Identity of legal institutions
The office of the President of the Republic of Poland is an example of a legal institution. It was introduced by the March Constitution over a hundred years ago (1921) and is still recognized by the current Polish constitution (1997). There are significant differences regarding the office as described in both constitutions (e.g. in 1922 the first President was chosen by the National Assembly whereas under the current constitution, the President is elected directly by a popular vote). One may argue that, in fact, both constitutions introduced different legal institutions that share the name. There are, however, strong intuitions that there is some continuity in the existence of the office of the President of the Republic of Poland; i.e. that it preserves its identity over/across time.
One may compare this case with another class of problems: is a legal institution of ‘ownership’ in English law somewhat identical with e.g. institutions of ‘własność’ in Polish law, ‘propriedade’ in Portuguese law, or ‘所 有权’ in Chinese law? Is there one universal (transnational) institution of Ownership that unifies these four different conceptions at a time? A similar problem can be diagnosed with the institution of “legal personhood” across many legal systems; also at a national level, however, one can ask if recognition of environmental entities (like Whanganui river in New Zealand) as legal persons means that their personhood status is identical with the legal status of corporations or natural persons.
All these illustrative cases point to a more general research problem: whether apparent two entities can, in fact, be counted as one: one office of the President of the Republic of Poland, one universal institution of Ownership, and one general institution of legal personhood. Inquiry into that problem requires that. research whether existing theories of identity, especially recent ones that focus on the persistence of personal identity through time, can be easily generalized to legal, i.e. institutional, entities.
Solving this problem is fundamental for our better understanding of the efficiency of the general legal discourse, namely the way legal scholars talk and apply legal concepts in their theoretical endeavours and everyday practise. The question addresses the problem of how legal concepts applied within a legal system of a given country are adequate for talking meaningfully with lawyers representing different legal traditions and cultures. E.g. the project aims to analyse certain problems with legal identity of Cape Verde: its special diglossic situation poses an interesting challenge to any theory of synchronic and diachronic identity of legal institutions. In order to do this, the project will be conducted in close cooperation with researchers from University of Lisbon.