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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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“Hic jacet persona ficta”
-- F. W. Maitland’s proposed epitaph
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I.
Introduction
The concept of the Person has long played an important role as a
keyword within the Western jurisprudential tradition, naming the legal subject, the possessor or rights and duties. However, while the language of rights (and, to a lesser extent, duties) is still vital, over the past half century the ‘Person’ has become the forgotten concept of Anglo-American jurisprudence. As a result, the full meaning of the term, the discursive traditions that it bears, and its relationship to a decent legal system, has dimmed. The decline of the term bears significant ramifications, since it remains important to understand the status of human beings under law, to understand law as a moral aspiration, and more practically to understand the Constitutional protections of the Fourteenth Amendment.
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In order to understand how this term has fallen from its once high
position in jurisprudence, we need to return to the last full controversy concerning the meaning of the legal subject. That final debate took place roughly between 1880-1930, and concerned the question of whether or not groups, associations and corporations became Persons through the legal fiction of the sovereign state or whether they had real personality that the state was compelled to recognize. In this essay, I shall describe this last stand of the Person.
But who or what is the Person? The concept is vast. In common
speech, we typically speak of a Person as synonymous with a human being. Nevertheless, the term Person has never been merely a descriptive term, nor has it been limited to human beings. Over the long history of the term, many entities other than humans have been considered Persons; the full and varied list of beings called Persons would include both the modern corporations and
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Cited in H.E. Bell. Maitland: A Critical Examination and Assessment. (London: Adam and Charles Black,
1965) pg. 9.
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“… nor shall any State deprive any person of life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal protection of the laws.” Fourteenth Amendment of the United States Constitution.
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2
“Hic jacet persona ficta”
-- F. W. Maitland’s proposed epitaph
1
I.
Introduction
The concept of the Person has long played an important role as a
keyword within the Western jurisprudential tradition, naming the legal
subject, the possessor or rights and duties. However, while the language of
rights (and, to a lesser extent, duties) is still vital, over the past half century
the ‘Person’ has become the forgotten concept of Anglo-American
jurisprudence. As a result, the full meaning of the term, the discursive
traditions that it bears, and its relationship to a decent legal system, has
dimmed. The decline of the term bears significant ramifications, since it
remains important to understand the status of human beings under law, to
understand law as a moral aspiration, and more practically to understand the
Constitutional protections of the Fourteenth Amendment.
2
In order to understand how this term has fallen from its once high
position in jurisprudence, we need to return to the last full controversy
concerning the meaning of the legal subject. That final debate took place
roughly between 1880-1930, and concerned the question of whether or not
groups, associations and corporations became Persons through the legal
fiction of the sovereign state or whether they had real personality that the
state was compelled to recognize. In this essay, I shall describe this last
stand of the Person.
But who or what is the Person? The concept is vast. In common
speech, we typically speak of a Person as synonymous with a human being.
Nevertheless, the term Person has never been merely a descriptive term, nor
has it been limited to human beings. Over the long history of the term, many
entities other than humans have been considered Persons; the full and varied
list of beings called Persons would include both the modern corporations and
1
Cited in H.E. Bell. Maitland: A Critical Examination and Assessment. (London: Adam and Charles Black,
1965) pg. 9.
2
“… nor shall any State deprive any person of life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal protection of the laws.” Fourteenth Amendment of the
United States Constitution.
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