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Can There Be Justice Without a Notion of Human Nature?
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17878 |
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Section : |
MODERN THOUGHT
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| Issue
Date : |
3 / 1990 |
7,883 Words |
| Author
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Russell Hittinger
Russell Hittinger is assistant professor of philosophy at
Fordham University. |
Justinian's Institutes was composed in Constantinople and published in A.D. 533. It is the greatest legal document of antiquity, summarizing nearly fifteen hundred years of legal experience. Justinian referred of law. At the outset, he noted that although all law is about persons, things and actions, the "law of persons" (jus personarum) is the most important. "There is little point in knowing the law," he observed, "if one knows nothing about the persons for whom it exists."
Even if we no longer accept this tripartite division of law into persons, things, and actions, Justinian was surely correct in saying that there is no point in knowing the law if one knows nothing of the persons it governs. The knowledge of persons would seem to require at least three kinds of knowledge, in addition to one's technical grasp of legal statues. First, a knowledge of law stands upon some broad philosophical assumptions, perhaps the most important of which is our understanding of precisely what it is about persons that renders them fit to govern and be governed by law.
The Western world did not have to wait until the nineteenth century, when Immanuel Kant distinguished between objects (subject to physical law) and persons (who come under moral law), in order to understand that persons and things come under the rule of law in significantly different ways. When a municipality erects a sign stipulating, "Dogs must be leashed," it is understood that humans rather than dogs are the object of the legislation. Not withstanding Sweden's recent Bill of Rights for barnyard animals, the plural traditions of Western law have, in a remarkably uniform way, assumed that persons are the subject or law and that the principle boundary between such subjects of law and other entities is marked by the difference of species.
Second knowledge of law stands upon assumptions - at once political and philosophical - about which persons come under the law, and to what extent. Justinian, for example, sorted out people according to their status as slave or free, male or female, and according to a principle that was crucial to Roman society: namely, the individual's place within his lineage. It goes without saying, that, as the inheritors of the eighteenth-century revolutionary tradition, we sort out people quite differently than did Justinian. When we speak of rights, privileges, and immunities guaranteed by law, our principle of inclusion is more generous and egalitarian. Indeed, we pride and legal culture that regards persons more according to natural than merely sociological principles of
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