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Symposium on the theory of legal personhood

Earth, Wind, and Fire, and other dilemmas in A Theory of Legal Personhood – a vindication of legal conventionalism

Raimo Siltala

Abstract

In his book A Theory of Legal Personhood (OUP, 2019), Visa Kurki provides a solid account of the historical and systemic elements of the theory of legal personhood in the Western legal tradition. He focuses on the presence or absence of the status of legal personhood in e.g., sentient animals, foetuses, algorithms, and slaves (historically speaking). Still, one key issue is left out of the scope of the book, viz. what do we need the concept of legal personhood for? This review scrutinizes Kurki’s book, providing several minor critiques along the way. It focuses on the above-mentioned problem and argues that instead of scrutinizing the status of legal personhood in some entity, we need to focus on the specific legal rights and duties allocated to such entities based on the legal facts – legal consequences that have been laid down in legislation and jurisdiction.

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1 General observations

  • 1 Kurki 2019: 3.

1Visa Kurki puts forth an intriguing question in the Introduction to his treatise A Theory of Legal Personhood:1

All of this raises the question: what does it mean to be a legal person, or to be ´recognized´ or ´treated´ as such? The cases above [i.e. slaves in the ancient Roman law, women in the 18th century English law, certain rivers according to recent court rulings in Australia, New Zealand, and India that granted such objects of nature limited legal personhood] are not merely instances of employing similar terms and phrases – such as ´person´, ´legal person´, and ´legal personhood´ – in saliently dissimilar circumstances. Rather, all of them actually make reference to a conceptual scheme extant in Western legal systems: the person/thing distinction, or as I will call it, person/nonperson distinction.

  • 2 Kurki 2019: 18.

2Kurki´s treatise on the concept of legal personhood is an interesting contribution to theoretical legal scholarship. His approach is analytical and more realism-oriented than conventional, and he makes ample use of the conceptual scheme of legal rights and duties based on Wesley Newcomb Hohfeld´s & Neil MacCormick´s seminal ideas. As the title of the book reveals, Kurki is after a general theory of legal personhood, tracking its historical roots and conceptual dimensions. He states the objectives of the treatise as follows:2

To summarize, this work seeks to analyse jurists´ extensional beliefs regarding legal personhood in light of analytical philosophy and, in particular, the Hohfeldian understanding of legal relations. This analysis, if successful, should firstly be able to lay out the salient features that newborn children, adults of sound mind, and corporations share but foetuses, nonhuman animals, slaves, and non-incorporated organizations lack or have historically lacked, prompting jurists to classify the former as legal persons and the latter as nonpersons. After the salient features of legal personhood have been determined, certain further questions can be addressed. These include: the scope of legal personhood, that is, who or what can be a legal person; the peculiarities of the legal personhood of corporations, which range from sprawling organizations to shell companies; and more peripheral cases of putative legal personhood, such as the Whanganui River agreement, supposedly endowing the river with legal personhood.

3Still, there is one key question that is missing in Kurki´s list of philosophical inquiry, namely, what do we need the concept of legal personhood for? What is its true impact on legal reasoning, its course of argumentation, and the outcome to be reached? Equipped with the concept of legal personhood and once the presence of legal personhood has been duly detected, can we then unfailingly and invariably attach specific legal consequences to the facts of the case at hand? In more general terms, what concrete difference will it make in legal analysis and legal argumentation, if we incorporate such a constructive element in legal analysis? The concept of legal person(hood) is situated in the logico-conceptual space between legal facts and legal consequences, connecting the two, but what do we need such an umbrella concept for, if we already have the legal facts of a case and the legal consequences attached to them? I will elaborate my stance at greater length below.

