3.4.2 Legal Subject
- Working definition
- Examples of how ‘legal subject’ is used
- The meaning of ‘legal subject’ in terms of MoE, affordance and LPbD
- A legal subject is an entity capable of acting in law, of having subjective rights and of having legal obligations.
- Most jurisdictions attribute legal subjectivity to two types of entity:
- Human beings, called natural persons.
- All other entities attributed legal subjectivity, called legal persons.
- A legal subject is not the same thing as either the human being or the non-human entity that is granted legal subjectivity. Instead, it is akin to an avatar that enables them to play specific role(s) in law.
- This means that being a legal person does not necessitate being a moral person, that is a being that is capable of acting morally.
- Positive law determines what entities qualify as legal subjects.
- In current constitutional democracies, natural persons have full legal subjectivity (in all domains of law).
- Legal persons have restricted legal subjectivity, as defined by the relevant positive law.
- In principle non-humans can be attributed legal personhood by a legislator, e.g. corporations, associations, but also animals or artificial agents.
- In most jurisdictions the following entities are given legal personhood:
- The state (federal and sub-federal level), public bodies such as cities, regions.
- International organisations.
- Corporations (various types)
- Associations, foundations, charities
- Legal subjects may have limited capacity, as defined by positive law, e.g.
- Minors may not enter contracts, unless authorised by their parents
- A minor may not be liable under tort law, though their parents may be liable instead
- A corporation may be able to conclude contracts and be held liable under private law, but may not be punishable under criminal law (this depends on jurisdiction)
- A natural person may be placed under guardianship in case of mental incapacity, in which case they cannot perform juridical acts
- A legal person will necessarily require representation by one or more natural persons to act in law, to exercise their standing in court, to exercise their rights and fulfil their legal obligations.
- Legal personhood is restricted to the remit defined by the legislator or the courts. Which means they are not necessarily entitled to human rights:
- The European Court of Human Rights has e.g. decided that corporations may have a restricted right to privacy.
The legal subject is the representation of an entity, human or non-human, that is recognised under law as a holder of rights and duties. Most legal subjects can also exercise legal powers, with or without the help of a legal representative.
Different legal subjects can transact with one another on level terms. This means for example that an individual natural person is empowered to purchase a car from a multi-national corporate legal person, with the legal effect of the contract binding both sides despite their difference in nature and size.
The abstract uniformity of the legal subject allows the latter to assert rights and powers under the rule of law, no matter the particular characteristics of the underlying entity it represents. This means that in principle all are given equal opportunity to argue for a legally effective remedy.
Only a legal subject can perform juridical acts, such as entering into a contract; other ‘things’ might have relevance for the law, such as cars, mountains, or money, but these ‘legal objects’ are what is transacted with by legal subjects.
Not all legal subjects can act in the same ways — they have different sets of subjective rights and legal powers. For example, a minor or someone with serious cognitive impairments (both natural persons) will be unable lawfully to enter into certain kinds of contract, such as marriage, or to engage in certain acts, such as driving.
Who and what is given legal subjectivity is determined by positive law. Since the horrors of World War II, however, all humans have been given legal subjectivity by default, in order to provide a minimum threshold of legal protection.
The range of possible legal persons varies between jurisdictions. The classification of a multi-national car manufacturer as a legal person, for example, is the result of a process of incorporation. This means the requirements and process for creating a company defined by the positive law of a particular jurisdiction have been met and followed, with the legal effect of creating a new legal person with legal subjectivity.
Only positive law can bestow legal subjectivity: an autonomous car, a rock, or a cat cannot have legal subjectivity unless and until the positive law says otherwise. It follows that legal subjectivity is not a given, but a choice reflected in positive law.
The creative fiction of the legal subject is a fundamental building block of a legal system.1 It is an avatar that represents us within the legal form of life, a mask that human beings ‘wear’ when they perform on the stage of the legal ‘play’. Indeed, the notion of ‘personhood’ comes from the Latin persona, which has its roots in theatre.2 The character we adopt by donning the mask – our persona, our avatar – is designed to move and act within the dimension of legal institutional fact, asserting rights, discharging duties, and exercising powers there. It is thus a pragmatic representation of the human or non-human, defined to protect them and to enable them to operate effectively within the legal Welt.3 It does this by abstracting the complexity of the ‘real’ person or entity to the extent necessary to facilitate, between legal actors, activities that are compatible with and within the symbolic universe of the law.
