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Symposium on the theory of legal personhood

Hidden presuppositions and the problem of paradigm persons

Visa AJ Kurki’s “A Theory of Legal Personhood”
Ngaire Naffine

Abstract

Visa Kurki’s A Theory of Legal Personhood offers a sustained, and in some ways exhaustive, account of the legal being. It also strives to consider ‘the person’ afresh and to pay close and critical attention to how the concept has developed and operated over two millennia, right up to the twenty-first century. And yet it remains an intriguing blend of innovative and traditional thinking. Though it sets out to challenge legal orthodoxy, and does so in a number of important ways, the book is itself orthodox in at least one important respect. Simply put, in its analysis of the concept of the person, it tends to assume a male subject.

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1 Introduction

1Perhaps the most fundamental concept of law is its person. Visa Kurki’s A Theory of Legal Personhood offers a sustained, and in some ways exhaustive, account of the legal being. It also strives to consider ‘the person’ afresh, to challenge legal orthodoxy and to pay close and critical attention to how the concept has developed and operated over two millennia, right up to the twenty-first century. And yet it remains an intriguing blend of innovative and traditional thinking.

2 Kurki’s innovation

2The book is innovative in that it sets out to develop, systematically and rigorously, a deeper and improved understanding of the legal concept of the person as applied in the modern world. Kurki wishes to make sense of, and in some cases enable, novel applications of the concept: to artificial intelligence; to animals; but not to rivers and rocks. He is explicitly anti-orthodox in that he reproves what he calls the Orthodox view of the person, the capacity to bear rights and duties, for failing to reconcile the major rights theories with the actual uses of the concept.

  • 1 I make this point extensively in Naffine 2009 and Naffine 2003.

3In the Orthodox view, according to Kurki, once someone or thing can bear a right it is considered a person. Personhood is therefore thought of in “all-or-nothing” terms. But Kurki observes that this is not always so, that personhood comes by and in degrees and can be purpose specific. This is not an entirely new insight, but it is an important reminder about the complexity and flexibility of legal personhood, and one worth exploring.1 As the series editors summarise the argument, “An all-or-nothing notion of legal personhood … is not well adapted to the variety of the law’s purposes” (Kurki 2019: v). And so Kurki offers ways to correct this black-and-white thinking thereby increasing the subtlety of the concept, giving it more nuance and variety and showing (which he does well) that there are “divisible but interconnected incidents of legal personhood” (Kurki 2019: viii).

  • 2 This is the theory that real rights require someone with a personal ability to enforce that right.
  • 3 The endeavours of the philosopher Peter Singer to press this line, in certain very limited circumst (...)

4Kurki teases out a further perceptive observation. This is that the standard theories of rights, especially the will theory,2 work badly as an explanation and justification of personhood for a number of beings who are clearly thought of as legal persons. As Kurki explains, legal persons are conventionally understood (especially by will theorists) as those who can act in law, and on their own behalf, and indeed be held responsible for their actions. But young children are not like this and so they are not legally competent. They lack the rational will that would permit them personally to exercise legal rights and bear legal responsibilities. However, they are still regarded as persons in law, with strong claim rights. In fact, it would be anathema to most to say that a baby was not a person.3

5Conversely, Kurki observes that in many ways animals are already protected by law and could therefore be said to bear some protective rights. But they are still not thought of as persons, even though it is typically said that the bearing of a right turns a being or thing into a person. As he points out, thus understood, animals are already persons, but this is not how they are conventionally understood. Judges have been jumpy about the explicit conferral of any formal rights on animals, believing that this would move them across a legal and moral line from property to personhood. However, as Kurki insists, there is no such conceptual clarity.

6So, personhood is not actually operating as it is thought to and Kurki wants to fix this problem and in so doing free up the concept of the legal person. Thus, he is all for animals being embraced within the concept, but not rivers: a bridge too far, perhaps, if one can forgive the pun. The reason rivers should not be thought of as persons is that they are not beings and they lack sentience. To Kurki, they do not have genuine interests for which the concept of personhood was designed. In his words, they lack “ultimate value” and “cannot be wronged” (Kurki 2019: 151).

