Through the course of the week and discussions that have taken place during the LW928 module, we have tried to grasp and understand what the legal fiction is and what it entails. I have found that a certain example of a legal fiction in particular could be linked to a specific area of law that I’m extremely interested in, which is legal personhood.
Indeed, the fact that a corporation is seen as a ‘person’ in law is a very well established principle that offers practicality and opportunity to both a corporation and the institutions of the law. The aspect that interests me is how this very legal fiction is the argument that environmental lawyers and animal activist and thinkers put forward when ideas of giving natural entities legal personhood or giving animals legal personhood are debated.
If we agree that a corporation is a person, then why can’t we grant legal personhood to a river? And what would it mean to do so?
Eric Posner’s article in particular caught my attention. His very pragmatic and practical explanation of legal personhood and the limits of law gives, in my opinion, a false account of what the law can do, in the sense of meaning. When he writes ‘In none of these cases was a judge fooled into thinking that an animal possesses all the rights of human beings. The lawyers bringing them were simply ensuring that a judicial remedy was available to address the harm that Congress sought to fix’, he reduces the law as a tool without recognizing its power.
While granting legal personhood to a river or a tree, as it as been done in recent legal history, might be seen as nothing more than one ‘judicial remedy’ amongst others, it holds a certain meaning. It addresses contemporary environmental and political issues, it recognizes the value of Nature and the need to protect it, it gives a space and a voice to certain indigenous communities for whom this river or tree might be something important. Not to mention, it opens up a new area of law that seemed off-limit before.
Legal fictions hold a practical purpose but it would be too restricting to ignore the situations they can produce and the voids they can fill.
 Eric Posner, ‘Stop Fussing Over Personhood’ (Slate, 11 December 2013) < https://slate.com/news-and-politics/2013/12/personhood-for-corporations-and-chimpanzees-is-an-essential-legal-fiction.html >