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Symposium on the theory of legal personhood

Why cannot anything be a legal person?

A critique of Kurki’s Theory of Legal Personhood
Paweł Banaś

Abstract

This article addresses Chapter 4 of Visa A. J. Kurki’s latest book A Theory of Legal Personhood, in which the author discusses constraints on the concept of legal personhood and concludes that not anything can be a legal person. Kurki suggests that those who claim otherwise often conflate two separate notionsof “legal person”. The first part of this article reframes the problem by locating it within an essentialist framework. Parts two and three reinterpret Kurki’s theory in relation to this framework and apply Khalidi’s theory of social kinds to Kurki’s understanding of legal personhood. Finally, part four shows that the consequence of Kurki’s theory is that not only his legal persons but also his legal platforms are eventually grounded in non-social features. Since this consequence is suspicious for a legal positivist, this article concludes by suggesting an alternative approach, in which constraints on legal personhood are of a pragmatic rather than a conceptual or metaphysical nature.

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1 Introduction

1In his latest book, A Theory of Legal Personhood, Visa A. J. Kurki offers many interesting insights into the concept of legal personhood. This topic seems extremely timely, given that in recent years a number of new types of entities have been earning legal rights, to the extent that in some cases it has become (prima facie) justified to consider them as true legal persons. Perhaps the most spectacular cases are associated with so-called “environmental persons”, where certain parts of the environment (like mountains or rivers) are granted e.g. legal standing (see e.g. O’Donnell & Talbot-Jones 2018). Kurki’s attempt to reconsider the concept of legal personhood is multithreaded and rather impressive. In this short article, I focus on a single but fundamental question that is directly associated with the introduction of potentially new types of legal persons: What are the constraints on the concept of legal personhood. Hence, Chapter 4 addresses “Who or What Can be a Legal Person?” I will attempt to do so by redescribing the problem in question, reconstructing Kurki’s line of argumentation and, finally, offering a possible alternative approach.

2 Does everything go?

  • 1 That is, terms of necessity; and although the latter claim is clearly substantial and might suggest (...)

2To begin, let us consider the meaning of the claim that there are constraints on the concept of legal personhood. There is at least a twofold explanation of some legal concept being constrained. First, one could insist that whatever corresponds to the concept in question (i.e. a legal kind) has some necessary features (to be discovered, e.g. by legal scholars). Second, one could insist that the concept in question cannot be applied to just any entity but only to those that satisfy some necessary condition. In referring to necessary features or conditions, I clearly indicate that the existence of constraints on the concept of legal personhood is best understood in terms of some form of essentialism towards legal kinds. Moreover, I suggest that whatever the form of essentialism, its characterisation should be in modal terms.1 Hence, one can differentiate between two types of (modal) essentialism: essentialism about kinds and individual essentialism (e.g. Bird & Tobin 2018).

3By applying the first type of essentialism to a legal framework, one could speak of essentialism about legal kinds. Essentialism about legal kinds assumes that there are some necessary (and distinctive) properties characteristic of all entities of the legal kind in question. In the case of legal personhood, this could mean that all entities that are of the legal person kind have (necessarily) certain rights or duties.

4By applying the second type of essentialism to a legal framework, one could speak of individual legal essentialism. Individual legal essentialism assumes that any entity either necessarily belongs or does not belong to a given legal kind. In the case of legal personhood, this could mean that certain entities are necessarily legal persons whereas some necessarily are not. Alas, individual essentialism can also be seen as essentialism about kind membership (Bird & Tobin 2018).

5Note that even if we assume that there are some necessary features of a given kind, this does not automatically imply that if something is of that kind that it must necessarily have those features. For example, although it seems that a necessary feature of a “bachelor” kind is that it consists only of unmarried men, it is by no means a necessary feature of any member of that kind that they are unmarried men (if they marry, they remain themselves but no longer belong to the “bachelor” kind). As Bird and Tobin (2018) point out, “(…)kind essentialism does not entail essentialism of kind membership(…)”. If, however, an entity necessarily belongs to some kind, it is automatically a necessary feature of that kind that this entity belongs to it. For example, if I am necessarily a human being, then the “human being” kind necessarily has the feature that I am of that kind. Hence, essentialism about kind membership (or individual essentialism) entails essentialism about kinds.

