Legal Personhood: Fact and Theory
Last time we discussed the distinction between legal personhood, personhood simpliciter, and moral standing. Whereas the latter two are general philosophical notions, legal personhood has to do with an entity's legal status. We now turn to an analysis of legal personhood, discussing what the concept is supposed to represent and what function it is supposed to perform.
As a quick remark, it is important to note that dictionary definitions are not necessarily right about the nature of a concept. Dictionaries serve to capture the everyday understanding of a term, not to analyze the associated concept. Of course, terms function to represent concepts, but the two are distinct since a single concept may be represented by multiple terms (for instance, in different languages). Moreover, a term's everyday understanding cannot be subject to the same sort of rational investigation as a concept: a term just is understood a particular way, whereas a concept may or may not be internally consistent, appropriately connected with other concepts, rest on defensible presuppositions, and so on. It might turn out, for instance, that a concept is actually incoherent and so must be rationally reconstructed, preserving whatever part of it withstands scrutiny.
For all these reasons, we should not take the above dictionary definition as the final word about the concept of legal personhood. It is an indication that people think they are using legal personhood in this way. But upon careful investigation, it might turn out that the analysis of legal persons as right-holders or duty-bearers is internally inconsistent or inappropriately connected with other concepts. Although the notion of duty is relatively clear, rights are notoriously difficult to speak clearly about, so another quick digression is in order.
In line with legal theorist Joel Feinberg, we can say that the validity of privileges, claims, and so on is determined by some set of governing rules or principles. Some like to distinguish between moral and legal rights, in which case the governing rules or principles would vary between the kind of rights at play. In the legal realm, which we are concerned with here, these would be legal rules or principles.
According to the interest theory of rights, a right functions to protect the interests of the right-holder. Thus only those complexes of Hohfeldian incidents that advance a holder's interests are properly called rights.
According to the will theory of rights, a right functions to preserve the right-holder's autonomy. Will theorists often hold that only those complexes of Hohfeldian incidents that include a claim whose corresponding duty can be controlled by the holder are properly called rights since this makes the right-holder a "sovereign" of her own.
For our purposes here, we need not dive deep into the debate between the interest theory and the will theory. The important point is to connect our analysis of rights back to our analysis of legal personhood: a legal person is claimed to be any being possessing rights or duties under the law. We are now equipped with an understanding of rights that will allow us to more fully understand the prevailing theory of legal personhood.
By looking at important statutes, we see that paradigmatic passive legal persons are:
While active legal persons also satisfy:
Yet when we combine the analysis of legal persons as "rights-holders or duty-bearers" with either the interest or will theory of rights, we get false positives and false negatives, respectively.
On the interest theory, developed fetuses and nonhuman animals have rights since they are the intended beneficiaries of some of our legal obligations (e.g., through anti-cruelty laws). But this would mean that developed fetuses and nonhuman animals are legal persons, contrary to the existing paradigm.
On the will theory, young children lack autonomy, so they do not have rights. But this would mean that young children are not legal persons, contrary to the existing paradigm.
So the best option seems to be abandoning the prevailing theory of legal personhood as rights-holding or duty-bearing. On the alternative account provided by Visa Kurki, legal personhood is a cluster concept composed of particular rights and duties.
However, even if legal personhood is a cluster concept (and so one can have a greater or lesser number of the rights it encompasses) rather than a simple binary property, it is worth asking whether it is a concept worth maintaining. After all, it seems odd to divide the world into "persons" and "property," and then to put animals without the right to standing, etc., under the category of "property." We might worry that the existing bifurcation impedes the fight for animal justice by entrenching the idea of animals as objects rather than subjects. The existing bifurcation might also cause proponents of animal rights to be mischaracterized as radicals. Since they seek some rights from the cluster of legal personhood, others might infer that they are seeking the whole cluster, including absurdities such as the right to vote. We will turn to this topic in the next post.
Prevailing Theory
Black's Law Dictionary, an authoritative text, embodies the prevailing theory of legal personhood when it says:
"So far as legal theory is concerned, a person is any being whom the law regards as capable of rights or duties.”
