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Structuring concepts of legal personhood

On legal personhood as a cluster property
Johan Hermansson

Abstract

Legal persons have traditionally been understood as entities with legal rights and/or duties. This traditional concept of legal personhood has been challenged during the last decades: In legal practice through the global development in law where previous legal non-persons such as different non-human natural entities, non-human animals, fetuses and artificial intelligences have been ascribed, or been proposed to be ascribed, legal rights and/or status as legal persons; in legal theory through, inter alia, Visa Kurki’s Bundle Theory of Legal Personhood. The purpose of this paper is to critically assess the concept of legal personhood proposed in the Bundle Theory. After discussing the definitional structured traditional concepts of legal personhood and Kurki’s argument against them, I will focus on the first main tenet of the Bundle Theory: That legal personhood is a prototype structured cluster property which consists of incidents which are separate but interconnected. I will argue that such a concept is untenable since the legal personhood of legal persons in positive law is not structured in this way. Lastly, I will suggest the use of a dual structured concept of legal personhood that maintains the benefits of previous concepts but avoids their major deficiencies.

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1 Introduction

  • 1 With the term legal personhood, I refer to a certain set of legal positions and with legal person t (...)
  • 2 This is further developed in section 3.1 below.

1Legal persons and legal personhood1 have received renewed attention within legal science during the first decades of the new millennia. Legal persons have traditionally been understood simply as entities with, or sometimes consisting of, legal rights and/or duties.2 These traditional concepts have been challenged during the last decades through the global development in positive law extending legal personhood to new kinds of entities: to previous legal non-persons who are now ascribed legal rights and/or status as legal persons.

  • 3 An overview of legal initiatives can for example be found in the Eco Jurisprudence Monitor. This da (...)
  • 4 For a recent overview from a political science perspective, see Tanasescu 2022.
  • 5 Constitución de la República del Ecuador 2008, in particular articles 71 to 74.
  • 6 Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 section 14(1). It should be noted that, a (...)
  • 7 The very first example being the judgment from the High Court of Uttarakhand declaring rivers Ganga (...)
  • 8 Constitutional Court of Colombia, judgment T-622/16.
  • 9 Attempts to grant non-human animals status as legal persons through litigation are for example bein (...)
  • 10 Final Judgment No. 253-20-JH/22 from the Constitutional Court of Ecuador. The Argentinian cases, re (...)
  • 11 Case no. J 0009/20 (2021-12-21) Legal Board of Appeal of the European Patent Office. The applicatio (...)

2The most frequent of these new kinds of entities in positive legal provisions so far are the different examples of non-human nature ascribed legal personhood in different legal orders across the world.3 Although these provisions sometimes differ considerable from one another they are often labeled under the catch-all phrase rights of nature.4 Some of the more studied examples are the rights of nature under the 2008 constitution of Ecuador5 and the granting of status as legal persons or legal subjects to rivers in New Zealand6, India7 and Colombia.8 Less successful, at least in practice, are the attempts to ascribe legal rights or status as legal person to non-human animals.9 Monkeys and apes have, however, been recognized as legal persons, or at least legal subjects (sujetos de derecho), in judgments from both Argentinian and Ecuadorian courts.10 The possible legal personhood of artificial intelligence has also caused recent legal disputes, for example regarding the patent applications tried before the Legal Board of Appeal of the European Patent Office naming the AI DABUS as inventor.11

  • 12 For example, a search on “rights of nature” in the LUBsearch research database of Lund university l (...)

3The legal doctrine treating, as well as anticipating, the development sketched in the previous paragraph is already vast.12 What unites most legal scholars writing on the subject, including legal philosophers, is, however, their adherence to the traditional concepts of legal personhood, according to which legal persons are entities with legal rights and/or duties. This equation of legal personhood with a general holding of rights and/or duties in legal theory have largely remained unquestioned throughout the decades.

  • 13 Kurki 2019.
  • 14 Kurki 2019: 93–94.
  • 15 See for example Afrouzi 2020:1354–1358. Pratama and Rizkiyah 2022: 157–166.
  • 16 Google Scholar lists 204 texts in which the book is quoted as of September 22, 2023.
  • 17 Many scholars tend to refer to the theory for alternative views or for an overview of the literatur (...)
  • 18 Stancioli 2021, Fasel 2021, Naffine 2021, Siltala 2021, Aalto-Heinilä & Karhu 2021, Banaś 2021, Kur (...)

4Finnish legal philosopher Visa Kurki has recently challenged the traditional legal personhood concepts in his book, A Theory of Legal Personhood.13 In the book Kurki introduces his own theory, the Bundle Theory of Legal Personhood (the Bundle Theory), according to which no singular legal positions constitute necessary or sufficient parts of legal personhood and no exact border between legal personhood and non-legal personhood exists.14 Since its release in 2019 the book has been recognized as an important contribution to legal theory by reviewers,15 and is frequently quoted in new works on the subject.16 However, many works referring to the Bundle Theory so far do so briefly, and/or without fully adopting its original concept of legal personhood.17 Critique of the Bundle Theory has also so far been scarce, with the notable exception of a series of articles on the theory published as a part of a symposium in the 44th issue of the international philosophy of law journal Revus.18

  • 19 Kurki 2021b: 185 (online § 43).

5I find the Bundle Theory to be an interesting contribution to the development of legal theory in general and theory on legal personhood in particular. I will show, however, that the definition of legal personhood as a cluster property in the first main tenet of the theory, which Kurki himself have described as the most original part of the theory,19 is untenable. I will both present relevant counterarguments to the concept of legal personhood proposed in the Bundle Theory and sketch a tenable alternative.

6The paper is structured as follows: I will first elaborate on how I understand concepts as Fregean senses with different possible structures, before addressing the traditional concepts of legal personhood and Kurki’s argument for refuting them: the extension, or discrepancy, problem. In short, the extension problem relates to the fact that entities that are not considered legal persons in legal doctrine and positive law still holds certain legal positions. This creates a discrepancy between the extension of the legal personhood concepts of traditional theory (all entities with legal positions are legal persons) and the extension of the legal personhood concepts in positive law (some entities with legal positions are not legal persons). I conclude the section by arguing that this argument for a revised legal personhood concept is tenable but to a large extent dependent on marginal examples. In the next section I will focus on the legal personhood concept of the Bundle Theory and its first tenet, the claim that legal personhood is a prototype structured cluster property. I will argue that this is not a tenable theoretical concept of legal personhood since the legal personhood concepts of positive law necessarily includes certain legal positions, which cannot be the case if legal personhood would be a cluster property. In the last section, I suggest an alternative structure for a tenable concept of legal personhood. This concept of legal personhood combines the certainty of the definitional structured concepts of traditional theory with the flexibility and richness of the prototype structured concept of the Bundle Theory into a dual structured concept that more accurately captures the legal personhood concepts of positive law.

2 Three ways of structuring (legal) concepts

  • 20 Frege 1948: 27.
  • 21 Margolis and Laurence 1999: 5–7; compare Zalta 2023.

7In order to clarify my critique of the concepts of legal personhood that are the topic of this paper some points regarding conceptual theory should firstly be made. Since Frege’s distinction between sign, sense, and referent,20 it has become common to separate the term, concept, and referent of a word in analytical philosophy. According to this understanding, that I will adopt, a word (term) expresses a certain meaning in a certain context (concept) which refers to a certain object (referent).21

  • 22 Compare ‘Extension/Intension’ in Blackburn 2016. I do not, however, use referent and extension as s (...)

8I will also distinguish between the extension and intension of a concept. By the extension of a concept, I refer to the group or class of entities described by the concept, and with the intension of a concept I refer to the conditions an entity must satisfy to fall within this class of entities.22

  • 23 Margolis and Laurence 1999: 8–10.
  • 24 Margolis and Laurence 1999: 27.
  • 25 Compare Margolis and Laurence 1999: 42–43.

