Abstract: The article
points out that the fiction theory of legal personality which was adopted to
form legal personality of joint-stock company in Vietnam, is fundamentally
incompatible with Marx–Engels philosophy – the foundation of the State and law
in Vietnam. By Marx’s critical method in his own work which criticized Hegel
idealism, the article highlights the peculiar feature of the idealist -
“mysticism” in the fiction theory of legal personality. Its common outcome is
unrealistic. To prove the unrealistic of the theory, this article focus on the
practical realities of the joint-stock company. Hence, this article also
proposes suggestions to improve the problems.
Keywords: fiction theory, legal personality,
joint-stock company, idealism, materialism
1. Introduction
The legal status of an organization (legal person) is a foundational concept in Western law,[2] which includes the legal status of companies. This issue has been studied and debated by scholars for decades.[3] Numerous theories on capital companies have been developed in the United States,[4] but generally, the most influential theories are the fictional entity theory of legal personality (juristic school) and the real entity theory of legal personality (realist school).[5] The doctrines provided by these theories mainly concern the origins of legal personality and its general conditions and characteristics, including the legal capacity of legal persons, which is applied uniformly to all types of legal persons, including public legal persons such as the State and private legal persons. The reason is that studies on the real legal person by Otto von Gierke and the fictional legal person by Friedrich Carl von Savigny did not clearly distinguish between these types. Examples used to illustrate the general characteristics of legal persons come from all types of associations, guilds, ranging from religious organizations and trade associations to manorial estates and city councils, without clear differentiation between the public and private sectors. Therefore, when Viet Nam referenced and adopted these doctrines from abroad,[6] it simultaneously adopted these general characteristics for all organizations recognized as legal persons. Accordingly, when studying the legal personality of joint stock companies (JSCs), this article must use comparative analysis with corresponding objects in Viet Nam, similar to the examples used by scholars in the original studies, specifically in parts concerning city councils, state agencies, and the State itself, in order to clarify the essence of the issue.
A joint stock company (JSC) is classified as a commercial legal person (Article 75, Civil Code 2015 of Viet Nam).[7] Some opinions hold that the legal person reflected in the Civil Code 2015 of Viet Nam (CC 2015) is analogous to the real entity theory of legal personality.[8] However, because both theories were simultaneously adopted, some core doctrines of the fictional legal person theory still exist in the current Vietnamese legal doctrine on legal persons without clear differentiation from the real entity theory, although these two theories are fundamentally distinct. In practice, the elements of the fictional legal person theory exhibit inconsistencies with reality, such as in the case of JSCs, and conflict with other doctrines of the real legal person adopted by Viet Nam as well as the relevant provisions on JSCs in the Law on Enterprises of Viet Nam.
Therefore, this article contributes to a concise and systematic review of the fictional legal person theory. It identifies theoretical and practical contradictions in its application to JSCs. Simultaneously, from the materialist perspective of Marx and Engels, the article points out that the problem originates from erroneous views shaped by idealism inherent in the fictional legal person theory. Accordingly, recommendations are proposed to improve this situation.
2. Philosophy school - Dominant ideological foundation in Viet Nam
The dominant ideological foundation of Viet Nam’s legal system is historical materialism as presented by Marx and Engels in The German Ideology (1845–1846).[9] Accordingly, law under historical materialism is a component of the “superstructure,” formed from the economic “base.”[10] Furthermore, law is neither a neutral nor autonomous phenomenon but reflects the interests of the ruling class. Law is determined by the relations of production and serves to maintain and consolidate the position of the class within a stratified society.[11] Consequently, Marx argued that law cannot be understood without analyzing the relations of production and the fundamental economic conditions of society.[12] Changes in the economic base inevitably lead to changes in law.[13] However, Marx also acknowledged that law can exert a reverse influence on the economic base, albeit in a dependent and limited manner.[14] Therefore, analyzing the development of law has the task of revealing the class interests embedded therein.[15] Accordingly, the legal person under historical materialism must also be a category of the “superstructure,” formed from the economic “base” and capable of revealing the group interests contained within it.
Moreover, Marx and Engels pointed out that a common feature of products of the idealist school is “mysticism,” and its inevitable consequence is erroneous and impractical viewpoints.[16] Through Marx’s critical method applied to Hegel’s philosophy of rights, this article elucidates the “mystical” element in the theory of the fictional legal person and demonstrates its impracticality and error through the actual practice of joint stock companies.
3 . Overview of the legal personality of joint stock companies in Viet Nam
The theory regarding the legal personality of companies in Viet Nam is considered to have originated from the theory of the fictitious legal person. It was later supplemented by the theory of the real legal person.[17] However, research conducted in Viet Nam shows that the theoretical views on corporate legal personality are diverse and inconsistent among scholars. Some scholars clearly adhere to the real legal person school,[18] while others maintain the theoretical perspectives of the fictitious legal person theory and incorporate certain arguments from the real legal person theory.[19] Therefore, it can be seen that the theoretical views forming the concept of the legal personality of joint stock companies in Viet Nam today are derived from both theories and can be summarized as follows:
Regarding origin,
a legal person may be created by the initiative of individuals or by other legal persons.[20] The point at which a legal person is established under the law represents the transfer of rights and obligations from the founders to the legal person.[21] This recognizes that formation and operation are based on the voluntary agreement among members.[22] In other words, this perspective acknowledges the contractual relationship among members of a joint stock company.
Regarding will, organizational structure, assets, and participation in legal relations, a legal person is affirmed not to be a simple sum of individuals nor a disjointed association of co-owners, but rather a unified entity, independent and not subject to the will of the members or any other party.[23]
However, the theories in these two schools show fundamental and clear differences, which can be summarized as follows:
First is the theory of the fictitious legal persons. This theory represents the earliest foundational model regarding the legal personality of joint-stock companies (JSCs). Its origin stems from Roman law, and the construction of an organization’s legal personality was carried out by simulating the legal position of a natural person (Roman legal personality).[24] Since Roman legal personality (including the legal personality of natural persons) could not be divided or transferred,[25] the only solution was to create a legal person. Hence, it is referred to as an artificial assumption or fictitious legal person.[26] Simultaneously, the origin, purpose, legal rights, and obligations of the organization were created by humans or by law. Accordingly, the content of the will, legal purpose, rights, and obligations of the legal person was also limited and fixed according to the initial legal design.[27] Therefore, it is characterized by absolute independence regarding the will, purpose, property, and property rights of the legal person.[28]
Next is the theory of real legal persons.
