Nature’s Law or Law’s Law? Community of Life, Legal Personhood, and Trusts

Abstract

Recent work on legal personhood and corporations has pointed out the problematic character of such “artificial” legal personality, either because it gives legal protection to “in-human” behavior on the part of corporations, or because it unduly employs legal personhood to graft “human” rights protection onto corporations. In both cases, though, the “natural” legal person is employed as standard to criticize the “artificial” legal person. Other legal theorists, on the contrary, have defended the plasticity of legal personhood claiming that it responds better to an on-going process of de-naturalizing the “human” person, as well as allowing, via “artificial” legal personhood, the application of human rights to nonhuman beings, like rivers, forests and the like. In this chapter I want to bring back a distinction between corporation and trust, according to which the corporations endow groups of actors with one personality “by fiction” whereas the latter refer to a “real personality” of groups. I shall first discuss the crucial consequences that follow from this distinction with respect to: (a) the power relations within a group; (b) the relation between use and ownership; and (c) self vs other-directed purpose of corporations and trusts. I shall then make an argument as to why the idea of a trust may work better as a vehicle for the ascription of legal personality as well as human rights to nonhuman things than the ideas of fictional legal personality and corporate personhood.