Legal Personhood: Origins and Distinctions

In my last post, I motivated the importance of legal personhood. This post will focus on the origins of the concept and its difference from related concepts such as personhood simpliciter and moral standing.

Origins

Modern legal systems have all been considerably influenced by Roman law. This is especially true regarding legal ontology: following Roman law, modern legal systems divide the world into "persons" and "property."

The word "person" (and its Latin correlate "persona") has its etymological roots in the Greek word "prosopon," denoting a mask used in theatre. Just as actors are distinct from characters, so too were persons and humans distinct within Roman jurisprudence. One human could occupy multiple "masks" or roles under the law and thus possess different rights and obligations in different circumstances, a thesis embodied in the slogan: unus homo sustinet plures personas.

Over time, the idea of personhood as a kind of special property distinct from membership within the human species was employed in religious and philosophical debates, for instance about the nature of the Holy Trinity, personal identity, and morality. Thus legal personhood became distinct from personhood simpliciter, a more philosophical notion. This remains true today, where issues concerning personhood simpliciter continue to factor into debates about personal identity and morality.

Distinctions

However, despite its prevalence within moral debates, it would be wrong to identify personhood simpliciter with the notion of moral standing. Modern moral philosophers view personhood as a psychological capacity that has something to do with morality. But they need not endorse the idea that personhood is necessary for one to be included within morality.

Peter Singer, for instance, understands personhood as a certain reflective nature that allows one to have complex psychological states and future-oriented preferences. Many moral philosophers agree that only persons (understood in this philosophical sense) can be full participants in morality since only they can be moral agents, recognizing and discharging moral obligations. But these philosophers deny that only persons can be moral patients, beings to whom we can have moral obligations. Christine Korsgaard echoes this thought, maintaining that personhood is found in those distinctive elements of human life such as the ability to ask and answer normative questions (e.g., "What ought I do?"). These distinctive elements, however, are necessary only for one to be bound to the moral law. So non-persons (in this philosophical sense) can still be included within the moral law's content, serving as beneficiaries of morality.

On the same basis, it would be wrong to identify legal personhood with moral standing. Although we have not yet given a full account of legal personhood here, it clearly has something to do with an entity's legal standing—what place an entity has within a legal system. Putting aside naïve conceptions of natural law theory (according to which the law is identical with morality), an entity's legal standing is not the same as its moral standing since the law is its own normative enterprise. For instance, slaves might have lacked legal standing, but few would deny that they rightly possessed moral standing, and it is in virtue of this moral standing that the harms imposed on them were wrong, even if not illegal.

Finding Clarity

We saw above how the notion of legal personhood is supposed to be distinct from personhood simpliciter. Two questions are relevant here:

• Is it really possible for us to separate the notion of legal personhood from all of the metaphysical and ethical baggage attached to its cognate term, personhood simpliciter?
• Even if legal personhood is connected to the philosophical issues of personhood simpliciter, what role does it play within the law in particular?

To address the first question, it indeed appears that the legal and philosophical notions of personhood are entangled within contemporary debates. For instance, the Nonhuman Rights Project has appealed to many psychological capacities of chimpanzees in seeking legal personhood, including:

episodic memory, self-consciousness, self-knowing, self agency, referential and intentional communication, mental time-travel, numerosity, sequential learning, meditational learning, mental state modeling, visual perspective taking, understanding the experiences of others, intentional action, planning, imagination, empathy, metacognition, working memory, decision-making, imitation, deferred imitation, emulation, innovation, material, social, and symbolic culture, cross-modal perception, tool-use, tool-making, cause-and-effect (petition of NhRP v. Samuel Stanley, p. 12). 

These are precisely the sort of features that one might cite in arguing for the presence of personhood simpliciter. But many of the Nonhuman Rights Project's attempts have been rejected on the basis that chimpanzees and other animals cannot be held to obligations. This suggests that legal personhood is just the formal recognition of philosophical personhood, in which case debates about legal personhood will bring along all of the different presuppositions and worldviews that perpetuate often intractable philosophical debate.

We will address the second question in the next post, analyzing contemporary theories of legal personhood that attempt to explain the role of legal personhood within the law.