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Symposium on the theory of legal personhood

A bundle of rights and Pachamama: Visa Kurki’s theory of legal personhood

Brunello Stancioli

Abstract

This book review analyzes Visa Kurki’s innovative theoretical construction of the legal person and compares it with how the concept is used in two Andean countries: Bolivia and Ecuador. Kurki offers an alternative view of the fundamental considerations regarding the legal person, a view mostly based on the work of W. N. Hohfeld. This review first highlights the key points in Kurki’s theory and then examines a possible challenge to his scheme through the legal systems of Bolivia and Ecuador, both of which recognize non-sentient beings as legal persons. When the concept of Pachamama (Mother Earth) is defined as a starting point, a whole new plethora of legal persons emerge (rivers, trees, lakes, etc.). This extremely radical view aims to rescue ways of life quite different than Western ones and to provide the population with robust mechanisms for the protection of Pachamama. It is also a theoretical “counter-offer” to Kurki’s view of personhood.

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1 Introduction

1Few authors have risked presenting a new theory of personhood, a topic that should cause enormous discomfort among law scholars. After all, it entails reviewing the foundations of who holds rights and duties within the legal system. In general, the meaning of personhood as a foundational legal concept is assumed to be unproblematic, even as several of the practical issues revolving around the personhood of fetuses, nonhuman animals, and corporations have been discussed in academia, the courts, and the public sphere at large.

2Although discussions of some of the practical issues that touch on the meaning of legal personhood have gained traction in recent years, the conceptual trappings of personhood remain largely untouched. In 2014, a New York court was presented with a case in which it was asked to afford the writ of habeas corpus to a chimpanzee, even though deciding such a case would depend on a reflection of the nature of legal personhood. If the chimpanzee was not regarded as a (certain kind of) legal person, then the court opted to assume that legal personhood entails holding rights and bearing duties and that since the chimpanzee could not reasonably be expected to fulfill duties and responsibilities involving others, then it could not be considered a legal person. In this case, as in others dealing with the same subject matter, despite efforts arguing for the appropriateness of a nonhuman animal being regarded as a legal person, legal personhood itself emerged unscathed. The concept is assumed to be solid enough – and flexible enough – to withstand enlargement and shrinkage at the will of legislative and/or judicial decisions. But this is not the case.

3In his book “A Theory of Legal Personhood”, Visa Kurki sets out to demonstrate that the traditional Western view, which he calls the Orthodox view, regarding both (i) who or what can be a legal person and (ii) what legal personhood entails, is flawed because it has not kept the pace with advances in legal theory relative to rights’ theories and because it has no clear criteria or conceptual underpinnings that allow for concluding consistently, one way or the other, that a given entity can or cannot be regarded as a legal person. As an alternative to the Orthodox view, Kurki proposes what he calls the bundle theory of legal personhood, in which legal personhood is understood as a cluster property that consists of a bundle of active and passive “incidents” that occur to certain entities. Such “incidents” are discrete legal rights, responsibilities, and competencies held by legal persons.

4Kurki’s theory diverges from the Orthodox view because it provides criteria from which to establish who can be regarded as a legal person, based on the kinds of incidents with which an entity can be reasonably endowed. Perhaps more importantly, it also breaks down personhood into (interconnected) parts, concluding that being a “legal person” means falling on a spectrum ranging from full to borderline personhood, depending on the kinds of incidents endowed to a specific personal entity. On the one hand, this means that Kurki’s theoretical framework enables the establishment of firmer outer boundaries to the extension of legal personhood. On the other hand, it allows for better tailoring in terms of what kind of legal person a given entity might be.

5Refreshing as it may be, Kurki’s analysis still leaves what he calls extensional beliefs, which consist of the traditional Western view regarding which entities are undisputedly considered legal persons, largely untouched. He asserts that no legal system disputes that human beings who are born, alive, sentient, and mentally able are legal persons. This has been widely accepted thus far. What seems more problematic, however, is that Kurki assumes that the possession of at least some of the attributes that form extensional beliefs is a threshold for an entity to even be considered a candidate for legal personhood.

