“Killian, don’t get distracted. I’m just saying that Rodney—”
“Forget Rodney! We’re done with him. You just said a human being is too unstable a thing to be relied upon. You said that. I heard you!”
Sarah recoiled in her chair, laughing still. Jonathan, patting her back, poured more wine in her glass. “I think you’re going to need this, dear.”
“Drink up quick!” Killian pointed at her wine. “You’ve got some ’splainin’ to do.”
Sarah took a long sip and let her head gently swirl. She so rarely drank like this, but her lightheadedness, her slower and deeper heartbeat, the way her back muscles eased and relaxed from the alcohol, it was all so welcome tonight. “You know exactly what I’m referring to, Killian: the category of personhood in law. Its tumultuous history. And because the law never sits still, at any given moment personhood is an unstable concept. It was born as a fictional category, and it continues to be one. That instability is active and developing, that’s all I meant. I wasn’t making any epistemological rulings on the judicial mind. It was a minor, tangential thought.”
“Uh-oh.” Killian nudged his wife in the ribs and nodded authoritatively. “People are fiction, Gloria. Bet you didn’t know that. Means you’re not really here. What’ll I tell the kids?”
Gloria laughed with her mouth wide open, as if her bountiful joy had far too much force behind it to be channeled through a smaller opening.
“You know as well as I do, Killian, that constructing personhood has always been one of the principal actions of law. It’s particularly important for women to recognize that process, Gloria—more so than men—because the person that the law long assumed us to be was a decidedly male creation. For centuries, we didn’t qualify.”
Killian groaned. “Oh please.”
“Well, it isn’t now, of course, but it certainly was. Personhood was engendered in a way that’s largely invisible to men.”
“That’s done, Sarah. It’s a resolved question in every Western nation.”
“But constructing and limiting personhood didn’t stop with suffrage or the Nineteenth Amendment. It’s an ongoing process. That’s my whole point.”
“Your bat mitzvah speech, Sarah.” Jonathan was swirling his wine at the head of the table. “Tell them about it.”
“I was going to. So when I was thirteen, I had a bat mitzvah in an observant synagogue, which was a rather unusual thing to do at the time, because only boys were supposed to receive bar mitzvahs, you see, not girls. But I made a stink to the rabbi and the president of the congregation, and got a petition together, and won. I think I was just too interested in Jewish learning for them to ignore me, and it was New York, after all, and so ultimately what were they going to do? These weren’t the haredim. Anyway, there I was, reading from the Torah, the first girl in my shul to do so.”
“A pattern that you’d repeat rather brilliantly in your career,” Killian piped in.
“Well, that’s no matter. The Torah portion I was assigned was Yitro, which is taken from Exodus, and includes the Ten Commandments. Now, I had to give a Dvar Torah—that’s a little talk or lecture you deliver during your bat mitzvah about the meaning of something in your portion—and so naturally, I wanted to give mine on the Ten Commandments. My plan was to argue that there is much more to those commandments than a mere set of moral laws about what a Jew should believe or do. What they really are is a set of definitions about what it means to be a legal person in the first place. You see, I thought the commandments had a more primary function in Jewish law, something deeper than moral rules, and more basic. Well, the rabbi didn’t like that idea very much, and he told me I couldn’t do it. He was very paternalistic and condescending about the whole thing, really. I said I would indeed do what I wanted, and then he said no, I said yes, and so on and so forth. He wasn’t going to budge. So what I finally did, then, was write a separate dvar on some boring and traditional topic, and showed that to him, but when my bat mitzvah actually came around and I got up on the bimah, I read my original dvar, word for word. I remember the rabbi turning green in the pew, but he didn’t stop me. He couldn’t. A lot of other people in the congregation didn’t like what I said either. Too bad for them. Well, the next week the rabbi asked me and my family to come visit him in his office, and he told us in a very cold manner to please find another shul for all our religious needs. My parents pretended they were angry at me, but actually I could see they were quite proud, and they really did support me in the end. So we found another shul.”
“The Ten Commandments,” said Killian. “You were saying.”
“What I argued that day was that the Ten Commandments offers us a set of increasingly specific definitions of personhood. They build off each other, one through ten. So when you start at the beginning, you are nothing—I mean not a real person, just a living thing, and then as you proceed through the commandments in chronological order, you add another key aspect to your personhood, one by one, until you’re complete. Only when you’ve acquired all ten definitions can you be called a true person in the Western sense of the word. So I’ll explain. The first one is—”
“You shall have no other gods before me.” Killian sat up tall, and took obvious pleasure intoning that commandment.
“Why, yes, thank you. Now the traditional reading declares that’s about monotheism, of course. But in my alternate reading—as the first definition of legal personhood—the commandment says that a person is a singular, unitary thing, not multiple things or multiple people. You are one. You are contained. That is a very Western idea. In many cultures, community exists before singularity, so a monotheistic command or definition like this would not at all be the first in any consecutive series. But in the Judeo-Christian tradition, we always begin by assuming that a person is as unified as is our God. So now let’s move on. The second commandment, Killian?”
