Blog

Abstract

Technology is growing in fields of data science and bioengineers, as are the questions on how society is to grant personhood to such conscious entities that are likely to arise from such advancements in these industries. One looming question is what boundaries of legal personhood ought to exist for nonliving entities versus living nonhuman entities? One current boundary of personhood is based upon the legal definition of standing and has been sparingly granted to only specific individuals from both of these categories of nonliving and nonhuman entities. The humanistic rights granted under legal standing operate as the gateway into further boundaries that are tied to the distinctions in personhood and are distributed to both types of beings. However, as of today very few boundaries beyond legal standing have been practiced or implemented. Instead, boundaries of attribution of personhood have been primarily based upon innate traits that these entities are capable of emulating similar to that of humans. It is these predefined characteristics that separate nonliving corporate personhood from those used to distinguish nonhuman animal personhood and must be the guidelines of what such legal boundaries of personhood out to exist going into the future. The boundaries set forth from these identifiable characteristics will ensure that society will not repeat the human history of failing to incorporate beings who mirror human manners and are deserving of human rights afforded under personhood.

Legal Standing

Starting with the legal doctrine of standing which is used in all instances of allocating personhood, regardless of a nonliving or living nonhumans currently recognized status. Analyst Staker describes how the requirement of ‘legal standing’ is essential in that, “standing operates as a gateway to the legal system… [which] could eventually lead to ‘the full recognition of non-human beings as subjects of rights” (Staker). An example of this would be how nonliving entities like corporations have standing to enter into legally binding contracts with other parties and be sued in court. Additionally, there have been examples of legal standing for living nonhumans animals who have been defined by-laws as species deserving of protection from human abuses. Overall, legal standing simply allows an individual the ability to use the legal system. Without this central boundary of personhood, one is not guaranteed to seek relief from conflict through the legal system. If nonliving entities like corporations were not recognized to have legal standing then they would not be allowed to enter into legally binding contracts. Similarly, nonhuman animals would also face disparagement without legal standing, such that without it, they have neither legal sanctions nor law binding protections from humans committing abusive practices. In today’s society, we recognize the legal system to be the law of the land that brings judicial resolution to disputes among persons. However not all nonliving and nonhuman entities have always or currently have legal standing. How this came about for nonliving corporations varies greatly from that of nonhuman animal beings.

You may have already been aware that this first boundary of legal standing personhood has been granted to name only one main nonliving entity, these being corporations. Looking at how the practice of bestowing legal standing to nonliving beings first came to be, we would defer to how courts first establish personhood for corporate entities. It wasn’t until the Supreme Court’s ruling in Citizens United v. Federal Election Commission [2010], that legal standing was adopted for corporations in America. Author Coleman notes one major boundary created by this new right for corporations was that “any legal distinction between individual and corporate speech in the public sphere” (Coleman), had been eroded. Particularly, this had profound impacts on the way corporations were able to express their political free speech through the use of campaign contributions, which were far larger contributions than their citizen predecessors. Over time, this has led to wealthy corporations who were once without the ability to finance campaigns, now dominate campaign spending and the politics behind them. Allowing corporations the right to engage in free speech practices, gave them enormous influence in ways in which they could not only exercise their rights but expand and create new ones through their existing rights as a legal person. Corporations have shown us the impacts of legal standing on its face, as well as exemplified the need for more defining boundaries of personhood. 

Today, there are many distinctions to how we grant personhood of legal standing to specifically non-human animal beings. With not all nonhuman personhood being created equal, some creatures are being granted legal personhood privileges while others are not. Staker goes on to explain why there has been little expansion of legal standing personhood accomplished for these nonhuman entities. She states that “US courts have allowed animal species [though not individual animals] to be named as plaintiffs in several cases… pursued otherwise in a ‘narrow’ procedural sense” (Staker). An example of these animal court cases would be the existing laws against trappers of endangered species such as elephants. At the same time, such laws do not exist for other animals that face a human threat such as cattle. The reason behind this disparity Stalker explains, is that limiting legal standing to the protection of a selected species class goes further in its achievement of legal insurance than could do for any single individual animal. Legal standing better protects animal groups rather than the animal kingdom as a whole because, for animal beings who fall under a classification of a specific species type, their adoption of personhood will be prioritized and recognized for the need for such legal protections. Additionally, this method does not overly complicate the process of bestowing legal protection to animals, as this system seeks to protect multiple species rather than narrowly assisting an individual animal, or over broadly protecting all species. 