6Why is that? Assuming that extensional beliefs concern entities that are undisputedly legal persons, does not necessarily imply that entities without any of the attributes cannot be legal persons. Kurki advises that legal personhood cannot be treated as “everything goes” and that it is not a legal fiction or a mere legal fiat and, at the same time, that it is not bound by philosophical considerations on the meaning of personhood. Surely, consistency can be achieved somewhere in between.

7The review carried out here will try to argue, first, that one of the aspects that forms these extensional beliefs, sentience, is of utmost relevance to the conceptual scheme that Kurki tries to set up and, therefore, deserves more attention when arguing what and who can be legal persons. It then examines a possible challenge to this scheme: the legal systems in Bolivia and Ecuador, which recognize non-sentient beings as legal persons for reasons rooted in cultural and anthropological variables, which may not have been properly considered by Kurki when devising his theory.

2 What or who can be a person?

  • 1 Kurki 2019: 9.
  • 2 They have intrinsic value and are an end in themselves. Kurki 2019: 63.
  • 3 Kurki 2019: 64; Korsgaard 2018: 141.
  • 4 Kurki 2019: 64.

8The concept of sentience is of paramount importance for the discussion of Kurki’s work. At various times in the book we see the assertion – directly or indirectly – that only sentient beings can be legal persons. In the section “Who is a Person?”, for example, the author states that anencephalic individuals cannot be people because they do not have sentience.1 Furthermore, following Korsgaard, Kurki states that sentient beings have ultimate value2 and are serious candidates for having rights and being legal persons.3 Kurki states that “in the rest of the book, I will proceed from the premise that only sentient beings are of ultimate value.”4

9The semantic clarification of the concept of sentience is of fundamental importance in delimiting the scope of the theory developed in the book. After all, if we are dealing with the “Theory of Legal Personhood”, then we should also know what legal personhood is not. Why is sentience essential for establishing the status of legal persons? Can the ownership of rights, from a strictly legal perspective, occur with any entity?

  • 5 This is the creed that objects, places, and creatures all possess a proper spiritual essence, being (...)
  • 6 Kurki 2019: 128.

10First, Kurki states that he will not start from an animistic point of view.5 Furthermore, it should be clarified that Kurki differentiates legal persons, in a broad sense, from legal platforms.6 Legal platforms, for Kurki, ought to be used instead of legal persons when referring not to entities that hold rights and duties, but rather to the bundle of legal positions that constitute the legal relations of these entities. A legal platform, Kurki says, is always attached to a legal person, and whereas any given legal person will always have at least one legal platform attached to them, there might be more than one, depending on how many integrated, properly named, and separate bundles of legal positions are attached to them. Additionally, and more importantly for the purposes of my argument, Kurki claims that having an attached legal platform – as rivers or idols to which legal personhood has been granted might – does not mean that the entity in question is a legal person. This is because, according to Kurki, eschewing a purely legalist view, for an entity to be able to be regarded as a legal person, the bundle of legal positions that constitute its legal platform must constitute incidents of legal personhood that pertain to the entity itself, rather than merely being part of the platform bundle.

  • 7 Kurki 2019: 26.
  • 8 Korsgaard 2018: 31.

11In a strict sense, Kurki states that to be a person, it is not enough to be the holder of rights and duties. It is necessary to have more than a mere legal platform or a mere bundle of legal positions. To be a legal person, there must be a series of legally relevant events coupled to this particular entity. However, this requirement will only make sense if this entity has interests to be protected. These incidents, even passive incidents (fundamental protections, bodily integrity, and protection of life and liberty), cannot be coupled to any entity (rivers, idols, or rocks). They will only make sense if the entity has, at a minimum, sentience.7 Kurki follows, in this case, Korsgaard’s understanding8 of which sentient beings have a self.

2.1 Who is sentient after all?

  • 9 Hacker 2010: 130 ff.

