D2.13: Virtual Persons and Identities

D2.13 Virtual Persons THE LEGAL SUBJECT

The persona: legal subjectivity

Within legal theory and legal philosophy the concept of the legal subject is often described in terms of the Greek “persona”. The “persona” was the mask used in Greek theatre, to hide the face of the actor of flesh and blood behind the material picture of the role that was played. In law the legal subject or persona is used to mark the difference between the person of flesh and blood and the legal subject, to emphasize the fundamental indeterminacy of the human person, who should not be equated with the legal role she is attributed. The legal persona thus achieves two things:

1. It provides the human person of flesh and blood with an instrument to act in law: to exercise her rights, to take on certain obligations, or to be attributed certain competence; 

2. While providing the legal instrument to attribute civil or criminal liability, it also protects the human person against transparency, by marking the difference between the indeterminate (indefinable) person of flesh and blood on the one hand and the role played or attributed in law on the other hand.

Legal Subjects

By thinking of legal subjects as roles attributed by the law, it becomes possible to attribute legal subjectivity to entities other than the human person. The realization that a human person is not a legal subject by nature, because the category of legal subjectivity is an artifact, created by law, enables one to extend legal subjectivity to other subjects if it makes sense to grant such a subject the possibility to act in law and/or to be liable for harm caused.

Examples of legal subjectivity granted to subjects other than the human person: 

1. the unborn human person, 

2. a corporation, a fund, an association, 

3. the state or other public bodies. 

The fact that legal subjectivity is attributed by the legislator opens up the possibility of considering other subjects, such as:

1. animals, 

2. intelligent robots, 

3. software programs, 

4. smart environments, 

5. hybrid multi-agent-systems.