3 Kurki’s orthodoxy: the standard cast of persons

7Though it sets out to challenge legal orthodoxy, the book is itself orthodox in at least one important respect. Simply put, it tends to assume a male subject in its analysis of the concept of the person. This masculinisation of the person is often only by necessary implication. Nevertheless, the implication is there, especially when Kurki talks about the curious legal status of the foetus. This is probably not the wish of the author and indeed there is a stated intention to embrace all human beings in this treatise. Kurki takes as a given that there is a natural human person implicit within the main body of rights and duties. He also spells out the essential characteristics of this being: “In contemporary Western legal systems, the paradigmatic natural persons are (1) human beings (2) who have been born, (3) who are currently alive, and (4) who are sentient” (Kurki 2019: 8). He then fleshes out his understanding of the first characteristic, “humanity”, but in a manner that does not give this being flesh because, as we discover from the ensuing caveats about who will not be dealt with in the book, the sex, and so sexed body and social persona of the person, will and will not be examined.

8Kurki views this instantiation of law’s persons as an appropriate and neutral starting point for analysis. He shows an estimable desire to be intellectually open and even-handed from the outset. However, this bid for neutrality is weakened by the simple historical fact that the legal casting of persons has been far from neutral in its values, as Kurki can discern with animals but less so with adult men and women, who constitute his notional rational adults of full status, at least in the modern Western world. So Kurki’s raw materials – his ingredients for the legal analysis of the person - do not possess the clean qualities they are taken to have.

9Kurki is implicitly aware of this, as we can tell from his initial exclusionary moves, designed to clear the intellectual ground for the making of sound theory. The awkward case of adult rational women’s defective legal status over the centuries, their impaired and variable personhood, is set to the side from the outset. Kurki’s implicit person is not a generic human (though what would this look like?) nor is he a woman. Rather he is an able-bodied and rational adult man, though this is not how he is explicitly characterised. Considered as a man, law’s template person is in fact a highly specific member of the population and he is a minority member. His characteristics match those of his makers. This is no accident.

  • 4 See my argument and analysis in Naffine 2019.

10Women are a problematic case of personhood, which will only complicate his inquiry. As Kurki explains, “The legal status of women has historically varied quite a bit from jurisdiction to jurisdiction, which is why it will not be a focal case when I assess the problems of the Orthodox View” (Kurki 2019: 15). But, if the laws governing the personhood of women are too variable over time and jurisdiction to supply a sure footing for analysis, so too are the laws governing the personhood of men. To be a full legal person, one has needed to be a man and not a woman. The paradigmatic person has historically been a man, no bones about it, and we still live with the residue of this paradigmatic being – more on this shortly. The personhood of men has therefore always, in an important sense, taken its positive meaning from the non-personhood of women. It follows that men’s personhood has been as variable as the (non) personhood of women.4

11Kurki’s decision to take women and their awkward legal history out of the investigation, as excessively difficult legal characters, means that one is left with a dramatically shrunken population of persons, that is, one is left with men for much of the time. For in declaring this broad sex exclusion, the subjects of the book necessarily become the male sex, apparently the sufficiently stable legal status, who are then treated as human beings, not as men. In other words, men become the general case of the person and women the complicating and exceptional specific case. Perhaps unwittingly, the book thus skirts its way around the most fundamental problem case of personhood, the one that might challenge the central case and its supposed neutrality. Kurki is by no means unusual in this. The female case of the person is a deep-seated, enduring, even existential problem for legal philosophy and law generally because men have supplied the model of a legal being, once openly and explicitly (given the laws of coverture), now by persistent habits of legal thought.

12The decision to push women and their diminished personhood to the side means that the maleness of the central case is both assumed and neglected. But Kurki does not want this to be so. We know he wants women to be included in the general case of the person, because later in the book his general case hypothetical person becomes Mary, but necessarily not as a woman, but rather as a generic human.

  • 5 Again, see my analysis in Naffine 2019.

13This is therefore a book that avows its commitment to value neutrality in its treatment of the central legal concept of the person, but whose line-up of characters are not and cannot be neutral in their values. Rather these beings have a very particular history, and in their ordering, they are undeniably patriarchal. Consequently, the so-called paradigm person – the adult of sound mind - is far from neutral in his conceptualisation. From the paradigm case, to those who are something less than that, the standard cast of persons has been a product of legal power: the power of those in a position to imagine, formulate, and enforce the concept – the power of men. Any deep analysis of the concept of the person needs to consider this history forged through partisanship, vested interests, and the abuses of authority.5

  • 6 This is true of England and Australia. Again, see my analysis in Naffine 2019.

