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2B-Model of the Borderland
Actorship and Legal Personality
The notion “actorship” shall be distinguished from the notion “legal personality”, one
of the key concepts in the theory of law. It is the basis of the theory of social organization
(the theory of legal relations, the theory of law and order). The notion “legal capacity”
refers to the subject already placed in the legal environment which is always primary
in relation to legal personality. Therefore, “legal personality” is a concept which allows
to analyze stable legal phenomena and established legal systems. However, the question
about the communication existing between the subject and its status as well as about
the genesis of the legal capacity phenomenon, i.e. that the problem which we identify as
“actorship” remains unsolved.
If the theory of law concentrates on the procedures of legal personality acquisition
it in no way connects this process with the nature of the subject. Conditions of legal
personality acquisition provide for only some restrictions based on 1) the psychological
condition of the subject (extending only to its capability), 2) its position in the legal envi-
ronment (when its activity gets an obvious antilegal character). Therefore, G. Kelzen does
not study the question about the procedures of legal personality acquisition, specifying
the fictitious character of “legal personality” concept because, in his opinion, individuals
do not create legal environment. In “Chistoje uchenije o prave” Kelzen insists that “per-
sonifying concepts “legal subject” and “legal body” are not so necessary for the description
of law. These are simply auxiliary concepts, which... facilitate the description. Their use is
admissible only if their special character is realized” [12].
As a consequence of this approach prevalence, the traditional concept of the legal
subject is dominated by the idea of some legal essence independent of law and order,
i.e. of some legal subjectivity which law finds readymade, whether it is in the individual
or in some generality and which it only needs to recognize and to recognize with the
necessity if it does not want to lose its “legal” character [13]. However, in the second half
of the XX century there was a gradual disclosing of communicative functions of law [14]
that also entailed a change in the understanding of the subject and its status, while also
bringing the attention of researchers to the problem of law preconditions and existence
of extralegal normative systems and their interaction with the legal system. This process
began within the framework of anthropology of law that, firstly, studied the exotic legal
systems of Africa and Oceania [15], but then became interested in the national legal sys-
tems of the West [16]. On the whole, this tendency can be identified as the concept of law
personification.
The statement about the transcendence of the law subject in relation to the objective
right was used to protect the idea that subjective law is an institute setting an insuperable
limit to the content formation of law and order. The notion of actorship destroys such an
approach and specifies that while studying a legal relation and, for example, the process
of the status formation, we deal with an interaction of several normative orders in rela-
tion to which the subject does not possess the quality of absolute transcendence. Such an
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Oleg Bresky and Olga Breskaja
approach allows to see the subject as autonomous in relation to the so-called “objective
law”, i.e. as free, but not voluntary and unscrupulous. In this case it is necessary to admit
that the subject possesses discourse qualities unlike a monad. The discursiveness of the
subject frees it from total subordination and conditionality by organization structures.
The concept of the subject becomes even more important, when law and order are cre-
ated by means of a democratic procedure and discourse practices seemingly devoid of the
general plan and logic. Consequently, the ideology of legal personality relies on ethical
values of individual freedom and an autonomous person. From this point of view law and
order not
recognizing personal freedoms, cannot be considered law and order at all.
In this case “actorship” acts as a concept necessary to define conditions and precondi-
tions of the occurrence of legal personality as the basis of the interaction of the subject
and its status, the subject and the social order. The given concept means the system of the
subject discourse practices aimed at the establishment of social relations. These practices
do not depend on the presence or absence of the legal personality of the given subject,
but form a discourse provoking a reaction of the legal and social system. This mechanism
possesses a universal character not depending on time and circumstances. Thus, precon-
ditions of legal personality lie in actorship. Actorship itself does not become institutional-
ized, but it is a source and basis of any personal social action of the subject that, actually,
creates a phenomenon [17].
In other words, actorship sets such characteristics of the Borderland which allow to
view it as a zone of self-reflection, representation and institutionalization of the subject,
defining the model of social space. In such a model subject senses and representation
practices affect not only the subject itself, but also a different subject and social institu-
tions. The concept “actorship” allows to consider the subject in its subject-subject relations
[18] in border practices, including intrasubject relations connected with the coordination
of roles and statuses [19]. Such an approach makes it possible to overcome the vision of
the Borderland only as spheres of interstate relations and also to reject the definition of
subjects of border relations as such whose “external institutional communications ex-
ceed communications of internal structures” [20]; this presents
the Borderland as a social
system that is in crisis broken apart by external forces without seriously influencing the
processes going on in it. Thus, the Borderland emergence cannot be connected only with
the achievement by a social or political system of some external limit because even in this
case, first of all, it meets itself (the limit carries out the function of a mirror, specifying
the subject properties which do not allow the subject to develop further). Only then the
subject meets Another. Therefore, we state, that the Borderland, firstly, creates internal
borders formed by subject practices which define the character of external interaction.
Consequently, we can say that we receive a tool for the analysis of processes taking place
in social space, allowing to consider subject practices and to view Eastern Europe social
space through the representation of its subjects.
The concept “actorship” allows to avoid at once two negative discourses of the Bor-
derland research: 1) politization of the social space analysis with all social interactions