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Symposium on the theory of legal personhood

Animals, slaves, and beyond: The role of values in the extensional beliefs and discrepancy argument in Visa Kurki’s A Theory of Legal Personhood

Maija Aalto-Heinilä and Juha Karhu

Abstract

This article introduces and critically evaluates some of the main assumptions of Visa Kurki’s book, A Theory of Legal Personhood. First, we discuss Kurki’s choice of ‘extensional beliefs’ about legal personhood. On this view, human beings who are born, alive, and sentient, as well as artificial persons such as corporations, are legal persons, while animals, foetuses, and slaves are not legal persons. These beliefs serve as the ground on which different theories of rights are compared, and on the strength of these comparisons Kurki seeks to show that, contrary to the orthodox view, being a right-holder does not always coincide with being a legal person, and therefore a new analysis of legal personhood is needed. We argue that the choice of these extensional beliefs is not as value-neutral as Kurki claims and that some grossly immoral beliefs about legal personhood need not be included among them as a reference point for conceptual analysis, even if those beliefs were once widely accepted. Second, we discuss the “interest” and “will" theories of rights to question whether there is genuinely a clear discrepancy between right-holders and standard categories of legal persons. Establishing this discrepancy requires resorting to contestable value commitments and interpretations of legal reality. Our criticisms do not affect the value of Kurki’s fine-grained analysis of legal personhood made by reference to various “incidents”.

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1 Introduction: the main tenets of Kurki’s book

1The overall idea of Visa Kurki’s book is to provide a new theory of legal personhood that rejects the orthodox view. The orthodox view posits an intimate connection between legal personhood and the holding of rights (or the bearing of duties): to be a legal person means being endowed with rights (or burdened by duties). Kurki detaches this connection by arguing that, according to modern Hohfeldian theories of rights, there can be right-holders who are not legal persons and that conversely there can be legal persons who are not right-holders. Either way, the extensions of these two concepts (legal person and right-holder) do not completely coincide. His conclusion, however, depends on a prior understanding of who qualifies as a legal person. Kurki accepts the following “extensional beliefs” about legal personhood, which are “far-reaching and shared by jurists very widely” (Kurki 2019:14):

(i) human beings who meet the criteria of passive natural personality (born, alive, and sentient) are legal persons;
(ii) animals and foetuses are not legal persons, and slaves were not legal persons;
(iii) there are some relevant legal differences between the legal personhood of adults of sound mind and that of infants and severely mentally disabled individuals;
(iv) there are artificial persons, such as corporations (Kurki 2019: 92).

2Taking these extensional beliefs together with modern Hohfeldian theories of rights leads to a rejection of the orthodox theory of legal personhood. Instead, Kurki develops a more elaborate ‘bundle theory’ of legal personhood, which comprises separate but interconnected incidents. Legal personhood is thus not an either/or property (either you have rights and are a legal person or you do not and are not), but rather a matter of possessing a smaller or larger number of incidents. Thus, one can be a legal person in a weaker or a stronger sense of the word; or be a legal person for some purposes but not for others.

3The book adheres to legal positivism in the sense that the distinction between “law as it is” and “law as it should be” is taken to be valid, and normative questions about who or what should be a legal person are mostly excluded (Kurki 2019: 25). However, Kurki admits that he is “not engaging in a purely descriptive project” (Kurki 2019: 25). To explain the sense in which his stance is not purely descriptive, he uses Ian Carter’s distinction between value-freeness and value-neutrality. The former means the “absence of [ethically] evaluative terms in the definition of a concept” (Kurki 2019: 25), and the latter “a suspension of judgment about the comparative merits of divergent ethical positions” (Kurki 2019: 25). No research can be totally value-free, but Kurki nevertheless strives to be as value-neutral as possible. To be more precise, value-neutrality is assumed at the framework level of his research. This level “involves determining the incidents of legal personhood by juxtaposing central cases of legal personhood and nonpersonhood” and requires “very few controversial evaluative assumptions” (Kurki 2019:26). In other words, the widely shared extensional beliefs about legal personhood are taken on board, assuming that no significant value-choices are thereby made: Kurki is simply describing what most jurists believe. However, at the building-block level – where the cluster concept “legal person” is divided into distinct attributes that can be used to distinguish between “passive” and “active” legal personhood – a number of “more controversial evaluative assumptions” are made (Kurki 2019:26). In general, Kurki seeks to remain neutral between the two theories of rights used to refute the orthodox view – the interest and will theories. But at the building-block level of his theory-construction, when he explains the functioning of passive legal personhood through claim-rights, Kurki relies on a particular interpretation of the interest theory. Furthermore, some evaluative and normative assumptions are made at the concrete (applied) level of Kurki’s research, where the question at issue regards who or what can be a legal person. Kurki maintains that one can be a legal person if one can hold claims, and that “X’s capacity to hold claims depends on X’s status as a being of ultimate value or a collectivity of ultimately valuable beings, and… only sentient beings are of ultimate value” (Kurki 2019: 27). From these evaluative assumptions it follows at the concrete level that, for example, rivers cannot be legal persons because they are not sentient, but nonhuman animals can be.