4The book begins with a short historical overview of legal “metaphysics” starting in early Roman law with its long-lasting respersonaaction triangle, with its apex now in W. N. Hohfeld´s seminal idea of legal rights and duties as types of legal relations as found in his Fundamental Legal Conceptions as Applied in Judicial Reasoning. Kurki labels the traditional notion of legal personhood the Orthodox View, and he finds good reasons for rejecting it as too crude for its purpose as a legal instrument. Instead, he opts for what he calls a Bundle Theory of legal personhood, based on Hohfeld´s and Neil MacCormick´s ideas, where a distinction is drawn between active and passive legal personhood. The notion of legal personhood is defined as a cluster concept with variable meaning-content and shifting semantic reference to the said effect. Ludwig Wittgenstein´s idea of family resemblance would seem to come close to the idea, as well. Passive legal personhood signifies that the person is taken as a holder of legal claim-rights à la Hohfeld, i.e., as having their legal rights protected and legal claims effectively enforced at the courts and by other officials. Active legal personhood, in turn, signifies that the person is taken to be a bearer of legal duties or responsibilities and has the power to initiate legal change in their own or others´ legal positions by means of contracts, wills, and other such legal instruments. This is all well documented and argued for in Kurki´s book.

5Perhaps this is where the storyline should end, too, since any further analysis of the concept of legal personhood fails to add anything of real weight or importance to the conceptual scheme just outlined. We have various categories of entities, some of which are classified as legal persons, such as “newborn children, adults of sound mind, and corporations” in Kurki´s list above, while “foetuses, nonhuman animals, slaves, and non-incorporated organizations” obviously lack such properties. But, so what? As concerns the array of legal consequences attached to those entities, no decisive legal conclusions may be drawn from the fact that e.g., newborn children are commonly qualified as legal persons but foetuses, machines, sentient animals, and (possibly) slaves are not. Notwithstanding any such dichotomies asserted on the legal person/non-person axis, the issues of legal facts/consequences still need to be analyzed on individual terms, as if they had a legal life of their own detached from the said dichotomy.

6In other words, one may wonder whether the analytical stance of discerning the active and passive modes of legal personhood is enough for any profound legal analysis, without any further ado or reflections on the notion of legal personhood in general. Based on traditional legal analysis, one can say that a foetus is to some extent legally protected during the mother´s pregnancy, and the intensity of such protection is enhanced towards the end of pregnancy and the time of childbirth. In addition, a foetus may (according to Finnish law) inherit a valid will, if subsequently born alive. As concerns the course of legal analysis and its outcome in terms of legal consequences, any additional reflections as to whether a fetus truly is a legal person, in line with, say, philosophical realism or legalism/conventionalism will not add any legal or philosophical value to that outcome of reasoning. In any case, the specific legal effects that a given legal order attaches to a foetus need to be determined by having a close look at the statutes, the travaux préparatoires, precedents, other court decisions, and other legal source material deemed relevant for the case. The general notion of legal personhood is of no use here, and the same goes for the other contested instances of the presence/absence of personhood vis-à-vis sentient animals, algorithms, divine objects, religious idols, slaves (historically speaking), and so on. Despite its long and venerable history, the notion of legal person(hood) would seem to add very little, if anything, to such an analysis of a set of legal facts and the legal effects to be attached to them. Whether a foetus, an algorithm, trees (in Christopher Stone´s classic treatise), a sentient animal, or a divine object is granted the status of a legal person will not as such affect the legal effects attached to it, based as it is on the individual rulings of the legal order in question. As an overarching conceptual scheme for legal analysis, the notion of legal person(hood) fails, while the division of the notion into active and passive variant succeeds somewhat better here.

  • 3 I owe the last insightful comment to the anonymous referee of Revus.

7Below, I will take three minor points of critique into consideration, plus further elaborate one major issue. On a broader scale, the forms of minor critique are raised from point of view internal to Kurki´s theory, while the ‘Big Issue’ looks upon the matter from an external point of view.3

2 Some critique, minor and major

2.1. A minor critique/1: methodology

8As to philosophical methodology, Kurki opts for seeking a reflective equilibrium among the arguments presented, with reference to the ideas introduced by John Rawls and further elaborated by Norman Daniels. Consequently, there are three sets of beliefs to be settled under reflective equilibrium:

1) a set of considered moral judgments;
2) a set of moral principles;
3) a set if relevant background theories.

