by Ngaire Naffine. Oxford: Hart Publishing, 2009. 206pp. Paper $50.00/£25.00. ISBN: 9781841138664.
Reviewed by Mark Navin, Department of Philosophy, Oakland University. Email: navin [at] oakland.edu.
In this book, Ngaire Naffine approaches fundamental issues in legal theory from a new direction. While traditional philosophies of law begin with questions about the nature or justification of law, Naffine asks “Who is law for?” (p.1). She promises to explore the way in which law constructs a legal person from legal and extra-legal (for Naffine, “metaphysical”) resources. This is an original approach to legal theory, and its focus – on who law is for – helps to unite seemingly disparate legal debates, including those about abortion, euthanasia, and the rights of women, children, and animals.
Naffine identifies two main goals for this work (pp.13-4). First, she wants to discover the way in which law’s person is informed by philosophical, religious, and scientific conceptions of human nature. This is a descriptive project, one that pays attention to case studies and the broader jurisprudential literature. Second, Naffine wants to evaluate the way in which law responds to these extra-legal conceptions of personhood. This is a normative project, one that requires a sustained theoretical argument in defense of a particular relationship between legal persons and philosophical, religious, and scientific conceptions of human nature.
The first part of Naffine’s project is a success. She does an effective job of reviewing case studies and the relevant literature. She convincingly argues that law is not a self-contained system, but one that frequently looks beyond purely legal conventions and norms in order to construct the concept of legal personhood. Readers who are looking for a well organized discussion of the (often schizophrenic) way in which the positive law appropriates extra-legal conceptions of human nature would do well to rely upon Naffine’s guidance.
While this first part of Naffine’s project is relatively strong, it suffers from her frequent reliance upon caricatured philosophical positions. This frustrating practice distracts from the valuable work that Naffine does in explaining the extra-legal sources of law. Furthermore, her reliance on such straw men makes her (later) arguments against such positions vacuous. An argument which concludes that we ought not to hold a thoroughly unattractive view is not much of an argument. To be clear, there is nothing wrong with the manner in which Naffine sorts the various extra-legal (metaphysical) conceptions of the person. It is sensible to contrast the views of those who think that persons are beings who can reason, with the views of those who think that persons are beings who have souls, with the views of those who think that persons are beings who have animal bodies. This rough distinction, between [*694] Rationalists, Religionists, and Naturalists (to use Naffine’s terms), is a helpful way to frame the examination of extra-legal conceptions of human nature. What is unfortunate is that Naffine relies upon caricatures of these positions and that she distorts the views of those whose arguments she claims to explain. I provide two examples of such distortions, one concerning her depiction of Rationalism and the other concerning her depiction of Naturalism.
Naffine claims that Rationalists – those who think that personhood is a matter of cognitive capabilities – overestimate the importance of reason in human lives. On her view, they think of persons as atomistic and self-sufficient beings, creatures that are capable of being entirely separated from their ends. She claims that (Rationalist) philosophers like John Locke and Immanuel Kant think that a person’s “social relations are inessential . . . [and that] he is a rational self-determining person well before he engages with and contracts into society. He is untroubled by the long periods of dependence which compromise the lives of us all” (pp.76-7). Quite reasonably, Naffine observes that the law ought not to be based exclusively on a conception of the person that is so inconsistent with our experience of human beings (pp.63, 78-9). Real persons are not atomistic and wholly rational beings whose ends always result from deliberation and choice. Law’s persons ought not to be either. In response, I think that Naffine has offered a caricature of the views of (Rationalist) liberals like Locke and Kant (not to mention those of their contemporary cousins, like John Rawls). Contrary to what Naffine claims, these liberals accept that we necessarily have social ends, that most of our ends result from circumstances other than our choices or deliberations, and that it is impossible to conceive of persons as separate from (all of) their ends. These (Rationalist) liberals emphasize the role of reason in their conceptions of legal personhood to explain why the paradigmatic authors and subjects of law ought to be beings that can offer reasons for creating law and for using it to advance their ends. Of course, these (Rationalist) liberals may be wrong about the relationship between reason and legal personhood. It might be the case that beings with lesser cognitive abilities should also make and use law. However, Naffine does not purchase the right to this conclusion merely by showing that her Rationalist straw men are committed to ridiculous conceptions of the human person.