The legal subject is an avatar that represents us within the legal form of life.
For individuals, the legal subject is a denaturalisation of the “concrete physical or biological details” of the ineffable human being, separating our legal status in the legal Welt from our intimate, ‘real’ selves.4 While this denaturalisation might appear impersonal or sometimes even harsh, it is a necessary step in creating an enforceable normative order that can balance extreme particularity (which risks arbitrary and therefore unjust treatment) with the brute enforcement of rules regardless of the circumstances (which risks a collapse into an unreflective legalism).5
Beyond this balancing role, the legal subjectivity that text-driven normativity makes possible allows us ‘count as a human being’ in a double-sided way. On the one hand it protects our individuality (our moral right to develop a subjective view of the world), and on the other it subjects us to the normative order of the law. It is thus a framework of constraint that simultaneously, and symbiotically, empowers and protects us. This is the inter-relationship between enablement and protection: the abstraction that protects the human being also facilitates a measure of certainty in the interactions between legal actors.
As an artificial construct built of institutional fact, the legal subject is in no sense ‘found’, or a given – it is a designed notion that is brought into being in each case by means of speech acts that follow conventional procedures specified in positive law. This design includes properties that are de facto interoperable both with other legal subjects (even those of a very different nature: a natural person can contract with a corporation) and with the operations that law makes possible through the attribution to the legal subject of rights, powers, and duties.
Legal system and legal subject are co-constitutive, drawing our attention to the nature of the legal subject that a certain kind of law could support, and vice-versa.
This abstract, ‘empty form’6 is the starting point shared by all legal subjects a priori of any rights, powers, and duties they hold or are subject to. This uniform shape provides a baseline of compatibility with the processes of law, which in turn allows societal stability to evolve, since legitimate mutual expectations can develop between legal subjects in the knowledge that they are backed by (i) rule of law processes that allow for interpretation of and argumentation about the norms underpinning those expectations, and (ii) judicial enforcement of an authoritative interpretation of them.
The nature of the legal subject implies the institutional nature of the legal system, just as the institutional nature of the legal system implies a kind of legal subject that is able to hold subjective rights and legal powers.7 Legal system and legal subject are therefore co-constitutive, drawing our attention to the nature of the legal subject that a certain kind of law could support, and vice-versa. This underlines the notion that the legal subject is of the law, and the law is of the legal subject, with neither making much sense independently of the other. The institutionality that this relies upon is dependent upon certain material conditions of possibility,8 specifically the technologies that afford institutionality in the first place.
Abstraction is a central part of the mode of existence of the legal subject: it is a representation with legal ‘interfaces’ that allow it to interact with other legal subjects within the legal system. Legal subjectivity is thus paradigmatically about the ability to hold rights, to exercise powers, and to be subject to duties. In terms of legal interaction, these are affordances provided by the legal Welt that specify just what the legal subject can actually do in that domain.
The question of affordance thus operates on two levels with respect to the legal subject. First, to what extent does the technological medium afford the institutional mode of existence of the legal subject? And second, what affordances does the legal subject have within the legal-institutional dimension so afforded? The answers to these two questions are intertwined; each is dependent on the other and cannot be viewed in isolation. The second class of affordance arises separately from, or perhaps in parallel with, the affordances of text that make the institutional fact of legal subjectivity possible in the first place.
On the first level, a ‘legal subject’ that is not brought into being by performative speech acts might not be institutional, which means in turn that the protection otherwise offered by the interpretability and contestability of the textual norms that underpin those speech acts will be replaced by something else. As its foundations change, then, so too will the baseline of legal protection that the legal subject represents. This might not be a bad thing, if the capabilities necessary for that protection are retained, namely the ability to hold rights and exercise powers, to be subject to duties, and to have these interpreted authoritatively by a court that is authorised to enforce that interpretation.
