Two models of the person in law

Presented by Professor Eric Descheemaeker, University of Melbourne 

Abstract

Despite not having a “law of persons” along the lines of the Roman-civilian tradition, Anglo-Australian law is naturally familiar with the concept of a person-at-law. This is universally understood as a holder of rights and duties, and it is also well accepted that persons in law include physical persons, i.e. human beings (all of them, though as a matter of choice rather than necessity) as well as legal/juridical persons. Membership of the latter category is disputed. It is invariably understood to include those groupings of (physical) persons that have been incorporated – the likes of company or local authorities, which are all abstract – but non-human concrete entities, such as animals or elements of nature, are sometimes regarded as candidates, or indeed have been included in the category.

This paper seeks to explain that much of the conceptual muddle surrounding the concept of person-at-law (and therefore our inability to lay down its boundaries) comes from the fact that, cutting across the distinction between physical and juridical persons is a fundamental, yet rarely understood, tension between two models of what a person is in law. A person-at-law can be understood either (i) as an entity protected – for reasons to be articulated – by certain rights (physical integrity, reputation, privacy, dignity, etc.) often referred to as “rights of personality”; or (ii) as an entity capable of being a self-standing “actor” on the stage of the juridical “theatre”, i.e. of suing and being sued, having its own patrimony, contracting, inheriting, being liable, etc (in other words, being the holder of rights in rem and in personam). These are naturally not mutually exclusive, but they are radically different understandings of the person in law, corresponding to two sets of rights these might have.

The talk will seek, first, to articulate this basic yet fundamental distinction and, second, to explore some of its implications. One of them is the question whether corporations, which came to be recognized as persons-at-law in the second sense, ought to receive the benefit of “rights of personality”, which are those attached to a person in the first sense. Another is whether animals or elements of nature, which are clearly conceived of as persons in the first not the second sense (i.e. entities meant to be protected against invasions of their alleged personality, not legal actors that can contract, inherit or be liable), can analytically be understood as “persons”, even though they are not regarded as holders of the sort of rights or abilities which underpin our modern conception of the person in law.

About the Speaker

Eric Descheemaeker is a Professor of Law at Melbourne Law School. He has written extensively on the law of torts and the law of remedies, in particular compensatory damages and rights of personality (defamation and privacy. Secondary research interests include the law of unjust enrichment and French law in the South Pacific.

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