4The method used in the book to reject the orthodox view of legal personhood is reflective equilibrium. This term was made famous by John Rawls, who used it when searching for a description of the “original position” (a notional contractual situation) that would yield principles for the organization of society which match our considered convictions about justice. The basic idea behind this method is to find a balance between various beliefs by going “back and forth” between them and “pruning” and “adjusting” them if necessary so as to make the set of beliefs coherent (so the “reflective equilibrium” is in fact the end result of this process) (Rawls 1971: 29). In the context of Kurki’s book, the elements in the balancing process are, as already mentioned, the orthodox view, modern theories of rights, and extensional beliefs about legal personhood. The method of reflective equilibrium is used to modify the orthodox view into the bundle theory of legal personhood, while keeping intact the understanding of Hohfeldian theories of rights and extensional beliefs about legal personhood.

5This brief introduction does not do justice to the rich array of topics that the book covers. In a wonderfully clear and analytical style, Kurki makes several innovative and challenging, sometimes even provocative, suggestions for a better understanding of legal personhood. For example, he invites the reader to reflect upon the conceptual boundaries of duty-bearing as well as right-holding, the similarities and dissimilarities between human beings and artificial intelligence, and the legal status and personhood properties of corporations. Although this article critically scrutinizes some aspects of the fundamental tenets described above, this should be set against our overall high appreciation of the book. Indeed, it is a sign of its value that it engages the reader in critical reflection.

6Our critical comments concern the issue of extensional beliefs and Kurki’s views about who can hold rights. Both criticisms relate to the role of values in the book. First, we challenge whether the framework level of the research – i.e., the level of extensional beliefs about legal personhood – is as value-neutral as Kurki assumes it to be. After determining that it actually appears to be rather value-laden, we ask whether one should consider what kinds of values the extensional beliefs embody, if they are they worth taking into account, and how “widely shared” they are or were? As regards the building-block and concrete levels, Kurki’s value-assumptions are more visible. One of the great achievements of the book is that it shows how values are connected to basic legal concepts like legal personhood, and not only to legal principles like equality. There are, however, some problems in how Kurki argues on the basis of these values to reach his conclusion as to who or what can hold rights. These problems affect his “discrepancy argument” in that the extent of the discrepancy between the extensional beliefs and modern theories of rights remains unclear. These two criticisms also cast some doubt on the use of the method of reflective equilibrium. We question whether Kurki really applies the method in the proper sense of the word – i.e., whether all the beliefs and judgements that form part of the balancing process are treated equally critically, with a willingness to “prune and adjust” them if necessary – or whether some beliefs are, at least partly, unreflectively accepted. Our criticisms do not threaten Kurki’s main innovation, which is the analysis of legal personhood by means of different incidents. Rather they raise questions about some of the premises and inferences utilized to refute the orthodox view.

2 How value-neutral is Kurki’s choice of the extensional beliefs?

  • 1 In the online version of The Oxford Dictionary of Philosophy, Simon Blackburn explains the extensio (...)

7As mentioned above, one of Kurki’s methodological choices is to use the widely shared extensional beliefs as a kind of testing-ground for his conceptual analyses. It is noteworthy that this move allows him to avoid being imprisoned by the strongly conflicting intensional views of legal personhood, which always contain their own true meaning as to what being a person entails, the orthodox view being one of these.1 The conflicts between these intensional views of personhood are caused by differences in the basic values intrinsic to different philosophies. But does the extensional move really help save the analysis from this multiplicity and diversity of underlying basic values and their incommensurable views on personhood?

8To repeat: Kurki summarizes these widely held extensional beliefs about legal personhood by referring in a positive sense to human beings who are born, alive and sentient, and to the existence of artificial persons such as corporations. Moreover, and in a negative sense, animals and foetuses are not legal persons, and slaves were not legal persons (Kurki 2019: 92).

  • 2 It is worth underlining that Kurki does not claim that his list is exhaustive.

9It is obvious that these extensional beliefs2 have the specific legal point of view in mind. Legal personhood is a legal status. Thus, legal personhood is an institutional fact, and always necessarily connected with the prevailing legal system in question (Kurki 2019: 92). But Kurki wants to develop an analytical tool that traverses the boundaries of any given legal system. Moreover, he makes a bold conceptual move by using the strong metaphor of a “bundle of rights”, which is well known in the property law context where it forms part of the definition of private ownership. Legal personhood, in Kurki’s view, should also be seen as a “thing’ made up of a cluster of incidents and, again in the legal context, rights and/or duties can come ‘in thick and thin bundles, in larger and smaller clusters, which means that we are actually different legal persons in different legal contexts” (Kurki 2019: 93, referring to Ngaire Naffine’s theory).

