Constructing legal personhood: corporate law’s legacy

Abstract

ABSTRACT Legal personality – its nature and function – has become a topic of renewed interest. In particular, there is increasing interest in extending existing categories of legal personality. While contemporary discussion of legal personality is directed at comparably novel ends, aspects of the discussion are familiar, mirroring broader patterns of thought evident in historical treatments of the subject. Most familiar of all is the pronounced conceptual uncertainty that continues to surround legal personality as a device. This uncertainty may compromise efforts to successfully create and manage new forms of legal person. Proceeding from an understanding of legal personality as function, and the elements of legal personality as the terms of a licence, we explore considerations essential to the effective design of synthetic legal persons, including the need for clarity with respect to immediate purpose, designated legal capacities and the conditions against which the grant of legal personality might be made by the State. Drawing on the historical example of the corporation as the first truly ‘synthetic' legal person in Anglo-Australian law we tell a cautionary tale about the conferral of synthetic legal personality, contrasting the flawed design of the corporate device with that of new ‘environmental' devices, including New Zealand’s Whanganui River.