This post, which follows a rant about a pet peeve of mine, is for those who might be confused by the idea of giving non-humans the status of legal persons. As a term of art, the phrase ‘legal person‘ only makes sense as long as you don’t confuse it with the ordinary meaning of ‘person’.
Legal persons are not persons as we normally understand them. They are things to which the law grants specific legal rights. A corporation is a legal person. So is a ship. This entrenched misuse of the word ‘person’ can be called a legal fiction, but stripping away the jargon, it is just something that happens when judges find themselves trapped between inflexible categories and the need to make a decision. Sometimes, they chose to fit a square peg into a round hole.
I can’t resist referring to the case of Nix v. Hedden (1893) , in which the United States Supreme Court decided tomatoes, while biologically fruit, were nevertheless vegetables according to the law. And lest you think this ad hoc approach to meaning is unique to the courts, a pope in the 16th century declared the capybara – a large rodent – to be a fish. Whenever words matter, they will be twisted to meet a purpose.
Should it be any surprise, then, that the legal use of term ‘legal person’ has been abused by those seeking to enforce a status quo in which they have power. Animal rights activists see this history as precedent, and compare former legal attitudes towards slaves and women with present attitudes towards animals.
The old view of women’s legal personhood is expressed by William Blackstone in his 1765 text, Commentaries on the Laws of England:
By marriage, the husband and wife are one person in law; that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection, and cover, she performs every thing … and her condition during her marriage is called her coverture. [emphasis added]
- cited in R. v. Salituro, 1991 CanLII 17 (S.C.C.), which offers a good history of the doctrine.
Only after 1882 did Canadian and other Commonwealth legislatures begin to abolish this doctrine of coverture – or doctrine of unity – by which a woman lost her legal personality upon marriage.
Despite this shift, even until 1929 women were not considered persons within the meaning of the British North America Act, 1867 (now known as the Constitution Act, 1867). It is a measure the patriarchal thinking of the time that the five women bringing the Persons Case to the courts were resisted all the way up to the British Privy Council. It overturned a 1928 decision of Canada’s Supreme Court that declared women were not legal persons.
Keep in mind, then, that for a long time many persons did not count as such in law, and some things that are not people have counted as legal persons.
The concept of legal personality, as we have seen, is a construct of the law. As such, it can be extended to animals, or to other objects or beings, if the law so chooses.
- Jane Nosworthy. The Koko Dilemma A Challenge to Legal Personality. SCU Law Review (November 1998) 2, 1.
Thanks to science fiction and debates in bioethics, a quick list of possible rights-attractors isn’t difficult to create:
- Artificial intelligences
- Human embryos
- Dead humans
It would be fascinating to see a philosophical experiment which compared intuitions about which of these count as legal persons, and compare these to intuitions about moral persons.
- Ben Allgrove. Legal Personality for Artificial Intellects: Pragmatic Solution or Science Fiction?” (June 2004).
- Kirsten Rabe Smolensky. Rights of the Dead (August 2006). Arizona Legal Studies Discussion Paper No. 06-27.
- John Hadley. Nonhuman Animal Property: Reconciling Environmentalism and Animal Rights Journal of Social Philosophy (2005) 36:3, 305–315.
- Jessica Berg. Of Elephants and Embryos: A Proposed Framework for Legal Personhood (unpublished; 2007)
- Bibliography: Person and self in Law, Politics and Ethics.
American readers interested in how US lawyers might approach the problem of homeless chimpanzees without mentioning the word ‘person’ should consult: