Thomas A. Smith (University of San Diego School of Law) has posted Persons Real and Feigned: A Metaphysics of the Legal Person (San Diego Legal Studies Paper, forthcoming) on SSRN. Here is the abstract:
This essay asks what a legal person is, and argues that the law’s many nonhuman persons answer to a single account with three terms and no fourth. A legal person is either a rational substance, an individual being whose own nature is rational, which is what a human being is and the person in the fullest sense; or a unity of order, a body of rational persons held together by an order directed to a common good, which is what a corporation is, and a state, a person not in the full sense but by a true analogy, real and an agent yet possessed of no rational soul of its own; or a pure fiction, a name in the law behind which there stands no person at all, which is what an artificial agent is when the law makes a person of it.
The middle term is the essay’s contribution. Drawn from the metaphysics of Aristotle and Aquinas rather than from the natural law theory of recent decades, the unity of order supplies the category that the fiction, aggregate, and organic theories have each lacked, and it explains how a corporation can truly act, and persist beyond the members who compose it, while having no inner life or conscience of its own. The account refuses to remain idle: it is tested by prediction against the constitutional protections a corporation may and may not claim, across self-incrimination, speech, religious exercise, and the piercing of the corporate veil, and is then carried beyond the business corporation to the state, which is neither a mere aggregate nor a deified substance, and to the artificial agent, which proves to be the first legal person the medieval term persona ficta describes without remainder.
Highly recommended!
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