Can a River be Considered a Legal Person?

Abstract

The focus of this study is an examination of what it means to be a legal person and the role that the law plays in bestowing the legal status of being a person. This study highlights the underpinning rationalities and human interest that establish a hierarchy between person, defined as “human”, at a superior level to everything else, defined as “nonhuman”. In this respect, there is a core notion concerning human exceptionalism based on the rational sovereignty that justifies and consolidates the mastery of nature. To understand the fundamental premises of legal personhood, it begins from the first usage of person in history and philosophy, since the concept of legal personhood has been established through historical and philosophical developments. Analysing the meaning of person through different conceptualisations can allow a deeper insight into the legal interpretation of personhood. As a result of such investigation, two main dualistic structures of legal personhood reveal: the person-property dualism and the human being-person dualism. Thus, legal personhood simultaneously includes personalisation and depersonalisation, and always operates in a hierarchical array. Although the division between persons and things in the concept of personhood is rigid, being a “person” or a “thing” is open to interpretation in different circumstances through legal practices of exclusion and inclusion. Recently, there have been an increasing number of court rulings and a tendency of legislation to recognise the legal personhood of natural entities as a legal way of conserving the environment. This leads to an interpretation that legal recognition is a matter of institutional interest and attempts. Nevertheless, legal practitioners mostly prefer to confer certain rights or the status of a legal person on nature without the consideration of legal personhood’s background as seen in the case discussed in this study - the Tierra Digna case in Colombia. While this study endeavours to demonstrate the anthropocentric standard view of legal personhood, its principal purpose is to indicate the malleable nature of legal personhood as a product of legal fiction. In this context, this study aims to conclude that law’s imaginary nature should be used for producing a new legal reasoning and for offering a real paradigm shift that is congruent with the plasticity of and the fluidity of nature.

Keywords

legal personhood | human exceptionalism | Tierra Digna Case | nature | legal fiction | critical legal theory | rechtliche Persönlichkeit | menschlicher Ausnahmezustand | Tierra Digna Fall | Natur | rechtliche Fiktion | kritische Rechtstheorie

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