Skip to navigation – Site map

HomeNuméros44Symposium on the theory of legal ...On legal personhood: rejoinders, ...

Symposium on the theory of legal personhood

On legal personhood: rejoinders, reflections and restatements

Visa AJ Kurki

Abstract

This reply addresses the contributions of the book symposium, containing the author’s reflections, clarifications and counterarguments.

Top of page

Full text

1I cannot imagine a greater honour for my first monograph than a dedicated book symposium – and with such excellent contributors. Of course, academics honour something by criticising it, which is a curious tradition. Why not just give a flower bouquet and a card? At any rate, I will here do my best to reply to the sophisticated, thoughtful criticisms of the seven contributors.

2Let me begin by offering a brief reflection. I became interested in legal personhood and its connection to animal rights in 2011, and started working on my doctoral dissertation in 2014. Back then, working on this topic was a relatively solitary affair. Legal personhood was a much more obscure topic than it is today. Though I seldom encountered actively discouraging comments, my topic was often met by a kind of aloof puzzlement. When hearing that I was working on legal personhood, many thought I was only interested in corporations. When I occasionally discussed the “law of persons” in my presentations, some retorted that there is no such thing.

  • 1 This will hopefully explain, at least partly, why I fail to reference some authors who explored ide (...)

3Analyzing the legal status of nonhuman animals was one of my main interests, but philosophically informed “animal legal theory” was sparse and difficult to find, and the field did not have that many established events, especially in Europe. Since then, legal theory focusing on the legal status of animals has exploded in popularity, and the pandemic-spurred era of online events has meant that exchanging ideas with scholars working on similar topics is easier than ever before. It is startling how different things were only a couple of years ago. Getting good feedback, informed questions, and reading suggestions is now easier than ever.1

4Philosophical interest in the general topic of legal personhood is also gradually growing. While writing the book, I occasionally felt like I was shadowboxing. To many, the Orthodox View – the idea that being a legal person simply means holding legal rights and/or duties – was such an obvious axiom that it was seldom defended at all. On the other hand, those who did not adhere to the Orthodox View usually did not challenge it either. Rather, they ignored it altogether. Questions such as “who or what can be a legal person?”, were more often resolved by assertion than argumentation. With some sterling exceptions, contributions such as those published in this symposium – addressing the central questions of legal personhood carefully and analytically – were few and far between.

5Unfortunately, my replies here are very uneven in length. Length is not an indication of how much I’ve given thought to each of the comments, or how much I appreciate them. In a context such as this, it is easier to reply to specific, narrow points rather than profound questions that holistically challenge one’s methodology and approach.

6The reply is structured as follows. I will first consider some of Raimo Siltala’s criticisms. I will then move on to discuss the question of who or what can be a legal person. This question is addressed not only by Siltala but also by Paweł Banaś and Brunello Stancioli. I will address the latter two authors’ comments together. I then turn to the piece co-authored by Juha Karhu and Aalto-Heinilä, containing a great number of probing points and counterarguments, especially regarding the notion of extensional beliefs and the question of who or what can, or currently does, hold rights. After that, I consider Ngaire Naffine’s comment, addressing the ways in which my book treats the legal person as a male concept. Finally, I offer a number of replies to Fasel, who argues that I have interpreted Gary Francione and Steven Wise uncharitably as well as presenting a number of arguments for why his understanding of legal personhood is preferable to my Bundle Theory.

1 Siltala: Counterpoints

7In his comment, Raimo Siltala offers a generous evaluation of the book, but also a number of criticisms. I will here first briefly address three of his criticisms before moving on to the question of who or what can be a legal person, a topic raised not only by Siltala but also by Paweł Banaś and Brunello Stancioli.

  • 2 Maija Aalto-Heinilä and Juha Karhu, on the other hand, seem to have no qualms about describing the (...)

8First, Siltala suggests that the reflective equilibrium is not a method at all (Siltala 2021: paras 8–9). But since he does not really specify why he disregards it as a method, and what he then takes to be a real philosophical method, I feel unequipped to answer this worry.2

  • 3 One could thereby argue that they are instances of different “subtypes” of the institution of money

9Siltala’s second “minor critique” has to do with my distinction between concrete and abstract money. He notes that all money is really abstract, in the sense that the existence of all money depends on “a set of mutual expectations and co-operative dispositions among those concerned” (Siltala 2021: para 10). He then seems to suggest that my distinction between concrete and abstract money corresponds to the distinction between the institution and instance of money, or the type and a token of money. This is not, however, what I mean by the abstract/concrete money distinction. Both abstract and concrete money are instances of money, which presuppose the institution of money. However, they are different kinds of instances, and I specify these differences in the book.3 Concrete money – such as banknotes – has a specific physical form. If a banknote is destroyed, this reduces the amount of money in the world. Abstract money, on the other hand, is not tied to any specific physical form, even if information about it may take a physical form. It is perhaps easier to think of this distinction in terms of a game. The points scored in a game are often written down somewhere. Let us say that in a friendly football game, the teams decide to count the points by using black and white stones: if the black team scores a point, a black stone is put into a special jar, whereas the white team’s goals result in a white stone being put in the jar. Both teams then score approximately ten times, but they are unsure who has scored more. They then turn to count the stones in the jar, and it turns out that the jar contains ten black stones and zero white stones. After a moment of puzzlement, the team figures out that a magpie has stolen all of the white stones. Does this entail that the game is now 10-0? It does not – unless we a talking about a very special game – because the stones are not the points. Rather, they provide information about the points. Hence, the points are “abstract”, in the sense used here. Of course, the existence of the points presupposes the institution of football, which can also be labelled “abstract”, but this fact does not really change the analysis in any way.

10Third, Siltala claims that what is missing from my book is consideration of the “true impact [of legal personhood] on legal reasoning, its course of argumentation, and the outcome to be reached” (Siltala 2021: para 3). This is a surprising claim, given that the last chapter of the book, entitled “Legal Personhood in Normative Reasoning” – which Siltala does not address – is dedicated to this very question. In that chapter, I discuss the role of legal personhood as a reason and a conclusion, as well as the role that legal personhood may have in normative reasoning that is internal or external to law. I also discuss the interpretation of terms such as “person” in statutes. Siltala argues that “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” (Siltala 2021: para 6). This is essentially the same position as that of Richard Tur’s, whose view I discuss in said chapter (Kurki 2019: 196). Though I think there is some truth to Tur’s and Siltala’s position, it is not the whole truth: some X’s legal personhood (or being endowed with some incident of legal personhood) can certainly figure as a premise in legal reasoning. Let me quote myself:

A prototypical case in which legal personhood could be treated as a reason is the following. X has been deemed a legal person with regard to incident A, and the question arises whether X should also be treated as a legal person with regard to incident B. If, say, the infliction of bodily harm to foetuses has been criminalized, then it could be argued that foetuses should also have the right to recover compensation from any individual who has inflicted bodily harm upon them. Postnatal children have such a right, and by extending the criminal-law protection to foetuses the legislator might be taken to have indicated that foetuses should be treated on a par with postnatal children. Here we should firstly note that the cluster nature of legal personhood entails that one can be a legal person for some purposes and not for others; there is nothing conceptually dubious about treating foetuses as potential victims in the eyes of the criminal law but not as potential tort-law plaintiffs. On the other hand, as has been mentioned in the preceding section, many incidents of legal personhood are interconnected in various ways. Thus, should a legal system choose to treat a foetus as a potential tort plaintiff, it should then also endow the foetus with at least a limited capacity to own property—otherwise suing the tortfeasor for damages would be quite pointless. (Kurki 2019: 197)

11Perhaps this is a misguided position, but it is surprising that Siltala does not engage with it at all. I certainly do not agree with his claim that consideration of these issues would be missing from the book, even if the matter certainly warrants further investigation.