This theory represents the model of legal personality under German law (German legal personality), constructed based on the pre-existing framework of German law with the principle of “unity in diversity” and the selectively adapted “abstraction” from Roman law.[29] The distinction of German legal personality is that it does not possess absolute independence as in Roman law or fictitious legal persons; instead, it has a “conditional and limited” independence[30] (relative independence) because the German personality (the legal rights and obligations of a natural person) can be divided and transferred to an organization.[31] Moreover, a real legal person is not a creation of law or humans but an organization formed in human social life and recognized by law. This means that organizations exist as social phenomena, and the law must acknowledge them in the same manner as it recognizes the rights and obligations of natural persons. Therefore, the origin, will, purpose, rights, and legal obligations of a legal person all derive from humans and must operate through humans, rather than being independently created and developed as in the case of fictitious legal persons.[32]
From this, it can be seen that the hybrid viewpoint on the legal personality of joint-stock companies (JSCs) adopted in Viet Nam simultaneously incorporates the absolute independence of fictitious legal persons, while also allowing the transfer of rights and obligations from natural persons to the legal person, along with the relationships among members as articulated in the theory of real legal persons, even though these two perspectives are fundamentally contradictory.[33]
As presented above, the theory on the legal personality of JSCs in Viet Nam is considered to have shifted from fictitious legal persons to real legal persons. The explanation for this shift lies in the recognition of partnerships as legal persons. A partnership is not a legal person created by law according to an initial design; rather, it is formed based on its activities and impact on third parties in practice, and the law is compelled to recognize its legal personality.[34] In other words, the partnership serves as an empirical verification for the theory concerning the origin of legal personality. Accordingly, it demonstrates the validity of the theory of real legal persons and, conversely, highlights the deviation of the theory of fictitious legal persons. Recognizing the inappropriateness of the fictitious legal person theory, scholars who support the real legal person perspective have completely eliminated the feature of absolute independence, manifested by rejecting any views denying the will or rights of members.[35] Instead, only the independence of the legal person is recognized for the purposes of: (i) distinguishing it from the legal personality of founding members; and (ii) providing a basis for constructing and interpreting regulations on the assets and legal liabilities of the legal person.[36] This reflects the alignment with the relatively independent characteristic of real legal persons.
This situation arises due to the strong influence of the fictitious legal person theory. It was the first theoretical foundation for the independent characteristic of JSC legal persons and served as the premise for the theory of limited liability of legal persons. Even the real legal person theory incorporates, with adjustments, elements of the fictitious legal person theory to establish unity and conditional, limited independence for German legal persons. Therefore, not only in Viet Nam, but also in the United States, many scholars support both the fictitious and real legal person theories.[37] Accordingly, acknowledging the coexistence of these two theories is common and can be easily found in various scholarly works.
4. General overview of the theory of fictitious legal persons
TThe theory of fictitious legal persons regarding the legal personality of organizations (including joint-stock companies) was fully elaborated by Friedrich Carl von Savigny in System des heutigen Römischen Rechts, Volume 2, in 1840.[38] Savigny is known as the leader of the historical school of legal philosophy[39] and as the father of the “Volksgeist” theory (the theory of the national spirit[40] or the will of the nation[41])[42], which was presented in Volume 1 of the same work. According to Savigny, the origin of law lies in the “national spirit,” which “cannot be equated with any particular entity, or with the conscious decisions and actions of specific individuals.”[43] Indeed, he himself admitted that the theory on the origin of law is beyond empirical verification and resembles the social contract theory.[44] Accordingly, the law was termed “Volksrecht” (“national law”). However, law is not created by the individual will of the members of the nation; rather, it is produced by the Volksgeist – the collective consciousness of the nation – which exists and operates within each individual and has created the law in force.[45] From this, the development of law follows an inherent law, as Savigny asserted that law develops organically within national life and “this development also follows the same law of formation from inherent strength and needs, independent of chance and individual will.”[46] This perspective explains the notion that law itself is the creator of legal persons and the characteristics of legal persons in the theory of fictitious legal persons, as Savigny’s law is considered to have its own will. Hence, some view Savigny as a jurist of the idealist-historical school, in which the moral history of a nation is the decisive criterion for determining the “spirit” of the law (spirit of the laws).[47] Indeed, Savigny’s notion of the “national spirit” corresponds entirely with the definition and features of objective idealism.[48] One such feature is “mysticism”: specifically, the law is perceived to have its own will (“national will”), separate from concrete objects, phenomena, and individuals, with the capacity for autonomous development.[49] Here, through one of Marx’s critical perspectives, it is evident that the existence of law in the practical life of human society is not manifested (or described) as its true nature but is abstracted into the “national spirit” as described above.[50] More precisely, what is termed the national spirit is the collective will of the members of a community and is an attribute[51] of human beings. However, Savigny “objectified”[52] this attribute into an independent subject[53], separate from its original subject, the community members, and called it the “national spirit.” It possesses universality and the capacity for autonomous development. Therefore, it can be affirmed that Savigny’s “national spirit” is a “mystical substance.”[54] At the same time, from Marx’s perspective, it can be affirmed that law, as a phenomenon observable in class-based society and empirically verifiable, “does not possess its own will” nor the capacity to “develop from itself.”[55] Thus, essentially, Savigny’s theory of fictitious legal persons is a product derived from the foundation of the idealist-historical philosophical school.
SThe formation of fictitious legal persons by Savigny was strongly influenced by, and originated from, the legal persons of Roman law.[56] According to Savigny and Roman law, only individual human beings possess legal capacity.[57] Therefore, legal personality is synonymous with personhood – Persönlichkeit – whereby the legal personality of associations (including companies) is the result of the “personification” (Personificirung) of organizations. This method of construction was widely accepted. Accordingly, the legal personality of organizations appeared in the law as an artificial assumption or a legal fiction[58] and was termed the “legal person” – “juristische Person.”[59] This is because organizations cannot possess legal capacity by themselves and cannot receive a transfer of legal capacity from their members, as these members are considered to have “no inherent connection with it.”[60] Consequently, the essential characteristics of Roman legal personality form the foundation of fictitious legal persons and can be summarized as follows:[61]
TFirst, the essence of Roman legal personality lies in the individual will recognized by law, which constitutes a willful power not limited within private law. Accordingly, Roman personhood (römische Persönlichkeit) is absolute. Thus, “a will dependent upon the will of another is no longer a will.”[62]
Second, Roman legal personality is indivisible. It cannot separate any part of itself without self-destruction and therefore cannot be a part or component of another legal personality.
Third, Roman legal personality is non-transferable.
