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Vol 23 No 3 March/April 2018

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Law's Meaning of Life: Philosophy, Religion, Darwin and the Legal Person

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ISBN13: 9781841138664
Published: January 2009
Publisher: Hart Publishing
Country of Publication: UK
Format: Paperback
Price: £35.99

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The perennial question posed by the philosophically-inclined lawyer is 'What is law?' or perhaps 'What is the nature of law?' This book poses an associated, but no less fundamental, question about law which has received much less attention in the legal literature. It is: 'Who is law for?'

Whenever people go to law, they are judged for their suitability as legal persons. They are given or refused rights and duties on the basis of ideas about who matters. These ideas are basic to legal-decisionmaking; they form the intellectual and moral underpinning of legal thought. They help to determine whether law is essentially for rational human beings or whether it also speaks to and for human infants, adults with impaired reasoning, the comotose, foetuses and even animals. Are these the right kind of beings to enter legal relationships and so become legal persons. Are they, for example, sufficiently rational, or sacred or simply human? Is law meant for them?

This book reveals and evaluates the type of thinking that goes into these fundamental legal and metaphysical determinations about who should be capable of bearing legal rights and duties. It identifies and analyses four influential ways of thinking about law's person, each with its own metaphysical suppositions. One approach derives from rationalist philosophy, a second from religion, a third from evolutionary biology while the fourth is strictly legalistic and so endeavours to eschew metaphysics altogether. The book offers a clear, coherent and critical account of these complex moral and intellectual processes entailed in the making of legal persons.

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1. The Question: Who is Law For?
Is this the Right Question? The Question Disputed
Matching Law to Life: the Question Affirmed
Competing Views of Human Nature and their Implications for Law
The Concept of the Person and its Problematic Nature
Instability of the Concept of the Legal Person
Social Significance of the Concept and its Implications for Justice
Law's Changing Community of Persons
The Mission
Finding the Legal Person
2. The Debate: Legalists v Realists
The Positions
The Legalists
The Metaphysical Realists
The Rationalists
The Religionists
The Naturalists
Setting the Boundaries of Personhood
Disciplinary Influences
The Thinkers and their Creation Stories
Etymology of Persons
3. Strictly Legal Persons
The Person as a Purely Legal Creation
Law as a Closed System
The Legal Person as Legal Language Use
Hart and Wittgenstein
Keeping the Legal Legal
4. Loosening the Strictures
The Legal Person as a Cluster Concept
Division Between Persons and Property
Chameleon Nature of Personality Strictly Conceived
The Legalist's Person in the Courtroom
Can We be Strict about Persons?
Hohfeld on Legal Conceptions
Real Uses of Persons
5. Moral Agents and Responsibility
Creation Story
The Legal and the Philosophical Person
Influence of Kant
Gray on Legal Persons and the Rational Will
Will Theory of the Person
Respect for Persons and Responsibility
The Legal Subject of Criminal Law
Two Criminal Legal Thinkers
The Uncompromising Michael Moore
John Gardner: the English Rationalist
Are We Really So Rational?
6. Persons of Limited Reason
Ronald Dworkin on the Patient as Author of a Life
Safeguarding the Future Person: Dena Davis and the Child's Right to an Open Future
Persons in Training: Mrs Gillick and the Contraceptive Advice
Rationalists on Non-persons
Recognising Reason
Emotional Intelligence
7. The Divine Spark: the Principle of Human Sanctity
The Human Rights Movement and the Revival of Belief in Human Preciousness
Ronald Dworkin on Human Sanctity
The Human Person and the Catholic Church
John Finnis on Law's Person
8. Human and Non-human Animals: the Implications of Darwin
What We might have Expected after Darwin
Intelligent Design and Kitzmiller v Dover
Humans as Animals
Dismantling the Human/Animal Divide
Peter Singer and the Levelling of Humans
The Cases of Baby Theresa and Baby Fae
Animal Lawyers and the Elevation of Animals
Steven Wise and the Intelligent Apes
Gary Francione and the Abolition of Property in Animals
Legal Response
Cass Sunstein: Questioning the Species Divide
Buttressing Humanity
9. Embodiment: Humans as Biological Beings
Kant and the Body in Law
Principle of Bodily Integrity
Making Sense of the Legal Body: the Compromised Naturalism of Ronald Dworkin
Dawkins v Dworkin
Humbling Naturalism of Gray and Fernandez-Armesto
Embracing our Creature Status: Moral Philosophers and Legal Feminists
Jennifer Nedelsky and the Bounded Self
Reconciling Agency and Animality
10. The Myths We Live By
Cash Value
Four Metaphysical Approaches
A Fifth Approach: the Relational Person
Legal Philosophies as Acts of Faith and Incommensurable World Views
Distinctive Nature of the Legal Enterprise
Why Law is Still Flexible
Should Personality be Severed from Human Beings?
Implications for Justice
The Myths We Live By