Abstrakt
The mode of solving legal issues could be derived from the positive law or could base upon human experience and pragmatic thinking. An example of the second mode of thinking may be that of Margaret Jane Radin in the paper entitled "Property and personhood".
However, her argument that intuitively shared consensus would be the reason why particular property, such as a house, should belong to a personhood, was subject to substantial criticism by Stephen J. Schnably.
Although Radin and Schnably significantly diverge in their response to the question of how the personhood of an individual should be approached they share the common starting point, namely that it is an individual as a real human whose actual existence gives rise to normative conclusions with respect to his or her position within the law as a person. In my opinion such approach is wrong: basic legal concepts, such as a person in law, should not be constructed upon practical human experience.
Legal concepts are abstract theoretical constructions which are not detectable by senses. This is why my paper attempts to identify consequences of deriving normative conclusions from the personhood of a human.
In my paper I will argue why I believe that the starting point for analysing a person should not be the real world where real people from flesh and bones exist, but the law as a system of legal norms. The difference between a human and a person is that the former exists in the real word (being - sein in German) whilst the latter applies to the normative world of what should be (sollen in German).
As a result, a person should not be perceived as a human. If we intend to identify legal order which is valid we cannot identify an individual existing in reality at the same time.