if, in fact, all Earth mammals, or all levels of life down to the microscopic, are consciousnesses which are incapable of or unwilling to engage in a human expression of such consciousness (e.g., through human communication)? What if the Earth itself is a consciousness? What if every discrete object (like a rock, a tree, a „body‟ of water) is a consciousness as in true animism? Indeed, a body could be anything, any being. One would almost have to believe this were true first and find ways to prove the assumption incorrect afterward, consciousness until proven inanimate like innocent until proven guilty. And perhaps the Western concept of “intelligent” life is instead a measure of a consciousness‟s acceptance of and fluency in Western culture and methods of communication. As a practical matter, however, U.S. law is no stranger to actions being brought on behalf of silent parties. Such is the function of surrogates, administrators/executors, and parents/guardians (among others). The true party is the represented but incommunicative being whose interests its advocate represents (as the title implies). Quite often, the silent party does not express or even „know‟ in any meaningful way what it wants, its rights interpreted by its advocate (i.e., the attorney). V. IMPLICATIONS
consciousness is a presence to itself (and the rest of the universe, of Being), consciousness never is a discrete, concrete „self‟, only the relation which is presence. Sartre, Jean-Paul, Being & Nothingness: A Phenomenological Essay on Ontology. Hazel E. Barnes, trans. (New York: Washington Sq. Press, 1984). 55 Sartre was concerned with this problem as well when he addressed the classic litmus test phenomenological philosophers applied to their philosophies to test their explanatory validity: How to avoid solipsism, the problem of how to prove the existence of the Other, other consciousnesses. How does one know a given being, a body standing in front of us for example, is another person, another consciousness, an Other (to use the existential term)? How can someone ever truly know that s/he/it is not the only consciousness in existence and all „others‟ are figments of the first‟s imagination or, at best, beings which resemble other persons (like robots)? This problem is called „solipsism‟; phenomenological and existential philosophers challenged themselves to address how, in their respective systems (which by definition take as their starting point first-hand experience, consciousness‟s unmediated encounter with Being and beings) one can „prove‟ that the Other (or others) exists. Sartre addressed this in his work basically by saying that while a consciousness can doubt whether a particular concrete being before it is another consciousness (an Other), one can never truly doubt that Others in general exist because every consciousness at one point or another experiences itself as having an “outside”, as being seen by an Other. Even if this experience was „false‟ (as in, we were not actually in the presence of an Other, another consciousness), the fact that we interposed another dimension on ourselves (or had it interposed from without)—that of being something for another—means that the Other indubitably exists. While consciousness never is any thing or any concrete being or object in the way that a rock is a rock (because consciousness is relation), consciousnesses can „see‟ (or observe) each other and thereby treat each other as concrete beings. We feel that we are made something by another person, that we are objectified (not necessarily in a demeaning way), but since we can never apprehend ourselves as a concrete being for ourselves, we can‟t ever get a hold of what another sees us as (we can‟t experience seeing ourselves as consciousness from outside ourselves). This feeling of having an „face‟ to the outside that you will never understand or experience for yourself, Sartre says, is the beginning of all interpersonal relations including love, hate, obsession, indifference, and so on, all of which are various attempts by us to deal with or somehow get a hold of or handle the fact that we are seen (objectified) by others but can never see ourselves as we are for others. Page 14 of 17

James French 3L

Being Before (the) Law

Independent Study Paper

A. U.S. v. Maciel-Alcala Revisited What would the above definition change, if anything, about the outcome of U.S. v. Maciel-Alcala. The short answer is probably nothing. The case was one of statutory interpretation, legislative intent, and weighing the social benefits and costs of (de)criminalizing certain behaviors relative to others. Going back to the root of the problem that arose in the case—namely, the statute for the particular crime Mr. Maciel-Alcala was charged with—the entire case in retrospect would likely have been avoided had a clear definition of person existed to guide the court‟s interpretation. What Maciel-Alcala demonstrates again is the fact that „person‟ simply does not exist as yet in a discrete, workable definition in U.S. law. The fact that it is usually synonymous with “human being” is not enough, for as I have endeavored to illustrate above, the concept of „human‟ yields an incredibly wide field of interpretation which historically has been used to disenfranchise, oppress, delegitimize, and outright slaughter groups of „lesser‟ humans. Without a unifying definition, cases like Maciel-Alcala must in each instance revisit the numerous definitions offered of person, most of which are circular (e.g., “A person is a human being,” “A human being is an individual person,” etc.). B. Scienter, Mens Rea, and the Unconscious As an example, one consequence and feature of Sartre‟s existentialism is that is permits of no such thing as an “unconscious”—at least not the way it is commonly defined. By definition, consciousness being (a) relation and not a physical thing, there is no „underneath‟ to consciousness, no undergirding drive, no ego. Since the ego does not exist as such neither does the id. Rather, what is often taken for unconscious is actually still fully and completely consciousness, just without what Sartre calls “reflection.” Consciousness tries to take a viewpoint on itself constantly, to see itself as having a certain nature and personality, to see itself as a thing, to know itself the way others know it from the outside. There is a certain security in self-description. When we reflect on ourselves, recall our actions and scrutinize our own intentions, motives, and feelings, we attempt to construct a solid image of ourselves almost as if we were little else than a collection of alternately competing and harmonious impulses—machines governed by pure cause and effect in a way. This self-reflection however is “impure” according to Sartre because it confuses reflection after-the-fact with the „pure‟ consciousness of simply being in a situation. In a sense, we never act without thinking, yet we do act without thinking about ourselves quite often, acting without take a viewpoint on ourselves, “taking a step back” as it were. Yet we are always all there. To use Sartre‟s example, when we see a lemon from a certain angle and under a certain light, we are seeing the whole lemon at once but from a single point of view; the whole being of the lemon is expressed everywhere at once throughout the lemon at every point, but the contingent necessity of existence is to have always a singular point of view; seeing everything together would dissolve all distinctions and qualities, which is perhaps exactly what pure Being is in isolation. Consciousness is the same way. Persons are themselves, fully and completely, but always in one way at one time seen from one perspective. Language allows self-expression yet we communicate our entire self at once in every action, we just simply do not take a psychic mirror
Page 15 of 17