9I will finally assume that the intension of concepts can be structured in different ways. There are many theories on the structure of concepts, but for my present argument it is sufficient to mention three of these. According to the classical theory of concepts, the intension of concepts has a definitional structure: they encode necessary and sufficient conditions for their application.23 According to its main rival, the prototype theory of concepts, the intension of concepts has a prototype structure: their application is dependent on the holding of a sufficient number of statistically prominent (typical) components, where some may be more significant than others.24 Finally, according to what might be called a dual theory of concepts, concepts have a definitional structured core of necessary and sufficient conditions and an additional prototype structured bundle of statistically prominent components that alone are neither necessary nor sufficient.25

  • 26 I think that one, in accordance with Frändberg, carefully should distinguish between legal concepts (...)

10In the following, it will be evident that the legal personhood concepts of traditional theory have a definitional structure since they set up necessary and sufficient conditions for their application: the holding of rights and/or duties, or capacity for this. Kurki’s argument against the concepts of traditional theory, as I would rephrase it, is that the extension of these theoretical concepts differs from the extension of its referent, the actual concepts of legal personhood in positive law.26 Kurki’s alternative concept of legal personhood avoids this problem by proposing a prototype structured concept, where the holding of no single legal positions alone constitute necessary or sufficient conditions. This, however, causes other problems and more importantly does not seem to align to how legal personhood actually is structured in positive law. Instead, it seems likely that there exist necessary and together sufficient conditions for legal personhood in positive law, which, however, are different than the ones assumed in traditional legal theory, in addition to legal positions that are commonly but not necessarily held by legal persons. In the last section I present an alternative dual structured legal personhood concept that utilizes these observations and whose extension better aligns to the extension of the legal personhood concepts of positive law.

11

3 The traditional concepts of legal personhood

3.1 The orthodox view of the traditional concepts

  • 27 Kurki 2019: 29.
  • 28 See for example Kurki 2019: vii.

12Legal persons are commonly understood as entities with legal rights and/or duties, as already mentioned in the introduction. Kurki dedicates the first third of his book to this group of traditional concepts of legal personhood, their history, and their deficiencies.27 He calls them the orthodox view of legal personhood,28 a term I will also use in this section to refer to the concepts of legal personhood in traditional theory.

  • 29 Kurki 2019: 55.

13After explaining how understanding legal personhood as the holding of rights and/or the bearing of duties became the dominant view in western legal theory Kurki distinguish five regularly occurring formulations of the orthodox view:29

  • The definition of a legal person as an entity that holds at least one right or bear at least one duty is called the Rights-or-Duties position.

  • The definition of a legal person as an entity that holds at least one right and bears at least one duty is called the Rights-and-Duties position.

  • The definition of a legal person as an entity with the legal capacity to hold rights and bear duties is called the Capacity-for-Rights position.

  • The definition of a legal person as an entity with the capacity to be a party to legal relations is called the Capacity-for-Legal-Relations view.

    • 30 Kurki 2019: 55–56. It should be noted that the Capacity-for-Rights position, despite its name, incl (...)

    Lastly, a fifth definition is mentioned but not named, the definition of legal persons as simply a bundle of rights and duties.30

  • 31 This is at least common in Swedish legal theory and in provision defining the legal personhood of a (...)
  • 32 The most well-known proponent of the latter position is probably Kelsen. Kelsen 2009: 173–174. Kurk (...)

14Many existing definitions of legal persons, and hence different concepts of legal personhood, fit quite neatly into this systematization of the orthodox view. Some definitions of legal persons, however, also explicitly mention legal persons’ capacity for standing, in addition to rights and duties.31 It should also be noted that there exists a fundamental metaphysical division in legal personhood theory which Kurki does not address in this systematization: Some scholars understands legal persons as entities existing in the physical world holding legal positions and other scholars understands legal persons as purely legal entities consisting of legal positions and not existing (independently) in the physical world.32 The common denominator for both positions is, however, the equation of legal personhood with rights and duties, independent of which rights or duties that a legal person is holding, or consisting in. Because of the definitional structure (necessary and sufficient conditions) given to their respective versions of the concept of legal personhood, the adherents of the orthodox view are thus logically forced to conclude that an entity has legal personhood (and consequently also is a legal person) if this entity is deemed to have a right, a right and a duty, capacity for rights, etc.

3.2 The extension/discrepancy problem

  • 33 Kurki 2021a: 51.
  • 34 Aalto-Heinilä and Karhu 2021: 154 (online §§ 18–20).
  • 35 Kurki 2019: 55 compare 15–19.

15Kurki’s main argument for revising the legal personhood concepts of the orthodox view is what in later articles has been called the extension problem of the orthodox view,33 or the discrepancy argument:34 the orthodox view comes into conflict with commonly held beliefs about the extension of the concept of legal personhood when combined with modern theories of rights.35 This needs elaboration.

16The intension of the concept of legal person according to the orthodox view could be summarized as an entity with rights and/or duties, or the capacity to have rights and/or duties, as described in the previous subsection. In addition to these intensional beliefs Kurki identifies a number of extensional beliefs commonly held by jurists in Western legal systems: Beliefs regarding which entities that are commonly perceived to fall within the class of legal persons. A number of these extensional beliefs are discussed in the book, but the more central beliefs for the extension problem are summarized in two convictions:

  1. Human beings who are born, currently alive and sentient are legal persons.

    • 36 Kurki 2019: 14 compare 8–10 and 55.

    Animals and fetuses are not legal persons, and slaves were not legal persons.36

  • 37 For some examples from Swedish legal theory, see Håstad et al. 2016: 50; Ramberg and Malmström 2016 (...)
  • 38 This is sometimes explicitly stated in statues, sometimes not. Furthermore, the exact criteria for (...)
  • 39 It should be noted, however, that fetuses often are considered to be able to have limited legal rig (...)

17These convictions indeed seem to be generally held by jurists, at least they are regularly mentioned in connection with the orthodox view.37 They also seem to be generally compatible with positive legal norms (with the possible exception of sentience). That is, in Western legal systems humans are generally ascribed the status of legal person from birth to death, independent of their other abilities (and thus also legal personhood),38 while animals and fetuses are not ascribed the status of legal person.39 It is therefore possible to rephrase the argument based on positive legal provisions: The extension of the concepts of legal personhood in traditional legal theory differs from the extension of the concepts of legal personhood in positive law in Western legal systems when combined with modern theories of rights.

3.3 The orthodox view and theories of rights

18As long as humans fulfilling the above-mentioned criteria can have legal rights and duties, and animals and fetuses cannot, there is no discrepancy between the extension of the concepts of the orthodox view and the extension of the concepts in positive law. How legal rights are understood is thus fundamental for Kurki´s argument.

  • 40 See generally Hohfeld 1913: 30 and onwards.
  • 41 See Wenar 2021. For an overview on how Hohfeld’s theses has been developed in legal theory, see Arr (...)
  • 42 For a general overview, see Wenar 2021: section 2. It should be noted that these theories not solel (...)
  • 43 It should be noted that these consists of a great number of similar theories on rights, that, howev (...)
  • 44 This is Kurki’s own summary, see Kurki 2019: 61. A will-interest right could naturally also involve (...)

19The Hohfeldian analytic structure of rights, that someone’s right necessarily correlates to someone else’s duty,40 is widely accepted within legal philosophy.41 The function of rights, what it means for a right holder to have a right, is, however, heavily debated.42 The two main competing theories on how the function of rights should be understood are the interest theory and the will theory.43 Interest theorists generally hold that a duty borne by X constitutes a right for Y if Y’s interests are typically served by the performance of the duty. Will theorists on the other hand generally hold that Y’s holding of a right consists in Y’s control over X’s duty: whether Y can, for instance, choose to demand the enforcement of X’s duty or not.44 So, while interest theorists tend to see rights as legally protected interests, will theorists tend to see rights as legally protected choices. Interest theories, furthermore, tend to be quite extensive and ascribe rights to both children, animals, and fetuses, while will theories tend to be more restrictive and only ascribe rights to adult human beings with sufficient mental abilities.