9The stated goal of such a process is an over-arching coherence in and between the beliefs or conceptions utilized on the three levels of judgments, principles, and theories involved. That sounds fair enough as a general platform or scheme of philosophical argumentation, but it hardly qualifies as a philosophical method in any proper sense of the term, as there is no way of controlling the results thereby reached. As I see it, a mere reference to the model of pro et contra argumentation, aligned with the ideal of argumentative coherence, would yield more-or-less the same end results. Setting such an inherent goal as a yardstick for argumentation is like playing solitary chess with oneself, duly observing the rules of the game (despite no one is watching) but all the while knowing what the next move will be in advance. Though the model of reflective equilibrium might not quality as a scientific or philosophical method proper, it may still work fine as a general playground for philosophical argumentation.

2.2. A minor critique/2: institutions vs. instances of institutions

10Kurki argues that there are two types of money (Kurki 2019: 131-132) – abstract money and physical money. That, however, is hardly the case, since what he calls physical or concrete money is conceptually dependent upon, and derivative of, the prior existence of abstract money. In other words, what Kurki calls physical money (coins, bank notes, specific binary code on the national central bank computer) cannot exist without the presumed existence of abstract money, as defined in terms of, e.g., a set of mutual expectations and co-operative dispositions among those concerned. This is especially clear if the notion of philosophical conventionalism à la Govert den Hartogh and Eerik Lagerspetz is followed. D. Neil MacCormick, as a fine representative of the institutional theory of law, has introduced the terms institution of money (law, marriage, contract) in abstracto as a social phenomenon and the various instances of money (law, marriage, contract) in concreto in the form of notes, coins, bitcoin algorithms, a binary code, and so on. This roughly corresponds to the typetoken dichotomy in the philosophical literature. If you totally obliterate the notion of abstract money (law, marriage, contract) from the world, there cannot be any concrete money (law, marriage, contract) either, but not the other way around! That asymmetry of the dichotomy of institutions/instances of institutions should have been pointed out by the author.

2.3 A minor critique/3: Realism vs. Legalism

11In addressing the criteria for the legal person/non-person classification, Kurki promptly adopts the realism/legalism dichotomy (Kurki 2019: 119 et seq., 127 et seq.), mainly based on Ngaire Naffine´s text. According to realists, the inherent properties of a thing, subject, or entity are decisive as to its ontological status. Sentient beings (humans, animals) plus corporations and algorithms are thus categorized differently due to their allegedly inherent properties and value. Legalists, in turn, argue that anything whatsoever can be a legal person, if the legislator and/or the courts of justice so decide. I find the term “legalism” and “legalists” too restrictive here. The idea of conventionalism would be better, defined as a set of mutual expectations and co-operative dispositions of those concerned, or institutionalism, with reference to the distinct approach to philosophy under Neil MacCormick´s and Ota Weinberger´s writings on the issue.

12There is more at stake in conventions and institutions than the realm of law, strictly defined. In other words, the adherents of conventionalism/institutionalism are not at the mercy of the legislators’ and the courts´ acts of will, due to the definition of a convention or institution with reference to a set of mutual expectations and co-operative dispositions of those concerned (Govert den Hartogh, Eerik Lagerspetz) or a distinctively collective enterprise adopted by them (Raimo Tuomela, John R. Searle). Moreover, the notion of social convention quite neatly comprises legal institutions, too. Since the related positions of those concerned are often adversarial in legal matters, the former definition of conventions (à la den Hartogh, Laagerspetz) would seem to grasp the issue better than the latter alternative (à la Tuomela, Searle). Kurki´s own position is more inclined towards philosophical realism than legalism/conventionalism.

