Law and Philosophy Library 119

Visa A.J. Kurki
Tomasz Pietrzykowski Editors

Legal Personhood:
Animals, Artificial
Intelligence and
the Unborn
Law and Philosophy Library

Volume 119

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Visa A.J. Kurki  •  Tomasz Pietrzykowski
Editors

Legal Personhood: Animals,

Artificial Intelligence and the
Unborn
Editors
Visa A.J. Kurki Tomasz Pietrzykowski
Clare Hall Faculty of Law and Administration
University of Cambridge University of Silesia in Katowice
Cambridge, UK Katowice, Poland

ISSN 1572-4395     ISSN 2215-0315 (electronic)

Law and Philosophy Library
ISBN 978-3-319-53461-9    ISBN 978-3-319-53462-6 (eBook)
DOI 10.1007/978-3-319-53462-6

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Contents

Part I  Identifying the Legal Person

1 The Troublesome ‘Person’....................................................................... 3
Bartosz Brożek
2 Legal Persons as Abstractions: The Extrapolation
of Persons from the Male Case............................................................... 15
Ngaire Naffine
3 Private Selves – An Analysis of Legal Individualism............................ 29
Susanna Lindroos-Hovinheimo

Part II  Persons, Animals and Machines

4 The Idea of Non-personal Subjects of Law............................................ 49
Tomasz Pietrzykowski
5 Why Things Can Hold Rights: Reconceptualizing
the Legal Person....................................................................................... 69
Visa A.J. Kurki
6 Animals’ Race Against the Machines..................................................... 91
Rafał Michalczak

Part III  Humanity, Personhood and Bioethics

7 Person and Human Being in Bioethics and Biolaw............................... 105
Laura Palazzani
8 From Human to Person: Detaching Personhood
from Human Nature................................................................................ 113
Denis Franco Silva

v
vi Contents

9 Are Human Beings with Extreme Mental Disabilities

and Animals Comparable? An Account of Personality........................ 127
Ana Paula Barbosa-Fohrmann and Gustavo Augusto Ferreira Barreto
10 Is Sex Essential for Personhood? Being “Halfway Between
Female and Male” From the Perspective of Polish Law....................... 141
Agnieszka Bielska–Brodziak and Aneta Gawlik
Introduction

As is well known among jurists, law has a special conception of personhood: corpo-
rations are persons, whereas slaves have traditionally been considered property –
‘things’  – rather than persons. This peculiar state of affairs has not garnered the
interest of legal theorists for a while; the theory of legal personhood has been a rela-
tively marginal topic in jurisprudence for at least 50 years. However, many recent
developments call for a theoretical investigation of this topic. Animal rights activists
have been demanding that certain animals be recognised as legal persons in various
countries. In some US states, so-called foetal personhood amendments – redefining
foetuses as legal persons for some limited purposes  – have been proposed and
passed. Moreover, technological progress heralds brand new conundrums: Could
and should autonomous artificial agents be endowed with legal personhood? How
should we relate to the prospect that interspecies – including human–animal – bio-
logical mixtures could be created in the future? All this demands not only adopting
appropriate regulative measures but also a serious reconsideration of the philosophi-
cal underpinnings of the legal conceptions of personhood. The contributors of this
book analyse and explain these recent developments.
The first part of the book, entitled ‘Identifying the Legal Person’, is focused on
putting the debates over legal personhood in context. In the first chapter, Bartosz
Brożek analyses legal personality against its historical background, showing how
the concept is used in different ways both in legal and moral debates. Ngaire Naffine,
on the other hand, shows how ‘person’ is used in legal contexts both to denote a
legal status – ‘the strictly legal person’ – and also, firstly, as the unit that underlies
methodological individualism and, secondly, as the composite of a set of legal rules
which make assumptions about human beings. This multifaceted nature of our
debates over personhood will be present in many of the subsequent chapters.
Susanna Lindroos-Hovinheimo looks at the privacy legislation of the EU and the
understanding of the legal person that underlies this legislation. An analysis of legal
individualism, Lindroos-Hovinheimo’s chapter ties in with Naffine’s distinctions
between the ‘strictly legal person’ and the person of methodological individualism
in an interesting way.

vii
viii Introduction

The overarching theme of Part II is the legal personality of animals. However,

while addressing this topic, the authors also analyse and criticise some of the main
assumptions that underpin the concept of legal personality. Tomasz Pietrzykowski
examines the strict dualism embedded in our categories of person and thing. He uses
nonhuman animals as an example of beings whose legal status could be changed
from things to ‘non-personal subjects’ – not quite legal persons but not quite things
either. He argues that such subjects should differ from traditional persons in that
they are treated as the holders of a single subjective right – the right to be taken into
account, i.e. to have their interests duly considered and balanced in all legal deci-
sions that may affect them. Visa A.J. Kurki addresses the question of the correct
definition of legal personhood in conjunction with the recent trials in New  York
concerning whether chimpanzees should be accorded limited legal personality.
Kurki claims that the trials are founded on a mistaken premise: legal personhood
cannot be equated with the holding of legal rights, because animals already hold
rights without being legal persons. Rafał Michalczak takes a rather different
approach, looking at how practical and economic reasons could lead to software
agents receiving the status of legal personality – and the rights associated with that
status – before nonhuman animals.
Attempting to establish the correct definition of legal personality raises a related
question: what is the relationship between being human, being a person and being a
legal person? Bioethical and biojuridical questions pertaining to humanity and per-
sonhood are discussed in Part III. As an introduction, Laura Palazzani discusses the
trends of ‘personism’, according to which personhood can be separated from
humanity, and ‘personalism’, which claims an intrinsic connection between these
concepts. Following Palazzani’s essay, Denis Franco Silva offers a critical examina-
tion of the idea that the personhood could be founded on an idea of human nature.
In their chapter, Ana Paula Barbosa-Fohrmann and Gustavo Augusto Ferreira
Barreto offer a somewhat contrasting view, arguing for an alternative interpretation
of Kant’s conception of personality that can include those in a persistent vegetative
state or with Alzheimer’s disease. In the final essay of the volume, Agnieszka
Bielska-Brodziak and Aneta Gawlik analyse an instance where humanity, legal per-
sonality and personhood are in an interesting relationship. According to Polish law,
a child’s sex must be determined as male or female before he or she can be issued a
birth certificate, and the child remains legally unborn until the certificate is issued.
This raises the question of whether the child only becomes a legal person after the
certificate is issued.
For the most part, the chapters are self-sufficient and can be read independently
of one another. However, we should mention a particular terminological point.
Many contributors coming from civil law jurisdictions use the phrase ‘legal subject’
or ‘subject of law’ when addressing legal persons, whereas such phrases may seem
odd to common lawyers. This usage dates back to Friedrich Carl von Savigny, who
introduced Rechtssubjekt as an umbrella term to denote both natural and artificial
persons, i.e. individual human beings and corporations. Apart from English, most
European languages have adopted ‘legal subject’ as a synonym for ‘legal person’.
However, some of the contributors maintain that these two phrases should not be
Introduction ix

used synonymously; Pietrzykowski, for instance, argues that animals should be

treated as ‘non-personal subjects’.
The essays represent both analytic and normative jurisprudence, though most of
the chapters are primarily analytic in nature. However, the aim of this volume is not
to argue for a single understanding of legal personhood. Rather, many of the authors’
positions stand in direct opposition to each other and rely on various theoretical and
philosophical traditions. The purpose of the book is thus not to settle the relevant
contemporary debates but rather to problematise the assumptions that underlie the
Western legal doctrines of personhood and to suggest ways in which our theoretical
categories could be built on firmer ground.
 Part I
Identifying the Legal Person
Chapter 1
The Troublesome ‘Person’

Bartosz Brożek

When a bioethical discussion touches upon the notion of the person it usually takes
the shape of an argument which has a decisive character, often in form of a simple
syllogism: one should not kill a person; X is a person; therefore: one should not kill
X with, in the place of X – according to the problem considered – terms such as
“nasciturus”, “someone terminally ill who has requested euthanasia”, or “someone
who’s life functions are maintained by medical apparatus” are employed.
On the other hand, one may also encounter such positions as that noted by Hugo
Engelhardt:
Not all people are equal. […] Not all people are persons. Not all people are conscious,
understanding and able to praise or criticise something. A foetus, a new-born, the mentally
handicapped, those in a deep coma  – are examples of people who are nonpersons
(Engelhardt 1996: 135–138).