12Three of the commentators – Siltala, Banaś, and Stancioli – focus on the question of domain of legal personhood, i.e., who or what can be a legal person. I will here consider Siltala’s arguments before addressing Banaś and Stancioli in tandem.

13First, Siltala lists 11 different categories of entities, including not only human beings but also e.g., “holy rocks”, “divine objects”, “algorithms” and so on (Siltala 2021: para 15). He suggests that “various kinds of legal consequences may be attached to each of them”. This he connects to his point about the normative significance of the concept of legal personhood: “So, 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?” (Siltala 2021: para 16).

14I think one source of disagreement lies in the notion of legal consequence. It may, in fact, ultimately be that Siltala and I do not disagree that much. To Siltala, the notion of a legal consequence seems to be quite broad: legal consequences are, to paraphrase, “whatever legal officials are required to enforce”. Now, if a legal system adopts an arrangement that purports to accord legal personhood to a holy rock, this arrangement will likely result in legal consequences that the legal officials are required to enforce. I believe this point can be accommodated by the distinction between a legal platform and a legal person. On that distinction, the main legal consequence would be the creation of a new legal platform, i.e., a bundle of legal positions. However, the question regarding the best way to analyse the situation from the point of view of the relevant subjects and their legal positions, remains. Is the rock actually endowed with the relevant legal positions and incidents of legal personhood, meriting the conclusion that the rock is a legal person? Stancioli summarizes my position well in his comment:

  • 4 I should add that I do think group agents can be legal persons despite not being sentient. Insentie (...)

To be a legal person, there must be a series of legally relevant events coupled to this particular entity. However, this requirement will only make sense if this entity has interests to be protected. These incidents, even passive incidents (fundamental protections, bodily integrity, and protection of life and liberty), cannot be coupled to any entity (rivers, idols, or rocks). They will only make sense if the entity has, at a minimum, sentience. (Stancioli 2021: para 11)4

15Alf Ross – whom Siltala mentions approvingly – was certainly interested in questions pertaining to the subject of rights, rather than being content with a very general notion of legal consequences (Ross 2019: 218). I will return to this issue in the next section, when addressing Banaś’ and Stancioli’s views.

2 Banaś and Stancioli: Who or what can be a legal person?

16In their comments, both Paweł Banaś and Brunello Stancioli address the question of the domain of legal personhood.

  • 5 Banaś suggests that I occasionally conflate “legal person” as a reference to an entity and an attri (...)
  • 6 Kurki 2021a and Kurki 2021b.

17Banaś discusses how essentialism about legal personhood can be understood, and his distinctions are very interesting. It can be an essential feature of, say, born human beings that they are legal persons. This view may follow quite naturally from a natural-law standpoint, whereas a legal positivist likely cannot agree with this position. To a legal positivist, human beings can have the legal status of a nonperson. On the other hand, essentialism may also refer to kind membership: for something to be a potential legal person, it must meet some criteria. I agree with this claim.5 Banaś notes that “[e]ssentialism about the legal personhood kind membership seems, prima facie, hardly controversial” (Banaś 2021: para 13). He then mentions T-shirts and cakes as examples of entities that cannot likely be legal persons. But, surprisingly, even these examples are controversial: many people would seem to think that even T-shirts and cakes could be legal persons. And, in fact, Banaś suggests that for a legal positivist, even T-shirts could be potential legal persons, if endowing them with legal personhood could serve some function. Hence, under positivism, function would be the relevant criterion for determining the scope of application of a legal concept. I do not completely agree here either. I have, in fact, recently addressed both questions in two papers, and I do not intend to repeat all of that discussion here.6 However, let me make two points.

  • 7 Except those moral criteria contingently imposed by the legal system itself.
  • 8 Kelsen 2006: 97
  • 9 Kelsen 2006: 97.

18First, one should distinguish positivism from deference towards the legislator. Legal positivism is primarily a claim about legal norms: the norms of a legal system are contingent and their validity does not depend on moral criteria.7 Contrariwise, legal positivism is not – at least necessarily – a claim about legal concepts: even if the legislator defines some concept – say that of a legal person or a legal right – in a particular way with regard to its intension or extension, legal positivists need not take this definition at face value. Rather, they can very well scrutinise the definition carefully and provide an alternative analysis of the concept. The arch-positivists – HLA Hart and Hans Kelsen – constantly engaged in such analyses. For instance, Kelsen claimed quite explicitly that “the legal order can only impose duties and confer rights upon human beings because only the behaviour of human beings can be regulated by the legal order”.8 Hence, the duties and rights of corporations were, according to Kelsen, “obviously only figures of speech”.9

  • 10 The most relevant incidents seem to be fundamental protections, the capacity to suffer legal harms, (...)
  • 11 In one passage, he characterizes my position as follows: “However, again according to Kurki, we can (...)

19In his comment, Stancioli notes that the constitutions of Bolivia and Ecuador offer a challenge to my view. For instance, the Ecuadorian Constitution provides that “Nature, or Pachamama, where life is reproduced and occurs, has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes” as well as “the right to be restored”. The provisions seem to endow Pachamama with at least some incidents of legal personhood.10 However, Pachamama would regardless not be a legal person under my analysis, as Stancioli notes.11

20My claim that natural objects cannot be legal persons seems to trouble many. Whereas my reconceptualization of legal personhood as a cluster property has received relatively little critical attention, I often have to defend my claim about the domain of legal personhood. Let me make a couple of important points here. First, I am completely prepared to admit that for someone who has a non-Western animistic worldview, treating a river or Mother Nature as a right-holder or a legal person may be completely meaningful, and even combinable with most parts of my theory. However, I am quite confident that such spiritual beings do not exist. This is, of course, merely “my opinion”, based on a scientific worldview and a certain ethical outlook. However, I do not offer my claim as any kind of dogmatic ex cathedra pronouncement. I could be wrong: perhaps rivers and the Pachamama can be legal persons. One could argue for such a position at least 1) by moral argumentation (by establishing, for instance, that natural objects are of ultimate value), 2) by proving that these entities are in fact the kind of spiritual beings that some take them to be, or 3) by establishing that there are some other features, possession of which is a sufficient condition for being a potential legal person. Nor do I in any way mean to show disrespect toward the religious beliefs of, say, the Andean people(s). However, one can respect the religious beliefs of others without accepting them.

  • 12 Kurki 2021b.
  • 13 Stancioli (2021: para 28) notes this as well: “By recognizing Nature as a legal entity, these const (...)

