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Why and When the Term "person" Was Replaced with the Term "Legal Subject"?

Reflections on the Genesis of the Concept of a Person in the Legal Sense

Summary/Abstract: The purpose of this article is to elaborate on questions why and when the term “person” in its legal sense was replaced with the term “legal subject”. The replacement of “a person” with “a legal subject” in fact even means replacement of a deductive method emanating from “a person” with an inductive method emanating from “a legal subject” which is a bearer of subjective rights and duties. The term “persona” (a person) originates from ancient terminology. However, ancient concept of the term “persona” was completely different from the present one. Not only that the Roman law ignored abstract connotation of the term “person”, which would cover both a natural person and a legal person, it neither has the term, which would encompass all the bodies to be considered as a legal person nowadays. The term “legal person” was not created until the beginning of the 19th century and it was done by the German juridical theory of Pandectists. The term “legal subject”, in its contemporary sense, was neither known in the Middle Ages. Under the influence of the Canon Law the terms such as persona “ficta”, “mystica” or “representata” appeared. Thus, during the Middle Ages the corporate doctrine developed, on the other hand the concept of natural person was evolved quite insufficiently. The common base for the subsequent terms of a natural person and a legal person is made up by the concept of “a moral person”, which was not developed until the early Modern Ages. This term was introduced at the end of 17th century by Samuel Puffendorf (1632-1694) and during the 18th century it was specified and further defined as to its content by Christian Wolff (1679-1754) and Daniel Nettelbladt (1719- 1791). Nevertheless, all the above mentioned concepts of “a moral person” are linked by doctrine of statuses. Immanuel Kant (1724-1804) was the first who explained that social status of a person should not determine its “legal personality” (i.e. its rights and duties). Kant was then followed by Friedrich Carl von Savigny (1779-1861) who replaced the term “moral person” with the term “legal person” and, thereby, created the conditions which were necessary to understand the concept of “a person” not only “deductively”, but also “inductively”.

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