Kinds of Persons, Kinds of Rights, Kinds of Bodies

Cardozo School of Law

Kinds of Persons, Kinds of Rights, Kinds of BodiesAuthor(s): Miguel TamenSource: Cardozo Studies in Law and Literature, Vol. 10, No. 1 (Summer, 1998), pp. 1-32Published by: Taylor & Francis, Ltd. on behalf of Cardozo School of LawStable URL: http://www.jstor.org/stable/743361 .

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Kinds ofPersons, Kinds of Rights, Kinds of Bodies

Miguel Tamen

Perhaps because, as Descartes famously remarked, commonsense is the best distributed thing in this world, there seems to be some very wide

agreement as to the meaning of words such as "person," "rights" and

"body." "Person" appears to be just another synonym for "human being," and "rights" and "body" appear to denote intrinsic properties of all persons, that is, things all persons have in common. This essay argues that there are contexts in which neither assumption is true, even in the restrict- ed area of legal doctrines and debates. The first section discusses circumstances in which non-human beings can nevertheless be defined, and have indeed been defined, as persons. The second section describes discussions about the acquisition of rights by certain objects (if rights were intrinsic

properties of certain objects, such discussions would have been as idle as

debating whether one should add "gold" to the list of the intrinsic properties of granite). These two preliminary sections lead into the third section, the longest, in which several apparently opposed uses of the word

"body" in legal discussions are examined at some length. I am therefore not inclined to talk about the "person," "rights" or "the body," and to talk instead, if only to make the trivial point that many things are left undreamt by our philosophies, legal and otherwise, about kinds of persons (indeed about kinds of "person"), kinds of rights, and kinds of bodies. I am also inclined to describe statements or phrases like "She is a

person," "The Rights of Man" or "All persons have bodies" as honorary terms of praise, or implicit descriptions of certain kinds of future behavior, that is, as promises, rather than as retrospective descriptions of facts or states of things.

All this is prelude to a larger project, which has to do with the attribution of properties to bits and pieces of the world and not primarily with

juridical matters.' (Given my lack of formal legal training, that is of course a most fortunate circumstance.) In the expanded project, but not here, I offer a few metaphysical hypotheses on the function of such attri-

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butions. Since we all from time to time grant mere objects some human

capacity, even intention, all readers (even those with formal legal training) are as capable as I of supplying this metaphysics.

I. Kinds of Persons

Clement of Alexandria, writing in the first half of the third century, remarked that a certain man "fell in love with [a marble statue of

Aphrodite] and had intercourse with the marble," just as "pigeons have been known to fly towards painted doves."2 They were both, Clement

says, misled by the power of "art" (the word tekhne, in the original, can mean in this case both "art" and "craftmanship"). A statue is, as he puts it, "dead matter shaped by a craftsman's hand."3 As chapter IV of Clement's Exhortation, from which I have been quoting, is directed against the ado- ration of images, his conclusion cannot fail to be that one should never

"entrust the hopes of the soul [psykhe] to soulless things [apsykha]."4 The

pun on psykhe, does not hide, indeed it underlines, a conceptual distinction between soul-endowed objects - and soul-deprived objects. Statues

belong in the second category. Contrary to rocks, stones, trees, and things found in general, however,

statues are things made, productions, products of a sculptor, a statue- maker, as the Greek has it, who knows and masters a tekhne. The sculptor is therefore responsible for the making of the statue, for the reshaping of otherwise fully dead matter. This structure is still easily recognizable in the

way we deal with soulless objects in most cases: authors are attributed the intentions one attributes to the objects themselves, either because, as Aristotle suggested, soulless objects are voiceless objects,5 or because, as

Benjamin Cardozo soberly implied, whoever makes a "thing of danger," a

potentially dangerous object, is responsible for that product and what the

product then "does" in (and to) the world.6 By reading Aristotle and Clement, however, it is easy to forget that soulless objects were for a long time indeed attributed intentions and responsibilities, and even liability, to the point that one can legitimately ask whether the attribution of intentions to something, rather than the attribution of a soul, is not a sufficient condition for its being considered liable at all. But, then again, this is also what the animus of Clement's attack against the Greeks reminds us of,

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namely what he perceives to be a misplacement of the object of devotion, a peculiar perversion that leads people to concentrate their attentions on "masks."7 I mention this point not in order to arouse historical or anthro-

pological speculation on "animistic conceptions of nature... characteristic

of the Greek mind,"8 since most of that speculation here would be, I believe, primarily a doing away with the very uncomfortable notion of

being guilty without a seat for guilt, namely a soul. The fact remains that

objects endowed with intentions (but not with a soul), and, presumably, with a language (as they were considered to be in a certain sense non- mute), used to be sued, tried, convicted (but probably not acquitted, as we shall see below), exiled, executed, and rehabilitated. Nor was this a practice superseded or forgotten by the advent of "philosophy," of what Nietzsche called the "Socratic Man." E.P. Evans remarks that, as late as in 1892, a Russian bell was brought back from the Siberian exile to which it was sentenced in 1591.9 The sentence of the Russian court was in itself no eccentric innovation. Polydeukes already refers to a special class of Athenian judges (the phylobasileis, who presided over the prytaneion, a special court in charge of cases brought against unknown agents and inanimate objects) as having the "duty to cast beyond the frontier the object which had fallen on someone,"1o and the late Plato of the Laws uses the verb exorizein in approximately the same sense, to characterize what, in his

opinion, should be done with a guilty apsykhon." Six centuries later, Pausanias still tells us the story of how a rival of Theagenes, an athlete from the island of Thasos, had whipped Theagenes's bronze statue every night, until the statue, presumably upset, killed him (by falling on him). The statue was tried and convicted to be cast beyond the frontiers of the island, i.e., into the sea, even if the Oracle later advised that it be reinstated in its

previous site.12

As most statues were probably heavy enough to kill people, and resembled people enough to be paradigms of intention-bearing soulless

objects, statues appear to have been a recurrent example of the class of

guilty soulless objects. Of a wider scope, and not necessarily related only to statues, is what Oliver Wendell Holmes termed "the desire of retaliation against the offending thing itself,"•3 the fact that, as he remarked, "liability seems to have been regarded as attached to the body doing the

damage, in an almost physical sense."14 Curiously enough, for Holmes as for Clement, the physical nature of the liable body is inseparable from a

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peculiar ability, namely the ability of masking the physical. For Clement, every statue is a prosopon daimonion, the mask of a daemon. The tech-

nique involved in bringing a statue "out of matter,""' and, indeed, the

technique that ultimately makes the statue-maker liable at all, is

prosopopeia, the making of a mask. Holmes uses "personification," from the Latin translation ofprosopopeia made known by Quintilian, to explain precisely the way in which the desire for retaliation became an institute or, at least, became a form of legal procedure: "Without... personification, anger towards lifeless things would have been transitory, at most."'"

Two important, if contradictory, consequences, follow from this

point. First, personification is a technique for preservation, indeed for

legal preservation, of both an archaic desire for revenge'7 and the material origin of such a desire. Second, what is preserved is never quite what is personified but personification itself: the institute, not my anger. It is then as if personification would outlive and indeed supersede its cause in order for that cause to be preserved at all. The physical body that is the cause of my desire for revenge can only become an object of revenge as

long as it is embodied by, i.e., made into, personification. The law can

only operate on embodiments. As Holmes again puts it, "the hatred for

anything giving us pain, which wreaks itself on the manifest cause, and which leads even civilized man to kick a door when it pinches his finger, is embodied in... doctrines."'18

In fact, Holmes's theory is that both the civil and the criminal liabil-

ity of human beings in cases of non-intentional acts originated as "mere-

ly a way of getting at the [object] which was the immediate cause of

offense.""'9 In those cases, the owner of the object or person responsible for the act in question would be held liable only insofar as he would not be able to surrender to the offended part that object or person. The ear- liest forms of monetary indemnity were meant not to compensate someone for incurred damages as to compensate for the temporary or

permanent, intentional or nonintentional, unavailability of the guilty object, that is, for difficulties in getting one's revenge. In some special cases, however, the ownership of the guilty object was automatically sur- rendered, such as when, for instance, the latter happened to be a wild animal on the run. Running away would be considered to be in its nature and so to take precedence in relation to the mere accidents of own-

ership.20 This practice perhaps extends to cases in which the ownership of

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an object is still considered to be relatively unimportant, should the nature of that object "give warning of the consequences to be expected" (which are therefore probable rather than merely possible), and thus

impose special duties on its manufacturer or its seller.21

The major evidence for the persistence of personificatory practices in

contemporary law is found by Holmes to be in the domain of maritime law. Two generations before, Supreme Court Justices such as Chief

Justice Marshall, "although of course aware that a ship is no more alive than a mill-wheel, thought that not only the law did in fact deal with it as if it were alive, but that it was reasonable that the law should do so."22

Emerson remarked once that "it is impossible not to personify a ship" and indeed Holmes concurs in his opinion when he states that "a ship is the most living of the inanimate things."23 According to Holmes, however, Chief Justice Marshall's point was rather that, for all practical purposes, it is preferable to treat a ship as you would treat a living thing. "It is true," Chief Justice Marshall writes, "that inanimate matter can commit no offense. But this body [i.e., the ship] is animated and put in action by the crew, who are guided by the master. The vessel acts and speaks by the master. She reports herself by the master. It is, therefore, not unreason- able that the vessel should be affected by this report."24 To this point, Justice Story adds: "the thing is here primarily considered as the offender, or, rather the offense is primarily attached to the thing."25 For all practical purposes, then, a ship is both inanimate matter, that is, apsykhon, indeed a "thing," and a putative offender, therefore liable. And, as Holmes remarks, "it is only by supposing the ship to have been treated as if endowed with personality, that the arbitrary seeming peculiarities of the maritime law can be made intelligible, and on that supposition they at once become consistent and logical."26 That consistency is not so much historical or conceptual as it is purely pragmatic. There have been numer- ous attempts to procure a swift derivation from person to ship, and ani- mate to inanimate, such as considering that omne illud quod movet, "all that moves" (and hence ships, vehicles, orfalling houses, trees, or statues) can be liable. Nevertheless, Holmes writes, if the seemingly exotic doctrine of maritime law "were not supported by an appearance of good sense, it would not have survived."27 If, for instance, an offense is, in

Justice Story's sense, "attached to" a foreign ship, "the ship is the only security available in dealing with foreigners, and rather than send one's

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own citizens to search for a remedy abroad in strange courts, it is easy to seize the vessel and satisfy the claim at home.1"28

In spite of all common-sense and pragmatic motives and reasons, of what Holmes called "the hidden ground of policy,"29 all the puzzles relat-

ing to personification remain intact. The thought of Holmes's judges "still clothes itself in personifying language."30 We could perhaps ampli- fy Holmes's point by adding that in the mere seizure of a ship or indeed of anything there is still an echo of the typical ancient Greek sentence for inanimate objects (and only inanimate objects are seizable, so to speak). Unthinkable as it may seem, from the point of view of the thing (even if, as we shall see below, this metaphor is particularly misleading), being seized is still a form of being cast out of one's borders. Meanwhile, perhaps personification in a court of law should be defined in this sense as the kind of talk that makes exile possible: if Holmes's metaphor is true, clothing appropriate to exile.

The argument about the connection between liability and personification is hardly new. There are nevertheless three possible developments of that argument implied in much of what I have said up to this point. The first is the fable of personification: becoming a person (which is here the equivalent of acquiring a mask) means, among many other things, of course, being treated as liable: and anything can in principle be treated as liable. The reason (and here is my second development) is simply because

being liable is not a matter of possessing certain features, such as a soul, the ability to move, or a language, but a matter of being dealt with in a certain way. The possession of certain features is only a feature in certain stories about the acquisition of liability. My third development is perhaps more momentous. Although we know how to tell the story of certain

objects that, for certain purposes, were attributed or suppressed personality, or, to use another metaphor, legal standing (or whose standing suf- fered variations in time), such as statues, ships, or slaves, we are

notoriously reluctant to tell our own story in those terms. The fact that former slaves, not to mention ungarrulous former statues, fashion their

personal stories as Bildungsromane, structured by a dialectics of remem- brance and progress (that is, by the "I've come a long way" topos), points perhaps to a peculiar manner of dealing with the first person singular that is inseparable from personification: that the "I" cannot remember what I cannot remember, cannot go beyond its origin. The curious thing is that

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nothing, at least certainly not grammar, prevents me from starting my autobiography as "I was born a ship and owe my personhood, and my voting rights, to Chief Justice Marshall," or as "I was born a non-person, to a family of non-persons." In the first case my sincere autobiography would be treated as a joke. In the second, as yet another trite metaphorical usage of personhood for laudable emancipatory purposes. My literal

autobiography of a former non-person would be a story whose initial

chapter would be about how my own story is permeated by the possibility, to which I am now quite foreign, of not being able to tell it at all. One should like to ask: who was the first to have the brilliant idea of personifying us? But then again the answer could only be "Some other person." Only someone else could have had that idea.

II. Kinds of Rights

There is an important difference between claiming that an apsykhon (the soul-less object) has liability and claiming that an apsykhon has rights. The latter claim entails some measure of belief in the interests of inanimate objects, and so in the possibility of inanimate objects making their interests known. That Theagenes's statue can be sentenced is not quite the same as its being able to indicate what its own best interest is.31 Such is however the deepest aim and the crux of an influential 1972 essay entitled "Should Trees Have Standing?" by law professor Christopher Stone. Stone's essay is primarily known however for its forceful defense of the idea that rights should be extended to inanimate (or "non-human," as he says) objects. In an inconspicuous footnote referring to Oliver Wendell Holmes's "Early Forms of Liability," Stone remarks that "perhaps the liability of non-human matter is, in the history of things, part of a paranoid, defensive phase in man's development; as humans become more abundant, both from the point of view of material health and internally, they may be willing to allow an advance to the stage where non-human matter has rights. "32 The change Stone is advocating is here seen as a progress (which is not surprising) but also as a revisionary development of the Greek notion of "liability of non-human matter." Implicit in that passage is also a thesis on the need to overcome the post-Roman notion of exclu- sive liability of human matter. Stone can therefore describe his own task

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in the following terms: "I am quite seriously proposing that we give legal rights to forests, oceans rivers and other so-called 'natural objects' in the environment - indeed, to the natural environment as a whole."33

Of course, there is a sense in which giving the oceans rights might not

appear to be very different from treating statues (or not doing so) as liable

objects. In fact, the granting of rights, all effusive considerations on the intrinsic excellences of emancipation notwithstanding, is not substantial-

ly different from any other description (true, false, sincere, insincere, mis-

leading, infelicitous) of someone's future behavior. In either case I am

describing how I will behave in the future towards X, should certain circumstances arise: "I will hold you liable," "I will not hold you liable," "I will grant you rights" (whatever "holding liable" or "granting rights" means).34 It may be perhaps that the whole idea of promise of a future behavior towards X has become one with the very idea of "rights." However, that does not account for the difference between the trial of a

merely-liable statue of Theagenes and the trial of a rights-endowed ocean (or of a rights-endowed statue of Theagenes, for that matter)." Perhaps this difference could be more easily describable than one may think. That a statue is merely-liable means that, in courts, statues are either orna- mental objects or defendants. There are no testimonies about

Theagenes's statue having sued Theagenes's rival for statue-molesting practices, let alone for destruction of valuable Greek art, nor are there any testimonies of a statue having sued, say, another statue. Also, according to most (though not all)36 testimonies, ephetai, i.e., jurors, did not inter- vene in trials at the prytaneion (including therefore trials of inanimate

objects). This fact appears to suggest that the evidence was already considered to have been produced (and so the guilt established) beforehand.37 If this is the fact, merely-liable objects are never in a position for which there is an acknowledged way to make their interests known. As it happens, and as we shall see, in Stone's version, rights-endowed objects are in such a position.

In Stone's version of "legal rights," three necessary conditions have to be met in order to "mak[e] a thing count jurally": "that the thing can institute legal actions at its behest, ...that in determining the granting of legal relief, the court must take injury to it into account; ... that relief must run to the benefit ofit."38 Stone's vision of a rights-endowed environment is therefore inseparable from the epistemological problem of how to know

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which are the interests of the environment,39 namely from the problem of the indication of interests, through actions, requests, self-assessments and whatnot, that is to say, from a problem of meaning. The epistemological question proper is, for Stone, "How can I know what a natural object needs?" His answer is refreshingly unequivocal: "...natural objects can communicate their wants (needs) to us, and in ways that are not terribly ambiguous. I am sure I can judge with more certainty and meaningful- ness whether and when my lawn wants (needs) water, than the Attorney General can judge whether and when the United States wants (needs) to take an appeal from an adverse judgment by the lower court. The lawn tells me that it wants water by a certain dryness of the blades and soil -

immediately obvious to the touch - the appearance of bald spots, yel- lowing, and a lack of springiness after being walked on; how does 'the United States' communicate to the Attorney General?"40 This argument, which, as we shall soon see, Stone extends to what for him are all the possible plaintiffs in a court of law, is however open to an objection that should not be disregarded at this point. Indeed, what amounts to his see-

ing of certain features or occurrences in his lawn as communication does not amount to the existence of independent interests of talking-lawns or

talking-countries. Communicative intentions, and, lato sensu, the expression of interests and the existence of an autonomous point of view, are as it were predicated by the very act, an interpretive act, through which they are made to conform to the interests of the predicating party.

What lawns and countries can "communicate" is typically what the believers in the communicative virtues of lawns and countries expect them to communicate. This shows perhaps why statues, lawns and countries, as communicating objects, can never prove their interpreters wrong (let alone talk about novels). Compare, for example, Stone's description of a successful decoding of the wants of his lawn with the implausible sit- uation in which Stone would say "I thought that, according to what I knew about the signs of lawn-language, my lawn needed water. And yet I was wrong, it didn't. Therefore, my lawn must have been lying to me (or perhaps is sick)." For analogous reasons, politicians running for office never change their minds about the needs of their constituents before what is taken to be as yet another sign of the communicative intentions of the talking country (e.g., an election) is interpreted. My argument is not however the standard silly argument against the self-serving nature of

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interpretation, as if choosing an alternative for this embarrassing state of affairs would be feasible. For the time being, it is simply an argument against the intrinsicality of interests and the autonomy of points of view, and so an argument against having a theory on the needs of natural objects (and, of course, not an argument against treating lawns in such-and-such a way).