6To reiterate, the problem of constraints on the concept of legal personhood can be redescribed in terms of either individual essentialism (i.e. essentialism about kind membership) or essentialism about kinds. Whereas embracing the latter does not imply the former, accepting the former entails the latter.

7Now, when considering the scope of the concept of legal personhood, Kurki introduces Ngaire Naffine’s distinction between Legalists and Realists. As Naffine puts it, “to some Legalists, anything goes, anything or anyone can be endowed with rights and so become a legal person, as long as it is compatible with the purpose of any particular law” (Naffine 2009: 21). On the other hand, Realists “(…) believe that the legal person is an expression of some important defining attribute of human nature and therefore it is important to go beyond law to work out what that nature is” (Naffine 2009: 22).

  • 2 Among them, F. H. Lawson, Bryant Smith, David Derham and Hans Kelsen.

8Arguably, by applying the previously described essentialist framework, one could interpret Naffine’s Legalists as rejecting and Naffine’s Realists as embracing essentialism about legal personhood kind membership. That interpretation seems, prima facie, consistent with Kurki’s line of thought; this is how one could justify his doubts regarding whether those scholars2 who “(…) situate the legal person purely in the normative world, as a bundle of legal rights and duties” (Kurki 2019: 130) and suggest that such bundles can be “defined into existence” should be correctly described as Naffine’s Legalists. This is because they reject essentialism about the “legal personhood” kind rather than about that kind membership. On the other hand, Kurki cites Richard Tur’s views as representative of such Legalism. Tur states that “(…) if legal personality is the legal capacity to bear rights and duties, then it is itself an artificial creation of the law, and anything or anyone can be a legal person” (1988). Keeping that in mind, let me move now to a reconstruction of Kurki’s position concerning the existence of constraints on the concept of legal personhood.

3 Visa Kurki’s position

9In his book, Kurki insists that not anything could be a legal person. To understand what he means by this, one could try to apply the essentialist framework I have briefly described. This seems consistent with Kurki’s observation that the term “legal person” can be used either to refer to some legal kind, conceived as “a bundle of legal positions” (i.e. a bunch of legal entitlements and burdens), or to an entity holding this bundle of legal positions (Kurki 2019: 133). According to Kurki, this ambiguity can be a source of non-sequitur mistakes when these two meanings of “legal person” are confused. Hence, Kurki suggests that we should use the term “legal platform” when referring to a legal person as a bundle of legal positions and reserve the term “legal person” for those uses in which we (directly?) refer to an entity to which certain legal platforms might be ascribed.

10Whereas I find the concept of a legal platform as a legal kind identical to a bundle of certain legal properties (legal entitlements and burdens) stipulated in law to be largely straightforward, the concept of Kurki’s (sensu stricto) legal person requires some further analysis. Although it seems like most of the time the author uses the term “legal person” in reference to entities that are (supposedly) members of some legal platform, he also defines it as follows: “(…) one’s being a legal person is an attribute of a non- legal entity, conferred by an efficacious legal system” (Kurki 2019: 133). Hence, Kurki’s “legal person” seems to remain ambiguous as to whether it is a reference to an entity or an attribute. This ambiguity runs deeper given that he provides an analogy according to which a legal person “is much like the status of a piece of fibre as money in some legal system” (Kurki 2019: 133). By this he clearly refers to the idea of Searlean status-function (see Searle 2010), which he introduced few pages earlier. Although Searle himself was rather vague in his approach towards kinds in general, his commentators would usually identify a status function with an (institutional) kind.

  • 3 Note that the author of the book introduces a distinction between legal persons and their natural l (...)

11This ambiguity that I have just ascribed to Kurki need not necessarily be a problem. The author might, for example, defend himself by saying that by legal persons he means entities qua their legal status. Or, someone could point out that kinds themselves can also be considered entities qua members of some other (maybe higher-order) kinds; i.e. that it is possible that legal platforms can be ascribed to legal persons conceived as legal kinds (or a single legal kind). Although possible, however, this defence is somewhat inconsistent with Kurki’s obvious motivation to clarify such ambiguities. It also raises the question of whether the initial problem of constraints on the concept of legal personhood can be solved in that way.3 Without doubt, “(…)distinguishing between the notions of legal person and legal platform brings more clarity to the discourse”. It is not obvious to me, however, whether this clarity provides a sufficient framework to solve the problem. Although it is question-begging, for the time being let us consider this issue irrelevant and focus on Kurki’s general line of argumentation.