21This brings us back to the question of functions, addressed briefly above. I argue elsewhere that purporting to confer rights or legal personhood upon a natural object can certainly serve some functions.12 It can, for instance, serve the symbolic function. By recognizing, say, a river as a legal person, a society can show respect for an indigenous minority that understands the river as a spiritual entity.13 However, a legal scholar could still scrutinize this legal arrangement carefully and ask whether the river really has become a legal person. Assuming that the river is not really a spiritual, living entity, what is the best explanation for the legal arrangement? One plausible explanation would be to treat the arrangement as a special type of corporation.

3 Karhu and Aalto-Heinilä: Extensional beliefs, rights, and theories

22In their contribution, Maija Aalto-Heinilä and Juha Karhu offer a number of sophisticated and interesting critical remarks. Many of their points relate, in one way or another, to extensional beliefs – widely shared beliefs concerning who or what is a legal person.

23Extensional beliefs form an important part of my methodology, and Aalto-Heinilä and Karhu aptly describe these beliefs as a “testing-ground for […] conceptual analyses” (Aalto-Heinilä & Karhu 2021: para 7). One such belief that slaves were not legal persons. The use of this example worries Karhu and Aalto-Heinilä for two reasons. The first pertains to anachronism: “we use history to achieve understanding of our own era at the risk of losing sight of the specific context of earlier beliefs” (Aalto-Heinilä & Karhu 2021: para 13). The second stems from a kind of natural-law thinking.

24The sceptre of anachronism did indeed worry me when writing the book. In the context of extensional beliefs, this worry had to do with both slavery and the historical status of women. Given that the historical status of women varied widely, I decided against using their status as an extensional belief for testing the different accounts of legal personhood. On the other hand, slavery was a paradigmatic instance of the treatment of human beings as legal nonpersons, which an account of legal personhood certainly had to explain. Furthermore, slavery was still an existing legal institution when the modern theories of legal personhood (such as that of Friedrich Carl von Savigny) were formed. Hence, slavery – especially in the form practiced in the antebellum United States – was such a central example that I deemed including it as part of my testing-ground to be unavoidable.

  • 14 The Radbruchian formula clearly excludes the possibility of considering slavery as valid law.

25The second worry Karhu and Aalto-Heinilä articulate is that slavery is an institution falling under the natural-law precept lex iniusta non lex est, “and therefore not a solid and sustainable basis on which to illustrate conceptual developments in law” (Aalto-Heinilä & Karhu 2021: para 14). They later elaborate that “[a]nother 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” (Aalto-Heinilä & Karhu 2021: para 16). These are certainly very deep objections that I cannot hope to address in full. A natural lawyer who subscribes to the lex iniusta non lex est formula may of course conclude that slaves were, in fact, legal persons, even if the judges and other legal officials of the time failed to recognise them as such.14 However, I would instead argue that analysing slavery – and thereby accepting that it was a real legal institution – is important for understanding what was wrong about it. Furthermore, even a natural lawyer may accept that slavery was a real phenomenon of positive law, even if such law would merely have been law in a formal or deficient sense.

  • 15 A good place to start would likely be Pauer-Studer 2020.

26Aalto-Heinilä and Karhu also ask why I have included slavery as a central extensional belief but excluded other some morally unacceptable cases, such as the legal nonpersonhood of Jews under Nazi Germany. I had a number of reasons for not considering this example. Most importantly, I wished to focus on widely accepted and mentioned cases of legal personhood or nonpersonhood, whereas the legal treatment of Jews under the Reich is not – to my knowledge – usually analyzed from the point of view of legal personhood (though perhaps it should be). Second, the account of legal personhood offered in my book is primarily intended in the context of “typical” Western legal systems, rather than totalitarian systems. Investigating the legal personhood of Jews (and other discriminated groups) under the Reich warrants a research project of its own.15

3.1 Extensional beliefs and rights

27Aalto-Heinilä and Karhu then move on to assess some of my “discrepancy arguments”, meaning my claim that modern Hohfeldian theories of rights either ascribe rights to legal nonpersons or deny rights to some legal nonpersons. They contest my treatment of both the interest and the will theory of rights.

  • 16 In his 2014 LLM lectures at the University of Cambridge, Kramer also suggested that an artificial i (...)

28Aalto-Heinilä and Karhu first address the interrelations of interests, sentience and rights. Brunello Stancioli addresses highly similar issues in his comment. Aalto-Heinilä and Karhu note, for instance, that Matthew Kramer’s conception of interests is quite capacious, extending to various insentient beings such as paintings and rivers. However, Kramer’s account of the domain of right-holders is more limited: the most important categories of entities that can hold rights are ultimately valuable beings and human collectivities. The extension of ultimately valuable beings more or less coincides with that of sentient beings, though not completely.16 I prefer a narrower conception of interests: I do not think that rivers or paintings have interests. However, I mostly agree with Kramer regarding which beings are of ultimate value, but think that sentience is a sufficient condition for ultimate value and thereby for the capacity to hold rights. At any rate, Aalto-Heinilä and Karhu argue that,

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. (Aalto-Heinilä & Karhu 2021: para 25)

29I agree that some of the boundaries of the domain of right-holders are blurry. For instance, the question of whether insects are sentient is difficult. As Stancioli notes, “[e]ven entities with limited [behavioural] repertoires […] show volition, interests, dispositions, and preferences” (Stancioli 2021: para 13). However, I fail to see how this blurriness affects my refutation of the Orthodox View in any significant way. Dogs, cats, cows, chimpanzees, and so on are certainly sentient, and it is their claim-rights that the Orthodox View has difficulty explaining.

30Aalto-Heinilä and Karhu also contest the idea that mere sentience would open the possibility of having rights. They suggest that something else captures “the special function that rights have in our moral discourse” (Aalto-Heinilä & Karhu 2021: para 23) and that “[t]he 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” (Aalto-Heinilä & Karhu 2021: para 24). I do not intend to turn this response into an arena for the “debate over rights”, but I will make a couple of points. First, it is not obvious to me what Aalto-Heinilä and Karhu mean by “our moral discourse”. It is very common to frame questions of animal ethics in terms of animal rights. I often ask my students which beings they think have (legal and/or moral) rights, and the majority seems to have no issues with ascribing rights to animals. They can of course be confused, or use the concept of a right in a problematic manner, but expressing animals’ moral and/or legal status in terms of rights does seem to be a part of the moral discourse for at least some of us.

  • 17 Saskia Stucki’s distinction between simple and fundamental rights is useful here as well. See Stuck (...)

31As regards conflicts of rights, it is important to distinguish between rights as reasons and rights as conclusions.17 Fundamental and human rights, entrenched in constitutions and international treaties, will often clash in ways that need to be resolved using methods specific to such rights (such as balancing). Giving animals fundamental rights would doubtless mean that such clashes become more frequent. However, it is not obvious that Aalto-Heinilä and Karhu’s worry apply to Hohfeldian claim-rights. This has to do with the fact that Hohfeldian claim-rights are conclusions of legal reasoning, and many such rights – such as the claim-rights of animals – are not the result of the interpretation and balancing of fundamental rights provisions, but rather of the interpretation of statutes, case law, etc. Though Hohfeldian claim-rights may be in conflict, such conflicts are most often pre-emptively resolved by means of legal reasoning.

