Lecture 1: What does it mean to be a person under the law?

The objective of this lecture is, among other things, to describe the genesis of the concept of “person” from its ancient roots, via the Middle Ages. As far as ancient history is concerned, one has to ask whether the “ancient persona” can be understood the same way as the “contemporary person”, i.e. whether this term comprises a natural person, as the opposite of a slave, and a juristic person, as an umbrella concept for bodies other than humans that have a legal personhood. In terms of the medieval period, a question begs regarding the legal personhood of the church, conceived as corpus mysticum, as well as how it was possible that certain processes taking place in the church at those times pertained, inter alia, to the property of individual components of the church, although this property was owned by one and the same church. However, this lecture will explain, in particular, why the current abstract concept of “person” has practically nothing in common with the ancient and medieval concepts, but rather only with the modern approach where the main role was played by the concept of a moral person.

Lecture 2: The Moral Person

A moral person – persona moralis – presented only in late 17th century by Samuel Pufendorf is the key that enables us to understand both the concept of “natural person” and the concept of “juristic person”. Indeed, the terms “moral” and “immoral” relate to whether or not the given person complied with the obligations associated with his/her status. The fact that the concept of moral person was later replaced by the concepts of “natural” and “juristic" persons is thus connected with the fact that an approach to persons based on their status had eventually been abandoned.

Lecture 3: Fiction theory of juristic person

The “theory of fiction” is based on the assumption that only a human being can have a will of his/her own and, therefore, only a human being can be a person in the true sense of the word. This also explains why a juristic person – which cannot have a will of its own – is a mere fiction and thus its name: theory of fiction. The theory of fiction can be considered the oldest theory of juristic persons. Its best known and most important protagonist was undoubtedly F. C. Savigny (1779–1861). Savigny published in 1840 his renowned work System of the Modern Roman Law (Volume Two). There, Savigny not only laid the fundaments of the theory of legal fiction but also developed the modern perception of a juristic person as a concept that has remained in use to the present time. However, the theory of fiction, as presented by Savigny, represents only one train of thought within “theories of will”. The aim of this lecture will be how did its most prominent representative, Friedrich Carl von Savigny, understand the "theory of fiction"?

Lecture 4: A person as a bearer of „Volitional power“

Savigny’s successors gradually set the concept of juristic person aside; they perceived it as the bearer of a certain right and rather focused their attention on that very right, which they considered a “volitional power” – “Willensmacht”. Further representatives of the theory of will include Puchta, Brinz, Hölder, Binder, Thon, Windscheid and Zittelmann. All these authors considered “volitional power” to be the determining quality of a person as a legal entity. However, each of them understood this power differently.

The primary decisive criterion was the specific will of an individual entity (Savigny, Puchta, Brinz, Hölder, Binder); the second step was the formulation of an imperative theory according to which it was no longer the will of a given entity but rather that of legal order that was decisive (Thon); and the last step was a synthesis between the individual theory of volitional power and will of the legal order, where this individual will of an entity could only be manifested within the scope permitted by the legal order (Windscheid).

Lecture 5: Organic theory of juristic person

The theory of fiction is usually considered an irreconcilable antipole of the organic theory (i.e. a theory of real unitary personhood – die reale Verbandsperson), pioneered notably by Otto von Gierke (1841-1921). However, these theories are, in fact, far from irreconcilable. Both of them follow from a common basis – a subjective right regarded as volitional power. The organic theory differs from the theory of fiction primarily in that it ascribes volitional power not only to human beings as isolated individuals, but also to groups of people – comunity. Another legal myth that surrounds the organic theory is the idea that this theory thrives in primitive analogies between a “society” and a biological organism, where individual bodies of society are likened to bodies of a biological organism. Although it has to be admitted that the organic theory uses certain metaphorical, figurative comparisons, its main message lies elsewhere. Indeed, the sense of the organic theory was to answer the question of what criterion should be used to distinguish a society, which is the bearer of legal personhood, from a mere “joint and several community”, (Gesamthandsgemeinschaft) which lacks legal personhood. This is why the organic theory also distinguishes between social law, which regulates social organisms, and individual law, whose purpose is to regulate relationships among persons as isolated entities. The criterion for differentiating to whom a certain right should apply was the distinction between the unitary will (Gesamtwille) of a community and the common will of a joint and several community (Gesamthandsgemeinschaft).

Lecture 6: Theory of interest and the concept of “person” in Anglo-American law

Theory of interest and combined theories

The theory of fiction and the organic theory suffered from a common weakness, related to a situation where a body not endowed with a will or, as a matter of fact, even a human being lacking a will was considered a person in the legal sense. Ihering tried to eliminate this weakness through his theory that the characteristic to which legal personhood had to be linked was not a right regarded as volitional power, but rather a right conceived as a legally protected interest. Nonetheless, Ihering’s starting point did not, yet again, differ diametrically from that used by his predecessors. For him, too, the starting point was a human being, who was the only one that could be considered a destinatary of the law. A shift in this concept, where a destinatary of the law need not be solely a human being, was made only by his successors. For example, Becker tried to combine the theory of interest with the theory of purpose-driven property. In his concept, a destinatary of the law thus need not be solely a human being, but also such “purpose-driven assets”. Another step in this direction taken made by Schwarz, for whom the bearer of an interest was no longer substantial; what was substantial was merely the purpose that was being followed. The result was a common structure for both natural and juristic persons as their property did not in fact belong to these persons, but rather to the purpose they were pursuing. Taken to the extreme, it follows from the above that a human being is nothing more than a mere administrator of his/her rights.

The concept of “person” in Anglo-American law

The Anglo-American legal system does not comprise any general legal definition of a “person”, which is one of the reasons why the terminology used in the system of common law is not uniform. Another difference lies in the philosophical foundations of this concept. If, in the system of civil law, a person is understood (based on Kant’s teachings) as an abstract bearer of rights and obligations, such a concept is only one of the possible starting points in terms of the Anglo-American system. This is documented by the way Margaret Jane Radin tackles the concept of person. Her approach is based on the concept of personal property, which – on the basis of an intuitively perceived consensus – constitutes the personhood of a human being, and must therefore also be a reason why a human being should be considered a person. However, according to her opponent, Stephen Schnably, there is, in fact, no such fairly established consensus. Indeed, deep contradictions and conflicts can always be found under the surface of such a seemingly existing consensus. According to Schnably, these conflicts must be put under the spotlight in any considerations regarding property and personhood. It can thus be stated in both these cases that a human being will a priori serve as the starting point for considerations related to legal personhood; while in Radin’s concept, human beings share certain values, Schnably believes that humans question certain values and are resistant to them.

Lecture 7: Juristic persons from the point of view of the Pure theory of law

The theoretical approach adopted by the Pure theory of law to a juristic person signified a complete change in the paradigm compared to the previous theories of juristic persons. A person as a legal concept was no longer derived from a human being, whether as an individual or as a group of persons, but rather only from the position occupied by a “person” in the applicable (positive) law, i.e. in the normative world. Therefore, not a human being, but rather an abstract “bearer” of rights was considered a person in the legal sense. But unlike the traditional doctrine, normativism also understands a right as a legal norm. This, howe