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  • Legal exclusionism [Elektronski vir] : legal personhood between the erasure and the rule of law
    Žgur, Matija
    Legal personhood is the legal status that endows human beings (and certain non-human entities) with the capacity to participate, actively or passively, in the generality of legal relations and to ... perform acts-in-the-law. It is a fundamental legal status, constitutive of the concept of law itself as well as a threshold status, distinguishing subjects of law from legal objects. Legal personhood is today understood as a quasi-natural status, attaching to every human being unconditionally and inalienably from birth until death. It is argued that full deprivation of legal personhood, as in the case of antebellum slavery, is today legally impossible. This thesis examines the notion of legal personhood (of human beings) and, opposite to the former claim, proposes that even today human beings can be spoiled of legal personhood. This phenomenon is called legal exclusionism and it is argued that legal personhood can be deprived from human individuals in different ways, to a different degree and, consequently, to a different effect. This thesis has three parts. In Part I, the notions of legal status and legal personhood are analysed, respectively. For the purposes of this thesis, legal status is understood as an intermediary legal term (a tû- tû) connecting a set of access criteria with a set of normative consequences (entitlements). It is further claimed that a given legal status (its content or the set of normative consequences stemming from the status) is partially determined by an underlying reason or interest for having that status. Legal personhood is then treated as such a legal status. It is proposed that the reason underlying its existence is the very need for having subjects of law, entities able to act in the legal sphere, to perform acts with legal consequences and enter into legal relations. Various theories of legal personhood are then examined and, finally, one proposal for expanding the rigid "persons-things" dualism (by introducing a third conceptual category of entities in law) is briefly presented. The central object of investigation, examined in Part II, is the so-called Erasure % an administrative cancellation of some 25,000 individuals from the registry of permanent residents, conducted by Slovenian authorities in 1992 following Sloveniaʹs separation from the SFRY. The Erasure, affecting those non-Slovenian residents who did not wish to (or were unable to) obtain Slovenian citizenship, left the affected individuals without political, social and economic rights in Slovenia, in a condition best described as rightlessness. A reconstruction of the relevant legal sources (official declarations, constitutional acts, legislation etc.) that underlay and determined the legal frame of the Erasure is provided and it is argued that the Slovenian constitutional order is permeated with a nationalistic component. This distinct quality of the legal order was a core element of the Erasure. Thereafter, the consequences of the Erasure for the legal condition of the affected in general and, in specific, for their status as persons in law is also looked at. In Part III, the aforementioned legal sources are submitted to an analysis from the criteria of formal legality (formal Rule of Law), as first proposed by Lon Fuller. Particular attention is given to the condition of congruence and, more generally, to the organizational and operational principles underlying the work of the State administrative bodies. It is shown that the relevant legal acts in the analysed case were produced in violation of most of the formal Rule of Law demands, such as generality, publicity, prospectivity etc. On the other hand, the actions of the administrative bodies were perfectly in line with the requirements of the superior organs - the administrative officials followed the secret internal orders of their superiors to the letter, without expressing any doubt whatsoever as to their legality. It was this attitude of blind compliance that made the Erasure such an efficient operation. The conducted analysis does not allow us to conclude that legal personhood can be deprived in toto. Nevertheless, the examined case demonstrates that legal personhood can indeed be manipulated with, i.e. limited, diminished, hollowed out etc. Several different legal sources and methods have been exposed that enable depriving human beings (deliberately or not, directly or indirectly) from different incidents of legal personhood. Analyses of other examples may reveal other methods for depriving legal personhood and the creation of different types of legal semi-persons (legal chimeras). This thesis points to the possibility of employing the same analytical tools for the study of other historic and contemporary cases of legal exclusion. It is thought that a comparative analysis of several such cases would bring to the surface some common characteristics of all cases of legal exclusionism, past and present alike. This thesis demonstrates that the lawʹs status-granting, personhood-creating quality also has its flip side: law can just as well be used for status-depriving, personhood-manipulating purposes. While legal exclusionism is therefore in abstracto part of lawʹs nature, particular cases of legal exclusion can be avoided or, at least, mitigated if more attention is given to the quality of law-making and the manner of its application by law-applying bodies.
    Vrsta gradiva - disertacija ; neleposlovje za odrasle
    Založništvo in izdelava - Palermo : Università degli studi di Palermo ; Girona : Universitat de Girona, 2017
    Jezik - angleški
    COBISS.SI-ID - 31952899

    Povezava(-e):

    https://iris.unipa.it/retrieve/handle/10447/240770/449405/Zgur_Legal%20Exclusionism_PhD_final.pdf

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