Observing through a historical lens how granting legal standing to specific entities has changed over time, analyst Glenn describes a period where certain human individuals were considered to be in neither class of non-living, non-human, or human beings. In A Legal Perspective on Humanity, Personhood, and Species Boundaries, Glen notes the history of the boundaries of personhood that existed for entities that were humans living among other humans but were instead considered to be nonhumans, while others were considered comparable to non-living entities. He references these individuals as, “slaves, women, and children… [who were] considered property” (Glenn) before being considered human. Throughout much of and before the 1800s ownership and forced slave labor of humans in the African community was normality in America. Additionally, women were not given the basic human right to exercise their right to vote in their own country along with the rest of their fellow male citizens until the early 1900s. The boundaries of personhood for both Africans and women at the time were as Glen described them as being ‘considered property’, with all those who fell under this classification treated with regard as either nonhuman or nonliving beings. It wasn’t until they made the categorical leap from “rightless” thing [or property] to then becoming a rights holder, now a legal entity fully visible to the courts (Athens). It took both nonliving and nonhumans entities to make known to the courts that they were deserving of legal standing, by showing that they possessed some inherent trait that entitled them to the same rights their fellow white man received under personhood. Until an individual can demonstrate they meet the requirements to receive personhood, they will continue to be bound to a status comparable to that of a slave, such that they will not be able to be recognized as having legal standing rights afforded under personhood.

Nonliving Boundaries

By granting boundaries of personhood, such as legal standing to only certain non-living and non-human entities, this then calls into question particular attributes that these beings must have to be qualified for legal personhood. In observing the attributes associated with setting further boundaries of legal personhood for specifically nonliving beings, many of these can be found in author Chan’s article, The Boundaries of Legal Personhood: How Spontaneous Intelligence Can Problematise Differences between Humans, Artificial Intelligence, Companies, and Animals. There she describes five qualifying traits that if found in such a nonliving entity, then legal personhood should be afforded to them. When looking back at corporations as the primary example, we can see that “the corporate structure of a company is a person of a legal fiction” (Chan), it has no physical form, it has a controlling mind (CEO, the board of directors), it is an artifact of a particular place, and jurisdiction by good nature of its contributors. Breaking down these boundaries nonliving beings must meet to qualify for personhood, it becomes evident that the entitlement of personhood, in and of itself, to corporations is, in fact, legal fiction because as the name itself ‘personhood’ implies association to a human person. Also, nowhere beyond what courts have chosen to grant corporations do the courts imply a definite entitlement to legal personhood for corporations. Under closer inspection, it is noticed that Chan’s description of an entity that possesses a controlling mind becomes a key boundary as it shows that such a being is intrinsic and deserving of personhood. Other researchers have considered the capacity to use one’s mind as a baseline criterion that must be met before attribution of personhood. For example, Johnson defines a person as “being capable of reasoning, with an awareness of her or his existence over time, and the capacity to have wants and plans for the future” (Johnson). This further exemplifies that for humans a necessary trait we use to grant each other personhood, as without such capacity within one’s mind so follows the particular way in which we treat another human being. Turning back to Chan’s criteria of how a corporation must be an artifact beholden to a particular area, this implies that their personhood will also be bound to a specified area. This boundary reflects limitations on the applicability of their personhood and how to measure it. As with humans, many of our Constitutional rights do not extend beyond our borders. Lastly, a corporation’s jurisdiction established by good nature shows a dependency on maintaining this factor or foregoing one’s rights as a person. Author Monica echoes this condition is that the “capacity to organize oneself and by the competence to organize oneself freely” (Simmler) must be met, or one forgoes their legal rights under personhood. For humans this also holds, being enforced by our policing system to those individuals not capable to organize themselves not only free but also those unable to maintain a good nature. Just as a nonliving entity can produce these attributes when being considered for legal personhood, so should be these criteria they are bound by in their adoption of these rights. Rather than broadly granting legal rights to all entities that fall under these classifications, these methods and existing practice help in drawing distinctions of attributes to consider in nonliving entities before granting personhood. Such distinctions prove useful when contrasting why different boundaries exist for nonliving entities versus living nonhuman entities.