The characteristics outlined above contributed to the formation of Savigny’s fictitious legal person, whereby a legal person is defined as: “a legal person […] is not a real entity in nature, but a subject endowed with a will recognized by law.”[63] In addition to the aforementioned characteristics, Savigny’s legal persons also encompass the following specific issues:
Regarding legal capacity, an organization possesses independent legal capacity because it is an artificial subject recognized through the “personification” by law. Therefore, its existence is acknowledged solely for certain legal purposes.[64] Furthermore, the law explicitly stipulates cases in which it is necessary to participate in property transactions, including the capacity to conclude contracts, transfer ownership, and so forth.[65] At the same time, it has the capacity to participate in litigation as both plaintiff and defendant.[66]
Concerning the origin of legal persons, Savigny argued that some legal persons are natural or necessary existences, whereas others are artificial or voluntary creations. This includes social communities (public legal persons) as well as associations and companies, which are legal persons granted specific rights.[67] Accordingly, Savigny’s theory of fictitious legal persons is also part of the history of concession theory.[68] Since ancient Roman times, there were associations of various types, particularly religious and professional guilds. However, at that point, there was no urgent need to develop the concept of legal personality.[69] When state territories expanded, the concept of legal persons emerged due to the necessity of establishing a legal status for colonies, which required property and the ability to own property, and thereby participate in social relations that exposed them to litigation. Consequently, the concept of legal personality was applied and developed to a certain extent. Following the colonies, associations of priests and craftsmen also began to be regarded as legal persons.[70]
Regarding property, according to Savigny, the essence of a legal person is characterized by its “capacity to own property.”[71] In this respect, the property has the ability to expand and operate autonomously through the legal person.[72]
Regarding will, Savigny affirmed that the rights over the property of a legal person do not arise spontaneously but only through legal acts. However, legal acts can only be performed by individuals with consciousness and volition, that is, concrete human beings.[73] Here emerges an internal contradiction of a subject possessing property capacity but unable to fulfill the necessary conditions to exercise such rights independently.[74] Savigny provided an illustrative example and sought to demonstrate that there is a complete separation between the will of the legal person and the will of its members. Using the example of the relationship between minors or incapacitated persons and their guardians, Savigny affirmed that the collective members of the legal person are entirely distinct from the legal person itself. At the same time, the representation of the legal person resides in the authority artificially established for an organized community, rather than in its current members.[75] In other words, Savigny maintained that the will and actions of the legal person are shaped based on pre-established legal rights and obligations for a specific legal purpose, rather than being derived from the will of the members.
In addition, Savigny clearly expressed disagreement with the majority-will principle (majority vote) in Roman law regarding associations.[76] According to Savigny, the fundamental principle is that all members constitute a true unified entity. On this basis, the majority is merely a necessary natural variant. If separated from this unity, the opinion of the majority should only be recognized in cases where most members participate; then the will of that meeting carries legal significance.[77] Consequently, Savigny supported the absolute equality of all members.[78]
In summary, regarding the will of the legal person according to Savigny, there are three main points: first, the legal person possesses an absolutely independent will of its own; second, it is bound by the initial artificial establishment and therefore is not subject to the free will of its members; third, within the scope of that will, the decisions of the members must constitute a true unity. Consequently, members may change continuously without affecting the nature or unity of the association.[79] This also explains Savigny’s view that “the association itself is a continuous, perpetual existence, regardless of the change of individuals.”[80]
Regarding the organizational structure of the legal person, Savigny opposed the view that disregards the organs or treats them merely as instruments dependent on the administrative apparatus.[81] Savigny cited the example of city councils in Germany. According to him, the councils acted as representative bodies for the citizens. Therefore, actual authority did not lie with all citizens as members but only with the members of the council.[82] Consequently, the organs are the entities where real power resides. Savigny thus affirmed that the view that the entirety of members is the sole entity possessing full authority is incorrect.[83]
5 . Savigny's theory of the fictitious legal person in relation to Marx-Engels philosophy and the practice of joint-stock companies in Viet Nam
Although Savigny acknowledged that some legal persons exist due to practical needs while others are natural or artificial, ultimately he consistently maintained that the origin and all characteristics of legal persons derive from the creation of law (fictitious legal person). This viewpoint has also been adopted in Viet Nam. However, it must be recognized that determining the origin of a legal person carries significant importance: first, it allows explanation of the need to establish ownership rights of members (albeit indirectly) over their contributions to the legal person; second, it enables explanation of the origin of the legal person’s legal purpose, rights, and obligations; finally, it serves as the starting point for determining the development patterns of the social phenomenon of legal persons. For the fictitious legal person, the origin used by Savigny was illustrated with religious associations. According to this, the origin of the legal person in religious associations was presented as arising from the need to hold property, leading to the establishment of funds by churches, contributed by parishioners, and used for the purpose of serving the divine. This argument formed the basis for establishing the legal person’s absolute independent ownership of assets, without recognizing the ownership rights (even indirectly) of the members. The donors themselves had no need to assert rights or control over the fund, nor any profit motive requiring rights over their contributions. Consequently, the legal person’s assets were not subject to individual oversight or control as in a joint-stock company, but were governed solely by the will of the priest. In contrast, in modern joint-stock companies, individuals collectively invest in business under a legal person for profit purposes. They require the establishment of ownership rights, even indirectly, over their contributions to the legal person. Moreover, they need to supervise and influence the use of their investment. Therefore, it can be concluded that Savigny’s argument regarding the origin of the legal person is not suitable for legal persons in the form of joint-stock companies.
The underlying cause of this issue lies in the fact that the idealist philosophers - in this case, Savigny in particular - often fail to recognize the origin of the “practical needs” or the creative motivation of human beings. According to Marx and Engels, “the driving force of human activity in the course of history is need and interest, above all material need”.[85] Accordingly, the practical needs and creative motivation of human beings are formed through two aspects: first, the objective material conditions that exist independently of human consciousness (objective dialectics); and second, the reflection of those material conditions in the human mind (subjective dialectics)[86]
This means that Savigny did not acknowledge the significance of the objective material conditions and their reflection in the human brain in forming human needs and creativity; rather, he regarded these needs and creative forces as products of human consciousness itself - originating from the human mind - and thereby generating the material world. Consequently, this legal theory lacks the flexibility to adapt to the diversity of real-world circumstances. If it were connected to the objective practical needs that give rise to organizations recognized as legal persons, such legal persons would likewise possess the ability to evolve flexibly according to those very needs and motivations in practice. For example, this would include the need to establish or not to establish (even indirectly) ownership rights over the assets contributed to the legal person by its members. Furthermore, if linked with the objective conditions of formation, it would also provide an explanatory basis for: (i) the differing legal purposes, rights, and obligations of various types of legal persons; and (ii) the flexible transformation of these purposes, rights, and obligations in accordance with the conditions and needs of practice through different stages of development.
Furthermore, regarding stock companies (“joint-stock companies”), from Marx’s perspective, they were formed due to “the enormous expansion of the scale of production and enterprise, which individual capitals could not achieve on their own”[87].