Reiterating the distinctions from earlier, we see that legal personhood's presence or absence is determined by facts internal to a legal system, unlike philosophical personhood which relies on external considerations. The usage of "rights" here is restricted to legal rights—properties whose attribution is determined by positive law rather than philosophical argument—since we are talking about legal personhood.
As a quick remark, it is important to note that dictionary definitions are not necessarily right about the nature of a concept. Dictionaries serve to capture the everyday understanding of a term, not to analyze the associated concept. Of course, terms function to represent concepts, but the two are distinct since a single concept may be represented by multiple terms (for instance, in different languages). Moreover, a term's everyday understanding cannot be subject to the same sort of rational investigation as a concept: a term just is understood a particular way, whereas a concept may or may not be internally consistent, appropriately connected with other concepts, rest on defensible presuppositions, and so on. It might turn out, for instance, that a concept is actually incoherent and so must be rationally reconstructed, preserving whatever part of it withstands scrutiny.
We might also learn that a concept is inherently elusive, resisting analysis because of its essentially contested nature. Concepts such as democracy and justice might fall under this category, having an inherently "open" texture, in which case no dictionary definition could ever tell us all we need to know about them. Such an essentially contested nature might be due to deep facts about the nature of language and thought. According to philosopher Hilary Putnam and the thesis of semantic externalism, "meanings just ain't in the head," as the meaning of terms depends not only on facts internal to speakers but also on external relations between speakers and the wider environment. Given the close relationship between terms and concepts, this would entail that some concepts have their contours created not by any particular individual's ideas but instead by complex interactions. In this case, dictionary definition would be even further from what we really want to understand since no one-sentence-long definition can capture the intricacies implicit in these concepts.
For all these reasons, we should not take the above dictionary definition as the final word about the concept of legal personhood. It is an indication that people think they are using legal personhood in this way. But upon careful investigation, it might turn out that the analysis of legal persons as right-holders or duty-bearers is internally inconsistent or inappropriately connected with other concepts. Although the notion of duty is relatively clear, rights are notoriously difficult to speak clearly about, so another quick digression is in order.
Rights
"Rights" talk is used in many contexts: I may say that I have a right to my property, a right to speak my mind, a right against discrimination, and so on. American jurist Wesley Newcomb Hohfeld is famous for exposing the ambiguity in our talk of "rights," in response to which he provided an analytical framework deconstructing rights into four "incidents" or elements. Let me quickly outline them here in a schematic fashion, supposing that "A" represents some right-holder, "B" represents some second person, and "φ" represents some activity.- A has a privilege to φ if and only if A has no duty to φ and no duty to not-φ.
- A has a claim that B φ if and only if B has a duty to φ, and this duty is owed to A in particular.
- A has a power with respect to B if and only if A has a privilege to modify some of B's Hohfeld incidents.
- A has an immunity against B if and only if A has a claim against B's modifying some of A's Hohfeld incidents.
In line with legal theorist Joel Feinberg, we can say that the validity of privileges, claims, and so on is determined by some set of governing rules or principles. Some like to distinguish between moral and legal rights, in which case the governing rules or principles would vary between the kind of rights at play. In the legal realm, which we are concerned with here, these would be legal rules or principles.
However, despite offering conceptual clarity, Hohfeld's analysis does not explain why rights exist: what is the justification for some set of rights? Two functions are thought to be promising candidates: the protection of interests, and the preservation of autonomy.
According to the interest theory of rights, a right functions to protect the interests of the right-holder. Thus only those complexes of Hohfeldian incidents that advance a holder's interests are properly called rights.
According to the will theory of rights, a right functions to preserve the right-holder's autonomy. Will theorists often hold that only those complexes of Hohfeldian incidents that include a claim whose corresponding duty can be controlled by the holder are properly called rights since this makes the right-holder a "sovereign" of her own.
For our purposes here, we need not dive deep into the debate between the interest theory and the will theory. The important point is to connect our analysis of rights back to our analysis of legal personhood: a legal person is claimed to be any being possessing rights or duties under the law. We are now equipped with an understanding of rights that will allow us to more fully understand the prevailing theory of legal personhood.
