Jurisprudence and Gender [1988]

What is a human being? Legal theorists must, perforce, answer this question: jurisprudence, after all, is about human beings. The task has not proven to be divisive. In fact, virtually all modern American legal theorists, like most modern moral and political philosophers, either explicitly or implicitly embrace what I will call the “separation thesis” about what it means to be a human being: a “human being,” whatever else he is, is physically separate from all other human beings. I am one human being and you are another, and that distinction between you and me is central to the meaning of the phrase “human being.” Individuals are, in the words of one commentator, “distinct and not essentially connected with one another.” ¹ We are each physically “boundaried”— this is the trivially true meaning of the claim that we are all individuals. In Robert Nozick’s telling phrase, the “root idea” of any acceptable moral or political philosophy is that “there are individuals with separate lives.” ² Although Nozick goes on to derive from this insight an argument for the minimal state, the separation thesis is hardly confined to the libertarian right. According to Roberto Unger, premiere spokesperson for the communitarian left, “[t]o be conscious is to have the experience of being cut off from that about which one reflects: it is to be a subject that stands over against its objects . … The subjective awareness of separation … defines consciousness” ³ The political philosopher Michael Sandel has recently argued that most (not all) modern political theory is committed to the proposition that “[w]hat separates us is in some important sense prior to what connects us—epistemologically prior as well as morally prior. We are distinct individuals first, and then we form relationships and engage in co-operative arrangements with others; hence the priority of plurality over unity.” ⁴ The same commitment underlies virtually all of our legal theory. Indeed, Sandel’s formulation may be taken as a definitive restatement of the “separation thesis” that underlies modern jurisprudence.