In other words, the formation of joint-stock companies stems from the material needs of individual capitalists, specifically the need to expand the scale of production and business. Consequently, the view that the purpose - including the content of the will, legal rights, and obligations of the legal person - is created by law represents an idealist perspective, because it does not link the formation of these elements to the conditions of social practice. Recognizing the creation of the legal person’s characteristics by law gives the legal person the ability to exist continuously and indefinitely from its origin, without waiting for subsequent arguments regarding the absolute independence of its will, organizational structure, or assets[88]. This, however, is clearly a mistaken view. If the existence of a legal person (including its characteristics) were tied to practical needs and the objective conditions of its formation, it would cease to exist when those conditions no longer apply. For example, the state under communism is not an immortal entity; it will cease to exist when the conditions giving rise to the state disappear[89]. herefore, it is evident that the theory of the fictitious legal person is incompatible with the state and state agencies in Viet Nam. Although the Civil Code 2015 does not recognize the state as a legal person, the list of non-commercial legal persons still includes state agencies, the people’s armed forces, and political organizations (Article 76 of the Code). Similarly, the joint-stock company represents a model of social capital. More precisely, Marx views it as a “transitional phase,” transforming from individual capital into social capital[91]. Accordingly, its development has two possibilities: either ceasing to exist, or transforming into a new type when society reaches the level of socialist production. In either case, it cannot exist in its present original form. Therefore, commercial organizations such as joint-stock companies cannot be immortal. In other words, recognizing the origin of legal personality according to Savigny’s perspective contradicts Viet Nam’s socialist orientation, as it denies the possibility of dissolution or transformation according to economic conditions of all organizations recognized as legal persons. It follows that the theory of the origin of the fictitious legal person is incompatible with the viewpoint of historical materialism and with objective social practice. Moreover, this theory does not provide a framework for addressing issues related to the origin (conditions) of the formation of legal persons, such as the initial emergence of a joint-stock company to resolve the relationships between its members and the company. Likewise, it does not allow observation of the developmental laws of legal persons, as it has no starting point in real-life practice and therefore no endpoint. From the Marx-Engels perspective, commonly observed social phenomena such as legal persons must be the product of the preceding intercourse of human individuals. Hence, legal persons are not organizations formed naturally, nor merely creations of humans or the law; they can only exist as organizations that are legal persons created by practical human needs. These needs, in turn, are shaped by the influence of material conditions in the objective world.
Regarding the will of the legal person, as presented above, according to Savigny and Roman law, the will of a legal person is a form of absolute independent will, entirely separate from the will of its members, thereby denying the will of the members. Savigny himself acknowledged that the property rights of the legal person cannot arise spontaneously but can only be established through legal acts performed by individuals with consciousness and will, i.e., specific human beings.[93] So why does Savigny deny the will of the members? He explains that the essence of corporations (“Corporationen”) is that they are subjects of rights, and accordingly, these rights do not reside in the individual members (or even collectively in the members) but rather in the “ideal whole” (“Idealen Ganzen”).[94] At first glance, this seems reasonable because the rights of the legal person are clearly distinguished from those of its members. However, the problem lies in the fact that, in the case of a fictitious legal person, this distinction is “absolutized.” The collection of individual persons is considered entirely separate and fundamentally different from the so-called “whole” or “community”[95], and no relationship exists between the members and the whole. Consequently, this produces the absolute independent will and authority of the legal person.
This viewpoint is completely inconsistent with the philosophical foundation of Marx and Engels. The reason is that it is a clear manifestation of “mysticism.” Specifically, the will of the legal person – the “collective” will – is, in essence, the common will of its members. According to Marxism –Leninism, consciousness, or more precisely, awareness, has long been affirmed as follows:
Consciousness is only an attribute of matter, but not of all forms of matter; it is an attribute of a form of living matter with the highest level of organization, namely the human brain. […] Consciousness cannot be separated from the brain. Any conception that separates or identifies consciousness with the human brain leads to idealism, mysticism, or vulgar materialism[96].
Thus, this “common will” is originally merely an “attribute” of the members. However, idealist theorists “objectified” this common will into what is called the “collective” will, separating it from its real subjects – the members themselves. Consequently, the “collective” will became regarded as a real subject and assumed to be absolutely independent – a characteristic that in reality only belongs to its actual subjects, i.e., the members. he result of transforming the “collective” will into a subject is that the real subjects – the members – become mere components of this “collective” will. At the same time, it requires a bearer, which is precisely the fictitious legal person.[97] At this point, it can be seen that the absolute independent will of the legal person is essentially a “mystical substance.” Even Savigny himself referred to the legal person as an “ideal entity” (“Ideale Wesen”).[98]
This confirms that, in Savigny’s concept, the legal person is a vessel for the “mystical substance.” This also explains why the will of the legal person originates from the will of the members but ultimately denies the members’ own will. In Marxist terms, this illustrates the absence of any “bridge” from the will of the legal person (a form of universal will) to the concrete will of the members.[99] Marx affirmed that this is a feature of “divided identity” and termed it “alienation in unity” in Hegel philosophy (representing the idealist school).[100] Hence, it can be seen that, in adopting the fictitious legal person theory, Viet Nam inadvertently accepted the notion that the legal person is a unified entity not composed merely of individual members and separate from them, without realizing that behind this lies idealist thinking used to create an absolutely independent will for the legal person, thereby denying the will of the members to achieve absolute independence of the legal person over property rights.
From this, it can be seen that this “collective” will is formed similarly to Savigny’s concept of the “national spirit.” Therefore, it can be unequivocally stated that the theory of the fictitious legal person is a product of historical idealist philosophy, and Savigny is a historical idealist. Savigny constructed the legal person as a metaphysical entity (a metaphysical construct), with the State as a typical example.[101] Hence, if the state in idealist philosophy serves as a cover for the will and interests of the ruling class (the bourgeoisie)[102],
disguised as the universal will of all citizens, then the legal person in idealist philosophy serves as a cover for the will and interests of a group, disguised as the independent will of the legal person – the “collective” will. Regarding the State, this has long been demonstrated by materialist theorists as erroneous. It is completely inconsistent with the core content – the essence of the State of the Socialist Republic of Viet Nam. The materialist view holds that the State is not a state of the “universal will” but a class-based and party-oriented State. Therefore, alongside the inconsistency of the theory on the origin of legal personality discussed above, it can be affirmed that the theory of legal personality under the fictitious legal person cannot serve as the dominant theory for non-commercial legal persons such as the State[103] and its governmental bodies and political organizations of the Socialist Republic of Viet Nam. Furthermore, regarding joint-stock companies (“stock companies”), in research studies conducted by various countries and international organizations, the existence of the concept of controlling shareholders and issues related to conflicts of interest between shareholder groups is recognized. Acceptance of this independent will of the legal person would negate the notion of controlling shareholders and internal conflicts of interest within a joint-stock company. Consequently, Savigny attempted to eliminate group interests by expressing his disapproval of the majority voting method under Roman law. However, this approach is impractical, as the majority voting method has long been widely recognized by countries due to many objective factors, particularly in joint-stock companies with a large number of shareholders. Indeed, this method is even applied in governmental bodies.[104]
The argument regarding the independent will of the legal person is a core point in Savigny’s conception of legal personality. For idealist perspectives, consciousness precedes and determines material reality.[105]
Therefore, Savigny endeavored to assert the separation between the will of the legal person and the will of its members. Consequently, the property rights of the legal person are exercised by the independent will of the legal person rather than the will of the members. However, from a materialist standpoint, this is a mistaken view.[106] It is necessary to describe the legal person according to its true nature. As a phenomenon observed in human practical life, a legal person does not possess its own independent will nor the capacity for autonomous development.[107] THence, there is no so-called “collective” or independent will of the legal person; only the shared will of the members exists – the majority will of the members. In other words, observation and description of a legal person must originate from its actual subjects, the members. This perspective aligns with communist views on describing the existence of social phenomena, which specifically establish a “real basis such that nothing can exist independently of individuals.”[108] Accordingly, the property rights of the legal person are entirely determined by the will of the (majority of) members. Therefore, the notion that the legal person can possess, use, and dispose of assets through its own independent will, irrespective of the members’ will—a view currently adopted in Viet Nam—is idealist and erroneous. The exercise of property rights, including ownership, use, and disposal, must be governed by the will of the (majority of) members, not by the independent will of the legal person. Consequently, the argument denying members’ ownership rights is also mistaken. For instance, in the case of joint-stock companies (“stock companies”), Marx refers to shareholders as “pure money-capitalists”[109] and regards the company’s assets as “the property of producers united together” [110] (the premise for social property). Therefore, any argument for the legal person’s independence in terms of property should be limited to: (i) serving as a basis for State protection of social relations associated with the legal person’s activities (ensuring the ability to fulfill property obligations) through binding regulations such as recognition of the legal person (registration of incorporation) and oversight provisions; and (ii) forming the premise for limited liability.