Nonhuman Boundaries

Similarly, the attributes associated with setting further boundaries of legal personhood for specifically living nonhuman beings can also be found in Chan’s research. These boundaries she makes mention of also outlined other key criteria to measure how legal personhood should be permitted for living nonhuman beings. By Chan’s accounts, these characteristics that must be weighed are higher-order animals (resembling more human characteristics), respect/recognition of “the moral agency of animals” (Chan), their physical appearance, their lack of cognitive agency/awareness, and their ability to realistically exercise rights, not just on paper. The higher-order references such animals that would be able to benefit more than other animals from their adoption of personhood. An example of this would be a member of the ape family in comparison to one of the insect family. This baseline helps unpack the other categories as members of the ape family have more stake in exercising personhood because of the capabilities to understand language as opposed to an ant. These criteria exemplify candidates who may be capable to participate in respecting the boundaries such as the moral agency of animals, among other boundaries that come along with legal personhood. Analyst Curro relays this criterion by further mentioning how “hospitality practices… [and] positive feelings… link host and guest, including respect, care, and protection;” (Curro). Many animals are incapable of meeting these requirements of hospitality and respect towards other animals. Under the adoption of personhood, these same animals would then have to manifest this character towards humans and corporations as well. Chan’s mention of their physical appearance is a criterion of importance, helps narrow the list of animals that can even begin to qualify. In our example of apes and insects, it makes more sense to recognize personhood for a nonhuman being with human attributes of a face, nose, mouth, and ears, rather than to grant personhood by the same logic to insects who do not have distinct similarities to humans. Lastly, a non-human living being’s ability to maintain cognitive awareness is essential to one using their personhood, as well as being able to perform duties as a person rather than simply the law allowing one to do so. Similarly to Chan’s, researcher Dennett’s definition “requires that persons be ‘rational beings’… capable of verbal communication” (Meese). Now although many animals and even insects may be able to meet this last criterion, testing each being against the rest of the requirements would significantly lower the qualifying animals that may be deserving of legal personhood. Just as before, all these criteria are a baseline that should be tested against any scenario involving living non-human entities and distinguish the boundaries of personhood that exist for living non-human entities versus nonliving entities.

Artificial Intelligence

Fields in artificial intelligence are becoming ever so more sophisticated and useful for humans in society. However, the question remains how these entities will be able to acquire personhood, and by what boundaries will they need to qualify under? Taking into consideration the existing boundaries for artificial or conscious intelligence, it is clear that there is a focus in the data science field to come up with more boundaries and methods of attributing personhood in 21st century America. Researcher Jaynes mentions some existing criteria that must be met by artificial intelligence such as “attributing consciousness”, producing a “definition of what consciousness [is]”, and how they must be able to perform as a “moral actor” (Jaynes). These arguments of boundaries of personhood based on consciousness, as mentioned prior, where the illustration of consciousness gives the impression that AI is more sentient than a robot. Defining what constitutes consciousness will only better narrow the boundaries of personhood for these artificial intelligence entities. One way to do so would be to combine Chan’s criteria for nonliving entities, such as weighing their abilities to use such consciousness to be considered some moral actor. These however are just some of the few criteria to consider when establishing boundaries to grant personhood to AI.

CRISPR Chimeras

The field of medicine for the 21st century has raised many questions as to how to handle the boundaries of legal personhood for living nonhuman creatures, chiefly for entities being bioengineered through gene-splicing of human and animal DNA. The project named CRISPR is now being used to grow human organs in these hybrid creatures, which can then be harvested and used for medical transplants. With projects showcasing the first human-animal hybrids known as “chimeras… at the Salk Institute in La Jolla, California” (Cripps), scientists have been moving quickly to advance this medicine milestone, but hesitant to produce boundaries of personhood to distinguish subjects that are closer to humans than living nonhumans. Currently, the only boundaries that exist according to researcher Cripps are those formed by concepts of “forced sterilization…[and the] moral utility requirement”, concepts whose requirements were upheld by patent law Supreme Court decisions like Diamond v. Chakrabarty and Ex Parte Allen. As a result, the precedent set was that “human beings would not be considered the patentable subject matter” (Cripps). This upheld some form of legal personhood protections of these new creatures, as they might not be considered subjects of property by law. To describe how forced sterilization places a boundary on the legal personhood for these living nonhumans, these concepts arose from prominent historical figures such as Charles Darwin’s writings on ‘eugenics’, Plato’s ‘guardian class’ theory, Hitlers ‘Mein Kampf’, and even past/current U.S. policies of forced sterilization. All have contributed to benefit from the power dynamic of those in control of eugenics projects, not having to face any realities of responsibility for seeing to boundaries of personhood are distributed accordingly and based upon the defining characteristics these new creatures hold. Moreover, patent law precedents that could have better established these boundaries, failed to do so when specific cases of human-animal hybrids had been brought before these judges and agencies. As a result of all parties’ efforts, the boundaries of legal personhood are without any “regulatory systems to prevent inappropriate or abusive applications” (Mintz) of eugenics. Today the boundaries of personhood that exist for these new creatures are minute, and going into the future it seems for these living human/animal chimeras chances at legal personhood are mitigated by all the medical advantages these entities can provide.