Naffine says that Naturalists – including David Hume and Charles Darwin – think that humans and other animals ought to have the same fundamental legal status. This is because Naffine’s Naturalists realize that humans are on a biological continuum with other animals (pp.119-122). As Naffine says, contemporary Naturalists claim that “[a]fter Darwin, we should start to see animals and humans as categorically similar in law” (p.124). Admittedly, some might conclude, on the basis of their biological similarity, that the law ought not to make fundamental distinctions between humans and other animals. However, such people make a serious error in reasoning. Mere biological similarity – even similarity of biological etiology – does not suffice to ground similarity of legal or moral status. Certainly, Hume did not think that it did. For example, see his claim in the second ENQUIRY that animals ought to be treated kindly, [*695] but that we are not bound to them by principles of justice (Hume  1976, pp.190-191). This, he says, is because animals’ various limitations make them incapable of being equal partners in society with us. Likewise, I do not think that Darwin made this mistake either. Recall that Darwin says, in DESCENT OF MAN, that humans possess “noble qualities” and “exalted powers,” including “sympathy . . . benevolence . . . and a god-like intellect” (Darwin 1902, p.497). Clearly such capacities might motivate differential treatment of humans in the law, were we able to show that the other animals lacked such capacities. If Naffine’s Naturalists are committed to the view that biological similarity grounds similarity of legal status, then Hume and Darwin (and like-minded thinkers) are not the paradigmatic Naturalists she claims that they are.
The second part of Naffine’s project – the evaluation of law’s use of extra-legal conceptions of human nature – is a failure. Simply, there is no sustained theoretical argument in this book by which Naffine might fulfill her promise to evaluate law’s reliance on extra-legal (metaphysical) frameworks. Instead, most of the book consists of (usually helpful) summaries of others’ views, with some scant criticism confined to a few paragraphs at the end of each chapter. However, even here, Naffine rarely makes objections in her own voice, and, instead, reviews the criticisms of others. We find some explanation for this intellectual standoffishness in the final chapter. There, Naffine tells us that one’s commitment to a particular metaphysical conception of human nature is based only on “an act of faith” and that different extra-legal frameworks are “incommensurable” (pp.172, 173). On Naffine’s view, there is no way to compare and evaluate different conceptions of human nature. It is pointless, then, to try to show that one metaphysical framework is a better source of legal personhood than another.
I think there are good reasons to reject the sort of relativism about truth and value to which Naffine seems committed. However, what is most striking is that Naffine seems not to realize that her views about incommensurability doom her (albeit limited) attempts to evaluate law’s reliance on extra-legal conceptions of human nature. For example, Naffine claims (without much argument) that we ought to be pluralists about the sources of legal personhood. In her view, the law ought to be free to make use of various extra-legal resources, so as to respect the way in which our “multiplicity of personae” respond to the different relationships in which we are enmeshed (p.170). Furthermore, Naffine claims that it is wrong to insist that the law respond to only one of the metaphysical conceptions of the person. She claims that people who “insist that only one way of thinking is true and must be applied” are captive to “an obsessive, denying, and controlling instinct” (pp.174-5). First, this is a nasty ad hominem attack. Second, and more importantly, it is not clear that Naffine has left herself any room to advocate an alternative – pluralistic – conception of the ground of legal personhood. If a commitment to a particular metaphysical worldview is immune to reason (as Naffine claims), how can a commitment to a particular amalgamation of metaphysical [*696] worldviews (of the sort Naffine seems to endorse) be responsive to reason? For example, Naffine thinks that we cannot say that Rationalism offers a better conception of the person than Religion, since reason and argument do not enter into the choice of one framework over the other. Metaphysical frameworks, after all, are “incommensurable.” However, Naffine thinks that it is better to endorse parts of multiple extra-legal frameworks (to be “open minded” and have a more “moderate outlook”) than to endorse only one framework (p.167). But what reason can she give for why I – a dogmatic Rationalist, let’s say – ought to agree with her? If there can be no reason to accept dogmatic metaphysical views, it seems as if there can be no reason to endorse hybrid metaphysical views either.
It follows from her own commitments that the proposed evaluative component of Naffine’s project must fail (and would have failed even if she had marshaled arguments to try to carry it out.) If she is right about the incommensurability of various conceptions of human nature, even the very limited arguments that Naffine offers are impotent, and can provide no reason to think that law ought to rely upon extra-legal conceptions of human nature in a particular way. What remains of this book is Naffine’s good summary of the manner in which law has, in fact, responded to various extra-legal conceptions of human nature. Persons who are interested in this topic, and who are untroubled by the absence of analysis and evaluative argument, will find themselves well rewarded by Naffine’s LAW’S MEANING OF LIFE.
Darwin, Charles. 1902. DESCENT OF MAN. New York: American Home Library Company.
Hume, David.  1976. ENQUIRY CONCERNING THE PRINCIPLES OF MORALS, edited by L. A. Selby-Bigge and P.H. Nidditch. Oxford: Oxford University Press.
© Copyright 2009 by the author, Mark Navin.