Ngoài ra, như đã trình bày bên trên, thuyết pháp nhân hư cấu
của Savigny cFurthermore, as previously discussed, Savigny’s fictitious legal person theory recognizes only the rights of the legal person and does not acknowledge the relationship between the rights or the will of the legal person and the individual members. This is because the formation of the legal person under Roman law and Savigny’s theory is modeled on the individual human being, whereby members are considered to have no internal connection with the legal person. Consequently, it does not address the relationships among members or between members and the legal person. This leads to the denial of contractual relationships between members, as the legal person is not created based on the acts of the members but on legal recognition.[112] This observation indicates a clear distinction in the way the legal person exercises its rights. With the origin, will, and property rights of the legal person as outlined above, the exercise of rights under the fictitious legal person is initiated by the creation of law itself, including legal purposes, pre-established legal rights, and obligations under the law. These elements constrain the content of the legal person’s will and are asserted to be distinct from the “collective will of all members of the legal person.” Consequently, the rights of the legal person are exercised through its independent will, separate from the collective will of the members. The members merely act on behalf of the legal person, as the legal person itself cannot act. Thus, the exercise of rights under the fictitious legal person follows a top-down trajectory - from law to practical life. In contrast, the exercise of rights through contractual relationships among members follows a bottom-up trajectory - from the members’ freedom to negotiate and determine agreements within the legal framework, culminating in a unified will to exercise rights. In other words, the rights of the legal person are exercised through the unified will of the members, based on freely negotiated agreements within the bounds of law. VMarx addressed this issue long ago, identifying it as a problem inherent in German idealist philosophy. By metaphor, Marx observed that the products of idealist philosophy follow a “top-down” path, whereas materialist philosophy follows a “bottom-up” path.[113]
Accordingly, the correct approach to describing the existence of objects or phenomena is not “to start from what humans say, create, imagine, or conceive, and reach flesh-and-blood humans,” but rather “to start from real, active human beings, based on the actual processes of their lived experience.”[114]
Therefore, the origin of the denial of contractual relationships among members is rooted in idealist perspectives. This confirms that the proper path for the exercise of rights of a legal person must originate from the members themselves - from the bottom up.
Additionally, one of Savigny’s views on the property of legal persons is that “organizations must completely avoid any substantial changes in their assets”.[115]
This perspective is not suitable for application to stock companies (CTCP), as CTCPs are organizations in which frequent changes in assets, including mergers, acquisitions, and even bankruptcy or dissolution, are inevitable. Therefore, Savigny’s view that legal persons exist continuously and indefinitely due to independent will and property, unaffected by changes in membership, is erroneous and incompatible with the practical realities of CTCPs.
Moreover, due to his overemphasis on the independence of legal persons, Savigny asserted that representative organs are the loci of real power. His perspective on the organs of legal persons is also incompatible with the situation in Vietnam. If city councils, serving as representative organs, were considered to hold real power, it would contradict Vietnamese law, which has never recognized that state power belongs to representative organs (Article 2(2) of the Constitution 2013). Accordingly, the establishment of state organs is solely for performing state functions and duties. Thus, when production conditions change (e.g., technological advancements), state organs undergo adjustments, such as streamlining the apparatus or abolishing certain organs. Similarly, the organs of a CTCP exist merely as instruments to perform specific functions and do not constitute organic parts of a “real person.” In practice, beyond the two core organs - arising from the separation of ownership and management - CTCPs may also have additional flexible organs depending on business needs and sectors. Therefore, Savigny’s view on the organizational structure of legal persons does not align with either state organs or CTCPs. Moreover, it contradicts the notion that members are the sole holders of ultimate authority. Accordingly, the perspective adopted in Vietnam, which asserts that legal persons can operate independently of the organizational structure in relation to members, is inaccurate. The independence of organs exists only to a relative degree, and the existence of these organs is intended for specific purposes rather than to justify the so-called “absolute independence” of the legal person. For instance, the clear distinction between the General Meeting of Shareholders and the Board of Directors in a CTCP primarily reflects the prevalence of these two organs in objective practice and aims mainly to protect social relations arising in company operations, rather than to demonstrate the independence of these organs from the members.
In summary, it can be observed that, in the theory of the fictitious legal person, the actual existence of the legal person is not represented as it truly is; rather, it is depicted as an entity endowed with its own will and property, and an absolutely independent structure, like a complete human being.[116]
It is not difficult to recognize that Savigny’s legal person exhibits a clear systemic logic.[117]
It originates from the argument that only humans (citizens) are recognized as subjects with legal capacity, combined with the view that law itself possesses a will. This leads to the approach and reasoning that legal persons are created by law. Legal persons are thus the product of an effort to simulate humans, serving as the basis for obtaining legal rights and obligations akin to those of a human being. Consequently, the legal person itself, as well as its rights and obligations, are entirely created. As an ideal entity and an artificial human, the legal person must possess absolutely independent will and property to exercise its rights, which entails that its legal capacity cannot be divided, cannot be transferred, and must avoid any changes in assets. The consequences of this theoretical system are: (i) the denial of the will and (indirect) ownership rights of members; (ii) the rejection of majority voting as a method, which negates group interests; (iii) the denial of any internal relationship between members and the legal person, leading to the denial of contractual relationships among members within a corporate legal person; (iv) the overemphasis on the independence of the legal person, to the extent that real authority is considered to lie entirely in representative organs independent of members; (v) the inability to address issues concerning the origin of the legal person; (vi) continuous and indefinite existence - reflecting a lack of a developmental law.
In other words, for stock companies, if the absolute independence of the legal person is recognized - including both its will and property rights - then, first of all, it would be impossible to acknowledge the transfer of rights and obligations from individuals to the legal person. Subsequently, it would also be impossible to recognize the particular will, group interests, or the specific features arising from controlling shareholders, as well as issues related to shareholder protection, and consequently, all internal relationships within the legal person - contractual relationships - would be disregarded. This indicates that there exists a point of contradiction within the theoretical system of stock company legal persons adopted in Vietnam. As a result, it hinders the study of laws concerning these issues and creates multiple conflicting arguments that, to this day, remain unresolved. For example, debates persist regarding the ownership rights of investors and the theoretical basis for regulations permitting shareholders to withdraw capital by requiring the company to repurchase shares, or the practice of stock companies revoking the shareholder status of members who infringe on the company’s interests.
