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Symposium on the theory of legal personhood

Shaving Ockham

A Review of Visa A.J. Kurki’s ‘A Theory of Legal Personhood’
Raffael N. Fasel

Abstract

Visa Kurki’s ‘A Theory of Legal Personhood’ makes an impressive effort to put legal personhood on a more rigorous analytical footing without shying away from contentious issues such as the legal rights and personhood of foetuses, AIs, and animals. Focusing on its contribution to animal rights law, I show in this review that despite its numerous strengths, the book also has important shortcomings. A particular problem that stands out is that Kurki’s theory of legal personhood is built on an uncharitable reading of the accounts of two leading animal rights proponents. Unlike Kurki suggests, these accounts do not equate legal personhood with rights-holding, but with fundamental rights-holding. This position—which I call the Fundamental Rights View—can explain all the beliefs that Kurki’s theory aims to explain, but without being nearly as complex as it. Moreover, while Kurki’s theory helpfully raises awareness of the varied nature of legal personhood, I suggest that a pluralist understanding of legal personhood might provide a simpler explanation for that diversity.

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1 Introduction

  • 1 For an animal rights proposal from the eighteenth century see Fasel 2019b: 538-539.

1It is probably no exaggeration to say that philosophers have dominated the study of animals’ rights and personhood ever since Peter Singer and Tom Regan revived interest in these issues in the late twentieth century.1 Even when questions of a primarily legal nature were concerned, answers by legal experts were few and far between. Recent times have witnessed a welcome reversal of this trend, with more and more lawyers and legal theorists stepping out from the shadows of their philosophy colleagues and developing legal approaches to the (legal) rights and personhood of animals (e.g. Francione 1995; Wise 2000; Stucki 2016a; Vink 2020; Deckha 2020). Visa Kurki’s ‘A Theory of Legal Personhood’ is not limited in its scope to animal legal personhood and rights. Nevertheless, it can be regarded as a major new publication in the emerging field of animal rights law, and I will primarily be considering it from that perspective in this review. Readers interested in other aspects of the book, about which this review will have little to say, may wish to read this review in conjunction with the other contributions to this book symposium.

2As will become evident to its readers, Kurki’s book provides one of the most meticulous and exhaustive accounts of legal personhood to date. Kurki’s chief focus is analytical, asking what legal personhood is and who can have it, rather than who should have it (though the book also contains a useful consideration of some of its normative implications in Chapter 7). With admirable clarity and confidence, Kurki relates the history of the concept of legal personhood, canvasses the legal positions of a wide range of different human beings and animals, explores the legal status of companies and other group-agents, and investigates the legal personhood of artificial intelligences (AIs).

3While anyone interested in these topics can expect to find useful insights in Kurki’s book, it is a true treasure trove for all those who, like Kurki himself, are devoted to Wesley Hohfeld’s analytical framework of rights (Hohfeld 1913, Hohfeld 1917). Following in the footsteps of his doctoral supervisor Matthew Kramer, Kurki embraces the Hohfeldian framework because of, among other reasons, a shared aversion to “the tendency … to treat as simple that which is really complex” (Kurki 2019: epigraph).

4Equipped with Hohfeld’s framework, Kurki takes aim at what he calls the “Orthodox View of legal personhood”, which treats legal personhood as equivalent to holding legal rights and/or bearing legal duties (Kurki 2019: 15). Kurki believes the Orthodox View to be misguided and he proposes in its stead the so-called “Bundle Theory of legal personhood”, which views legal personhood as a non-binary cluster concept consisting of different sets of Hohfeldian legal positions (Kurki 2019: 5). Specifically, Kurki distinguishes between “passive legal personhood” and “active legal personhood” (Kurki 2019: 94-118).

5The central thesis of the book is that the Bundle Theory can make better sense of existing practices and beliefs (which Kurki calls “extensional beliefs” (Kurki 2019: 55)) about who is and who is not a legal person than the Orthodox View, and that the Bundle Theory should therefore replace the Orthodox View. Kurki justifies the fact that the Bundle Theory is, by his own admission, “significantly more complicated than the Orthodox View” (Kurki 2019: 18), by invoking Ockham’s razor: “the simpler explanation is only better all other things being equal, and the Orthodox View fails to appreciate many of the nuances of the topic to the point of being misleading” (Kurki 2019: 18).

