The phenomenological definition of “person” was proposed by Max Scheler  in the framework of a scientific study of ethics aimed at going beyond the limit of Kant’s formalistic point of view on morals, thanks to the phenomenological methods proposed by Edmund Husserl . This issue is still much debated in philosophy of law: formalistic points of view, such as legal positivism, seem too weak, since they justify every internally coherent legal system, including the Nuremberg Laws. On the other hand, material approaches do not explain cultural variations. Alan Dershowitz provided a good review of different unsatisfactory philosophical approaches . Unfortunately, his solution, according to which legal systems empirically emerge from our collective experience of injustice, only postpones the problem: is there such a thing as “collective experience”? As we will see, on the basis of Max Scheler’s personalism, Edith Stein was to advance a phenomenological analysis of this subject, which is relevant from a semiotic point of view because it involves technical notions, such as collective actor and modal value, which allow us to glimpse a strong connection between formation of law and meaning. In fact, what will emerge is that Scheler’s analysis of ethics expresses a relation between values embodied by objects targeted by acts of which the subject is the person. In particular, the person is given only where it possesses a power to do by means of the body . It is almost inevitable to interpret this definition in semiotic terms: in particular, we consider Scheler’s notion of person as an anthropomorphic actor who embodies the actantial function of a qualified subject . It will become apparent that the person in Scheler’s definition cannot be identified with other kinds of actor individuated by Greimas’ typology.
What a Person is Not: Reason and Memory
According to Scheler, the notion of person cannot be reduced to “rationality” [1: 371]. The rules of rational, logical reasoning leading to universal conclusions must be shared by all rational humans. In a similar way, different Greek philosophers argue that there is only one general intellect, the νοῦς.Footnote 1 We find a similar conclusion in Scholastic philosophy, according to which intellect is a general formFootnote 2: the unity of reason would lead to the conclusion that there is only one collective person. On the contrary, phenomenology aims to break down the line of demarcation between objectivist ontology and idealist subjectivity . Along these lines, according to Scheler, the person is a concrete essential unit: the foundation of the multiplicity of acts realised by each of us. However, the person is not identified with the mere summation of her/his acts nor with the experience of those acts, because her/his way of being is to live each act: we cannot find the person in the already lived acts—[8: 856]. This is part of a more general distancing from Empiricist tradition and its heirs,Footnote 3 such as Ernst Mach and Henri Bergson. As Scheler writes:
Apart from other errors which one can find in these theories, the specific formations of unities of things in the natural view of the world are obviously confounded with the essence of the form of unities: thingness. Of course, one can avail oneself of values in explicating the formation of units of things, but not in explicating thingness [1: 21].
We can, for example, possess with full evidence the beauty of a poem or a painting without being able to say to which factors this value is attached, e.g., color, design, composition, rhythm, musical characteristics, speech-values, picture-values, etc. [1: 196].
As a consequence, the person is not memory:
(…) we can possess with full evidence the values of the object without its being given to us with the same degree of evidence or with the same degree of fullness in its “meaning,” and that we can do this independent of the sphere of remembering [ibid.].
This seems interesting from a juridical point of view, otherwise every technical device with a storage memory would be defined a “person”. We will return to this point in the conclusion.
Empirical Person Vs. Transcendental Ego
Scheler then goes on to demonstrate that the person is not the “Ego”. Interestingly, Scheler reaches this conclusion after a linguistic analysis of terms such as “ego”, whose meaning is opposed to a “thou” and to the “other world” [1: 389]. On the contrary, for Scheler, a person need not be opposed to another. In a Kantian perspective, the Ego of transcendental apperception is not a correlate that is added to the unity of the object; its unity and identity constitute the condition of the unity and identity of the object. Instead, according to Scheler, a person includes the world, as an objective correlate of experience. This is an application of a fundamental assumption of the realist phenomenology embraced by Scheler: every experience has an objective correlate. For example, if a number of people declare they have shared a telepathic experience, this implies that telepathy has an objective correlate, which can be scientifically analysed by phenomenology, as the phenomenologist Gerda Walther did .
