3 Legal Person
The complexity that has just been mentioned could be completely dismissed by calling into question the existence of a simple passive legal entity as a whole: why not simply identify the legal entity in the administrators of a legal platform? This would perhaps bring us one step closer to a representation of the legal person independent of value, since the orientation and scope of action can be defined almost independently of value.42 However, such a demarcation would reduce the explanatory power of a theory, since it would essentially exclude young children, senile persons, etc. legal personality; Such a theory should argue that U.S. legislative changes that claim to treat fetuses as legal entities (generally in the context of extending criminal law protection to unborn children) and the goals of the Nonhuman Human Rights Project are conceptually wrong. Finally, the latter project aims to give certain non-human animals a legal status partly similar to that of human minors. Lawyers who – implicitly or explicitly – recognise the legal personality of children could, of course, simply be confused. However, there are good reasons for this branch between passive legal personality and active legal personality, since both aspects work in different ways: passive legal personality is associated with Hohfeld`s claims, while active legal personality is associated with acts. To disregard one or other aspect of the legal person would be to ignore important features of the concept. In addition to the incorporation of a legal platform and its separation from other entities of this type, a third feature of legal platforms is that they are usually named with proper names or other designations to distinguish the respective platform from other platforms.31 The naming of legal platforms partly explains claims that beings like rivers could be legal entities, because of course, we can call a legal platform “the Whanganui River”. In Italy, trade unions have legal personality as defined in Article 39(4) of the Constitution: Brazilian law recognizes any association or abstract entity as a legal entity, but a register is required by a constitutional document, with specifications depending on the category of legal person and the local law of the state and city. Complex business structures can effectively hide real ownership, customers, or transactions.
The term legal person can also be used to protect natural persons from liability, and complex structures can be used to hide illegal activities. The role of legal persons in illegal activities can cover all organised cross-border crime, from trafficking in human beings to drug trafficking, counterfeit medical devices or weapons, corruption and money laundering. Ensuring the accountability of legal persons is therefore an important element in the fight against transnational organized crime. On the other hand, the key elements of an active legal entity focus on legal liability and legal skills. Legal responsibility comes with the ability to take on duties, which is why even some animals can be held legally responsible – although it may be morally wrong to hold them accountable. Legal powers are exercised mainly through legal acts that are deliberately executed in order to entail a legal consequence associated with the act (see Chapter 3). The ability to perform legal acts presupposes a certain degree of understanding of the institutional reality and, in particular, of how institutions can be used through the use of symbols. While dogs can be punished, dogs lack the cognitive skills to enter into legal contracts.33 Rivers and trees cannot make claims or act, so they cannot be legal persons. Tur claimed in a passage quoted above that an action can be correctly attributed to an idol.
However, his claim is untenable; Idols cannot perform actions. So what would an alleged attribution of the act to the idol mean? The distinction between platform and person provides a relatively obvious answer: this “attribution” of an action to the idol simply means that the legal consequences of the action concern the legal platform “the idol” and not the natural legal platform of the idol administrator. However, this does not mean that the physical object in question is actually involved in it in a way that would justify calling it a legal person. Article 10 of the Organised Crime Convention on the Liability of Legal Persons is an important recognition of the role that legal persons could play in the commission or facilitation of cross-border organised crime.