6Despite its initial appeal, Kurki’s argument is not without its shortcomings. A particular issue that stands out is that, at least in the debates on animal legal personhood and rights which feature prominently in the book, Kurki’s definition of the Orthodox View is based on an uncharitable reading of the work of two leading scholars and practitioners, Steven Wise and Gary Francione. This is problematic because it affects the book’s central argument for replacing the Orthodox View with the Bundle Theory, and it is connected to its methodological commitment not to treat as simple that which it takes to be complex. As Section 2 will propose, in the animal rights context, the work of Wise and Francione is best understood not as equating legal personhood with the holding of legal rights, but with the holding of fundamental legal rights (I call this the Fundamental Rights View). I will show that the Fundamental Rights View can make sense of the extensional beliefs Kurki invokes to demonstrate the plausibility of the Bundle Theory without needing near the complexity. With this main selling point of the Bundle Theory in question, Section 3 then enquires into whether the book advances animal rights law in other respects. I will show that while the Bundle Theory’s substantive upshots are not new, it helpfully draws attention to the fact that legal personhood comes in different shapes and forms. However, I will propose that a pluralist approach to legal personhood might offer a simpler explanation for this diversity than Kurki’s monist approach. I conclude the review by speculating that the problems addressed in Sections 2 and 3 may be the result of Kurki’s commitment to Hohfeld’s analytical framework, which appears to treat as complex even that which is in fact simple.

2 The orthodox view reconsidered

7Kurki discusses five different formulations of the Orthodox View, defining it respectively as: the holding of at least one right or duty; the holding of at least one right and duty; the legal capacity to hold rights and duties; the legal capacity to participate in legal relations; or a bundle of rights and duties (Kurki 2019: 55-56). The first part of Kurki’s book is dedicated to showing that none of these formulations can make sense of widespread beliefs about legal personhood once we look at them through a Hohfeldian lens. Among the extensional beliefs that Kurki mentions are:

(1) Beings who are human, born, sentient, and currently alive are legal persons;
(2) Nonhuman animals and human foetuses are not legal persons;
(3) Slaves were not legal persons;
(4) There are “relevant legal differences between the legal personhood of adults of sound mind and that of infants and severely mentally disabled individuals” (2019: 14);
(5) Certain artificial entities, such as corporations, are legal persons.

8According to Kurki, the Orthodox View fails to accommodate these beliefs because modern Hohfeldian theories, such as certain interest and will theories of rights, “either ascribe rights to entities that are not usually classified as legal persons, such as foetuses and nonhuman animals [and slaves; (2), (3)], or deny rights to entities that are ordinarily classified as legal persons, such as human children [or artificial entities; (1), (4), (5)]” (Kurki 2019: 15).

  • 2 It is worth noting that this finding is not beyond controversy. In continental European legal disco (...)
  • 3 See Kurki 2019: 5-6.

9Take the example of nonhuman animals. According to Kurki, proponents of the Orthodox View believe that animals’ legal status as property (or things), rather than legal persons, implies that they do not have any legal rights. However, the Hohfeldian analysis reveals that nonhuman animals do, in fact, already hold legal rights.2 This is because most jurisdictions have legal rules (generally enshrined in animal protection laws) that create Hohfeldian legal positions for animals. For instance, many animals have claim-rights not to be inflicted with unnecessary suffering because human beings bear correlative legal duties not to inflict such suffering on these animals. If certain animals already have legal rights despite not being legal persons, Kurki concludes, then the Orthodox View, which equates legal personhood with legal-rights holding must be misguided, as it cannot explain why animals are believed to lack legal personhood. According to Kurki, the Bundle Theory can make better sense of this and other extensional beliefs. Instead of explaining animals’ lack of legal personhood with the Orthodox View’s (incorrect) claim that animals lack legal rights, the Bundle Theory holds that animals currently lack legal personhood because they lack sufficient legal positions to be passive legal persons.3

  • 4 More specifically, Wise is taken to adopt the Capacity-for-Rights formulation of the Orthodox View, (...)
  • 5 See Kurki 2019: 1-5, 93, 197-199.

10To be sure, Kurki’s argument is packed with analytical subtleties that my summary here cannot do justice to. What I can say, however, is that its alluring complexity hides a problem – at least as far as animal rights debates are concerned. Kurki’s argument seems to be based to a considerable extent on an uncharitable interpretation of the theories of leading animal rights advocates such as Steven Wise and Gary Francione, whom he mistakenly takes to be advocates of the Orthodox View. Wise has a particularly large target on his back, as the book casts him as having “framed” entire “strands of the current animal rights debate” (Kurki 2019: 53) that falsely believe that animals, as property, do not currently hold legal rights.4 Kurki is well aware that Wise has not only been the driving force behind the habeas corpus petitions that the Nonhuman Rights Project (NhRP) has been filing in the U.S., but that he has also inspired similar law suits in other jurisdictions. The book uses these cases as illustrations of how courts’ and lawyers’ understanding of legal personhood and rights-holding is currently clouded by the Orthodox View, and to make the pitch for the Bundle Theory.5

  • 6 See also Kurki 2019: 119.
  • 7 See on this also Fasel & Butler 2020: 5.