  • 45 Compare Kurki 2019: 61.

20This brings us back to the core of the extension problem. The extension of the concept of legal personhood is either too wide (animals and fetuses are legal persons since they have interest-based rights), or too narrow (children and adult humans with insufficient mental abilities are not legal persons since they lack will-based rights) in relation to extensional beliefs or positive law when the different concepts of the orthodox view are combined with modern right theories such as the interest or will theory.45

3.4 Assessing the extension problem

21If the different concepts of legal personhood of the orthodox view fail to accurately capture the extension of legal personhood in positive law (or common extensional beliefs) in the way described above this would be a strong argument for abandoning the traditional concepts of legal personhood. To summarize my view, I consider the argument tenable but weak, since it relies on rather marginal examples when some versions of the orthodox view are combined with some versions of the rights theories.

  • 46 Kurki 2019: 71.
  • 47 Hart 1982: 184 footnote 86.
  • 48 A trust is commonly defined as “an equitable estate committed to the care of a fiduciary (trustee) (...)
  • 49 Kurki 2019: 67–68.

22Kurki´s counterexample against a tenable combination of the interest theory and the Rights-and-Duties position is that slaves in the antebellum U.S.A. bore duties while at the same time holding some limited interest-based rights and that infants are considered legal persons, and yet they bear no duties.46 His counterexample against a tenable combination of a soft version of the will theory (according to which rights can be held through representants)47 and the Rights-or-Duties and Rights-and-Duties positions is that this relation resembles a trustee rather than an agent relation, allowing for animals being the beneficiaries of pet trusts48 to be considered legal persons (this is also an argument against the combination of the interest theory and Rights-and-Duties position). Many versions of the will theory would also ascribe rights to slaves in the antebellum U.S.A. since they had the right to appeal criminal convictions.49

23If one accepts that rights and duties can be carried out by representants, which after all is the case for all legal persons but none (or few) legal non-persons in positive law, Kurki’s extension problem is dependent on two relatively marginal examples: U.S. antebellum slaves and U.S. pet trusts. It could be questioned if these examples are relevant for explaining contemporary legal personhood in Western legal orders in general. It thus appears as if the extension problem is not so problematic for some versions of the orthodox view combined with some versions of the rights theories as it appeared prima facie, at least if one is satisfied with a legal personhood concept that captures most but not all instances of what is considered legal personhood in positive law.

24As stressed above, I do not find this argument untenable in itself: it is hard, probably impossible, to explain the extension of the concepts of legal personhood in positive law when understanding the holding of legal rights and/or duties as necessary and sufficient conditions for legal personhood. For practical reasons legal non-persons are sometimes ascribed rights and duties.

  • 50 See Lehrberg 2016: 73–75, compare NJA 1984 s 495 and chapter 2 section 25 in the Swedish companies (...)
  • 51 This follows from a judgment of the Swedish supreme court, see NJA 1979 s 700, and has been confirm (...)
  • 52 This is not only the case in Sweden, for example similar constructions of preliminary companies in (...)
  • 53 Two kinds of special investment funds (värdepappersfonder and specialfonder) are not considered leg (...)

25In Sweden, limited liability corporations (aktiebolag) have been deemed to be able to hold rights and bear duties under certain circumstances before their registration, despite the Swedish Companies Act clearly stating this not being possible.50 In a similar manner limited liability corporations can exercise rights and bear duties under certain circumstances also after being dissolved, despite the main rule stating that the companies lose their capacity for rights and duties as well as standing after being dissolved.51 Thus traditional non-legal persons, not yet registered and dissolved corporations, are able to hold both interest and will based rights as well as duties in accordance with Swedish positive law.52 Another Swedish example of non-legal persons previously holding rights and bearing duties are investment funds not considered legal persons but still having rights and duties under Swedish tax law.53

26The above-mentioned examples do not make the extension argument stronger. On the contrary, it underlines that this argument, at least presently, relies on marginal cases, which by some might be regarded as exceptions or anomalies. It is also clear, however, that non-legal persons sometimes are ascribed both rights and duties. One thus has a good reason to separate the general holding of legal positions from legal personhood, as suggested by Kurki. And the legal personhood concepts of traditional theory consequently work less well for explaining the exact extension of the legal personhood concepts in positive law.

4 Legal personhood as a cluster property

4.2 The legal personhood concept of the Bundle Theory and its incidents

  • 54 Kurki 2019: 5.

27In this section I will examine Kurki’s proposed solution to the extension problem: the alternative legal personhood concept of the Bundle Theory. According to the first main tenet of the theory, which is central for his concept of legal personhood, the legal personhood of X is a cluster property and consists of incidents which are separate but interconnected.54 Somewhat simplified, legal personhood is understood not as a general holding of legal positions but as a bundle of legal position that varies from person to person and from one legal context to another. But to fully grasp his legal personhood concept it is necessary to understand what Kurki means with both cluster property and incidents.

  • 55 Kurki mentions Ngaire Naffine, Richard Tur and Jens David Ohlin as examples of this, Kurki 2019: 93 (...)
  • 56 Kurki 2019: 93.

28I will start with cluster property. Kurki is not the first to define legal personhood as a bundle of legal positions. The previous understandings of legal personhood as a bundle have, however, rested on the definitional structured concepts of legal personhood of traditional theory according to which the holding of rights and/or duties are necessary and sufficient criteria for legal personhood.55 In the Bundle Theory on the other hand, the claim is made that legal personhood is a bundle in the form of a cluster property in accordance with what Kurki calls the standard sense of the concept: “a property whose extension is determined based on a weighted list of criteria, none of which alone is necessary or sufficient.”56

29In other words (that Kurki does not employ himself), the legal personhood concept of the Bundle Theory is given a prototype structure: its application is dependent on the holding of a sufficient number of typical components (incidents of legal personhood) of which some may be more significant than others, but none alone is necessary or sufficient. This definition of legal personhood as a cluster property is, as mentioned in the introduction, the truly novel invention of the Bundle Theory. It also has two major implications: (1) that none of the incidents of legal personhood identified by the theory alone are necessary or sufficient for an entity to have legal personhood and (2) that no exact border exist between legal personhood and non-legal personhood.

  • 57 The term incident is borrowed from Anthony Honoré’s division of ideal liberal ownership into eleven (...)

30To assess whether the claim that legal personhood is a cluster property is tenable one next has to examine the incidents57 of legal personhood identified in the theory. As I understand the term in the context of the Bundle Theory, it denotes a particular group of legal positions, rights and/or duties, that can be held by legal persons or legal non-persons ascribed limited legal personhood. It is not necessary for my argument to describe all of the different incidents in detail, but it should be relatively apparent from their names and groupings approximately what kind of legal positions they involve. See Table 1 for an overview of the incidents of legal personhood according to the Bundle Theory. I will address three of the incidents in detail shortly.

  • 58 Compare Kurki 2019: 95–96.
  • 59 Both formulations are used in the book.

