TY - CHAP
T1 - Fictio Iuris, persona, agency
AU - Heritier, Paolo
PY - 2009
Y1 - 2009
N2 - The paper intends to make clear the legal background of the philosophical notion of 'agency' following two different ways: firstly, trying to reconsider the legal development of the notion of 'juridical person'; secondly, analyzing shortly some current theories of agency. Ever since Roman law a legal technique called "fictio iuris" was well known. It was formerly linked with the substitution of human sacrifice with animal sacrifice and then with fictional sacrifices of ritual objects (within the ancient Roman law called ius pontificium, sacred and magical). Around Cesarean Age, annual praetorial edicts stated all the 'fictional' lawsuits that it was possible to file. So, steadily applying the legal technique of "fictio iuris", gradually Roman praetors were able to pursue equitable aims beyond the law in force (ius praetorium). Later, in the Middle Ages, legal fictional techniques were adopted by Canonic law. The notion of "juridical person", thus, shows its roots in philosophical controversies about nominalism and juridical disputations concerning fictional entity (universitas iuris). In particular, the pope Innocent IV, moving from St. Paul's Church viewed as Mystical Body, indirectly formulated the notion of universitas as "a person that cannot die" and an autonomous centre for the imputation of legal relations. Modern legal concepts of the common law like trusts and corporations may be so also understood by means of this complex historical background, through the clarification afforded by the analysis of juridical debates between opposite legal theories such as Fiktionstheorie and Realitätstheorie. Within the context of civil law, indeed, Kelsen's positivism shows how the artificial feature of the notion of juridical person can be extended to the concept of natural person. Contemporary technologies of artificial intelligence concerning software agents present the same theoretical problem. Finally, according to ongoing analysis, we may state that legal thought - not unlike philosophy of language, moral philosophy, artificial intelligence - represents an important theoretic element to understand the historical rise and the epistemological functioning of the notion of 'agency' within a complex context of new academic disciplines.
AB - The paper intends to make clear the legal background of the philosophical notion of 'agency' following two different ways: firstly, trying to reconsider the legal development of the notion of 'juridical person'; secondly, analyzing shortly some current theories of agency. Ever since Roman law a legal technique called "fictio iuris" was well known. It was formerly linked with the substitution of human sacrifice with animal sacrifice and then with fictional sacrifices of ritual objects (within the ancient Roman law called ius pontificium, sacred and magical). Around Cesarean Age, annual praetorial edicts stated all the 'fictional' lawsuits that it was possible to file. So, steadily applying the legal technique of "fictio iuris", gradually Roman praetors were able to pursue equitable aims beyond the law in force (ius praetorium). Later, in the Middle Ages, legal fictional techniques were adopted by Canonic law. The notion of "juridical person", thus, shows its roots in philosophical controversies about nominalism and juridical disputations concerning fictional entity (universitas iuris). In particular, the pope Innocent IV, moving from St. Paul's Church viewed as Mystical Body, indirectly formulated the notion of universitas as "a person that cannot die" and an autonomous centre for the imputation of legal relations. Modern legal concepts of the common law like trusts and corporations may be so also understood by means of this complex historical background, through the clarification afforded by the analysis of juridical debates between opposite legal theories such as Fiktionstheorie and Realitätstheorie. Within the context of civil law, indeed, Kelsen's positivism shows how the artificial feature of the notion of juridical person can be extended to the concept of natural person. Contemporary technologies of artificial intelligence concerning software agents present the same theoretical problem. Finally, according to ongoing analysis, we may state that legal thought - not unlike philosophy of language, moral philosophy, artificial intelligence - represents an important theoretic element to understand the historical rise and the epistemological functioning of the notion of 'agency' within a complex context of new academic disciplines.
KW - Agency
KW - Free will
KW - Intelligent agent
KW - Juridical person
KW - Legal fictions
UR - http://www.scopus.com/inward/record.url?scp=84904184356&partnerID=8YFLogxK
M3 - Contributo in volume (Capitolo o Saggio)
AN - SCOPUS:84904184356
SN - 9788854827905
T3 - Lexia
SP - 217
EP - 231
BT - Lexia
PB - Lexia - Segreteria scientifica e organizzativa
ER -