“You shall not make for yourself an image in the form of anything in heaven above or on the earth beneath or in the waters below. You shall not bow down to them or worship them; for I, the Lord your God, am a jealous God, punishing the children for the sin of the parents to the third and fourth generation of those who hate me, but showing love to a thousand generations of those who love me and keep my commandments.”
Jonathan laughed. “Good lord, Killian, how do you remember all that?”
“I don’t know how he does it.” Gloria shook her head in wonder. “He remembers everything,”
“He does the same thing in conference with statutory language. It’s scary. The entire U.S. Code.”
“Party trick,” added Killian, with obvious glee.
“Let me summarize,” Sarah continued. “No worshipping graven images. That’s fine. Now, graven images are things. See, that’s how this defines personhood—a person is not to be confused with a thing. A person is a unified creature, we’ve already learned, but now we add this second definition: there is more to a person than his or her material body.”
“Blasphemy!”
“I’m talking about a secular reading, Killian. Not a religious one. Now, what’s the next commandment?”
“You shall not misuse the name of the Lord your God, for the Lord will not hold anyone guiltless who misuses his name.”
“Thank you. So, to be a person—definition number three—means you have to live within a system of language. I think the name of God, here, functions as a synecdoche, standing in for all of human language. It means you have to follow linguistic rules and respect those rules. And that’s true, right? How can you be an active legal person without first agreeing to participate in communication? All contracts, rights, writs, commands, they’re all dependent on language. So this says that being a legal person is to be a servant of language, and never its master, no matter how deftly you might mold and bend it.”
“Nice. Continue.”
“We have three legal definitions so far. One—a person is unitary. Two—a person is not to be confused with a material thing. And three—a
person lives inside language, and has to respect its rules. Now we reach legal definition number four.”
“Remember the Sabbath day by keeping it holy,” Killian chanted. “Six days you shall labor and do all your work, but the seventh day is a Sabbath to the Lord your God.”
“Okay, enough. I don’t need the whole thing. Definition number four has to do with time. The life of a legal person exists in structured units, the sequential time of yesterday, today, tomorrow. Remembering the Sabbath day means acknowledging that you exist in this universally agreed-upon temporal system, and that you respect its units—minutes, days, weeks, et cetera. Past and future. Now, think for a moment. Contrast that temporal state of being with one of living inside the perpetual present, as, say, an enlightened Buddhist might do, or a mystic in any tradition. See, mysticism has always explicitly attacked legal institutions—in Judaism there’s been a conflict for millennia between the rabbinic tradition and the mystical one, the Halachah and the Kabbalah. You see traces of that conflict all the way back to the Sadducees and the Pharisees. The main aspect of mysticism is abandoning personhood, losing the self, and one of the most important components of that loss is the abandonment of sequential time. Across cultures it’s the same. But what this definition number four describes is the opposite of a mystical journey. This is a normative one. We must gain time, not lose it. We are building up our personhood here instead of tearing it down. You must adopt sequential time if you want to adopt personhood.”
“Oh, you are clever.” Gloria shook her head. “I suppose we should know that by now, but sometimes it’s overwhelming.”
“There’s more.”
“My brain’s beginning to melt.” Jonathan smirked in jest at her.
“Well, I can stop, Jonathan.”
“No way,” said Killian. “Continue. We’ll mop up your husband’s oozing brains once we’re done. Honor your father and mother. That’s next.”
“Just get to the point about gender, Sarah.” Jonathan rolled his hand.
“Well, I’ll skim the next few. Honoring your mother and father should be obvious enough. A legal person is defined by his or her familial and personal relationships, by interpersonal context. As a person, you are a mother, brother, sister, friend, what have you, within the society of people. Those and other relationships further define you legally.”
“Wait a second.” Killian held up his hands, stopping her. “Everything you have said about these commandments is equally applicable to both genders.”
“You’re right—so far, all of our definitions apply to any person, male or female.”
“You said ancient personhood only defines men.”
“I’m getting to it, Killian. Be patient. Tell me what’s next.”
“No murder.”
“In so many words.”
“Thou shalt not!”
“Yes, and after?”
“No adultery, no stealing, no—”
“Okay, stop. Those three. No killing, no cheating, no stealing. They’re all functionally the same. A legal person has to respect limits regarding the other people surrounding him. Because a person lives within society. Now, those three particular prohibitions mentioned in Exodus are basic to many legal systems, but not all of them. And there could be other specific prohibitions. In the American tradition, for example, a legal person can’t kill or steal, but adultery’s certainly not regulated. That doesn’t change the basic point, that there are various acts in society that a legal person can’t do to other people. There are limits upon his actions.”
“And how about after that?” asked Killian. “You shall not give false testimony against your neighbor.”
“Now, this is where we get more refined and subtle. Which one is this, Killian? Number nine?”
“Nine it is.”
“Good. This commandment says that a legal person has the capacity for deceit. For lying. In definition number nine, the law now understands each of us to have a hidden self. This says a person has both public and private qualities, and the law must make a distinction between the two. You shall not give false testimony means that only the public self will be regulated by the law. For now, it says nothing about the private self.”