Table 1: The incidents of legal personhood according to the Bundle Theory58

Passive incidents

Substantive incidents

Remedy incidents

- Fundamental protections: protection of life, liberty, and bodily integrity

- Standing

- Capacity to be the beneficiary of or party to special rights59

- Victim status in criminal law

- Capacity to own property

- Capacity to undergo legal harms

- Insusceptibility to being owned

Active incidents

Substantive incidents

Remedy incidents

- Legal competences

- Onerous legal personhood (legal responsibility)

31Since legal personhood is defined as a cluster property, none of the incidents of legal personhood identified by the Bundle Theory can alone be necessary or sufficient for legal personhood. This implies (1) that holding a single one of these incidents is not sufficient for having legal personhood, which seems plausible. And (2) that there are, or at least could be, legal persons without each one of these different incidents since none of them are necessary parts of legal personhood. This second implication I find questionable. While some of these incidents are currently held by some legal persons in positive law but not by other legal persons, this does not seem to be the case for others of the incidents. I will now examine three of these, potentially necessary incidents of legal personhood, to assess whether the concept of legal personhood of the Bundle Theory is a tenable description of legal personhood in positive law.

4.2 Standing as a non-necessary and non-sufficient incident of legal personhood

  • 60 Kurki, 2019: 95.

32I will start with the passive remedy incident of standing as an example. Being a passive incident, this incident can be held by both passive and active legal persons: both by persons exercising their legal personhood through a representative (such as infants and small children) and persons exercising it themselves (adults of sound mind and to a varying extent older children).60

33The standing incident of legal personhood involves several different aspects of an entity’s capacity to be part of legal proceedings and enforce its rights through legal proceedings. Kurki makes a distinction both between the invested aspect of standing and the competence-related aspect of standing, and between abstract standing and standing in casu. This needs some clarification.

  • 61 Kurki 2019: 108.

34The invested aspect of standing concerns whether an entitlement of an entity X is recognized by the legal system as enforceable in court. If not recognized, the claims of X are either (1) unenforceable in courts or (2) enforced only when they happen to coincide with someone else’s enforceable rights. The competence-related aspect of standing concerns X’s legal competence to pursue the case in court, to initiate legal proceedings by itself.61

  • 62 See section 41 and 42 of the Swedish Administrative Procedure Act (2017:900).

35For example, in Swedish administrative law a decision by a public authority, as the main rule, can be appealed if it affects someone’s situation in a not insignificant way. The decision can furthermore be appealed by those that the decision concerns, if the decision is to their disadvantage.62 The extension of the concepts of “someone’s” and “those that the decision concerns” thus delimit the number of entities that holds an invested aspect of standing in the decision. Other entities could of course be both affected and concerned by the decision, but their entitlements are not independently recognized by the legal system. In addition, not all of those with an invested aspect of standing have a competence-related aspect of standing, an adult human can normally initiate the appellation procedure herself, thus having the competence-related aspect of standing, while an infant normally would have to do this through a representative, thus lacking the competence-related aspect of standing.

  • 63 Kurki 2019: 109.

36Abstract standing on the other hand concerns whether an entity X has any kind of standing (invested or competence-related) at all in a legal system, whether an entity has the possibility to be a party to legal proceedings at all, while standing in casu refers to X’ standing in a particular case.63

  • 64 Kurki 2019: 110. This was, according to Kurki, motivated by the fact that not all features of stand (...)

37Although other aspects of standing are mentioned, no exhaustive account of the different legal positions included in the standing incident of legal personhood is given.64 It is quite clear, however, that the aim has been to include most of the different legal positions that can be held by an entity in legal proceedings when recognized as a legal person in the particular legal system.

  • 65 Kurki 2019: 107.
  • 66 See especially the decision from the ombudsman of the Swedish parliament (JO). regarding the Skandi (...)

38It seems plausible that this incident alone is not sufficient for legal personhood: Entities considered legal non-persons in positive law are occasionally recognized with different aspects of standing. Kurki himself mentions the occasional considering of the merits of cases with animal plaintiffs in the U.S.65 While I am personally unaware of cases where non-legal persons in Swedish positive law have been recognized as a party in legal proceedings, claims of non-legal persons are occasionally upheld or enforced with reference to their specific interests, giving them something resembling what the Bundle Theory describes as the invested aspect of standing. One recent example of this is the different decisions regarding the now deceased accused murderer of former Swedish prime minister Olof Palme, the so-called Skandia-man.66

  • 67 It could of course be argued that standing is a commonly reoccurring but not conceptually necessary (...)

39There are apparently occasional cases of legal non-persons with standing, but it is hard to find examples of legal persons entirely without standing in positive law. Kurki himself gives no examples of this when discussing the incident of standing. Furthermore, the examples of legal persons in accordance with the extensional beliefs he builds his theory on, human beings who are born, currently alive and sentient and artificial persons such as corporations, are all acknowledged some, although not all, of the aspects of standing. Indeed, according to positive law as far as I know and according to widely held extensional beliefs, standing seems to be a necessary, if not alone sufficient, condition for legal personhood.67 As mentioned above, there cannot exist any necessary conditions for being a legal person if legal personhood is a cluster property in the way claimed in the Bundle Theory. It thus seems like the legal personhood concept of the Bundle Theory does not capture the legal personhood concepts of positive law very accurately.

4.3 Beneficiary of special rights and ownership of property as non-necessary or non-sufficient incidents of legal personhood

40The same objection as above can be raised in relation to other incidents of legal personhood identified in the Bundle Theory. For example, the incident capacity to be the beneficiary of, or the party to, special rights and the incident capacity to own property.

  • 68 Kurki 2019: 102.
  • 69 Kurki never specificizes which aspects of owning that is sufficient or necessary for an entity to h (...)

41Special rights are described as rights that follow from the exercise of legal competences and that are limited to the parties who partake in a special agreement or transaction, alone or through a representant: claims held against specific entities rather than against the world in general.68 What the capacity to own property concerns is rather evident, one or more of the different aspects of owning property: the rights to possess, use, manage, destroy, transfer property, etc.69

  • 70 Kurki 2019: 121.
  • 71 See footnote 10 above for references. To my knowledge three successful cases exist. The expression (...)

42Similar to the incident of standing, one can find examples of aspects of these incidents being held by entities considered legal non-persons in positive law. As I mentioned when discussing the extension problem of legal personhood, pet trusts in the U.S. can be said to ascribe pets who are beneficiaries of these trusts both some kind of special rights against the trustees as well as some aspects of ownership. In Swedish law, limited liability companies also hold these incidents to a limited extent before and after their registration. Likely other examples could be found, allowing one to conclude that holding these incidents alone are not sufficient for having legal personhood. Again, however, it is hard to find examples of legal persons in positive law not holding some aspects of these incidents. In general, at least in Swedish law, both all natural and all artificial persons have the capacity to hold special rights and to own property. Kurki discusses a potential full legal personhood of animals that does not involve ownership, but instead fundamental protection accompanied by penal law regulations and some aspects of standing.70 Something resembling this have actually already been applied in cases from South America regarding apes and monkeys, but these are still rare cases. You can furthermore question whether these primates should be considered legal persons, they are at least not described as such in the verdicts.71 While new kinds of legal personhood could be constructed in the future, current legal persons seem to have capacity for special rights as well as capacity to own property. To hold the incidents of being the beneficiary of special rights and the capacity to own thus also (currently) seem to be necessary, although not sufficient, conditions for having legal personhood.

4.4 Three possible arguments in defense of a cluster property legal personhood concept

43To summarize my assessment so far, the cluster property legal personhood concept proposed in the Bundle Theory, implicating that no incidents of legal personhood alone are necessary or sufficient, is hard to defend; some of the incidents of legal personhood indeed seems to be necessary since they are held by all legal persons in positive law. It is unclear what kind of legal person in positive law, if any, that satisfies the variable in the first tenet of the theory (that the legal personhood of x is a cluster property and consists of incidents which are separate but interconnected). Before concluding this part of the paper, I will discuss three possible arguments in defense of constructing a cluster property legal personhood concept.

  • 72 Kurki 2019: 121–124.