12In fact, one can speak of a certain order of non-sentient agent needs (plants need sun to develop, bacteria need an environment to proliferate, viruses need hosts to manifest, etc.). However, this is only an explanation of how the vital processes of the individual function (such as the tropism of plants). They are reactions to the environment,9 and there is a need to comply with its operating cycle. Needs are something attributed to non-sentients as primitive beings because they obviously do not make their needs explicit.

  • 10 Hacker 2010: 131.
  • 11 Korsgaard 2019: 20.

13Conversely, in addition to tendencies and aversions, sentient beings have perceptive powers. In many cases, they feel pain.10 But, determining whether an entity is a non-human sentient remains unclear. I (human) can, from the behavior of these entities, and through scientific studies, assess whether they have sensory powers, receive environmental stimuli, are able to act/react to them, etc. By sensing the environment, these entities act and react to it, and even represent it at times.11 The behavioral repertoire of these entities varies immensely. Even entities with limited repertoires, however, show volition, interests, dispositions, and preferences. Is the sentient/non-sentient division clear in Kurki’s view?

  • 12 More recently, another non-human animal has become a candidate for protection against pain in Switz (...)

14Kurki warns that from a practical perspective the separation between these concepts is extremely tenuous, and in general, that the limits of sentience can be highly blurred. Sentience is commonly associated only with vertebrate animals it is impossible to know whether animals such as the octopus (invertebrate) have sentience or not. According to all indications, especially given its “intelligent” behavior, the octopus is a strong candidate for ultimate value.12

2.2 Why are sentient beings of ultimate value?

  • 13 Kurki 2019: 64.
  • 14 Hacker 2010: 123.

15Even when their repertoire is limited, it is possible to perceive whether beings have dispositions and preferences. Sentient being dispositions can be observed from their behavior. They have preferences and desires, albeit elementary: to be well cared for, to have clean food and water, etc. In other words, they experience the world.13 In short, they show their will, which also includes, according to Hacker, “intentions, motives and purposes”.14 Adverse reactions, such as not feeling pain can also be included. Sentient beings are serious candidates for being legal persons.

16In short, sentience seems to be of ultimate value, that is, an attribute the possession of which would be the bare minimum standard to allow it to be endowed with a specific moral or legal status (that of a person or quasi-person) because things matter only to sentient beings. A rock – or a river – does not care in any way, shape, or form about what happens to it, it has no needs or wants, and its value is measured only in functional terms. Only sentient beings have a true stake in the world around them because they have their own purposes and objectives and, thus, behave accordingly.

  • 15 Korsgaard 2018: 20.

17In the case of humans and some highly developed primates, the repertoire of interests is enormous, and desires can even be verbalized. According to Korsgaard,15 animals are guided by their representations, seeking good things and avoiding bad things. Korsgaard also states that sentient beings perceive the world in a valenced way.

2.3 Kurki’s limit of legal personhood

18Kurki’s argumentative process is quite logical. By differentiating between legal platforms and legal persons, several possible criticisms regarding the attribution of personality to nonhuman beings are defended. Supported by Hohfeld’s theory, Kurki re-signifies the concept of legal persons.

  • 16 Kurki 2019: 150.

19Strongly supported in the division between passive and active incidents, Kurki highlights that “[a legal platform] first, confers benefits […]; second, it imposes responsibilities; and third, it grants competences [...]. Therefore, a legal platform can attach to human beings and nonhuman animals”.16 Thus, it is quite clear to Kurki that rivers and the planet Earth cannot be people.

3 Counterpoint: the constitutions of Ecuador and Bolivia

20The constitutions of two South American countries, Bolivia and Ecuador, consider legal personhood in a much more radical sense than Kurki. Within these legal systems, Mother Earth and her component parts (forests, rivers, and mountains), are part of a harmonic and interconnected whole. They are ultimately legal persons. We have two possible ways to analyze and interpret this particular norm: to apply exclusively Western concepts or to try to penetrate the rationality underlying these ideas, i.e., to debate them. The first option seems extremely Eurocentric. In this way of thinking, only European rationality will be considered, which is considered the ultimate way of conceiving the world. The second option, which points to an interface between law and anthropology, seeks the ethos underlying these legal documents. After all, they have a history and an internal logic that at first glance may seem distant from everything advocated by the West. Immersion in this way of thinking will, however, bring gains to the West, addressing concepts such as legal persons and subjects of the law in a much more multifaceted and complex way.