An important feature of Stone's theory is this extension of what he believes is the ontological status of countries and lawns in a court of law to human beings. One is tempted to say that not only, as he declares, is "the world of the lawyer ...peopled with inanimate right-holders [such as] trusts, corporations, joint-ventures, municipalities, Subchapter R part- nerships, and nation-states,"414 but also that no non-inanimate right holders are indeed possible in the legal world. In fact, as his essay progresses, Stone raises the suspicion that even "individual human plaintiffs" are but "an afterthought" of legal cases, and he also suggests that "the legal system does the best it can to maintain the illusion of the reality of the individual human being."42 Taken by itself, this latter idea might simply mean that, as Donald Davidson remarked, there is no better available way of

describing or predicting the action of certain things (in this case a legal system) than by attributing propositional attitudes to them.43 However, taken together, the two ideas expressed by Stone are hardly just that. If "individual human plaintiffs" are defined as "afterthoughts" of the legal system, and, moreover, as an illusion consciously maintained by that system, the legal system, for Stone, is in fact ascribed what Dennett calls second-order intentions (e.g., as in trying to persuade someone to believe not-P while oneself believing P)44 and so, perhaps even, if Davidson is

right, a language.45 For Stone, the "legal system," whatever the expression may mean, produces, as if in a postscript, the concept of "individual human being."46 The problem is that, to use a picturesque and compen- dious expression, the scene of the production of the notion of "human

being" at the hands of the legal system (assuming for a moment that such a system has hands) reproduces the features that ipso facto are being denied to the version of the concept that is being revised. In Stone's case, in order for the "individual human being" to be seen as an afterthought, the legal system has to be seen as an "individual human being," capable of intentions and language, and endowed with the kind of autonomy that is being refused to it at a "lower" level. To pun, personality is a persona

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of the law. The concept of "legal representation" appears to be, in Stone's theory,

the concept through which the epistemological uncertainties of language- attribution procedures are bypassed: "it is no answer to say that streams and forests cannot have standing because streams and forests cannot speak. Corporations cannot speak either; nor can states, estates, infants, incompetents, municipalities or universities. Lawyers speak for them, as they cus-

tomarily do for the ordinary citizen with legal problems."47 Two sorts of problems arise here. The first, which we may safely

ignore at this point, has to do with the status of representatives, in this case of lawyers, with the conventional procedures of certification, through which a certified technician is opposed to a technician-at-large, and with the constitution of the relation of representation, through a contract or

something of that kind. The second family of problems, which concerns this discussion

directly, has to do with the analogies between streams and forests, on the one hand, and corporations, states, estates, infants, incompetents, munic-

ipalities, and universities, on the other. The important question here is neither the adolescent epistemology of "Can a lawyer understand a cor-

poration?," and not even its denial by people like Stone, whereby the

question of understanding is pragmatically overcome by the question of

representation. Rather, the question seems to me to be: "Can a lawyer misunderstand or misrepresent a corporation?" Even if "misunderstand"

(just as "understand") is suspiciously metaphorical in such contexts

(although this latter question is not very interesting), the answer cannot but be affirmative. A corporation can fire a lawyer, and that action is often interpreted as a complaint about the quality of representation it is

getting. In short, there are accepted ways for corporations (albeit perhaps not for infants and incompetents) to prove their lawyers wrong.

In the case of streams, forests, infants, and incompetents, the ways of

representation appear to be more circuitous (we shall shortly see that the more straightforward forms of representation are not really that uncir- cuitous). In order for Stone to conceive of a lawyer-speaking-for-a-for- est, he has to devise a way of initiating the relation of legal representation. Such he does through the supposition of a second instance of representation, which he calls the "friend of the natural object."48 The figure of the friend of the natural object is comparable to the figure of the lawn-owner

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above, in that it is seen as the agent of a special kind of perception. When the former "perceives [the natural object] to be endangered, he can apply to a court for the creation of a guardianship."49 All arguments about the lawn-owner, however, also apply to the friend of the natural object. In fact, no friend of a natural object can ever be wrong, let alone be deceived

by a natural object (perhaps only in this sense are true friends always right). A solution could be, I suppose, to have rules for an automatic pro- cessing of guardianship: when the waters of the river R show the property X, a bell rings and a lawyer is called in. But, of course, that would still not be very different from the lawn-owner model. Not only sensors and bells would have to be installed there by someone, as, most importantly, both cases rely on the incontroversial nature of the exhibition of properties such as X. When it gets to meaning-attribution, no exhibition of the

properties upon which such meaning is predicated, even by lawns and rivers, can indeed ever be wrong.

The fact remains nevertheless, as Roderick Nash remarks, that "countless times in history concerned people have stood up for what are called the rights of an inarticulate and oppressed group."50 While not dis-

puting the fact, it is interesting to note that this sort of statement is usu-

ally made to enhance a particular form of representation in which the

price of the hiring of representation is paid in a convergence of opinions or interests, putative and real alike, between the parts. That friends (from l'ami du peuple to the professional friend of natural objects) are usually not paid in cash is taken to mean that a more genuine form of representation can be obtained thereby. As it happens, if the ground of all forms of representation is pragmatic, there are no more (or less) genuine forms of representation, as each form of representation is bound up with the

contingencies of its very origin. What is singular in all invocation of the various duties of friendship in this context is therefore the deletion from

representation of the very fact of representation, i.e., of all references to the existence of two different parts whose contingent interests are tem-

porarily brought together by a carefully bound contract. That duplicity is typically explained away by the consideration of an overarching moral dimension. Formulae such as Ralston's "duties to the vulnerable mute,"51

purported to express the moral implications of certain kinds of representation, are usually more efficient at suppressing the perception of contin-

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gency in the relationship between the subject and the object of duty than at grounding any actions.

It is, however, inaccurate to suppose that the figure of the "friend" is a last resort, an expedient for us to legitimate a universal possibility of representation in notoriously reluctant cases, such as those of streams, forests, and statues (as opposed to corporations and states, which need no friends, as they have the means to hire their own legal representation). There is a sense in which the function of Stone's "friend of the natural object," as the basic, pre-jural, so to speak, instance of representation, is also crucial to think about representation in the cases of corporations, states, estates, municipalities, universities or even ordinary citizens. Prima facie, in all these cases but the last one, there are always rules (or at least principles of exclusion) that determine what counts as a meaningful sentence that will be, in certain contexts (namely, but not exclusively, in courts of law) attributed to them.52 These rules are primarily rules of representation, which can help us to distinguish between statements by the king-as-king, statements by the king-as-aspiring novelist, and statements by the friend of the king's statue. That "country" is often used as "speaking person" (even if only in the name of one's "duties to the vulnerable mute") is a feature of a certain type of actions, for which there does not seem to be an easy alternative at present. These actions include not only the predic- tion of a country's behavior and the account of the so-called country's his-

tory but also the possibility of a special perception of the evidence of its intentions and needs. The foreign affairs expert, the economist, the jour- nalist, and the historian are therefore in a position that is not substantial-

ly different from those of the lawn-owner, the friend of the natural object, and the literary critic. Their special knowledge or expertise is analogous- ly marked by the one epistemological problem they know, namely the

problem of being able to tell what counts as legitimate "communication" of their object's needs (as well as by their incapacity for being deceived by their objects). Rules of representation, in my sense, are therefore rules of thumb that can be used to mark the incontroversial character of certain exhibited properties of talking objects.

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III. Kinds of Bodies In early 1886, writing a decision for the United States Supreme

Court, Chief Justice Wait decided to voice an interpretive point: "We are all of the opinion... that the XIV Amendment to the Constitution, which forbids a state to deny to any person within its jurisdiction the equal pro- tection of the laws, applies to... corporations."53 Fifty-two years later, in 1938, Justice Black regretted that although the Fourteenth Amendment was meant to protect the rights of black persons, it had been typically invoked in the great majority of cases to protect the rights of corporations. And yet, he added, "corporations have neither race nor color."'5 Clearly, amongst the objects of Justice Black's regrets were the extension of "person," wide enough to encompass human beings and corporations, as well as (perhaps) a perverse use of the word by jurists.

That a certain concept of person was developed by jurists is perhaps not as important as that it had to be defined independently from the

assumption of common features shared by all the individuals denoted by "person" (say a former slave and the Southern Pacific Railroad Company). In other words, "person" is used in certain contexts as more than an abbreviation for the common properties of all individuals defined as "person." Indeed, as we will see below, perhaps "person" can only be defined as a certain kind of muteness. To the reader used to the logical aspects of this argument in the wake of Wittgenstein's Philosophical Investigations I have a surprise in store, for I will now be dealing mostly with arguments made possible in the thirteenth century by Pope Innocent IV.