14The concept of the legal person and its implicit idea of a paradigmatic person is a highly political concept deeply implicated in human rights abuses, especially the human rights abuses of women. Women are by far the largest single grouping adversely affected by the concept in the modern common law world. The concept of the person has been used steadfastly to control women in the most intimate ways. The personhood of women has been and remains deeply compromised: married women were only fully protected by rape laws in the 1990s6 and there is continuing control of women, their persons, and hence personhood, through abortion laws.

15Recognition of the role of vested interests and power is perhaps evident in this book’s analysis of animals. It is less evident in its understanding of the central case: the adult (male) person.

4 The foetus

16Though women are (and are not) cast out of the analysis, curiously, foetuses are allowed in as awkward legal entities to be sure, but nevertheless considered informative. Their location in the world (inside, or as part of, a woman), and the nature of their dependence for life (on a woman), is not mentioned. To spell out the problem here and to make it absolutely crystal clear, once you start talking about foetuses, you are talking about women, whether you refer to them or not. And so, women come right back into the analysis, but without acknowledgement of their reincorporation. Logically they become the invisible housing of the foetus. Foetuses are then implicitly treated as free-standing entities, as if you might perhaps encounter one when walking down the street. This individualisation of the foetus happens throughout the book.

17And as the story of law’s person unfolds, the laws of abortion are also treated very briefly, but mainly as incursions on the potential personhood of foetuses, rather than incursions on the full personhood of the modern woman. This is despite the fact that self-government or bodily integrity will be seen as a defining right of the full paradigm person. Again, to be quite clear, once one is talking about abortion, one is talking about women and any law governing abortion is logically about the bodily rights of women: their bodily integrity; their self-government; their full personhood.

18The laws of abortion erode the personhood of women, understood as the right to self-control, to bodily integrity, the right to exclude others from one’s person or correlatively to consent to their intrusive actions. The way “we” still think of abortion, of contraception and foetuses, and apply the concept of the person to these processes and “entities” is not inevitable and it is highly political.

19And yet the problematic personhood of foetuses is not thought to be a reason for counting them out (as it is, on the whole, with women). Indeed, foetuses feature throughout the book, as interesting legal entities; animals and slaves receive more attention. Immediately after his exclusion of women, Kurki explicitly allows for the consideration of foetuses, “as an example of legal nonpersons” in those jurisdictions which have yet to treat them as persons (Kurki 2019: 15).

20Throughout the book, Kurki keeps moving towards this implicit discussion of women, vis-à-vis the foetus, and the foetus, vis-à-vis women, and then drawing back. And yet for the theorist of the concept of the person and its application, the legal protections afforded the foetus are particularly telling about the modern personhood of half of humanity. Even without entering debate about the rights and wrongs of abortion law, the protections such laws afford the foetus (thereby limiting the most personal autonomy of women), have the broadest implications for general personhood. Pregnancy is not an obscure condition. It is the means of generating humanity. If the paradigm person is never pregnant, but women as a sex are likely to be at some stage of their adult life, women are implicitly being removed from the story of the person, thereby leaving the never-pregnant man (again, slightly less than half of humanity) as the standard human. Men become the unproblematic case of the full person: the ones who fully inhabit the concept.

21All of this means that the deep structure of the book has problems. It cannot keep out of analysis that which is necessary for analysis as the author has set it up. The supposedly central features of the concept of the person, and its applications, which Kurki wishes to clarify, to subject to rigorous scrutiny, lack the characteristics they are thought to have.

5 Fixing the subject: Realism vs. Legalism

  • 7 On this tendency towards hypostatization see Naffine 2009.
  • 8 See Naffine 2019 above and also Naffine 1990.

22There is something mysterious and unresolved happening when lawyers think about their person. They know that legal persons are legal constructions, made up of the abstractions which are rights and duties. In this sense they are Legalists. And yet they want to, and do, hypostatise their concept7 into an adult rational man, and yes, he is a man, as has clearly historically and explicitly been the case.8 They become Legal Realists, instead of Legalists, seeking to tether their concept of the person to some conception of a real human being.

  • 9 See Naffine 2003.