44One could argue that emphasizing the entities that are deemed as legal persons in accordance with positive law or widely held extensional beliefs is not necessary, and that all entities with some sort of legal position could be considered as a kind of legal person. With such an understanding of legal persons it would be possible to identify legal persons in positive law with legal positions but without any aspects of the incident of standing. This would consequently support the claim that legal personhood should be understood as a cluster property. While it is possible to revise the theory in this way, it is quite clear that this is not Kurki’s intention in the Bundle Theory. He makes a clear distinction between the paradigmatic examples of legal persons or legal personhood “tout court”, entities being endowed with significant (but unspecified) numbers of incidents of legal personhood, and something called legal subjects and legal subjecthood, referring to the status of an entity within a specific field of law or with regard to a specific legal institution. In accordance with this distinction, animals can be seen as subjects of animal welfare law, being legally protected from certain forms of maltreatment through animal welfare acts, without being legal persons in general or legal subjects in other legal fields.72 Even if legal subjecthood might be understood as a cluster property, without necessary or sufficient conditions, support for defining legal personhood as a cluster concept is harder to find in positive law. And more importantly, if legal personhood was defined in this way, it would fall back into the equation in traditional theory of legal personhood with the general holding of rights and/or duties, precisely what Kurki wants to avoid with his alternative concept.

  • 73 Kurki 2019: 121.

45A second possible argument for a cluster property concept of legal personhood could be to argue that while it indeed might be so that all legal persons currently have capacity for specific legal positions, or incidents, this does not have to be the case in the future. No explicit claim in this direction is made, but Kurki mentions it indirectly when giving the above-mentioned example of the potential legal personhood of animals not including capacity for owning property.73 One could firstly object that not much is gained by adopting a theory to potential examples if this forces the theory to obscure how legal personhood currently works. Secondly, one could object that even if future legal personhood might be structured differently, it seems rather implausible that there would exist a legal person entirely without the capacity for any of the legal positions included in the standing incident of legal personhood. This would be a legal person not only lacking the competence to initiate legal proceedings (competence-related aspect of standing) and being the party in a legal proceeding overall (abstract standing), but also completely lacking rights enforceable in courts or just having rights enforced only when they happen to coincide with someone else’s enforceable rights (the invested aspect of standing). It is rather hard to see the purpose of creating a legal person with certain legal positions (such as rights) but not giving this person or any other persons any legal possibilities to uphold them. This is radically different from the legal personhood of existing legal persons.

  • 74 An example of this is the concept of employee in Swedish private law. This concept is not defined i (...)
  • 75 For an overview, see Margolis & Laurence, 1999, pp. 32–43.
  • 76 A similar objection is raised by Mocanu when discussing the application of the Bundle Theory. See M (...)
  • 77 It is of course possible that Kurki´s intention with constructing his legal personhood concept is n (...)

46A third possible argument for defining legal personhood as a cluster property could be that even if all current legal persons hold certain legal position and that future legal persons probably would as well, legal personhood is still theoretically best understood as a cluster property within legal science. But even if this would be supported by the extension of the concept in positive law in the future (some legal concepts are after all partly structured as prototypes)74, such a concept would still be problematic. This is evident if one considers the general deficiencies that necessarily follows when concepts are structured as prototypes.75 Most importantly for the present argument prototype structured concepts cause problems with extension determination and accommodating analytical inferences: one can neither determine exactly which or how many components that are sufficient for determining that an entity falls within the extension of the concept, nor can inferences be drawn from the fact that an entity falls within or without the extension of the concept, or possess some of the common components of the concept.76 Thus, if one defines legal personhood as a prototype structured cluster property one cannot determine which entities that have or does not have legal personhood nor can one conclude that a legal person holds certain legal positions since it is a legal person. These implications cannot be avoided since they follow from how the concept is structured. If necessary or sufficient conditions where provided the concept would have a definitional structure instead. I see few, if any, theoretical advantages of adopting such a descriptive77 concept of legal personhood if not supported in positive law.

5 Structuring concepts of legal personhood

5.1 A dual structured concept of legal personhood

47I have so far concluded that the concepts of legal personhood of traditional theory (the orthodox view) is problematic, since the extension of these concepts differs from the extension of legal personhood concepts in positive law, its referent. The alternative concept proposed by Kurki in the Bundle Theory likewise seems to be empirically untenable, since some of the incidents of legal personhood that should be non-necessary in fact are held by all legal persons in positive law. This does not mean that the concepts of legal personhood assessed so far are entirely mistaken. Legal persons do have rights and duties, even if legal non-persons also do occasionally. And these rights and duties do vary, but not to the extreme extent suggested in the Bundle Theory. I will in this final section suggest how a concept of legal personhood that incorporates the benefits but avoids the deficiencies of these concepts can be structured.

48Instead of constructing a concept with a traditional definitional structure, like the legal personhood concept of traditional theory, or a concept with a prototype structure, like the legal persons concept of the Bundle Theory, I suggest a dual structured concept of legal personhood. This concept has a core of necessary legal positions, although different from the ones traditionally assumed, and an additional bundle of typical but non-necessary legal positions. And while this might have to be determined after further studies, it seems that the necessary legal positions of this core together also are sufficient for legal personhood in contemporary positive legal orders.

  • 78 It is possible that these legal positions are given to these entities since they are held as legal (...)
  • 79 It should be noted that it, so far, only are human individuals that are exercising the rights and f (...)
  • 80 This observation is in fact rather common in older legal theory, especially regarding artificial pe (...)

49If one analyzes the entities referred to as legal persons (and equivalent terms) in law, that is, all the entities acknowledged the status of legal person in positive law in all the different legal systems, one will find a common core consisting in capacity for a certain number of legal positions: a group of legal positions that are a common denominator for all entities with this status.78 These positions are potentially held by, or included in, all kinds of legal persons, from classic instances such as humans that are born and currently alive, corporations and public legal persons (states and municipalities) to newer instances such as the rivers79 declared as legal persons mentioned in the introduction. These legal positions are the legal positions required for an entity to function as a legal person in property law, understood in a very wide sense. This includes at least legal positions pertaining to the (relatively) free acquisition, transfer and holding of property through agreements (contracts) and other kinds of transactions, liability for violations of such agreements, liability for other kinds of damages to the property of others, and the procedural capacities required for protecting and upholding the rights and duties following from these positions. The exact scope of this common core of legal personhood will vary between different legal orders, and potentially also among legal persons in the same legal order, but a common core could probably be identified that roughly corresponds to the above-mentioned legal positions pertaining to property law understood in this very wide sense.80

50In addition to this core of necessary and sufficient position legal personhood can, but does not have to, be composed of other kinds of legal positions, some more statistically common than others. Such positions are for example fundamental legal protection, victim status in criminal law and criminal-law responsibility, to borrow some examples from the Bundle Theory. Legal positions pertaining to family law institutions such as marriage or parenthood could also be mentioned. The proposed legal personhood concept can thus also come in thicker and thinner bundles of legal position. These bundles of characteristic legal positions attaching to the core of legal personhood indeed seems to have a prototype-like structure, with none of these additional positions alone being necessary conditions of legal personhood but some of them being more typical and important than others.

5.2 Benefits of the proposed concept

  • 81 For an overview on legal personhood of artificial persons and ships in general and Indian idols in (...)

51The proposed concept of legal personhood would solve the extension problem of the concepts of traditional theory since it can account for the extension of the concept according to both positive law and widely held beliefs when combined with the modern right theories. It can explain why fetuses and animals does not have legal personhood and why born and alive humans do: neither fetuses nor animals can own property, enter into agreements, be parties to legal proceedings, and so on, while all humans can, although some through representatives. It can also explain more marginal cases of legal personhood such as the ascription of legal personhood to idols in India or to ships, both have the capacity to own property through representatives,81 as well as the (alleged) ascription of legal personhood to non-human nature and animals mentioned in the introduction. It can furthermore explain why slaves did not have legal personhood: they did not possess these legal positions, and if they did only to a limited extent. The same applies for other marginal examples discussed above, such as limited liability companies before registration and after dissolvement. These cannot hold these positions in general, only for the limited purposes deemed necessary.