  • 4 As a result, to say that there are different types of legal persons would mean that there are diffe (...)

12What is clear from Chapter 4 of Kurki’s book (as well as the rest of it) is that he recognises that one can look at the problem of constraints on legal personhood in two different ways: either by focusing on the bundle of legal positions (i.e. legal platforms) or on the entities (i.e. legal persons) to which this bundle can be ascribed. This is, prima facie, consistent with the essentialist framework I introduced, provided that a “legal platform” can be identified with a given “legal personhood” kind.4 In line with this framework, I read Kurki’s theory as one that rejects essentialism about the legal personhood kind while at the same time embracing essentialism about legal personhood kind membership. It is this latter form of essentialism that justifies his insistence that not anything could be a legal person.

  • 5 During an online workshop organised by the Law-Language-Philosophy Research Network on 17th Decembe (...)

13Essentialism about the legal personhood kind membership seems, prima facie, hardly controversial. It is rather implausible that either my newest T-shirt or a cake I just made could be ascribed legal personhood. This could be coined in terms of there being entities that necessarily cannot be legal persons. A weak consequence of this would be that there are entities that, when a certain sufficient condition is satisfied, can be considered legal persons. A stronger consequence, along the lines of Kurki’s theory, would be that, when certain entities satisfy that condition, they are (necessarily) to be considered legal persons. According to the author, the general condition in question is the ability to hold claim rights or to perform acts5 (Kurki 2019: 138). It is an interesting part of Kurki’s theory that this ability (and legal personhood as a corresponding act, respectively) has different dimensions (benefits, responsibilities and capacity for legal acts) and that these dimensions may be realised to various degrees. Kurki uses this to justify further categorisation of legal personhood into purely passive personhood, dependent legal personhood, independent legal personhood and purely onerous personhood. These are clearly substantial claims with serious consequences for the very possibility of ascribing legal personhood to non-sentient beings, such as environmental entities or (contemporary) AI. Neither rivers nor trees can by themselves perform acts, which is why they cannot be legal persons. As far as my article is concerned, however, what matters is that Kurki seems to be a Naffine’s Realist in that he makes being a legal person dependent on having some (natural) attribute characteristic of human beings. This attribute ought to be somehow “discovered” since “(…) in order to determine which entities can be legal persons, we must determine the relevant building blocks of legal personhood and then ascertain to whom or what these elements can be extended” (Kurki 2019: 138).

14Interestingly, however, Kurki does not embrace essentialism toward legal personhood as a kind. To be precise, he openly rejects essentialism about legal platforms as bundles of rights and duties. Since, as I argued above, different legal platforms are best identified with different types of legal persons, one could think of them as kinds themselves (rather than as entities, i.e. members of that kind). Kurki accepts that legal platforms can be “defined into existence” or “stipulated” and speaks of no necessary condition that bounds their scope. He seems to situate legal platforms among normative categories—to be filled, however, with natural entities.

15Although legal platforms are stipulated and mind-dependent, that these platforms can be attached to something is not. Being a mind-dependent kind is one thing; another thing is being a member of the kind in question. Kurki diagnoses that many claims about no constraints on the concept of legal personhood are due to a conflation of those two different senses of “legal person”, which sometimes refer to normative and mind-dependent kinds and sometimes to natural and mind-independent entities (see Kurki 2019: 128).

16Although Kurki does not cite him, I see a relevant resemblance between Kurki’s theory of legal personhood and how Muhammad Ali Khalidi describes the second of his three categories of social kinds (see Khalidi 2015: 103-104). Specifically, Khalidi introduces the following categories of social kinds:

a) First category: the existence of the kind as well as any instance of the kind do not depend on our having propositional attitudes toward them;

b) Second category: the existence of the kind depends on our having propositional attitudes toward it, but the existence of the instances of the kind does not.

c) Third category: not only does the existence of the kind depend on our having propositional attitudes toward it; the existence of its instances also depends on our having propositional attitudes toward them (namely, that they are instances of that kind).

