Persons and Sovereigns in Ethical Thought

Abstract

Contemporary concepts of moral personhood prevent us from grappling effectively with contemporary social, political, and moral problems. One way to counter the power of such concepts is to trace their lineage and shifting political investments. This article presents a genealogy of personhood, focusing on the crisis of both personhood and sovereignty in seventeenth-century England. It demonstrates the optionality of personhood for moral thinking and exposes personhood’s functions in political dividing practices.

1. Introduction: Moral Anguish

In Western traditions, at least since the turn of the eighteenth century, ethical action and responsibility have been thought to lie with persons—that is, with free, independent initiators of pre-meditated or deliberate action. To be an ethical person means not only to perform good acts, but, in the first place, to provide oneself with a set of carefully chosen values or rules by which to live. An ethical person thus wields the powers of judgment, legislation, and execution within his or her sphere of influence much as a sovereign exercises those powers over a territory. Although prior to the late eighteenth century, thinkers did not use the term sovereign in their accounts of moral selfhood, their successors have not hesitated to do so. According to Paul Fairfield, all of the classical liberal thinkers hold that the self in general (and not merely in its ethical practice) “is a sovereign chooser which assigns to itself its own plan of life together with a set of values, principles, and beliefs without having to take direction from any higher authority” (Fairfield 2000, p. 16).

The idea that human beings are or ever can be “sovereign”—independent, or even psychically unitary in the requisite ways—has not lacked for criticism. In particular, it has been contested by psychoanalysts and feminists for many decades. Human subjectivity is an historical and always less than complete and stable achievement, such theorists maintain; it emerges in networks of meaning and relationships of power, and it shifts as they shift. Insofar as Kant et al., require judgment and action to proceed from a fully rational, autonomous mentality, they unwittingly stymy their own normative projects; for no one can be what such theorists say we must be if we are to judge and conduct ourselves morally. Yet the idea lives on.

Michel Foucault famously asserted that “[i]n political thought and analysis we still have not cut off the head of the king” (Foucault 1978, pp. 88–89). The same is true in moral philosophy. But the idea lives on not just in esoteric philosophical literature but in everyday experience. We hold ourselves and each other responsible as if we have sovereign control over our moral lives. This is nowhere more apparent than in individuals’ feelings of regret and guilt over poor judgments, injurious actions, and good works left undone. Psychoanalysts and feminists are surely correct; no individual holds sovereign power in his or her own moral realm. There are no “sovereign choosers”. But in these moments of regret or guilt all the critical theory in the world seems not to have much effect on ethical experience. One still feels responsible.1

A few years ago, I spoke at a “debate camp”, a summer program for high school debate teams and their coaches, who were preparing for a year’s debate season on environmental issues. Conversation during my session turned to questions of responsibility for addressing big issues—such as climate change—in which almost everyone is implicated, perhaps as both wrongdoer and victim. Students and coaches expressed a deep sense of responsibility and at the same time frustration in their efforts not to worsen and maybe even to mitigate the problems. They all felt that they ought to be doing something and that not doing anything would be a moral failing. Yet they were aware that no individual’s actions are likely to be effective at changing the overall situation. Their values compelled them not to behave in ways that harm people, but their everyday actions as American consumers and citizens do harm people, and of course not just people. In a very honest discussion, they acknowledged that they live with ongoing moral pain. I do not think those high school students were unique. If we believe that morality means at the very least conducting our lives in accordance with our values, we—at least we middle class and affluent North Americans—find ourselves in the present day at best in episodic ethical quagmires and at worst in perpetual moral crisis.

Take me, for example: I want to save the biosphere. I want everyone to have safe and sufficient drinking water. I want children not to starve to death or live homeless in the streets. I want world peace. And yet, every day, I make choices in full awareness that I am undermining those values, taking action that works against their realization. No matter what I say I want, what I actually do is use up resources faster than any human being before me in the history of humanity, emit more pollution than any human being before me in the history of humanity, and in the process of doing so directly threaten the lives and health of several billion members of the current population of human beings on this planet, not to mention untold trillions of other organisms. And the truly disturbing thing is that when I try to do otherwise, I find that despite all my legal rights and economic power, I seem unable to. I can make minor adjustments, but I cannot get off the grid, get out of the market, or erase my carbon footprint. I am free to choose—in the market, in the voting booth—but in the very exercise of that freedom, I experience some of my most anguished moments of unfreedom.

I suspect that this kind of moral anguish drives many people to numb resignation or blanket defensiveness. Consume or don’t consume this or that, vote for this party or that party or don’t vote at all; does it really make any difference? I suspect that many North Americans have just more or less given up their claim to sovereign moral personhood. And although some few may be content in their quiescence, I think many more feel adrift and empty, sovereigns in exile, suffering from a humiliation of selfhood so deep that they cannot even locate the wound, chronically desperate and not infrequently inexplicably enraged.

2. Taking the Measure of the Moral Trap: Genealogy as a Conceptual Tool

When it finds itself in a trap, a smart animal soon ceases its panicked and senseless struggle and examines the structure of the trap. Every trap—even a conceptual trap—is a configuration of forces, a material system, and an historical assemblage. Seeing how the elements of the trap come together—how those material forces interplay, reinforce, and oppose each other—is a first step toward finding a way out, a step toward being able to think again. What I seek in this project is not some sort of definitive moral solution but simply a new chance to think ethically without the severe limitation imposed by our particular conceptual trap.

There are several elements to this modern moral trap. One is the concept of freedom as individual choice. Another is the way responsibility is bound to unilateral causality.2 Another is the commitment to personhood as the nature of human being and the ground of moral value. All of these, and others, are worth investigating. In this essay, I take up personhood, just one aspect of the trap, and I examine it as a configuration of forces within the configuration of forces that is modern moral discourse.