One should note that Engelhardt does not question the syllogistic scheme above. He
rather rejects the validity of one of its premises i.e. that a nasciturus or someone
who is mentally handicapped is a person.
It is difficult to escape the uneasy feeling that something has gone terribly wrong
here. Too much seems to hang together with the definition of a person one embraces.
In what follows, I will try to show that the feeling is fully justified.

This paper is partially based on B.  Brożek, “The Notion of the Person in Bioethical Debates”,
published in (Stelmach et  al. 2010). This contribution was made possible through the research
grant ‘Naturalizacja prawa’ awarded by the National Science Center.
B. Brożek (*)
Department for the Philosophy of Law and Legal Ethics, Jagiellonian University,
Kraków, Poland
Copernicus Center for Interdisciplinary Studies, Kraków, Poland
e-mail: bartosz.brozek@uj.edu.pl

© Springer International Publishing AG 2017 3

V.A.J. Kurki, T. Pietrzykowski (eds.), Legal Personhood: Animals, Artificial
Intelligence and the Unborn, Law and Philosophy Library 119,
DOI 10.1007/978-3-319-53462-6_1
4 B. Brożek

1.1  From Mask to Theology

The notion of the person (Lat. persona) stems from the word prosopon. This term
referred to a mask in Greek (and Roman) theatre and its application in philosophy
came somewhat later since we cannot find any trace of it in Ancient philosophy
(Wiles 1991). It was initially utilised in Roman law but Roman jurists did not equate
the word persona with the word homo. One man could, from the legal perspective,
be many persons. As it was termed: unus homo sustinet plures personas. It func-
tioned thus so that persona identified (some) legal status of a man, independent of
their other statuses (Ball 1901: 78). Romans could thus be one person as a Roman
citizen, another as pater familias, yet other if they performed certain public offices.
It is not difficult to see why the word persona was so appealing in this context: for
the law, a man – depending on the legal context – wore different ‘masks’: as a sena-
tor, the head of the family, a praetor etc.
It was exactly the legal notion of the person which was utilised in Adversus
Praxean by Tertullian, a thinker who undoubtedly was aware of the basic notional
categories of the Roman law. In his exploration of the mystery of the Holy Trinity he
claimed that the Father, the Son and the Holy Spirit are different persons, although
one should acknowledge that each of the persons in the Trinity is one and the same
God (Tertullian 1973). This conceptual solution of the problems surrounding the
Holy Trinity was not accepted immediately however. It only came about in the fourth
century AD during a debate on the meaning of the Greek word hypostasis (Boethius
1918). The problem focused on in what way it was possible to express the fact that
the Holy Trinity was one and tripartite at the same time. The unity of the Trinity had
been express by saying that the Trinity is one substance (ousia, substantia), while the
tripartite nature had been captured with the help of the Greek term hypostatis. The
problem was that hypostasis, like ousia, was translated into the same Latin word,
substantia. In order to eliminate misunderstandings, the translation was altered to
subsistentia. However, by the fourth century this subtle distinction had fallen into
obscurity, a direct way to conceptual problems or even heresy. As a result, they
reverted to Tertullian’s notion of persona: it was formulated as God is one but in
three personae in documents from the Council of Alexandria in 362 AD.
However, in the sixth century the controversy arose once again. In his work
Contra Eutychen et Nestorium, Boethius introduced his own formulation – and per-
haps the most famous – of the definition of a person: persona est rationalis naturae
individua substantia: a person is an individual substance of rational nature (Boethius
1918). He explained that we “are related in this manner to what the Greeks called
hypostasis” (Boethius 1918). Boethius differentiated between the notion of subsis-
tence (essence) and substance. Subsistentia (essentia), related to the Greek term
ousia, refers to being which is not impaired (i.e., enjoys the so-called independent
existence). In turn, substantia (hypostasis) refers to being which may be the basis
for impairment (impairment may belong to it). A person (persona) is that substantia
which is individual and rational. In the conception of Boethius, man is simultane-
ously subsistentia, substantia and persona.
1  The Troublesome ‘Person’ 5

Meanwhile, God is a unified subsistentia but also three substantiae (and thus
three persons). Boethius highlights, however, that talking about the three divine
substances has been forbidden by the Church as it leads to certain heresies. What is
interesting in this consideration is that Boethius ‘inverts’ the traditional translation
of the Greek concepts. Normally ‘ousia’ is identified with ‘substantia’ and ‘hypos-
tasis’ with ‘subsistentia’.
The notion of the ‘person’ played, perhaps surprisingly, a minor role in Scholastic
ethics, largely remaining at the service of theology. Józef Bocheński noted:
There is no equivalent expression to ‘person’ in Aristotle, in his philosophy. It does not
feature yet this has not stopped him from becoming one of the greatest moralists in history.
In St Thomas Aquinas, the expression persona often features in dogmatic theology. Yet in
moral philosophy it appears only once, namely in his article De acceptione personarum. It
takes into account man in his personal relation to a candidate, not his value. It is the only
example in which St Thomas uses the expression ‘person’ in his ethics, which does not
prevent him from being a great moralist (Bocheński 1998: 130).

The close connection between the notion of the person and Thomism only fea-
tured with the twentieth century Personalists. This fact is important for two reasons.
Firstly, Personalism, even though it was not an official doctrine of the Catholic
Church, played a role in the conceptions of its representatives which is hard to over-
estimate. As a result, Personalism has become undoubtedly one of the most impor-
tant voices in bioethical discussions. On the other hand, however, it is important to
stress that the marriage of Thomism with the Personalist approach is, while at least
historically charming, artificial. For Boethius, the notion of the person had a techni-
cal character. Its introduction was indispensable in terms of Boethius’s great effort
of trying to unite Greek philosophy with Christian faith. It was not meant to – and
did not – play a crucial role in ethical discussions. Such a utilisation of the notion of
the person is much later. Put plainly, it became a reaction to different conceptions of
the person which have arisen in modern times.

1.2  The Early Modern Conceptions of the Person

At the forefront of these theories, two undoubtedly stand out: the conceptions of
Locke and Kant. In Essays Concerning Human Understanding Locke wrote: “we
must consider what PERSON stands for; which, I think, is a thinking intelligent
being, that has reason and reflection, and can consider itself as itself, the same think-
ing thing, in different times and places” (Locke 1961: 280). Locke formulates in this
passage the psychological conception of a person: the crux of personhood is the
ability to reflect and, in particular, to reflect on oneself and thus have a feeling of
identity in different times and places. This vision is fundamentally different from
the classical conception of the person. It is important to remember that Locke is one
of the main philosophers responsible for the “subjective turn” in philosophy, the
appreciation of the subject which Descartes undertook – more or less explicite –
with his fundamental ontological division of the res cogitans and the res extensa. In
6 B. Brożek

other words, in modern philosophy the person is not a psychophysical unity – the
person is a thinking subject, ego cogitans. Such an understanding of the person is
opposed by Kant in his Critique of Pure Reason:
By this I, or he, or it (the thing), which thinks, nothing is represented beyond a transcenden-
tal subject of thoughts = x, which is known only through the thoughts that are its predicates,
and of which, apart from them, we can never have the slightest concept, so that we are really
turning round it in a perpetual circle, having already to use its representation, before we can
form any judgment about it. And this inconvenience is really inevitable, because conscious-
ness in itself is not so much a representation, distinguishing a particular object, but really a
form of representation in general, in so far as it is to be called knowledge, of which alone I
can say that I think something by it (Kant 2007: A346).