52Since this concept, with its definitional structured core, allows for determination of the proper extension of legal personhood and legal inferences, jurists could with support of such a concept explain the consequences of being a legal person and that legal personhood necessarily entails some fundamental legal positions. The additional legal positions of the prototype structured bundle would serve as a basis for further investigation or examination. The division in a definitional structured core and a prototype structured bundle would also be helpful in illuminating why or why not juristic persons should be acknowledged certain legal positions natural persons have, and the other way around. Finally, the proposed concept is neutral to the interest and will theories of rights: it allows for interest theorists to recognize rights for any entity they deem morally relevant without necessarily concluding that these entities have legal personhood; the will theorists could likewise continue to refuse to recognize the rights of infants as long as they accept that they function as legal persons through representatives with the relevant legal positions. An equation of legal personhood with a specific set of legal positions rather than legal positions in general thus makes the debate between will and interest theorists less relevant for legal personhood theory.

53To conclude my argument: There are good reasons to separate the general holding of legal positions and legal personhood, as argued for in the Bundle Theory. The extension of the concepts of legal personhood in traditional theory differs from the extension of the concepts of legal personhood in positive law. But there are also good reasons not to adopt the alternative concept of legal personhood of the Bundle Theory. Some legal positions, such as standing, are held by all legal persons in positive law and thus likely necessary, contrary to what would be the case if legal personhood was a cluster property consisting of non-necessary and alone non-sufficient incidents. And even if legal personhood in positive law would change in the future, prototype structured concepts are still problematic since they do not allow for clear extension determination or analytical inferences. Unless support for the claim that legal personhood in positive law actually is structured as a cluster property, I think such concepts should be avoided. Both the disadvantages of the rigid definitional structured legal personhood concepts of traditional theory and of the overly flexible prototype structured legal personhood concept of the Bundle Theory can be averted through a dual structured legal personhood concept. The concept of legal personhood proposed in this final section of the paper combines the clarity of definitional structured concepts with the flexibility of prototype structured concepts. The proposed concept is in need of further development, but it is my hope that this paper might benefit the development of legal personhood theory and thus the understanding of one of the fundamental structures of law.

—Acknowledgements.— I would like to thank Matilda Bergström, Christian Dahlman, Eduardo Gill-Pedro, Ellika Sevelin, Lena Wahlberg and all the participants at my first seminar at the Faculty of Law at Lund University for comments on earlier drafts of this paper. I would also like to thank the two anonymous reviewers for their percipient observations and constructive critique.

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Bibliography

Aalto-Heinilä, M., & Karhu, J. (2021). Animals, slaves, and beyond. Revus. Journal for Constitutional Theory and Philosophy of Law, 44, 147–162. https://doi.org/10.4000/revus.7004

Agell, A., Malmström, Å., Ramberg, C., & Sigeman, T. (2010). Civilrätt. Liber.

Arriagada Cáceres, M. B. (2018). Fundamentality, interdefinability, and circularity. Revus. Journal for Constitutional Theory and Philosophy of Law, 35, 45–84. https://doi.org/10.4000/revus.4173

Banaś, P. (2021). Why cannot anything be a legal person? A critique of Visa Kurki's Theory of Legal Personhood. Revus. Journal for Constitutional Theory and Philosophy of Law, 44, 163–171. https://doi.org/10.4000/revus.7335

Beran, K. (2020). The Concept of Juristic Person. Wolters Kluwer Czech Republic.

Blackburn, S. (2016). Extension/intension. In A Dictionary of Philosophy. Oxford University Press. https://www.oxfordreference.com/view/10.1093/acref/9780198735304.001.0001/acref-9780198735304-e-1203

Chloros, A., Rheinstein, M., & Glendon, M. A. (2007). International encyclopedia of comparative law. Vol. 4, Persons and family. Mohr.

Ebrahimi Afrouzi, A. (2020). Visa A.J. Kurki, A Theory of Legal Personhood, Oxford: Oxford University Press, 2019, 240 pp, hb £70.00. The Modern Law Review, 83(6), 1354–1358. https://doi.org/10.1111/1468-2230.12531

Fasel, R. N. (2021). Shaving Ockham. A review of Visa Kurki's 'A Theory of Legal Personhood' Revus. Journal for Constitutional Theory and Philosophy of Law, 44, 113–126. https://doi.org/10.4000/revus.6921

Frege, G. (1948). Sense and Reference. The Philosophical Review, 57(3), 209–230. https://doi.org/10.2307/2181485

Garner, B. A. (2011). Garner’s dictionary of legal usage. Oxford University Press.

Grauers, P. H. (2017). Person och avtal: En kortfattad inledning till person- och avtalsrätten. Liber.

Hage, J. C., & Pfordten, D. von der (Eds.). (2009). Concepts in law. Springer.

Hart, H. L. A. (1982). Legal Rights. In H. L. A. Hart (Ed.), Essays on Bentham: Jurisprudence and Political Philosophy (pp. 162–193). Oxford University Press. https://doi.org/10.1093/acprof:oso/9780198254683.003.0008

Håstad, T., Björkdahl, E. P., Brattström, M., & Zackariasson, L. (2016). Civilrättens grunder. Iustus.

Hohfeld, W. N. (1913). Some Fundamental Legal Conceptions as Applied in Judicial Reasoning. The Yale Law Journal, 23(1), 16–59. https://doi.org/10.2307/785533

Kelsen, H. (2002). Pure theory of law (M. Knight, Trans.). Lawbook Exchange.

Kempers, E. B. (2021). Neither Persons nor Things: The Changing Status of Animals in Private Law. European Review of Private Law, 29(1), 39–70.

Kurki, V. A. J. (2019). A Theory of legal personhood. Oxford University Press.

Kurki, V. (2021a). Legal Personhood and Animal Rights. Journal of Animal Ethics, 11(1), 47–62.

Kurki, V. A. (2021b). On legal personhood: Rejoinders, reflections and restatements. Revus. Journal for Constitutional Theory and Philosophy of Law, 44, 173–194. https://doi.org/10.4000/revus.7425

Lehrberg, B. (1990). I aktiebolagens skymningsland: En studie rörande upplösta aktiebolags rättskapacitet, med beaktande även av rättsläget vid handlande för ett nybildat, ännu ej registrerat aktiebolag. Iustus.

Lehrberg, B. (2016). Aktiebolagsrätt. Iusté.

Lindahl, L. (1985). Definitioner, begreppsanalys och mellanbegrepp i juridiken. (Definitions, Conceptual Analysis and Intermediate Concepts in the Law.). In Rationalitet och empiri i rättsvetenskapen (pp. 37–62). Juristförlaget vid Stockholms universitet.

Margolis, E., & Laurence, S. (1999). Concepts: Core readings. MIT Press.

Mocanu, D. M. (2022). Gradient Legal Personhood for AI Systems—Painting Continental Legal Shapes Made to Fit Analytical Molds. Frontiers in Robotics and AI, 8, Article 788179.

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, 127–135. https://doi.org/10.4000/revus.6953

O’Donnell, E. (2018). At the intersection of the sacred and the legal: Rights for nature in Uttarakhand, India. Journal of Environmental Law, 30, 135–144. https://doi.org/10.1093/jel/eqx026/4364852/At-the-Intersection-of-the-Sacred-and-the-Legal

Olivecrona, K. (1928). Studier över begreppet juridisk person i romersk och modern rätt. Appelbergs boktryckeri.

Pashukanis, E. B. (2002). The general theory of law and Marxism (B. Einhom, Trans.). Transaction Publishers.