On the second level, once operating ‘in’ the legal-institutional dimension, under text-driven normativity the legal subject creates legal effect through operations made by reference to the legal norms that make this possible, subject always to their contest and the finding by a court that what they have done (or purported to do) is in some way unlawful.
What the legal subject can actually do is considered below in relation to rights and powers. But the idea of the subject and its institutional environment being co-constituted, and indeed implied by the kinds of things we want legal subjects to be able to do. Gibson’s idea of a niche can help us make sense of this:
A species of animal is said to utilize or occupy a certain niche in the environment. This is not quite the same as the habitat of the species; a niche refers more to how an animal lives than to where it lives. I suggest that a niche is a set of affordances. The natural environment offers many ways of life, and different animals have different ways of life. The niche implies a kind of animal, and the animal implies a kind of niche.9
The current mode of existence of law demands a set, or niche, of affordances of a certain type, which in turn co-constitutes a certain type of legal subject.
If a niche implies a certain kind of animal and its way of life, then the types of niche a habitat makes possible imply the possible types of animal that it can support (and, importantly, those it cannot). In the legal-institutional dimension of the legal ecology, the ‘animal’ is the legal subject, whose niche consists of the contingent set of rights and powers that it holds. Thus, the niche (a set of legal rights and powers) implies a kind of animal (a form of legal subject), while the animal (the legal subject) implies a kind of niche (one that consists of legal rights and powers).
This highlights just how the current mode of existence of law demands a set, or niche, of affordances of a certain type, which in turn co-constitutes a certain type of agent, i.e. the legal subject as we have described it.
As discussed above in the section on legal norms, the institutionality of legal norms, so far reliant upon the underlying technology of text, both affords parties the possibility of contesting the interpretation of the norm and affords the court the ability to reason toward a legally-valid judgment. This ever-present tension between the corpus of institutional facts and the possibility of contest provides legal protection under text-driven normativity.
By contrast, where the ‘legal subject’ is not instituted, and is not operating withing a corpus of legal norms (themselves institutional facts), it cannot avail itself of that same form of protection with respect to those norms, since the mode of existence of both the subject and the norm is based upon a different set of affordances. Put another way, the niche inhabited by the legal subject shifts from one consisting of legal rights and powers (qua legal-institutional affordances) to one consisting of something else.
In that case, the assertion of a ‘right’ or the exercise of a ‘power’ takes place not as a speech act built on the contestable institutional fact of a legal norm, but by some other mechanism based on some other mode of existence. Again, this is not necessarily a bad thing, provided that the substance is retained of those characteristics which give legal institutionality its normative value in terms of legal protection. Whether this is possible, and how to do it, is a key question for design.
We saw above that a central purpose of the legal subject is to provide an abstraction that simultaneously protects and subjects: it provides uniform ‘interfaces’ that allow for the holding and assertion of rights and powers, while at the same time ensuring every legal subject is subjected to this same system.
At the same time as providing protection to all, legal subjectivity imposes constraint on all, through subjection to the rule of law.
In the first case, the legal subject keeps law at arm’s length, allowing our authorship of our real selves to continue under the cover of its mask — metaphorically speaking, law interacts with and operates on the avatar, not directly with the concrete human being.10 This shielding of our individual natures protects them from the excesses of the market, preventing us from being exploited directly as “pure commodities”,11 as happened under slavery, or in the Holocaust, where human beings were divested of even that name.12 At the same time as providing this protection to all, legal subjectivity imposes constraint on all, through the subjection to the rule of law that Dicey pointed to in his famous aphorism, “no man is above the law”.13 Here, for ‘man’ we can substitute ‘legal subject’, underlining that in principle the largest corporations and even the state are subjected equally to the rule of law. For this reason, the legal subject is simultaneously a protective shield and an empowering tool, and can be, when necessary, a weapon.14
The protection provided by the legal subject is made possible by its mode of existence, constituted as it is by positive law with its basis in text as an externalising medium of legal institutional facts. The text affords the protected entity (or their/its legal representative) the ability to refer to the legal text(s) that provide for their rights, powers, and the duties concomitant with these. This takes place within the shared legal Welt, with its commitment to the rule of law that underpins enforcement of those texts, subject always to interpretation and argumentation when disputes arise.