10Kurki’s contribution to the “bundle theory of personhood” lies especially in the distinction between passive and active legal personhood. The passive incidents of legal personhood contain fundamental protections (of life, liberty, and bodily integrity), the capacity to be the beneficiary of special rights, the capacity to own property, and insusceptibility to being owned. The active incidents of legal personhood in turn contain legal competencies, such as the capacity to administer the other incidents without a representative (for example the capacity to enter into contracts), onerous legal personhood in the form of criminal law responsibility, tort law responsibility, and other types of legal responsibility (Kurki 2019: 94-96).

11As Kurki points out, despite the clustered nature of legal personhood, it is still not wholly reducible to its individual components. But the abovementioned incidents of legal personhood are still interconnected in numerous ways, some of which are dependent on the legal system in question, while others form what Kurki calls legal platforms, which are integrated bundles of legal positions (Kurki 2019: 96).

12In sum, extensional beliefs are generally accepted “right” answers that make a sort of testing ground, the testing is done through some kind of “matching”, and the material to be tested comprises more or less explicit (legal) norms (rights and duties) that constitute the framework of the institutional fact of legal personhood. There is a circularity in this process that reflects Kurki’s legal positivist stance, although his positivism is modest in the sense that it does not characterize all layers of his research.

  • 3 See e.g., Dan Priel (Priel 2011: 1-35), who argues that the notion of validity cannot be accorded m (...)

13It is established wisdom in relation to any historically informed research to avoid assuming the simple idea of constant progress. The risk of anachronism is always at hand – we use history to achieve understanding of our own era at the risk of losing sight of the specific context of earlier beliefs. From this perspective Kurki is bold when referring to the example of slaves as not being legal persons as one of the extensional beliefs. However, paraphrasing Kurki’s approach, we could also point to a widely shared general “extensional belief” in law that slavery is wrong and not in alignment with the basic demands of justice. It would require further argument to convince readers that conceptions of legal personhood that include the idea that some living human beings are things (as slaves were classified in ancient Rome) are a normal and natural part of extensional beliefs. We do not contest the existence of such conceptions, but we do contest their significance as a reference point for an analysis of legal personhood.3 Slavery in human societies is a major, not a minor wrong, and the abolition of slavery by law is an achievement to be welcomed as a step towards greater legal justice. And one does not have to be a Marxist to admit that slavery was and is not a very effective means of production compared to free entrepreneurship. Historically, there is a difference here between slavery and, say, the feudalist societies with their system of estates. The former is wrong “at all times”, whereas a feudalist society can be tolerated as “not gravely” unjust. (Of course, even today there is discussion of the position of serfs and peasants, and whether peasants should be seen to be in an equally bad position as slaves, but that is another story.)

14One of Kurki’s main uses of slavery is as an argument against the orthodox view, under which slaves were nonpersons and had no rights or duties (Kurki 2019: 15). Instead of stating “slaves lacked legal personhood” it would be more accurate to write, today, that “slaves lacked full legal personhood”, since, as Kurki shows, they did possess some rights and duties. If we are to challenge even this skilful legal positivist analysis of slavery, a certain degree of anachronism becomes necessary, as well as a kind of legal-conceptual minimum content of natural law. What our critical comment aims at is challenging the consequences of Kurki’s weak attachment to legal positivism. His analytical conceptual developments of legal personhood appear impervious to arguments concerning justice, even arguments relating to gravely unjust legal institutions. Isn’t slavery an institution that falls under the principle lex iniusta non est lex, and therefore not a solid and sustainable basis on which to illustrate conceptual developments in law? To offer a more recent example: the Nazis had a novel understanding of legal personhood that entirely excluded certain groups of human beings from legal protection. Nonetheless, we argue that this gravely unjust stance would and should not be included in Kurki’s list of extensional beliefs, at least if we accept a version of positive law characterized by some minimum ethical content. Is there a significant difference between allowing the contention that “slaves were not legal persons in Roman law” as source material for conceptual development and allowing in the same manner the contention “Jews were not legal persons under Nazi law”? Our view is that these stances are examples of grave misuses of legal personhood and, even if they might have been followed during the period in which they were considered binding law, they should not be included as examples of extensional beliefs. They add nothing to positive understanding of our legal personhood.

  • 4 Of course, as an anonymous reviewer pointed out, the legal personhood of corporations is not totall (...)