Due to technology growing in fields of data science and bioengineers, the need to establish boundaries of personhood that ought to exist for nonliving vs nonhuman entities are becoming ever so increasingly important to adopt and consider. As a starting baseline, it is appropriate to first grant the boundary of legal standing to deserving individuals, to at least guarantee some legal protections. When determining who is deserving of personhood the boundaries that need to be considered for nonliving, corporations have been the trailblazers setting criteria of entities demonstrating; corporate structure, some form, controlling mind, an artifact of a place, jurisdiction, and good nature. Likewise, animals have set the criteria for how we are to grant personhood to other nonhumans, these boundaries being; a moral agency, physical appearance, cognitive awareness, and their ability to realistically exercise rights. It is important that we define the boundaries that can be attributed to living nonhumans versus non-living entities, as it helps to alleviate future concerns in the areas of how to best grant personhood and by which boundary. With the use of data science, the complexities of AI are increasingly growing to resemble humanistic traits. All the while medical advancements are continuing to experiment with the animal to human DNA ratio. For these reasons we need to have such boundaries distinguished for the nonliving beings such as corporations and the nonhumans like animal species, in efforts to not repeat the abuse we have seen through history when failing to grant personhood. Doing so will enable better foresight as to the effects that may follow from the granting of personhood, and where we may need to further draw the line on the newly granted rights of these beings.

Reflection

Many important questions were raised during my question and answer session with Samuel. Of the most important concerns with how the boundaries of personhood are going in the future are going to be shifting away from the idea that one must have a soul or spirit to qualify. The existing boundaries discussed above mention the need for this to qualify for personhood. However, on a personal scale, it seems of great importance. As both of us had discussed there were few ways to identify a soul or spirit within an individual, however, being able to point to it within ourselves and how these impact our decisions in life is a critical point. Entities granted personhood that is unable to identify the driving force behind the ‘why’ they do what they do will reshape what it means to be a person. It wouldn’t be hard to imagine a future where humans further lose touch with the past and how important it is to keep a sound mind body and soul for one’s walk of life, as this all factors into how or if one contributes to society. Will new entities take upon the role of human innovations that have resulted from such a connection? Our discussion has left me with more questions than answers. Whatever the case it has become clear that regardless of who is accepted as a person in our future society, humans should find ways to not lose touch with their boundaries of personhood that make them intrinsically different from all other beings, similar to that of German idealism.

Bibliography

Athens, Allison Katherine. “An Indivisible and Living Whole: Do We Value Nature Enough to Grant It Personhood?” Ecology Law Quarterly, vol. 45, no. 2, 2018, p. 187.

Chen, Jiahong, and Burgess, Paul. “The Boundaries of Legal Personhood: How Spontaneous Intelligence Can Problematise Differences between Humans, Artificial Intelligence, Companies and Animals.” Artificial Intelligence and Law, vol. 27, no. 1, 2018, pp. 73–92.

Coleman, Leo. “Corporate Identity in Citizens United: Legal Fictions and Anthropological Theory.” Political and Legal Anthropology Review, vol. 37, no. 2, 2014, pp. 308–328.

Cripps, Yvonne. “The Global Person: Pig-Human Embryos, Personhood, and Precision Medicine.” Indiana Journal of Global Legal Studies, vol. 25, no. 2, 2018, pp. 701–727.

Curro, Costanza. “Excessive Hospitality: Personhood, Moral Boundaries and Domination around the Georgian Table.” Journal of Consumer Culture, vol. 20, no. 2, 2020, pp. 216–234.

Glenn, Linda MacDonald. “A Legal Perspective on Humanity, Personhood, and Species Boundaries.” The American Journal of Bioethics, vol. 3, no. 3, 2003, pp. 27–28.

Jaynes, Tyler L. “Legal Personhood for Artificial Intelligence: Citizenship as the Exception to the Rule.” AI & Society, vol. 35, no. 2, 2019, pp. 343–354.

Johnson, Jenell. “Disability, Animals, and the Rhetorical Boundaries of Personhood.” JAC : a Journal of Composition Theory, vol. 32, no. 1/2, 2012, pp. 372–382.

Meese, James, et al. “Posthumous Personhood and the Affordances of Digital Media.” Mortality (Abingdon, England), vol. 20, no. 4, 2015, pp. 408–420.

Mintz, Rachel L, et al. “Will CRISPR Germline Engineering Close the Door to an Open Future?” Science and Engineering Ethics, vol. 25, no. 5, 2018, pp. 1409–1423.

Simmler, Monika, and Markwalder, Nora. “Guilty Robots? – Rethinking the Nature of Culpability and Legal Personhood in an Age of Artificial Intelligence.” Criminal Law Forum, vol. 30, no. 1, 2018, pp. 1–31.

Staker, Alexia. “Should Chimpanzees Have Standing? The Case for Pursuing Legal Personhood for Non-Human Animals.” Transnational Environmental Law, vol. 6, no. 3, 2017, pp. 485–507.