Kant thus argues that the psychological definition of a person is inadequate since –
at the level of theoretical reason – any potential representation of the self already
presupposes a kind of personal identity, which is a form of cognition. Self is not a
representation but an empty idea, whose only role is to unify our inner experiences.
Things change as soon as one considers the practical reason. In the Metaphysics of
Morals he states that “A person is a subject whose actions may be imputed to him.
Moral personality is therefore nothing other than the freedom of a rational being
under moral laws (whereas psychological personality is usually understood as an
ability to be conscious of one’s identity in different conditions)” (Kant 1996: 6232).
In other words, for Kant the person is defined by the fact that she is responsible for
her own acts. This conception may be termed the ethical theory of the person. It is
worth emphasising again that it was developed against the backdrop of Kant’s meta-
physical project. As we know, Kant attempted to show that metaphysics  – at the
level of theoretical reason  – is impossible. He stated that in our cognition, such
notions as the world, the soul or God could correspond to no object. Those notions
played a role of the transcendental ideas whose task is to organise our experience.
Metaphysics is possible, however, on the grounds of practical reason and it was to
this sphere that the Kantian notion of the person belongs.
The above presentation of the three most important conceptions of the person –
the classical, the psychological and the ethical – shows that attempts to compare
these views abstracted from their general metaphysical background, from the very
foundation on which they were constructed, is a senseless task. One may not refer
to the classical definition of Boethius if one does not simultaneously accept the
metaphysics of Aristotle, which was structured by the ontological principles of
form, matter, cause and goal. The psychological conception is rooted in the funda-
mental separation of mind and body. Finally, the ethical conception is groundless
for those who ignore the basic Kantian distinction between theoretical and practical
reason. In other words, each of these three basic definitions of the person are accom-
panied by metaphysical baggage; accepting any of them commits us to a certain
view of the world.
1  The Troublesome ‘Person’ 7

1.3  The Contemporary Debate Over Person

The twentieth century debate over the notion of the person – broadly speaking – lies
between two positions. The first may be termed the descriptive and the second, the
axiological. The descriptive conception of the person stems mainly from analytic
philosophy, directly tied to the tradition of Locke, and defines the person according
to certain empirical (mental) criteria. In turn, the axiological approach places
emphasis on the fact that the person is a bearer of values. In this school, the posi-
tions are of the classical (mainly Thomist) and – perhaps more importantly – the
Kantian and neokantian origins.
One of the most famous examples of the descriptive theory of the person is that
proposed by Peter Singer. It defines the person as the bearer of certain mental attri-
butes: an ability to feel and understand, self-awareness and autonomy, the ability to
imagine oneself in the future, etc. These characteristics are not fulfilled by all peo-
ple – e.g. those who are in a coma. On the other hand, such an understanding of
personhood may be ascribed to some animals (e.g., non-human primates) (Singer
1975). A similar position has been expressed, already quoted in this essay, by Hugo
Engelhardt: “Not all people are equal. […] Not all people are persons. Not all peo-
ple are conscious, understanding and able to praise or criticise something. A foetus,
a newborn, the mentally handicapped, those in a deep coma – are examples of peo-
ple who are nonpersons” (Engelhardt 1996: 135–138).
Advocates of the descriptive conception of the person – at least those who are
engaged in a reflection of an ethical character – do not limit their deliberations to
such definitions. These definitions are used in ethical discourse. The descriptivists
claim that a person is someone entitled to certain rights whereas non-persons are not
entitled to such. For example, Singer claims, with the support of his conception of
the person, that in ethics and law it is necessary to reject the dichotomy of ‘human –
non-human’ and put in its place a division of ‘person – non-person’, in which rights
are ascribed to persons only. Singer’s theoretical manoeuvre is typical for the advo-
cates of the descriptive conception of the person. A ‘person’ is defined solely on the
basis of descriptive, psychological criteria, but then the definition is utilised norma-
tively, to decide legal and ethical controversies. Thus, the descriptivist approach
suffers from a kind of ‘methodological schizophrenia’: the notion of the person is
defined descriptively, but used normatively.
Another approach is offered by the advocates of the axiological conception of the
person. In this case, the ethical value of a person is ontologically prior and defines
personhood. In such a consideration, the person is independent of any contingent
mental attributes which stem from, for example, a serious impairment, or the stage
of personal development (foetus, infant etc). The axiological view of the person
may be ascribed to various contemporary philosophical schools, such as personal-
ism or neokantianism. Of course, their conceptions of the person differ in more or
less important aspects, but they share the conviction that the person is a bearer of
values and hence a moral agent, responsible for her actions.
8 B. Brożek

1.4  The Person in Law

As we have already mentioned, the notion of the person (persona) was introduced
for the first time in Roman law. It was a technical term which denoted a bundle of
rights. A human, in accordance with unus homo sustinet plures personas, could be
many persons. To this day the notion of the person in law (the physical person and
the legal person) has a technical character and is not connected with any concrete
philosophical content.
It is easiest to show this by analysing something key to the shaping of the con-
temporary law – normative acts. For example, from the Universal Declaration of
Human Rights we read:
Recognition of the inherent dignity and of the equal and inalienable rights of all members
of the human family is the foundation of freedom, justice and peace in the world. (…)
Disregard and contempt for human rights have resulted in barbarous acts which have
outraged the conscience of mankind, and the advent of a world in which human beings shall
enjoy freedom of speech and belief and freedom from fear and want has been proclaimed
as the highest aspiration of the common people. (…)
All human beings are born free and equal in dignity and rights.

It is easy to see that in this key declaration, the word ‘person’ never features. The
only exception occurs in the preamble to the Declaration in which (but only in the
English version) can we read that “the peoples of the United Nations have in the
Charter reaffirmed their faith in fundamental human rights, in the dignity and worth
of the human person”. In the official Polish translation, for example, the word ‘indi-
vidual’ is used.
The term ‘person’ is used only in a technical sense, in the Universal Declaration
as well as in other acts of international law. For example, the Convention for the
Protection of Human Rights and Fundamental Freedoms in 1950 refers to the right
of every human to life, clarifying that the deprivation of life will not be regarded as
contrary to the convention if it occurs as a result of the necessary use of force in
defending any person from illegal violence. ‘Person’ here is but an ‘empty slot’, a
place-holder for a proper name of an individual. This technical sense of ‘person’ is
utilised also in the famous Oviedo bioethical convention (convention for the protec-
tion of Human Rights and dignity of the human being with regard to the application
of biology and medicine). The term ‘person’ does not even feature in the title and
when it does feature in the text, it is in the technical legal understanding such as
when it refers to the consent that must be given by a person in agreeing to medical
procedures or when protecting a person who is not in a state to express such a
consent.
It may also easily be shown that legal regulations do not presuppose any concrete
philosophical view of the person. As an example, let us consider a section from the
Polish Civil Code. This code does not define what is a physical person. However, in
the first of the articles of Title II, “Osoby [Persons]”, in Article 8 kc, it states:
Article 8§1 Every human, from the moment of their birth, has legal capacity.
1  The Troublesome ‘Person’ 9