I proceed genealogically, tracing the contingencies and conditions under which our ethical personhood arose. The prevailing assumption is that personhood is a fact of human life and a legally and morally recognized status to which we all are entitled. Our personhood is what makes us worthy of moral consideration and respect.3 A genealogy casts personhood, on the contrary, as an historically emergent category rather than an ontological fact. By investigating the conditions of its emergence, genealogy exposes personhood’s entanglements with networks of power. The power of personhood over our thinking—its role in our modern moral trap—depends upon our unwillingness to question it, our fear of thinking without it, a fear perpetuated by personhood itself. Part of the power of personhood is its attendant definition of its own “outside” as “thing”. Eschewing or abandoning personhood, according to the moral logic of personhood, means exiling oneself to the category of unworthy, morally inconsiderable thing. Genealogy disrupts that logic by telling a story of personhood as a mechanism for the exercise of power.

To be effective, a genealogy need not claim to be true, but it must be plausible under accepted standards of evidence. What follows is a story—a story I believe is quite plausible—of how personhood came to be such a powerful aspect of our ethical lives, despite its historically emergent and changing political nature. I begin with the decades just prior to what I call the “birth” of modern moral personhood, England in the midst of political, social, economic, and religious crisis in the mid-seventeenth century, at the time of the Civil Wars. I choose this point in time not because it is the only credible starting point but because it was a moment at which sovereignty was in serious trouble and at which, I will argue, individual personhood was not attributed unequivocally to a majority of human beings. We may recall that, in 1649, the English did in fact cut off the head of their king and went without for a number of years thereafter. What is less often remembered is the fact that personhood was under attack at the same time. At this critical juncture, either one or both concepts—sovereignty and personhood—might have been lost to history.

They were not lost, as we know. They were salvaged, in great part I believe, by being welded together for mutual reinforcement, an innovation that bequeathed to us not only an enduring liberal political theory but also the moral assumptions and values that inform our daily lives. They are formidable concepts now, but in this seventeenth-century moment we can see their tenuousness, their optionality perhaps, and maybe even catch a glimpse of how people might have come to think and live otherwise—as non-sovereign nonpersons leading ethical lives. If so, to that extent our imaginations might be freed for our own potential differing from ourselves.

3. The Crisis of Sovereignty in 17th Century England: Civil War

Queen Elizabeth having died childless in 1603, her cousin James Stuart of Scotland took the English throne. Neither he nor his son and successor Charles was well liked. The Stuarts claimed to rule by divine right, placing the royal prerogative above all parliamentary law,4 and they used their prerogative repeatedly in ways that angered a wide range of constituencies. Exhausting other avenues of influence, various and sundry factions placed their hopes in parliamentary intervention.

Parliament had two powers that could be leveraged against the king: sole power to levy taxes and the power of impeachment, that is, the power to remove royal advisors from their offices. Within four years of Charles’ coronation, Parliament was bent on using these powers to the utmost to check the king’s authority and impeach his closest advisor, the Duke of Buckingham. To prevent these actions, Charles dissolved Parliament in 1629, determined to rule on his own from that time forward. Using a variety of financial schemes, he was able to maintain his court for eleven years without Parliament’s aid, an era known as the period of “Personal Rule”.

Then, however, upon the advice of the Archbishop of Canterbury, Charles attempted to impose the Book of Common Prayer upon the Scottish Church—that is, he attempted to force the Calvinist Scots to conduct their worship services in accordance with the decidedly more Catholic Anglican liturgy. In response, 20,000 Scots invaded northern England. Charles needed funds to repel them. He had no choice but to recall Parliament.

Back in session for the first time in eleven years, members of both Houses realized they had but one chance and one means of influencing royal policies; they had to refuse to raise taxes unless the king made major concessions. First, they abolished all the prerogative courts, the mechanisms the king had used to bully lower court judges into enforcing his will. Within a few months, they enacted sufficient legislation to ensure that control over all major sources of revenue were in Parliamentary hands, leaving the king with no alternative but to work with them in the future. In addition, they passed the Triennial Act requiring parliamentary elections every three years, regardless of the king’s desire to convene a session. All of this, the desperate monarch agreed to. Finally, however, they had to deal with the question of the Scottish invasion. Fearing that if they approved a tax to support a royal army, King Charles would turn it upon his English enemies as well, Parliament passed the Militia Ordinance, in effect fabricating a right of the two Houses to raise an army themselves. This they proceeded to do, prompting Charles to flee from London to the Midlands where, on 22 August 1642, he officially summoned his loyal subjects to stand with him against his parliamentary enemies. As Charles’ army marched toward London, they were met by Parliamentary troops at Edgehill. A bloody but entirely indecisive battle ensued, the first of the English Civil War.

The next four years were terrible ones. The war itself—as was true of all war in those days—was sporadic and crude. Armed clashes might occur weeks or even months apart. But whatever intermittent pains the battles themselves inflicted upon the populace were as nothing compared to the hardships inflicted by the near-destruction of the domestic economy. Times had been relatively hard for more than two decades, but the war years were the worst (Hill 1972, p. 108). Trade lines were severed for long periods, resulting in widespread bankruptcies; agriculture came to a virtual halt in many areas. Disease spread. People were hungry, homeless, displaced, and terrified.

Realizing that they could not defeat the king’s army alone, Parliament entered into a treaty with the invading Scots. The Scots agreed to this alliance because they were under the largely mistaken impression that the English had consented not only not to impose the Anglican Book of Common Prayer on the Scottish Church but, further, to accept Calvinist doctrine and ritual into the English Church—in other words, to unify the national church under Presbyterian rather than Episcopalian principles.5 In July of 1644, the Scottish army decisively defeated Charles in the north, but Parliament’s army suffered a terrible defeat in Cornwall, making it apparent that they needed to reorganize. The result was the so-called New Model Army under Sir Thomas Fairfax as Lord General and Oliver Cromwell as his second in command. The new army broke with tradition by basing ranks on degree of training and competence rather than class status. It quickly became a formidable fighting force. By June of 1645 the Royalist army was in ruins, and Charles had effectively lost the war. It was his turn then, in May of 1646, to form an alliance with the still disgruntled Scots. They soon betrayed him, however, selling him back to the English for 400,000 pounds.

Charles was taken into parliamentary custody in early 1647 and was imprisoned for nearly ten months while his captor-subjects deliberated about what to do with him. Should they negotiate with him to reinstate him as king with more limited authority? Should they try him as a traitor? These deliberations revealed and most likely hardened the very real and sharp ideological differences between factions that had earlier united in opposition to Charles’ reign. It was no longer a question of curbing a king’s excesses; with its sovereign deposed, England itself was in question. How could the country be reconstituted after civil war? Despite all their differences, most of the principal players in this political drama agreed that the solution to the problem lay in unification under a sovereign authority. On the assumption that sovereignty was a necessary condition for or feature of statehood, they believed that England’s very existence depended on answering the question of how to re-establish sovereignty after such a dramatic collapse.

The concept of sovereignty that prevailed at this time, however, was in fact fairly new, and its necessity would not have appeared self-evident at all to Englishmen just a few hundred years earlier. The word sovereignty’s first appearances in English date back only to the fourteenth century, when it had a cluster of related meanings: pre-eminence or excellence in general or supremacy of power or rank, as well as the more narrow and familiar meaning, the position of a monarch. However, even when it was used as a name for the power of a ruler, medieval thinkers did not conceive of it as seventeenth-century thinkers did, namely, as the right to make or give law. In the Middle Ages, kings were judges, not legislators (Church 1969, pp. 55–57). The “state” itself was conceived as static and thus in need of no legal innovation. When circumstances required, regional edicts could be made by landlords, barons, dukes, etc. (theoretically in accord with traditional values and the law of God), and disputes were resolved, if necessary, by appeal to the king as supreme judge. In the late Renaissance, legal theorists began to attribute some legislative authority to the king, but still only under the auspices of his primary duty as supreme adjudicator responsible for seeing that justice was done. Only when this notion of a static state was no longer tenable did a different way of conceiving of sovereignty emerge. Once the state itself had to change in response to changing circumstances, ruling could not be limited to its judicial meaning; the ruler had to do more than decide cases. In the sixteenth century, the supreme judge was set to become a supreme legislator as well.

However, non-canonical legislation had long been the prerogative of landowners in England, and they were not interested in giving it up. Sovereignty in this new sixteenth-century sense—the increasingly important legislative sovereignty—was held by the king-in-parliament, not by the king independently. A century later, therefore, with the king deposed, it was not hard for many Englishmen to imagine a sovereign parliament without a king. But who had the authority, who could command the popular obedience, to establish any such thing?

With Charles in custody, it was the New Model Army rather than Parliament per se that was in control of the country—insofar as anyone was. But the army itself comprised an unstable coalition. Its military superiority had been purchased at the cost of dismantling the feudal structures that had reinforced political distinctions between nobility and commoners. Commoners who had fought valiantly, suffered deprivation, lost what little property they might have had before the war, and who had done so at least in part on the promise of a better future for themselves and their communities were not content to recede into the political background once the war was won. They did not want a return to monarchy, however limited the king’s powers might be, and they wanted to play a significant role in a new English government. Through the summer of 1647, while Cromwell and Commissary-General Henry Ireton negotiated with the captive king, the London-based Levellers gained great influence among an increasingly angry rank-and-file. As the year wore on, it was clear that no one faction, either within the Army or without, could exert enough force to claim sovereignty as it was then conceived.

It is easy to see why Michel Foucault was fascinated with this moment in English history. The clash of forces was intense and beyond anyone’s control. Law shines forth revealed as the product not of reason but of war. Succeeding events would not be an inevitable unfolding of causal necessity. In the turmoil of these transformations, the future lay open.

One eventual outcome of this turbulent time was what Foucault in his Collège de France lectures called “liberal governmentality”, which took shape gradually alongside social contract theory and political economy over the next two hundred years. Another was modern racism, then state racism, and then the Nazi Holocaust, as Foucault tells the story in Part V of The History of Sexuality, Volume 1 and in “Society Must Be Defended”. But in none of these works does Foucault spend much time on Cromwell or King Charles. Instead, he focuses a great deal of attention on Thomas Hobbes’ Leviathan, published in 1651, and on pamphlets issued by the co-called Digger colonies through the spring and summer of 1649. While he does not examine them in quite the same way I do in this essay, I believe his choice of texts is extremely apt. In Hobbes’ work, we see how a jeopardized sovereignty will be rescued through the medium of personhood, and in the Diggers’ writings we see intense and explicit rejection of personhood and a resistance to earthly sovereignty of any kind. Hobbes’ text points to the path that subsequent history did take. The Diggers’ texts show us a path that was deliberately blocked and obscured.

4. The True Levellers’ Challenge to Seventeenth-Century Personhood

Section 4 told a story about the destabilization of sovereignty in English life and thought in the seventeenth century. This section shows that at the same time sovereignty was in question, so was personhood, but more importantly it demonstrates that personhood in seventeenth-century England was not the moral category that it is today. Section 6 goes on to trace the genealogy of seventeenth-century personhood. Then in Section 6 we see how Hobbes fused the two unstable categories in an attempt to protect them from political and conceptual assault and, thus, set the stage for the rise of modern moral personhood in the eighteenth century.

The First English Civil War ended in 1646, but the political and economic situation did not stabilize. Londoners starved to death in the streets as Parliament and military leaders deliberated and argued over how to move the country forward. Common soldiers became increasingly angry with noble members of the military hierarchy and the vision of England’s future they saw unfolding in aristocratic hands. No one knew what might happen next.

In the fall of 1647, five cavalry regiments made up largely of Levellers elected a group of men they called “Agitators” to represent their views to the military leadership. These men produced a pamphlet called “Agreement of the People”, which called for elections to Parliament every two years and for a redistribution of Parliamentary seats based on population rather than land-holdings.6 While the pamphlet never used the words ‘universal manhood suffrage’, something close to it is implied in the document. Parliament’s power was also to be restrained by written and guaranteed equal political rights and liberties, including religious toleration. In an attempt to stave off total factionalization, the military leadership agreed to discuss the Leveller demands before the General Council of the Army at Putney in October and November of 1647. Transcripts of these discussions were kept only for the first few days, so we do not have a full record what transpired.7 We do know, however, that the deliberators, aristocratic leaders and Levellers alike, assumed that legislative sovereignty would reside in a parliament of some description. At issue was whether that parliament would consist of something like the old House of Lords and House of Commons or take some other form. Much of the discussion focused on how parliamentary seats would be allotted across the counties and which classes of people would have the right to vote.

At times in the transcripts, Leveller representatives seem to say that simply living within the boundaries of England should be enough to give a man the right to vote; one need not hold a literal stake in the territory. Landholders countered that if the property-less could vote, they would soon vote for land redistribution, which would put England on a slippery slope terminating in an end to all real property rights. Levellers consistently denied the charge that they were opposed to the private ownership of property, but their opponents brought the charge over and over again. At a crucial point in the debate, the Levellers appear to agree that those who are truly property-less—namely, servants and wage laborers—should not have a vote but that property requirements should be set low enough to afford the franchise to any man who owned a small farm or a business. Despite their desire for military and political unity, Ireton and Cromwell had no intention of granting the Levellers’ radically democratic demands. To stop the proceedings, Cromwell finally managed to get a motion passed to suspend the meetings of the Army Council and order all soldiers back to their regiments. The Putney Debates ended without conclusion.

Three days later, on 11 November 1647, King Charles escaped from parliamentary custody. It was feared that he would make it to France where he might raise a new army with foreign support, although in fact he made the mistake of entrusting himself to his supposed ally the parliamentary governor of the Isle of Wight, who immediately placed him under arrest. Nevertheless, the escape was the excuse that the military leadership needed to impose strict discipline in the New Model Army and put down the Levellers. On 15 November, Levellers mutinied at Corkbush Field, but the mutineers were executed. Widespread fear of a second civil war rallied many discontents to Cromwell, and the Leveller faction within the army was crushed.

The king’s escape had another effect, however; it drove home to the military hierarchy that further negotiations with Charles would be futile. He could not be trusted to abide by any agreement they might reach. But what to do with him instead? Through 1648, Parliament dragged its heels on the question, until finally, that December, army officers purged Parliament of all members who had voted to continue negotiations with Charles. One hundred eighty members were turned out and an additional forty arrested. Seventy or eighty of the remaining one hundred sixty members formed what became known as the Rump Parliament, which on 4 January 1649, proclaimed itself the supreme power in the nation and established a High Court of Justice to put the king on trial.8 Charles was quickly found guilty of treason and executed at Whitehall by decapitation. Within days, the Rump voted to abolish the House of Lords and the institution of monarchy.

That spring, desperate for means to feed themselves and their families, a small group of impoverished men staged an occupation of St. George’s Hill. Despite having no legal right to the land, these men broke ground for cultivation of crops and put up huts, earning them the somewhat derogatory label “the Diggers”. Three weeks later they issued a declaration entitled “The True Levellers Standard Advanced”—true Levellers, they called themselves, as opposed to the Levellers in London and the military who would deny the franchise to the property-less. That pamphlet, dated 20 April 1649, and signed by fifteen men, declares in part:

The work we are going about is this, To dig up Georges Hill and the waste Ground thereabouts, and to Sow Corn, and to eat our bread together by the sweat of our brows. And the First Reason is this, That we may work in righteousness, and lay the Foundation of making the Earth a Common Treasury for All, both Rich and Poor, That every one that is born in the Land, may be fed by the Earth his Mother that brought him forth, according to the Reason that rules in the Creation. Not Inclosing any part into any particular hand, but all as one man, working together, and feeding together as Sons of one Father, members of one Family; not one Lording over another, but all looking upon each other, as equals in the Creation; so that our Maker may be glorified in the work of his own hands, and that every one may see, he is no respecter of Persons, but equally loves his whole Creation….

(“True Levellers Standard Advanced” 1649, p. 7)

By May the occupation had become a village with families, dwellings, gardens, and livestock. Through the next year at least ten similar groups took over wasteland and commons in the south Midlands.9

We see in this first Digger pamphlet evidence that in seventeenth-century England, human beings were not necessarily persons, as they are generally taken to be now. People were not born persons but might become persons, depending on their acquisition of legal status and property rights. Property-less people were not persons at all. Clearly, this was not a mere quirk of legal terminology with no currency among common people. Common people knew they were not persons, and some of them, like the Diggers, not only did not aspire to be, but actively opposed the status of personhood altogether.