6 . Conclusions and recommendations
The theoretical framework of legal personality according to Savigny—the fictitious legal person theory - particularly its arguments regarding the absolute independence of a legal person in terms of will, property rights, and organizational structure, is completely inconsistent with the foundational philosophy of the state and law in Vietnam. However, a widely accepted principle regarding legal persons is that they must possess a certain degree of independence to distinguish between the legal capacity of the organization itself and that of its members, serving as the basis for the limited liability of the legal person.[118] Therefore, it cannot be denied that the doctrines of the fictitious legal person theory have value in establishing the independence of legal persons such as stock companies up to the present day.
Through the critique and adjustment of the fictitious legal person theory from the perspective of Marx and Engels, it can be concluded that a legal person is a product of the (preceding interactions of individuals) human beings, a legal category within the superstructure, with its origin rooted in the practical needs of humans shaped by objective material conditions (the infrastructure). A legal person cannot possess an independent will; instead, the will (majority) of its members governs and exercises the legal person’s property rights. Nevertheless, the legal person still maintains relative independence in relation to its members. Consequently, the historical-materialist conception of a legal person has the capacity to expose internal group interests and adapt flexibly to changes in objective material conditions as well as human needs over time.
On this basis, specifically regarding stock companies, Viet Nam can adopt and apply certain key elements of the real legal person theory presented by Otto von Gierke in his work “Das deutsche
Genossenschaftsrecht, Zweiter Band:
Geschichte des deutschen Körperschaftsbegriffs” (1873), as follows:
Firstly, concerning the origin of legal persons, similar to the fictitious legal person theory, Gierke’s real legal person theory also recognizes that only human individuals possess legal capacity. However, instead of creating a legal person that mimics a human being as Savigny did - given that Roman legal personality is absolutely indivisible - Gierke asserts that the German legal person, also called germanische Persönlichkeit (“Germanic personality”), is “sufficiently rich to yield part of itself in favor of a new unity of will without self-destruction.”[119] In other words, German legal personality is divisible, reflecting the principle of “unity in diversity” throughout the German legal system, rather than the opposing, rigid distinction seen in Roman public and private law.[120]
[A legal person] is not a creation of humans, but rather resembles individuals; its existence originates from human individuals and through humans, and is thereby recognized (erkannt - existence in a cognitive sense) and acknowledged (anerkannt - existence in a legal sense) by law.[121]
This perspective is fully consistent with the Marx–Engels’ dialectical materialism, as it accurately reflects the true nature of legal persons. Accordingly, a legal person originates from humans and exists only through humans, and cannot be separated from them. At the same time, Gierke’s assertion that a legal person is “not a creation of humans” serves as a rebuttal to Savigny’s argument concerning legal persons. Hence, this concept explains the origin of the legal rights and obligations of a legal person. Accordingly, the legal rights and obligations of a legal person stem from the legal rights and obligations of human beings. For example, state agencies are vested with authority by the people, a process referred to as “delegation of power.”[122] Similarly, in the case of stock companies, this involves the transfer of the freedom of business activity from the members to the legal person.
Thus, it can be seen that the German concept and perspective on the origin of legal persons is more suitable for Viet Nam. Moreover, due to the open structure of the concept, it can be flexibly applied to various types of legal persons according to differing needs and conditions of formation. Consequently, German legal persons are not immortal; they emerge and cease to exist depending on their conditions of formation. Therefore, from the perspective of this study, this concept can also be applied to organizations such as the State. In addition, the flexibility of the German legal person lies in the fact that, due to differing practical needs, the types of rights and obligations transferred from individuals to organizations vary, contributing to the formation of legal persons with different purposes.
Secondly, regarding the characteristics of legal persons. According to Gierke, the German legal person, or “German personality,” has the following features:[123]
First, German personality is not absolute but is constituted from the conditional unity of the rights and obligations of its members, which are limited. Accordingly, German personality recognizes the will and property rights of the members but is constrained by the collective will and rights of the association, and vice versa, the rights of the association are limited by the rights of the members.[124] From Gierke’s perspective, the relative independence of the German legal person derives from the “abstraction” (Abstraktion) borrowed from Roman legal persons[125] and adjusted from the level of absolute abstraction - which originally caused the collective entity to be detached and opposed to the aggregation of its members - down to a level of abstraction sufficient to constitute a unified entity comprising the will and rights of the members.[126] However, from the perspective of this study, what Gierke borrows from fictitious legal persons is not an expression of “mysticism.” The will and rights of the legal person are not separated from the members but are formed by them. Hence, the arguments related to abstraction in Gierke’s view only serve to reinforce the relative independence of the legal person and do not carry the essence of idealist philosophy.
Second, German personality is divisible. Through the transfer of a portion of its rights and obligations (whether as an individual or a legal person), it creates the capacity to form a higher collective “personality” (legal person) that is regarded as an independent association.
Third, German personality is transferable. This feature clearly contrasts with the concept of Roman personality. For example, in a stock company (CTCP), legal personality (corporate personality) is represented by shares - a form of property separate from all personal relationships. The members of the stock company are regarded as “co-bearers of corporate personality” (die Mitträgerschaft einer Körperschaftspersönlichkeit). Therefore, an individual can hold a portion of the “personality” (Theilpersönlichkeiten) that can be traded.