11However, a study of Wise and Francione’s accounts reveals that none of them are actually guilty of equating legal personhood and right-holding. The simple reason for this is that both authors explicitly acknowledge that it is possible to say that animals already have “legal rights” despite not being legal persons. They have these rights in virtue of being the beneficiaries of legal protections such as those enshrined in animal welfare acts. However, as I will show below, both authors point out that such “legal rights” are very thin rights indeed and come nowhere near the protection that fundamental human rights afford to human beings (I will say more about the difference between thin and thick/fundamental rights below).6 As a result, they suggest that it would be better not to call them “legal rights” at all. To be sure, the writings of both Wise and Francione contain numerous ambiguities, and their conceptual views quite often appear to be influenced by strategic considerations.7 Nevertheless, it is a misinterpretation of these accounts to regard them as being committed to the Orthodox View.

  • 8 Emphasis added. Wise is here summarising an earlier contribution: Wise 1996.

12Consider Wise. In one of his most influential articles, which Kurki cites frequently, Wise explicitly addresses the question of whether nonhuman animals are eligible for “dignity rights” rather than thin legal rights (Wise 1998). In Wise’s definition, dignity rights are “fundamental legal rights” (Wise 1998: 795) that include rights such as the rights to bodily integrity and liberty. They are much like human rights, but with the crucial advantage of applying to any being with dignity, not just humans. It does not take much to recognise that Wise here attempts to connect legal personhood with the holding of dignity or fundamental rights, and not thin legal rights. For instance, at the outset of his article he criticises the status of “‘legal thinghood’ of nonhuman animals that disqualified them from legal personhood because of their species and thereby rendered them ineligible even for such fundamental ‘human rights’ as bodily integrity and bodily liberty” (Wise 1998: 794-795).8

  • 9 Emphasis added. See also Wise 1998: 910.
  • 10 See e.g. ibid. (where the language changes to “claim-rights and immunity-rights may be derived …”). (...)

13Of course, Wise is not always consistent in his use of the term “dignity rights” and sometimes simply talks of “legal rights” instead (e.g. Wise 1998: 795). But to infer from this that he equates legal personhood and (thin) legal rights, rather than dignity rights, requires turning a blind eye to the rest of the article and, indeed, Wise’s work more generally. To be fair, Kurki has a somewhat firmer ground for his categorisation of Wise as a proponent of the Orthodox View: Wise favours a particular interpretation of Hohfeld’s theory according to which Hohfeldian legal relations can only exist between legal persons, not legal things. Because animals are things, Wise suggests, they would be unable to hold Hohfeldian legal positions such as claim-rights (Wise 1998: 801, 803). Kurki infers from this that “Wise does not only claim that animals currently lack dignity-rights. This is a claim I could mostly agree to. Rather, Wise claims explicitly that animals hold no rights whatsoever” (Kurki 2019: 97, footnote 17). But Kurki’s claim ignores an important fact. Wise explicitly states that “in some jurisdictions, the enactment of criminal statutes intended to protect the interests of nonhuman animals has already created legal claim-rights for them” (Wise 1998: 799).9 Hence, Wise does not deny that animals already have certain legal rights despite lacking legal personhood. And even if he did—as one might try to argue based on some of the ambiguities that remain in Wise’s writings—10 it is obvious that Wise’s emphasis is on the need to turn animals into holders of dignity or fundamental rights, which he links to legal personhood.

14Francione’s argument is similar in many respects. In his seminal book Animals, Property, and the Law, he makes clear that he is aware of the fact that “some writers have argued that regulatory laws—be they criminal laws or administrative regulations—really can create rights in animals” (Francione 1995: 92). In particular, he agrees that “[a] simple application of Hohfeld’s framework would lead to the view that animals have all sorts of rights” (Francione 1995: 97). However, as Francione underscores, even if animals already possess such legal rights, these rights do not amount to “true animal rights” (Francione 1995: 91). That is, they do not deserve the designation of “rights” as they do not reflect what we generally mean when we talk of “rights” (Francione 1995: 114).

  • 11 Whether or not Francione is correct to claim that animals currently (largely) lack respect-based ri (...)
  • 12 See Francione 1995: 109-110.