“Oh no.” Killian groaned. “Please tell me we’re not going to get into privacy. I don’t for one second believe the Bible says anything about the legal self getting an abortion.”
“Killian,” scolded Gloria.
“I don’t think the commandments have anything to say specifically about abortion.”
“Fine. Then we can continue.”
“A person’s acts can be regulated. But commandment number nine says nothing about his thoughts or inner life. That’s all. This definition of legal personhood merely refines the earlier ones about limits on a person within society. It distinguishes between what a person says or does and what he thinks. But now we get to my big point. Finally. Killian, please, drum roll—the last commandment. Number ten!”
“You shall not covet your neighbor’s house. You shall not covet your neighbor’s wife, or his male or female servant, his ox or donkey, or anything that belongs to your neighbor.”
“There: You shall not covet your neighbor’s wife.”
“Or his house, or his donkey.” Killian wagged a finger at her. “Let’s not forget that donkey lovers are disallowed.”
“Your neighbor’s wife. That’s what I objected to way back when in my bat mitzvah. But my goodness, there’s so much in this one. It’s difficult to unpack. Most significantly, commandment number ten claims that a legal person can have his thoughts regulated. Yes? Covet deals with thoughts. That is a truly shocking statement to our modern ears. We disagree with it on instinct. But also, along with that rather restrictive limit on a legal person’s thought, this definition assumes that our subject is male. It’s the only such indication in the Ten Commandments, but there it is, clear as day. A person is male, a straight male.”
“Or a lascivious lesbian. Hiding in the bushes, coveting our wives.”
“Somehow, Killian, I don’t think that’s what they had in mind.”
“Well, no, the key word there is covet.” Killian crossed his arms and frowned, as he did in conference when he disagreed with a colleague. “Not wife. Your definition just means that a legal person, male or female, shouldn’t covet anything or anyone—his neighbor’s wife, or husband, or whatever. Don’t covet the teenage nannies and buff trainers either, for that matter.”
“I think it’s significant that this authoritarian and obstructive definition of personhood ends the series. This is the only one of the ten that wants to prescribe not just the legal person’s actions, but also his thoughts. And I think it’s no coincidence that this same intrusive and violent definition of personhood also distinguishes between masters and slaves, and between women and men. There is violence and hierarchy in this definition. That’s because what we have here is the pre-modern definition of person hood, one that claims you must be a master and land owner to even exist. If you are owned, in other words, you cannot be a legal person. That was certainly true for a long time. You can’t be female either and be a person. Right? The curse of womanhood excludes you from that precious legal club. So what we have here is an arcane definition of personhood, pre-democratic, that says not all individuals are created equal. Some are superior to others. Some are excluded from the major category. Moreover, thoughts can be regulated. Slavery is sacrosanct. Gender bias is a cornerstone, enshrined. And, remember, this is the crowning definition of personhood in ancient law! What could be more basic than the Ten Commandments? All of the previous nine definitions were basic, and this tenth one was thought to be just as important as the others. So I think that should give us some indication of how crucial sexism was to the initial conception of legal personhood. I have long believed that those sexist and violent roots are still buried in the soil of the Western legal tradition. It took centuries to excise most of them out, but some traces are still there. And still today personhood is
growing and changing, and always at risk of recidivism. That was my big point in my bat mitzvah speech.”
Sarah sat back and sighed. Killian started to applaud.
“Bravo! Really, Sarah. Brilliant. Although I happen to think you left out several grave implications for donkeys and oxen. But still, impressive. Unfortunately, though, your magnificently constructed argument supports a bunch of relativistic nonsense. I admire you immensely, and disagree with you entirely.”
“Thank you, Killian. That’s very kind.”
“And since you’ve invited me into your lovely home, plied me with superior wine, and fed me the choicest of lambs, I will not eviscerate your argument publicly, although I would like to reserve the right to do so at a later date.”
“Again, generous, but I won’t accept it. I don’t believe we should leave this important matter unsettled. If you’re so set against my argument, Killian, why not put it to a vote? Of all present. All who heard the argument.”
“Interesting. Why not? What do we do in case of a tie?”
“What we always do, Killian. The decision of the lower court stands. In this case, that would be the traditional view of the Ten Commandments as a moral and religious guide for already established, contained selves.”
“So the odds are in my favor.”
“We’ll see.”
“Agreed. But I get to play Chief Justice, for once.” Killian cleared his throat, and then adjusted his voice into a gravelly approximation of Charles Eberly’s. “All those in favor of Justice Kolmann’s heretic, relativistic, morally bankrupt albeit beautifully argued point that the Ten Commandments are nothing but a patriarchal power play in the sordid tradition of Michel Foucault, please raise your hand.”
Laughing, Jonathan and Sarah raised their hands high, but Gloria hesitated. She blushed under the pressure, but then, sheepishly and slowly, raised her hand. She squeezed her eyes shut. The Kolmanns roared in pleasure.
“Gloria Scarlotti Quinn!”
“I’m sorry, Killian!” Her hand was still aloft.
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