15Our critical point here could be rephrased from the point of view of legal personhood as a social learning process. The categories that are included among the extensional beliefs are important because they signify the social functions of legal personhood and are used by Kurki as basis of legal innovations. From this perspective, the categories of legal personhood are more or less successful. The prime example here is of course the concept of an artificial legal person. It is argued that Europe’s global success in the late medieval and, in particular, the early modern era had to do with the concept of a corporation as a legal person, as also mentioned by Kurki. From an economic, but also from a wider social perspective, corporations can be seen as successful legal innovations that enable societies to use law as an element of social developments.4 On the contrary, the Nazi concept of Volksgenosse (fellow compatriot) as a legal person under (planned but not implemented new) Nazi civil law was a deviation from the basic tenets of legal personhood and a direction to be wisely avoided because of the social harm it would cause. We are not arguing here that legal personhood only has one type of correct content from a values perspective – but there are some boundaries that indicate directions not to be followed, or not to be recognized as genuine instances of legal personhood even if provided for in the positive law of that state.

  • 5 The impossibility of separating pure descriptions of law from evaluations has been emphasized by Da (...)

16Another way to put our criticism is to say that it is difficult to distinguish between mere description (in this case, description of extensional beliefs about legal personhood), and evaluation of what law should be.5 Extensional beliefs depend on underlying conceptions of what law is, and different conceptions produce different extensional beliefs. If, for example, one understands the concept of law as including a commitment to the ideas of treating like cases alike and that all human beings are of equal moral worth, one can exclude the views that slaves are non-mute things or that Jews are animals as not being real law. In short, it is a complex evaluative task to make claims about widely shared extensional beliefs regarding standard categories of legal personhood. It would have improved Kurki’s analysis and his use of the method of reflective equilibrium if he had acknowledged this and included a discussion about the evaluative commitments underlying the various extensional beliefs mentioned.

17As we saw, Kurki is alert to discussion of the role of values on levels other than the framework level of his research (Kurki 2019: 25 ff). His own examples of value assumptions are drawn mainly from the building-block level and relate to passive legal personhood’s connection with the interest theory of rights and active legal personhood’s connection with the will theory of rights. Here we think that Kurki’s theory helps clarify the role of values in legal concepts – an important contribution because, as pointed out above, values are mainly seen to connect with legal principles. However, there are some problems in Kurki’s argumentation on the basis of those values, as discussed below.

3 The discrepancy argument

18So far, we have focused on the “testing ground” (the extensional beliefs); now we turn our attention to the other elements in the balancing process (theories of rights and the orthodox view). As noted above, a central claim in Kurki’s book is that the orthodox view, which equates legal personhood with right-holding or duty-bearing (or the capacity for them), is inconsistent with the extensional beliefs, if we understand rights along the lines of modern Hohfeldian theories. Modern theories of rights are typically divided into two groups: interest theories (such as Matthew Kramer’s) and will theories (such as HLA Hart’s), and they are “Hohfeldian” insofar as they view right-holders to stand in special relationships to duty-bearers. These two groups of theories differ on the nature of the right-duty-relationship: “[i]nterest theories maintain, roughly, that a duty borne by X constitutes a right for Y if Y’s interests are typically served by the performance of the duty’ (Kurki 2019: 61); whereas ‘will theories… define Y’s holding of a right as Y’s control over X’s duty: Y can, for instance, choose to demand the enforcement of X’s duty” (Kurki 2019: 61).

19The (value-neutral) aim of Kurki’s book is not to defend either of these theories, but to show that whichever of them one chooses, the result is that the groups of right-holders and legal persons do not completely coincide:

  • 6 Kurki also mentions an “anything-beneficial” conception of rights, according to which any beneficia (...)

when each [theory of rights] is applied, there will be a discrepancy between the central extensional beliefs (regarding who or what is a legal person), and who or what currently holds legal rights or partakes in Hohfeldian legal relations (Kurki 2019: 61).6

20Chapter 2 of the book, entitled “Rights and persons – Hohfeldian analysis” sets out to show this discrepancy. However, the discussion in this chapter is not really about “who currently holds legal rights”, but about who can hold rights. Indeed, these two questions are impossible to keep apart, since to answer the question of who holds legal rights requires some kind of conception of what it means to hold rights, and the legal reality must be interpreted in light of this theoretical understanding. This means that the supposed discrepancy between the extensional beliefs and “who currently holds legal rights” is not a straightforward and self-evident issue. In other words, it is not a matter of simply describing legal reality and then comparing it with the extensional beliefs. Rather, answering the question of who or what currently holds legal rights rests on evaluative grounds and argumentation from those grounds. After all, Kurki is “firmly opposed to the Legalist claim that legal personhood can be attributed to any entity” (Kurki 2019: 23), for example, rocks or gusts of wind cannot be turned into legal persons by any legal stipulation (Kurki 2019: 10). Similarly, legal rights are not simply stipulated into existence, but require some intrinsic properties on the part of right-holders. For example, for Kurki, rivers cannot hold rights (even though legal stipulations to this effect can be found; see Kurki’s discussion on the Whanganui river in chapter 4). Once again, description and evaluation cannot be strictly separated.