The claim that God is “no respecter of Persons” recurs in Digger pamphlets, as well as in Gerard Winstanley’s 1652 monograph The Law of Freedom (Winstanley [1652] 1973, p. 283). The phrase comes from the 1611 King James translation of the Bible, where it occurs in the Acts of the Apostles 10:34–35: “Then Peter opened his mouth and said, Of a truth I perceive that God is no respecter of persons: but in every nation he that feareth him, and worketh righteousness, is accepted with him”. Here Peter is preaching in the house of the Gentile Cornelius to a non-Jewish gathering. He is emphasizing that God does not favor any one nation over any other. The phrase in question is a translation from the Greek προσωποληπτής [prosopoletes], which comes from προσωπολεμια [prosopolemia], commonly translated subsequently as partiality.10 God shows no partiality; regardless of nationality, all are equal before God. But in the English of the seventeenth and eighteenth centuries (the phrase is retained in the 1769 King James translation), recognition of equality precludes recognition of persons. Clearly, personhood is understood in these texts as a classification of human being that excludes many people, including the impoverished authors of Diggers pamphlets. The Diggers were not persons, nor were they respecters of those who were.

The meaning of personhood is still contested today, as we know from abortion and end-of-life debates and some discussions of animal rights. But most of the time, we use the word as a synonym for human being. Personhood’s history, however, ties it very closely to the ownership of property, including the ownership of human beings. As Section 6 will show, the Diggers’ use of the term is continuous with that history.

5. A Brief Sketch of the Genealogy of Seventeenth Century Personhood

The True Levellers’ conception of personhood was no anomaly. In the 1640s, personhood—or, more appropriately, its lineage—was already close to two thousand years old, and at least some of that lineage was common knowledge, as the True Levellers’ pamphlets show. Personhood was a legal and social status designed to exclude and deprive many people of land and freedom. It was a tool of oppression. This section outlines a story of how it came to be so, of how seventeenth-century personhood was constructed.

The word person comes from the Etruscan phersu, which meant mask. In a famous (though dated) article on the concept of person, anthropologist Marcel Mauss asserts that there is some evidence that the Etruscan word is a garbled version of a Greek word for mask, πρόσωπον [prosopon] (Mauss [1938] 1985, p. 274).11 Although in Homer the word πρόσωπον means face or countenance, by the fourth century BCE it did mean mask or portrait.12 In any case, the Romans apparently absorbed the Etruscan word rather than the Greek into Latin as persona, also meaning mask or role or, sometimes, the wearer of the mask and player of the role. By the third century BCE, Roman grammarians were using the term persona to indicate different categories of pronoun—our first person plural, third person singular, etc.13 Over the next two or three centuries, the word’s meaning expanded considerably; personae came to designate not only categories of pronoun and theatrical roles, but social roles as well. One could be a son, a father, a military officer, a priest, etc. Such “roles” brought with them sets of duties, expectations, and privileges. Each individual might have several personae, and the number could increase or decrease as one’s circumstances changed.

Cicero’s De Officiis (On Duties) provides insight into its broadened philosophical meaning. There Cicero explains that everyone has a rational persona, which distinguishes human beings from “brute creatures”. Here we see persona indicating something a bit more substantial than a changeable social role. In addition, each of us has an individual persona that distinguishes us from each other (Cicero 1991, p. 42). This latter seems to involve basic bodily and mental dispositions that might be referred to colloquially as one’s “temperament” or “nature”. A well-lived life involves expression of the common persona, the rational, but also the expression of the particular persona. Cicero also attributes two other types of personae to human individuals. One type includes that which one takes on in consequence of chance occurrences or contingent circumstances, and these may be multiple and shifting. The other includes those that we acquire as the result of our decisions. “Kingdoms, military powers, nobility, political honours, wealth and influence, as well as the opposites of these, are in the gift of chance and governed by circumstances. In addition, assuming a role [persona] that we want ourselves is something that proceeds from our own will; as a consequence, some people apply themselves to philosophy, others to civil law, and others again to oratory, while even in the case of the virtues, different men prefer to excel in different of them” (Cicero 1991, p. 45). In the Latin of Cicero’s time, in sum, the individual was not a person; the individual was many persons (and presumably also exceeded his or her many persons).

It makes sense, then, that when Tertullian (160–220 CE) began to set forth arguments for the unity of God and the embodied Christ and then later for the divine trinitas he used the language of personae. Just as one human being may have multiple personae, some emanating from his nature and others acquired or produced at identifiable historical moments, so too may one divine being have multiple personae. Persona here is no longer a mask that may conceal but is something more like an aspect or particular manifestation.14

Meanwhile, and not surprisingly given concerns like those of Cicero to determine which duties adhered to which personae, a close connection between personae and duties or offices shows up in Roman jurisprudence through the first few centuries of the Common Era. Again, we see a shift in the term’s extension. Jurists’ were concerned not so much with analyzing the various personae that one individual might have but, rather, with distributing or withholding rights to Rome’s subjects based on their status within the Empire.

The word persona received a decisive and enduring legal meaning when Justinian undertook to revise and streamline the Roman codes with his Institutes in 535. Classicist J. B. Moyle discusses Justinian’s and other Roman jurists’ use of the term in his Introduction to Book I of the Latin edition of 1912.

What did the Romans mean by ‘persona’? It is clear there is some relation between persona and homo: for the leading division of the ‘ius quod ad personas pertinet’ (i.3.pr.) is that all men are either free or slaves. It is equally clear that they did not regard all men as persons; it is not said all persons, but all men are either free or slaves. […] An essential element in the conception of ‘persona’ is the capacity of acquiring or possessing legal rights, and… a slave could have no legal rights of any kind whatsoever. In other words, a persona is a man regarded as invested with legal rights, or as capable of acquiring them, so that our attention is drawn away from the man to the rights, or to the capacity of having them in virtue of which he is a persona.

(Justinian 1912, pp. 85–86).15

By this point, depending on discursive context, not only was it possible for one human being to have several personae; it was also possible for some human beings to have no persona at all.

