ABSTRACT
In most cases where this experiment is conducted, most people envisage a man: Mr Anybody.1 The reason is that there is a deep powerful tradition of thinking of standard, paradigmatic persons as men and of seeing women as something else again. This deep automatic thinking about the sex of persons, I suggest, is to be found in law and remains troubling for the moral and legal personhood of women. Though there are two sexes, and though women are slightly more populous than men, it is a man who forms the automatic idea of a person. Sex and personhood tend to be incompatible legal concepts for women, while they tend to be compatible for men. There is an easy unthinking automatic conflation of men and persons, culturally and in law, which we just witnessed (culturally) in the simple thought experiment. This chapter seeks to explain and defend this proposition: that the personhood and the sex of women remain in tension in law. Before this chapter comes to look too much like old-style feminism, the sort
that alleges that men are the social and legal norm while women are always the exceptions, the odd ones, who must fit themselves to the male case, I need to complicate things by explaining the multifaceted nature of modern legal personhood. The matching or mismatching of women as a sex with legal persons is
not as simple as my thought experiment might suggest. For there is serious disagreement in legal circles about what constitutes a legal person, and this disagreement must be factored into the experiment of matching women to persons. This disagreement about the nature of legal personhood is not always made explicit. Sometimes it resides in the background premises about the role that law should take in reflecting what is thought to be our human nature – whether law should reflect that nature or remain fully autonomous. Sometimes it resides in the background premises about what that nature is (supposing that there is such a thing at all). For the present exercise, it is therefore important to identify the varieties of legal persons and to appreciate that women are being matched to different legal beings, depending on context, purpose and the scheme of interpretation of the one doing the matching. These various competing understandings of our purported human natures
(which I will explain shortly), and the role that law should take in reflecting them, must be catered for in our basic exercise. We need to acknowledge that law’s concept of the person changes according to the guiding scheme of interpretation; that legal persons are therefore multiple rather than singular; that within different parts of law some views of the person hold greater sway than others. These different understandings of the term ‘person’, depending on their influence, implicitly determine whether women are fitting legal persons, as women. This complex approach to legal personhood (and to women’s capacity for personhood) is therefore at odds with the view, once held by some feminists (perhaps myself included), that law adopts a monolithic or singular or static view of the person which, in turn, either forces women out or obliges them to conform to it if they are to be regarded as persons too.