3.1 A closer look at the interest theory

21The first prong of the discrepancy argument is that, according to the interest theory, legal rights are held by beings who do not fall into standard categories of legal persons. The main example of right-holders that are not legal persons are non-human animals. So, our focus here is on what Kurki means by animal rights. The main ground for the argument that animals possess legal rights is the fact that they are, in most jurisdictions, protected against some forms of mistreatment. For example, under the Finnish Animal Welfare Act (247/1996), it is forbidden to cause animals undue pain or distress (section 3), or to take wild animals in captivity (section 13). Provisions such as these, according to Kurki, create duties towards animals, rather than just duties pertaining to animals. And duties that are beneficial to the entity towards which they are directed count as rights under the interest theory.

22This is a weighty argument for the claim that animals currently hold legal rights, but, we think, not an unproblematic one. Even if the law protects nonhuman animals from some gross forms of human mistreatment, the law also protects many other things from human mistreatment. We are not permitted, for example, to destroy many plants, buildings, works of art, or ecosystems. These things, according to Kramer’s interest theory (that Kurki adopts), can be said to have interests, yet they do not have rights (Kurki 2019: 63). Thus, something more is needed for right-holding than simply having interests that are protected by law. Here moral evaluations become relevant, and the questions of who or what has legal rights and who or what can have rights become entangled. According to Kurki, only beings that are of ultimate value can have rights; and only creatures that are sentient are of ultimate value. This excludes, for example, plants and inanimate objects from the sphere of right-holders. But it includes, alongside living human beings and almost-living human beings (i.e., human foetuses during the late stages of pregnancy), most nonhuman animals (Kurki 2019: 62-64). This demarcation of right-holders thus extends further than the scope of those conventionally taken to be legal persons: “the interest theory is consistent with the attribution of legal rights to foetuses, nonhuman animals, and slaves, all of which are central examples of legal nonpersons” (Kurki 2019: 65).

23We will not here contest the claim that sentient animals have moral value. However, what can be contested is the idea that sentience endows a being with rights. Is sentience really the morally relevant similarity between human and non-human animals that justifies ascribing rights to both, or do rights require something more than mere sentience – this “something else” capturing the special function that rights have in our moral discourse?

  • 7 Julian Franklin opines that ‘[t]he right of animals is already implied in recognizing that animals (...)
  • 8 For a discussion of animals’ moral status, and of ways of recognizing it without resorting to right (...)
  • 9 See Lagerspetz 2019: 96-106.

24Kurki justifies his inference of the existence of rights from sentience by appealing to the facts that sentient beings “have an experience of their own existence” and that “things matter” to them (Kurki 2019: 64). These surely are good arguments for taking such creatures morally into account and as having moral status. But does having a moral status automatically mean having rights? This is a step that is often made in discussion of animal rights without further argument.7 However, it is not logically necessary to deduce rights from sentience, since it is not conceptually contradictory to regard something as meriting moral consideration and yet bearing no rights. We have other ways of recognizing a being’s moral status than granting rights to it, for example, by not violating its crucial interests on trivial grounds, or by treating it with empathy and kindness (and thus exhibiting admirable character traits).8 As these utilitarian or virtue ethicist responses show, rights do not swallow up the whole moral universe. Furthermore, it should be remembered that there is a price to be paid if rights are liberally accorded to all sentient beings. The more rights there are, the more rights conflicts there will be, and the more important will become the principles by means of which those conflicts are resolved, to the cost of the rights themselves.9 A proliferation of rights would cause them to lose their weight in our moral and legal discourse, and difficult questions about the moral value of humans vis-à-vis animals would only reassert themselves elsewhere.

  • 10 Kramer says, for example, that “[p]erhaps the Interest Theorist will wish to classify all conscious (...)

25In short, to establish a discrepancy between right-holders and standard cases of legal persons, it is not enough to simply assert that “animals already hold legal rights”. Matters are more complex than that. To distinguish genuine right-holders from all things whose interests are protected by law, one needs an account of who or what can have rights in the first place. As discussed above, Kurki argues that sentience confers ultimate value on a being and opens the possibility of having rights. We have sought to show that one need not think that the presence of sentience automatically means the holding of rights. In fact, Kurki himself seems to concede this when he explicitly endorses Kramer’s version of the interest theory, wherein Kramer seems reluctant to accord rights to all sentient beings.10 But what then is the real criterion for right-holding if mere sentience is not enough? Why isn’t this further criterion specified and discussed? Insofar as it is not, “who or what currently holds legal rights” remains unclear in Kurki’s version of the interest theory. This affects the discrepancy argument insofar as how exactly the extensions of standard categories of legal persons and interest-theory right-holders relate to one another remains unclear: the former is clearly defined by Kurki, whereas the boundaries of the latter are left blurry. And this, in turn, means that the orthodox view is not so easily refuted after all.

3.2 A closer look at the will theory

  • 11 See Hart 1995: 180.
  • 12 Andersson 2013: 175–190.