15 To explain his point, Francione distinguishes between what he calls “respect-based rights” and thin legal rights (which he sometimes calls “policy-based rights”) (Francione 1995: xvi–xvii, 107). As Wise does with “dignity rights”, Francione considers only respect-based rights to be rights in the true sense of the word. Building on Regan’s deontological approach to animal rights, Francione argues that respect-based rights treat their holders as ends in themselves, rather than merely as a means to others’ ends. The very purpose of rights, Francione believes, is to serve as a “barrier” (Francione 1995: 8) that protects their holders’ interests from being sacrificed to promote the interests of others (1995: 103). Like Wise, he points to the similarities that respect-based rights share with human rights in this regard (Francione 1995: 10-11). In contrast to what Kurki suggests, Francione’s central argument is thus not that animals lack legal rights, but that they lack proper legal rights, that is, respect-based rights.11 And, according to Francione, the key reason why animals lack such rights is that they are property and not legal persons.12

16Even if we ignored Francione’s emphasis on respect-based rights, it would still not follow that he equates legal personhood and rights-holdership, as Kurki maintains (Kurki 2019: 71). This is because Francione explicitly acknowledges that, as a matter of law, animals in fact already have some (very limited) respect-based rights insofar as they are protected by bans that abolish certain harmful practices (Francione 1995: 92, 102). Interestingly, Kurki notices this point (Kurki 2019: 71). However, instead of taking it as an invitation to rethink his own categorisation of Francione as a proponent of the Orthodox View, Kurki seems to regard it as a flaw in Francione’s theory—a “concession”, as Kurki puts it, that “may be partially motivated by tactical reasons” (Kurki 2019: 71).

  • 13 Kurki 2019: 97, footnote 17. See also his observation that “the distinction between personhood-rela (...)

17The term “concession” is, in my view, more aptly applied to the numerous occasions in the book where Kurki acknowledges that not only Francione but also Wise in fact defend fundamental rights accounts that would seem to place them outside the Orthodox View. For example, as we saw above, Kurki suggests that he “could mostly agree” with Wise’s position that “animals currently lack dignity-rights” (Kurki 2019: 97, footnote 17).13 In a similar vein, when discussing Francione’s account, Kurki acknowledges that Francione’s respect-based view of rights as barriers captures the role played by “[c]onstitutional and fundamental rights … in legal reasoning” (Kurki 2019: 69).

18However, perhaps guided by his commitment to revealing the complex nature of ostensibly simple questions, Kurki does not regard any of this as sufficient reason to reconsider whether the “Orthodox View” actually applies to Wise, Francione, and other animal rights actors (such as courts) dealing with animal rights cases. Instead, he clings to the contention that they fail to see that animals have claim-rights (Kurki 2019: 71, 97), and gets lost in quibbles about how they misunderstand specific aspects of the Hohfeldian framework (Kurki 2019: 69–70, 83–86, 97–98).

  • 14 As Kurki does frequently, I will be ignoring the question of duty-bearing here.

19Kurki’s reluctance to take more seriously the fact that animal rights debates focus primarily on fundamental legal rights is surprising given that, when discussing Francione, he himself acknowledges that a thicker conception of rights “does indeed correspond to the extensional beliefs much better” (Kurki 2019: 68). To see why this is so, let us briefly consider the above-mentioned extensional beliefs by applying a more charitable interpretation of Wise and Francione’s accounts, which I shall call the Fundamental Rights View. On this View, legal personhood is equated with the holding of fundamental legal rights, rather than any kind of legal right as the Orthodox View would hold.14

  • 15 For a helpful discussion, see Stucki 2020: 551-552.
  • 16 As Kurki himself notes, one cannot fully understand fundamental rights if—as is the case with his b (...)
  • 17 “Fundamental legal rights”, as I define it here, is an umbrella term that includes both fundamental (...)

20What exactly are “fundamental legal rights”? This question deserves more attention than I can devote to here.15 However, for the purposes of our discussion, we can draw on Wise and Francione’s accounts to define fundamental legal rights roughly as rights that consist of a complex set of legal protections (which can but need not be conceptualised as Hohfeldian legal positions), protect the basic interests of their holders in a way that cannot easily be infringed by countervailing interests, and provide their holders or representatives with standing to enforce them in court.16 As both Wise and Francione point out, fundamental legal rights are like human rights, with the simple difference that they are also open to nonhuman animals.17

  • 18 There are limited exceptions to this, see e.g. Stucki 2016b on animal fundamental rights. For juris (...)

21How does the Fundamental Rights View fare with regard to the extensional beliefs Kurki mentions? It appears to have no major difficulty accommodating any of them. It can explain (1) that all born, sentient, and currently alive human beings are legal persons, since all of those beings possess fundamental legal rights (human rights). It can explain (2) that nonhuman animals and foetuses are generally not regarded as legal persons. This is because, while they may possess certain thin rights, they do not possess fundamental legal rights.18 It can explain (3) that slaves were not considered to be legal persons because they lacked fundamental legal, that is, human rights. The Fundamental Rights View also does not in principle struggle to explain (4) the differences between the legal personhood of human children and humans with mental disabilities and of adults of sound mind. This is because there is nothing in the accounts of authors like Francione and Wise that requires giving identical legal personhood or fundamental rights to all humans (I will take up this point again in the next section). Finally, it can explain (5) that artificial entities are legal persons because they possess certain fundamental rights (e.g. the right to property) in many jurisdictions.

