I would like to begin our blog series for this module with some reflections on the legal fiction writings, not only because they deal with a topic that is interesting in its own right but because they also exemplify the value of a humanities approach to law.
Having studied corporate governance I cannot help but be aware of the long running scholarly debate on what is possibly the most cited example of a legal fiction: the issue of separate legal corporate personality. Whether the company ‘really is’ legally separable from its members is to a certain extent still contested, with scholars on both sides adducing evidence in support of their views and entire theories of corporate governance built on the foundations of legal personality as a fiction.
What the standard corporate governance literature fails to consider, and humanities can help us to answer, is precisely why the debate exists at all. As Fuller states, maybe the issue is one of terminology only (p12). The debate as to the ‘reality’ of separate corporate legal personality could then be characterised as a dispute over the appropriateness of using the word ‘person’ in a particular context. The choice of a certain six letter word may therefore be at the foundation of a decades long scholarly argument. It is fascinating to consider how different legal history may have been if another word or phrase had been chosen: ‘entity’, perhaps, or the somewhat less elegant ‘right and duty bearing unit’ (p14).
Law and humanities here offers an alternative perspective that goes unnoticed by the standard scholarship, much of which is law and economics-based. This perspective is both unsettling (in that so much may be contingent on just one word) and refreshing.