3.1 Constitution of Bolivia

21In Bolivia, the influence of traditional religions and of the Quechua and Aymara people is enormous. Evo Morales, the first president of indigenous origin in Bolivia, was elected in 2006, remaining in power until 2019. His government had a strong nationalist appeal, seeking to value ancestral beliefs, cults, and traditions. Morales’s inauguration, laden with mystical meaning, took place at the Tiwanaku Ruins, a pre-Incan archaeological site and one of the symbols of local indigenous tradition. The ancestral cult of the Pachamama (Mother Earth), existing in pre-Columbian times, was resumed in Morales’s government, laden with strong religious appeal.

22The current Constitution, enacted on February 7, 2009, was passed in a countrywide referendum, with almost 62% approval. The Morales government, in addition to its socialist tendency, appealed strongly to indigenous traditions originating in Bolivia.The Bolivian Constitution states that Pachamama, according to the Universal Declaration of the Rights of Mother Earth, is a “collective subject”:

Universal Declaration of the Rights of Mother Earth From World People's Conference on Climate Change and the Rights of Mother Earth, Cochabamba, Bolivia, 22 April - Earth Day 2010.

Preamble

We, the peoples and nations of Earth:
considering that we are all part of Mother Earth, an indivisible, living community of interrelated and interdependent beings with a common destiny;
gratefully acknowledging that Mother Earth is the source of life, nourishment and learning and provides everything we need to live well; [...]

Article 1: Mother Earth
Mother Earth is a living being.
Mother Earth and all beings are entitled to all the inherent rights recognized in this Declaration without distinction of any kind, such as may be made between organic and inorganic beings, species, origin, use to human beings, or any other status.
Just as human beings have human rights, all other beings also have rights, which are specific to their species or kind and appropriate for their role and function within the communities within which they exist.
[...]

Article 2: Inherent Rights of Mother Earth
Mother Earth and all beings of which she is composed have the following inherent rights:
Right to life and to exist;
Right to be respected;
Right to regenerate its bio-capacity and to continue its vital cycles and processes free from human disruption;
Right to maintain its identity and integrity as a distinct, self-regulating and interrelated being;
Right to water as a source of life;
Right to clean air;
Right to integral health;
Right to be free from contamination, pollution and toxic or radioactive waste;
Right to not have its genetic structure modified or disrupted in a manner that threatens its integrity or vital and healthy functioning;
Right to full and prompt restoration for the violation of the rights recognized in this Declaration caused by human activities.

3.2 Constitution of Ecuador

23Ecuador has approximately 17 million inhabitants, 7% of whom are Amerindians. The cult of ancestors is also still strong in this country.

24The 2008 Constitution of Ecuador, which concerns the study of legal persons, is of particular interest here. In its Preamble, the constitutional text highlights “Celebrating nature, the Pachamama (Mother Earth), of which we are a part and which is vital to our existence […]”. Further in the document, the text is quite explicit:

Chapter Seven
Rights of nature
Article 71. Nature, or Pachamama, where life is reproduced and occurs, has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes.
Article 72. Nature has the right to be restored. This restoration shall be apart from the obligation of the State and natural persons or legal entities to compensate individuals and communities that depend on affected natural systems”.

  • 17 Ruas 2019: 19.

25As seen, the Constitution of Ecuador considers Pachamama a legal person. Furthermore, natural elements can also be plaintiffs in legal proceedings, with a view toward river conservation. In a peculiar case, the Vilcabamba River appeared as the author, in 2010, of a lawsuit (obviously represented by interested parties) for repair of the damage caused to the river by the Provincial Government of Loja. The Via Sur Company deposited stones and other excavation materials on the banks of the river, causing an ecological imbalance in the region. The lawsuit was dismissed for procedural reasons only. However, it was confirmed that the Vilcabamba River can be the originator of the lawsuit.17

3.3 Mother Earth

  • 18 Kurki 2019: 128.