Therefore, each individual person carries her/his own individual world and personal truth, not because of relativism (Scheler’s research program in ethics is to oppose relativism) but on account of the essential connection between person and world. On this point Husserl and Scheler agree: “The ego is the constituting source and the person as the fully concrete agent in a social world (…) The person is the focus of moral regard and the bearer of rights” . Even after the “transcendental turn” in his researches, Husserl considered valid the distinction between transcendental ego and person:
Above all, however, it is versus the empirical subject, in its generality and its unity, that the “person” is to be delimited in the specific sense: the subject of acts which are to be judged from the standpoint of reason, the subject that is “self-responsible,” the subject that is free or in bondage, unfree. [11: 269].
The person is the subject equipped with the consciousness of the free “I can”, and not with the mere consciousness that “it will come”, “it will happen”.
However, while Scheler and Husserl seem to agree on the notion of person, they disagree on the very possibility of a transcendental Ego. In Scheler, the notion of person clearly substitutes the notion of transcendental Ego. According to Scheler, identity is in the object: objects provide the sufficient, intuitive basis for the law of identity (A = A), and there is not a “condition” to it borrowed from an “Ego”. While in a transcendental perspective the relation between Ego and Object given in the act is unilateral, phenomenological realism describes it as a mutual one. From this point of view, Ego can be represented as an object linked to a second object by the act, while the act in itself cannot be represented as an object [1: 374]. Scheler describes this mutual relation as a “Copernican turn”: world-being is a “condition” of the cogitare [1: 376].
Person as a Linguistic Construction
According to several legal systems, some categories of people can be killed without this act constituting a murder: slaves, embryos, sons and daughters, wives, enemies in war. In these cases, “there was no givenness (or legal recognition) of the personality of the killed” [1: 315]. These categories were not considered persons, but “animated bodies (in feeling)” [ibid.]: their personality was not given in terms of human individuals, but in terms of units like a master, or a family, tribe, gens, state.
An interesting example, from a semiotic point of view, is Italian law No. 194 of 22 May 1978 on the social protection of motherhood and the voluntary termination of pregnancy . The “non-personality” of the unborn is a meaning resulting from a careful textual strategy which avoids referring to “it” or naming “it”. The Law designs the relations between some actors: counselling centres (10 occurrences); physicians (20 occurrences); women (61 occurrences). The term “abortion” is used only in a dysphoric acceptation (“to prevent abortion from being used for purposes of birth control”; “crime of abortion”) and is substituted by “termination of pregnancy” (35 occurrences), which—in the terms used by structural semantics—underlines a terminative aspectual value. The term “abortion procedures” is used to translate the Italian expression “procedure abortive” in the context of Art. 14, since women are obliged to be informed about them. We also find the “father of the conceptus” (4 occurrences), who cannot of course legally be regarded as a fully-fledged father and is involved only “where the woman consents” (art. 5). Thus, the “father of the conceptus” cannot be considered an actant in the main narrative program and merely plays a role in what Greimas calls an annex narrative program . The term “fetus” is used only in two contexts: first, in relation to “abnormalities or malformations”, in a dysphoric acceptation (2 occurrences). In these cases, the English term “fetus” translates the Italian term “nascituro”, which is used quite paradoxically, seeing that it means “someone who is about to be born.” Second (2 occurrences, Art. 7), “Where it is possible that the fetus may be viable”, i.e. in relation to life. In this case, the law obliges the doctor to take any appropriate action to save the life of the “fetus”. In all other contexts the use of this term is not necessary. For example:
The physician performing the pregnancy termination shall be required to supply the woman with information and instructions on birth control and to acquaint her with the abortion procedures [12, Art. 14].
The sentence above is well-formed from a syntactic point of view. Other actants of the abortion procedures do not need to be specified. According to Luc Boltanski  doctors at the ultrasound test draw a similar linguistic distinction between the fetus “adopted” by the parents and the accidental one, which will not be the object of a life project.
