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-ALCALA 1 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 thefta 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 review 7 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

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 4th Edition to the
Oxford English Dictionary 2nd to Websters Third International and Collegiate 10th Edition, all and none of which
offered definitive answers; Blacks 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).
2

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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
victims 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).
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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 worldthe everyday world as
well as that of business, philosophy, and the academic humanities generallyit 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 a non-exclusive
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 literallywhich are ubiquitous
in statutes governing businesses and their officials, government agencies and officers, and
securities regulationare 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 jurisdictions 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 childs alleged incompetence
seems to be tied to the childs lack of the adults 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 infanti.e., on her or
his guardian and counsel 22).
16

759 F.Supp. 1543, revd 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).
17

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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 Yorks 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
persons 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 culturenot 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 persons 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 mans
movements and mandate intensive counseling, among other things. 27 The court refused to
grant the parents request under New Yorks 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

N.Y. Ment. Hyg. L. 1.03(3) (McKinneys 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.
24

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The word animal is generally taken in common language to mean every living
creature except a human being 29or, 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 personshumans (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 sources 32). 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
animalssome or allhave sentience in even the smallest degree. The biggest barrier to making
such a determination is of course the fact that (most) animals are incapable (or, possibly, very
unwilling) to engage in a human mode of communication. 34 Of course, as some would point out,
human infants are also incapable of linguistic communication though most possess the potential
for developing the ability with time.
Notwithstanding the above however, environmental protection and conservation statutes
with citizen-suit enforcement provisionsparticularly 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 involvedand 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 personindeed, what is meant by who as opposed to what
29

N.Y. Agri. & Mkts. L. 350(1) (McKinneys 1999).

3 N.Y. Jr. 2d Animals 3 (Thomson Reuters 2010).
31
Referencing the language of New Yorks Agriculture and Markets Law 353 (McKinneys 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 (1st 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.
30

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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 categoriesalone and intermixed, implicitly and
explicitlyform 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).

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opposed extremesfrom 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-)entitieswhich are ontologically human enterpriseswhich 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-awarenessthat 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 personand the dignity that comes
with personhoodis 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
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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 crimewhich per scienter an animal
is incapable of committingso 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 personor better, humans/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 seemsee, 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 laware 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.
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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 personif, 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) persons 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 Blacks 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 dignitypossession as a qualityis 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 itselfits 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 persons freedom, limiting self-determination. The deprivation of dignity inheres in
39

Functional and Comparative Genomics Fact Sheet. Human Genome Project, U.S. Dept 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. Blacks Law Dictionary 9th ed. (Thompson-Reuters, 2010).
43
Dignity. Wikipedia (30 October 2009). Accessed 7 December 2010. http://en.wikipedia.org/wiki/Dignity.
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those situations where the State, or authorized lay persons, have permission to curtail another
persons freedom. For example, personal dignity can be violently deprived when a person is
incarcerated, incarceration being essentially a curtailing of a persons freedom (freedom of
movement, freedom of choosing ones activities and enterprises, freedom of association, etc.).
Childrens dignityhowever much children are said to have to begin withis legally curtailable
by their parents or legal guardians or the State, allowing parents and guardians to limit a childs
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 persons unjust deprivation of freedom, which is the
same as their dignity as persons. Dignity means fundamentally a respect for a persons
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 persons body).
By way of illustration, in order for slavery to have been in any way justified (and of
course it cant 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 slaves rights and freedoms. 44 Hence
racial classificationshierarchieswhich 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 cant 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 audiences 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.
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which necessitates choice rather than invention since dignity has an incredible wealth of
historical context behind it.
6. Juristic 49 Persons
And finally, we come to the treatment of certain organizationsgroups of people in a
social organizationas 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
Sartres essential thesis in Being and Nothingness. 50 The following should not be construed as
the authors 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 objecta rock, for exampleconsciousness 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).
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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 consciousnessa
persondies.
Who. So what are we? And what is an individual, a who? The answer is nothingnot 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 existentialand only in an existential senseall 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 werent a curtailment of someones
freedom, of their dignity? Thus, in another sense, personconsciousnessis 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.
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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 limitationsfor 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 bodytheir 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 bodyeither by recalling memory or observing the body,
feeling the bodyit 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 thingsthe universeexist 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 qualitiesempty, 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
consciousnesss 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 essenceit 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
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have to be resigned that such a testlike all true tests perhapscould 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 consciousnessesi.e., are persons.
Does it follow then that consciousness only arises in certain bodiesspecifically, 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 consciousnesss 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
firsts 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, consciousnesss 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 anothermeans 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 cant ever get a hold of what another sees us as (we cant 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.
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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
casenamely, the statute for the particular crime Mr. Maciel-Alcala was charged withthe
entire case in retrospect would likely have been avoided had a clear definition of person existed
to guide the courts 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 Sartres existentialism is that is permits
of no such thing as an unconsciousat 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 impulsesmachines
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 Sartres 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
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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 scienter 57 or in criminal law mens rea 58 refers to deliberate intent, preimagined and reflected-upon goals and action taken in furtherance thereof. Criminal statutes
distinguish between the degrees of murderor 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

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. Blacks 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. Blacks Law Dictionary, 9th Ed. (2009).
59
See, for e.g., New York Penal Law 40.15 (McKinneys 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., Arizonas 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 (McKinneys 2010).
57

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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.

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