Persons in law

Oxford Journal of Legal Studies

Volumn 29, Issue 4, 2009, Pages 787-804

  Lucy, William ^a  

^a UNIVERSITY OF MANCHESTER   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 76349104619     PISSN: 01436503     EISSN: 14643820     Source Type: Journal    
DOI: 10.1093/ojls/gqp024     Document Type: Article

References (88)

1. Or, more accurately, at least one distinguished jurist thinks it should strive to be interesting: R Dworkin, 'Hart's Postscript and the Character of Political Philosophy' (2004) 24 OJLS 1-37, 37.
2. For one suggestion as to the point when most observers lost interest in this debate, see the book review by D Priel, 'Where Law and Morality Meet' (2006) 69 MLR 114-9, 114.
3. R Dworkin, 'Thirty Years On' 115 (2001-2002) Harvard L Rev 1655-87.
4. Just four (North American) examples will do: E Weinrib, The Idea of Private Law (Harvard UP, Cambridge, Mass. 1995).
5. J Coleman, Risks and Wrongs (CUP, New York 1992).
6. G Fletcher, Rethinking the Criminal Law (Little Brown, Boston 1978).
7. C Fried, Contract as Promise (Harvard UP, Cambridge, Mass 1981). To these few many more books and essays, all of them more recent, could be added, some of them belonging to authors who also produce work that sceptics might place in the (allegedly dull and dreary) 'contemporary analytical jurisprudence' category.
8. Two instances: P J Fitzgerald (ed.), J Salmond, On Jurisprudence (12th edn Sweet and Maxwell, London 1966).
9. F Pollock, A First Book on Jurisprudence (6th edn Macmillan, London 1929).
10. N Naffine, Law's Meaning of Life: Philosophy, Religion, Darwin and the Legal Person (Hart Publishing, Oxford 2009).
11. Naffine is not the only jurist to have tackled the topic relatively recently. See, for example, C Douzinas, The End of Human Rights (Hart Publishing, Oxford 2000) chs 8-9.
12. Naffine (n 6) 1.
13. Of the many, many examples-old and new-that could be cited, a current favourite is M Kramer, N Simmonds and H Steiner, A Debate over Rights (Clarendon Press, Oxford 1998).
14. Naffine (n 6) 13.
15. Ibid 20.
16. Ibid 21.
17. Ibid 22.
18. In what follows I use the terms 'view' and 'conception', when speaking of the different views or conceptions of the legal person, interchangeably. I also sometimes speak of a view or conception in the singular and sometimes in the plural. This is because each view or conception really is, as Naffine shows in ibid chs 3-8, a family of related views, but constant use of the plural is occasionally cumbersome.
19. Ibid 21.
20. The real Emperor Caligula, of course, only aimed to have his horse Incitatus made consul, rather than appointed to an academic position: see R Graves (tr), Suetonius, The Twelve Caesars (Cassell, London 1962) 157.
21. A recent reminder of the law's somewhat baleful history of exclusion is provided, from a Canadian perspective, by R J Sharpe and P I McMahon, The Persons Case: The Origins and Legacy of the Fight for Legal Personhood (University of Toronto Press, Toronto 2007).
22. Naffine (n 6) 41. This claim is buttressed by the argument that the legal person is a cluster concept: ibid 46-7.
23. Ibid 42.
24. Ibid 43.
25. Ibid 23.
26. Ibid 101.
27. At 18 pages, it is considerably shorter than the two which deal with the rationalist conception (39 pp) and the two that deal with the legalist conception (27 pp.). Even the single chapter analysing the naturalist conception is longer (23 pp.).
28. Naffine (n 6) 117.
29. Ibid 24.
30. Ibid 124.
31. Ibid 125.
32. Ibid 141-142.
33. Ibid 84.
34. Ibid 59.
35. Ibid 76-79.
36. Ibid 84-91.
37. Ibid 92.
38. Ibid 94-95.
39. Ibid 97.
40. Ibid 59.
41. Ibid 60, 69 and 59, respectively.
42. Ibid 72.
43. Ibid 66.
44. This account of general capacity belongs to T Honore Responsibility and Fault (Hart Publishing, Oxford 1999) ch 7.
45. Naffine (n 6) 63. In this paragraph, I paraphrase the original sources as cited in Naffine with accompanying page references, rather than re-quote from the original sources.
46. Ibid 73.
47. Ibid 75 and 74, respectively.
48. Ibid 75.
49. Ibid 83.
50. Ibid 76-79.
51. Ibid 77.
52. Which I take to be a vital element of any critical account of ideology, such as that espoused by the mature Marx: see Capital I, Vol 35 of Marx-Engels Collected Works (Lawrence and Wishart, London 1996) 81-94.
53. 185-6 and 537-42. For a brief account of the distinction between critical and non-critical accounts of ideology see my Understanding and Explaining Adjudication (Clarendon Press, Oxford 1999) 224-7.
54. Marx doesn't feature in Naffine (n 6) and appears only intermittently-and then usually on a standardised list of enlightenment bê tes noires-in J Gray's Straw Dogs (Granta, London 2002), which is invoked by Naffine.
55. And in ways additional to, and very different from, the 'intellectualist rationalization' taken to be a hallmark of modernity by M Weber: see H H Gerth and C Wright Mills (eds), From Max Weber: Essays in Sociology (OUP, New York 1958) 139-140.
56. The first two quotations are from Naffine (n 6) 66; the second pair from ibid 67.
57. Ibid 67.
58. Ibid 178.
59. Ibid 73.
60. J Finnis, Natural Law and Natural Rights (Clarendon Press, Oxford 1980) 9-11.
61. This commitment would only arise if there is a strong version of rationalism that would always and ever deny legal personhood to (permanently or temporarily) non-rational beings. Despite her claim that there are strong and weak versions of all conceptions of the legal person (Naffine (n 6) 167), Naffine rarely actually demonstrates this. As we have seen above, the language of the theorists cited by Naffine to elucidate the rationalist legal person provides almost no support for the existence of a strong version of this view. One theorist cited by Naffine does, however, have an argument which might be extended to support a strong version of rationalism: this is Michael Moore's argument from natural kinds in Placing Blame (Clarendon Press, Oxford 1997) 18-23.
62. Naffine (n 6) 92.
63. Ibid 66.
64. Ibid 82.
65. Ibid 61.
66. I Kant, 'On the Common Saying: That May be Correct in Theory but it is of No Use in Practice' in Mary Gregor (tr), I Kant, Practical Philosophy (CUP, Cambridge 1996) 296-7.
67. A similar kind of being also and unsurprisingly, given his philosophical inspirations, populates Rawls's thought-experiment for determining the content of acceptable principles of justice: J Rawls, A Theory of Justice (rev ed Clarendon Press, Oxford 1999) ch III.
68. Naffine (n 6) 166.
69. Ibid 168-72.
70. Ibid 171.
71. Ibid 173.
72. Ibid. See also T Kuhn, The Structure of Scientific Revolutions (2nd ed University of Chicago Press, Chicago 1970), chs II-X on 'normal' and 'revolutionary' science.
73. On some of the complexities of value incommensurability see R Chang (ed.), Incommensurability, Incomparability, and Practical Reason (Harvard UP, Cambridge, Mass. 1997).
74. Some of our leading jurists have quite different views on the role of incommensurability in hard case adjudication: see N MacCormick, Legal Reasoning and Legal Theory (rev ed Clarendon Press, Oxford 1993) 5, 105-6, 114-15 and 252-4.
75. R Dworkin, 'Reply to Critics' in M Cohen (ed.), Ronald Dworkin and Contemporary Jurisprudence (Duckworth, London 1984) 272.
76. A Matter of Principle (OUP, New York 1985) 144-5.
77. his remarks in P Amselek and N MacCormick (eds), Controversies about Law's Ontology (Edinburgh UP, Edinburgh 1991) 88-90.
78. Naffine (n 6) 180-1.
79. This is a slight mangling of a description of Michel Foucault's work: P Rabinow (ed.), M Foucault, Ethics: Essential Works of Foucault 1954-1984, Vol. 1 (Penguin, London 2000) xii.
80. An example of what this approach might look like in jurisprudence is N Lacey, "Philosophical Foundations of the Common Law": Social not Metaphysical' in J Horder (ed.), Oxford Essays in Jurisprudence (Fourth Series Clarendon Press, Oxford 2000).