Saturday, September 12, 2015

Legal Personality

Ivan Strenski says some bizarre things about legal personality:

In this case, the problem that Ms. Davis had in signing the marriage licenses because they transgressed her conscience could be obviated by calling attention to the fact that it was not Kim Davis in person with a conscience and religious beliefs that had the name “Kimberly Davis” signed to the document. It was another “person” — the legal fiction, County Clerk Kim Davis, who did. That “Kim Davis” has no conscience, no beliefs, celebrates no birthdays, does not marry, etc.

When I go abroad, I am still me in all senses of personhood—except those now constructed for me according to that other nation’s legal system. Kim’s in the same situation. If one reads carefully under Kim Davis’ signature, the clue to the existence of her name as a legal fictional person is there, namely, “County Clerk,” I believe.

Lord have mercy, the contortions people are going through in this case to justify the conclusions they already think right. 'County Clerk Kim Davis' is, in the first place, not a juridical person at all. There are no rights qua county clerk that are not merely functions of a larger organization of which county clerkhood is a part, which is absolutely necessary for juridical personhood. Davis is not incorporated as county clerk, she is not a sovereign government, and not only does county clerkhood not appear to be granted legal personality under Kentucky state law, it would be a strange way of organizing a government if it were. County clerk is an office, a packet of official powers and duties, a capacity in which a person serves, not itself a form of personhood. As county clerk, she is an elected official, not a juridical person.

Second, when we are considering the two kinds of legal personality together, under no legal regime does juridical or artificial personhood supercede or displace natural personhood. Nobody's rights as a natural person become irrelevant or suppressed by being employed by a corporation or by federal or state government, for instance. If you incorporate yourself, your natural personality as a citizen is distinct from your juridical personality as a corporation, and the rights of the two will not be the same, but you yourself will retain every right of natural personality as well as every right of juridical personality in any situation in which they are both operative. You become legally reduplicated: you have rights qua natural person that you would not have qua juridical person, for instance. The interaction between the two reduplicated aspects is not in any way straightforward, and depends crucially on exactly how the juridical person is a person under law; but one thing is certainly true, that your juridical personality does not suppress any rights you have as a natural person. It is even more obviously true that you retain conscience and religious beliefs, which don't in any way depend on legal recognition, regardless of how you stand in terms of juridical personality, and it is quite clearly the case that we expect people themselves to act conscientiously regardless of their legal personhood status. It thus would all be utterly irrelevant even if county clerks were juridical persons qua county clerks.

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