Innocent IV is famous for having refused to grant collective entities, what were then called universitates, the status of human beings.55 Such a refusal occurs in the context of lively legal discussions on the liability of universitates. "A universitas," writes Innocent, "cannot harm anything [nihilpotestfacere dolo]," as it is an "incorporeal thing [res incorporalis]." In consequence, it "can neither be accused nor punished [non potest accusari vel puniri]."56 For Innocent a universitas can at the most be

metaphorically sentenced to death or metaphorically excommunicated (in civil suits), that is, can only be fined.57 It is also in this sense that, to use Ernst Kantorowicz's motto, universitas non moritur, the universitas does not die. It would seem therefore that the medieval theory on the nature of corporations is simultaneously, as Kantorowicz also remarks, a theory on time. "The essential feature of all corporate bodies," he writes, "was

14



not that they were a 'plurality of persons collected in one body' at the present moment, but that they were a 'plurality' in succession, braced by Time and through the medium of Time."58 The body, the corpus, of cor-

porations is thus lacking only in the sense that corporations are not sup- posed to be afflicted by bodily corruption and death.59 Innocent's distinction leaves therefore the door open for a theory on the juridical difference between persons and bodies stricto sensu and persons and bodies that are, as he says, nominajuris, names of Law.60 Such is not a difference between real bodies and fictional bodies, between literal and metaphorical persons, at least if one understands it as a difference between true and false bodies, even if the verb fingo, sparsely used by Innocent himself, has led many historians and commentators astray.61 Nomina juris are fictional only in the sense of being formed and indeed granted,62 that is, of

having a historical origin. And, in fact, the same sense of formation also

applies to universitates and so to corporations, as the condition for their

specific bodiliness is dependent on a foundational act that institutes such bodiliness as a historical product (and only in this sense as a fiction). The

intriguing thing is that such an act, what we call incorporation, denotes

simultaneously the creation of a body and the construction of a body. It cannot therefore be thought as an organic event, nor are the organic metaphors particularly apt for this kind of body,63 since the incorporated body can only become a body through art and in the course of time. Fiction is therefore the production of an ahistorical body, which however has inscribed in itself its very historical origin. In a more sober language, this simply means that corporations as persons are potentially eternal

products,64 indeed one of the very few eternal productions possible. It is therefore not surprising that an unintended consequence of

Innocent's efforts in rigorously distinguishing universitates and human

beings has been the conceptual bringing together of corporations and human beings as a priori possibilities of the body, that is, within an ontol-

ogy of historical objects. One can witness such a confluence, as we shall see, in the topic of the juridical person. Be that as it may, and given that there seems to be a close relationship between ontologies of historical objects and ontologies of liable objects (as the moment of origin also sig- nals a moment of debt, an originary sin), Innocent's efforts were paradoxically the basis for theories which denied the crucial postulate of his own doctrine of liability, namely of theories about forms of collective

15



guilt, crime, and responsibility. The problem there was of course to find kinds of crimes insusceptible of being committed by human beings or, at least, susceptible of being committed by non-human bodies.

Although the first hints of a theory on corporate liability are prior to Innocent's glosses,65 it was not until the fourteenth century that a full-

fledged theory on corporate liability emerged in the writings of Bartolus of Sassoferrato. It is significant that such a theory was grounded on two crucial distinctions. The first one, as Walter Ullmann observes, is the distinction "between the corporate capability to commit a crime, and the

corporate capability to suffer punishment."66 Such a distinction makes conceivable the notion of an object that, to put it paradoxically even if such a paradox was never quite a practical problem, is both liable (as is considered to be the cause of a crime) and non-liable (as it is considered not to be punishable). More important, however, it breaks the otherwise taken for granted causal connection assumed to exist between being sus-

ceptible of punishment and being the author of a crime. In fact, the

capability to suffer punishment does not follow, once this distinction is made, from the capability to commit a crime (the non sequitur entailing a somewhat different notion of "responsibility"). This first distinction is therefore an important revision of the more strictly anti-fictionalist doctrines of Innocent, as it suspends the penal question proper in order to be able to concentrate on the question of authorship.67 Bartolus's second distinction is thus a distinction of authorship, namely a distinction between crimes that can be authored by corporations and crimes that cannot apri- ori be authored by corporations. It is his opinion that crimes of omission,

peccata omissionis, can be committed by corporations. The failure to carry its own duties and obligations by a corporation, "makes it legitimate to

say that [not just its officials but also] the very corporation is guilty of

negligence [ipsa (universitas) dicitur negligere]."68 This is however the sim-

plest case, or at least a case to which there is a certain symmetry, as it is the case of a body by default committing a crime by omission. The most delicate case is the case of crimes of commission, that is, the case for which the paradigm of human authorship and indeed of liability proper were established (that the statue of Theagenes could be convicted of a crime of omission would perhaps strike me as less surprising than its actual conviction of a crime of commission). Bartolus's theory is however that

corporations can be guilty of crimes of commission, that is, that being a

16



human being is not a sufficient condition for being able to commit a crime (and indeed to commit a crime that involves commission). Examples of crimes of commission with a corporate authorship are crimes

through the "making of legislation lfacere statuta], the conferring of juris- dictional powers [dare jurisdictionem], the imposition of taxes [imponere collectas], and similar cases."16 The corollary of this second distinction takes place in this context. Indeed, for Bartolus, as Ullmann writes, "a

corporation was held liable ...only for those crimes which the corporation qua corporation could commit, or, in other words, which ordinary citizens were incapable of committing."70 Bartolus's repertoire of possibilities of authorship is therefore further refined not really by including the possibility of "corporate commission" but properly by defining "corporate commission" as "non-individual commission." For authorship purposes, therefore, a corporate body is capable of all the crimes insusceptible of

being committed by an individual person, which allows for automatic inferences (of little practical use, I grant) such as "If the crime was X, then N could not have committed it." The notion of authorship is therefore here built in the case of crimes of commission not through an analogy between corporations and individual human beings but by a deep realist

principle - which one would not readily associate with Bartolus - that

puts actual crimes (that is, the consideration of something as a crime) first and only subsequently defines the different regimes of authorship for crimes. If a given crime could only have been committed by a being with such-and-such features, and if the only instance of such a being were a statue, then there would be a given crime whose authorship could only be

by a statue.

Appealing as may sound all narratives of a progressive extension of bodily attributes from the singular body stricto sensu to objects with mul-

tiple bodies (such as the medieval king) and to complex juridical "fictions" which depend, however remotely, on the notion of a body (such as modern corporations), there are some difficulties with this kind of explanation which I should like to pursue now. Even if the version itself is typically presented as a version of exuberant tropological changes, such a version presupposes a literal starting point, that is, the notion of an ide- alized body proper. The notion of, say, "corporation" is therefore, in such a version, both dependent on and an extension of a certain self-evident sense of bodiliness, as if the history of juridical concepts would in this

17



respect repeat Hegel's well-known explanation of consciousness in the

Phenomenology ofMind. The problem is that such histories of extension and progressive complexifying of sense-data into juridical, "superstructur- al" constructs are, among many other shortcomings that need not con- cern us here, unable to account for liability as an assumption. I suppose you can always imagine that liability has emerged at some point in histo-

ry out of a pristine world of literal bodiliness, or perhaps that it was

brought about by some extraterrestrial influences. Or else you can com-

plicate the notion of "literal body" through some gnostic duplication of the body into body-proper and body-improper. This latter notion, however, would require a theology of an original Fall to which all the problems of the first alternative would still apply. Perhaps then we should discard the tropological narratives and the Bildungsroman of the law alto-

gether and try instead for some blessed counterintuitive explanation which, ignoring even the strength of etymology, would be blind to all

putatively real human bodies lurking behind the notion of a corporation. We return here, of course, to my ongoing insistence that words like

"body" or "person" are first and foremost compressed descriptions of certain intricate practices. If the reiteration of an empty formula would be of some help at this juncture, I would say that it seems to me that the treatment of something as liable is what determines the constitution of a set of liable objects as liable bodies, and, indeed, as persons. This point can nevertheless be made in a much more forceful way by following close-

ly, if briefly, the pitfalls of what is probably one of the most brilliant available explanations of the notion of juridical body and juridical person out of some notion of body-proper. I allude to Friedrich Karl von Savigny's doctrine of what he calls '"juristische Personen," juridical persons.