32Aalto-Heinilä and Karhu then move on to address the will theory. They focus on two issues. First, a version of the soft will theory that I term “WT2” would ascribe rights both to infants and severely mentally disabled individuals. However, I argue in the book that such an understanding of rights would likely also entail that animals can have rights under the will theory, because the representation of severely mentally disabled individuals must involve a representation of their interests rather than their will.

33Aalto-Heinilä and Karhu offer two retorts. First, they argue that the will of individuals with mental disabilities can indeed 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. (Aalto-Heinilä & Karhu 2021: para 30, emphasis in original)

34I do not see how these remarks would not also apply to some nonhuman animals. I can certainly recognise many of the wishes, preferences, likes and dislikes of my companion animal.

35Aalto-Heinilä and Karhu also reference some relatively recent developments in disability law, which have to do with the extension of active legal personhood to persons with cognitive disabilities. I found these developments very interesting while writing the book, and have become increasingly interested in them ever since. Recent developments in disability law require that persons with disabilities be empowered to make their own decisions through so-called supported decision-making. Even if in some cases decisions are made on their behalf, such decisions should reflect their will rather than best interests. Aalto-Heinilä and Karhu note that

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, or on prejudices about the capacities of people with disabilities. (Aalto-Heinilä & Karhu 2021: para 33)

36This is a very good point, and the agency status of persons with cognitive disabilities a highly interesting question. On the other hand, I think the questions asked by Aalto-Heinilä and Karhu also apply to the doctrines of disability law: even if disability law would require treating individuals with severe cognitive disabilities as agents, a theorist need not accept this legal determination at face value either. According to Aalto-Heinilä and Karhu, “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” under the Convention on the Rights of Persons with Disabilities (Aalto-Heinilä & Karhu 2021: para 32). However, even the very comment they cite acknowledges that determining the will and preferences of an individual is not always practicable and that in such cases, determination should be based on the best interpretation of will and preferences. My worry here is that rather than being an interpretation of will and preferences, in some cases, such a procedure may amount to a construction of such intentions. This worry should not, however, be understood as a criticism of the overall project of reducing paternalism within disability law; I am simply not convinced that the will theory can really explain all rights of persons with disabilities even under the new paradigm.

37I should also concede that the paradigm shift that has recently taken place within disability law probably should have been better reflected in the book.

4 Naffine and the male legal person

38In a comment that somewhat stands out from the rest, Ngaire Naffine addresses the sexed nature of the legal person, and how the book is male-centred in various ways.

39Probably the most central way in which women are excluded from the book has to do with the methodological tool of extensional beliefs, discussed above. I identify some central extensional beliefs – “easy cases” – which I then use to assess the Orthodox View, and do not include the historical legal status of women among these beliefs. The reason for this exclusion is the simple fact that women’s legal situation has, historically, varied a lot, and it is therefore difficult to use it as testing-ground. For instance, under the common-law doctrine of coverture, women were almost completely subsumed into the legal existence of their husbands, whereas the Swedish-Finnish doctrine of målsmanskap was more concerned with limiting women’s capabilities to act independently in the law (i.e., their active legal personhood). Thus, it would have been difficult to tease out any kind of generalizable extensional beliefs. Naffine questions this approach:

But, if the laws governing the personhood of women are too variable over time and jurisdiction to supply a sure footing for analysis, so too are the laws governing the personhood of men. To be a full legal person, one has needed to be a man and not a woman. The paradigmatic person has historically been a man, no bones about it, and we still live with the residue of this paradigmatic being […]. The personhood of men has therefore always, in an important sense, taken its positive meaning from the non-personhood of women. It follows that men’s personhood has been as variable as the (non) personhood of women. (Naffine 2021: para 10)

40Naffine is certainly right in saying that the paradigmatic person has historically been a man. However, I resist the claim of the last two sentences. The suggestion that the variability of women’s legal status also entails that men’s legal personhood has been variable needs more elaboration. Opposites and negations are naturally helpful for understanding various phenomena. One may very well gain an enhanced understanding of legal personhood by considering legal nonpersons. However, it is not obvious to me how the variability of women’s legal status would in itself have had an effect on men’s legal personhood. Of course, this variability has had some effect on men’s rights and duties. Women’s increasing rights to bodily integrity and self-determination have decreased the liberties and competences of their husbands. However, I fail to see how this would affect my criticism of the Orthodox View. I do also take women to be paradigmatic legal persons under contemporary law; their contemporary legal personhood is thus included as an extensional belief.

41After assessing the issues of the Orthodox View in light of the extensional beliefs and the contemporary theories of rights, I do then also analyse a number of less easy cases, including some examples of women’s historical legal status. Naffine’s comment does, however, make me realize that I should have been more explicit about how pregnancy can affect one’s legal personhood. I consider women as paradigmatic legal persons and occasionally discuss the legal status of foetuses, but I fail to consider the interrelations of these two topics. Pregnancy can, in fact, limit a woman’s legal personhood, and the extent of this limitation depends partly on the extent to which the foetus is considered a legal person. Most importantly, pregnancy can involve a limitation of a woman’s authority to decide over her own body. In terms of my theory, this will affect her fundamental protections and legal competences.

42Naffine issues an even deeper methodological challenge: “What if we imagine history changing course in such a manner that the paradigmatic person were someone with the capacity for pregnancy, and this possibility were a major consideration in her life decisions? […] What if the paradigmatic person were pregnant?” (Naffine 2021: para 33). These are very profound questions, which I cannot fully answer here. The only thing I can offer now is the promise to think about this very carefully.

5 Fasel: Exegesis and Alternatives

43The last contribution I will consider comes from Raffael Fasel. I take him to be making two main arguments. First, he claims that I have misunderstood the work of Steven Wise and Gary Francione and interpreted both authors uncharitably: “[Kurki] clings to the contention that [Wise and Francione] fail to see that animals have claim-rights […], and gets lost in quibbles about how they misunderstand specific aspects of the Hohfeldian framework” (Fasel 2021: para 18). Second, Fasel argues against one of the central theses of the book: that legal personhood is a cluster property. This thesis has received relatively little critical attention, even though I have taken this be one of the most original contributions of the book. However, I have my doubts about how different Fasel’s view really is from mine.

5.1 Francione, Wise, and the Orthodox View

44Fasel claims that my argument is based “on an uncharitable interpretation of the theories of leading animal rights advocates such as Steven Wise and Gary Francione, whom [I] mistakenly take[] to be advocates of the Orthodox View” (Fasel 2021: para 10). I will consider Francione first, for the simple reason that I do not take him to be an adherent of the Orthodox View. I will then move on to discuss Wise’s work.

  • 18 Clare McCausland’s (2014) excellent analysis would have been very useful in this specific part of t (...)