Commenting on Justinian’s Institutes, Italian political philosopher Roberto Esposito writes, “[N]o one in Rome was a full-fledged person from the beginning of life nor did one remain a person forever. Some became persons, as filii became patres; others were excluded because they were prisoners of war or were debtors” (Esposito 2012a, p. 24).16 An individual could be and then not be a person of one sort or another several times throughout life. As one’s status changed, so did one’s legal rights. But, Esposito maintains, the only way that some individuals could be legal persons at any time was for others not to be, either some of the time or all of the time. “A category defined in juridical terms, no matter how broad, becomes meaningful only thanks to the comparison and indeed the opposition with another category from which all other categories are excluded” (Esposito 2012a, p. 23). The function of the Roman category was, therefore, as much to depersonalize as it was to personalize. As a legal category, person functioned to preclude general, human equality. Acquisition of the status “person” brought with it rights denied to the vast majority of people.

This Roman concept of personhood as an exclusive status was retained in the natural rights tradition through the Middle Ages and Renaissance. English jurists and political philosophers of the seventeenth century were steeped in it.17 As the Diggers well knew, personhood was still an exclusive category during the English Civil Wars.

Who were persons in seventeenth-century England? As we have seen, Diggers’ pamphlets consistently denounce the landed gentry, whose rights and privileges over the common people they traced to the Norman Conquest. Their second pamphlet, issued 1 June 1649, in response to landowners’ attacks, opens with these lines:

We whose names are subscribed do in the name of all the poor oppressed people in England declare unto you that call yourselves lords of manors and lords of the land that in regard the King of righteousness, our maker, hath enlightened our hearts so far as to see that the earth was not made purposefully for you to be lords of it, and we to be your slaves, servants and beggars; but it was made to be a common livelihood to all, without respect of persons: and that your buying and selling of the fruits of it, one to another, is the cursed thing, and was brought in by war; which hath and still does establish murder and theft in the hands of some branches of mankind over others, which is the greatest outward burden and unrighteous power that the creation groans under. For the power of enclosing land and owning property was brought into the creation by your ancestors by the sword; which first did murder their fellow creatures, men, and after plunder or steal away their land, and left this land successively to you, their children. And therefore, though you did not kill or thieve, yet you hold that cursed thing in your hand by the power of the sword; and so you justify the wicked deeds of your fathers, and that sin of your fathers shall be visited upon the head of you and your children to the third and fourth generation, and longer too, till your bloody and thieving power be rooted out of the land.

(Winstanley [1652] 1973, p. 99)

Forty-five men at St. George’s Hill signed this Declaration, which ends by calling for a free commonwealth without division of land—a commonwealth where, consequently, there would be no persons.

Two other groups came in for strong criticism from the Diggers: lawyers, who charged exorbitant fees and conducted their legal business in Norman French, and clerics. Both groups were drawn from the landed gentry. The law of primogeniture precluded younger sons from inheriting their fathers’ estates, so they were given Oxford educations and lucrative positions at court or in the national church hierarchy, positions that often brought with them land as well as income—in other words, property and personhood.

Parish priests were especially hated. Not only did they enforce the strictly hierarchical state religion at the local level, but they lived off the mandatory tithes of those who resided within their parishes. Many did no physical labor themselves, and quite a few neglected their official duties as well. The word parson actually derives from the same root as person and in the seventeenth century would have been pronounced and often spelled in the same way.18 Not only is God no respecter of the distinction between commoners and lords of manors, then; he is also no respecter of parsons. No one is to be set above others. All are equal, and anyone who asserts otherwise offends against God, as is stated in the Epistle of James, 2:9: “But if ye have respect to persons, ye commit sin, and are convinced of the law as transgressors.”

From the beginning, the persons in the vicinity of the Diggers’ occupation at St. George’s Hill were incensed. At first, landowners called upon military leaders to disperse the community, but after a brief investigation General Fairfax dismissed their concerns and told them to work through the courts. They did not follow this suggestion but instead launched a series of attacks against the colony, repeatedly pulling down huts, destroying crops, and killing animals. The Diggers responded by issuing their second pamphlet, just quoted, “A Declaration from the Poor oppressed People of England”. In response to this declaration, landowners had the Diggers charged with trespass.

This legal action posed a new problem. In the 1640s it was not possible to enter a plea at court unless one hired an attorney; ordinary people (non-persons) could not simply appear and speak for themselves. Attorneys were expensive, however, and the Diggers despised them on principle, so they did not hire one. As a result, they were sentenced without a hearing. They were fined ten pounds per man plus court costs, but of course they had no money, so their livestock were seized. Nevertheless the colony held its contested ground.

Landowners continued to press for decisive action to oust the occupation. In July of 1649 General Fairfax received instructions to arrest ringleader Winstanley to disperse the people by force. The group abandoned St. George’s Hill and moved to Cobham Heath, but they were harassed there too, arrested, and fined. In November troops were called in, houses pulled down, crops destroyed, and participants beaten by landowners as soldiers stood by. Many Diggers were imprisoned. Similar events occurred at the other settlements through the spring of 1650, and by the beginning of 1651 the Digger movement was destroyed. That same year, Thomas Hobbes published Leviathan.

6. Hobbes’ Solution to Instability: A Condition for Emergence of Modern Personhood

Hobbes had supported Charles I until his execution, after which he set his hopes on a reintroduction of the Stuart monarchy under the exiled Prince of Wales as Charles II. Like many of his contemporaries, though, he believed that what mattered most was unifying the country under a sovereign authority, however that could be brought about. A state would only have internal stability if there were a single or at least institutionally unified, supreme, well-armed, generally recognized legislative authority. Hobbes’ solution to England’s woes is the diametrical opposite of the Diggers’. Instead of the abolition of the legal person in favor of basic human equality, he describes and advocates for the creation of a sort of super-person to function as the repository of sovereignty, precisely in order to eradicate the natural equality that he believes leads to nothing but unending war.