17Money, according to Khalidi, is an example of the second category. That is, the existence of the very kind “money” depends on members of some relevant community having certain propositional attitudes (constitutive of the kind in question). One could say very carefully that this community stipulates money or “defines it into existence”. As for any entity that is to be a member of the kind in question (money), no community can “define it” into this membership. That a given entity belongs to the kind in question is mind independent. A piece of paper either is or is not a dollar bill due to its intrinsic features—and some entities could not be dollar bills (e.g. cubes of ice) for the same reason. Kurki seems to suggest something similar about legal personhood (he even draws an analogy between legal personhood and money in Chapter 4 of his book). The plausibility of such a category of social kinds is rather controversial, and I remain sceptical about it. However, if I am right about my brief reconstruction of Kurki’s theory, Khalidi’s second category of social kinds provides an established point of reference for Kurki’s views on legal personhood within a general metaphysical framework in which legal personhood is like money in Khalidi’s view. And, since Kurki claims that “(…) the question ‘who or what can be a legal person?’ is best approached by determining who or what can be endowed with incidents of legal personhood (…) (Kurki 2019: 128), he concludes that not anything could be a legal person.

4 Alternative approach

18Although the intuition that it is implausible that either my newest T-shirt or a cake I just made could be ascribed legal personhood remains very strong, this does not automatically imply that there are entities that necessarily cannot be legal persons. It is one thing to say that not anything could be a legal person, but it is another to interpret this as a strong metaphysical or conceptual modal claim. In fact, I see how some proponents of legal positivism could find Naffine’s Realism rather uncomfortable. Such Realists (Kurki among them) accept that legal personhood is a natural feature from which certain rights and duties flow. Or, to put it more technically, they accept that legal platforms (i.e. certain bundles of rights and duties) are grounded in certain natural features characteristic of human beings. A true legal positivist is by definition suspicious of such claims and prefers to see legal institutions grounded in social practice rather than some natural features (Gizbert-Studnicki 2021: 419).

19This suspicion may elicit dissatisfaction with Kurki’s theory and call for some alternative. However, one could insist that Kurki reaches out to positivists by allowing there to be a potentially infinite number of legal platforms that could be introduced by the legislator (Kurki 2019: 128) in accordance with that legislator’s needs. As has been already discussed, these legal platforms seem not to be, at least prima facie, grounded in any natural features—and this should be enough for a legal positivist to accept Kurki’s theory. My main concern with Chapter 4 of Kurki’s book, however, is that it remains controversial whether legal platforms can really be what the author takes them to be. As I pointed out at the beginning of the article, whereas essentialism about kinds does not imply essentialism about kind membership, embracing the latter entails the former. If Kurki insists that some entities cannot necessarily be legal persons, that is, they cannot be ascribed with certain rights and duties (to be identified with a legal platform), it has the (metaphysical or conceptual) consequence that any legal platform has the feature that it cannot be attached to some entities (at least those that cannot be legal persons). And, although seemingly marginal, this (constraining) feature is both a natural and grounding one.

20My previous statements should not be read too strongly. In particular, it is not the case that a legal positivist cannot accept any constraints on the concept on legal personhood, including any constraints on the scope of entities that could be “legal personhood” kind members. I only insist that a legal positivist should be suspicious about any metaphysical or conceptual constraints and natural grounding features (just as positivists are suspicious of any moral constraints on the content of law). It is almost platitudinous, however, that there are always some pragmatic constraints and reasons for a limited application of legal concepts, including the concept of legal personhood. Note that Naffine’s Legalists claim that, at least prima facie, anything could be a legal person, and they do so for a very important reason. Namely, they notice that legal personhood “(…)is strictly a formal and neutral legal device for enabling a being or entity to act in law, to acquire what is known as a ‘legal personality’: the ability to bear rights and duties” (Naffine 2009: 21). A legal positivist might insist that legal institutions are what they are, first because they serve certain relevant functions (as stipulated within a society). Ascription of legal personhood to some entity only makes sense if by this a certain relevant function is being served. Alas, ascribing legal personhood to my newest T-shirt would hardly serve any relevant legal function.

  • 6 It is worth noticing that, according to Khalidi, his third category of social kinds consists of kin (...)

