Saturday, May 21, 2011
I would like to thank Rick for his posting regarding his post on Christian Smith’s new book What Is A Person? A few years ago, I had the wonderful opportunity to address a similar question at St. Thomas University where I was graciously hosted by several of our Mirror of Justice friends at that fine institution. On that occasion, I acquainted the audience with the words of Blessed John XXIII who stated in Pacem in Terris, N. 9,
Any human society, if it is to be well-ordered and productive must lay down as a foundation this principle, namely, that every human being is a person, that is, his nature is endowed with intelligence and free will. Indeed, precisely because he is a person he has rights and obligations flowing directly and simultaneously from his rights and obligations flowing directly and simultaneously from his very nature. And as these rights and obligations are universal and inviolable so they cannot in any way be surrendered.
I have the impression that these words in the legal academy of today—and much of the rest of enlightened society—would sound strange. While there may be agreement on what is a human being, it appears that there is disagreement on what is a person. But the disagreement should not exist.
Blessed John has it right, and his words provide the means for understanding who is/what is the human person. As legal academics, we know that the positive law recognizes that there are two kinds of persons before the law—juridical and natural. In the context of the matter investigated by the Smith book, the inquiry concentrates on natural persons—you and me.
But what constitutes this entity we call the natural person?
Lawyers and the rest of society, surely since the 1973 decision in Roe, have been arguing over this and related issues for some time. It would also seem that the connection between rights or claims and obligations or responsibilities identified by Blessed John confound many, including some members of the academy. Of course the debates and disagreements that emerge from the juxtaposition of these two subjects, i.e., rights and obligations, were brought to a head in Dred Scott. There was no question that in reality Dred Scott was a person; however, the law, as formulated by five of the seven members of the Supreme Court (who, by the way were also persons) said otherwise. We sort of get that same conclusion, albeit in different wording, in Roe v. Wade from the majority opinion. What rights can a human being/human person claim, and what obligations are owed to this claimant? That is the question.
It took the Civil Rights amendments to the Constitution to address and correct Dred Scott. It will take something else to rectify Roe. While the law can define/redefine the juridical person which is, in essence, a legal fiction, should it be able to do the same regarding the natural person? In this context, the dissenting opinion of Judge Adrian Burke in Byrn v. New York City Health & Hospital Corp. explains well the limitations on the state to determine the reality of who is a natural person and therefore who should be such a person before the law. The implication of his dissent was that if the state could determine this matter by ignoring the reality of the human being, the basis for fundamental human rights would eventually be undermined by human whim and caprice. That is what happened in Roe. This is also what happened in the Germany of National Socialism and in the United States of the ante-bellum era. These historical contexts demonstrate how human law, when detached from right reason, can betray recognition of who is and must be considered a person. The failure to acknowledge the reality of the human being who is the human person brings to a head the relationship between rights and responsibilities noted by Blessed John.
The failure to understand this relationship which is crucial to answering who is the human person continues to the present day. What is needed to rectify this failure? The wisdom of right reason and objectivity to illuminate and chart our course so that we might better understand who is person is essential, and John XXIII understood this well and shows the path necessary to protect the most vulnerable members of our human family.
Why should we worry about them? Because they are us, and we are they. The right reason of the Silver and Golden Rules merge, make sense, and apply here: “Do to no one what you yourself dislike,” and “Do to others whatever you would have them do to you.” This is the complementarity of rights and obligations noted by Pope John. With these two rules and the assistance of John XXIII in mind, the convergence of God’s desires for the natural person and the human law will enable those engaged in the debates about who is person understand with greater wisdom what is at stake.