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9A - Who or What is a Legal Person.docx

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Legal Studies
LS 101
Susan Brophy

Unit III: Major Debates in Legal Studies Week 9A November 5, 2013 Who/What is a “Legal Person”? Overview Person as a metaphor  No one particular, or true definition of “legal person”  Lack of clarity can be useful o Allows judges to exercise discretion  Expand or limit idea of “person” depending on desired outcome o Category of person can be manipulated  Met-a-phor o A figure of speech in which a name or descriptive word or phrase is transferred to an object or action different from, but analogous to, that to which it is literally applicable  Biological link cannot be assumed  Legal person does not need to be a human o Person as a metaphor, not literal expression  In defining “legal person”, we can define the scope of law Law’s expressive function  “legal person” is the object of legal power  Law constructs the object of its power  In doing so, law expresses norms and values to society” (p. 1745)  This function shapes behaviour; reflects social ideals  Problems with law’s expressive power: o Subject to interpretation o No always “provable” o Mixed and contradictory o Evolving and changing  Proof: through law’s expressive power, “person” becomes a “legal fiction” Legal fiction What is legal fiction?  Legal construct; does not exist in nature  Contestable o Prone to contradiction (i.e. slaves) o Subject to interpretation (i.e. corporations)  Legal fiction arises as the product of judicial failings o They do not consider philosophical arguments o Apply theories of law inconsistently Unit III: Major Debates in Legal Studies Week 9A November 5,
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