James French 3L

Being Before (the) Law

Independent Study Paper

to our every step, breath, blink, and touch (such would be maddening). Reflection is a secondary impulse; we can never succeed in “capturing” ourselves in the act of our consciousness because we are always infinitesimally beyond ourselves. What all of this means is that every action a person takes is a conscious one by definition.56 What is called scienter57 or in criminal law mens rea58 refers to deliberate intent, preimagined and reflected-upon goals and action taken in furtherance thereof. Criminal statutes distinguish between the degrees of murder—or sometimes between murder and manslaughter— in the degree of forethought. Manslaughter, heat of the moment action, is said to be somehow less deliberate than planned murder and is punished accordingly. The cultural value judgment is clear, and it is not necessarily invalid per se. What this new definition of consciousness, of personality, brings is an understanding that all law is choice (hardly a new idea obviously). We, as a society, allow ourselves breathing room when it comes to the exercise of our passions. While planned and executed murder is always the most egregious crime, the lesser degrees of murder, manslaughter, and criminally negligent homicide reflect a decision to grant to everyone a „reasonable‟ threshold. An emotionally charged spur-of-the-moment killing we hold to be less culpable than „cold-blooded‟ murder because we allow ourselves, rightly or wrongly, a certain modicum of permission to act passionately. This is a value judgment, not necessarily incorrect or invalid, reflective of either a shared (but implicit) societal understanding, a compact of sorts, or perhaps a derivative impact of psychology which imputes to the human psyche irrepressible drives and impulses to be accounted for. If law punishes only the consciously guilty act, it cannot punish a non-conscious compulsion, nor more than law could make culpable the injury caused by a falling body (sans any negligence beforehand) compelled only by gravity and inertia. This same problem arises in the context of the law of insanity and incompetence where, in some jurisdictions, a person is held not guilty by reason of mental disease or defect,59 or, in the alternative, “guilty but insane.”60 In either case, the person is still held in custody and denied freedoms but under the guise of „treatment‟.61 There would need to be a recognition that what is labeled „unconscious‟ is the same as what is „conscious‟ but just consciousness reflected on. Actions that are taken in „passion‟ are the full expression of the passionate person, the person who chooses passion as the medium of her or his expression and interrelation with the world and others (even if the words and recognition of this is absent or at least delayed). According to Sartre, in fact, actions that are taken without conscious self-reflection (“I am raising my right hand to pick up the glass from the table”) are „purer‟ in a sense because they are the full expression of the person in the entirety of the act.

56 57

Sartre, Being & Nothingness at 707-11. “A degree of knowledge that makes a person legally responsible for the consequences of his or her act or omission; the fact of an act's having been done knowingly.” From: “scienter.” Black‟s Law Dictionary, 9th Ed. (2009). 58 “The state of mind that the prosecution, to secure a conviction, must prove that a defendant had when committing a crime; criminal intent or recklessness.” From: “mens rea.” Black‟s Law Dictionary, 9th Ed. (2009). 59 See, for e.g., New York Penal Law §40.15 (McKinney‟s 2010): Lacking criminal responsibility by reason of “mental disease or defect” means “at the time of [the proscribed] conduct, as a result of mental disease or defect, [the defendant] lacked substantial capacity to know or appreciate either: (1) The nature and consequences of such conduct; or (2) That such conduct was wrong [emphasis added].” 60 See, for e.g., Arizona‟s Criminal Code, ARS §13 -502(A) (Thomson Reuters 2010) (defining “guilty except insane” as an affirmative defense). 61 See, for e.g., N.Y. Mental Hygiene Law §9.35 (McKinney‟s 2010). Page 16 of 17

James French 3L

Being Before (the) Law

Independent Study Paper

Self-reflection is just an attempt by consciousness to get a hold of itself, to make itself concrete, nothing more. VI. CONCLUSION Legally (re)defining person may not change much in the short term. Criminal law would shift little, as would the laws of culpability and conduct. Other areas of law less dependent on philosophical as opposed to statutory definitions of person will benefit from the honest clarity that a well-defined personhood would bring. Cases like U.S. v. Maciel-Alcala will probably no longer rise to an appeal, there being no need to determine what Congress or state legislature meant by „person‟ after it has been clearly delineated. The most important change is preemptive: Defining person, clearly and unambiguously, would prepare the United States, indeed the whole world, for the challenges already envisioned in our speculative literature and fiction. In the past, people have created laws stripping others of their personhood, whether in name or function it matters little because the result was the same. Changing the definition of person beyond simply being „human‟, with all the prejudices, qualifiers, and potential for abuse that brings, to one which speaks to any being, any entity possessive of consciousness would prepare our society for encountering the unknown in the future. Already, the debates over abortion, embryo stem cell research, and many other areas of bioethics demonstrate the frontier of technology and society we are approaching. With a wellestablished universal personhood, we could rise to meet the challenge of welcoming beings of inscrutable dimensions into a system ready to enshrine and protect the liberties that come with the fundamental power that is freedom of self-determination and awareness. And for those quandaries that already perplex us, we will have a framework from which to build a future consensus that is not based on any kind of sexism, racism, ageism, or speciesism.

Page 17 of 17