Reason, Justice, and Abstraction: the Ethical Limits of Legal Personality in Hans Kelsen

Abstract

The problem of justice has been intrinsically linked to human reason since antiquity. In this sense, Plato, in The Republic, defines justice as the ability of each individual to perform their specific role within the polis. Later, in Politics, Aristotle states that man is by nature a political animal (ὁ ἄνθρωπος φύσει πολιτικὸν ζῷον), capable of discerning what is just. For both philosophers, the human being occupies the central place in any normative discussion. In modernity, however, the debate on justice has expanded. Within this context, Kelsen argues that both natural and legal persons are normative abstractions that should be treated without moral judgments. In this article, we will critically examine this abstraction, demonstrating that legal personality is a logical-normative construction without ontological autonomy and is, therefore, always dependent on ethical-political values. To achieve this objective, we will analyze selected passages from the works of Plato and Aristotle, articulating them with legal theories proposed by modern philosophers. Finally, we will present arguments supporting the idea that legal personality cannot constitute an autonomous subject of rights, dissociated from the ethical dimension that underlies it. However, Kelsen was not mistaken in stating not that the human being constitutes a fiction, but that both the natural person (or 'natural' person) and the legal entity (or 'moral' person) are abstract modes through which the law refers to them, individually in the first case, and transindividually in the second.