Legal capacity – which consist of a certain bundle of rights – is bestowed upon

every human from the moment of their birth. The capacity to perform legal acts is
different, as it is limited to people who turned thirteen and have not been incapaci-
tated. It follows that the capacity to perform legal acts does not constitute a subset
of the rights contained in legal capacity. The Code limits the capacity to perform
legal acts not only according to age but also in terms of mental illness or other kinds
of mental disturbance. These circumstances do not, of course, limit legal capacity.
An important anthropological presupposition is contained in the articles relating
to the declaration of intent, in particular Article 60 and Article 82 kc:
Article 60 (…) the intent of a person to perform legal act may be expressed by all
actions manifesting that intent in a sufficient manner (…)
Article 82 The declaration of intent made by a person, who lacks conscious or
free ability to make decisions and express their will, are to be regarded
null and void. This refers in particular to mental illnesses and other,
even lapsed mental disturbances.
We can see that, firstly, the use of the notion of the person in both articles has a
technical (legal) character. It stems from the understanding of the person which may
be reconstructed with the help of the above cited article of Title II of the Code.
Secondly, Articles 60 and 82 kc presuppose a certain thesis of what a human is. In
particular, a human being is capable of expressing their will in a free and conscious
manner. We should be aware, however, that the fact that someone is unable to
express their will (whether incidentally or permanently), does not mean they lose
their status as a person (in the legal sense).
One may therefore say that the notion of the ‘physical person’ does not corre-
spond with that outlined in the descriptive notion of the person (in the philosophical
sense). We should bear in mind that in the opinion of authors such as Singer or
Engelhardt, the person is an individual who possesses the ability to feel and under-
stand, is self-aware, has the ability to praise or rebuke someone. In the legal sense,
a man who does not fulfil these criteria remains a person (in the legal sense). On the
other hand, the provisions of civil law presuppose a certain “model” view of man.
Such a “model” is that of an adult and healthy person who has the ability to freely
and consciously express her will. It is obvious that this is in accordance with the
descriptive understanding of the notion of the person. In other words, the civil code
presupposes certain elements of the descriptive conception but not as criteria of
legal personality.
On the other hand, the meaning of the notion of the ‘physical person’ does not
correspond to the meaning of the notion of the person in the axiological conception
either. We should be aware that it is the civil law that ascribes a bundle of rights to
a ‘physical person’; the criterion for establishing personality is descriptive, and the
value is ascribed by the law. In particular, the notion of the ‘physical person’ cannot
be equated with the notion of the person according to the Personalists. The main
trend of Personalism rests on Thomist philosophy, in which a key role is played by
the principle of purpose (telos). As a result, Personalism regards a foetus as a per-
son, something which civil law does not. There do exist, however, legal regula-
10 B. Brożek

tions – such as the already mentioned declaration and convention of human rights as
well as some constitutions – which see a certain “original” value in man (e.g., dig-
nity). We thus have to do with the situation in which legal acts presuppose a vision
of man which is consistent with some theses of the axiological conception of per-
son. Once again, however, these aspects do not constitute a legal definition of a
person but rather are elements which make up the legal view of man.

1.5  The Ordinary Person

So far I have argued that there is no single, universally accepted philosophical con-
ception of the person. In philosophical discussions, competing theories of the per-
son exist, such as the descriptive and the axiological views. They stem from
fundamentally different presuppositions and often rest on historical accidents or
misunderstandings. Moreover, I have claimed that in law there appears a technical
notion of the person which does not correspond with any philosophical notion of the
person. As a result, the risk of equivocation arises, in particular in cases when we
mix legal and philosophical discourse. Law contains, to be sure, certain elements of
a view of man: some of them belong to the descriptive and others to the axiological
account of the person. All this leads to a methodological rule of caution: when
utilising the concept of the person, one needs to bear in mind its many dimensions,
both philosophical and legal.
However, the story of person does not end here. It is a notion that we regularly
use in ordinary language, usually understanding one another, even if no clarification
of what ‘person’ means is supplied. Some philosophers even claim that the concept
of the person is pivotal in the conceptual scheme underlying ordinary language.
Such authors as Gilbert Ryle (Ryle 2002) and J.L. Austin (Austin 1976) argue that
our way of speaking is based on a fundamental distinction between persons and
things; a distinction which goes so deep that it determines the very foundations of
our thinking about the world and other people. Thus, even if the philosophical con-
ceptions of the person are many and mutually incompatible, and the law uses the
term only in the technical sense, it is tempting to consider whether the category of
person cannot be ascribed a more stable and fixed meaning within the context of our
linguistic practices and cognitive activities.
In order to answer this question, it is reasonable to begin with the concept of folk
psychology. Generally speaking, folk psychology is the ability of mindreading, i.e.
of ascribing mental states to other people. A more detailed characterisation – albeit
not an incontestable one – has it that folk psychology is a set of the fundamental
capacities which enable us to describe our behaviour and the behaviour of others, to
explain the behaviour of others, to predict and anticipate their behaviour, and to
produce generalisations pertaining to human behaviour (Stich, Ravenscroft 1992:
457–459). Those abilities manifest themselves in what I call the phenomenological
level of folk psychology as “a rich conceptual repertoire which [normal human
adults] deploy to explain, predict and describe the actions of one another and, per-
1  The Troublesome ‘Person’ 11

haps, members of closely related species also. (…) The conceptual repertoire
­constituting folk psychology includes, predominantly, the concepts of belief and
desire and their kin – intention, hope, fear, and the rest – the so-called propositional
attitudes (Davis, Stone 1995: 2).”
One can also speak of the architectural level of folk psychology which consists
of the neuronal and/or cognitive mechanisms which enable ascribing mental states
to others. Importantly, this level is not fully transparent or directly accessible to our
minds – while we are able to easily describe the conceptual categories we use to
account for other people’s behaviour (at the phenomenological level), we usually
have no direct insight into the mechanisms behind mindreading. In psychological
and philosophical literature there emerged two kinds of theories pertaining to the
architectural level of folk psychology: the theory of mind (TOM) and simulation
theory (ST). According to the proponents of TOM, folk psychology is based on
often unconscious and automatic inferences about the target’s mental states. These
inferences take advantage of a tacit theory about the relations between mental states
as well as between mental states and behaviour. Until the late 1980’s TOM was the
leading theory of the architectural level of folk psychology. However, in 1986
Robert Gordon proposed a very different theory (Gordon 1986). According to his
radical simulationism, there is no need to propose an internally represented knowl-
edge structure to explain the phenomenological manifestation of folk psychology.
Instead of taking advantage of such a knowledge structure, the mindreader imagines
the world from the perspective of her explanatory target, or, in other words, she puts
herself in their shoes. When simulating another person’s behaviour, the decision-­
making mechanism of the one who simulates works off-line, and the generated deci-
sion does not lead her to behave accordingly, but instead it is ascribed to the
explanatory target.
There is little controversy regarding the biologically hard-wired nature of the
architectural level of folk psychology. However, the question of how it generates the
phenomenological level, and what exactly is the extent of culture’s influence on the
way we understand and explain the behaviour of others, is a matter of fierce contro-
versies. There is substantial evidence which seems to put into doubt the claim that
the phenomenological level of folk psychology is culture-independent and hence
universal. The capacity to mindread seems to be realised differently in different
cultures, and the standard understanding of the phenomenological level of folk psy-
chology assumed by many philosophers and psychologists is an artefact of the
Western culture.
For obvious reasons, the concept of a person is strictly connected to the phenom-
enological level of folk psychology, given that the latter constitutes the cognitive
apparatus which enables people to explain, predict and describe the actions of oth-
ers. Therefore, the question is, what is the view of personhood as encoded in our
folk psychology: does it differ from culture to culture, and if so – to what extent. In
his seminal paper, “Native’s Point of View”: Anthropological Understanding,
Clifford Geertz argues that the Western conception of the person – “as a bounded,
unique, more or less integrated motivational and cognitive universe, a dynamic cen-
tre of awareness, emotion, judgment, and action organised into a distinctive whole
12 B. Brożek