45It is a bit of a cliché to claim that one’s critics have misunderstood one’s work. However, I do think I need to clarify why I discuss Francione’s views. According to Fasel, I – uncharitably – try to show how Francione is wrong in subscribing to the Orthodox View, even though he quite explicitly admits that animals already hold legal rights in a certain sense. Classifying Francione as an Orthodox View adherent would certainly be uncharitable, which is why I do not classify him as such. I take up Francione’s work when discussing whether one can both be property and a right-holder. This is a counterargument that one consistently encounters when claiming that animals already hold rights, and Francione provides an eloquent argument for the idea that having rights and being property are mutually exclusive positions. However, I then point out that what Francione primarily means by “rights” is something akin to “fundamental rights”, and that Francione’s thesis does not apply to Hohfeldian claim-rights. Francione does of course seem to accept that animals can and do already hold Hohfeldian claim-rights, but he then expresses some doubts about the concept itself, seeming to think that it is too formal to be useful. To reply to this claim, I then “get lost” in the Hohfeldian analysis, trying to show that the concept is much more meaningful than Francione seems to think and that his opinion is partly based on a misunderstanding of the Hohfeldian analysis. When I then discuss Francione as having “conceded” something, I am referring to Francione’s acknowledgement that animals already have some legal protections – classifiable as claim-rights – that are not subject to being balanced away. I take this to be an example of why animals’ current claim-rights, despite their property status, are not meaningless.18 However, I recognize that the point of my discussion of Francione should have been clearer and that I should have explicitly noted that I do not take him to be an Orthodox View adherent.

46On the other hand, I certainly take Wise to be an Orthodox View adherent. Though one should probably not get too mired in exegetical debates over living authors’ work, I need to do so here to defend my interpretation of Wise. There is plenty of textual evidence to classify him as an Orthodox View adherent.

47The most central piece of evidence offered by Fasel for his interpretation is a passage where Wise states that “in some jurisdictions, the enactment of criminal statutes intended to protect the interests of nonhuman animals has already created legal claim-rights for them” (Wise 1998: 799). This passage does seem to run counter to my portrayal of Wise as denying that animals already hold rights. Let me briefly explain how I understand this passage. The passage is from the introduction of a 125-page article. More specifically, the passage is from the roadmap where Wise tells the reader what he is going to say later. However, when Wise actually addresses the issue of animals’ current claim-rights toward the end of his article, his position does not exactly correspond to the one presented in the roadmap (as Fasel recognises in a footnote). Rather, Wise seems to say that animals should have legal claim-rights. He writes:

In some jurisdictions […] anti-cruelty statutes are recognized as protecting the interests of nonhuman animals and penal statutes designed for the benefit of a particular class of individuals are held to create a civil cause of action for their violation. The refusal of the courts of these jurisdictions to recognize that at least some nonhuman animals may have a claim-right (or a power-right to have suit brought by a representative) against cruel treatment under a statute enacted to benefit them and to protect their interests, underscores the arbitrariness and injustice of their continued legal thinghood. (Wise 1998: 912)

  • 19 Wise seems to employ a soft will-theory understanding of claim-rights here: though animals are prot (...)

48I do not read this as a claim that animals already hold claim-rights, but rather as a criticism of the fact that animals in said jurisdictions have no access to civil causes of action for violations of anti-cruelty statutes. Whereas, similar criminal provisions protecting human beings automatically give private rights of action to the victims. If animals had access to such causes of action, I take it that they would then hold claim-rights according to Wise.19 Thus, I understand Wise’s introductory claim that “in some jurisdictions, the enactment of criminal statutes intended to protect the interests of nonhuman animals has already created legal claim-rights for them”, as something like the following: “if the courts were to apply the law equally and without discriminating based on personhood status or species, they would already give claim-rights to animals in some jurisdictions”.

  • 20 Wise 2010: 4.
  • 21 See https://www.youtube.com/watch?v=MVryN9XkgUM (from approximately 34:30). Interestingly, Wise the (...)

49To further back up this interpretation of Wise’s position – that animals do not hold claim-rights as a result of criminal law protecting animals – let us consider two other examples. In another publication, Wise discusses the U.S. case Cetacean Community v. Bush, where the court claims that animals already have some legal rights in virtue of animal protection legislation. Wise retorts that the court is mistaken: “As cetaceans have not yet been declared to be […] legal persons, they have no […] legal rights […]”.20 Furthermore, in a 2019 court hearing, a judge puts it to Wise that animals already have rights in virtue of animal protection legislation. Wise explicitly responds that he does not agree.21 Thus, Wise has on several occasions explicitly denied the position that Fasel attributes to him.

50Let us then consider the broader issue of whether Wise subscribes to the Orthodox View. Fasel essentially claims that Wise’s definition of legal personhood as the “capacity to possess at least one right” should be understood as the “capacity to possess at least one fundamental right”, and my refusal to acknowledge such an implicit proviso amounts to an uncharitable reading of Wise’s work, failing to consider it as a whole. Further to the quotation above – having to do with animals’ claim-rights under animal welfare legislation – Fasel provides the following argument in support of this interpretation:

Consider Wise. In one of his most influential articles, which Kurki cites frequently, Wise explicitly addresses the question whether nonhuman animals are eligible for “dignity rights” rather than thin legal rights (Wise 1998). In Wise’s definition, dignity rights are “fundamental legal rights” (Wise 1998: 795) that include rights such as the rights to bodily integrity and liberty. They are much like human rights, but with the crucial advantage of applying to any being with dignity, not just humans. It does not take much to recognise that Wise here attempts to connect legal personhood with the holding of dignity or fundamental rights, and not thin legal rights. (Fasel 2021: para 12)

51I of course agree that Wise’s project is to get animals recognized as holders of dignity-rights, rather than merely as holders of legal rights in general. However, the dispute here is whether Wise already takes animals to hold some legal rights despite not being legal persons, or whether he thinks animals’ current legal personhood bars them from holding any legal rights at all. In support of his interpretation, Fasel writes:

For instance, [Wise] criticises at the outset of his article the status of “‘legal thinghood’ of nonhuman animals that disqualified them from legal personhood because of their species and thereby rendered them ineligible even for such fundamental ‘human rights’ as bodily integrity and bodily liberty” (1998: 794-795). (Fasel 2021: para 12, citing Wise 1998, emphasis by Fasel).

52Let me note two things here. First, the quotation is compatible with both my interpretation and Fasel’s. If Wise thinks legal personhood is a precondition for any legal rights, then clearly legal nonpersons are ineligible for fundamental legal rights as well. Second, much like the Wise quotation discussed above, this passage is somewhat unusual: it is a summary of an argument presented in an earlier article, as Fasel recognizes in a footnote. In that article, “The Legal Thinghood of Nonhuman Animals”, Wise approaches legal personhood as an adherent of the Orthodox View would:

  • 22 Wise also cites Roscoe Pound, an adherent of the Orthodox View.

