New Approaches to the Personhood in Law

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Tomasz Pietrzykowski and Brunello Stancioli

Introduction: Modern Challenges to the Concept of a Person in Law

At first sight it may seem that the legal language offers few concepts that are clearer and simpler than a person in law. It is used on a daily basis in statutes, rulings, treatises and textbooks in numerous fields of law and usually does not stir controversies. It suggests that at least its core meaning has to remain the subject of a widespread consensus within respective legal communities. There are some well-known problems but they concern rather borderline cases, such as the status of a human fetus, anencephalic newborns or – more recently – pre-implanted embryos created in the process of in-vitro fertilization. In reality, however, there are few concepts in the present legal vocabulary that are more vulnerable to revolutionary changes brought by the ethical debates following the advancements of science and technology. Many strands of the contemporary developments in biological, medical or computer sciences may present a challenge to our idea of personhood as an important part of conceptual and ethical assumptions underlying legal systems. Its potential consequences may profoundly affect the way in which the whole legal system is conceived, including practically all fields of legal regulation.

In contemporary legal thought we are used to regard a person in law as either a human being (whichever moments are specified as the beginning and the end of her legally recognized status) or organizational entities designated by the law as separate rights-holders – corporations, states, municipalities, churches and the like. On the other hand, everything that is not a person, the law considers as a kind of objects or things (with minor exceptions for such phenomena as energy, water or air that hardly fit the conceptual criteria of being a “thing”). In other words, one may be either a subject or a party of legal relations (a person) or merely their object (a thing). In this way, the legal distinction between personae and rei somehow mirrors the deeper and more general dichotomy of a subject and an object, permeating not only philosophical but also ordinary, commonsense thinking.

The dualist distinction between persons and things is well rooted in the history of legal thought and originated at least in the ideas conceived by Roman jurists. Nonetheless, it would be a serious mistake to assume that the meaning and scope of legal personhood, as we know it today, have been a stable and unchanging ingredient of the legal conceptualization of reality. On the contrary, it has gone through profound evolution making the contemporary legal concept of a person ← 7 | 8 → essentially different than it used to be in the past. For centuries, legal systems by no means recognized each and every human being as a person in law. What the legal language today refers to as a “natural” personhood of human beings was denied to large groups of people, such as slaves, newborns before their acceptance by their father, women, captives, non-citizens or convicts punished with the so-called civil-death penalty (such as bannitio in many old European laws) or declared “enemy of the Roman people” in the ancient Roman law.

So-called juristic personhood of organizational entities was even more historically contingent and varied depending on the local conditions of the given time and place. The very idea of a separate legal personhood emerged in late Roman law and was theoretically developed mainly by medieval canonists. Its point was to let some collective bodies such as e.g. church or religious orders act on its own behalf and be able to acquire and hold rights and duties legally detached from those belonging to particular individuals involved into its operations. Later on, however, it became one of the crucial legal tools facilitating the rapid development of market economy, massive industrial and commercial activities and the general social structure.

Due to its practical significance, the concept of juristic personhood has attracted enormous interests of the 19^th century legal scholarship, passionately debating the “nature” of such a person. Those debates have yielded a considerable number of competing theories, identifying juristic personhood either with a pure conceptual fiction or with a real entity, the actual substrate of which is a collective of people, their common will or shared property appropriated to pursue their goals. Nowadays, however, the interest in the general theory of juristic personhood has been gradually overshadowed by controversies concerning the scope and kinds of rights the organizational entities may and should be attributed. Every now and then, some disputable legal cases reinvigorate these controversies. An excellent recent example may be the famous Hobby Lobby case, in which the US Supreme Court was confronted with the question whether commercial companies, as juristic persons, hold constitutionally protected freedom of conscience (the Supreme Court answered in the affirmative).

However, setting historical details aside, one may say in a nutshell that the debates on the natural personhood focused mainly on the extension of the concept (namely, at which moment of biological existence of a human organism its recognition as a legal person should begin and end), while in respect of juristic personhood – they concerned mainly the intension (an essence or point) of the concept of juristic person. Out of those developments of both legal thought and legal regulations emerged the modern conceptual framework of legal personhood ← 8 | 9 → consisting of recognition of each human being from birth to death (defined as irreversible loss of brain or cardiac activity) as a natural persons in law and some range of private and public organizational entities as artificial juristic persons. This approach to personhood in law has become, however, the subject of a widespread (even if rough and sometimes only declaratory) consensus relatively recently. Hence, it would be a serious mistake to take it as an eternal and inescapable foundation of any conceivable legal order.

The lesson we propose to learn from such wider historical perspective is a deep skepticism over the belief that the concept of a person in law has in our times reached the end of its evolution and our current conceptual determinations are ultimate “one right answers” to all questions concerning legal recognition of personhood. Perhaps each epoch is tempted to consider its own basic moral and philosophical convictions as eventual approximations to the truth after the mistakes and superstitions of the past generations have been finally debunked. One of the guiding tacit assumptions of this book is the advice that we should be wary not to fall prey of this natural illusion making it difficult to notice and admit the contingency of our apparently self-evident suppositions. It would be utterly naïve to believe that our understanding of what it means to be person and how it should be reflected in the law will remain unchanged in the next fifty, hundred or two hundred years. Arguably, in view of the problems and perplexities of the idea of a person that may be identified even today, just by sheer examination of the current state of the scientific and philosophical discussions, such belief could be even qualified as more than utterly naïve.

The combined significance of the wide range of such problems and perplexities is rapidly growing. Biological sciences prove evolutionary continuity of consciousness and the presence of complex affective and cognitive processes in the minds of many non-human animals. It poses compelling questions of the proper legal status of non-human sentient creatures that until recently has been almost universally regarded as mere things. In recent years the claims for personification of at least some highly developed animals (such as chimpanzees or dolphins) have been noticeably transforming from the problem discussed by a bunch of radical philosophers into the question visiting parliamentary chambers and legal courtrooms.

Bioengineers are advancing technologies of creating organisms composed of genetic or cellular material derived from creatures of two different species. As a consequence many examples of viable inter-species biological chimeras or hybrids have been manufactured, including animals with mixed brain structures. Relatively limited scope of application of these technologies to create human-animal ← 9 | 10 → mixtures results more from ethical objections and developing legal constraints than purely biological obstacles. Nonetheless, some remarkable experimental results strongly suggest that, as a matter of principle, creating various kinds of human-animal chimeras and hybrids is attainable (even if many technical difficulties would have to be solved in an extensive experimental efforts). Irrespective of whether it will ever actually happen (to say nothing about whether it should ever happen), even today animals with admixed portions of human genome or tissue (including populations of neural cells) no longer belong to hypothetical Sci-Fi scenarios and became reality of many scientific laboratories all over the world. Arguably, it casts some fundamental doubts on the traditional criteria of human “natural” personhood that assume that there is a clear-cut, unbridgeable gap between human and non-human organisms (and consequently linking species-membership with the moral and legal status). It is not difficult to notice that the existing criteria of natural personhood are hardly reconcilable with the perspective of creating organisms of mixed human-animal genetic and phenotypical composition.