13I argue for a more conventionalist (or “legalist”) stance here, rather than one based on philosophical realism. As I see it, there is no obvious reason not to adopt some distinctively legal means for the protection of the vital interests of some endangered species or environmental value. This can be legally achieved by means of an ombudsman or other spokesman for the protection or the guardianship of the species, and of the values and interests involved. Of course, such a legal arrangement is already in common use for the protection of the interests of the mentally ill, foetuses during the later phases of pregnancy, demented elderly persons, and so on. Whether we adopt the terminology of “rights” or “legal personhood” here is no more than a semantic quasi-issue. What counts is the set of legal consequences attached to the set of facts at hand, not the presence or absence of an entity named a legal person in that fact-constellation.

3 Returning to the Big Issue: what do we need a theory of legal person(hood) for?

  • 4 Cf. James 1907: 142: “Pragmatism, on the other hand, asks its usual question. ´Grant an idea or bel (...)

14The one big issue with Kurki´s theory of legal personhood can be stated by paraphrasing William James´ classic philosophical pragmaticism: what concrete difference will it make in any one´s actual life, if the concept of legal person(hood) is either adopted or, alternatively, left out of the equation, when analysing the law?4

15In all, we have a bunch of categories that either may or may not be qualified as legal persons, and various kinds of legal consequences may be attached to each of them:

1) Mentally Sane, Adult Humans;
2) Under-Aged Children;
3) Demented People, Mentally Ill People;
4) Disabled People;
5) Corporations, Associations, Foundations;
6) Sentient Animals;
7) “Earth, Wind & Fire” (= Holy Rocks, Celestial Bodies, Breath of God in the Breeze of Wind or Fire, Other Sacred Objects of Nature);
8) Divine Objects (= Idols, Quran, Bible, Torah);
9) Algorithms, Autonomous Machines (Google cars, industrial robots, chess robots, Skynet/Terminator robots, etc.);
10) Foetuses; and
11) Slaves.

16So, if (X) either is or is not a legal person, when (X) may take the value of any one of the categories (1) – (11) above, what difference will the presence or absence of such personhood make from a legal point of view?

  • 5 Hohfeld 1964.
  • 6 Ross 1951/1957. In fact, Kurki refers to Ross´ classic essay in the passing on p. 195–197 but does (...)

17According to the prevalent stance within analytical legal philosophy (an approach Kurki himself would seem to endorse), abstract legal concepts are seen as no more than technical terms, devoid of any semantic reference or meaning-content outside the realm of legal facts and legal consequences proper. The notion of legal ownership, as brilliantly analysed by Wesley Newcomb Hohfeld in his Fundamental Legal Conceptions as Applied in Judicial Reasoning, is of course the prime example thereof.5 Following Alf Ross´ equally sharp-minded analysis, abstract legal concepts are mere “empty shells” the main – or perhaps only – function of which is to shorten linguistic usage by connecting a set of legal facts and a set of legal consequences under a common umbrella concept, such as ownership in both Hohfeld´s and Ross´ example. Instead of listing all the feasible legal facts and legal consequences related to the uses of legal property, we may adopt the term ownership with coverage of all such legal facts and legal consequences.6

  • 7 In fact, the deontic relation between the legal facts and legal consequences in a legal norm may gi (...)

18Thus, we have the definition of a legal norm as (F) –> S(Q), where a set of legal facts (F) and a set of legal consequences (Q) are deontically (S = Sollen) connected to one another, to the effect that if legal facts (F) are present, then legal consequences (Q) ought to be enforced by the judge or other official.7 As a consequence, if the facts (F) are present, to the effect that there is a valid contract or other legal document that validates the status of ownership, then A is the legally recognized owner of the thing X. And if A is the owner of X, then the legal consequences (Q) ought be enforced by the judge. But any reference to the concept of ownership is redundant, since it only duplicates the deontic relation that prevails between legal facts and legal consequences in the case. In other words, we have the following outcome:

a) If legal facts a, b, c (. . .) are present, then A is the owner of the thing X.
b)
If A is the owner of the thing X, then legal effects (Q) are to be enforced.
= If legal facts a, b, c (. . .) are present, then legal effects (Q) are to be enforced.