Pratama, M. A., & Rizkiyah, E. L. (2022). A Theory of Legal Personhood by Visa A.J. Kurki. Indonesian Journal of Law and Society, 3(1), 157–166. DOI: 10.19184/ijls.v3i1.28220

Putzer, A., Lambooy, T., Jeurissen, R., & Kim, E. (2022). Putting the rights of nature on the map. A quantitative analysis of rights of nature initiatives across the world. Journal of Maps, 18(1), 89–96. https://doi.org/10.1080/17445647.2022.2079432

Ramberg, C., & Malmström, Å. (2016). Malmströms civilrätt. Liber.

Siltala, R. (2021). Earth, Wind, and Fire, adn other dilemmas in A Theory of Legal Personhood - a vindication of legal conventionalism. Revus. Journal for Constitutional Theory and Philosophy of Law, 44, 137–146. 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, 103–112. https://doi.org/10.4000/revus.6893

Tanasescu, M. (2022). Understanding the Rights of Nature: A Critical Introduction (1st ed., Vol. 6). transcript Verlag. https://doi.org/10.14361/9783839454312

Wenar, L. (2021). Rights. In E. N. Zalta (Ed.), The Stanford Encyclopedia of Philosophy (Spring 2021). Metaphysics Research Lab, Stanford University. https://plato.stanford.edu/archives/spr2021/entries/rights/

Worthington, M., & Spender, P. (2021). Constructing legal personhood: Corporate law’s legacy. Griffith Law Review, 30(3), 348–373. https://doi.org/10.1080/10383441.2021.2003742

Zalta, E. N. (2023). Gottlob Frege. In E. N. Zalta & U. Nodelman (Eds.), The Stanford Encyclopedia of Philosophy (Summer 2023). Metaphysics Research Lab, Stanford University. https://plato.stanford.edu/archives/sum2023/entries/frege/

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Notes

1 With the term legal personhood, I refer to a certain set of legal positions and with legal person to the entity that has the capacity for, holds or consists in these positions. In English-language legal theory the terms are sometimes used interchangeably.

2 This is further developed in section 3.1 below.

3 An overview of legal initiatives can for example be found in the Eco Jurisprudence Monitor. This database has so far registered around 80 approved legislative provisions concerning the rights of nature at municipal, national and constitutional level and around 80 cases concerning rights of nature approved in courts. The database is largely based on the careful mapping of rights of nature initiatives carried out by Putzer e.al., see Putzer et al. 2022.

4 For a recent overview from a political science perspective, see Tanasescu 2022.

5 Constitución de la República del Ecuador 2008, in particular articles 71 to 74.

6 Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 section 14(1). It should be noted that, according to the actual phrasing of the provision, it is not the Whanganui River in itself that is constituted as a legal person, but an entity called Te Awa Tupua. This entity incorporates all the rivers physical and meta-physical elements, see section 12.

7 The very first example being the judgment from the High Court of Uttarakhand declaring rivers Ganga and Yamuna as legal persons. See Mohd Salim v State of Uttarakhand & others, WP (PIL) 126/2014 (High Court of Uttarakhand) 2017 p. 19. It should be noted that the judgment have been stayed and is awaiting the ruling of the Supreme Court of India, see O’Donnell 2018: 143.

8 Constitutional Court of Colombia, judgment T-622/16.

9 Attempts to grant non-human animals status as legal persons through litigation are for example being carried out by the U.S.-based Non-Human Rights Project, compare Kurki 2021a: 47­­­–48.

10 Final Judgment No. 253-20-JH/22 from the Constitutional Court of Ecuador. The Argentinian cases, recognizing the orangutang Sandra and the chimpanzee Cecilia as sujetos de derecho, are refereed in Kurki 2019: 198­­­–199.

11 Case no. J 0009/20 (2021-12-21) Legal Board of Appeal of the European Patent Office. The application was rejected on the basis that DABUS was not a “person with legal capacity”, see section 4.3.1 of the judgment.

12 For example, a search on “rights of nature” in the LUBsearch research database of Lund university libraries alone on September 22, 2023 resulted in 2 154 results.

13 Kurki 2019.

14 Kurki 2019: 93–94.

15 See for example Afrouzi 2020:1354–1358. Pratama and Rizkiyah 2022: 157–166.

16 Google Scholar lists 204 texts in which the book is quoted as of September 22, 2023.

17 Many scholars tend to refer to the theory for alternative views or for an overview of the literature on the topic, see for example Worthington and Spender 2021: 3. Of course, there are also examples of scholars applying the theory to a certain extent, see for example Mocanu 2022.

18 Stancioli 2021, Fasel 2021, Naffine 2021, Siltala 2021, Aalto-Heinilä & Karhu 2021, Banaś 2021, Kurki 2021b.

19 Kurki 2021b: 185 (online § 43).

20 Frege 1948: 27.

21 Margolis and Laurence 1999: 5–7; compare Zalta 2023.

22 Compare ‘Extension/Intension’ in Blackburn 2016. I do not, however, use referent and extension as synonymous terms, which sometimes is the case.

23 Margolis and Laurence 1999: 8–10.

24 Margolis and Laurence 1999: 27.

25 Compare Margolis and Laurence 1999: 42–43.

26 I think that one, in accordance with Frändberg, carefully should distinguish between legal concepts with a law-stating function (stating the material legal content) and a juridical-operative function (concept for juridical handling of legal content), see Frändberg 2009: 2. The confusion on these two kinds of legal concepts can sometimes lead to confusion when the latter wrongly is used as an authoritative source in legal argumentation, compare Lindahl 1985: 37–39.

27 Kurki 2019: 29.

28 See for example Kurki 2019: vii.

29 Kurki 2019: 55.

30 Kurki 2019: 55–56. It should be noted that the Capacity-for-Rights position, despite its name, includes both the capacity to hold rights and to bear duties.

31 This is at least common in Swedish legal theory and in provision defining the legal personhood of artificial legal persons. See for example the Swedish Foundations Act (1994:1220) chapter 1 section 4 that states that a foundation can acquire rights, take on obligations and bring actions (föra talan) before courts and other authorities. Compare for example Agell et al 2010: 51–52; Grauers 2017: 47. It should be noted that legal personhood still is defined as a capacity for rights and duties in general, although a capacity for standing also is included. These versions of the orthodox view thus differ from the alternative legal personhood concept proposed in section 5 since the latter connects legal personhood to capacity for specific rights and duties, including standing.

32 The most well-known proponent of the latter position is probably Kelsen. Kelsen 2009: 173–174. Kurki addresses this position in a later section of the book. Kurki 2019: 133, 137–138.

33 Kurki 2021a: 51.

34 Aalto-Heinilä and Karhu 2021: 154 (online §§ 18–20).

35 Kurki 2019: 55 compare 15–19.

36 Kurki 2019: 14 compare 8–10 and 55.

37 For some examples from Swedish legal theory, see Håstad et al. 2016: 50; Ramberg and Malmström 2016: 54)

38 This is sometimes explicitly stated in statues, sometimes not. Furthermore, the exact criteria for ascription of legal personhood at birth and its disappearance at death varies between legal systems. For a comparative overview, see Chloros, Rheinstein and Glendon 2007), 2–2 and 2–8.

39 It should be noted, however, that fetuses often are considered to be able to have limited legal rights on the condition that they are later born alive, see Chloros, Rheinstein och Glendon 2007: 2-3, 2-4 and 2-5. That animals are not legal person is usually neither stated explicitly. That animals are not things, and indirectly neither persons, is, however, explicitly stated in several civil codes in Europe: section 285 a of the Civil Code of Austria; Article 3.38 of the Belgian Civil Code; section 494 of the Czech Civil Code; Section 90 a of the German Civil Code (BGB); Article 287 of Moldovan Civil Code; Book 3 Article 2a of the Dutch Civil Code; Article 333 of the Spanish Civil Code; Article 511-1(3) of the Civil Code of Catalonia; Article 641a of the Swiss Civil Code. For an overview of some of these provisions, see Kempers 2021.