Additionally, Gierke put forward arguments addressing conflicts of interest in the relationship between the collective and its members.[127] Furthermore, based on the open structure of his concept, Gierke’s theory of legal persons offers several advantages for joint-stock companies (CTCP), as follows:
First, it provides the possibility of recognizing contractual relationships among members within the legal person. It allows the acknowledgment that the existence of a CTCP arises from the need to expand the scale of production of individual capitalists. Accordingly, combined with Oliver Hart’s theory on the origins of CTCP, it can be affirmed that there exists an agreement/contract among co-owners (shareholders), which constitutes an incomplete contract.[128] This agreement, in essence, represents the transfer of rights and obligations from the members to the legal person and forms the basis for the establishment of the CTCP’s legal rights and obligations. Due to the recognition of this origin, it allows for the possibility of “unilateral termination of the contract”: (i) by shareholders if their rights are not protected, or (ii) by the company if the company’s interests are violated, within the framework of the “shareholders’ agreement.” This serves as the theoretical basis for permitting shareholders to withdraw capital by requesting the company to repurchase shares to protect shareholder interests. However, Hart’s theory does not confer on members of the “shareholders’ agreement” the freedom to conduct business as ordinary individuals; rather, such freedom is “limited by law” and pre-existing contracts.[129] Specifically, within a CTCP, it is constrained by statutory provisions designed to protect relevant parties, including other co-owners (the company) and third parties.[130]
Second,
this theory explains the issue of investor ownership in CTCP while still ensuring that the legal person remains an independent legal entity, distinct from the legal capacity of its members. This is expressed in the concept of “co-ownership/co-bearers of legal personality” and “transfer of portions of legal personality.” Although this concept is relatively new, it retains practical reference value. According to Gierke, the model for constructing the concept of rights and legal personality under German law is unified.[131] Therefore, the legal personality mentioned here corresponds to the legal rights of the legal person. Accordingly, the legal personality (or rights of the legal person) of a CTCP is exercised and controlled through the investors, making the investors “co-owners/co-bearers of the legal personality.” Consequently, the transfer of shares constitutes the transfer of a portion of the company’s legal personality. Hence, shares are not merely ordinary property but can also be regarded as portions of the company’s legal personality. This means that when shares are transferred, investors are transferring not only ordinary property but also a portion of the company’s legal personality. Therefore, investors in a CTCP do not need to hold the company’s assets to be considered owners; as long as they hold and control the property rights of the legal person, they can be regarded as the actual owners of the legal entity. At the same time, the CTCP retains its independent legal capacity over its assets, forming the basis for limited liability. This theory simultaneously ensures the separation of legal capacity between investors and the legal person and maintains practical applicability. Furthermore, this reasoning aligns with the definition of shareholders in a CTCP and with the new provision on “beneficial owners of enterprises” presented in Clause 3, Article 4, Law on Enterprises 2020 (amended and supplemented 2025).
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22. Visa A.J. Kurki, Legal Personhood, Cambridge University Press, Helsinki Legal
Studies Research Paper No. 82, (2023) https://ssrn.com/abstract=4669283
* PhD candidate, Faculty of Law, School of Economics, Law and Public Administration, University of Economics Ho Chi Minh City Email: vandieutho@gmail.com, approval date for publication: October 28, 2025
** Head of Department of Economic Law, School of Economics, Law and Public Administration, University of Economics Ho Chi Minh City
[1] Original text “a stylistic peculiarity of Hegel, one which recurs often and is a product of mysticism” in Karl Marx, Marx’s Critique of Hegel's Philosophy of Right, translated by Annette Jolin and Joseph O’Malley, Cambridge University Press, (1970), https://www.marxists.org/archive/marx/works/download/Marx_Critique_of_Hegels_Philosophy_of_Right.pdf
[2] Visa A.J. Kurki, Legal Personhood, Cambridge University Press, Helsinki Legal
Studies Research Paper No. 82, 1, (2023) https://ssrn.com/abstract=4669283
[3] Visa A.J. Kurki, ibid., 2, 2 và 33
[4] VIETNAM NATIONAL UNIVERSITY, HANOI – UNIVERSITY OF LAW, CIVIL LAW TEXTBOOK 1 - GENERAL PART, VIETNAM NATIONAL UNIVERSITY PUBLISHING HOUSE, 143 (2024)
[5] VNU – UNIVERSITY OF LAW, ibid., 4, 142
Visa A.J. Kurki, ibid., 2, 2 và 33
[6] VNU – UNIVERSITY OF LAW, ibid., 4, 142
[7] HO CHI MINH CITY UNIVERSITY OF LAW, Textbook on General Provisions of Civil Law, People's Police Publishing House, 147, 159 (2024)
[8] Ngo Huy Cuong, The Legal Entity Regime Viewed from Its Internal Structure, Electronic Journal of Legal Studies (14-06-2024), http://lapphap.vn/Pages/TinTuc/211903/Che-dinh-phap-nhan-nhin-tu-cau-truc-ben-trong-cua-no.html?fbclid=IwY2xjawK_QtxleHRuA2FlbQIxMABicmlkETE4MEgxanB0MFBlSmZuZVloAR4AmXdSPLdnZ3iAA6W_pc432AF3SOqICl_1QDr0_MfYpGh4FN33KOvcQujWVA_aem_lQxqI6Rl_gbSpm5eEcDjxw
MINISTRY OF EDUCATION AND TRAINING, Textbook on Marx–Lenin Philosophy, National Political Publishing House of Truth, 147 (2021)
[10] Andrew Vincent, Marx and Law, Journal of Law and Society, 20, 371-391, 394 (1993)
[11] Andrew Vincent, ibid., 10, 381
[12] Andrew Vincent, ibid., 10, 380
[13] Andrew Vincent, ibid., 10, 380
[14] Andrew Vincent, ibid., 10, 387
[15] Andrew Vincent, ibid., 10, 374
[16] Karl Marx và Frederick Engels, The German Ideology, (1932) https://www.marxists.org/archive/marx/works/download/Marx_The_German_Ideology.pdf
[17]VIETNAM NATIONAL UNIVERSITY, HANOI – UNIVERSITY OF LAW, ibid., 4, 142‑143
[18] VIETNAM NATIONAL UNIVERSITY, HANOI – UNIVERSITY OF LAW, ibid., 4, 140‑162
[19] HO CHI MINH CITY UNIVERSITY OF LAW, ibid., 7, 144‑179
[20] HO CHI MINH CITY UNIVERSITY OF LAW, ibid., 7, 146
VIETNAM NATIONAL UNIVERSITY, HANOI – UNIVERSITY OF LAW, ibid., 4, 152
[21] This theory belongs to real legal persons. HO CHI MINH CITY UNIVERSITY OF LAW, ibid., 7, 162
[22] This theory belongs to real legal persons. HO CHI MINH CITY UNIVERSITY OF LAW, ibid., 7, 158
[23] HO CHI MINH CITY UNIVERSITY OF LAW, ibid., 7, 163, 165, 170, 179
[24] VIETNAM NATIONAL UNIVERSITY, HANOI – UNIVERSITY OF LAW, ibid., 4, 142
[25] OTTO VON GIERKE, DAS DEUTSCHE
GENOSSENSCHAFTSRECHT, ZWEITER BAND: GESCHICHTE DES DEUTSCHEN
KÖRPERSCHAFTSBEGRIFFS, WEIDMANNSCHE BUCHHANDLUNG, BERLIN, 29 (1873)
[26] OTTO VON GIERKE, ibid., 25, 29
[27] FRIEDRICH CARL VON SAVIGNY, SYSTEM DES HEUTIGEN RÖMISCHEN RECHTS, ZWEITER
BAND, VEIT UND COMP, BERLIN, 283 (1840)
[28] OTTO VON GIERKE, ibid., 25, 29
[29] OTTO VON GIERKE, ibid., 25, 26
[30] OTTO VON GIERKE, ibid., 25, 36-37
[31] OTTO VON GIERKE, ibid., 25, 36-37
[32] OTTO VON GIERKE, ibid., 25, 40-41
[33] Not only in Viet Nam, this confusion is also found in the literature of leading US economists. See Jensen and Meckling, Theory of the firm: Managerial Behavior, Agency Costs and Ownership Structure, Journal of Financial Economics, 3, 305, 313 (1976). Original text: “It is important to recognize that most organizations are simply legal fictions which serve as a nexus for a set of contracting relationships among individuals.” This issue will be specifically explained in the comparative section in Part V of the article.