In his Das Recht des Besitzes, originally published in 1803, Savigny is

primarily concerned with a theory of possession (Besitz), indeed with the conditions for possession itself. The "first condition for possession [die erste Bedingung alles Besitzes]" he calls "bodily acting [das kdrperliche Handeln]."71 Such form of "bodily act [kiirperliche Handlung]," is usually associated with the "unmediated touch by one's own body."72 And yet, adds Savigny, "no other point of Roman Law has been so generally mis- understood,"73 as many cases come up in the Roman Law where possession is brought about by bodily action without "unmediated touch." These are cases of "symbolical actions [symbolische Handlungen],"74 that is,

18



of actions where the bodily touch is mediated and where "by the means of a juridical fiction [vermittelst einerjuristischen Fiction]75 the real appre- hension [die wahre Besitzergreifung] is represented (actus adscititii, appre- hensio ficta)."76 A juridical fiction is, in this context, no less than the means for the symbolic representation of real possession. And since

many kinds of genuine possession are in Savigny's sense symbolically mediated, there are many kinds of possession which maintain only a mediated relation with the "first condition for possession," namely, "bod-

ily acting." The adjective "juridical" is therefore used by Savigny as a

rough equivalent of "symbolic" and of "mediated." Through "juridical fictions," one has a kind of possession where the bodily action is represented a priori rather than immediately present to the senses. As it has been very often remarked, here too the sphere of the juridical is a sphere of bodies symbolical.

Things get however much more complicated than this, albeit not

conspicuously so. After discussing at some length the first condition of

possession (what he calls the factum), in what in fact amounts to a phenomenology of possession, Savigny, in a very brief section, deals with the second condition of possession. Such condition is what he calls "das Wollen," the animus, intention, or desire for possession.78 We seem to move here from phenomenology into psychology, as the two animi described by Savigny are primarily forms of behavior and mental states.

Savigny mentions first the "animus domini," exhibited by the way in which "the possessor of the thing handles the thing as its own,"79 and then the "simple animus possidendi,"80 that is, the general intention to acquire possession. Sensibly enough, Savigny does not seem to have much to say about matters psychological, as this whole development takes place within less than twenty lines. What interests him rather are the special cases in which one or both forms of animus are absent, that is, cases of deriva- tive forms of possession where there is no animus domini (the most

important question for him, and the object of three full sections), cases of

things that one cannot possibly wish to acquire (and so where no animus

possidendi can arise), and, first and probably the least, the cases of persons who have neither form of animus. The question that announces this latter problem is rather straightforward: "What persons," Savigny asks, "are

incapable of acquiring possessions, as they are absolutely incapable of

desiring or having intentions [weil sie iiberhaupt nicht wollen kiinnen]?"8•

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The section that follows is dedicated to this matter. In his answer, Savigny has to distinguish between two senses of "person" and so between two kinds of persons. What in the order of the text is the second sense is instanced by "physical persons."82 Certain "physical persons" such as "lunatics [Wahnsinnige]" and "wards [Pupille]" are incapable of acquiring possessions as they are incapable of desiring or intending to acquire property. Certain other persons, however, are also incapable in this sense without for that matter being "physical persons." The adjective that Savigny employs in this context to signify an opposition to "physical" is again juristisch, "juridical." "Juridical persons," Savigny writes, are "those that can be considered to be rightholders [Subjecte von Rechten] only through a juridical fiction."83 Two examples of juridical persons are given: "inher- ited estates [Erbschaften]" and "corporations [Corporationen]."84 In a footnote to his discussion, Savigny adds: "all these persons (corporations, lunatics, children) cannot acquire any possession by themselves alone; the extent to which this can be possible by proxy or through representatives [durch Stellvertreter] will be determined below.""' The model for the general description of juridical representation seems therefore to be not so much that of the physical body as that of particular disturbances (such as the conditions of being a child, or being a lunatic), which are not primarily, and not even necessarily, physical. The notion of a self-evident

physical body is therefore inadequate to describe the notion of a

rightholder, as from the purely physical no mediation seems to follow. Therefore the juridical relation is not so much a stage in a purported evo- lution of the concept of body as the only possibility for mediation. No narrative of apprenticeship will, in Savigny's system, lead from the physical into the symbolic. At most, in the specific case of children, the opposite could be true.

In his subsequent (and monumental) System des heutigen roimischen Rechts, published between 1840 and 1849, these basic principles con-

cerning the notion of juridical person appear to be upheld. The notion of juridical person is still connected there to the right of possession, which

again raises the already known difficulty of knowing how a person inca-

pable of intending can acquire something. "This contradiction," writes

Savigny, "must be solved through representation as an artificial institute

[muJf... durch eine Vertretung, als kiinstliche Anstalt, aufgeldist werden].""86 It is in this sense that, of course, "the corporation is similar to a minor.""8

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As opposed to the treatise on Possession, however, Savigny's System makes clear why juridical persons are not to be thought of as a development or an extension of the notion of "individual person," as a further stage in the narrative that sees human history as a series of ever increasingly complex processes of mediation. To the reader of the System, however, the fact is not immediately apparent. The introductory section of the second book (the volume entitled Persons as Right-holders or, perhaps better, Persons as

Protagonists of Juridical Relationships [Die Personen als Trdger der

Rechtsverhdltnisse]) makes clear that behind the relatively neutral term

"person" stands a reference to the "individual man," "der einzelne Mensch": "the originary concept of person or of the subject of rights must coincide with the concept of man, and this originary identity between the two concepts can be expressed in the following formula: each individual man, and only the individual man, has juridical capacities [ist rechts-

fdhig]."88 This formula seems to make it absolutely clear that there is a

biological, if not outright anthropological, and in any case physical, sub- stratum to the notion of "juridical capacity," that leaves outside the realm of legal subjecthood not only statues, of course, but also corporations and lunatics. Much later in the argument, however, Savigny feels compelled to modify slightly his initial assertion. In the section devoted to the con-

cept of "juridical person," after recalling the earlier passage about the coincidence between juridical capacity and the individual human being, he adds: "we are now to consider such a capacity in an extended and artificial sense [als ausgedehnt und kiinstliche] in the case of subjects assumed to be so through mere fiction.""' This first modification introduces a possibility denied by the original formula, namely the possibility of being the

subject of juridical relationships, in however an extended sense, without

any biological conditions attached. Indeed, the adjectives "extended" and "artificial" describe the price that has to be paid for this de-anthropolo- gization of subjecthood, that is, for the breaking of the connection between being capable of subjecthood and being a human being. One cannot really say whether the stress falls here on the demotion in rank of certain possible subjects through a well-known opposition between proper sense and figurative sense, or on the extended notion of being a rightholder that is being proposed. Be that as it may, what seems to be clear is that the original formula will never recover from this seemingly innocu- ous extension, as juridical persons (i.e., artificial persons or, should we say,

21



persons that are not human) will acquire an overwhelming protagonism in the rest of the volume. Three pages later Savigny feels already free to enumerate the juridical relations which juridical persons are capable of

being part of, significantly enough starting with Eigenthum, i.e., property or possession.

Through the analysis above I am not suggesting that the notion of

juridical person is just a dialectical embarrassment that happened to

Savigny, let alone the product of a lack of rigour on his part. Rather, what seems to be interesting is that, for Savigny, there is not much that can be said about non-juridical persons, about the hitherto sole bearer of juridical capacities. This fact has perhaps to do with the way in which juridical persons require the kind of process that is constitutive of the law itself, namely the process of mediation, and so with the incompatibility between the notion of self-evident, unmediated attributes and the practice of the law. Where there is no mediation there is not much in which a lawyer can be interested. What interests Savigny in the notion of person, therefore, is the way in which such a notion seems to require representation, and not so much that such representation is essentially of a fictional nature. After

having described all that juridical persons are capable of, Savigny concludes the section with an appeal to the Romans, as well as with an inter-

esting translation: "Not even the Romans have a universal name for all the instances of this kind. Where they want to express the character of such

subjects in a general way, they merely say that they represent positions of

persons [die Stelle von Personen vertreten], that is, ...as if they were fictional persons."'9 Although Savigny is alluding explicitly to the Roman notion of "personae vice fungitur,"9' he is also, in his pairing off of representation and fiction, echoing the venerable confusion between fungor and fingo, to

perform (namely through representation, i.e. Vertretung) and to pretend. In any case, both fiction and representation refer here to a structural possibility rather than to a substance. "Juridical person" is not so much a

trope for "individual man" as it is a trope for a position in certain contexts. It refers then to a place that is presupposed by certain activities, indeed to the terminus of certain activities, rather than to the ground or the reason of these activities. The juridical person, so to speak, does not have a substance (the fact that "not even the Romans" were able to find a common

22



designation for all its instances should not come as a surprise). This not

having a substance, however, should not be confused with the trivial

assumption that all representation is fiction. Indeed, in a very important sense representation cannot be here defined as fiction, for there does not seem to be room for the opposite of fiction in the system of juridical persons. We would not be able to make juridically interesting and useful the notion of non-juridical person, that is, the notion of non-represented person. Non-represented persons are merely unreal.

We should now be able to see why Savigny's system not only rejects the notion of progress in relation to a typology of personhood as it also implic- itly denies the existence of any juridical opposition between "individuals" and "universitates." Even if Savigny makes explicit the opposition between universitas and singularis persona, the two expressions translating respectively Corporation and der einzelne Mensch, "corporation" and "individual

man,'92 the weight he seems to put on representation as not merely an instance of mediation but as an instance of production appears to show that for him individuals are perhaps little more than instances of the most

general case of the universitates inordinatae, of informal corporations. In

any case, individuals can only participate in juridical relationships through representation, and representation represents a position, that is, describes a possibility for action and intention, rather than a substance. It was probably the awareness of this difficulty that has led many people to go out on the limb of fiction whenever the question was that of the possibility of the

juridical representation of something that can only emerge as already-represented. But, of course, the most general implication of Savigny's emphasis on representation concerns his doctrine of Rechtsfdhigkeit (that is, of the

capacity to have rights). Indeed, once the emphasis is put on mediation, the status of "rights" becomes not so much that of an intrinsic property, some sort of moral or juridical universal attribute that defines persons (or, for that matter, statues and corporations) as that of a form of action, name-

ly the kind of action that implies what we currently call legal representation. The ontology of right-holding is defined by the exercise of

representation, which, in its turn, is defined by assumptions and expecta- tions about juridical capability.