and set contrastively both against other such wholes and against its social and natu-
ral background” (Geertz 1974: 59) – is quite alien to other world cultures.
For example, he claims that the Javanese embrace a highly dualistic notion of the
self. The inner self (batin) is connected to the “felt realm of human existence,” while
the outer self (lair) consists of the external observable actions of the individual.
Crucially, both selves are independent of one another, even though the goal in both
cases is to achieve ordered life (alus) as opposed to kasar, a coarse and vulgar mode
of existence. In the Balinese culture, in turn, personhood has little if anything to do
with individualism. People are understood as actors in a kind of “grand cosmic
drama,” an it is where they find the source of their identity – in precisely scripted
social roles. Finally, Geertz describes the Moroccan concept of nisba, a term which
may be translated in different ways as ascription, attribution, imputation, relation-
ship, affinity, correlation, connection, or kinship. “Nothing if not diverse, Moroccan
society does not cope with its diversity by sealing it into castes, isolating it into
tribes, dividing it into ethnic groups, or covering it over with some common-­
denominator of nationality (…). It copes with it by distinguishing with elaborate
precision, the contexts – marriage, worship, and to an extent diet, law, education –
within which men are separated by their dissimilitudes, and those – work, friend-
ship, politics, trade – where, however warily and however conditionally, they are
connected by them” (Geertz 1974: 67). Moroccans are “contextualised persons”:
what it means to be a person is ultimately decided by concrete interactions.
All three cultures – Javanese, Balinese and Moroccan – utilise concepts of per-
sonhood which are substantially different from one another as well as from the
Western conception of the person. This shows the extent of the influence culture
exercises on our basic conceptual apparatus. The fact that the representatives of the
Western world see themselves as “bounded, unique, and integrated motivational and
cognitive universes,” does not mean that in other cultures the self is constructed in
the same way. The architectural level of folk psychology provides us with a frame-
work, which may be filled with different cultural contents. The concept of a person
buried deep in the underlying scheme of the ordinary English is by no means uni-
versal. It also transpires that there must be a kind of feedback loop between the folk
psychological (or ordinary) concept of the person and the philosophical theories of
personhood. On the one hand, the classical, the psychological and the ethical con-
ceptions of the person must have grown out of the ordinary understanding of the
concept: they simply represent the outcomes of theorising some aspects thereof. On
the other hand, however, over the centuries they have essentially influenced the way
we – the Westerners – understand ourselves.

∗∗∗
I hope that the above considerations show clearly that the concept of the person is
troublesome. It comes with different philosophical meanings; it serves as a technical
device in the legal discourse; and it can be associated with no unique and universal
cognitive contents. Under such circumstances, any attempt at providing a new, com-
monly acceptable definition of the person is destined to fail. Engelhardt and Singer
1  The Troublesome ‘Person’ 13

may stipulate that some human beings are nonpersons, while some non-­human pri-
mates are, but their strategy does not get us far. The concept of the person is deeply
rooted in culture; it brings to the fore differentiated, often mutually incompatible
connotations, and no definition can make those conceptual ramifications disappear.
On the other hand, it would be naive to suggest that in our ethical and bioethical
debates we should simply dismiss the concept of the person altogether. The reason is
the same as in the case of revolutionary, novel definitions: we belong to a certain
culture and are embedded in a long tradition of theorising about human action, and
hence no meaningful ethical debate can do without speaking of persons.
Our considerations lead to a different conclusion: when too much depends on some
unique, proper or ideal definition of a concept, the possibility of error looms large. We
should rather follow a sound advise of Karl Popper, who observed that no progress has
ever been made in philosophy, science or ethics through polishing our conceptual
schemes and developing well-formed definitions (Popper 2002: 15–30). The progress
is an outcome of tackling problems. Instead of asking, what is the proper definition of
the person, or whether a mentally handicapped individual or a bonobo count as per-
sons, one should concentrate on a different kind of questions, such as “Should coma-
tose patients be protected by the law and in what way?” or “Should non-human
primates be objects of ownership?” The important insight is that the answer to those
questions cannot be “Yes/No, because they are persons/nonpersons”.

Bibliography

Austin, J.L. 1976. How to do Things with Words. Oxford: Oxford University Press.
Ball, W.E. 1901. St. Paul and the Roman Law. Edinbourgh: T.&T. Clark.
Boethius. 1918. Liber De Persona et Duabus Naturis Contra Eutychen Et Nestorium. Cambridge,
MA: Harvard University Press.
Bocheński, J.M. 1998. Między logiką a wiarą [Between Logic and Faith]. Warszawa: Noir sur
Blanc.
Davies, M., and T.  Stone (eds.). 1995. Folk Psychology: The Theory of Mind Debate. Oxford:
Blackwell.
Engelhardt, H.T. 1996. The Foundations of Bioethics. New York: Oxford University Press.
Geertz, C. 1974. From the Native’s Point of View: On the Nature of Anthropological Understanding.
Bulletin of the American Academy of Arts and Sciences 28(1): 26–45.
Gordon, R. 1986. Folk Psychology as Simulation. Mind and Language 1: 158–171.
Kant, I. 1996. The Metaphysics of Morals. Translated by M.  Gregor. Cambridge: Cambridge
University Press.
Kant, I. 2007. Critique of Pure Reason. Translated by M. Weigelt. London: Penguin.
Locke, J. 1961. Essays Concerning Human Understanding. London: Dent.
Popper, K. 2002. Unended Quest. New York: Routledge.
Ryle, G. 2002. The Concept of Mind. Chicago: The University of Chicago Press.
Singer, P. 1975. Animal Liberation. New York: Random House.
Stelmach, J., M.  Soniewicka, and W.  Załuski (eds.). 2010. Studies in the Philosophy of Law.
Kraków: Jagiellonian University Press.
Stich, S., and I. Ravenscroft. 1992. “What Is Folk Psychology?” Cognition 50: 447–468.
Tertullian. 1973. Against Praxeas. Translated by P. Holmes. Grand Rapids: Eerdmans.
Wiles, D. 1991. The Masks of Menander. New York: Cambridge University Press, 1991.
Chapter 2
Legal Persons as Abstractions:
The Extrapolation of Persons
from the Male Case

Ngaire Naffine

The legal concept of ‘the person’ comes in different forms and is used in different
ways and in a variety of legal and disciplinary contexts. This creates a potential for
confusion in legal debates about persons, especially when the actual meaning and
usage of the term is not made explicit. Theorists can be talking at cross purposes but
not be aware of this fact. This chapter endeavours to introduce greater precision and
clarity to this conceptual field.
In previous work I have identified several usages of the term ‘person’ in law. The
dominant meaning of ‘the legal person’ in legal circles is the formal legal fiction of
the person: the person as formal autonomous (from other disciplines) legal fiction,
the ‘strictly legal person’, comprising rights and duties. This is a highly abstract
conception of the person. I have also noted that the legal person can be associated
with the idea of a human being as rational agent – as in the rational choice maker of
criminal law or contract law; that it can be linked with religious ideas of the human
being – as in the person as sacred being; and that it can be linked with the person as
an embodied human, but not animal, being. (Naffine 2009)
In this chapter I return to the idea of the person as abstraction, but now subject
this abstract concept to a more finely-grained analysis. I now suggest that there are
different abstract legal usages of the term that are more or less tethered to law. I
focus on three such conceptions. To get to the meaning of these three abstract con-
ceptions of the person, this chapter will not only give an account of their constituent
elements, but also consider the nature of the language games in which they are used,
who is playing them, to what end, and according to what conventions, and so what
is being claimed.1

1
 The idea of the language game was developed by Ludwig Wittgenstein in Philosophical
Investigations (1953).
N. Naffine (*)
The University of Adelaide, Adelaide, Australia
e-mail: ngaire.naffine@adelaide.edu.au

© Springer International Publishing AG 2017 15

V.A.J. Kurki, T. Pietrzykowski (eds.), Legal Personhood: Animals, Artificial
Intelligence and the Unborn, Law and Philosophy Library 119,
DOI 10.1007/978-3-319-53462-6_2
16 N. Naffine

When it is an acknowledged legal fiction, the legal person is arguably at its most
abstract and in its most legal form. It consists of shifting constellations of formal
and abstract rights and duties. This is the first abstraction of the person to be consid-
ered in this chapter, and perhaps the one with which lawyers are most familiar.
Assignment of rights and duties brings this abstraction of the person into being, but
always the fiction is acknowledged: that the person exists only by courtesy of law
and as a creation of law.
The second abstraction of the person I consider is more loosely tethered to law.
It is used by lawyers but it is also used by members of other disciplines especially
political and moral philosophy. This is the person as the basic component of analy-
sis: the person as basic irreducible analytical unit.2 It is the person who makes pos-
sible methodological individualism (to be explained below) and it is one of the
persons of liberalism.
The third abstraction of the person returns us to law and to its distinctive mean-
ings. This is the person as a composite of positive law. It is the person as legal pas-
tiche, consisting of the formal elements of any given law. In the case of criminal law,
for example, there are offence and defence elements, there are definition and inter-
pretation sections which build up a kind of person for the purpose of this law. These
elements, when examined carefully, endow the beings in question, those who are the
subjects and objects of a given law, with various mental and physical attributes.
Thus for example the legal elements of murder law or rape law, or of the offences
against the person generally, produce a patched-together physical and mental being,
with a certain type of body, certain appendages, certain physical abilities under-
stood in a certain way. This is a sort of a legal Frankenstein figure, which is recon-
stituted by law for each given law.

