Article — Vermeersch, Questions on Justice
Article I. On the Historical and Present State of the Controversy
531. Origin of the division. The division so solemnly made today, by which persons are distinguished as physical and moral, occurs neither in Roman law nor in canon law, although it is once read in Roman law: “An inheritance1 performs the function of a person, just as a municipality, a decuria, and a partnership do.”2 In the seventeenth century, the French jurist Domat (1625-1695) spoke in a similar manner of legitimately established communities,3 and Pothier, the most celebrated of all those versed in French law, called colleges “intellectual beings, intellectual persons”;4 nevertheless, neither divided persons into physical and moral. But when the French upheaval was raging, so that public seizures of goods might be excused, Thouret5 began to distinguish between men and colleges, as though the latter, contrary to the former, had to derive all being and right from the human legislator and acknowledge them as received from him. This distinction could have been the occasion for the juridical doctrine which, prepared by Mühlenbruch,6 was expressed scientifically by von Savigny (1779-1861); and, because of the great name of this writer, it was soon introduced into France by Zachariae,7 and thereafter prevailed almost everywhere at least in this respect: that two genera of persons, physical and moral, were recognized. Only very recently was this formally confirmed by laws, especially by the Codes of Spain and Germany.
1 The inheritance is to be understood as lying, that is, as not yet entered upon by the heir—approximately what one would call in French succession ouverte [an opened succession].
2 Law 22, Digest, De fideiussoribus [On Sureties] (XLVI, 1).
3 “Legitimately established communities take the place of persons.” (Ed. of 1735), vol. 2, pp. 104-105.
4 Traité des Personnes, nos. 210-212.
5 Speech to the Constituent Assembly. See Moniteur Universel, 1789, nos. 77, 80, 81, cited by Van den Heuvel, work cited, p. 77.
6 Cf. Vauthier, work cited, p. 271.
7 Cours de droit civil français.
532. Opinions. Moreover, it is readily evident that physical persons are men themselves by reason of the innate dignity of nature—unless perhaps they have been reduced to perfect servitude, so that their personality is ignored civilly.
Concerning a moral person, however, authors think in diverse ways, whether you regard the nature of the person called moral, the subjects to which the appellation falls, or the predicates of such a person.
1. Concerning the nature of a moral person:
a) Until almost our own days, most jurists, with von Savigny, contended that a moral person was truly created by a fiction of law: for, on account of the convenience and utility of men, the legislator established that the goods and rights which regard corporate bodies of persons or things should no longer be attributed to the members themselves, or physical persons, but to a certain fictitious entity, in whose name they would be exercised by delegated persons.
Although they had asserted that these things could be feigned by the legislator alone, they were gradually led to admit that it could also happen that, through the fraud of private persons and against the will of the legislator, moral persons would arise which would then exist in fact, not by right. Liberal jurists greatly abused this accusation against religious persons.
It was necessary, moreover—unless, with Laurent,8 you ascribe the personality of the State to law, which is nevertheless posterior to the State itself—to attribute a higher origin to at least two persons. Hence there are those who derive the person of the State from God as the author of nature, but the person of the Church from the positive will of its divine Founder.
8 Principes de droit civil français, vol. 1, p. 375. This can be understood to some extent insofar as by the name moral person you understand merely a certain artificial subject for possessing goods.
Accordingly, in this opinion, two moral persons exist per se: the Church and the State; the others are created by one or the other of these.
b) The fortune of that opinion has recently begun to decline, and not a few of the jurists of France and Germany now undertake the defense of a natural moral person, as though, by the same cause by which a society is generated, a moral person is also generated which is fully capable of possessing rights, unless perhaps it is impeded by a positive prohibition of law.
To demonstrate this person, some employ the ancient similitude between a society and an organic body, which they exaggerate so greatly in their discourse that they attribute to a society—and especially to the State—a true body endowed with its own life. Thus Spencer, Principes de sociologie; Schaeffle, Bau und Leben des socialen Körpers; Jaeger, Manuel de zoologie; Espinas, Les sociétés animales.
Others, rather, who think that there are as many persons as there are wills, have attempted to demonstrate in groups a certain peculiar will wholly distinct from the sum of the wills of the members. Hence they said that by this will there is constituted a new entity, a subject possessing rights, that is, a person. Several French jurists have also assented to this opinion, called the Willenstheorie, which Zitelmann9 and Meurer10 devised.
9 Begriff und Wesen der sogenannten juristischen Personen.
10 Der Begriff und Eigenthümer der heiligen Sachen.
c) Taking a kind of middle way, several theologians and canonists, whom Most Illustrious D. Waffelaert11 seems to have preceded, distinguish moral persons as true and fictitious. The true are the State, the Church, and the smaller colleges of a permanent character which are subject to one or the other; the fictitious are private groups formed for the sake of profit, and certain corporate bodies of things, for example, endowed “burses,” which have acquired personality by the beneficence of the legislator.
11 Insofar as he, according to his genius, composed a most orderly system, which also pleased other most learned men, for example, Rev. D. Moulart and Rev. D. Scheys. The works themselves were proposed at the beginning of the disputation. Moreover, no one will wonder that, in a difficult matter illuminated only very recently by the investigation of many, we reverently depart from authorities whom we would have preferred to follow, especially since in the matter they seem to us to differ little from the truth.
Nevertheless, this true moral person is said to exist “as a subject of right distinct from the individuals and from the whole actual collection,”12 and at the same time is constituted “an entity of reason, abstract, and distinct by reason from the individuals,” indeed even from the members taken collectively.
