The law of persons today: at the margins of jurisprudence (original) (raw)
Related papers
In her analysis of the vexed question of the legal person, in the book Law's Meaning of Life, Ngaire Naffine systematizes the spectrum of the many different interpretations of what counts as person before the law into two broad categories: the legalists and the metaphysical realists. For the legalists, the person in law is a 'formal and neutral legal device' which permits the acquisition of the 'ability to bear rights and duty' (Naffine 2009, 22). In this perspective, everything could ultimately be a person for legal purposes. Legal personality could be recognized for a river, or a piece of land, towards their protection; and in a similar fashion, though admittedly with distinct ethical and practical consequences, a foetus can be regarded as a person for specific legal purposes. The person, in the legalist perspective, is an abstract technical artefact devised and implemented to fulfil determinate juridical operations. From a quite different angle, the metaphysical realists see the person as mirroring (within the sphere of law) certain essential characteristics of human nature. Legal personality is understood as an expression of certain constitutive attributes of human beings; it corresponds to the affirmation and transposition, in law, of presupposed assumptions over the essence or the nature of human beings. Hence, only subjects adhering to a given image of the 'human' (usually an adult with fully developed and functioning intellectual capacities and capable of moral agency) are legally recognized as persons. For the realists, it is necessary to go beyond the abstract and empty categorization of law, and to look, instead, at human nature -and from within different viewpoints (such as philosophy, religion and science) -in order to capture its supposed primary constitutive ground, and build upon it the structure of the person (ibid., 22-24). The bi-partition between legalists and realists, while remaining unambiguous at a theoretical level, when confronted with the actual operations of
Persona: bearer of rights and anthropology for law
Human dignity and law: studies on the dignity of human life (Valencia: Tirant lo Blanch) pages 23–54, 2021
Lawyers are specially trained in providing legal services. They are necessarily aware that the regulations that the law has recourse to are in fact only tools, and that the law is actually designed to promote certain values and it is these values which find their expression in the law. It was pointedly noted in 1991 that, “as history demonstrates, a democracy without values easily turns into open or thinly-disguised totalitarianism”. The experience of the enormous change in political systems which took place in late twentieth-century Europe led the author of this observation to further comment: “Authentic democracy is possible only in a state ruled by law, and on the basis of a correct conception of the human person”. The first part of this last citation is best known and often repeated. It is the second, however, that touches the main problem of our times, i.e. anthropology. How should one respect human beings as bearers of rights? Is there any correct anthropology, the only correct anthropology to be used as a basis for law? The experience of discussions with Marxists before 1991 could be instructive with regard to the challenges that any concept of persona and/or individual and/or bearer of rights has to confront in present times. And by contrast with this, the jurisprudential framework of Roman law could provide a useful independent perspective on this issue. Research in this area starts from Hermogenianus’ celebrated precept, cited in Justinian’s Digest, that “all law has been established on account of mankind”. The precept that hominum causa omne ius constitutum sit has always been taken as inspiring and full of promise. This precept expressed the centrality of man in Roman law, an idea which emerged explicitly in the mature phase of that culture’s law and became a message from Roman civilization for the European legal tradition as a whole. Along with the rest of the legacy resulting from the Roman legal experience, there has been passed on to us the importance of homo for law as well as the concept of persona: it is man who creates the law and not the law that creates man. A totalitarian system claiming to implement Marxist ideology was the personal experience of those who lived in Central and Eastern Europe in the post-World War II era. Academic work and research—and not only that of philosophers—was deeply marked by the confrontation of Marxism with Thomist phenomenology. The core of the controversy was over anthropology and the understanding of man. It is not surprising, then, that a philosopher-personalist should enthusiastically refer to the relationship between man and law, citing ancient legal experience which proved to be even pre-Christian. This experience revealed the foundations of legal anthropology in the world of the European legal tradition. The anthropological significance of referring law to man would appear to be universal. No doubt it remains instructive also for democracy. The relationship between man and law makes law a meaningful tool for the realization of human values and for serving man as an existing being, prior to law. This relationship also points to man as a person, and so to the fact that this latter relationship—that between homo and persona—is an enquiry long overdue.
Law, Personhood and the Discontents of Juridical Humanism
The paper describes the current account of personhood in law claiming that it is based on philosophical assumptions that could be called the “Juridical Humanism”. However, it becomes more and more difficult to reconcile Juridical Humanism with the ethical implications of some important advances in the contemporary science and technology, such as the progress of knowledge about animals, research on human-animals chimeras and hybrids as well as developments of artificial parts of human body and brain and wholly artificial agents of growing scope of autonomy. The decline of Juridical Humanism and its underlying philosophical foundations makes it necessary to rethink the conceptual and ethical basis of the legal approach to personhood. Such reconsideration should lead to a deeper distinction between human and non-human persons as well as between persons and nonpersonal subjects of law (in place of traditional dichotomy of persons and things).