23



1 The bulk of the text below was written during my residence at Stanford University in

1996/7, the perfect environment for one to spend an unforgettable sabbatical. In its current form, my essay is much indebted to comments by Sepp Gumbrecht, Richard

Weisberg, and an anonymous reader.

2 Clement of Alexandria, Protreptikos pros hellenas [The Exhortation to the Greeks], G.W Butterworth, trans. (Cambridge: Harvard University Press, 1953), 4.51.

3 Id., at 4.45, translation slightly changed. 4 Id., at 4.50.

5 Aristotle, De Anima, W.S. Hett, trans. (Cambridge: Harvard University Press, 1935), 420b: "no soulless creature [apsykhon] has a voice; they can only be said to give tongue metaphorically, as for instance a flute or a lyre." [Translation modified]. Aristotle then

goes on to distinguish between psophos, the mere noise made, e.g., by insects, from phone, defined as semantikos psophos (meaningful noise).

6 MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916). I owe Richard

Weisberg this example.

7 Clement, supra note 2 at 4.52: "under the masks of daemons [prosopeiois daimonion] you have made a comedy of that which is holy." It should be noted here, however, that Clement's orthodox stance against the worship of images was neither born of nor gave birth to a theology against the arts or the body in general, at least in the eastern Christian tradition. Rather, the Classical regard for the potency of objects as bearers of rights, responsibilities, or power abided. Indeed, even during the Iconoclastic epoch centuries after Clement, Byzantine artists continued to produce in great number secular works of art. See A.A. Vasiliev, History ofthe Byzantine Empire, Vol. I, (1952; Madison: University of Wisconsin Press, 1984 ed.), p. 289. For Clement as for subsequent Eastern Orthodox

theologians concerned with preserving a Classical-Christian heritage, the "comedy" is in

confusing latreia, "worship," with proskynesis, "veneration," only the latter being a proper attitude toward soulless objects. See John of Damascus, On the Devine Images (Crestwood, New York: St. Vladimir's Seminary Press, 1980).

8 W.W. Hyde, "The Prosecution and Punishment of Animals and Lifeless Things in the Middle Ages and Modern Times," 64:7 University of Pennsylvania Law Review 701

(1916). A classic discussion of the special case of statues in this respect can be found in E.R. Dodds, "Theurgy" (1947), later in The Greeks and the Irrational (1951; Berkeley: University of California Press, 1971 ed.), pp. 292-295.

9 E.P. Evans, The Criminal Prosecution and Capital Punishment ofAnimals: The Lost History of Europe's Animal Trials, Foreword by Nicholas Humphrey (1906; London: Faber, 1987 ed.), p. 174.

10 Polydeukes, Onomastikon, 8.120, quoted in D.M. MacDowell, Athenian Homicide Law in the Age ofthe Orators, (Manchester: Manchester University Press, 1963), p. 86. A good involuntary characterization of this procedure, made in reference to Tacitus, is in Roland

Barthes, "Tacite et le baroque funebre" (1959), Essais critiques (Paris: Seuil, 1964), p. 110: "the act is always absorbed in an object." Barthes' point, however, as Riffaterre has

shown, is that in Tacitus this formula has to do with the theme of the "innocent instru- ments of evil' and thus that "there is no animism" there. Michael Riffaterre, "Le Formalisme frangais," (1969), Essais de stylistique structurale, D. Delas, trans. (Paris:

24



Flammarion, 1971), p. 281-282.

11 Plato, Laws, 873e-874a, namely 874a3.

12 Pausanias, VI, ii, 6-8.

13 Oliver Wendell Holmes, The Common Law: The Collected Works of Justice Holmes, Sheldon Novick ed. (1881; Chicago: University of Chicago Press, 1995 ed.), at 3:132.

14 Id., at 120.

15 Clement, supra note 2 at 4.41.

16 Holmes, supra note 13 at 120.

17 Id., at 116: "the early forms of legal procedure were grounded in vengeance."

18 Id., at 120.

19 Id., at 119.

20 See, e.g., Justinian's Institutes, 4.9, pr., S.P Scott trans., in The Civil Law (Cincinatti: Central Trust Company, 1932) at 2:161: "if the ferocity [of animals] is born in them there is no cause of action; hence where a bear escapes from his owner and causes dam-

age, the latter is not liable, because he ceased to be the owner when the beast escaped. Damage of this kind is such as is committed without malicious intent by whatever causes it.

21 For the full argument see Cardozo's already mentioned classic 1916 opinion in MacPherson v. Buick Motor Co., supra note 6, concerning this time not a bear but a 1909 Buick Model 10 Runabout: "if the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchas- er, and used without new tests, then, irrespective of contract, the manufacturer of this

thing of danger is under a duty to make it carefully."


23 Id., at 128.

24 Marshall, C.J., quoted by Story, J., in Malek Adhel, 2 How. 210, 234, quoted by Holmes,

supra note 13 at 129. Marshall's opinion refers to U.S. vs. The Schooner Little Charles, now in 26 Fed. Cas. 979, 982 (No. 15,612). The case was presented to the Circuit Court, Virginia, in May 1818.

25 Story, J., in Malek Adhel, 2 How. 210, 234, quoted by Holmes, supra note 13 at 129. Malek Adhel (the case of a ship accused of piracy against her owner's will) was decided by the U.S. Supreme Court in 1844. Story was at this point quoting himself (albeit anony- mously) in Palmyra, 12 Wheat., 1,14. This latter case was decided by the Supreme Court in 1827.


27 Id., at 129.

28 Id.

29 Id., at 130.

30 Id.

25



31 There is an abundant (if only sporadically fascinating) literature on the interests and the

rights of nonhuman objects, namely animals (or non-human animals, as the current

usage has it). R.G. Frey, in Interests and Rights. The Case Against Animals (Oxford: Clarendon, 1980), p. 78, distinguishes between two senses of "having an interest": "X is in N's best interest" and "N has an interest in X." In the first case, anything can be denoted by N. In the second case, only human beings can be denoted by N. In the first sense of "having an interest," tractors can have interests (80). For similar reasons, Frey oppos- es the very notion of rights, understood as the possibility of making claims on one's

behalf, as it is always possible to make claims on anyone or anything's behalf (8). A cri-

tique of Frey's position can be found, e.g., in Lawrence E. Johnson, A Morally Deep World: An Essay on Moral Significance and Environmental Ethics (Cambridge: Cambridge University Press, 1991), pp. 75-96. For Johnson, species can have interests in Frey's second sense of "having an interest," as they are organic wholes, a process, with, past, present, and future (157). Moreover, recognizing interests to something means, for

Johnson, valuing it for its own sake and is the natural consequence of holding certain val- ues (284). H.J. McCloskey, in "Rights," 15:59 The Philosophical Quarterly 115-127

(1965), argues meanwhile that things cannot have legal rights because they do not have interests (126), and things do not have interests because things cannot have anything. This latter point is disputed by James Rachels in "Do Animals Have a Right To Liberty?", in Regan, Tom and Peter Singer, eds., Animal Rights and Human Obligations (Englewood Cliffs: Prentice Hall, 1976) as, for Rachels, interpreting Locke, animals have interests in what they make for themselves (220)(Rachel's argument is criticized by Donald

Vandeveer, "Defending Animals By Appeals to Rights," in Regan and Singer, eds., at

224ff). Joel Feinberg (1974), in "The Rights of Animals and Unborn Generations," now in Rights, Justice, and the Bounds of Liberty: Essays in Social Philosophy (Princeton: Princeton University Press, 1980), suggests that "having a right" is not coextensive with

"having an interest" and so that, e.g., animals have rights but not interests (172), even if

plants do not have the former because they cannot have the latter (168). For Feinberg, to have an interest implies having a cognitive apparatus (168). Hence, dead people have neither rights nor interests although they can be granted the latter (at least) through a useful legal fiction (175). Peter Carruthers, The Animals Issue: Moral Theory in Practice

(Cambridge: Cambridge University Press, 1992), suggests a distinction between "not

having rights and interests" and "not mattering to us." In his opinion, the former (but not the latter) expression applies meaningfully to inanimate objects, as it is possible to want to preserve inanimate objects without granting them interests or rights. This position is perhaps the bright side of what Robert Nozick approvingly, albeit tongue-in- cheek, termed "Kantianism for people, utilitarianism for animals." See Anarchy, State, and Utopia (New York: Basic Books, 1974), pp. 45-47. For Peter Singer, the foremost

representative of a whole Benthamite tradition, interests are acquired with the ability to

suffer, and so all suffering objects have ipso facto interests. Peter Singer, Animal Liberation: A New Ethics for Our Treatment of Animals, (New York: Random House, 1975; esp. Chapter 1). A critical review of Singer can be found in Jan Narveson, "Animal

