Thursday, December 7, 2023
Paul B. Miller (Notre Dame Law School) recently published, The Concept of Personality in Private Law, Oxford University Press, November 2023. Provided below is an Abstract:
This chapter examines the concept of personality in common law private law. That we have such a concept is easily missed. We live in a time in which entrenched legal nominalism and moral anti-realism have generated fragmentary conceptions of personality. Some examine the concept in a reductionist way, equating legal personhood with possession of requisites of personal and/or group agency, or by tethering it to now-antiquated ascriptions of legal status. Others combine nominalism with casual positivism, suggesting that “legal personality” consists merely in different ascriptions made of different objects (persons, places, things, animals) whom lawmakers have declared “persons.”
In the chapter, I challenge all of this. I claim that the concept of legal personality found at common law is reasonably coherent, its development having been disciplined as a matter of analogical reasoning by recourse to a focal exemplar (cognitively mature and intact natural persons). Furthermore, I argue that the concept consists in three irreducible facets – legal agency (and its requisites), the ascription of legal entitlements and burdens, and legal statuses – each of which is integrated with the others. And, finally, I argue that the concept is interstitial: it is assumed by, while also joining or modulating the application of, other legal concepts. Given that systems of posited law are constructed normative systems meant to serve those amenable of normative guidance, the normative primordiality of legal personality is implied by the nature of law. Law could have no author or object were it not made by, and in contemplation of, persons.