40 See generally Hohfeld 1913: 30 and onwards.

41 See Wenar 2021. For an overview on how Hohfeld’s theses has been developed in legal theory, see Arriagada Cáceres 2018.

42 For a general overview, see Wenar 2021: section 2. It should be noted that these theories not solely are used for explaining the function of rights as positive norms in the Hohfeldian analytic structure but also, inter alia, as reasons for rules, both as outside or extra-legal reasons and as inside or intra-legal reasons (such as rights often are understood in constitutional law). See Kennedy 2002: 185–187.

43 It should be noted that these consists of a great number of similar theories on rights, that, however, often are grouped together for pedagogical purposes.

44 This is Kurki’s own summary, see Kurki 2019: 61. A will-interest right could naturally also involve the choice to unilaterally change Y’s own position, for example through a gift. This would, however, also change the duties of X in relation to Y if X would be liable to such a change. The right would thus still be partially constituted by Y’s control over X’s duty.

45 Compare Kurki 2019: 61.

46 Kurki 2019: 71.

47 Hart 1982: 184 footnote 86.

48 A trust is commonly defined as “an equitable estate committed to the care of a fiduciary (trustee) for a beneficiary”, see ‘Trust` in Garner 2011.

49 Kurki 2019: 67–68.

50 See Lehrberg 2016: 73–75, compare NJA 1984 s 495 and chapter 2 section 25 in the Swedish companies act (2005:551). The Swedish legal philosopher Karl Olivecrona early observed the paradox that corporations need legal capacity to acquire legal capacity according to the law, see Olivecrona 1928: 136.

51 This follows from a judgment of the Swedish supreme court, see NJA 1979 s 700, and has been confirmed in later case law. For an overview, see Lehrberg 2016: 394 and subsequent pages. See also generally Lehrberg 1990.

52 This is not only the case in Sweden, for example similar constructions of preliminary companies in Germany and Romania award partial legal capacity to not yet formed companies, this is mentioned in Mocanu 2022: 7.

53 Two kinds of special investment funds (värdepappersfonder and specialfonder) are not considered legal persons in accordance with chapter 4 section 1 and chapter 12 section 1 in the statues regulating them (2004:46 and 2013:561). Despite this they previously had rights and obligations as subjects of tax law (skattesubjekt), this is stated explicitly in the preparatory works, see prop. 2011/21:1 p. 400.

54 Kurki 2019: 5.

55 Kurki mentions Ngaire Naffine, Richard Tur and Jens David Ohlin as examples of this, Kurki 2019: 93–94. Similar accounts for the relativity of legal personhood is evident also in Kelsen’s Pure Theory of Law, even if he uses the term complex instead, see Kelsen 2002: 173.

56 Kurki 2019: 93.

57 The term incident is borrowed from Anthony Honoré’s division of ideal liberal ownership into eleven standard incidents. Honoré 1961: 107. In the Oxford Dictionary of English an incident is defined as “a privilege, burden or right attaching to an office, estate, or other holding”, see ‘Incident’ in Oxford Dictionary of English, 3 ed., online-version. Oxford University Press, 2015.

58 Compare Kurki 2019: 95–96.

59 Both formulations are used in the book.

60 Kurki, 2019: 95.

61 Kurki 2019: 108.

62 See section 41 and 42 of the Swedish Administrative Procedure Act (2017:900).

63 Kurki 2019: 109.

64 Kurki 2019: 110. This was, according to Kurki, motivated by the fact that not all features of standing had much bearing on the questions that his investigation sought to understand.

65 Kurki 2019: 107.

66 See especially the decision from the ombudsman of the Swedish parliament (JO). regarding the Skandia-man’s right to be presumed innocent, JO Beslut dnr 6673-2020. See also the administrative court of appeals in Stockholm’s decision on the 22 of December 2020 in cases number 5005-20, 5077-20 and 5079-20. The Skandia-man also figures in two preliminary investigations regarding defamation, of which one is now closed, see decision AM-86565-20 from the Swedish Prosecution Authority (Åklagarmyndigheten).

67 It could of course be argued that standing is a commonly reoccurring but not conceptually necessary component of legal personhood, I will address this later.

68 Kurki 2019: 102.

69 Kurki never specificizes which aspects of owning that is sufficient or necessary for an entity to have the incident capacity to own. Kurki 2019: 103–106. Although this is not mentioned explicitly, this is probably due to the cluster property structure that Kurki seems to assume ownership has. I suspect, however, that the incident of transmissibility (capacity to transfer ownership) is a necessary incident of ownership.

70 Kurki 2019: 121.

71 See footnote 10 above for references. To my knowledge three successful cases exist. The expression sujetos de derecho rather than personas naturales or personas jurídicas, the usual equivalents of legal person, is used by the courts.

72 Kurki 2019: 121–124.

73 Kurki 2019: 121.

74 An example of this is the concept of employee in Swedish private law. This concept is not defined in any statue, but instead an overall assessment of criteria developed in case law and preparatory works is made. These criteria include factors such as whether the person has a personal duty to perform work according to a contract, whether the work tasks are predetermined, whether the person is prevented from performing similar work for other persons, and so on. However, none of these criteria are alone necessary or sufficient for a person being an employee, and some of them are considered as more important than others for the outcome of the assessment. For an overview in English, see generally Rönnmar 2004.

75 For an overview, see Margolis & Laurence, 1999, pp. 32–43.

76 A similar objection is raised by Mocanu when discussing the application of the Bundle Theory. See Mocanu 2022: 8–9.

77 It is of course possible that Kurki´s intention with constructing his legal personhood concept is not descriptive but normative, this is, however, not what is implied by his argumentation.

78 It is possible that these legal positions are given to these entities since they are held as legal persons, but also that they are held legal persons since they have these legal positions. I believe the former to be correct rather than the latter.

79 It should be noted that it, so far, only are human individuals that are exercising the rights and fulfilling the obligations of these legal persons as their guardians. No ‘behaviour’ of the rivers (floods or droughts etc.) is imputed to the legal person bearing their name.

80 This observation is in fact rather common in older legal theory, especially regarding artificial persons. Savigny considered artificial persons as an “artificially created subject having legal capacity under property law”. Translated and referred in Beran 2020: 68. The connection between commodity ownership and the legal subject is also an important aspect of Pashukanis commodity exchange theory of law, see Milanovic´s introduction in Pashukanis 2002: 14–15.

81 For an overview on legal personhood of artificial persons and ships in general and Indian idols in particular see the lengthy reasoning of the Supreme Court of India, which clearly connects (artificial) legal personality to holding of property, in the 2019 Supreme Court verdict on Ayodhya dispute, M. Siddiq v. Mahant Suresh Das, Judgment of the Supreme Court of India dated 09.11.2019 in Civil Appeals No. 10866-10867 of 2010, paragraphs 86 to 124.

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References

Electronic reference

Johan Hermansson, “Structuring concepts of legal personhood”Revus [Online], 51 | 2023, Online since 29 December 2023, connection on 25 February 2024. URL: http://journals.openedition.org/revus/9933; DOI: https://doi.org/10.4000/revus.9933

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About the author

Johan Hermansson

Department of Law, Lund University (Sweden). Address: Lunds universitet, Juridiska fakulteten – Lilla Gråbrödersgatan 4–6 – 221 00 Lund – Sweden. E-mail: johan.hermansson(at)jur.lu.se

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The text only may be used under licence CC BY-SA 4.0. All other elements (illustrations, imported files) are “All rights reserved”, unless otherwise stated.

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