19Still, the concept of legal personhood is in essence dissimilar to that of legal ownership. From the presence or absence of legal personhood in some distinct entity, whether it be a foetus, a sentient animal, a divine object, or some other object, no inference may legitimately be made as to the legal consequences entailed. Rather, the characteristic nature of legal facts and legal consequences need to be individually examined in each new type of legal decision-making situation, and the judgment will depend upon the outcome of that consideration and not on the presence or absence of legal personhood detected.

20For instance, a corporation is recognized as legal person, but it cannot get married, draft a legally valid last will and testament, be the beneficiary to a last will and testament, or act as a custodian to a child or a mentally ill person, though it may well decide upon the use of the assets owned by the corporation in legal and contractual terms. A foetus, in turn, is not a legal person (prenatus), but it is to a certain extent protected by the law, while the intensity of that protection varies during pregnancy. Moreover, a foetus may be the beneficiary of a legally valid will and testament, if subsequently born alive. Children and mentally ill persons are legal persons, but due to their minor age or poor health condition, do not have the legal capacity to perform legal transactions, except by means of a guardian or other legal proxy. Sentient animals, whether domestic animals, production animals (cattle, etc.), or possibly rare wild animals, are – to some degree – protected by the law against mistreatment or excessive hunting into extinction, though they lack legal personhood. Still, the owner of a domestic or production animal may end its life at will, if she so chooses to do so, and it is only cruel and painful means of treating animals that are prohibited by the law. In other words, from the fact that X either is or is not a legal person, no valid legal inference may be made as to the extent of legal protection it enjoys under the law, nor the presence or absence of its capacity to make legal transactions, but such a legal judgment needs to be made on the basis of the type of decision-making situation concerned. A reference to its status as being or as not being a legal person will not be of any decisive help here.

  • 8 In the text, Kurki collapses the difference between points (a) and (c), seeing sentience as an inst (...)

21In general, there are three possible justifications for granting or denying the status of legal personhood to some entity as Kurki, too, points out,8 viz. (a) sentience, i.e., its capability of subjectively feeling, perceiving, or experiencing something; (b) intentionality, i.e., its capability of presumably free will-formation and will-expression, as manifested in acts-of-law in the legal sphere; and (c) its inherent value, as commonly felt within a community. In the case of humans, all the three criteria of are fulfilled, while in the case of sentient animals, corporations, foetuses, inanimate nature objects, and so on, such criteria may not be entirely fulfilled.

22Thus, under-aged children are sentient but not deemed legally capable of forming and expressing their will, except with the assistance of their parents or some other guardian, and the same goes for demented or mentally ill persons. Disabled persons may need assistance in forming and/or expressing their will, depending on their individual health condition. Both are classified as legal persons but without the capability to express their will on their own. Foetuses become sentient during pregnancy in the mother´s womb but are not capable of forming or expressing their will until long after birth. Though not legal persons, foetuses are still protected against abortion under the specific conditions laid down by the law. As mentioned, according to at least Finnish law, a foetus may be the beneficiary of a testament, if subsequently born alive. Still, the legal protection enjoyed and the right to inherit under a will cannot be inferred from the foetus´ status as a “non-person” in legal terms, as the notion of legal person is of no use here.

23Sentient animals, though per definitionem sentient, cannot form or express their will in a legally recognizable manner. In effect, their legal status is more like inanimate objects than persons under the Roman law classification of personares – actio. While the treatment, medication, and other care of the production and domestic animals is to some degree regulated by the law, the legal owner of such an animal may end its life at will, while it is only the infliction of unnecessary pain to the creature that is prohibited by the law. The absence of the formation and expression of will of course also applies to inanimate objects, whether they be holy rocks, celestial bodies, the “breath of God” in the breeze of wind over the water or in a burning fire, or some other sacred objects of nature revered and worshipped on religious grounds. Other divine objects, such as religious idols and the holy scriptures of religions (Quran, Bible, Torah), cannot speak for themselves, but they need a priest, a prophet, or other spokesman to express their alleged voice and will. Still, there is no inherent objection against establishing a legal spokesman or other similar arrangement for a sacred object of nature, whether it be a river, a rock, a sacred forest, or some other nature formation. All it takes is the founding of a legal guardianship or spokesman for the entity concerned in the form of a priesthood or similar arrangement. Algorithms and autonomous machines (“Google cars”) so far lack sentience and consciousness, and their will-formation, if any, is coded into their data base from the outside. Then, what does it mean to claim that X either is or is not a legal person, when X may take the value of any of the alternatives 1 – 10 above, from 1) Mentally Sane, Grown-Up Humans up to 9) Algorithms, Autonomous Machines, 10) Foetuses (leaving slaves out for ethical reasons)? The concept of legal personhood will not be of much use here.