22 Now, given Kurki’s own acknowledgement of some of the points I mentioned above, he may not disagree with much of what has been said thus far. If so, however, that strikes me as a problem rather than an advantage for the Bundle Theory. For if, as I suggest, the Fundamental Rights View presents the accounts of animal rights lawyers in a more charitable light and accommodates all extensional beliefs Kurki finds important, then there would seem to be little need for Kurki’s own theory, which by his own admission “is significantly more complicated than the Orthodox View” (Kurki 2019: 18). This does not mean, of course, that Kurki’s theory is false per se, but it does challenge its claim that things are more complex than they seem.

  • 19 At least for certain types of (public law) legal personhood. On this the discussion, see Section 3.
  • 20 See e.g. Kurki 2019: 98-100, 123, 125, 178, 193.
  • 21 See also Kurki 2019: 100.

23 Because leading animal rights proponents such as Wise and Francione do not actually believe that legal personhood is equated with holding legal rights, the more interesting question we should be asking is whether, as they seem to suggest, it is equated with holding fundamental legal rights. In other words, we need to ask whether the Fundamental Rights View is in fact correct. Although I suspect that it is,19 it may well be possible that legal personhood does not necessarily (or in all domains of the law) coincide with fundamental legal rights-holdership. However, that is a position that would have to be argued, and Kurki’s book—focused as it is on the Orthodox View—does little to address it. To be sure, in several places Kurki casts light on what he means by the “fundamental” protection of life, liberty, and bodily integrity, which he takes to be characteristic legal positions for passive legal personhood.20 However, while he goes as far as suggesting that the holding of fundamental legal rights would be “central” (Kurki 2019: 97) to animals’ legal personhood, his book does not ultimately resolve this critical question.21

3 What is left

24Once we accept that some of the key actors in animal rights law do not actually defend the Orthodox View that Kurki’s book refutes, the question arises as to whether the book advances animal rights law in other respects.

  • 22 See Kurki 2019: 87.
  • 23 See Kurki 2019: 71 (where Kurki acknowledges this in a footnote referencing Cass Sunstein).
  • 24 Emphasis in original.

25 Kurki lays great store by the Bundle Theory’s implication that legal personhood is non-binary.22 While this insight is important for animal rights law, it is not new.23 For example, in 1995 Francione already emphasised that he does not claim “that property can never have rights as a matter of formal jurisprudential theory” (Francione 1995: 14), noting for example that “slaves were regarded de jure as persons and property” (Francione 1995: 110).24 Similarly, Alasdair Cochrane pointed out that the binary approach to legal personhood and thinghood is “oversimplified”, noting inter alia that animals can have legal rights despite being property and that corporations are both legal persons and property (Cochrane 2009: 432; c.f. Kurki 2019: 105). Finally, Kurki is not the first to conceptualise existing welfare protections of animals in Hohfeldian terms. In addition to Francione (1995) and Kramer (2001), Clare McCausland has more recently analysed animal welfare laws through a Hohfeldian lens (2014).

  • 25 E.g. Anthony Honoré’s bundle theory, on which Kurki draws on in Kurki 2019: 104. See also Cochrane (...)

26 Kurki’s primary contribution to animal rights law scholarship might thus lie not so much in the substantive conclusions of his approach, but in the Bundle Theory he develops to reach these conclusions. There have, of course, been other bundle (or cluster) theories before Kurki’s,25 including bundle theories of legal personhood. This does not, however, take away from the fact that Kurki’s may be one of the most rigorous and ambitious bundle theories of legal personhood to date.

  • 26 See infra p. 9.

27Kurki’s emphasis on the varied nature of legal personhood and the different legal positions that can make up passive and active legal personhood is particularly helpful in debates on animal rights. This is because there has been increasing awareness that legal personhood may not be monolithic but rather quite diverse, with different areas of law potentially operating with different notions of legal personhood.26 Kurki’s discussion of the private law roots of the Orthodox View is particularly revealing in this respect (Kurki 2019: 53).

28 However, while Kurki’s Bundle Theory contributes to a more nuanced understanding of legal personhood, it is unclear whether it is sufficiently open to the diverse phenomena that make up legal personhood. The reason for this is that while the Bundle Theory conceives of legal personhood as a cluster property with two different categories of persons (passive and active), the cluster account itself seems to be monist. That is, it conceives of legal personhood as a complex but ultimately interconnected whole or unity. Put simply, Kurki packs more than one category of legal personhood into his “bundle” but has only one bundle. This monist focus is implied, for example, in Kurki’s claim that there are “necessary criteria for legal personhood” (Kurki 2019: 24), in his invocations of “legal personhood tout court” (Kurki 2019: 94), and his preference for a “general theory of legal personhood” (Kurki 2019: 87).

29Kurki’s desire to defend such a monist general theory of legal personhood seems somewhat perplexing considering that a pluralist approach would be less complex, as it does not require constructing a unified account from the disarray of existing legal practices. Roughly, as I understand it, a pluralist approach to legal personhood does not assume that there are any essential features that connect all instances of legal personhood. Rather, legal personhood might better be viewed as a family resemblance concept in the Wittgensteinian sense, consisting of partly overlapping but also partly diverging features, with no feature(s) that make legal personhood an interconnected whole. This means, for example, that legal personhood, for the purposes of habeas corpus, may bear some resemblance to legal personhood in other domains of law, such as contract law, but that there may be no one feature that these different types of legal personhood (or rather, legal personhoods) have in common.

30Kurki addresses the issue of plurality when considering whether “there is any single overarching ‘legal personhood’, or whether instead one should address each of the different legal incidents separately” (Kurki 2019: 120). His reason for favouring the overarching approach—namely, that the incidents of legal personhood are functionally interconnected in Western legal systems (Kurki 2019: 120)—seems to assume that there are no instances of legal personhood that are not functionally interconnected. What is more, even if they all are interconnected, Kurki’s argument leaves open the central question as to what exactly the function of legal personhood is, and therefore what connects the different incidents. It seems inevitable that, depending on what one considers to be instances of legal personhood, one will reach a different answer to that question. And it might well be that a more diverse set of instances should functionally be qualified as legal personhood than Kurki’s Bundle Theory currently allows.

  • 27 Kurki draws on Pietrzykowski 2017 here.

31 Perhaps at this stage Kurki would want to invoke the distinction he draws between legal persons and “legal subjects” to accommodate the plurality of legal statuses without having to apply the concept of legal personhood to all of them. According to Kurki, “[w]hereas legal personhood is a cluster concept, ‘legal subjecthood’ refers to one’s status within a field of law or with regard to a legal institution” (Kurki 2019: 122).27 For example, he suggests that animals could be regarded as subjects of animal welfare law without being legal persons (Kurki 2019: 200).

  • 28 See e.g. State v. Fessenden, Oregon Court of Appeals, 25 September 2013, Or. App. 639, 310 P.3d 116 (...)
  • 29 Swiss Federal Supreme Court, Judgment, 16 Sep. 2020 (as of yet unpublished). See also Alder 2020.

32 There are, however, at least two reasons why it is not obvious that Kurki’s approach is preferable in the animal rights context to a pluralist approach. First, his approach seems to fly in the face of existing practices. As Kurki himself notes, in civil law traditions, “legal subjecthood” is largely treated as synonymous with “legal personhood” (Kurki 2019: 46-47). To distinguish the two for the sake of preserving a monist account of legal personhood would therefore require a change to long-standing practices and ways of legal thinking. More importantly, the pluralist view that different areas of law are operating with different definitions of legal personhood seems to be more in line with how some courts have approached animal rights cases.28 A particularly illuminating example is the Swiss Federal Supreme Court’s 2020 decision on the legality of a citizens’ initiative proposing fundamental legal rights for nonhuman primates. Confronted with the question whether the initiative would contravene the Swiss Civil Code’s definition of legal persons as holders of (private law) rights and duties, the Court found that this definition does not apply in all domains of the Swiss legal order. In particular, it suggested that Swiss public law operates with a different notion of legal personhood that is not incompatible with granting non-human primates rights.29

  • 30 C.f. Kurki 2019: 53.

33There is a direct link here to our discussion in Section 2, in that it could be that the Fundamental Rights View best captures legal personhood in public law. Kurki himself admits as much when noting that Francione’s view seems to match how “[c]onstitutional and fundamental rights” (Kurki 2019: 69) work. The Orthodox View, by contrast, might be the account of legal personhood at work in the private law context.30 Whether or not we agree with these categorisations, the important point to note is that a pluralist approach has no difficulty accommodating these different legal statuses as different types of legal personhood. As such, it could also accommodate extensional belief (4): that there are relevant differences between the legal personhood of children and persons with severe mental disabilities and the personhood of adults.

34Second, it is not clear what the practical benefits are of adopting the monist approach. Consider, for example, Kurki’s discussion of the NhRP’s habeas corpus case involving the chimpanzee Tommy. Kurki contends that, even if the relevant court had decided to grant habeas corpus to Tommy (which it did not), Tommy would not have “become a legal person tout court” because his

legal status would have been markedly different from the statuses of natural persons and corporations … It would have been misleading to refer to Tommy as a legal person without qualifying the statement (as in, say, ‘legal person for the purposes of habeas corpus’.) Tommy could also aptly have been described as a subject of habeas corpus (Kurki 2019: 199).

  • 31 See e.g. Nonhuman Rights Project v. Patrick C. Lavery, State of New York Supreme Court, Appellate D (...)

35Kurki seems to prefer the latter option. However, his implicit admission that it would not have been misleading to speak of Tommy’s legal personhood as long as suitable qualifiers are added (e.g. “for the purposes of habeas corpus”) suggests that the pluralist approach to legal personhood would not have been any less expedient in the case at hand. This is corroborated by the fact that both the NhRP and the courts it has petitioned to grant habeas corpus protection to animals have continuously used phrases such as “persons for the purposes of habeas corpus relief” without any difficulty.31

36Perhaps Kurki is able to defend his monist Bundle Theory against the pluralist approach, which—admittedly—I was only able to sketch here. However, until such an argument is provided it is unclear why we should not prefer the simpler pluralist approach to legal personhood.

4 Conclusion

37Kurki’s book makes an impressive effort to put legal personhood on a more rigorous analytical footing without shying away from contentious issues surrounding the rights of foetuses, AIs, and animals. This review has focused on animal rights law and has assessed Kurki’s contribution to this emerging field of law, and thus left a review of its potential other contributions to authors more qualified for those purposes. As I have argued, the book helps increase awareness in animal rights law debates of the non-binary nature of legal personhood. To those interested in the Hohfeldian framework, it will also serve as a very well-theorised basis for exploring in more detail the implications that can be drawn if one accepts that animals already possess certain thin legal rights.

38In spite of this, it is questionable whether the book makes as significant a contribution to animal rights law as it may seem at first sight. This is principally due to its uncharitable reading of the work of principal animal rights figures and a corresponding difficulty to yield substantive insights that go beyond those of other authors in the field. As I suggested, its choice to defend a monist account of legal personhood may also be questioned when a simpler pluralist approach is available that covers the same ground.

39Although this is primarily a matter of speculation, I suspect that in all these instances, the book’s privileging of a complicated theory over accounts that are more straightforward but also more in line with practice may be the product of a theoretical framework that aims not to treat as simple that which is complex, but ends up treating as complex that which is in fact simple.

Acknowledgments.– I am grateful to Giordana Campagna, John Adenitire, Ya Lan Chang, Michael Gold, Saskia Stucki, and the two anonymous reviewers for helpful comments on earlier drafts of this note.

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Bibliography

Alder, K. (2020, September 16). Baslerinnen und Basler stimmen über Grundrechte für Affen ab. Neue Zürcher Zeitung. https://www.nzz.ch/schweiz/primaten-initiative-ist-laut-bundesgericht-zulaessig-ld.1576944?reduced=true

Cochrane, A. (2009). Ownership and Justice for Animals. Utilitas, 21(4), 424-442.

Deckha, M. (2020). Animals as Legal Beings: Contesting Anthropocentric Legal Orders. University of Toronto Press.

Fasel, R. N. (2019a). More Equal Than Others: Animals in the Age of the Human Rights Aristocracy. PhD in Law thesis, University of Cambridge.

Fasel, R. N. (2019b). The Old ‘New’ Dignitarianism. Res Publica, 25(4), 531-552.

Fasel, R. N., & Butler, S. C. (2020). The Dawn of European Animal Rights Law. Global Journal of Animal Law, 8, 1-7.

Francione, G. L. (1995). Animals, Property, and the Law. Temple University Press.

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Kramer, M. H. (2001). Do Animals and Dead People Have Legal Rights? Canadian Journal of Law & Jurisprudence, 14(01), 29-54.

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

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Pietrzykowski, T. (2017). The Idea of Non-personal Subjects of Law. In V. A. Kurki & T. Pietrzykowski (Eds.), Legal Personhood: Animals, Artificial Intelligence and the Unborn. Springer.

Stucki, S. (2016a). Grundrechte für Tiere: Eine Kritik des geltenden Tierschutzrechts und rechtstheoretische Grundlegung von Tierrechten im Rahmen einer Neupositionierung des Tieres als Rechtssubjekt. Nomos.

Stucki, S. (2016b, December 30). Toward Hominid and Other Humanoid Rights: Are We Witnessing a Legal Revolution? Verfassungsblog. https://verfassungsblog.de/toward-hominid-and-other-humanoid-rights-are-we-witnessing-a-legal-revolution/

Stucki, S. (2020). Towards a Theory of Legal Animal Rights: Simple and Fundamental Rights. Oxford Journal of Legal Studies, 40(3), 533-560.

Vink, J. (2020). The Open Society and Its Animals. Palgrave Macmillan.