Hobbes holds that people unite under an authority if and only if fear drives them to. They obey because the available alternatives put their lives and property at risk (either at the hands of that authority or at the hands of other people if that authority is undermined). He agrees with his sixteenth-century French predecessor Jean Bodin that sovereignty cannot be divided. A mixed system wherein the sovereign powers of legislation and execution are separated—as would take shape in Locke’s Second Treatise and of course in the US Constitution—was untenable. It would never maintain internal stability, Hobbes believed, because people could play the components against one another. Since fear is the only thing that makes people governable, governmental unity and stability require that there be someone who is feared by everyone. That someone was, by definition, the sovereign, the source of legislation and the wielder of the sword of enforcement.

But Hobbes had to distinguish sovereign authority from tyranny. Otherwise the state and its laws would be, as anti-Norman radicals had long claimed (and as Foucault discusses at some length in “Society Must Be Defended”), nothing other than war by other means. To accomplish this, Hobbes needed a theory of representation, which he presents in Leviathan, chapter 16, entitled “Of Persons, Authors, and Things Personated”. Here Hobbes undertakes to distinguish and clarify the concepts of person, actor, and author in order to explain how it is that an individual can be bound by a contract or covenant that his representative initiates. This is a necessary step in his argument that a multitude of individuals can be bound together into one person, that is, the sovereign, and bound to obey the sovereign’s law.

Hobbes uses the ambiguity of the ancient notion of persona to explain the transfer of authority from one individual to another. What is transferred, he claims, is the personhood of one individual to another. He notes that the Latin word “signifies the disguise or outward appearance of a man, counterfeited on the stage, and sometimes more particularly that part of it which disguises the face, as a mask or vizard; and from the stage has been translated to any representer of speech and action, as well in tribunals as theaters. So that a person is the same that an actor is, both on the stage and in common conversation…” (Hobbes 1958, p. 132). There are two types of person, then, those who act on their own authority and who are thus both the owner of the action and the actor—these Hobbes calls natural persons—and those who act by prior covenant in the place of another, in which case the actor bears the personal authority of the owner but is a distinct individual—these Hobbes calls feigned or artificial persons. Personhood is a matter of authority, and in particular of the authority to make promises, covenants, or contracts. It is alienable and is not coextensive with selfhood or humanity.

To a great extent at least, Hobbes has in mind property owners and actions regarding property. He explicitly relates ownership of words and actions to ownership of goods and possessions (which he refers to in Latin as dominus), distinguishing the former as a type of ownership called authorship (Hobbes 1958, p. 133). In a case of authorized representation, the actor personates the owner or author, Hobbes says; the actor bears the person of the author, and, insofar as he does, he has the right to act. Persons are, quite simply, bearers of certain legal rights.

There are human beings without authority, human beings who are not “natural persons”. Hobbes mentions “children, fools, and madmen” (Hobbes 1958, p. 134). Although they are not persons in themselves, the sovereign can authorize means by which they can be personated; the sovereign can create a person to act on their behalf. Hobbes notes, for example, that a legally authorized guardian can personate a child. This authorization does not confer personhood upon the child, however; it simply establishes a new “feigned” or “artificial” person borne by the guardian. Sovereign authority can create persons at will, wherever it sees a need for authorization to act. It can even cause inanimate objects to be personated. For example, Hobbes says, a rector can personate a church.19 And it is easy to see how the currently controversial corporate person can arise. The sovereign power can grant the status of personhood—that is the authority and right to act—to groups of people united in a common enterprise. Corporate personhood did not begin with Citizens United; it stretches all the way back to Rome and was clearly recognized in English law. Corporations have virtually always been persons; it is people who are not always persons.

This power of civil law to grant authority for personation can even extend to the personating of non-existent things, Hobbes notes, such as the heathen personation of false gods. He is quick to assert, though, that Moses’ personation of the One True God was duly authorized and nonfictional, and at that point in the text he digresses briefly into a discussion of the Doctrine of the Holy Trinity and the divine personhood of the Holy Spirit and Jesus Christ.

Hobbes’ main purpose in chapter 16 is not to adumbrate an entire theory of personhood, however; as we have seen, the category was already well-established and generally accepted among his readership. Rather, it is to explain how a multitude of individuals can be unified under a single, undivided sovereign to establish civil authority in the first place. “A multitude of men are made one person when they are by one man or one person represented … For it is the unity of the representer, not the unity of the represented, that makes the person one. And it is the representer that bears the person, and but one person…” (Hobbes 1958, p. 135). This is the only way to establish security against foreign invasion and against injury by one’s neighbors; everyone must “confer all their power and strength upon one man, or upon one assembly of men that may reduce all their wills, by plurality of voice, unto one will; which is to as much as to say, to appoint one man or assembly of men to bear their person…” (Hobbes 1958, p. 142). This one person is Leviathan, who “has the use of so much power and strength conferred on him that, by terror thereof, he is enabled to form the wills of them all to peace at home and mutual aid against their enemies abroad” (Hobbes 1958, p. 143). Further, “he that carries this person is called SOVEREIGN and said to have sovereign power; and everyone besides, his SUBJECT” (Hobbes 1958, p. 143). This one sovereign person may be one individual or a collection of individuals as in a parliament. Hobbes discusses the advantages and disadvantages of each type of government, although he clearly favors the model of the single individual.

Regardless of the form it takes though, Hobbes insists, sovereignty once constituted cannot be challenged. Subjects are not to pass judgment on the decisions or actions of government, for subjection to a sovereign authority is incompatible with the exercise of personal judgment. Hobbes thus banishes private conscience from political life, calling the very idea “that every private man is judge of good and evil actions” a “disease of the commonwealth” proceeding “from the poison of seditious doctrines” (Hobbes 1958, p. 253). Whatever authority an individual might hold over his life and property was granted to him by the sovereign power and could always be revoked by it. Once sovereignty was established, all other legal and political authority—all other personhood—existed only by leave of that sovereign power.

