That, perhaps, explains why the writings of the American founders contain a good deal of discussion about human nature. 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.
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.īut a wholly self-sufficient person, Aristotle remarked long ago, is either a beast or a god. We are a gambling, profit-making, risk-taking people with a high rate of geographical, social, and marital mobility. According to a 2002 survey, the percentages of Americans who expressed such views were more than double the European figures. 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. It’s not that the image doesn’t resonate. 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. 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.” 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. But concepts that may serve useful purposes within a particular discipline can be mischievous when they migrate into other contexts. 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. 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. “The spirit of the law,” he wrote, “born within schools and courts. The early Americans’ peculiar attachment to the law was one of the first things Tocqueville noticed as he traveled about the new nation. 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. In some countries, law’s role in these narratives is relatively minor. 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. 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.
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