Law and the Concept of the Core Self: Toward a Reconciliation of Naturalism and Humanism

Abstract

This piece examines perhaps the most important concept in moral and legal thought-the idea of the person, or the self. Since at least the time of Descartes, the modern worldview has been poised between the two seemingly compelling yet mutually exclusive paradigms of traditional humanism and scientific naturalism. The traditional humanist paradigm, as I use the term,4 views persons as free and responsible for their actions and ultimately for who they are and what they become as persons. As such, the self stands apart from the world in the most significant way, morally and metaphysically, originating acts spontaneously, freely, and independently of the external world. Scientific naturalism, on the other hand, holds that each individual is fundamentally part and parcel of the natural world, the product of material states and processes working themselves out in mechanistic fashion. On such a view, human action is the predetermined product of a chain of causes extending backwards in time indefinitely and again forward in time perpetually. On this account, the concept of the autonomous self is dismissed as the central fiction of a prescientific folk psychology. Our modem view of the person is characterized by a tenuous modus vivendi between the insights of traditional humanism and those of scientific naturalism. We need the traditional concept of the core self; it is the bedrock upon which our entire moral and legal system is based, yet we do not really believe that there is such a thing. It is a phantasm, a chimera, at best a reification. It works, but it does not exist. This puts the modem defender of our moral and political order in something of a difficult position. Part II of this Article considers three important functions played by the concept of the core self in modem legal thought: (1) the self as the predicate for attributing moral and legal responsibility, (2) the self as the subject of rights, and (3) the self as noncommodifiable human essence. Part III surveys the philosophical history of the core self, including an overview of what we may presume are the necessary constituent elements of personhood-free will, rationality, functional unity, and essential uniqueness. Part IV examines the attack on the core self from the standpoint of deterministic metaphysics, empiricist epistemology, the mind/body problem, and recent psychological thought. Here the Article argues that each of these four modes of attack issue from a kind of reductionism each of which is bom of an unnecessary dualism-i.e., between mind and body, world and self or substance and property. A new ontology is needed to transcend these dichotomies. Part V seeks to construct such an ontology, a "new naturalism," based on the idea of emergent evolutionism. Part V(A) elaborates a solution to the mind/body problem that reconciles the modern naturalis- tic worldview with the traditional conception of the person. Part V(B) examines the problem posed by determinism, offering a conception of human freedom based upon the idea of self-determination that is consistent with deterministic assumptions. Part V(C) then investigates the problem of authenticity, the notion, vitally important to certain strands of modem liberal thought, that there exists a presocial self. Part VI discusses the implications of this view of the self to the issues central to legal thought addressed in Part II. Part VI(A) sketches general answers to the problem of human identity and to questions concerning the constitutive aspect of the self. In this section, I elaborate upon the idea of self-creation through the process of "internalization." The issue of commodification as the central jurisprudential problem connected to the issue of self-identity will be addressed. Part VI(B) examines the relationship between self-identity and freedom of will by examining the problems posed by such excuses as duress, brain-washing, and social conditioning, among others. I distinguish volition, freedom, and autonomy, and put forth a developmental theory of autonomy. Finally, Part VI(C) concludes with comments about the relationship between the developmental conception of the self and the rights of privacy and equality. This Article aims to develop a rapprochement between the humanis- tic and naturalistic paradigms. The piece attempts to demonstrate that determinism does not preclude a robust sense of personal freedom, and that "physicalism," in an expanded sense of the term, does not exclude the realm of the mental, and suggests that modern psychology has much to contribute to our traditional concepts of authenticity, autonomy and personal identity. This expanded understanding of the self will then serve as a basis for moral and legal judgments concerning questions of moral and legal responsibility, for our conception of rights, and for issues of personal identity central to recent jurisprudential debate.