23But when understood as changing constellations of rights and duties, legal persons do not have this stability. Law’s person flashes into life here, there, and everywhere.9 It is an effect of law, or rather of many laws, rather than a guiding principle or stable figure operating across law and derived from some natural being. And lawyers know this. As Kurki keeps reminding us, in Legalist mode, the concept of the person is highly variable and can be said to come in degrees, and it is important to remind oneself of that fact over and over again. He also observes that judges, who are self-evidently well versed in law, are nevertheless affected by the hypostatised person. When asked whether an ape or a river is a person, they envisage their adult rational man or person and consider whether their “entity” is anything like that in real pre-legal life. They go from being Legalists to Realists.

24Kurki wants to find out what sort of person law creates with its concept of the person and, technically, how it achieves this. In this sense he is a Legalist. But he is also a Realist in that he still has in mind a being to whom law’s rights and duties more naturally belong, as opposed to those beings and things that seem to resist the label ‘person’ because they are inherently lacking some vital attributes. Kurki takes issue with the received wisdom, that a person comes into being once a right is recognised, saying that personhood is a more graduated and variable thing: a complex legal creation. But he does not abandon the Realists’ person. He retains the paradigmatic person.

25So Kurki has a tension in his own work and it is the very one that he is trying to release. He has a Real Person, a paradigmatic person, and he has the Legalists’ Person. He finds this distinction helpful in his work and thus he also retains the tension rather than resolving it. Perhaps he goes some way to loosening it with his endeavour to identify different types of Legal Person, but he still has his paradigmatic Person.

26It may be possible to achieve better thinking if we can let go of the idea of paradigmatic persons altogether and keep reminding ourselves that whenever we rely on such a being, we are relying on an idea of someone around whom the world is naturally and rightfully organised, and so we are relying on power that is not perceived. The mystery, which keeps confounding, is how we go between the remarkably flexible fantastical abstractions of law, exemplified by its persons, which are nevertheless doing real work, and Real People who we do not think of as myriad but in terms of powerful typologies that are a function of power, amongst other things. The paradigmatic person, which is a typology, is of course also an invention, but it is not an arbitrary and flexible invention. Rather, it is relatively stable and strongly implicated in power.

  • 10 See my explication of the duck/rabbit and its role in legal thinking in Naffine 2016.

27I suspect that the Legalists and the Realists may be relying on incommensurable paradigms and yet they can flip from one to the other and back again in the manner of the famous visual image of the duck/rabbit: one minute there is the duck, the next minute there is the rabbit.10 The relationship between the two has yet to be fully fathomed. It may be a problem of ideas that we cannot hold in our head at the same time, and yet there is an almost magnetic attraction between them.

28It is important for us as lawyers to remind ourselves that the legal character of x can flow from whatever the characteriser is trying to achieve, and that that may be a good legal purpose, one built into the given law, or it may be abhorrent. The supposed inherent character of x does not drive the law (noting that the inherent character is itself necessarily a matter of supposition). Rather, the assumed purpose of the law drives the character of x; what characterisation will best achieve that legal purpose? The Realist assumption that inherent character drives the law is one that Kurki is alert to. He is aware of the ascribed nature of personhood. He is also saying that personhood comes in degrees, which means that he explicitly questions the assumption that x’s character must sound in law absolutely and in all circumstances. But still, there is a certain male being lurking in the background. Realism reasserts itself.

6 The potentially pregnant paradigmatic person

29As we have seen, Kurki has his own built-in assumptions about women, men, and personhood. He sees women as a special legal category, implicitly leaving men as the general case. Never does he assume that women are the paradigmatic case and certainly not pregnant women. He never characterises the foetus as part of the woman so that every bodily element of woman, including the foetus, forms part of herself, of her physical person. It is always implicitly an entity that can be understood on its own, without reference to a woman, who is therefore implicitly habitat or context rather than person.

30A primary attribute of law’s assumed being is physical and moral integrity, wholeness and completeness, and women seem not to qualify here. The right to bodily integrity is taken to be the most fundamental right, sometimes called the right to non-interference, to self-government, to non-entry, and this cluster of rights within a right immediately begins to build a picture of the sort of creature it is meant for. It is someone who is self-contained and considered at a distance from others, physically, socially, and even morally. It is precisely not meant for beings who need to touch and cling on (as we all actually do), let alone for those who engage in intercourse by way of the entry of another into their body and who can carry a future being within their body.