[34] VIETNAM NATIONAL UNIVERSITY, HANOI – UNIVERSITY OF LAW, ibid., 4, 142‑143
[35] VIETNAM NATIONAL UNIVERSITY, HANOI – UNIVERSITY OF LAW, ibid., 4, 140‑162 (2024)
[36] VIETNAM NATIONAL UNIVERSITY, HANOI – UNIVERSITY OF LAW, ibid., 4, 149‑150
[37] Visa A.J. Kurki, Xem thêm, 2 và bài viết của tác giả Susan Watson, The corporate legal person, Journal of
Corporate Law Studies, (2018),
https://www.tandfonline.com/doi/abs/10.1080/14735970.2018.1435951
[38] FRIEDRICH CARL VON SAVIGNY, ibid., 27
[39] FREDERICK C. BEISER, THE GERMAN HISTORICIST
TRADITION, OXFORD UNIVERSITY PRESS, 215 (2011)
[40] According to Beiser, the term “Geist” is best explained through Montesquieu’s work Esprit des lois and is equivalent to “spirit of the laws” – the spirit of law. Therefore, Volkgeist is often translated as the spirit of the nation. FREDERICK C. BEISER, ibid., 39, 250
[41] In the translation by Annette Jolin and Joseph O’Malley, “Geist” is translated as “mind” and “Idea”. Karl Marx, see, 1
[42] FREDERICK C. BEISER, ibid., 39, 218
[43] FREDERICK C. BEISER, ibid., 39, 249
[44] FREDERICK C. BEISER, ibid., 39, 249
[45] FRIEDRICH CARL VON SAVIGNY, SYSTEM DES HEUTIGEN RÖMISCHEN RECHTS, ERSTER
BAND, VEIT UND COMP, BERLIN, 14 (1840)
[46] FRIEDRICH CARL VON SAVIGNY, ibid., 45, 17
[47] Robert Schütze, German Idealism after Kant: Nineteenth-Century Foundations of International Law, Journal of the History of International Law, 25, 105, 114 (2023). Additionally, according to the description of the core assumption of the Volksgeist theory, there is no appearance of material or infrastructural elements, focusing solely on culture including law, customs, religion, and language. FREDERICK C. BEISER, ibid., 39, 250
[48] MINISTRY OF EDUCATION AND TRAINING, ibid., 9, 17
[49] The “mystification” of idealism has been clearly described by Karl Marx. See also his “formula” regarding the objectification of human consciousness attributes into an independent “mystical substance” in Karl Marx, ibid., 1. Original text: from the phrase “The existence of the predicate is the subject” to “the mystical idea becomes this bearer”.
[50] Karl Marx, ibid.,
1
[51] Original in the translation uses “predicate” and “subject”. Here, “predicate” does not mean “verb” as in ordinary grammar, but rather implies “attribute”, following ARISTOTLE in CATEGORIES AND DE INTERPRETATIONE – TRANSLATION WITH NOTES BY J. L. ACKRILL, OXFORD UNIVERSITY PRESS, 4 (2002). Aristotle uses the example of “human being”, in which both “human” and “being” are attributes of the “human being”.
[52] There exists a translation as “khách thể” and “khách thể hóa”. However, in philosophy, “object” denotes that which is analyzed or observed. Therefore, “object” is a more appropriate translation.
[53] The attribute of independence inherently exists only in humans and, in this case, refers to the attribute of members of the community. See also Karl Marx, ibid., 1
[54] Karl Marx, ibid.,
1
[55] Karl Marx, ibid.,
1
[56] OTTO VON GIERKE, ibid., 25, 26
[57] OTTO VON GIERKE, ibid., 25, 25
[58] OTTO VON GIERKE, ibid., 25, 29
[59] The legal personality of an organization is called a “legal person” (“juristische Person”) and is described as “a fictitious assumption” (“fiction angenommene Subjecte”). See also FRIEDRICH CARL VON SAVIGNY, ibid., 27, 263
[60] OTTO VON GIERKE, ibid., 25, 29
[61] OTTO VON GIERKE, ibid., 25, 29
[62] OTTO VON GIERKE, ibid., 25, 29
[63] FRIEDRICH CARL VON SAVIGNY, ibid., 27, 282
[64] FRIEDRICH CARL VON SAVIGNY, ibid., 27, 236
[65] FRIEDRICH CARL VON SAVIGNY, ibid., 27, 314
[66] FRIEDRICH CARL VON SAVIGNY, ibid., 27, 293
[67] FRIEDRICH CARL VON SAVIGNY, ibid., 27, 242-244
[68] Susan Watson, ibid., 37, 8
[69] FRIEDRICH CARL VON SAVIGNY, ibid., 27, 246
[70] FRIEDRICH CARL VON SAVIGNY, ibid., 27, 246-247
[71] FRIEDRICH CARL VON SAVIGNY, ibid., 27, 237
[72] FRIEDRICH CARL VON SAVIGNY, ibid., 27, 238
[73] FRIEDRICH CARL VON SAVIGNY, ibid., 27, 283
[74] FRIEDRICH CARL VON SAVIGNY, ibid., 27, 283
[75] FRIEDRICH CARL VON SAVIGNY, ibid., 27, 283
[76] FRIEDRICH CARL VON SAVIGNY, ibid., 27, 328
[77] FRIEDRICH CARL VON SAVIGNY, ibid., 27, 331
[78] FRIEDRICH CARL VON SAVIGNY, ibid., 27, 335
[79] FRIEDRICH CARL VON SAVIGNY, ibid., 27, 242-244
[80] FRIEDRICH CARL VON SAVIGNY, ibid., 27, 335
[81] FRIEDRICH CARL VON SAVIGNY, ibid., 27, 333-334
[82] FRIEDRICH CARL VON SAVIGNY, ibid., 27, 333-334
[83] FRIEDRICH CARL VON SAVIGNY, ibid., 27, 333-334
[84] FRIEDRICH CARL VON SAVIGNY, ibid., 27, 246
[85] BGDĐT, ibid.,
9, 135
[86] Objective dialectics and subjective dialectics must be unified to form the methodological basis for the transformation of nature and society, which, in legal science, can be regarded as the methodology for the improvement of law. BGDĐT, see also, 9, 85
[87] Karl Marx, Capital
Volume Three - The Process of Capitalist Production as a Whole, (1894), Part V. Chapter 27.,
https://www.marxists.org/archive/marx/works/1894-c3/ch27.htm
[88] According to Chief Justice Coke’s opinion in the case of Thomas Sutton, a corporation is “invisible, immortal, and exists only in the intention and consideration of the law.” Susan Watson, ibid., 37, 9-10.
[89] Frederick Engels, Origin of the Family, Private Property, and the State – translated by Alick
West, (1962),
https://www.marxists.org/archive/marx/works/1884/origin-family/
[90] Karl Marx, ibid.,
87
