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"The Loss of the Person: The British Debates on the Legal Status of Groups and Individuals, 1880-1930"
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19
i)
There is a dichotomy between natural and artificial Persons.
The most basic feature of Fiction Theory Orthodoxy is the dichotomy
between natural and artificial persons. “Persons are human beings capable of rights.” Markby says with deceptive simplicity, while artificial persons are either aggregates of persons or completely imaginary beings not containing any real persons.
43
A natural person is a human being
possessing, or capable of possessing, rights and duties recognized by law. An artificial person, such as a corporation, a university, club, labor union or a Church, is a person by legal fiction only, and is in fact a creation of the State. The artificial person could also be labeled the legal, juridical, fictitious, juristic or moral person. Such an entity had a life beyond the physical life of its members, shareholders or representatives. Unlike a partnership, the legal rights and responsibilities of the artificial person were not the accumulated rights and responsibilities of its individual members –the persona ficta did not even have to consist of personae vita.
In most of the textbooks, the natural person is described as a human
being capable of possessing rights, rather than actually possessing them. This suggests that the status was best understood as one of potentiality, which makes sense in works written in the years immediately after the American Civil War. But the numerous different formulations found in these texts, describing the proper relationship between a natural person and their rights/duties, indicates a fundamental incoherence, not just in why but also how a natural person may be in possession rights. Holland, for example, all on a single page describes the person in three different ways, as one “in whom the right resides” (implying a theory of inherent natural rights), or one “who is clothed with the right” (suggesting an artificial reshaping of the person) or one “who is benefited by its existence” (rights as utilitarian interests).
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What is telling is that these formulations are each
presented without a hint that Holland is aware that his choice of formulations leads to very different conclusions.
The natural/artificial dichotomy has long roots, and we have already seen
it in Innocent’s presentation of canon law. In terms of the laws of the modern State, Hobbes uses the distinction between natural and artificial persons, the former being those who own their words and actions and the later being one who represents the words and actions of another. Hobbes’
43
Markby, Elements of Law. pg. 82, 86.
44
Holland. Elements of Jurisprudence. pg. 91.
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19
i)
There is a dichotomy between natural and artificial Persons.
The most basic feature of Fiction Theory Orthodoxy is the dichotomy
between natural and artificial persons. “Persons are human beings capable
of rights.” Markby says with deceptive simplicity, while artificial persons
are either aggregates of persons or completely imaginary beings not
containing any real persons.
43
A natural person is a human being
possessing, or capable of possessing, rights and duties recognized by law.
An artificial person, such as a corporation, a university, club, labor union or
a Church, is a person by legal fiction only, and is in fact a creation of the
State. The artificial person could also be labeled the legal, juridical,
fictitious, juristic or moral person. Such an entity had a life beyond the
physical life of its members, shareholders or representatives. Unlike a
partnership, the legal rights and responsibilities of the artificial person were
not the accumulated rights and responsibilities of its individual members –
the persona ficta did not even have to consist of personae vita.
In most of the textbooks, the natural person is described as a human
being capable of possessing rights, rather than actually possessing them.
This suggests that the status was best understood as one of potentiality,
which makes sense in works written in the years immediately after the
American Civil War. But the numerous different formulations found in
these texts, describing the proper relationship between a natural person and
their rights/duties, indicates a fundamental incoherence, not just in why but
also how a natural person may be in possession rights. Holland, for
example, all on a single page describes the person in three different ways, as
one “in whom the right resides” (implying a theory of inherent natural
rights), or one “who is clothed with the right” (suggesting an artificial
reshaping of the person) or one “who is benefited by its existence” (rights as
utilitarian interests).
44
What is telling is that these formulations are each
presented without a hint that Holland is aware that his choice of
formulations leads to very different conclusions.
The natural/artificial dichotomy has long roots, and we have already seen
it in Innocent’s presentation of canon law. In terms of the laws of the
modern State, Hobbes uses the distinction between natural and artificial
persons, the former being those who own their words and actions and the
later being one who represents the words and actions of another. Hobbes’
43
Markby, Elements of Law. pg. 82, 86.
44
Holland. Elements of Jurisprudence. pg. 91.
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