Liberating the Legal Person

Introduction

One of the most basic and penetrating ways in which law reaches into our social and private lives is by means of its concept of the legal person.¹ By granting legal rights and duties, law establishes legal relations, and it also personifies: that is, it turns us into legal persons or legal actors, right holders and duty bearers, beings who are therefore capable of acting and relating in law.² Concomitantly, by denying legal rights and duties, law effectively "unpersons":³ that which is deemed incapable of bearing any rights and duties is so thoroughly disabled at law that it is generally thought of as property. Animals, for example, essentially fall into this category.⁴

This much about the nature and significance of legal personification can be briefly stated. But beyond this simple set of factual propositions, there are deeper epistemological and metaphysical problems that bedevil the law of persons and that form a major focus of Impersonations, Sheryl Hamilton's new book on the concept of the person in law and culture. These problems concern the nature of the relationship between legal persons and people outside of law. They prompt one to ask, Does law seek to mirror life when it makes a legal person? Is it trying to capture some essence about a being (say, the capacity for reason, or perhaps humanity per se) when it turns someone into a rights-and-duty-bearing entity—a legal person? In short, is law trying to match or capture the nature or quality of life when it personifies, or is it engaged in a quite distinct legal pursuit, coining its own basic conceptual unit—the person—for its own legal purposes? And, perhaps more significantly, what should law be doing?⁵

Among lawyers, there is considerable disagreement on all of these matters. In this review essay, I employ Hamilton's monograph on persons as a means to examine these central debates between legal scholars about what law is, and should be, doing when it personifies. I suggest that the endeavour of many lawyers to match law to life when they personify can be misconceived, because it weds law to a paradigm of a person—the person to whom law's person is matched. It also serves to structure all further analysis in terms of paradigmatic and non-paradigmatic cases. Once the analysis is structured thus, even critical objections to the nature of the reigning paradigm of a person—for its exclusions or biases, say—can lead only to a revision of the paradigm or to a new paradigm. I argue below that a better, more creative way to think of the legal person is as a relatively autonomous legal fiction and invention. This liberates the legal person from any one human paradigm and leaves law freer to personify strategically according to the needs of law and justice.

Hamilton's Enterprise

The vehicle for my analysis, Impersonations, is an extended inquiry into the nature of persons in law, philosophy, and (North American) culture. This is a large, ambitious enterprise covering a vast intellectual territory that demands selective treatment if it is to be managed in a single volume. Hamilton decides to approach her interdisciplinary investigation of persons via "a series of loosely intertwined stories about some of the liminal beings that have become important to us" (p. 11). In effect, she chooses to concentrate on what have come to be thought of as the hard cases of legal and cultural personhood: corporations, women, clones, computers, and celebrities. Each of these "beings" forms the subject of a chapter in which it is critically scrutinized and analysed. Hamilton's sources and her methods for making sense of each "being" cover a tremendous range, from relatively formal legal doctrinal analysis of landmark law cases to cultural analysis of popular films.

All of Hamilton's case studies are said to involve "personae" rather than full "persons." She calls them "liminal beings" (p. 7), "unnatural subjects," "fringe cases" (p. 8). They are the "lumpy" and the...