21As a result, an alternative approach to legal personhood would either dismiss the possibility of Khalidi’s second category of social kinds or simply insist that legal institutions, including legal personhood, are to be located in the third category, for which collective recognition is not only necessary for the very kind existence but also for that kind membership.6

5 Conclusions

22In this brief article, I aimed to address Chapter 4 of Visa Kurki’s latest book, A Theory of Legal Personhood. Specifically, I sought to offer a critique of his position toward the problem of constraints on the concept of legal personhood. Although I remain sympathetic to his general claim that not anything can be a legal person, I am suspicious about the line of argumentation he offers. I find his theory not only original but also very plausible and well-grounded in the current literature on social ontology. Still, I cannot help but interpret his claims as strong metaphysical statements that might be hard to swallow for anyone with positivist inclinations. I am well aware that my reinterpretation of his theory is brief and raises questions itself; moreover it might be far-fetched, as Kurki himself was rather reluctant to address the problems of legal positivism and general social ontology. One cannot, however, exhaust such a formidable subject as legal personhood in a single book, even one as impressive as A Theory of Legal Personhood.

Acknowledgments.— The author would like to thank Krzysztof Posłajko, Tomasz Gizbert-Studnicki, Bartosz Biskup and Wojciech Graboń for their comments and the two anonymous reviewers for their insightful suggestions and careful reading of the early version of the manuscript. This article is a part of a research project (no. 2020/36/C/HS5/00600) funded by the National Science Center of Poland (Analysis of the concept of a legal person from an ontological and linguistic perspective). This work was also supported by the (Polish) National Agency for Academic Exchange (grant no. PPI/APM/2018/1/00022

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Bibliography

Bird, A., Tobin, E. (2018). Natural Kinds. The Stanford Encyclopedia of Philosophy, Edward N. Zalta (ed.), url=https://plato.stanford.edu/archives/spr2018/entries/natural-kinds/.

Fine, K. (1994). Essence and Modality: The Second Philosophical Perspectives Lecture. Philosophical Perspectives, 8, 1–16.

Gizbert-Studnicki, T. (2021). Social Facts and Legal Facts: Perils of Hume’s Guillotine. In T. Spaak & P. Mindus (Eds.), The Cambridge Companion to Legal Positivism (pp. 419-442). Cambridge University Press.

Khalidi, M.A. (2015). Three Kinds of Social Kinds. Philosophy and Phenomenological Research, XC, 1, 96-112.

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

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

O'Donnell, E. L., Talbot-Jones, J. (2018). Creating legal rights for rivers: lessons from Australia, New Zealand, and India. Ecology and Society, 23(1), 7.

Searle, J. (2010). Making the Social World: The Structure of Human Civilization. Oxford University Press.

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Notes

1 That is, terms of necessity; and although the latter claim is clearly substantial and might suggest that I have just easily dismissed, for example, Kit Fine’s definitional characterisation of essentialism (1994), I do not feel very attached to it—at least for the purpose of this article. I will use modal characterisation mostly for illustrative purposes.

2 Among them, F. H. Lawson, Bryant Smith, David Derham and Hans Kelsen.

3 Note that the author of the book introduces a distinction between legal persons and their natural legal platforms—but, at least to me, the differences between them remain vague if legal person is to be defined in terms of some attribute of natural persons.

4 As a result, to say that there are different types of legal persons would mean that there are different legal platforms etc.

5 During an online workshop organised by the Law-Language-Philosophy Research Network on 17th December 2020, Kurki also defended a view that whether something can be a legal person depends on whether it can be held responsible, exercise legal competences, hold claim rights and be wronged.

6 It is worth noticing that, according to Khalidi, his third category of social kinds consists of kinds that are “(…)more purely institutional or conventional (e.g. permanent resident, prime minister)” (Khalidi 2015: 104). Legal kinds easily fit this description.

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References

Electronic reference

Paweł Banaś, “Why cannot anything be a legal person?”Revus [Online], 44 | 2021, Online since 15 June 2021, connection on 19 September 2021. URL: http://journals.openedition.org/revus/7335; DOI: https://doi.org/10.4000/revus.7335

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About the author

Paweł Banaś

Faculty of Law and Administration, University of Warsaw. Jagiellonian Centre for Law, Language and Philosophy, Jagiellonian University

E-mail: pawel.banas@uj.edu.pl

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