Private Law Theory

ABSTRACT
Contemporary legal systems use the word ‘person’ for two different operations. The first recognizes every human being as a subject of law. The second attributes legal personality to entities such as corporations, foundations, rivers, religious idols and, prospectively, software, because doing so serves identifiable legal functions. Scholarship on legal personhood tends to treat both operations as instances of one technical status, while scholarship on the foundations of rights tends to treat the human person as a moral given whose legal form needs no separate analysis. This article addresses the resulting gap. It asks whether positive law itself, and not moral philosophy alone, distinguishes the recognition of human persons from the attribution of personality to non-humans, and what follows if it does. Through doctrinal, jurisprudential and comparative analysis of international instruments and of decisions and legislation from Brazil, Germany, the United States, the European and inter-American human-rights systems, and several jurisdictions that have recognized nature as a rights-holder, the article defends an asymmetry thesis: recognition of human persons is constitutive, non-instrumental and, in the principal universal and inter-American instruments, non-derogable, whereas attribution of personality to non-humans is purposive, instrumental and revisable. Two interpretive rules follow, which the article calls non-derivation and non-subordination. The thesis is tested against the strongest deflationary objection, which treats all legal personality as an equally artificial construct, and conditions under which the thesis would fail are identified. The implications concern judicial reasoning at the boundaries of life and capacity, proposals for artificial-intelligence personality, and rights-of-nature litigation. The contribution is doctrinal and conceptual; it does not rest on original empirical research.

Salomão De Oliveira, Northon, The Human Person in Contemporary Legal Theory: From Human Being to Legal Person and the Foundations of Rights (October 1, 2026).