26In Kurki’s theory, “Mother Earth”, as has already been seen, is only a bundle of legal positions.Thus, as discussed, the legal platform consists of an “array of legal positions”, which may or may not be attributed to Mother Earth. In this case, the constitutions of Bolivia and Ecuador do not fit the theoretical framework that Kurki outlines for a legal person. Once again, Kurki is peremptory: “a legislator can create a virtually infinite number of legal platforms, [but] it does not follow that absolutely anything can be a legal person”.18

  • 19 Kurki 2019: 118.

27There is no denying the strong meta-legal appeal of Bolivia’s and Ecuador’s constitutions. The people of these countries are of millennial ancestry and were attacked by Catholic colonizers for hundreds of years. Now, in the 21st century, some ancestral concepts have returned to the political scene in the form of legal persons – at least for Andean people. Thus, it is noteworthy that Pachamama has constitutional rights. At first glance, it is also a legal person. However, again according to Kurki, we can treat it as a legal platform with the ownership of rights, configuring Pachamama as the holder of a “cluster of rights” because, at least according to the provisions of the Ecuadorian Constitution, it is an entity analogous to a legal person.19

  • 20 Decolonial is a way of rethinking the hegemonic narrative of modernity by breaking away from the co (...)
  • 21 Ruas 2019.
  • 22 Llasag 2018. This way of thinking also (re)creates the identity of the Kíchwas peoples, who have be (...)

28The basic concept of both Andean constitutions presented here is that of Sumak Kawsay Yachay. To understand how these constitutions perceive the full protection of nature, we must look at its epistemological basis through a decolonial theoretical approach.20 It is essential to understand that Pachamama is a much broader concept than Mother Earth and/or Nature. Pachamama is a living entity, a guardian, and a notion that goes far beyond the Western view of nature. It is a protected entity due to its fundamental importance for reaching Sumak Kawsay’s fullness. Sumak Kawsay, often mistakenly translated as “living well” (“buen vivir”), can be summarily described as an Andean development scheme based on the fullness of life and harmony with nature.21 Yachay is a different form of the Western way of conceiving the world, where the life organization system goes through forms of knowledge, following principles of interrelation, complementarity, and reciprocity.22 The recognition of Nature’s personality and its juridical protection is implemented in the constitution as an acknowledgment that it is a prerequisite for reaching Sumak Kawsay – the necessity to protect and respect Pachamama. By recognizing Nature as a legal entity, these constitutions are also respecting and legally recognizing the cultural heritage of the local indigenous people.

29From a pragmatic point of view, there are also gains, considering that according to the Constitution of Ecuador, Art. 71, [a] II, persons, communities, peoples, and nations can call upon public authorities to enforce the rights of nature. To enforce and interpret these rights, the principles set forth in the Constitution shall be observed, as appropriate.

4 Conclusions

30The book, entitled “A Theory of Legal Personhood”, by Visa Kurki is a milestone in thinking and conceiving legal persons and subjects of law. Abandoning the orthodox view of the person opens the way for new conceptions of who should be protected as a person within the legal system, making room for all sentient beings. Thus, his book is strongly recommended, as the reader will only gain from his clear, logical, and well-constructed exposition.

31However, the path forward is not yet fully clear. Certainly, sentience is extremely important and should always be taken into account by legal systems. However, some Andean people treat the Earth, nature, and animals (including humans) in radically different ways. Kurki should take his academic projects regarding the concept of a person and its consequences a step further by addressing the extant literature on Pachamama and Sumak Kawsay Yachay, which could prove an interesting and rewarding path forward.

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Bibliography

Hacker, P.M.S. (2010). Human nature: The categorial framework. Oxford University Press.

Hohfeld, W.N. (1913). Some fundamental legal conceptions as applied in legal reasoning. Yale Law Journal, 23(16), 16-59.