The Power of Purity: Preliminary Notes for an Archaeology of Modern Jurisprudence
Law and critique, 2024
In this paper I will try to subsume what Carl Schmitt referred to as the three types of juristic thought – positivism, decisionism and institutionalism – under the same 'signature of power’. With this expression I refer here to a general enunciative function that informs (legal) thought, forcing it to perform an (ex-ceptional) articulation of (form of) law and (force of) life. My suggestion is thus that it is possible to interpret the different approach to the law question of two fatherly figures of modern jurisprudence – Hans Kelsen (positivism) and Carl Schmitt (decisionist-institutionalism) – in a way which, while mantaining that there is indeed a difference between their theories, points also towards a more fundamental partnership which concerns the very form (i.e. ex-ceptionality) of their questioning. The purpose of this paper is thus to show that the fundamental differences between these two approaches become indistinguishable if re-considered in the context of a broader problematisation of power which, following Giorgio Agamben’s reinterpretation of Foucault’s work on biopolitics, can here be defined as an ideology of govern-mentality according to which, simply put, sociality can be reduced to one, two-sided, operation: government/self-government through a decision on the form of law, to be perfomed at different levels, including thought. Legal theory as practiced by Kelsen and Schmitt is, in this respect, governmental or biopolitical, because it institutes a fictional threshold of indifferentiation between law (form) and life (force), whose preservation, by means of further (ex-ceptional) articulations (i.e. inclusive-exclusions), becomes the jurist’s fundamental task. Moreover, given the central role of both Kelsen’s positivism and Schmitt’s decisionist institutionalism for modern legal theory in general, a critical reflection on the act of (legal) theorising as such as an act of power is made possible. The modern tradition of legal theory can thus be interpreted – in spite of its increasing complexity and fragmentation (which was already reflected, at the beginning of the last century, in the fragmentation of legal theory into positivist, institutionalist and decisionist stances) – as preserving thought’s power to relate law and life. One possible alternative to a theory of (i.e. that belongs to) power is, I think, a practice of critical observation (a study) of the power of theory.
Introduction: Legal Bodies: Corpus/Persona/Communitas
Law and Literature, 2016
This issue of Law and Literature, entitled "Legal Bodies: Corpus/Persona/ Communitas," investigates the various ways that literary and artistic texts have interrogated the modes in which different fields of law have historically conceptualized the notion of "personhood." The guiding assumption behind this issue is that personhood is not a (biologically) given, stable property of human beings that precedes their interaction with the law, but rather that the notion of personhood is assigned to selected "bodies" by discursive regimes, such as law, medicine, politics, religion, and education. The issue focuses on historical and current (re-)conceptualizations of the notion of personhood within the domain of law, as well as on the various ways that literature, art, and culture are the domains in which the implications and scope of personhood's legal, political, or medical conceptualizations can be articulated and thought through, and in which alternative understandings of personhood can be proposed. Derived from phersu, the ancient Etruscan term for mask, Roman law adopted the term "persona" to distinguish holders of full civil rights from those who lacked such civil personhood: women, children, slaves, and foreigners. The term's origin in the theatre indicates that, for the Romans, personhood was not an inalienable property of human beings but was understood as something that was affixed to a natural body, attributing to it a public role and a legal position protected by a set of regulations. As Roberto Esposito recalls, the distinction between persons and non-persons grounds Roman law (and the European legal tradition that emerged out of Roman law), but is also a product of the legal institution. 1 Law, to use Giorgio Agamben's metaphor, functions as an "anthropological machine," an apparatus that in assigning personhood to various bodies creates differences between "legal bodies" and "mere biological bodies." 2
Humanity as Core Issue of Law. Post-Postmodern Methodologies in Roman Law
The paper moves from a single but very significant case study, presented by the Roman jurist Ulpian (75 ad ed., D. 44.2.11 pr.). The text offers a good historical example of axiological approach to law as an instrument, even towards itself: face to one of the strongest procedural principle of law (res judicata) and to a circumstance in which the rigorous application of it would produce an unjust result, the jurist points out the necessity to use law as an instrument in order to constantly improve the law itself and realise substantial justice. The case is exemplary from a very wide methodological point of view, in showing the Roman jurisprudence’s approach to the occurrence of reality’s requests and connected legal problems. The jurist goes here through the case, getting to the core and foundation of law and justice: humanity. In so doing, the text also offers, showing the potential of comparative historical approach, a very interesting chance of entering, from a new (although very old) point of view, the contemporary debates between the scholars of general theory of law, matching with the dualism between legal formalism and instrumentalism. The case study shows, in fact, a bright example of a possible way to go through and even supersede this ideological rift, putting together formal respect of fundamental legal principles and opportunity to take into account the real situation’s circumstances. In this way, formal law evolves into real, human law, following the fundamental definition of law as ‘art of the just and equitable’ (D.1.1 pr.). The case study finds its main core issues in pointing out: 1. the difference, in law, between rules (which ‘rule’) and principles (which ‘guide’); 2. the relationship between ‘formal justice’ and ‘substantial justice’; 3. the necessity of putting humanity at the centre of the legal discourse; 4. the possibility (and duty) to transform reality through law, creating opportunities of protection for weacker and forgotten people (in this specific case women). Nowadays, the national law systems face great theoretical challenges in order to provide instruments for a sustainable development of humankind (e.g about environment safeguard, right to food, human rights beyond the national boundaries, commons’ protection, the ideas of ownership): Roman jurisprudence can, as this text shows in an exemplary way, offer an interesting lesson of positive deconstruction of law, through the use of law itself as an instrument, contributing to the growth of a reflective society.