2.1  T
 he First Abstraction of the Person: The True Legal
Fiction

The true legal fiction of the person, our first abstract concept, is basic to legal train-
ing and legal thought. The legal fiction is an artificial device of law which is
employed for a variety of purposes. It entails a deeming of something to be true
which is known not to be true.3 The point of the deeming is to treat x as if it were y
in order to achieve a desired legal purpose. To wit, the legal fiction of ‘the personal-
ity’ of the corporation is a critical piece of legal artifice to achieve the ends of com-
merce: it is a necessary legal device which critically depends on a legal sense of
as-ifness. There is legal awareness of the fact that the corporation is not really a
person (that is a human being). But the device of corporate personality relies on the
idea that the corporation will be treated as if it were a person; and the person which

2
 In the manner of PF Strawson in Individuals (2002) law too tends to regard the individual person
as its irreducible primitive unit.
3
 On the legal fiction see Naffine and Neoh (2013).
2  Legal Persons as Abstractions: The Extrapolation of Persons from the Male Case 17

it is treated as being is also a construction, for human beings, as legal persons, are
equally constructions of law.4
The most authoritative account of legal fictions is still that supplied by Lon Fuller
in 1930. To Fuller legal fictions were ‘conceits of the legal imagination’ which can
‘effect their entrance into the law under the cover of such grammatical disguises as,
“the law presumes,” “it must be implied,” “the plaintiff must be deemed,” etc.’ As
Fuller makes plain, the legal fiction ‘is distinguished from a lie by the fact that it is
not intended to deceive.’ (Fuller 1930, 367).
Acknowledgement of falsehood is the essence of a legal fiction5 and this ability
to deem something into legal truth, for legal purposes, is the basis of its utility. The
governing idea is that in a certain legal context, for legal reasons, something will be
said to be true. Law will treat x as y, in this legal circumstance, in this relation, for
this reason, and we, as lawyers, are positively aware of and responsible for this
fabrication, this acknowledged fiction, which we employ for our acknowledged
ends – conscious of and responsible for what we are doing. As Lon Fuller pointed
out, when a true legal fiction loses its sense of falsehood, it dies as a fiction, and so
loses its legal sense and function as a fiction.
This use of the term ‘legal fiction’ therefore calls attention to the manufactured
nature of this legal concept. It reminds us that lawyers are responsible for this inven-
tion. And it also calls attention to the fact that there is a deliberate falsehood – a
treatment of something as legally true though empirically it may not be true. Its
empirical falsehood is noted and then deemed legally irrelevant: for legal purposes,
it will be true. Law is populated, in this view, by beings that are the positive cre-
ations of law. They are legal artefacts, created by the endowment of rights and
duties. As lawyers, we are all trained to view people in this way and there are impor-
tant reasons for retaining this legal outlook.
Thus conceived, the legal person is an artificial and chameleon legal entity rather
than a stable, solid fleshly being, or a creature of reason, or a religious being.6 The
person is a shifting constellation of abstract legal duties and rights, moving through
the virtual legal world of law – a virtual legal being, sometimes openly referred to
as a fiction. In a strictly legal sense, where there is a legal right or duty recognised
by criminal law, so there is a legal person, though if the rights are few, the person is
a weak one (Tur 1987). It also follows that we can be different legal persons, have
different legal characters, according to the way we are afforded rights and duties in
different relations and contexts. Our legal persons can enlarge or reduce; our legal
characters can be multiple or few. In some legal relations we can even be unper-
sonned, as was once the case for married women.

4
 The philosophical and legal concept of ‘as-ifness’ is propounded at length by H Vaihinger in The
Philosophy of As-If (1966).
5
 The corporation is neither human being nor a ‘person’, though it is called one in law: it is deemed
to have a legal existence as a legal person.
6
 This chameleon-like nature of the person is more fully described in Naffine (2003).
18 N. Naffine

2.2  T
 he Second Abstraction of the Person: As Unit
of Analysis and as Individual

Our second abstraction of the person is as an analytical device, indeed the basic unit
of analysis in much social theory, which permits social analysis to proceed and for
social theorists to appear at least to be talking to each other about the same thing. It
provides a common language for a basic term. This unit of analysis, often simply
called ‘the individual’, is shared by a number of disciplines: by philosophy, eco-
nomics, and indeed by all of the social sciences. It is an abstraction because human
differentiating detail is mostly missing. We are not dealing with men (as however
men are understood to be), nor with women and children; we are not dealing with
racialized humans; we are not dealing with someone whom we can recognise as a
particular being. Rather we are dealing with a very thin idea a human being, one
whose characteristic attributes have been abstracted out. They are just ‘an individ-
ual’. This idea of the person enables analysis within the social disciplines to pro-
ceed, as if there were a common unit. The method it permits is that of ‘methodological
individualism.’
Steven Lukes (1973), in one of the classic works on the concept of the individual,
explains that ‘methodological individualism’ treats the study of society as the study
of facts about individuals. As Lukes explains, this method ‘was first clearly articu-
lated by Hobbes’ and then ‘taken up by the thinkers of the Enlightenment, among
whom…an individualist mode of explanation became pre-eminent’. (Lukes 1973,
110) Different social theorists understood the individual person, thus invoked, in
different ways and also relied on different degrees of abstraction.
Man [sic] was seen by some as egoistic, by others as co-operative. Some presupposed the
minimum about his social context in accounting for his nature; others (such as Diderot)
employed a genuine social psychology. (Lukes 1973, 110, 111)

Those social theorists who thought it possible to analyse people knowing little
about who they were and where they belonged, also tended to think that the ‘indi-
vidual’ acquired ‘his’ [sic] nature before entering society. Such theorists were
employing a particularly abstracted conception of the individual, a being abstracted
from their place, from their sex, from their society. (Lukes 1973, 111) ‘The crucial
point’ about the abstract individual, according to Lukes, is that one could work out
his social and human needs without knowing too much about him, because human
social needs paradoxically were thought to precede society rather than being a func-
tion of that society or the person’s place within it.
This is the concept of the person – as individual, as unit of analysis – which tends
to be shared by law, political theory and moral philosophy and probably human
rights documents. It is not tethered to technical legal meanings of the term, to par-
ticular positive laws, and those who use it do not need to grasp those legal meanings.
But ultimately the term will have to be linked to positive law and those equipped to
make sense of it, once it gets to litigation or a criminal prosecution. It is the concept
most accessible to non-lawyers interested in the nature of persons, such as
2  Legal Persons as Abstractions: The Extrapolation of Persons from the Male Case 19

p­ hilosopher and ethicist Peter Singer.7 And it is the person of the social contract (the
‘persons’ who contract into this social agreement) and of moral rights. Indeed this
way of thinking about the individual is particularly associated with social contract
theory, which is basic to liberal law, and in particular with the political theory of
John Rawls (1971).
According to Lukes, the abstract individual is meant to be anyone but when
examined more closely turns out to be a certain type of person:
the (pre-social, trans-social or non-social) “individuals” involved here – whether natural, or
utilitarian or economic men – always turn out on inspection to be social, and indeed histori-
cally specific. “Human nature” always in reality belongs to a particular kind of social man.
(Lukes 1973, 75)

That is to say, the idea of an individual is not meant to refer to any particular type
of person, but in reality it does. Feminists have been making this point for some
time, that the abstract individual is in reality a certain type of man.8 As Carole
Pateman (1988, 221) explains:
Only men – who can create political life – can take part in the original pact, yet the political
fiction speaks to women, too, through the language of the “individual”. A curious message
is sent to women, who represent everything that the individual is not, but the message must
continually be conveyed because the meaning of the individual and the social contract
depend on women and the sexual contract. Women must acknowledge the political fiction
and speak the language even as the terms of the original pact exclude them from the frater-
nal conversation.