26The second prong of the discrepancy argument sets out to show that if one accepts the will theory of rights, then there will be legal persons who are not right-holders. More precisely, however, this conclusion follows only if one accepts the “hard” version of the will theory. At the heart of all will theories is the idea that rights are conceptually linked with the ability to make choices, i.e., to exercise one’s autonomy or agency. Some versions are “hard” in the sense that if an individual lacks the requisite mental capacities to be an autonomous agent, then she is not a right-holder. For example, Hart’s early formulations of the will theory excluded not only animals but also infants from the group of right-holders, since infants cannot control others’ duties towards them.11 More recently, Anna-Karin Andersson has argued that people with severe, incurable cognitive disabilities are not right-holders, since their physical constitution means they will never be able to exercise agency.12 Here we have two examples of groups of human beings who are not right-holders, yet who are routinely taken to be legal persons, and thus the orthodox view is refuted.

  • 13 Hart 1982: 162-193.

27However, there are also “soft” versions of will theories that include infants and temporarily disabled adults among those considered right-holders (i.e., individuals who will become sui juris later);13 and even softer versions that include all human beings, even severely mentally disabled individuals who will never attain the capacity to exercise their rights without others’ help. If the latter, softer will theory (that Kurki calls “WT2”) could be defended, then the discrepancy between those who are routinely taken to be legal persons and who can have rights would not be very great –perhaps even non-existent. Kurki, however, sees problems in WT2. In soft will theories, the rights of those who are temporarily incapable of exercising their agency are entrusted to their representatives. But Kurki thinks that

if we adopt WT2 [the softer will theory], it is rather difficult to see why nonhuman animals could not also hold legal rights, given that the appointed representative clearly cannot represent the will of the principal, but only his, her, or its interests (Kurki 2019: 67).

28According to Kurki, the representative of a permanently cognitively disabled person “would be a trustee rather than an agent of the principal” (Kurki 2019: 67). And because animals can also be the beneficiaries of trusts (the practice of establishing pet trusts exists in many states in the US), they should also be seen as having legal rights under WT2: their interests are looked after by their representatives. Kurki concludes that “[a]ny argument denying that these animals already hold WT2 rights would need to be a moral argument” (Kurki 2019: 68).

29We agree: moral argumentation is needed here. The question is whether there is a (morally significant) distinction between the legal representation of animals and that of seriously cognitively disabled persons – this is a distinction that also affects the question of right-holding. According to Kurki, the representative of a seriously cognitively impaired person must be a trustee who can only represent the principal’s interests. But why should this be so? Kurki’s argument seems to be as follows: since such an individual will never acquire the requisite mental capacities for the independent exercising of rights, she is in this respect like a non-human animal who also, permanently and by nature, lacks such capacities. Therefore, if the former can have rights, so can the latter. But animals’ rights can only be interest-theory rights, in which case those of seriously cognitively disabled individuals are also interest-theory rights.

30We think that the view that mentally disabled persons can only have trustees rather than agents is problematic. Why can’t their will be represented? A severely cognitively disabled person is, after all, a human being; one who most probably has close family members, relatives, friends, or carers who can recognize their wishes, preferences, likes, and dislikes. In general, most adults have enough common sense and experience of human life to be able to gather what another human being wants or doesn’t want. We belong to the same biological species and share a common human form of life; it should thus not be an impossible task to represent the will of another human being, given enough time and effort on the part of the representative.

  • 14 https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilit (...)

31Further support for the claim that disabled persons’ representatives are their agents rather than trustees comes from the Convention on the Rights of Persons with Disabilities (CRPD, 2016).14 The first of the general principles stated in the CRPD is “respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons” (article 3, paragraph 1). The Committee on the CRPD’s General Comment No. 1, which provides guidelines concerning the use of article 12 (Equal recognition before the law), states that

  • 15 Committee on the Rights of Persons with Disabilities: General comment No 1. (2014) on Article 12 CR (...)

[w]here, after significant efforts have been made, it is not practicable to determine the will and preferences of an individual, the ‘best interpretation of will and preferences’ must replace the ‘best interests’ determinations… The ‘will and preferences’ paradigm must replace the ‘best interests’ paradigm to ensure that persons with disabilities enjoy the right to legal capacity on an equal basis with others.15

32Interestingly, the Committee’s statements also cast doubt on one of the extensional beliefs about legal personhood that Kurki adopts as one of his book’s starting points. As we saw, Kurki takes it as a widely shared belief that “there are some relevant legal differences between the legal personhood of adults of sound mind and that of infants and severely mentally disabled individuals” (Kurki 2019: 92). However, the General Comment set out above emphasizes that people with disabilities – and those with severe mental impairments – are legal persons in the full sense of the word; they have the capacity to be both holders of rights, and agents:

  • 16 ibid, section 11.
  • 17 ibid, section 13.
  • 18 ibid, section 15.