According to Scheler, the non-personal “animated bodies” do not embody a “complex of values” that are associated to murder. As the example of the Italian law shows, the attribution of a personal or non-personal value to an entity is mainly a linguistic construction. Furthermore, some of the “depersonalised” entities, such as slaves or war enemies, obviously have a conscience. For this reason, conscience cannot be identified with the notion of personality. The person is not reducible to consciousness, or the object of inner perception, since loving, hating, feeling, willing, have their meaning in the union of the person with a body [1: 392]. For Scheler, the person is invariant regardless of “changes in our psychic life”:
What psychiatry says about so-called changes in character in certain psychic illnesses can never pertain to the person of the other, even in the most severe cases (e.g., paralysis). It is only the givenness-to-others of his person that disappears. In severe cases we can only say that /his person was made invisible by the illness and that a judgment about his person is therefore no longer possible [1: 485].
It is worth noting that this position challenges consciousness-based bioethical distinctions between person and non-person, according to which the latter, e.g. the embryo or the patient in a vegetative state, can be killed. At the same time, Scheler displays extraordinary sensitivity toward mental illness, ahead of his time. On a similar line, it is known how Husserl considered as persons, at least in a broad acceptation, “abnormal variants of humanness”, such as brutes and some kinds of animals [14: 126]. Nowadays, Husserl’s choice of world sounds poor, but his stance was surely a progressive one when considering the National-Socialist theories of the time. On the subject of animal rights, Scheler grants intelligence, associative memory, and an “essential connection between a consciousness and a lived body” to higher animals [1: 472, n. 104]. Animals feel values (e.g. agreeable/disagreeable; useful/harmful) [1: 266]. However, according to him, “moral facts” cannot be found in nature [1: 164] and we do not expect obedience to moral law on the part of animals [1: 237].
The Narrative Features of Scheler’s Person
To draw some semiotic conclusions from the above paragraphs, we can identify Scheler’s person as an anthropomorphic actor who embodies the actantial function of a qualified subject. According to Scheler, the person is not reducible to an abstract actor, a human faculty such as “reason”, or “memory”. Thus, the person must be described as a concrete actor. As regards the actantial role, the person must be, at least potentially, capable of action: thus, it is not sufficient to be an object in someone else’s action program to be considered a person: the actor must embody the function of a qualified subject, i.e. a subject in conjunction with the modal value of knowledge and power.
Are There Collective Persons?
There is one last problem related to the description of phenomenological persons as actors: are there collective persons? Law grants the legal person (in Latin: persona ficta) certain rights, duties, and a degree of responsibility, similar to individual persons. Thus, the relation between individual persons and collective actors, such as companies and government agencies, needs to be clarified. According to Scheler, it is possible to define “collective persons” as the various centres of experience in an endless totality of living with one another [1: 520]. According to this view, every person experiences being a member of a community of persons, a social unit, described as a sphere of co-responsibility. Husserl agrees on the presence, in the world, of “personalities of a higher order” (state, church) [14: 77].
However, according to Edith Stein, when identifying communities of life as a collective person, Scheler encounters a difficulty in relating individual responsibility and freedom to the collective responsibility of the community [15: 276]. Stein notes that in an empirical community, not every member is a free and fully responsible person, and speculates about a collective person whose members are not responsible persons:
If the community no longer contains any free persons, or none who build up the community with their personal living, then it is certainly no longer capable of any goal-setting. Then the question is, what is left to the community at all. Not a shred of responsibility, it seems to me, first of all. You can no longer talk of responsibility in any sense in a community in which no single person is responsible. There is no free acting here, no more free self-formation, but only an impulsive doing that no longer can be considered as bearer of any responsibility [15: 276].
To solve this difficulty, we will now resume Edith Stein’s analysis of the nexus between individual persons and their consequences in terms of philosophy of law.