Pateman is making a complex point. The classical political idea of the free indi-
vidual depends on a dividing up of life into public and private/family in which
women are explicitly not individuals. The modern political idea of the individual
rests on the same division, and indeed repeats, this dividing up of life into public/
political and private in which the private sphere (most associated with women espe-
cially in their reproductive years) is not political. It is not a sphere of civic relations.
And yet the idea of the individual is now meant to speak to women directly and
women are supposed to apply this language to themselves.
Pateman is thus advancing a fundamental criticism of law and the social contract.
The liberal analytical unit of the person, she says, is meant to be neutral as to sex
and this neutrality is vital for the claims of universal application and fairness that are
made for and about him. Indeed, vital to classic liberal equality claims of law is that
this law applies to all persons, regardless of sex. But both Lukes and Pateman insist
that the liberal analytical unit of the individual has a concealed gender. I will return
to their arguments when I consider the politics of abstraction, later in the chapter.
When the term ‘person’ is exchanged with the liberal term ‘individual’ there is a
further connotation, which is also abstracting. For ‘individuals’ tend to be ­understood

7
 Peter Singer is perhaps best known for his analysis of persons in relation to the status of animals.
See his Animal Liberation and Animal Ethics (1975).
8
 See Naffine (1990) and Pateman (1988)
20 N. Naffine

as closed mental and physical units,9 as ‘bounded selves’,10 as separate and distinct
beings, and indeed the liberal idea of the autonomy of the person, so important to
liberal theory, tends to engage such an understanding of the human being. The stated
liberal priority and basic analytical unit is the separated human unit often said to be
possessed of ‘bodily integrity’ and to exercise and be defined by personal border
control: the individual does not intrude across the borders of other persons and the
individual has a fundamental right not to be intruded upon.
The person as individual unit, when employed by criminal lawyers in particular,
tends to invoke this bounded unit. Thus it is meaningful for criminal lawyers to talk
about the ‘offences against the person’, with the person understood as an autono-
mous being with a right to exclude others from their person. It may be openly
acknowledged that the term ‘person’ here, the unit of legal analysis, is a fiction, a
thought experiment, a generic someone imagined into being. Human beings do not
actually come in a neat enclosed form but this is what we are being required to
imagine. Often we are not aware of this sleight of hand. (Naffine 1997).
While it is true that the general category of offences ‘against the person’ employs
one type of abstraction of the person, as individual, already it is linked to technical
legal meanings. The ‘person’ within the ‘offences against the person’ typically is
said to mean a born alive and not yet dead human being, and not an animal.11 This
is the kind of human creature invoked by this term. But the term ‘offences against
the person’ also conveys something moral and generic about the nature of person-
hood: these are offences against our persons, against our selves as persons. This
sense of moral character of the person is present in liberal philosophical uses of the
concept as well. The most influential philosophical idea of a person still operating
within law derives from liberal political philosophy. We contract into society as
individual persons, as beings of moral value whose freedom matters. And so the
abstract unit of the person acquires some moral features which demand a moral
response from law.
A person, in virtue of being a person, deserves to be treated with dignity; and a person, in
virtue of membership of a liberal political community, is entitled to certain rights, reflective
of certain forms and standards of respectful treatment by the state when it seeks his or her
conviction or punishment. (Hock Lai 2010, 255)

The term ‘person’ at this abstract level can be used (linguistically and rhetori-
cally) interchangeably with ‘individual’, ‘human being’ and ‘citizen’.12 Indeed it is
designed for this general usage. We relate and are respected as ‘individuals’. We
participate in the political community as ‘citizens’. The term ‘person’ can also be
meaningfully used without reference to men and women ( a la Rawls) and indeed it
is considered morally and politically important that it can be so used, because it is
intended to be a fully inclusive term. It can thus also be meaningfully deployed

9
 Biologically and socially this is something which is simply false.
10
 This is a term coined by Jennifer Nedelsky (2012).
11
 See the born alive test and the brain death test of death.
12
 The term person can also connote the ability to reason of the individual or citizen, but it need not.
2  Legal Persons as Abstractions: The Extrapolation of Persons from the Male Case 21

without reference to the nature of ourselves as embodied beings or to our body

parts, for when we are embodied we become men and women; we are biologically
differentiated.
In criminal law, the strongest, broadest injunction of law, directed at persons, is
‘do not interfere with the person or the property of another person’, without their
consent. Integrity of the person and security of property are thus commanded and
protected. Even though this injunction necessarily refers to tangible beings and their
tangible things, there is something inherently abstracted/immaterial about the term
person, thus used. It tends to invoke the immaterial will rather than the body, as if
the two could be meaningfully separated, as if there could be one without the other.
The ‘person’ is anyone anywhere with any kind of human body: again a thought
experiment. And the person thinking about persons seems also to be thus abstracted:
we or they are thinkers, not men and women. So the subject and the object of theo-
ries of the person are abstracted. Again this enables analysis to occur as if it were
not talk or discourse about men and women and by men and women.

2.3  T
 he Third Abstraction of the Person: As Composite
of Positive Law

For the third abstraction of the person, we return to technical law which is not avail-
able to the public (without the assistance of a lawyer) nor to those outside the disci-
pline unless they make an effort to school themselves in law (and some distinguished
legal philosophers have done just this, Antony Duff and Tom Campbell to name just
two). This is the person who inhabits positive law and is a creation of positive sub-
stantive law and also of the laws of process and procedure. Again, one needs to
consider the nature of this language game, who is playing it, to what end, and
according to what conventions, and what is being claimed. The game is played by
lawyers (playing with lawyers). Political scientists, social scientists and philoso-
phers are now excluded from the game. Although general theories of the person and
their legal responsibilities are meant to be addressed to the public, this becomes
implausible as soon as we begin to consider persons within positive law. So the
general public is also out of the game.
This legal abstraction of the person is less commonly examined in legal analysis
of the concept of the person. The reason perhaps for this neglect is that this is the
legal person of insiders’ law: it relies on law which is meant to be available to the
public, and so known and discussable. But in truth this person takes their character
from law which is far too technical and variable to have any real meaning for the
public. In other words, this abstraction of the legal person is to be found in publi-
cally available laws, which are meant to inform the public and in fact warn and
guide them, but in truth this legal person must be interpreted and made sense of by
technically-trained lawyers. Both the public and the experts of other disciplines are
excluded from this term.
22 N. Naffine

The law is too technical for the lay person to grasp. The amateur, the non-lawyer,
the philosopher, will not be privy to this law. Nor will the general public. Even such
apparently simple injunctions as ‘Do not murder’ or ‘Do not rape’ which are directed
at us all do not engage with positive law, with its complex elements and its supposi-
tions about the person.
With this third legal abstraction of the person we are now descending into insid-
ers’ law, into the experts’ zones, where the law becomes incomprehensible to the lay
person. The language game is no longer open to non-lawyers. When ordinary peo-
ple, who are supposed to be addressed by law, actually find themselves in this legal
world, they will be lost and confused. The law student struggles with it. Acculturation
is required.13
To illustrate this third abstraction of the person in action, to see it at work, I sug-
gest that we now consider the serious offence against the person of rape, and its
constituting positive criminal law. As lawyers, we know that it is made up of specific
offence and defence elements, as well as sex/status conditions, references to the
body and its parts (as the specified part of a human being that is used to offend and
the part of the human being which is offended against) and so specific qualified
physical beings materialise. So too do the legal status conditions, limitations,
exemptions of the offence – which reveal that it is not in fact a general injunction
directed at all persons or individuals and their treatment of persons or individuals.
Rather it is generally directed at adult males, as they are legally understood, and
historically it has been directed at men who are not married to their victims.
This third abstraction of the person is confusing because it seems to be a com-
posite of real natural human beings and technical law. Thus with rape law, there is
legal specification of male or female sex, sex-specific body parts and their use.
There may also be specification of effects on the body: injury or harm. Here we have
the person turned into (law’s) sexual being (engaged in law’s definition of ‘sexual
intercourse’), injured and injuring being (and all of course as socially and legally
interpreted). Here we also have specific, even intimate, detail. The person of ‘the
offences against the person’ seems to turn into a certain type of man and woman.
And yet this being is still fully a product of posited law.
Within this posited law of the person of the offence of rape is to be found the
offence’s legal offence and defence elements as well as its exemptions (that is, the
persons to whom it is deemed not to apply). Most notably, here is the husband’s
immunity from the prosecution for the rape of his wife which persisted until late in
the twentieth century. Our legally posited defendant, as legal person, could not be
the husband rapist.
As this legal abstraction of the person moves from their evocation in positive law
of a given offence –as in the example I have given of the elements of the offence of
rape – to the operation and application of that law within a courtroom, we paradoxi-
cally move yet further away from the public and its meanings, (paradoxical because
the courtroom is meant to be a public forum, with justice being seen to be done). We

 On the manner in which criminal lawyers address fellow lawyers and legal officials, and not the
13

general public, in their analysis of law see Dan-Cohen (1983).

