This theory was advanced by Rudolph Ritter von Jhering (also Ihering). According to Jhering, the conception of corporate personality is important and is only an economical means by which we can simplify the coordination of legal issues. Therefore, if necessary, it is provided that the law should look behind the entity to discover the true state of affairs. It is also the same as the concept of lifting the corporate veil. Symbolist theory is often recognized for its ability to justify corporate personality on the basis of non-legal facts, but it has been repeatedly rejected by courts in common law jurisdictions because it denies the law by concluding that the only legal relationship that is firm and certain can be discovered by removing the “hooks” of the business and analyzing the relationships of those involved. [25] 19This suspicion could provoke dissatisfaction with Kurki`s theory and call for an alternative. However, one could insist that Kurki reach the positivists by allowing a potentially infinite number of legal platforms that could be introduced by the legislator (Kurki 2019: 128) in accordance with the needs of that legislator. As has already been discussed, these legal platforms, at least prima facie, do not seem to be based on natural characteristics – and that should be enough for a legal positivist to accept Kurki`s theory. My main concern with Chapter 4 of Kurki`s book, however, is that it remains controversial whether legal platforms can really be what the author thinks they are. As I noted at the beginning of the article, essentialism about species does not imply essentialism about belonging, while acceptance of the latter implies the former.
If Kurki insists that some entities cannot necessarily be legal entities, i.e. certain rights and obligations cannot be attributed to them (in order to be identified with a legal platform), this has the consequence (metaphysical or conceptual) that each legal platform has the characteristic that it cannot be linked to certain entities (at least those of which cannot be legal persons). And although seemingly marginal, this (limiting) characteristic is both natural and ingrained. Not all organizations have legal personality. For example, directors of a corporation, legislature or government agency are generally not legal entities because they do not have the ability to exercise legal rights independently of the corporation or political body to which they belong. June Sinclair also asserts that “the law is free to grant legal personality to any company it deems appropriate, thus enabling it to acquire rights and obligations on its own behalf.” 14It is interesting to note, however, that Kurki does not accept essentialism vis-à-vis the legal person as a kind. Specifically, it openly rejects essentialism via legal platforms as a set of rights and obligations. Since, as I explained above, different legal platforms are better identified with different types of legal entities, they could be considered themselves as species (and not as entities, i.e. members of that type).
Kurki admits that legal platforms can be “defined in existence” or “fixed” and does not speak of any necessary conditions limiting their scope. It seems to place legal platforms in normative categories, which, however, must be filled with natural units. In Italy, trade unions have legal personality, as stipulated in Article 39(4) of the Constitution: 15Although legal platforms are fixed and dependent on the mind, it is not that these platforms can be linked to anything. A way of being dependent on the mind is one thing; Another thing is to be a member of the species in question. Kurki diagnoses that many claims about the absence of limitations to the concept of legal entity stem from a fusion of these two different meanings of “legal person,” sometimes referring to normative and mind-dependent means, and sometimes to natural, mind-independent entities (see Kurki 2019:128). The personality enjoyed by the company is not inherent to it, but is granted by the State[16]. Because of the close connection established in that theory with respect to the relationship between legal personality and State power, it has been argued that the theory of fiction is similar to the theory of State sovereignty, also known as the theory of concession. 10While I consider that the concept of legal platform as a legal form identical to a legally defined set of certain legal interests (legal rights and burdens) is largely simple, Kurki`s concept of legal person (stricto sensu) requires further analysis. Although it seems that most of the time the author uses the term “legal entity” in reference to entities that are (allegedly) members of a legal platform, he also defines it as follows: “(…) Being a legal entity is an attribute of a non-legal person conferred by an effective legal system” (Kurki 2019: 133). Therefore, Kurki`s “legal entity” seems unclear whether it is a reference to an entity or an attribute. This ambiguity goes further as it provides an analogy that a legal entity “is very similar to the status of a piece of fiber as money in a legal system” (Kurki 2019:133). In doing so, he is clearly referring to the idea of Searlan`s state function (see Searle 2010), which he presented a few pages earlier.
Although Searle himself has generally been rather vague in his approach to species, his commentators have generally identified a status function with a (institutional) species. Consider the legal status of a child as opposed to, say, a non-human animal (in a typical contemporary legal system). First, the child has various rights of claim “against the world” that primarily protect the child from physical and psychological harm.36 The scope and severity of these protections are much greater than those afforded to animals. Sensible adults also have such rights, although they may have the right to waive them in certain circumstances.