“Legal personhood” describes an entity with the capacity for legal rights. “Legal thinghood” describes an entity with no capacity for legal rights. Its interests, if they exist, are not required to be respected. Instead, the entity is treated as property about which legal persons have legal rights and duties. (Wise 1996: 472)22

53That article is mostly concerned with the historical status of animals and does not further elaborate on the definition of legal personhood. However, Wise is often even more explicit about his claim that animals do not currently have any rights at all. Note, for instance, these passages:

(1) “A court confronted with a plaintiff’s claim to possess any legal right need only determine the plaintiff’s species.” (Wise 2010: 5, emphasis added)

(2) “An entity possessed of any legal right is, by definition, a legal person.” (Wise 2019: 321, emphasis added)

(3) “Does a nonhuman animal or any being have the capacity to possess any legal right at all? This is what the Nonhuman Rights Project is initially focusing on. What arguments might persuade a common law appellate court that a nonhuman animal plaintiff is a legal person, that is, a being with the capacity for possessing any legal right?” (Wise 2013: 1280–1281, emphasis in original)

  • 23 Wise 2019: 368–369.

54In a 2019 article, as on many other occasions, Wise approvingly cites legal theorists John Salmond, Roscoe Pound, and John Chipman Gray, all of whom define “legal person” as an entity that has or can have rights.23 In their definitions of legal personhood, none of these scholars makes any distinction between rights simpliciter and fundamental rights. Furthermore, as noted above, there are cases where Wise explicitly denies that animals have rights arising from current animal protection legislation.

55Perhaps, in spite of the qualifier “any”, Wise actually implicitly means “any fundamental rights”? There are many passages where Wise distinguishes legal rights simpliciter from fundamental rights (a.k.a. dignity-rights). One passage is particularly instructive. When discussing “liberty-rights”, Wise explicitly denies that “bare” liberties – unaccompanied by fundamental immunity-rights or fundamental claim-rights – would be dignity-rights. He then considers whether animals have such bare liberty-rights and arrives at a negative conclusion:

Recall that Hohfeldian rights define the jural relationships between two legal persons and one thing concerning one act or forbearance in a municipal legal system. Nonhuman animals must therefore be ruled out as liberty-rights holders until they attain legal personhood. (Wise 1998: 803)

  • 24 See also Wise 2000: 54–55.
  • 25 Wise 2000: 53–61.
  • 26 Wise 2017: 270–271.
  • 27 Fasel’s claim that I “get[] lost” in the Hohfeldian analysis might of course have some truth to it. (...)

56Wise is very explicitly discussing liberty-rights in general here, rather than merely dignity-rights, and yet he denies that animals hold any liberty-rights at all.24 This is also an example of Wise’s extensive discussions of the Hohfeldian analysis in his writings. His entire “Hardly a Revolution” article, which Fasel references, is built upon the Hohfeldian taxonomy. Even his book Rattling the Cage, aimed at a general audience, contains 8 pages devoted to the Hohfeldian analysis.25 In a law review article criticising a court judgment, Wise argues that the court failed to appreciate the distinction between Hohfeldian immunities and claims.26 Contrariwise, my arguments against Wise, employing the same analysis, amount to “getting lost” in the Hohfeldian analysis, according to Fasel.27

57To conclude: there may very well be room for disagreement about the correct interpretation of Wise. However, I find it hard to accept that my interpretation of him as discussing legal rights in general – rather than fundamental rights merely – would be “uncharitable”.

5.2 Fasel’s account

  • 28 “Kurki’s argument leaves open the central question as to what exactly the function of legal personh (...)

58Fasel then compares my “monist” understanding of legal personhood to his “pluralist” understanding. His view is that “legal personhood might better be viewed as a family resemblance concept in the Wittgensteinian sense, consisting of partly overlapping but also partly diverging features, with no feature(s) that make legal personhood an interconnected whole”, and he denies that there would be “any essential features that connect all instances of legal personhood” (Fasel 2021: para 29). As noted above, I wonder how different our views really are. For instance, Fasel seems to read me as thinking that legal personhood only serves a single function.28 However, I am open to legal personhood serving many different functions; the functions of the institution of corporations are likely different from the functions of treating animals as legal persons. Regardless, the incidents of legal personhood with which an entity is endowed do interact with each other in various ways. This is of course not to say that they all interact in all situations. Different incidents, or sets of incidents, are relevant in different contexts. If they do not interact at all, however, it is an indication that two or more legal platforms attach to a single individual or group.

59Fasel’s claim that the various elements of legal personhood would not be interconnected is, I take it, one of the reasons why he labels my view as “monist”, as opposed to his “pluralist” approach. Let me first note that I do not find this label of my theory very intuitive. My Bundle Theory understands legal personhood as consisting of various elements that do not always come together, a position which – to my mind – is not aptly conveyed by the label “monist”. I do not point this out merely to quibble, but rather to resist Fasel’s portrayal of my view. He may be making too much of my occasional discussions of whether some entity is a legal person tout court. For instance, a legal system could very well introduce a new category of legal persons, such as “animal persons”, endowed with a more limited set of incidents of legal personhood than human beings and corporations have. These could include, for instance, fundamental protections and standing. As long as the legal consequences of being classified as an animal person were clear, I would have little objection to the arrangement being labelled as legal personhood. Thus, legal personhood can be realized in various ways, which is why I do not think describing my account as “monist” is appropriate.

5.2.1 Simplicity

  • 29 Here I use the term “rights and duties” in a loose, unspecified sense, as I think is often complete (...)

60I also wonder how much simpler Fasel’s account truly is. One can present their account at different levels of specificity. Though my theory has various complexities, it can also be described in a summary form. For instance, when talking about my theory to students or laypeople, I often introduce it by saying something like “Legal personhood is not about whether you hold rights and duties, but rather what rights and duties you hold”.29 I then go on to specify the theory, focusing on the parts I deem most important or relevant for the audience.

61Fasel’s account would likely become more complex were he to flesh it out. For instance, he thinks that public-law personhood is different from private-law personhood: public-law legal personhood could be explained in terms of the holding of fundamental rights, whereas the Orthodox View would be an account of legal personhood in private law. This is already an indication of complexity. Let me note some further things that need to be fleshed out.

62According to Fasel, the Fundamental Rights View can explain legal personhood in public law. This of course depends on what exactly we mean by fundamental rights. Fasel writes that fundamental rights are “rights that consist of a complex set of legal protections [...], protect the basic interests of their holders in a way that cannot easily be infringed by countervailing interests, and provide their holders or representatives with standing to enforce them in court” (Fasel 2021: para 20). He also says that “fundamental legal rights are like human rights, with the simple difference that they are also open to nonhuman animals” (Fasel 2021: para 20). Now, if fundamental rights must be “human rights” in the sense that they are enshrined in bills of rights or international human rights documents, then corporations would seem to fall out in those jurisdictions that do not view corporations as holders of fundamental (constitutional) rights, such as in many European countries, even though corporations do clearly seem to be public-law persons. If, on the other hand, fundamental rights need not be constitutionally enshrined, then what Fasel means by “fundamental rights” runs counter to much contemporary juristic usage, and does not manage to explain the distinction between those jurisdictions whose bills of rights cover corporations and those that do not extend fundamental rights to protections. (In fact, I find the type of linguistic usage that ascribes fundamental rights to corporations problematic on ethical-political grounds: corporations are not of ultimate value, and should not be thought of as having fundamental rights.) At any rate, under Fasel’s approach, being a legal person in many areas of public law (e.g., administrative law and fundamental rights law) should likely be distinguished, which would then require further complexity.