Rights," 7:1 Canadian Journal of Philosophy 161-178 (March 1977). Narveson suggests that major animal interests are not so much nonexistent as they are less important that minor human interests. Most varieties of contractualism, from Kant to Rawls, seem to be hostile to the notion of non-human rights. Perhaps this hostility can be retraced up to Hobbes and his observation in Leviathan, I, xiv: "To make any covenants with bruit

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Beasts, is impossible, because, not understanding our speech, they understand not, nor

accept of, any translation of Right, nor can translate any Right to one another; and without mutual acceptation, there is no Covenant." Mary Midgley, in "Duties Concerning Islands" (1983), now in Robert Elliot, ed., Environmental Ethics (Oxford: Oxford

University Press, 1995), applies the notion of duty without a contract to the cases of inanimate objects. Those are what Holmes Ralston III calls "duties to the vulnerable mute" in "Duties to Endangered Species" (1985; now in Elliott, ed., at 66). Almost alone in his use of contractual metaphors in relation to inanimate objects is Michel

Serres, Le contrat naturel (1992), The Natural Contract, E. MacArthur and W. Paulson, trans. (Ann Arbor: University of Michigan Press, 1995). Serres's point that the social contract wasn't written in any language either (39) is primarily a license to extend the

metaphor of the contract to the physical world and grant what he calls natural contract the ability to provide us with the world's point of view (46). For panoramic discussions of some of these issues see Luc Ferry, Le Nouvel ordre ecologique (1992), The New

Ecological Order, C. Volk, trans. (Chicago: University of Chicago Press, 1995) and Tom

Regan's "Introduction" to Regan and Singer, eds. The best panoramic philosophical his-

tory of the problem can be found in Richard Sorabji, Animal Minds and Human Morals: The Origins of the Western Debate (London: Duckworth, 1993).

32 Christopher D. Stone, Should Trees Have Standing? Towards Legal Rights for Natural

Objects (1972; Los Altos: William Kaufmann, 1974), p. 34, n. 98.

33 Id., at 9.

34 Stone for instance argues that "it is quite misleading to say that "A has a right to..." can be fully explicated in terms of a certain set of specific legal rules, and the manner in which conclusions are drawn from them in a legal system.... Introducing the notion of

something having a right (simply speaking that way), brings into the legal system a flexi-

bility and open-endedness that no series of specifically stated legal rules... can capture." Id., at 41.

35 Stone points out that "if 'rights' are to be granted to the environment, then for many of the same reasons it might bear 'liabilities' as well," making thus conceivable the scenario

of, say, the trial of an ocean. Id., at 34.

36 MacDowell, Athenian Homicide Law, supra note 10 at 88. The contradicting testimonies as to the nonexistence of ephetai in the prytaneion (Harpokratikon and Polydeukes) MacDowell attributes to a mistake. See also D.M. MacDowell, The Law in Classical Athens (Ithaca: Cornell University Press, 1978), p. 117. For the characterization of

ephetai (not exactly analogous to modern jurors) and the juror system in Athens, see

respectively MacDowell, Law in Classical Athens, at 117, 35ff. The modalities and the

meaning of ephesis (usually translated as "appeal") have more recently been described in

MacDowell, Law in Classical Athens, at 30-1, as well as in Richard Bauman, Political Trials in Ancient Greece (London: Routledge, 1990), p. 4-5.

37 E.R. Dodds remarks in this respect that "early Greek justice cared nothing for intent - it was the act that mattered." Dodds, supra note 8 at 3.

38 Stone, supra note 32 at 11.

39 As opposed to the ethical problem of people like Roderick Nash, who in principle agrees with Stone but then goes on to state that "if ...people succeed in formulating moral rules

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respecting non-human entities, it may be contended that these entities have rights. From this standpoint the meaning of the rights of rocks is that we should be ethical, not mere-

ly economical, in our treatment of rocks." "Do Rocks Have Rights?", 10:6 The Center

Magazine 10 (1977). For Nash, a moral act (as opposed to specific jural forms of procedure) is what attributes rights. In this sense, the certainty of the attribution can never be challenged and, as such an attribution is unilateral, the causes for it are not taken to be external. Lawrence Tribe's claims in this respect, although again he quotes Stone

approvingly, seem to me to involve neither epistemological questions proper (as Stone's

do), nor ethical questions (as Nash's). Tribe contends that "affording legal rights to

endangered species and threatened wilderness areas might... be regarded as a convenient

technique for concentrating congeries of otherwise diffuse aesthetic and ecological concerns ultimately reducible to human interest - in other words, as a useful but quite transparent legal fiction." "Ways Not To Think About Plastic Trees: New Foundations For Environmental Law," 83:7 Yale Law Journal 1343 (1974).


41 Id., at 5.

42 Id., at 47, n. 125.

43 Donald Davidson, "Rational Animals," 36:4 Dialectica 323 (Bern, 1982).

44 Daniel Dennett, "Conditions of Personhood," Brainstorms: Philosophical Essays on Mind and Psychology (New York: Bradford, 1978), pp. 267-285, 275.

45 Davidson, supra note 43 at 324-325. For Davidson, "a belief about a belief.., requires the concept of belief," "the subjective-objective contrast [is] required by belief," and lan-

guage "commands" the subjective-objective contrast.

46 One recognizes here a widespread (albeit vulnerable) expedient of contemporary thought. See, e.g., Michel Foucault passim but especially Surveiller et punir (1975),

Discipline and Punish: The Birth of the Prison, A. Sheridan, trans. (New York: Vintage. 1977).

47 Stone, supra note 32 at 17. A comparison with older instances of this topos ("they will

speak if we find the right translator") can be instructive. See, e.g., Porphyry, De abst., III.3.4-5.


49 Id.

50 Nash, supra note 39 at 10.

51 Ralston, supra note 31 at 66.

52 And yet the case of "ordinary citizens" is not importantly different from the other cases.

Indeed, the problem of what counts as a meaningful sentence by someone can be a very real one ("Did N mean P?"), as in certain circumstances is the problem of knowing what counts as a meaningful sentence by myself ("Did I mean P?"). Both problems are problems of representation, in the sense the word is used here. In either case I can make certain events count as evidence (that is, turn them into symptoms), even if I cannot be deceived by the evidence I take for evident (in a change of opinion one is also not allow-

ing oneself to be deceived by other events, rather than just mistrusting certain evidence hitherto taken for granted). There seem to be therefore rules of representation in the case

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of "ordinary citizens," as there are indeed full-fledged theories on ways to know what one means. Perhaps Freud's Super Ego is in this sense a "friend of the ordinary citizen."

53 Santa Clara County v. Southern Pacific Railroad, 118 U.S. 394, 396 (1885).

54 Black, J. (dissenting), Connecticut General Life Insurance Company v. Johnson, 303 U.S.

77, 87 (1938). Both this case and Santa Clara County v. Southern Pacific Railroad are mentioned in Stone, supra note 32 at 18, n. 51.

55 I.Th. Eschmann, O.P., remarks that the word "universitas" was used as synonymous of several dozen words, among which "respublica, regnum, gens, populus, civitas... ; villa, vicus, burgum, castrum, castellum; familia... ; societas professionis, negotiationis... ; col-

legium decurionum... ; Ecclesia universalis seu generalis, ...singula ecclesia, capitulum ...ecclesiae collegiatae, monasterium... ; xenodochium... , orphanotrophium, hospitium." "St. Thomas and the Decretal of Innocent IV Romana Ecclesia: Ceterum," 8 Mediaeval Studies 9 (1946). E.R. Kantorowicz, in his monumental The King's Two Bodies, suggests that "universitas" was used by jurists in the late Middle Ages very much like "the Universals" was used by scholastic philosophy (without for that matter believing that the latter term was in the origin of the former): "[a]ccording to language and content... the

jurists' 'fictitious' or 'intellectual' persons [i.e., universitates] are hardly distinguishable from the Universals which the nominalists liked to call fictiones intellectuales." The King's Two Bodies. A Study in Mediaeval Political Theology (Princeton: Princeton University Press, 1957), p. 302. This, however, as Eschmann (33-4) indicates, could only have happened as a fourteenth century revision of Innocent IV's doctrine.

56 Innocent IV, Apparatus Innocentii IV PP in Quinque Libros Decretalium (written circa

1245; Venice ed., 1481). The passages relevant to this issue are transcribed by Eschmann, supra note 55 at 29-32. The three quotes above are respectively from the so- called glosses Consiliarios (5.39.53), Culpabiles (5.39.64), and Abbatibus (5.3.30). On res

incorporalis in this context see P. Michaud-Quantin, Universitas: Expressions du mouve- ment communautaire dans le Moyen-Age latin (Paris: Vrin, 1970), pp. 209-210. Eschmann's article as a whole is indeed directed against the very notion of kiirper- schaftliches Verschulden [corporate delict] and the "radical mistake" of supposing "a com-

munity to be, simpliciter etper se, one subject of action," which he finds in the "Platonic

ground" of both the Realism of Gierke and Maitland, and in the Fictionalism of Savigny (41).

