3.4.1 Introduction

By Laurence Diver

Central to the notions of legal subjectivity, subjective rights, and legal powers is the fundamentally artificial nature of law. These legal concepts are part of a human-made ‘symbolic universe’ of legal institutional fact,¹ sustained through continued collective and individual practices and the materials and artefacts they rely upon. In the legal mode of existence, entities from the infinitely complex concrete world are qualified into forms that are intelligible to law. At that point they can be manipulated within our shared legal Welt, built of institutions that allow for interpretation, argumentation, and the temporary ‘closure’ of legal effect.

What appears to be a legal subject, subjective right, or legal power might not, in fact, be legal at all.

Along with rights and powers, legal subjectivity is a fundamental concept in any legal system, without which the very concept of a legal ‘system’ does not make a great deal of sense. As with other institutional aspects of law, it is an artificial construct and not something that is naturally ‘there’. Thus its nature and the protection it can offer us is contingent on our continual invigoration of the concept, within the shared Welt of law, which so far has relied on text as the medium that makes possible its mode of existence. Protecting these fundamental concepts means keen attention must be paid to how they have come into being, and how they can be sustained. This requires deep investigation into the conditions of their possibility, always bearing in mind that what appears to be a legal subject, subjective right, or legal power might not, in fact, be legal at all.

---

References

---