Claims rights include directing obligations; They are held by beings to whom duties are due. Most people would probably agree that homework can be due to children, but animals are already a bit more controversial. What about stones, idols, rivers or atoms? There may well be legal entities dedicated to the preservation of a river, but how do we determine whether they have fiduciary duties to the river – essentially representing the river, and not, say, the interests of the general public? I addressed these issues in Chapter 2 and do not intend to repeat this discussion here, but I will raise a few pertinent points. First, according to Kramer`s theory of interest – which, although not accepted as a theory of law, is Hohfeld`s best theory of claims – sentient beings are the main group of claimants. We can have duties to adults, children and non-human animals, but not, for example, to rivers. On the contrary, our tasks may concern rivers. This distinction is based on a moral distinction: living things have ultimate value, waters are not. There may be a legal entity responsible for protecting the river, but the relevant legal platform cannot bind itself to the river (in the strong sense) because the river cannot make claims. On the contrary, the river is in a similar position to the ancient manuscript protected by an organization: the organization may very well be obliged to protect the manuscript, but it does not have this obligation to the manuscript.
The same goes for idols. For this reason, agreements where legal platforms are set up to protect manuscripts or rivers are very different from analogous regulations for children or animals. On the other hand, the key elements of active legal personality focus on liability and legal competence. Legal liability comes with the ability to take on duties, which is why even some animals can be held legally responsible – although it may be morally wrong to hold them accountable. Jurisdiction is exercised mainly through acts deliberately designed to give a legal consequence related to the act (see Chapter 3). The ability to legislate requires some understanding of the institutional reality and, in particular, of how institutions can be used through the use of symbols. Although dogs can be punished, dogs lack the cognitive abilities to enter into legal contracts.33 Rivers and trees cannot hold claims or perform actions, so they cannot be legal persons. Tur claimed in a passage quoted above that an action can properly be attributed to an idol. However, his claim is indefensible; Idols cannot perform actions. So what would an alleged attribution of the act to the idol mean? The distinction between platform and person provides a relatively obvious answer: this “attribution” of an action to the idol simply means that the legal consequences of the action concern the legal platform “the idol” and not the natural legal platform of the administrator of the idol. However, this does not mean that the corresponding physical object is actually involved in such a way as to justify its designation as a legal person.
Search: `legal entity` in Oxford Reference » The concept of wealth here is very close to what I mean by a legal platform. This dual regulation of ownership resembles in many respects certain characteristics of the legal person. One of the characteristics of the legal personality of commercial companies – as opposed to, for example, partnerships – is what is known as limited liability or asset protection.26 Limited liability means that the shareholders of a commercial company are not personally liable for their debts. This is one of the reasons why a person wants to form a company to do business: the person`s personal assets are protected from the company`s creditors. The link to the above model of dual inheritance is quite clear; Scottish trusts are similar to corporations in that they offer limited liability. I pointed out above that the term “legal person” is used in the literature (at least) in two different ways: some use it to refer to a set of legal positions, others as a non-legal person that meets certain criteria. A typical example of the concept of legal person in a civil jurisdiction according to the General Principles of Civil Law of the People`s Republic of China, Chapter III, Article 36: “A legal person is an organization that has the capacity to exercise civil rights and civil conduct, independently enjoys civil rights, and assumes civil law obligations in accordance with the law.” [20] It should be noted, however, that the term citizenship has a very different meaning in civil law and common law systems. Eilionóir Flynn and Anna Arstein-Kerslake present an example of how the independent legal personality of a disabled person works. They advocated a model of supported decision-making, where a person with a disability “selects a number of trusted persons to support the decision-making process.” “However, support can only be offered to one person, and they should be free to accept or refuse support.
Supported decision-making should never be imposed on a person against their will. 55 The support model envisaged by Flynn and Arstein-Kerslake is regarded as an autonomous legal person, since the disabled person has the final say in the performance of a legal act. However, there are most likely persons with disabilities whose decision-making capacity is so limited that the support model would not be appropriate, as Flynn and Arstein-Kerslake acknowledge (albeit reluctantly).56 If these persons cannot perform legal acts, they cannot be independent legal persons. Onerous legal persons operate through real legal obligations, and I have already touched on the area of legal obligations in Chapter 2. Therefore, the treatment here can be relatively short, since companies that can perform legal obligations are the only candidates for an incriminating legal entity. Therefore, when we refer to a legal entity, we may be referring to (at least) two different things: (1) an entity that holds claims and charges that make up its owner`s legal entity, or (2) the legal claims and charges themselves. Lawson, Kelsen and others use the term “legal entity” roughly in the second sense. Admittedly, legal persons can be “defined” in the latter sense. However, this meaning should not be confused with the former. This merger is a source of much confusion, especially when discussing the supposed legal personality of idols, rivers, etc. In future, I will only use the term “legal person” in the first sense and distinguish legal persons from legal platforms. First, we can say, “John Smith is a legal person.” In this case, there is a non-legal person (John Smith) that has an attribute related to a legal system.
What constitutes the legal personality of John Smith is his possession of claims and encumbrances which constitute the incidents of a legal person.