Hobbes’ absolutism did not prevail. But personhood as a conditional status dependent upon law remained, despite the Diggers’ call for its abolition. No one who was not granted authority under the law was a person. And although over the succeeding four hundred years the law has in fact granted such authority to many more classes of people, including now even servants and day laborers, personhood remains a category of exclusion. Who or what is excluded from it is often a point of great controversy, but the fact that it excludes some human beings is uncontestable. The point of personhood has always been to demarcate. And—the mechanism of extended inclusion having been the liberal invention of property in one’s body and in one’s labor—the line of demarcation is still drawn where the law recognizes property and propriety. A person is a proprietor, if only of its flesh and energy, which is why human fetuses and nonhuman animals, for example, can be counted out.

In addition to this tight coupling of personhood and property, the close connection—amounting almost, though in the seventeenth century not quite yet an identification—of personhood with sovereignty has persisted as well. Hobbes to the contrary, sovereign power could be divided, late seventeenth and eighteenth-century thinkers maintained, and in fact it had to be divided in order to protect personal dominion, possession. In subsequent decades, not only did theorists and statesmen insist that sovereign power must be divided institutionally (between monarch and parliament, between houses of parliament, or in the United States between legislative and executive branches of government with various checks and balances built in), but they began to view the power that an author-actor, a person, withheld from government, which constituted the so-called private sphere, as that person’s dominion. This limit to sovereign government suggested to subsequent thinkers that powers retained by individual persons were themselves sovereign powers.

At the close of the seventeenth century, John Locke avoided referring to individuals as sovereign; sovereignty arose in social contract as it had in Hobbes’ view. Nevertheless, Locke’s account of property in the body coupled with his carefully argued account of personal identity in the 1694 edition of An Essay Concerning Human Understanding paved the path that Hobbes’ work indicated. Locke extended personhood—precisely as individual proprietorship—to almost all human beings, thus saving it from the True Levellers’ challenge. In the process, he created a new way in which human beings would be made subjects of law and morality; as persons—that is, as consciousnesses—they would be owners of their acts and ideas and accountable for them to law and God. With the American and French Revolutions in the following century, however, governmental sovereignty underwent transformation; revolutionaries proclaimed the possibility of government of the people, by the people. As people assumed this new responsibility, it became possible to imagine even the individual person as a self-governing unit. It was almost inevitable, thereafter, that such beings would be identified explicitly as sovereigns, as they were at least by the early nineteenth century and have been since.20

7. Life beyond Personhood?

Near-sovereign personhood having been conferred upon us all—even us women, servants, and day laborers—we bear tremendous moral responsibility, but without the material independence for much, if any, genuine authority. This, I think, explains a great deal of present-day political and moral cynicism and ethical anguish. Take me, for example: I want to save the polar bears, but I am part of a gigantic economic system that will eventually kill them all. Not only can I not save them from suffering and extinction, but I cannot even seem to disengage myself from that system so that I am not one of their killers. Against my will, I have polar bear blood on my hands—as well as the blood of child laborers, coal miners, migrant workers whose flesh is burned with chemical pesticides, and would-be immigrants dead in the deserts or shot at the borders of this great country of mine.

I find this intolerable. Equally intolerable is the idea that I should just accept my impotence, accept the reality that a truly ethical life is out of my reach. No. There has to be another way to think, another way to live.

“In political thought and analysis, we still have not cut off the head of the king”, Foucault declared (Foucault 1978, p. 89), and he intimated that our failure to perform this conceptual regicide results in a fundamental inability to comprehend the relations and networks of power that constrain us and give shape to our world. As long we keep the concept of sovereignty at the fore, we maintain ourselves in political ignorance. And there are forces that reinforce that ignorance and keep us focused on the same futile issues and concerns. Government is not a matter of sovereignty, Foucault insists. Government is not even a matter of the State, although the last several centuries have seen a massive “statification” of governmentality. If we want to understand our present circumstances, we must rethink power without the king; we must rethink government without the state. And I believe we must likewise rethink ethics without the person.

I do not propose that we all go out and occupy the commons, although I did cheer on the people around the world who did something very like that around the world in 2011 and in North Dakota in 2016. I do not think the solution to global economic and environmental crises is to establish egalitarian agricultural communities without private ownership of land. I turn to the Diggers not because their material practices would work for us but because their undertaking proves that ethical non-personhood is possible. True Levellers could and did imagine and enact a way of life without personhood. Perhaps we could do so as well, if we could loosen the hold that personhood has on our self-understanding. Obviously, that is not easily done. Kant drew the line very starkly: If you are not a person, a being with dignity, then you are a thing, a chattel that can be bought and sold. We neoliberal self-entrepreneurs, we day laborers and servants, live very, very close to that line as it is; none of us wants to stray across it. To do so would be to cede our ownership of our selves.

What I propose, then, is dangerous. But everything is dangerous. All we can do is assess the current dangers and plunge ahead, one way or another. The greater danger for us lies, I think, in continuing to try to live the intolerable or in abandoning the ethical altogether to save ourselves from unending moral anguish. I do not yet see how to construct an ethical way of life in a globalized, neoliberal capitalist world; such a life can only be constructed in the living. But I believe the foregoing genealogical analysis demonstrates that personhood is a major component of the trap we find ourselves in. Foucault developed genealogical practice as a means of prying apart the jaws of such traps, loosening at least to some degree their hold on our lives. I hope that a genealogy of personhood can serve as a first step not toward losing ourselves but toward getting free of ourselves, free for lives beyond personhood and for selves that we have yet to imagine.