Tarunabh Khaitan (London School of Economics – Law School) has posted Authorial and Authorised Purposiveness: Natural Persons, Organised Agents, and the Public-Private Debate (Oxford Studies in Philosophy of Law, vol. 7, forthcoming) on SSRN. Here is the abstract:
Liberal law rests on a familiar contrast: private persons may do whatever law does not forbid, whereas public bodies must justify action as authorised by positive law. Through legal ‘personhood’, this agentive public-private divide extends a presumption of autonomy—and the fundamental rights expressing it—to most non-state legal persons, including companies, charities, trade unions, political parties, churches, and universities. This paper argues that the line is misplaced: it should run not between private persons and public bodies, but between natural persons and organised agents. Natural persons presumptively bear autonomy-rights because they are capable of authorial purposiveness: the first-personal, experiential, conscious, diachronic, and revisable authorship of a life from within. Organised agents instead have authorised purposiveness: in ideal cases, externally ascertainable purposes, settled procedures, and official voices. Their power-pooling and power-amplifying capacity makes accountability, not autonomy, the fitting presumption. Their rights require derivative justification through the natural persons whose interests they mediate, or functional justification as constitutive of a licit institutional purpose. Accountability, moreover, is differentiated: state organised agents call for ‘domestication’ through separation of powers, and many non-state agents for regulatory ‘taming’.
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