The idea of legal subjectivity provides the framework within which all of this is made possible, quite apart from the content of individual rights and powers themselves, which will vary between jurisdictions. Without an anterior construct that is capable of holding rights, it becomes easy to arbitrarily deny individuals those rights.15 Legal protection is thus contingent on the existence of a framework that retains these core characteristics, by whatever means they might be made effective:
the ability to hold legal rights and to exercise legal powers,
the possibility of being subjected to legal duties,
the opportunity to interpret legal sources to identify exactly what the state of rights, powers, and duties is at any given time, and to contest these before an authoritative adjudicator,
the ability of the judicial system to make and enforce an authoritative interpretation,
the reasonable ability to appeal any such interpretation.
If a new medium or technology affords these elements, congruent with the notion of the legal subject developed above, then it can claim to embody at least one aspect of legal protection by design, thus protecting the legal subject by protecting what makes a difference in the legal-institutional mode of existence.
This is ‘creative fiction’ in a positive sense, as opposed something fake or falsified. See J. Dewey, ‘The Historic Background of Corporate Legal Personality’ (1926) 35 The Yale Law Journal 655, n 1. ↩
N. van Dijk, ‘In the Hall of Masks: Contrasting Modes of Personification’ in M. Hildebrandt and K. O’Hara (eds), Life and the Law in the Era of Data-Driven Agency (Elgar 2020), p. 232. ↩
Dewey (n 1), p. 660ff. ↩
van Dijk (n 2), p. 234. One affordance of this artificiality is that Modern presumptions about the objective reality can be resisted in the service of contingent ends specified in positive law. Consider for example the law’s treatment of adopted children, who by law receive all the same rights vis-à-vis their parents as do their siblings, or the way the fate of the filius nullius (illegitimate child) has changed as societal mores have evolved. ↩
L.L. Fuller, The Morality of Law (Yale University Press 1977) 72; Z. Bańkowski, ‘Don’t Think About It: Legalism and Legality’ in M.M. Karlsson, Ó.P. Jónsson and E. Margrét Brynjarsdóttir (eds), Rechtstheorie: Zeitschrift für Logik, Methodenlehre, Kybernetik und Soziologie des Rechts (Duncker & Humblot 1993). ↩
van Dijk (n 2), p. 238. ↩
This reflexivity is evident in Dewey’s pragmatic notion of the legal subject as a “right-and-duty-bearing unit”, which implies whatever system is necessary to support it. See Dewey (n 1), p. 661. This ‘retrospective’ approach is a fundamental element of law’s mode of existence, and potentially at odds with the profoundly ex ante nature of computation, discussed below. ↩
H.Y. Kang and S. Kendall, ‘Legal Materiality’ in M. Del Mar, B. Mayler and S. Stern (eds), Oxford Handbook of Law and Humanities (Oxford University Press 2019). ↩
J.J. Gibson, The Ecological Approach to Visual Perception (Classic Edition, Psychology Press 2015), p. 120. ↩
M. Hildebrandt, Law for Computer Scientists and Other Folk (Oxford University Press 2020), p. 241; van Dijk (n 2), p. 233. ↩
Alain Supiot, Homo Juridicus: On the Anthropological Function of the Law (Saskia Brown tr, Paperback edition, Verso 2017), p. 95. ↩
This is why in the wake of the Second World War, states committed to giving all natural persons legal subjectivity by default, providing a basic level of protection prior to the attribution of any additional rights: see e.g. the United Nations Universal Declaration of Human Rights, Article 6. ↩
A.V. Dicey, An Introduction to the Study of the Law of the Constitution (10th edn, Palgrave Macmillan Limited 1985), p. 193. ↩
As in, for example, strategic litigation aimed at curbing the excesses of a government. ↩
As Arendt notes, “the first essential step on the road to total domination is to kill the juridical person in man”. H. Arendt, The Origins of Totalitarianism (Harcourt Brace Jovanovich 1979) 447. ↩