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Lookup NU author(s): Dr Joshua JowittORCiD
This work is licensed under a Creative Commons Attribution 4.0 International License (CC BY 4.0).
© 2026 The Author(s). Published by Informa UK Limited, trading as Taylor & Francis Group. The core claim of constitutivist ethics is that moral principles are necessarily present within the concept of what it means to be an agent. Though recent publications have attempted to apply this claim to issues of contemporary legal theory, there has been no comprehensive attempt to develop an account of legal status grounded in the constitutivist position. The purpose of this article is to fill that gap, with emphasis on the role of the legislator. The argument will proceed in three parts, the first of which will demonstrate the need for such an account. It will be suggested that existing approaches see recognition of legal personality as a social fact separable from moral considerations, and thus assume a legal positivist understanding of legal validity. Part two will then use Gewirthian theory to demonstrate why such an approach is unacceptable to the constitutivist, before offering an alternative built around the maxim that agency is a sufficient, though not necessary condition for the ascription of legal personality in any legal system where this status is an instrumentally necessary pre-requisite for legal rights-bearing. From this position, legislators faced with the task of ascribing legal personality must work within the following two-tiered approach: (1) Core legal persons: beings/entities considered moral patients by the constitutivist, whose legal personality legislators have a positive obligation to recognise; and (2) Penumbral legal persons: beings/entities not considered moral patients by the constitutivist, and the recognition of whose legal personality remains at the discretion of legal officials. The final part of this chapter will introduce case studies to explore the practical workability of the mind-independent aspect of legal personality that this account requires us to accept.
Author(s): Jowitt J
Publication type: Article
Publication status: Published
Journal: Theory and Practice of Legislation
Year: 2026
Pages: Epub ahead of print
Online publication date: 24/04/2026
Acceptance date: 02/04/2018
Date deposited: 05/05/2026
ISSN (print): 2050-8840
ISSN (electronic): 2050-8859
Publisher: Taylor and Francis Ltd
URL: https://doi.org/10.1080/20508840.2026.2658416
DOI: 10.1080/20508840.2026.2658416
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