III. 'Persons' Are the Subject of Legal Rights and Duties.

In books of the Law, as in other books, and in common speech, "person" is often used as meaning a human being, but the technical legal meaning of a "person" is a subject of legal rights and duties. (93)

--John Chipman Gray

The Supreme Court is not above reaching for a dictionary. In fact, Justice Blackmun did so in Roe v. Wade, (94) but if he had consulted Black's Law Dictionary, one of the more popular legal dictionaries, he would have found this entry:

A person is such, not because he is human, but because rights and duties are ascribed to him. The person is the legal subject or substance of which the rights and duties are attributes. An individual human being considered as having such attributes is what lawyers call a natural person. Pollock, First Book of Jurispr. 110. Gray, Nature and Sources of Law, ch. II. (95) One of the citations given in Black's Law Dictionary for its definition of person is Nature and Sources of Law by John Chipman Gray (Royal Professor of Law, Harvard University). By way of introduction, and in testimony to the high regard for Professor Gray's book, the Supreme Court used it as a citation in Erie R. Co. v. Tompkins (96) to justify its overturning of the "oft-challenged doctrine of Swift v. Tyson." (97) In his book, Gray explained that the purpose of government is the protection of "human interests," (98) largely through the forbearance of wrongful conduct. Rights are essentially the ability to enforce such forbearance, and duties are one's obligations to so forbear wrongful conduct:

The rights correlative to those duties which the society will enforce of its own motion are the legal rights of that society. The rights correlative to those duties which the society will enforce on the motion of an individual are that individual's legal rights. The acts and forbearances which an organized society will enforce are the legal duties of the persons whose acts and forbearances are enforced. (99) From this fundamental interplay between one person's rights, the duty of other persons to respect those rights, and the power of the state to enforce such duties, Gray derives a definition of what constitutes a legal right: "The full definition of a man's legal right is this: That power which he has to make a person or persons do or refrain from doing a certain act or certain acts, so far as the power arises from society imposing a legal duty upon a person or persons." (100)

Here, Professor Gray comes to an important facet of...