57 Alberto Melloni, Innocenzo IV La concezione e l"esperienza della cristianith come regimen unius personae (Genova: Marietti, 1990), pp. 120-121. But see Innocent IV, supra note 56 at 5.3.30: "universitas notpotest accusari velpuniri." As to the civil suit as a metaphorical replacement for a criminal suit, see id., at 5.39.52: "Item poena capitali vel mortis vel

relegationis punietur universitas, si contra eam agatur criminatliter, sedpoena capitis muta-

bitur in pecuniariam." [Emphasis added.] This passage is transcribed and commented in Walter Ullmann, "The Delictal Responsibility of Medieval Corporations," Scholarship and Politics in the Middle Ages: Collected Studies (1948; London: Variorum, 1978), pp. xii, 82-3.

58 Kantorowicz, supra note 55 at 310.

59 Kantorowicz relates this particular theory to Aquinas's doctrine of the corpus mysticum, of which "membra... non sunt omnia simul' (Summa Theolog., IIIa.8.3). Id., at 308. The

relationship between the notion of corpus mysticum and political and juridical thought

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can already be found in Otto von Gierke, "Die publicistischen Lehren des Mittelalters" (1881), Das deutsche Genossenschaftsrecht, III, in Political Theories of the Middle Age, EW. Maitland, trans. (Cambridge: Cambridge University Press, 1958), p. 23, albeit in connection to Nicholas of Cues.

60 This the standard translation, used, e.g., by Kantorowicz. See, however, Eschmann, supra note 55 at 35, for an alternative, incompatible translation. According to Eschmann,

"nomen juris" should be translated as "the name of a right or privilege."

61 The attribution to Innocent IV of the paternity of a theory of fiction as well as of the

expression "persona ficta" can be found, e.g., in Gierke's Genossenschaftsrecht, supra note 59 at 3:279 (for a summary of Gierke's arguments see EW. Maitland's superb "Introduction" to his translation of part of the third volume of the Genossenschaftsrecht, supra note 59 at xix). Eschmann points out that great historians of the law such as Gierke were in fact misled by fourteenth century nominalist interpretations of Innocent's doctrine on the incorporeality, and thus of the fictional nature, of corporations, while being "unable to show a single text in which Innocent employs the word fiction in connection to this doctrine" (34). The one exception seems to be 2.20.57, in which it can be read that "collegium in causa universitatisfingatur una persona." Eschmann remarks nevertheless that the 1481 edition of the text (as opposed to the Frankfurt 1570 edition, which Gierke quotes) "reads fungatur instead offingatur" (34, n. 151). Innocent however uses

fingo in not wholly unrelated contexts, e.g., in 1.31.13, when he observes that a bishop, as member of a chapter, must "pretend to manage two persons [fingere gerere duas per- sonas]." This latter passage is quoted and discussed in Melloni, supra note 57 at 123.

62 Saint Isidore, in his Etymologies, already distinguishes between two meanings of fingere: "One says that a vase is fictional fictile] as the fictional [fictum] refers not [in this case] to a lie, but [to the fact] that it was formed [formatur] (by someone)." Etym. 20.4.2.,

quoted in Michaud-Quantin, supra note 56 at 207, n. 23.

63 Gierke describes the failed attempts of John of Salisbury to establish a correspondence between the parts of the State and parts of the human body. Gierke, supra note 59 at 24- 5. Kantorowicz characterizes John as not having yet "consciously integrated the factor of unlimited Time, which was absorbed only when the state organism became a 'body' in the juridical sense: a universitas which 'never dies'." Kantorowicz, supra note 55 at 311.

64 The brilliant analogy of Kantorowicz, supra note 55 at 302-303, between medieval doctrines on universitates and on angels also applies here, as angels, while potentially eternal, are created products as well and, so, figments of God's power. Therefore, both corporations and angels (but not God) have a history. The connection between the production of juridical fictions and power is very clearly expounded by Maitland in his "Introduction" to the Genossenschaftsrecht- quoting from Lucas de Penna's fifty-ninth pre- rogative of the Emperor ("only the prince can pretend Lfingit] what is not in the truth of

things [quod in rei veritate non est]"), Maitland concludes that "the corporation is, and must be, the creature of the State." Maitland, supra note 59 at xxx. It is in this precise sense that the angels are creatures of God.

65 See Ullmann, supra note 57 at 80-81, on Johannes Bassianus twelfth century definition of "corporate action." This latter notion is of course crucial to the notion of corporate liability. Bassianus's main argument was that a corporate action is recognizable by specific signs. My historical exposition and perception of this matter is indebted to

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Ullmann's masterful essay.

66 Id., at 85.

67 On the other hand, the argument against corporate responsibility was often built as an

argument against the effectiveness of corporate sanctions. The juridical argument can be read in the words of Innocent III, which Innocent IV glosses approvingly (supra note 56 at 5.3.30), "when a multitude of offenders is in question, severity is prejudicial [quia multitudo reperitur in causa, severitati (est) aliquid detrahendum]." There is, however, an additional politico-moral general principle, that one finds e.g. in St.Thomas Aquinas, which has to do with the counterproductive effects of punishing corporations. "In the infliction of punishment," Aquinas writes, "it is not the punishment itself that is the end in view, but its medicinal properties" (Summa Theol., IIa-IIae.43.7). Punishing certain crimes (and prosecuting certain corporate bodies, such as a crowd or a prince), can therefore be wrong if, for instance, "the infliction of punishment will result in more numer- ous and more grievous sins being committed" (Summa Theol., IIa-IIae.43.7), e.g., in a schism. The coupling of crowd and prince, which Aquinas uses in several places, can be found in the Glossa ordinaria (Patrologia Latina[PL], J.P. Migne, ed. (Paris: 1857-1866), at 114:132) as a short paraphrase of St.Augustine Ep.250 (PL 33:1066): "multitudo non est excommunicanda necprincepspopuli." All quotes in this note in Eschmann, supra note 55 at 32, 14, 16.

68 Bartolus, Fol. 200, no.4, quoted in Ullmann, supra note 57 at 87, n. 3.

69 Id., at 87, n. 4.

70 Id., at 87.

71 Karl Friedrich von Savigny, Das Recht des Besitzes: Eine civilistische Abhandlung. 7. Auflage, A.F. Rudorff ed. (1803; Wien: Gerold, 1865 ed.), p. 206. Original spelling maintained.

72 Id., at 206-7.

73 Id., at 206.

74 Id., at 207.

75 I translate "juristisch" as "juridical," although in some relevant literature in English the forms "juristic" and "juristical" also occur.

76 Savigny, Besitz, supra note 71 at 207.

77 Savigny's use of "juridical fiction," as discussed below, should not be confused with the much more empirical use of analogous expressions, e.g., by Jeremy Bentham. For

Bentham, although fictions in general are "one of those sorts of objects which in every language must... be spoken of as existing," legal fictions present the "...danger as that of producing ...persuasion as that of their possessing ...any real existence" and so par- take from a "mischievous immorality." C.K. Ogden, ed., Bentham's Theory of Fictions

(London: Kegan Paul, 1932), pp. 16, 18. In his Theory ofLegislation, indeed, legal fictions are merely false facts treated as if they were true. Jeremy Bentham, The Theory of Legislation, C.K. Ogden, ed., Richard Hildreth, trans. (1802; London: Routledge, 1950),

p. 71. A classical case of the opposite tendency concerning juridical fictions, whereby fiction is promoted to the role of a transcendental principle prior to any moral evaluation and therefore independent from any distinction between "good" and "bad" fictions, can

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be found in Hans Vaihinger, Die Philosophie des Als Ob. System der theoretischen, praktis- chen, und religiisen Fiktionem der Menschheit auf Grund eines idealistischen Positivismus. Mit einem Anhang iiber Kant und Nietzsche (1911), C.K.Ogden, trans., The Philosophy of 'A4s if" A System of the Theoretical, Practical and Religious Fictions ofMankind (London:

Kegan Paul, 1924), p. 33ff.

78 Savigny, Besitz, supra note 71 at 246.

79 Id

80 Id

81 Id., at 247.

82 Id., at 248.

83 Id., at 247.

84 Id., at 247, 248.

85 Id., at 247, n. 1.

86 Friedrich Karl von Savigny, System des heutigen Rdimischen Rechts. II. Die Personen als

Trager der Rechtsverhiiltnisse (Berlin: Veit, 1840), pp. 282-283. Original spelling maintained.

87 Id., at 283.

88 Id., at 2.

89 Id., at 236.

90 Id., at 241.

91 Id., at 241, n(h). The expression quoted is from L.22, Dig., 46,1: "hereditas personae vice

fungitur, sicuti municipium et decuria et societas."

92 Id., at 261-622.

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Documents

Kinds of Persons, Kinds of Rights, Kinds of Bodies