294 Reia Anquet and Fabien Girard
on the Old Continent, profound socioeconomic and geopolitical upheavals had
led, through a return to the debate on “man”, the State, sovereignty, and property, to give rise to the rights of individuals (“subjective rights”) and the subject of
modern law; today, too, the entry into the Anthropocene ushers in a new “political ontology of the subject”.
The link between the two periods cannot be overstated. Parallel to the installation of the modern subject, which forms its extremity, European/Western law
has deployed an ontological matrix that has silenced nature and indigenous epistemologies and submerged “the agency and full ethical significance of all ‘others’
to the ‘rational’ master-subject” (Grear, 2015, pp. 86–87).
This lengthy process stretching from the 16th to the 18th centuries is
worth remembering, if only briefly. During this period, humanity asserted
its new dignity, or dignitas hominis, of which Pico Della Mirandola expressed
the first requirement: that “man’s own liberty to make of himself what he is”
(Zarka, 1999, p. 245). Having emancipated himself from nature following a
significant anthropological change, man (humankind) becomes more simply
“naturally endowed with rights” (Zarka, 1999, p. 246). Furthermore, these
new rights, which Grotius helped to define as “a moral quality of a person”
(Grotius, 2012, bk. I, I, 4), form the embryo of what are now called subjective
rights (Zarka: 247–8). The status of the person (persona) to whom the right as
a moral quality relates remained to be defined. What was at stake then was
the constitution of the natural person as a self (ego), the only one capable of
rights and obligations, and who thus became the template of the subject of law
(Zarka, 1999).
Here, we can see the crucial shift, whereby the legal person and the subject
of law merge, as evidenced (but the examples are innumerable) in this formula
written by Smith (1928, p. 283): “To be a legal person is to be the subject of rights
and duties”. There is a co-determination: the legal person is the subject of rights,
i.e. the subject tailored to collect those specific rights defined as moral qualities. As
such, the legal subject can hardly be anything other than the very person the law
has constructed by recognising new rights (see Kurki, 2019, p. 121). Within the
conceptual nexus that unfailingly ties new rights to a new way of seeing humans
and culture – a new anthropology; the notion of legal personhood “acquires a
sense of a sovereign, reflective subject, a being with his own self-determining
personality” (Davies & Naffine, 2001, p. 57).
Nevertheless, two fault lines remain in modern law. The first is that there
are still right-holders (like animals), i.e. legal subjects, which are not necessarily legal persons (Grear, 2010, p. 46; Kurki, 2019, pp. 122–124). The second
fault line, and a much more important one, is that the “legal person” remains
a construct (Grear, 2010, p. 51), even though it has been “naturalized” and
“depoliticized” by a deep legal anthropomorphism that is so ingrained that it
has ended up contaminating even the notion of legal subjectivity (Grear, 2010,
p. 217, n. 35).
on the Old Continent, profound socioeconomic and geopolitical upheavals had
led, through a return to the debate on “man”, the State, sovereignty, and property, to give rise to the rights of individuals (“subjective rights”) and the subject of
modern law; today, too, the entry into the Anthropocene ushers in a new “political ontology of the subject”.
The link between the two periods cannot be overstated. Parallel to the installation of the modern subject, which forms its extremity, European/Western law
has deployed an ontological matrix that has silenced nature and indigenous epistemologies and submerged “the agency and full ethical significance of all ‘others’
to the ‘rational’ master-subject” (Grear, 2015, pp. 86–87).
This lengthy process stretching from the 16th to the 18th centuries is
worth remembering, if only briefly. During this period, humanity asserted
its new dignity, or dignitas hominis, of which Pico Della Mirandola expressed
the first requirement: that “man’s own liberty to make of himself what he is”
(Zarka, 1999, p. 245). Having emancipated himself from nature following a
significant anthropological change, man (humankind) becomes more simply
“naturally endowed with rights” (Zarka, 1999, p. 246). Furthermore, these
new rights, which Grotius helped to define as “a moral quality of a person”
(Grotius, 2012, bk. I, I, 4), form the embryo of what are now called subjective
rights (Zarka: 247–8). The status of the person (persona) to whom the right as
a moral quality relates remained to be defined. What was at stake then was
the constitution of the natural person as a self (ego), the only one capable of
rights and obligations, and who thus became the template of the subject of law
(Zarka, 1999).
Here, we can see the crucial shift, whereby the legal person and the subject
of law merge, as evidenced (but the examples are innumerable) in this formula
written by Smith (1928, p. 283): “To be a legal person is to be the subject of rights
and duties”. There is a co-determination: the legal person is the subject of rights,
i.e. the subject tailored to collect those specific rights defined as moral qualities. As
such, the legal subject can hardly be anything other than the very person the law
has constructed by recognising new rights (see Kurki, 2019, p. 121). Within the
conceptual nexus that unfailingly ties new rights to a new way of seeing humans
and culture – a new anthropology; the notion of legal personhood “acquires a
sense of a sovereign, reflective subject, a being with his own self-determining
personality” (Davies & Naffine, 2001, p. 57).
Nevertheless, two fault lines remain in modern law. The first is that there
are still right-holders (like animals), i.e. legal subjects, which are not necessarily legal persons (Grear, 2010, p. 46; Kurki, 2019, pp. 122–124). The second
fault line, and a much more important one, is that the “legal person” remains
a construct (Grear, 2010, p. 51), even though it has been “naturalized” and
“depoliticized” by a deep legal anthropomorphism that is so ingrained that it
has ended up contaminating even the notion of legal subjectivity (Grear, 2010,
p. 217, n. 35).