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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) 149 U.S. 304, 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.

Thanks to science fiction and debates in bioethics, a quick list of possible rights-attractors isn’t difficult to create:

  1. Artificial intelligences
  2. Extra-terrestrials
  3. Animals
  4. Human embryos
  5. 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.

Further reading:

Postscript:

American readers interested in how US lawyers might approach the problem of homeless chimpanzees without mentioning the word ‘person’ should consult:

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CNN’s Elise Labbot is reporting Google Earth Maps Out Darfur Atrocities. The project is a joint effort with the search engine company and the United States Holocaust Memorial Museum.

While I appreciate the emotional power of pictures and maps, I doubt this will be an effective means by which to generate a political response to the genocide in Darfur. Google Earth images of the crisis in Darfur have been available since October 2, 2006, and little has been done to keep people in Darfur safe. See the post at Ogle Earth. The Google Earth Blog has details about today’s developments.

This is an interesting test of technology used to influence the body politic. So too is the way Google Earth is being used to visually document climate change. The application of space-based Earth observation to the debate is covered by New Scientist; subscribers also have access to the article, Will Google Earth Help Save the Planet.

There is historical evidence satellite imaging may be useful in framing political issues; the famous picture of Earthrise on the Moon’s horizon is credited by some with entrenching the environmental movement. Can a collage of photos do the same for an audience now inured to space-based imagery?

Even if Google Maps does nothing to sway political opinion, the projects might be an example of a new type of monument which resides only in servers creating the internet’s backbone. It remains to be seen if this sort of experiment in sentimental expression will take off in other computer applications – Second Life, for example – and if malleable online experiences can convey the meaning we associate with physical testimonies’ of the past.

I wish I could say this is original speculation on my part, but I need to defer to novelist Tad Williams. His Otherland series explores the possibility of using virtual worlds to create memorials to the past – in that case, the extinguished culture of African bushmen. Williams must be experiencing deja-vu today.

(Hat tip to Ed Eckel, a Science/Engineering Librarian blogging at World of Engineering. The world needs more librarian blogs. It might also need a new category tag; I seem to be writing a lot about monuments.)

Follow-up: The Frontal Cortex has an interesting look at the psychology of people who ignore genocide while it is happening.

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More on monuments

3,598 killed, 7,000 wounded, none unscathed.

Today is the 90th anniversary of the Battle of Vimy Ridge. It is a powerful element of Canadians’ national mythology, akin to Newfoundlanders’ patriotic memories of the Battle of Beaumont Hamel.

To honour the more than 15,000 Canadian soldiers who fought for 4 days to take Vimy Ridge, Canada’s built its largest monument. Zoom out from Google Maps’ satellite photo of the Memorial, imagine that green field ripped open by shells, and picture what it was like to climb out of muddy trenches to take machine gun positions with bayonets.

For a powerful personal account of that day, read the post by screenwriter Jim Henshaw. It includes a video that is not for the soft of heart – you will see brave boys and men cut down in grainy black and white.

If your taste runs to historical fiction, Jane Urquhart‘s novel The Stone Carvers is a story about the building of the Vimy monument which was today re-dedicated by the Queen and Prime Minister after a great deal of restoration work.

A stunning image of that memorial can be seen on the Veteran’s Affairs website. For historical context, see the Canadian War Museum and CBC’s In Depth article. For commentary, there is Michael Valpy opinion about the making of the Vimy myth.

However heroic the soldiers, the Great War was a profoundly stupid war born of nationalist ambition. The same cannot be said of the battles going on now in Afghanistan, which are more noble of purpose. There, the fight goes to the Taliban – who first came to attention in the West when they demolished the pair of monuments known as the Buddhas of Bamyan. More secular motives are behind discussions about what to do now with monuments in Iraq.

We make monuments to remember wars, and we make wars on monuments to control what they represent. In an unrelated post, I advocate a memorial be built to honour the sacrifice of Canada’s aboriginal peoples. Let’s not forget, though, that for Canadian soldiers this is not a happy time. Six of their number serving in Afghanistan were killed on the eve of the Vimy anniversary. I suspect they are, like me since the funeral of my grandfather, finding it difficult to listen to Taps.

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Moral judgements can make us uncomfortable, especially when making them public exposes us to criticism.

Philosophy professors see this all the time when students minimize their position by prefacing it with “It’s just my opinion, but…” – a conversational habit that is a pet peeve of mine.

Should we be surprised, then, when we stifle moral judgements which conflict with national allegiances? Citizens are protective of national pride, and sometimes, getting rid of the moral judgement means erasing episodes of history.

Here are a few examples of what happens when the weight of patriotic, historiographical taboo is hit by rude facts:

In each of these cases, a heroic national self-image is called into question by a moral judgement about a historic event. When confronted by the premise that killing civilians is wrong, face-saving requires we either deny civilians were killed or justify the killing as an exception to the rule.

Knowing this, I do not need to wonder much how people will react to my suggestion that we should build a monument honouring the victims of what some call a North American genocide.

This is not my idea. It belongs to Lawrence Paul Yuxweluptun, an artist in British Columbia. (His blog is not yet active.) He suggested the creation of a memorial during an interview with CBC radio’s Ideas, and I was struck by his suggestion that Canada make such a statement.

We usually see the exploration and settlement of the Americas as noble, heroic, and our shared heritage. We don’t see it as the coerced occupation of foreign lands by European invaders. Debates about whether or not this counts as genocide provide a good example of example of historical framing. I shan’t get into that debate except to point out that even if the intent to commit genocide was not present, the effect was largely the same.

Canada has never treated its aboriginal people very well. A decade ago, this was recognized by the Report of the Royal Commission on Aboriginal Peoples, which chronicled a heartbreaking history of assimilation and marginalization. Despite its recommendations, the scars remain – in large part because most Canadians can live their lives unaware of them.

That is why it is important to see these scars, and to know the magnitude of what was lost. This appreciation can go a long way to improve relationships with its First Peoples, because in Canada, nation-building has never really stopped. It takes national courage to look upon episodes of historic shame and be motivated to fix the resulting problems of the present. I’d like to think Canadians have such courage.

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