  • 11 For a discussion of refusal cases and their implications for women see Cherry 2001-2002.

31The legal person as currently understood cannot be pregnant, given the entailments of pregnancy, necessarily conceded by Kurki in his various references to “the foetus”. Pregnancy comes with a diminution of personhood, of bodily integrity, of the right to control one’s person, and the pregnant woman has been subject to legal determinations that she is not fully in possession of her faculties when her decisions have been seen as threatening to her foetus (not ‘the’ foetus; it is hers as her heart and kidneys and limbs are hers).11 Morally, physically, existentially, women who are susceptible to pregnancy make for very bad legal persons. Kurki seems intuitively to know this. And yet half the population can potentially become pregnant.

32I now wish to engage in a thought experiment. If the conceptual nature of the legal person were worked out from a person who is currently not paradigmatic, what would happen to the concept? How much does the current understanding of the concept depend on the existing paradigmatic being? This is something Kurki might consider.

33What if we pose a counterfactual? What if we imagine history changing course in such a manner that the paradigmatic person were someone with the capacity for pregnancy, and this possibility were a major consideration in her life decisions? What if the paradigmatic person created future persons within herself, that is, she was generative of persons and this was a deeply esteemed ability? What if the paradigmatic person were pregnant? There is actually a logic to treating the pregnant woman as the most bountiful, the fullest realisation of the human and then of the moral and legal person, and treating the man, who can never be pregnant, as the lesser case of the person. So, what if the nonparadigmatic person were incapable of this reproductive feat and so was regarded as a lesser person? This would constitute a dramatic reversal of our most fundamental cultural thinking about persons. And the fact that this is so, shows the extent to which patriarchy is constitutive of persons. It is political and legal power that has made the never-to-be pregnant man the best and fullest case of the person. Any treatise on persons would do well to recognise this central fact about law’s basic concept.

34That said, Kurki’s treatise is an important and thoughtful contribution to the field of legal philosophy and will no doubt provoke even more discussion and debate.

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Bibliography

Cherry, A.L. (2001-2002). The Free Exercise Rights of Pregnant Women Who Refuse Medical Treatment, Tennessee Law Review, 69, 563-622.

Kuhse, H., & Singer, P. (1985). Should the Baby Live? The Problem of Handicapped Infants, Oxford University Press.

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

Naffine, N. (1990). Law and the Sexes: Explorations in Feminist Jurisprudence, Allen & Unwin.

Naffine, N. (2003). Who are Law’s Persons? From Cheshire Cats to Responsible Subjects, Modern Law Review, 66, 346-367.

Naffine, N. (2009). Law’s Meaning of Life: Philosophy, Religion, Darwin and the Legal Person, Hart.

Naffine, N. (2016). Law Under the Influence of Religion. In D. Stephens & P. Babie (Eds.), Imagining Law: Essays in Conversation with Judith Gardam (pp. 243-260), Adelaide Press.

Naffine, N. (2019). Criminal Law and the Man Problem, Hart.

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Notes

1 I make this point extensively in Naffine 2009 and Naffine 2003.

2 This is the theory that real rights require someone with a personal ability to enforce that right.

3 The endeavours of the philosopher Peter Singer to press this line, in certain very limited circumstances, have been met with dissent and disapproval. See for example Kuhse & Singer 1985.

4 See my argument and analysis in Naffine 2019.

5 Again, see my analysis in Naffine 2019.

6 This is true of England and Australia. Again, see my analysis in Naffine 2019.

7 On this tendency towards hypostatization see Naffine 2009.

8 See Naffine 2019 above and also Naffine 1990.

9 See Naffine 2003.

10 See my explication of the duck/rabbit and its role in legal thinking in Naffine 2016.

11 For a discussion of refusal cases and their implications for women see Cherry 2001-2002.

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References

Electronic reference

Ngaire Naffine, Hidden presuppositions and the problem of paradigm personsRevus [Online], 44 | 2021, Online since 16 March 2021, connection on 19 September 2021. URL: http://journals.openedition.org/revus/6953; DOI: https://doi.org/10.4000/revus.6953

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About the author

Ngaire Naffine

Bonython Professor of Law, University of Adelaide (Australia)

E-mail: ngaire.naffine@adelaide.edu.au

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