63Furthermore, one example of what seems to be left out of Fasel’s account is legal personhood in criminal law. Is this simply a subset of public-law personhood, or is it rather a distinct type of legal personhood? For instance, some relatively narrow interests of animals – such as the interest not to be burned alive – are already protected and often not subject to being easily infringed by countervailing interests. Does it constitute “standing” for the animals if the public prosecutor can prosecute anyone who burns animals alive? If not, why not? Answering these questions will likely amount to a more complex account. I also find it hard to believe that such an account would be able to sustain the notion that these “legal personhoods” would not be interconnected.

64Fasel also mentions a Swiss case where the court concluded that the private-law position of nonhuman animals as nonpersons does not entail that they could not hold public-law fundamental rights. I do not see why my theory would have difficulties accounting for this conclusion. However, I might here prefer to use the term “subject of fundamental rights”. Let me address this terminological issue – as well as some other ones – next.

5.2.2 Labels and terminologies

  • 30 To an extent, the notion of a legal platform also captures this idea of a persona, insofar as one c (...)

65Much of my book is about trying to resolve ambiguities surrounding the notion of legal personhood. For instance, “legal person” is sometimes used to refer to an entity with a specific status, and sometimes to the status itself. In the book, I try to keep these senses distinct by introducing the phrase “legal platform” to account for the latter sense. Another ambiguity has to do with the fact that the phrase “legal person” is often used to describe one’s legal status in a relatively comprehensive sense, but also sometimes in a meaning somewhat closer to the original Roman meaning of persona, whereby one can have several personae, or different “roles”. Fasel seems to prioritize this latter sense: one simply has different legal personhoods in different contexts which are not necessarily connected in any way. In my account, I have tried to include both senses: “legal person” refers to one’s overall position, whereas being a “subject” is more contextual and needs specification.30 Thus, when one says that natural persons and corporations are legal persons, one is referring to their overall legal status. On the other hand, one could say that even though nonhuman animals are not legal persons, they are regardless subjects of animal welfare law. Fasel suggests that this simply adds complexity and is not based on ordinary linguistic usage: my proposal runs counter to civilian jurists’ established practice of using “subject” and “person” interchangeably in this context.

  • 31 Hannum 2016: 436. See also Tasioulas 2015.
  • 32 Hannum 2016: 436, emphasis added.
  • 33 Oros 2004: abstract.
  • 34 ”Vainaja ei ole Suomen perusoikeusjärjestelmässä perusoikeuksien subjekti.” PeVL 71/2002 vp.
  • 35 The idea of distinguishing “subject” from “person” comes from Tomasz Pietrzykowski.
  • 36 A Google Scholar search using the phrase “legal personhoods” yields 27 results. Most of them seem t (...)

66Now, of course the distinction between “person” and “subject” is an explicative distinction aimed at increasing clarity, but my suggestions do have a counterpart in existing usage. For instance, the phrases “subject of human rights” and “subject of fundamental rights” are used to distinguish beings protected by such rights – often in order to contrast them with artificial persons.31 Hurts Hannum describes humans as the “the subjects of human rights”.32 Similarly, a Slovakian article the English abstract of which is entitled “Legal Persons as Subjects of Fundamental Rights and Freedoms”, discusses “which fundamental rights and freedoms are enjoyed by legal [i.e. artificial] persons too”.33 In Finland, the Constitutional Committee has decreed that dead people are not “subjects of fundamental rights”.34 These examples have to do with fundamental and human rights, but this way of using the term “subject” is not limited to such rights. For instance, Hanns Prütting defines the German legal notion of Parteifähigkeit as “the capacity to be the subject of a legal proceeding (as a plaintiff or defendant)” (Prütting 2019: 1). My account builds upon this relatively established way of using the term “subject”.35 On the other hand, tu quoque: Fasel’s own suggestion – that we have numerous “legal personhoods”, pertaining to our positions in different areas of law – does not seem to correspond to established usage that well either.36

6 Conclusion

67Writing this reply has involved thinking deeply about some of the presuppositions of my theory and my book. My interlocutors have a certainly taught me a lot. I wish to thank all the contributors, and I look forward to further fruitful discussions.

—Acknowledgments.— I would like to thank Matija Žgur for organizing this symposium; Raffael Fasel, Maija Aalto-Heinilä, Juha Karhu and Paweł Banaś for their comments on an early version of this reply; and Michael Baumtrog for copyediting.

Top of page

Bibliography

Aalto-Heinilä, M., & Karhu, J. (2021). 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 – Journal for Constitutional Theory and Philosophy of Law, 44. DOI: https://doi.org/10.4000/revus.7004.

Banaś, P. (2021). Why cannot anything be a legal person? A critique of Kurki’s Theory of Legal Personhood. Revus – Journal for Constitutional Theory and Philosophy of Law, 44. DOI: https://doi.org/10.4000/revus.7335.

Cochrane, A. (2012). Animal Rights without Liberation: Applied Ethics and Human Obligations. Columbia University Press.

Fasel, R.N. (2021). Shaving Ockham. A Review of Visa A.J. Kurki’s ‘A Theory of Legal Personhood’. Revus – Journal for Constitutional Theory and Philosophy of Law, 44. DOI: https://doi.org/10.4000/revus.6921.

Hannum, H. (2016). Reinvigorating human rights for the twenty-first century. Human Rights Law Review, 16(3), 409–451.

Kelsen, H. (2006). General Theory of Law and State. Transaction Publishers.

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

Kurki, V.A.J. (2021a). Are Legal Positivism and the Interest Theory of Rights Compatible? In M. McBride & V.A.J. Kurki (Eds.), Without Trimmings: The Legal, Moral, and Political Philosophy of Matthew Kramer. Oxford University Press.

Kurki, V.A.J. (2021b). Can Nature Hold Rights? It’s not as Easy as You Think. SSRN. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3853708.

McCausland, C. (2014). The Five Freedoms of Animal Welfare are Rights. Journal of Agricultural and Environmental Ethics, 27, 649-662.

Naffine, N. (2021). Hidden presuppositions and the problem of paradigm persons. Visa AJ Kurki’s ‘A Theory of Legal Personhood’. Revus – Journal for Constitutional Theory and Philosophy of Law, 44. DOI: https://doi.org/10.4000/revus.6953.

Orosz, L. (2004). Právnické osoby ako subjekty základných práv a slobôd. Pravny Obzor 416, 87(5), 416–436.

Pauer-Studer, H. (2020). Justifying Injustice: Legal Theory in Nazi Germany. Cambridge University Press.

Prütting, H. (2019). Deutsches und europäisches Konzerninsolvenzrecht – ein Leitfaden für die Praxis. In C. Heinrich (Ed.), Krisen im Aufschwung. Neues zur Restrukturierung, Sanierung und Insolvenz von Unternehmen (pp. 1–22). Nomos.

Ross, A. (2019). On Law and Justice (J. v. H. Holtermann & tr U. Binreiter (eds.)). Oxford University Press. DOI: https://doi.org/10.5840/philstudies1960101017.

