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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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49
Kelsen’s initial argument, not unlike Dewy and Kocourek, is that
there is no essential difference in law between the natural person and the artificial person. Both are fictitious and juridical in origin. The person is “simply an artificial aid to thought, a heuristic concept created by legal cognition”. Kelsen directly challenges the notion that the natural person is a human being.
“That man and person are two entirely different concepts may be regarded as a generally accepted result of analytical jurisprudence. Only, one does not always draw therefrom the last consequence. This consequence is that the physical (natural) person as the subject of duties and rights is not the human being whose conduct is the contents of these duties or the object of these rights, but that the physical (natural) person is only the personification of these duties and rights. Formulated more exactly; the physical (natural) person is the personification of a set of legal norms which by constituting duties and rights containing the conduct of one and the same human being regulate the conduct of this being.”
122
The human being is the proper subject of biology not law. Kelsen emphasizes this point by re-labeling the conventional term ‘natural’ person as ‘physical’ person. A phenomenon of biology, the physical person has no rightful place within the sphere of legal norms, for the law is incapable of bridging the gap between the natural sciences and the science of law. As a strictly legal concept, the person results from a process of personification. Kelsen describes the process by which a subject is posited to stand behind a series of rights and duties, and to juridically exist before the law, as a from of animism, in which
“every object of the perceptual world is believed to be the abode of an invisible spirit who is the master of the object, who ‘has’ the object in the same way as the substance has its qualities, the grammatical subject its predicates. Thus, the legal person, as ordinarily understood, also ‘has’ its legal duties and rights in this same sense.”
123
122
General Theory of Law and State, pg. 94-95.
123
General Theory of Law and State, pg. 93.
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49
Kelsen’s initial argument, not unlike Dewy and Kocourek, is that
there is no essential difference in law between the natural person and the
artificial person. Both are fictitious and juridical in origin. The person is
“simply an artificial aid to thought, a heuristic concept created by legal
cognition”. Kelsen directly challenges the notion that the natural person is a
human being.
“That man and person are two entirely different concepts may
be regarded as a generally accepted result of analytical
jurisprudence. Only, one does not always draw therefrom the
last consequence. This consequence is that the physical
(natural) person as the subject of duties and rights is not the
human being whose conduct is the contents of these duties or
the object of these rights, but that the physical (natural) person
is only the personification of these duties and rights.
Formulated more exactly; the physical (natural) person is the
personification of a set of legal norms which by constituting
duties and rights containing the conduct of one and the same
human being regulate the conduct of this being.”
122
The human being is the proper subject of biology not law. Kelsen
emphasizes this point by re-labeling the conventional term ‘natural’ person
as ‘physical’ person. A phenomenon of biology, the physical person has no
rightful place within the sphere of legal norms, for the law is incapable of
bridging the gap between the natural sciences and the science of law. As a
strictly legal concept, the person results from a process of personification.
Kelsen describes the process by which a subject is posited to stand behind a
series of rights and duties, and to juridically exist before the law, as a from
of animism, in which
“every object of the perceptual world is believed to be the
abode of an invisible spirit who is the master of the object, who
‘has’ the object in the same way as the substance has its
qualities, the grammatical subject its predicates. Thus, the legal
person, as ordinarily understood, also ‘has’ its legal duties and
rights in this same sense.”
123
122
General Theory of Law and State, pg. 94-95.
123
General Theory of Law and State, pg. 93.
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