12 Cf. Waffelaert, De Iustitia, no. 160, and Scheys, p. 49.
d) A fourth genus of opinions holds that a moral person is nothing but a fiction of the mind which, destitute of every juridical efficacy, can assist understanding and speech. This persuasion has already become very widespread in Germany, and has obtained distinguished defenders in France and Belgium.13
13 Especially Van den Heuvel, work cited.
But while they deny that a proper subject of social rights is constituted, they themselves vary in opinion when assigning the subject to which the rights and goods said to belong to a group are to be attributed. Some, with Brinz as their authority,14 defending what is called Zweckvermögen [purpose-patrimony], think that certain patrimonies belong to the very end for promoting which they were constituted; concerning these, therefore, it is no longer necessary to ask whose they are, since they are, as it were, sui iuris. Others, for example, Mr. Van Biervliet,15 following Mr. Serment,16 think that the common things of a group are in the proprietary dominion of no one, but are the objects of peculiar rights which are not only exercised but truly possessed by the governors of the group. Finally, others, following the great jurist Ihering, ascribe all rights and goods to the members themselves. This opinion, recently defended in France with great force of reasons by Professor de Vareilles-Sommières,17 likewise seems to us, as regards the substance of the matter, both truer and more conformable to antiquity.
14 Lehrbuch der Pandekten, no. 234.
15 Work cited.
16 Work cited.
17 Work cited.
2. As regards the subjects of which moral persons may be predicated:
a) There are now those who, because of the juridical relations inherent in them, call physical persons themselves by the name of juridical or moral persons. Thus Pufendorf himself, De iure naturae, bk. 1, chap. 1, §12.
b) For others, there are as many moral persons as there are groups or institutions which are endowed with civil personality. Hence, after considering the laws, they will say that in our State moral persons are the State, provinces, municipalities, church fabrics, seminaries, civil hospices, publicly recognized groups of men of the same profession (unions professionnelles) or for mutual assistance (secours mutuels); and, in general, commercial, but not civil, companies.
c) Others, who defend the innate personality of corporate bodies of persons, say that all and only groups of men are persons.
d) Others connect personality with the end to which certain things or certain corporate bodies of persons are assigned, at least if, withdrawn from the discretion of the members, they seem to subsist as though by themselves.
e) Several theologians think thus: in the broadest usage, any groups of men are moral persons; properly, only those groups which are formed not for an arbitrary end but have a permanent foundation in the common necessity of men as such, and at the same time consist of sufficiently many persons. Thus the State, the Church, and the parts of one or the other; municipalities, dioceses, parishes, monasteries. Besides these, by law certain companies formed for the sake of profit are feigned to be persons, and even certain things: foundations, hospices, etc.
3. Concerning the province of a moral person.
Von Savigny speaks very moderately when, considering merely private law, he reduces everything to the capacity of possessing, so that he describes a moral person as “an artificially admitted subject capable of possessing.”18
18 “An artificially assumed subject capable of possessing property.” Work cited, §85. The book prints the German ungrammatically as Ein des Vermögensfähiges künstlich angenommenes Subject; the certainly intended reading is Ein des Vermögens fähiges künstlich angenommenes Subject.
Most Illustrious D. Waffelaert and those who follow him also seem to look to the possession of goods.
Others, if they wish to speak consistently, must refer to the moral person whatever rights pertain to the group, or whatever is said to be done by the group.
Some, indeed, advancing further, are not far from distinguishing the sex of a moral person,19 and declare moral persons capable of perpetrating offenses and undergoing penalties, something to which Taparelli himself does not seem averse.20
19 Thus Bluntschli, Théorie générale de l'État, chap. 1, no. 7 (translated into French by Schiedmatten).
20 Saggio di diritto naturale, vol. 1, no. 650 ff. This philosopher seems to have paved the way for the positions of theologians who defend the cause of the moral person.
533. This subject of right has been called by various names. Von Savigny acknowledges that there is no Roman name, and adds that in the places of law these persons are so considered that one might call them fictitious. At the same time he himself attests the frequent use of the name moral person,21 to which he prefers the name juridical person, so that it may appear more clearly that the same exists only for juridical effects. They not rarely call it a civil person, whether they think it must be created by civil law, or by this name wish to signify a moral person which is recognized by the State.22
21 Observe that Pufendorf, De iure naturae, bk. 2, chap. 1, §§12-13, is sometimes wrongly adduced in this matter. For he calls both individual men and groups of men moral persons; but he distinguishes these as simple and composite: simple are individual men insofar as they discharge an office, have a status, etc.; composite are several individuals who are so joined by will that the will of the ruler is regarded as the will of all, etc.
22 Most Illustrious D. Waffelaert and others attribute another force to these names; cf. Scheys, corollary, p. 50.
In philosophical usage, every person is to be called moral and juridical, insofar as the rationale of a person follows upon the rationale of a moral being—that is, one endowed with intellect and free will—and in reality demands the possession of rights. Hence, if any person, by the very fact that it is called moral or juridical, is to be distinguished from others, this must be referred to some other signification of these words: for we predicate morally of things that which they are not truly or physically, when they differ so little from the strict or true rationale of the name that the disparity is neglected for moral use or in moral estimation;23 likewise, we call juridical whatever is ordered to a juridical end.
23 Cf. the third corollary.
Whether certain persons can thus elegantly be called moral or juridical will be determined in a corollary of the thesis.