every human being is respected as a person possessing legal personality, which is a prerequisite for the recognition of a person’s legal capacity.16

Legal capacity includes the capacity to be both a holder of rights and an actor under the law … Legal capacity to act under the law recognizes that person as an agent with the power to engage in transactions and create, modify or end legal relationships …

‘unsoundedness of mind’ and other discriminatory labels are not legitimate reasons for the denial of legal capacity (both legal standing and legal agency).
17

Article 12 does not permit such discriminatory denial of legal capacity, but, rather, requires that support be provided in the exercise of legal capacity.
18

  • 19 It is true that the Committee’s recommendations do not legally bind the parties to the CRPD, but th (...)
  • 20 The same tendency to emphasize autonomy, rather than interests, is visible in the modern understand (...)

33Like the issue of the legal personhood of slaves, it is possible to ask here whether extensional beliefs concerning persons with disabilities should be uncritically accepted, even if they are widely shared among jurists. They may be based on a misinterpretation of positive law,19 or on prejudices about the capacities of people with disabilities.20

  • 21 We take it here as unproblematic that there can be artificial legal persons, such as corporations, (...)

34It is not possible here to argue in support of the stronger claim that a will theory of rights (or, more precisely, WT2) can include all human beings among right-holders, without thereby also entailing the need also to grant rights to nonhuman animals. However, the above discussion hints at how this might be achieved. Even if nonhuman animals can also have legal representatives, this representative relation is of a different kind than that which exists between two human beings, and that difference reflects the special moral value or dignity of human beings. Once again, our point is that the discrepancy between the extensions of legal persons and that of right-holders is not so easily established, and the orthodox view not so easily refuted. There might be a plausible will theory of rights that includes all human beings and excludes nonhuman animals. If, as argued above, slaves can also be seen to have been legal persons (since, as Kurki shows, they did possess some rights and duties), this would leave only foetuses as a counterexample to the orthodox view.21 This article does not discuss the legal personhood and rights of foetuses. Even if this might indeed provide a sound counterexample against the orthodox view, it would entail a weaker argument than the original discrepancy argument.

4 Summary

35This review has criticized Kurki’s choice of the extensional beliefs, arguing that they are not as value-neutral as they are claimed to be. Moreover, they include some morally dubious beliefs. Insofar as other clearly morally unacceptable cases of legal personhood are excluded from the extensional beliefs (most notably the Nazi conception of legal personhood), it is unclear why slaves are included. If the Nazi conception were excluded because it is such a grossly unjust view, one would have thought that slavery could also be discarded. At any rate, it remains unclear what the criterion for selection as an extensional belief is, and what role moral values play in this. To put it in terms of Kurki’s methodological choice, the extensional beliefs too could have been critically scrutinized, pruned, and adjusted to achieve reflective equilibrium. Our second criticism concerned Kurki’s discrepancy argument. We tried to show that it is not so easy to establish a discrepancy between legal right-holders and standard categories of legal persons. To identify someone as a legal right-holder requires a theory of who can have rights. Basing rights on sentience is problematic, and even interest-theorists seem willing to concede this. On the other hand, if the criterion for right-holding is autonomous agency, the resulting category may also include children and mentally disabled individuals, and thus some standard criticisms of the will theory of rights can be avoided. This suggests that it remains unclear whether the orthodox view – which regards the extensions of legal persons and right-holders as coinciding – is conclusively refuted.

36However, Kurki’s book deals with a multitude of themes related to the question of legal personhood. Furthermore, his main analytical result – the new concept of legal personhood as a bundle of incidents enabling a distinction between passive and active legal personhood – remains valid even if some of our critical arrows are deemed to hit their target. In fact, in relation to the legal status of slaves, we have been able to use Kurki’s own (excellent) analyses to point out that slaves possessed passive legal personality. We have also only briefly mentioned the chapters on artificial intelligence and collectivities as legal persons, both of which reinforce the value of Kurki’s analysis.

37We also welcome Kurki’s focus on basic legal concepts. Discussions on legal thinking and legal reasoning have been dominated by an interest in legal principles. It is only through sound basic analytical research like Kurki’s that the problematic nature of values – and morals – in law can be more extensively discussed.

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Bibliography

Andersson, Anna-Karin Margareta. (2013). Choices, Interests, and Potentiality: What Distinguishes Bearers of Rights?. Journal of Value Inquiry 47 (3), 175–190.

Franklin, Julian. (2005). Animal Rights and Moral Philosophy. Columbia University Press.

Gruen, Lori. (2017). The Moral Status of Animals. In Edward N. Zalta (ed.), The Stanford Encyclopedia of Philosophy (Fall 2017 edition. https://plato.stanford.edu/archives/fall2017/entries/moral-animal/ [accessed 27 November 2020].

Hart, H. L. A. (1955). Are There Any Natural Rights?. The Philosophical Review 64 (2), 175-191.