Wise, S. M. (1996). The Legal Thinghood of Nonhuman Animals. Boston College Environmental Affairs Law Review, 23, 471.

Wise, S. M. (1998). Hardly a Revolution—The Eligibility of Nonhuman Animals for Dignity-Rights in a Liberal Democracy. Vermont Law Review, 22, 793-915.

Wise, S. M. (2000). Rattling The Cage: Toward Legal Rights For Animals. Perseus Publishing.

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Notes

1 For an animal rights proposal from the eighteenth century see Fasel 2019b: 538-539.

2 It is worth noting that this finding is not beyond controversy. In continental European legal discourse in particular, the view that animals already possess legal rights in virtue of being beneficiaries of corresponding human duties (or other Hohfeldian legal positions) is not very common. I am grateful to Saskia Stucki for this point.

3 See Kurki 2019: 5-6.

4 More specifically, Wise is taken to adopt the Capacity-for-Rights formulation of the Orthodox View, according to which legal persons have the capacity to possess at least one legal right: Kurki 2019: 56.

5 See Kurki 2019: 1-5, 93, 197-199.

6 See also Kurki 2019: 119.

7 See on this also Fasel & Butler 2020: 5.

8 Emphasis added. Wise is here summarising an earlier contribution: Wise 1996.

9 Emphasis added. See also Wise 1998: 910.

10 See e.g. ibid. (where the language changes to “claim-rights and immunity-rights may be derived …”). Emphasis added. Thanks to Michael Gold for pressing me on this point.

11 Whether or not Francione is correct to claim that animals currently (largely) lack respect-based rights is a separate issue, which I cannot consider here.

12 See Francione 1995: 109-110.

13 Kurki 2019: 97, footnote 17. See also his observation that “the distinction between personhood-related rights and other rights may … help us understand what the Nonhuman Rights Project and other animal rights advocates are doing: they are not content with the limited ‘thin’ rights currently held by animals, and demand that personhood rights be extended to these creatures” (Kurki 2019: 119).

14 As Kurki does frequently, I will be ignoring the question of duty-bearing here.

15 For a helpful discussion, see Stucki 2020: 551-552.

16 As Kurki himself notes, one cannot fully understand fundamental rights if—as is the case with his book—one focuses solely on rights as legal “conclusions” rather than “reasons” for reaching legal conclusions: Kurki 2019: 69.

17 “Fundamental legal rights”, as I define it here, is an umbrella term that includes both fundamental human rights and fundamental non-human rights. See also Fasel 2019a: 8-9.

18 There are limited exceptions to this, see e.g. Stucki 2016b on animal fundamental rights. For jurisdictions that extend some fundamental rights to foetuses see e.g. Article 15(1) Constitution of Slovakia; Article 19(1) Constitution of Chile.

19 At least for certain types of (public law) legal personhood. On this the discussion, see Section 3.

20 See e.g. Kurki 2019: 98-100, 123, 125, 178, 193.

21 See also Kurki 2019: 100.

22 See Kurki 2019: 87.

23 See Kurki 2019: 71 (where Kurki acknowledges this in a footnote referencing Cass Sunstein).

24 Emphasis in original.

25 E.g. Anthony Honoré’s bundle theory, on which Kurki draws on in Kurki 2019: 104. See also Cochrane 2009: 427.

26 See infra p. 9.

27 Kurki draws on Pietrzykowski 2017 here.

28 See e.g. State v. Fessenden, Oregon Court of Appeals, 25 September 2013, Or. App. 639, 310 P.3d 1163 (finding that a horse is a “person” for the purposes of the so-called “emergency aid” doctrine that allows police to enter a property to protect persons from harm); Nonhuman Rights Project v. Samuel L. Stanley et al, Supreme Court of the State of New York, 29 July 2015, no. 152736/15: 26 (Jaffe J noting that “The determination of whether an entity or being counts as a legal person is largely context-specific, and not necessarily consistently made.”).

29 Swiss Federal Supreme Court, Judgment, 16 Sep. 2020 (as of yet unpublished). See also Alder 2020.

30 C.f. Kurki 2019: 53.

31 See e.g. Nonhuman Rights Project v. Patrick C. Lavery, State of New York Supreme Court, Appellate Division Third Judicial Department, 4 December 2014, No. 518336: 3; Nonhuman Rights Project (2018): 21.

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References

Electronic reference

Raffael N. Fasel, “Shaving Ockham”Revus [Online], 44 | 2021, Online since 16 March 2021, connection on 19 September 2021. URL: http://journals.openedition.org/revus/6921; DOI: https://doi.org/10.4000/revus.6921

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About the author

Raffael N. Fasel

Fellow in Law, London School of Economics (LSE)

E-mail: r.n.fasel@lse.ac.uk

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Copyright

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