Hohfeld, W.N. (1916). Fundamental legal conceptions as applied in judicial reasoning. Yale Law Journal, 26(16), 710-770.

Korsgaard, C.M. (2018). Fellow creatures: Our obligations to the other animals. Oxford University Press.

Kurki, V.A.J. (2019). A Theory of Legal Personhood. Oxford University Press.

Llasag, R.F. (2018). Constitucionalismo Plurinacional desde Sumak Kawasay y sus saberes. Huaponi.

Mauss, M. (2003). Sociologia e Antropologia. Cosac Naify.

Ruas, G.D.N. (2019). Direitos da Natureza na constituição do Equador a partir de uma perspectiva decolonial: um estudo sobre o caso Vilcabamba. Federal University of Minas Gerais.

Silveira, G.E., Eidelwein, T., & Libardoni, P.J. (2019). Deocolonial communitarianism: The constitutional recognition of Pachamama as subject of law. In Silveira, G.E., Arafa, M. A., & Libarddoni, P. J. (Eds.). The new human rights agenda: Loud voices from the global periphery (1st ed., pp. 13-31). CirKula.

Zaffaroni, E. R. (2011). La Pachamama y el humano. Madres de la Plaza de Mayo.

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Notes

1 Kurki 2019: 9.

2 They have intrinsic value and are an end in themselves. Kurki 2019: 63.

3 Kurki 2019: 64; Korsgaard 2018: 141.

4 Kurki 2019: 64.

5 This is the creed that objects, places, and creatures all possess a proper spiritual essence, being living entities. Kurki 2019:129

6 Kurki 2019: 128.

7 Kurki 2019: 26.

8 Korsgaard 2018: 31.

9 Hacker 2010: 130 ff.

10 Hacker 2010: 131.

11 Korsgaard 2019: 20.

12 More recently, another non-human animal has become a candidate for protection against pain in Switzerland: the lobster. Le Conseil fédéral suisse Ordonnance sur la protection des animaux (OPAn) Modification du 10 janvier 2018: Art. 23, al. 1, let. f et g 1 Il est en outre interdit de pratiquer les interventions suivantes sur les poissons et les décapodes marcheurs: f. transporter les décapodes marcheurs vivants directement sur de la glace ou dans de l’eau glacée; g. détenir hors de l’eau les décapodes marcheurs qui vivent dans l’eau […]

Art. 177, al. 1, 1bis et 2, partie introductive 1 Seules des personnes compétentes en la matière sont autorisées à mettre à mort des vertébrés et des décapodes marcheurs. 1bis Par compétentes, on entend les personnes qui ont eu la possibilité d’acquérir sous la direction et la surveillance d’un spécialiste les connaissances et l’expérience pratique nécessaires à la mise à mort d’un animal et qui mettent régulièrement à mort des animaux.”

13 Kurki 2019: 64.

14 Hacker 2010: 123.

15 Korsgaard 2018: 20.

16 Kurki 2019: 150.

17 Ruas 2019: 19.

18 Kurki 2019: 128.

19 Kurki 2019: 118.

20 Decolonial is a way of rethinking the hegemonic narrative of modernity by breaking away from the colonial power matrix. Ruas 2019: 23.

21 Ruas 2019.

22 Llasag 2018. This way of thinking also (re)creates the identity of the Kíchwas peoples, who have been scattered for centuries.

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References

Electronic reference

Brunello Stancioli, “A bundle of rights and Pachamama: Visa Kurki’s theory of legal personhood”Revus [Online], 44 | 2021, Online since 16 March 2021, connection on 17 June 2024. URL: http://journals.openedition.org/revus/6893; DOI: https://doi.org/10.4000/revus.6893

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About the author

Brunello Stancioli

Professor of Law, The Federal University of Minas Gerais, Brazil

E-mail: stancioli@direito.ufmg.br

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Copyright

CC-BY-SA-4.0

The text only may be used under licence CC BY-SA 4.0. All other elements (illustrations, imported files) are “All rights reserved”, unless otherwise stated.

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