Siltala, R. (2021). Earth, Wind, and Fire, and other dilemmas in A Theory of Legal Personhood – a vindication of legal conventionalism. Revus – Journal for Constitutional Theory and Philosophy of Law, 44, DOI: https://doi.org/10.4000/revus.6974.

Stancioli, B. (2021). A bundle of rights and Pachamama: Visa Kurki’s theory of legal personhood. Revus – Journal for Constitutional Theory and Philosophy of Law, 44. DOI: https://doi.org/10.4000/revus.6893.

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

Tasioulas, J. (2015). Human Dignity and the Foundations of Human Rights. SSRN Electronic Journal, 81–87.

Wise, S. M. (1996). The Legal Thinghood of Nonhuman Animals. Boston College Environmental Affairs Law Review, 3, 471-546.

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

Wise, S.M. (2000). Rattling the Cage: Toward Legal Rights for Animals. Perseus Books.

Wise, S. M. (2010). Legal Personhood and the Nonhuman Rights Project. Animal Law, 17(1), 1-11.

Wise, S. M. (2013). Nonhuman Rights to Personhood. Pace Environmental Law Review, 30(3), 1278–1290.

Wise, S. M. (2017). A New York appellate court takes a first swing at chimpanzee personhood – and misses. Denver Law Review, 95(1), 265–287.

Wise, S. M. (2019). The Struggle for the Legal Rights of Nonhuman Animals Begins - the Experience of the Nonhuman Rights Project in New York and Connecticut. Animal Law, 25(3), 367–394.

Top of page

Notes

1 This will hopefully explain, at least partly, why I fail to reference some authors who explored ideas similar to mine before me. For instance, in the animal context, I am very unhappy that I wasn’t aware of Alasdair Cochrane’s or Clare McCausland’s work while writing the dissertation and the subsequent book. I only became aware of their excellent analyses quite recently. See Cochrane 2012 and McCausland 2014.

2 Maija Aalto-Heinilä and Juha Karhu, on the other hand, seem to have no qualms about describing the reflective equilibrium as a method in their comment.

3 One could thereby argue that they are instances of different “subtypes” of the institution of money.

4 I should add that I do think group agents can be legal persons despite not being sentient. Insentient artificial intelligences also present complexities not addressed here.

5 Banaś suggests that I occasionally conflate “legal person” as a reference to an entity and an attribute. “Legal person” references an entity. However, what I mean by the expression “one’s being a legal person” is legal personhood as an attribute, i.e., “one’s legal personhood”. Of course, the former expression does not distinguish between references and descriptions; one could equally well talk of “one’s being John Lennon”, as Banaś noted in private correspondence.

6 Kurki 2021a and Kurki 2021b.

7 Except those moral criteria contingently imposed by the legal system itself.

8 Kelsen 2006: 97

9 Kelsen 2006: 97.

10 The most relevant incidents seem to be fundamental protections, the capacity to suffer legal harms, and legal standing.

11 In one passage, he characterizes my position as follows: “However, again according to Kurki, we can treat it as a legal platform with the ownership of rights, configuring Pachamama as the holder of a ‘cluster of rights’ […].” (Stancioli 2021: para 27). I do not exactly agree with this characterization. I would rather say that there is a legal platform (a bundle of rights and duties) entitled “Pachamama”. What is unclear is to whom or what the platform attaches.

12 Kurki 2021b.

13 Stancioli (2021: para 28) notes this as well: “By recognizing Nature as a legal entity, these constitutions are also respecting and legally recognizing the cultural heritage of the local indigenous people.”

14 The Radbruchian formula clearly excludes the possibility of considering slavery as valid law.

15 A good place to start would likely be Pauer-Studer 2020.

16 In his 2014 LLM lectures at the University of Cambridge, Kramer also suggested that an artificial intelligence could be a right-holder even if it were not sentient, if it was an être-pour-soi. Here he invokes the Sartrean distinction between être-pour-soi (being-for-itself) and être-en-soi (being-in-itself).

17 Saskia Stucki’s distinction between simple and fundamental rights is useful here as well. See Stucki 2020.

18 Clare McCausland’s (2014) excellent analysis would have been very useful in this specific part of the book.

19 Wise seems to employ a soft will-theory understanding of claim-rights here: though animals are protected by anti-cruelty statutes, they do not hold rights because they do not have access to civil causes of action.

20 Wise 2010: 4.

21 See https://www.youtube.com/watch?v=MVryN9XkgUM (from approximately 34:30). Interestingly, Wise then goes on to claim that the fact that animals can be the beneficiaries of trusts in some US states amounts to their being legal persons. This court hearing has been brought to my attention by Joe Wills.

22 Wise also cites Roscoe Pound, an adherent of the Orthodox View.

23 Wise 2019: 368–369.

24 See also Wise 2000: 54–55.

25 Wise 2000: 53–61.

26 Wise 2017: 270–271.

27 Fasel’s claim that I “get[] lost” in the Hohfeldian analysis might of course have some truth to it. However, as already noted with regard to Wise, most of my discussions of Hohfeld are replies to authors who themselves employ the same Hohfeld. The perhaps most abstract and Hohfeld-heavy part of the book – focusing on what kind of entities can hold Hohfeldian positions – is also, in a way, a reply to Wise, though I address it very thoroughly because few scholars have done so before me. That part even comes with a disclaimer – aimed at Fasel and others who dislike Hohfeld – that they may freely skip the part!

28 “Kurki’s argument leaves open the central question as to what exactly the function of legal personhood is, and therefore what connects the different incidents” (Fasel 2021: para 30).

29 Here I use the term “rights and duties” in a loose, unspecified sense, as I think is often completely appropriate. “Legal positions” would of course be more precise.

30 To an extent, the notion of a legal platform also captures this idea of a persona, insofar as one can have two legal “masks” if one has control of two platforms.

31 Hannum 2016: 436. See also Tasioulas 2015.

32 Hannum 2016: 436, emphasis added.

33 Oros 2004: abstract.

34 ”Vainaja ei ole Suomen perusoikeusjärjestelmässä perusoikeuksien subjekti.” PeVL 71/2002 vp.

35 The idea of distinguishing “subject” from “person” comes from Tomasz Pietrzykowski.

36 A Google Scholar search using the phrase “legal personhoods” yields 27 results. Most of them seem to use the phrase either in the sense “different conceptions of (legal) personhood” or when referring to multiple entities.

Top of page

References

Electronic reference

Visa AJ Kurki, On legal personhood: rejoinders, reflections and restatementsRevus [Online], 44 | 2021, Online since 15 July 2021, connection on 17 September 2021. URL: http://journals.openedition.org/revus/7425; DOI: https://doi.org/10.4000/revus.7425

Top of page

About the author

Visa AJ Kurki

Academy of Finland Postdoctoral Fellow, Faculty of Law, University of Helsinki

E-mail: visa.kurki@helsinki.fi

Top of page

Copyright

All rights reserved

Top of page
  • OpenEdition Journals
Search OpenEdition Search

You will be redirected to OpenEdition Search