4 The end

24In all, Kurki offers a well-written account of a noteworthy subject matter, i.e., legal personhood, but in my opinion, he should have taken a far bolder stance as to the legal impact and significance of the very idea. Despite its long and venerable history, the notion of legal person(hood) would seem to be of little use as an intellectual tool for legal argumentation, when faced with the (possible) rights and duties of algorithms, endangered animal species, sacred objects, foetuses, and the like phenomena. Irrespective of whether some such entity is granted the status of legal personhood, the individual facts and the legal consequences attached to them need to be considered on distinct terms, and the notion of legal personhood is of no use here. Kurki´s book is well written, but the index fails to include several key entries that should have been there, such as David Dennett, sentience, intentionality, ultimate value (when used as a criterion of legal personhood), John R. Searle, and Ngaire Naffine (whose realism/legalism dichotomy Kurki makes use of). Still, the book does provoke a set of interesting arguments and counterarguments, and that is a sign of a book well worth reading!

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Bibliography

Hohfeld, W.N. (with Corbin, A.L.). (1964). Fundamental Legal Conceptions as Applied in Judicial Reasoning (Cook, W.W., Ed.). Yale University Press.

James, W. (1907). Pragmatism´s Conception of Truth. The Journal of Philosophy, Psychology and Scientific Methods, 4(6), 141-155.

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

Ross, A. (1957). “Tû-Tû”. In O.A. Borum & K. Illum (eds.), Festskrift til Henry Ussing (pp. 468-484). Nyt nordisk forlag; Harvard Law Review, 70(5), 812-825.

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Notes

1 Kurki 2019: 3.

2 Kurki 2019: 18.

3 I owe the last insightful comment to the anonymous referee of Revus.

4 Cf. James 1907: 142: “Pragmatism, on the other hand, asks its usual question. ´Grant an idea or belief to be true,´ it says, ´what concrete difference will its being true make in any one´s actual life? How will the truth be realized? What experiences will be different from those which would obtain if the belief were false? What, in short, is the truth´s cash value in experiential terms?´ – The moment pragmatism asks this question, it sees the answer: True ideas are those that we can validate, corroborate and verify. False ideas are those that we can not. That is the practical difference it makes to us to have true ideas; that, therefore, is the meaning of truth, for it is all that truth is known as.” (Italics in original)

5 Hohfeld 1964.

6 Ross 1951/1957. In fact, Kurki refers to Ross´ classic essay in the passing on p. 195–197 but does not elaborate the issue at length.

7 In fact, the deontic relation between the legal facts and legal consequences in a legal norm may give effect to a prohibition/command, permission, or competence, depending on the deontic characteristics of the norm.

8 In the text, Kurki collapses the difference between points (a) and (c), seeing sentience as an instance of inherent value.

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References

Electronic reference

Raimo Siltala, Earth, Wind, and Fire, and other dilemmas in A Theory of Legal Personhood – a vindication of legal conventionalism Revus [Online], 44 | 2021, Online since 16 March 2021, connection on 24 September 2021. URL: http://journals.openedition.org/revus/6974; DOI: https://doi.org/10.4000/revus.6974

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About the author

Raimo Siltala

Professor of Jurisprudence at the University of Turku (Finland)

E-mail: raisil@utu.fi

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