Hart, H L A. (1982). Essays on Bentham. Clarendon Press.

Kramer, Matthew. (2001). Do Animals and Dead People Have Legal Rights?, Canadian Journal of Law and Jurisprudence 14 (1), 29-54.

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

Lagerspetz, Eerik. (2019). Oikeuksien konflikteista [About conflicts between rights]. In Maija Aalto-Heinilä and Visa Kurki (eds), Mitä oikeudet ovat? [What are Rights?] (96-106). Gaudeamus.

Priel, Dan. (2010). Description and Evaluation in Jurisprudence. Law and Philosophy 29, 633–667.

Priel, Dan. (2011). The Place of Legitimacy in Legal Theory. McGill Law Journal, 57(1), 1-35.

Rawls, John. (1971). A Theory of Justice. Harvard University Press.

Series, Lucy. (2020). Disability and Human Rights. In Nick Watson and Simo Vehmas (eds), The Routledge Handbook of Disability Studies (pp. 72-87). Routledge.

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Notes

1 In the online version of The Oxford Dictionary of Philosophy, Simon Blackburn explains the extension/intension- distinction in the following way:The extension of a predicate is the class of objects that it describes: the extension of ‘red’ is the class of red things. The intension is the principle under which it picks them out, or in other words the condition a thing must satisfy to be truly described by the predicate.” https://www.oxfordreference.com/view/10.1093/acref/9780199541430.001.0001/acref-9780199541430-e-1203# (accessed 19 January 2021).

2 It is worth underlining that Kurki does not claim that his list is exhaustive.

3 See e.g., Dan Priel (Priel 2011: 1-35), who argues that the notion of validity cannot be accorded meaning outside a preliminary consideration of legitimacy.

4 Of course, as an anonymous reviewer pointed out, the legal personhood of corporations is not totally unproblematic and involves tricky moral questions, for example, about responsibility. However, the idea in itself does not include a commitment to the dehumanization of some groups of people, while slavery and Nazi attitudes to legal personhood do demonstrate such a commitment. There is no space in this article to discuss the legal personhood of corporations further.

5 The impossibility of separating pure descriptions of law from evaluations has been emphasized by Dan Priel (Priel 2010: 633–667). We thank the anonymous reviewer who recommended Dan Priel’s writings to us.

6 Kurki also mentions an “anything-beneficial” conception of rights, according to which any beneficial legal position is a right (Kurki 2019: 61), but the only theories of rights that are seriously considered are the interest and will theories.

7 Julian Franklin opines that ‘[t]he right of animals is already implied in recognizing that animals have moral standing’ (Franklin 2005: 61).

8 For a discussion of animals’ moral status, and of ways of recognizing it without resorting to rights, see Gruen 2017.

9 See Lagerspetz 2019: 96-106.

10 Kramer says, for example, that “[p]erhaps the Interest Theorist will wish to classify all conscious creatures as potential right-holders; more likely, however, he will seek to distinguish between some of those creatures and others” (Kramer 2001: 40). In an informal discussion Kurki also admitted that the interest theorist need not be committed to the idea that all sentient beings should be endowed with legal rights.

11 See Hart 1995: 180.

12 Andersson 2013: 175–190.

13 Hart 1982: 162-193.

14 https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities.html (accessed 9 December 2020).

15 Committee on the Rights of Persons with Disabilities: General comment No 1. (2014) on Article 12 CRPD/C/GC, section 21.

16 ibid, section 11.

17 ibid, section 13.

18 ibid, section 15.

19 It is true that the Committee’s recommendations do not legally bind the parties to the CRPD, but they nevertheless represent authoritative interpretations of it. They have at least the nature of ‘soft law’, and indicate how people with mental disabilities themselves wish to be treated: as legal persons in the full sense of the word. On the role of disabled persons in the drafting of the CRDP and in the Committee, see Lucy Series 2020: 72-87.

20 The same tendency to emphasize autonomy, rather than interests, is visible in the modern understanding of children’s rights. Unfortunately, we have no space to discuss children’s rights here.

21 We take it here as unproblematic that there can be artificial legal persons, such as corporations, that can also hold rights.)

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References

Electronic reference

Maija Aalto-Heinilä and Juha Karhu, Animals, slaves, and beyond: The role of values in the extensional beliefs and discrepancy argument in Visa Kurki’s A Theory of Legal Personhood Revus [Online], 44 | 2021, Online since 16 March 2021, connection on 28 September 2021. URL: http://journals.openedition.org/revus/7004; DOI: https://doi.org/10.4000/revus.7004

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About the authors

Maija Aalto-Heinilä

Senior Lecturer in Philosophy of Law, University of Eastern Finland

E-mail: maija.aalto@uef.fi

Juha Karhu

Professor of Law (emeritus), University of Lapland

E-mail: juha.karhu@ulapland.fi

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