Fact
Any account of legal personhood must line up with or otherwise explain paradigmatic cases of legal persons. These cases are the "ground truth" against which theories are examined. We can distinguish here between passive and active legal persons. The former group possesses certain legal entitlements, while the latter group also possesses the ability to actively engage within the law (e.g., by creating contracts).By looking at important statutes, we see that paradigmatic passive legal persons are:
(1) human beings (2) who have been born, (3) who are currently alive, and (4) who are sentient
While active legal persons also satisfy:
(5) and are of sufficient age and rationality
Thus any adequate account of legal personhood will have to include young children (within the passive category) and exclude developed fetuses and nonhuman animals.
Yet when we combine the analysis of legal persons as "rights-holders or duty-bearers" with either the interest or will theory of rights, we get false positives and false negatives, respectively.
On the interest theory, developed fetuses and nonhuman animals have rights since they are the intended beneficiaries of some of our legal obligations (e.g., through anti-cruelty laws). But this would mean that developed fetuses and nonhuman animals are legal persons, contrary to the existing paradigm.
On the will theory, young children lack autonomy, so they do not have rights. But this would mean that young children are not legal persons, contrary to the existing paradigm.
Rational Reconstruction
In light of this discrepancy between fact and theory, we have three options. First, we could reject the interest theory and the will theory. But this seems wrong given that much more work has gone into theorizing about rights than legal personhood.On the other hand, we could abandon the paradigmatic cases of legal persons, accounting for the false positives and false negatives discussed above. But this revisionary move would miss the real function that legal personhood plays: it is not used in discussions about the presence or absence of just any rights or duties, but about particular rights and duties, such as the right to standing in court, the right to not be treated as property, and so on. This makes sense of the efforts of the Nonhuman Rights Project: they are not seeking just any right, but particular liberty rights, and that is why the notion of legal personhood gets brought into play.
So the best option seems to be abandoning the prevailing theory of legal personhood as rights-holding or duty-bearing. On the alternative account provided by Visa Kurki, legal personhood is a cluster concept composed of particular rights and duties.
But this highlights the fact that existing discourse about legal personhood is often confused. Legal personhood is not some property distinct from the rights and duties it encompasses. Hence, attempts to establish legal personhood (rather than attempts to establish particular rights usually put under the umbrella of legal personhood) are a bit confused. It's as if in order to get a particular brand of chips, one went to buy a party pack of mixed chips. Yes, Lays chips might be part of the party pack, just as the right to bodily autonomy is part of what it is to be a legal person, but we are working at the wrong level of specificity.
Indeed, this sentiment was expressed by Judge Fahey in his opinion for the Nonhuman Rights Project case:
"The better approach in my view is to ask not whether a chimpanzee fits the definition of a person or whether a chimpanzee has the same rights and duties as a human being, but instead whether he or she has the right to liberty protected by habeas corpus. That question, one of precise moral and legal status, is the one that matters here" (Nonhuman Rights Project, Inc. ex rel. Tommy v. Lavery, 2018).
Moreover, this analysis shows that legal personhood may be, in the words of Eva Bernet Kempers, a luxury rather than a necessity. The particular rights constituting legal personhood may not be required for animals to be given justice. Many animal lawyers in common law jurisdictions, such as Steven Wise, operate under the assumption that legal personhood is the first step in achieving rights for animals. The idea is that legal personhood includes the right to standing in court and other forms of representation, and these rights would facilitate the attainment of other rights protecting the fundamental interests of animals. This assumption may or may not be true within common law jurisdictions, but Kempers points out that it is likely false within civil law jurisdictions since the expansions of animal rights cannot come from the judiciary but instead must come from the legislature, in which case the right to standing, among others, would be less valuable.
However, even if legal personhood is a cluster concept (and so one can have a greater or lesser number of the rights it encompasses) rather than a simple binary property, it is worth asking whether it is a concept worth maintaining. After all, it seems odd to divide the world into "persons" and "property," and then to put animals without the right to standing, etc., under the category of "property." We might worry that the existing bifurcation impedes the fight for animal justice by entrenching the idea of animals as objects rather than subjects. The existing bifurcation might also cause proponents of animal rights to be mischaracterized as radicals. Since they seek some rights from the cluster of legal personhood, others might infer that they are seeking the whole cluster, including absurdities such as the right to vote. We will turn to this topic in the next post.
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