2  Legal Persons as Abstractions: The Extrapolation of Persons from the Male Case 23

now move into the deepest recesses of law and its understanding of persons which
is fully controlled by legal language users playing legal language games. And if we
locate ourselves in the court room, after the evidential and procedural work has been
done on the offence elements, then we are certainly not in the light, open to view,
with a real natural person spontaneously responding in public to a charge (as imag-
ined by interpreters of the trial such as Antony Duff (2007)). Instead we are dealing
with persons who have been thoroughly sifted through law. For example, the jury is
not privy to what is inadmissible. Only that which is sufficiently probative can fea-
ture in the courtroom. And the story of the alleged offence must be told in a legal
way.
This abstraction of the person – the person before a court of law – is presented as
most open and available to the public and yet this legal being is perhaps least acces-
sible to the layperson and non-legal scholar alike. This is now an utterly law-­
focussed and legally-manufactured person.
If we think of the attrition process of say ‘rapes’ and ‘assaults’ and ‘murders’
occurring in the world (perhaps popularly understood, that is the lay understanding
of these acts and events) to final conviction of ‘rapists’, ‘assailants’ and ‘murderers’,
we go from many to a few, certainly with rape, less so for murder. There is a strain-
ing or sifting such that it makes sense to think of the trial of the person as a distinc-
tive interpretation/reality and language game. But it is not played out in the open
according to rules which are generally understood. The opposite is true. By the time
someone is in the courtroom they have been thoroughly relocated into the world of
law. They have been legally processed twice. First they have been processed by the
law of the given offence, with which they have been charged. Their human thoughts
and actions have been turned into legal offence and defence elements. Then they
have been processed by the rules of court  – by the rules of evidence and
procedure.

2.4  The Politics of Abstraction

As we move between abstractions of persons, it is not, as perhaps might be thought

or implied, a continuum of more to less information about real human beings, as
abstraction is increased and detail disappears, or to invoke Vaihinger (1966) as more
is neglected, as if it were the one agreed-upon concept steadily having qualifying
parts removed – neutrally and impartially. It is not as if the information is correct or
neutral in its reporting of the person, only more or less detailed, as one moves from
usage to usage, from abstraction to abstraction.
Rawls’ concept of the individual, in conjunction with his veil of ignorance, for
example, might generate such an impression as it was intended to operate in such a
neutral way; it was intended to pare back the person to an individual without quali-
ties. (Rawls 1971) But as feminists and communitarians have shown, this person
24 N. Naffine

without qualities did have qualities.14 It is a false assumption that the concept of the
person neutrally acquires and loses details as abstraction is increased or diminished.
The process of abstraction is not like this. The concept of the person has particular
legal and moral and political work to do; it is symbolic and expressive.
The information which is both included and excluded (as abstraction varies) is
itself the outcome of a particular point of view or understanding, a particular lan-
guage game, a particular community of knowers and perceivers. This community
has its own preferences and particularities and nested assumptions. The process of
exclusion of information, as abstraction increases, is also a function of nested
assumptions and decisions.
The concept of the person is the product of a community of thinkers responsible
for this term and they address other like-minded persons within that community. It
is important to notice who has been responsible for the term: who is permitted to
play the legal language game at its highest levels. It has been a small circle of
socially-homogeneous men of great influence who, for most of the time that the
term has been in currency, have been talking almost exclusively to each other, while
striving and purporting to be writing about the general nature of persons and the law
in an objective manner, one which transcends their small place in the world. The
responsible community has its own language game and we should now consider
more closely who is playing the game, and why.
In Gerald Postema’s recent history of legal philosophy in the common law world
we are given useful extended portraits of some of the most influential members of
the community of philosopher-lawyers. (Postema 2011) Postema depicts a demo-
graphically constricted intellectual world populated by a small culturally homoge-
neous group of men,15 a male elite of rule makers and rule interpreters, located
within intellectual families of influence, often actively guarding its terrain,16 and
delivering its opinions to the like-minded.
The mode and level of abstraction at which these thinkers cast their concept of
the person (as well as the nature and content of that abstraction) is a positive funda-
mental decision calling for inspection, especially for the implicit decisions made
about where and how to pitch it. The level and nature of abstraction of the ‘person’
as individual, citizen, human being (all terms used by these men to invoke their
person) explicitly places men, women, adults and children, races etc. into a lower
level of detail or subcategories of the person, as if ‘the person’ makes sense without

14
 See the discussion above of Lukes and Pateman.
15
 As Postema explains: ‘Oliver Wendell Holmes Jr. . [was] born on March 8, 1841 to a family at
the center of Boston’s elite legal and literary society…an aristocrat’s overwhelming sense of duty
was woven deep in his character.’ (Postema 2011, 45) By 1897 he was ‘a prominent Boston lawyer
and judge of the Massachusetts Supreme Court – soon to begin a brilliant career as Justice of the
United States Supreme Court.’ (Postema 2011, 43) Roscoe Pound (1870), was ‘Dean of Harvard
Law School from 1916 to 1937, [and] dean of American jurisprudence for more than a generation
at the beginning of the century.’ John Chipman Gray (1839-1915) ‘was a friend and colleague of
the younger Holmes. A fellow Bostonian from a very successful legal family (his half-brother was
a Justice of the US Supreme Court) ’ (Postema 2011, 84)
16
 Dicey for one was opposed to the female franchise.
2  Legal Persons as Abstractions: The Extrapolation of Persons from the Male Case 25

a sex for example. The necessary implication of the decision to cast the person at
what appears to be a high level of abstraction is that the man-specific questions and
the woman-specific questions are made lower order or specific or sub-set matters:
matters of greater specificity and so not in need of attention. (This calls for justifica-
tion but it is not justified.)
With the person understood as ‘individual’ or ‘citizen’, gender is implicitly irrel-
evant: there is a Rawlsian assumption here. The practical effect is to put the man and
woman questions under the radar. By necessary implication, it is meaningful and
appropriate to have a generic universal person at the centre of general theory, and to
select terms which enable it to work linguistically: human, citizen, individual, per-
son. Theory can then proceed, (theory of the state, of the polis, of the community)
with this model of the person in place.
The effect of this abstractive decision, which is typically neither referred to nor
justified, is to render as lower-level subsidiary matters (and so also not in need of
general discussion), the deep gendering of the person by and at law.17 It also excludes
from consideration the profound human rights violations (profound by the standards
invoked by the same general law thinkers) which have ensued, and which have posi-
tively benefitted men and enabled them to organise the private and public world in
a certain gendered way. The legal absorption of women into the legal identity of the
man, ‘the unity principle’ of the English common law, most conspicuous upon mar-
riage, and operational in criminal law until the last decade of the twentieth century
(in the form of the husband’s immunity from rape prosecution) is arguably a matter
which goes to the very identity and definition of the concept of the person and the
postulated role of the person in the formation of the state and the rule of law. But we
are not offered analysis of the unpersonning of women, and what it might mean for
the concept of the person, because the abstraction excludes sex.
This substantial exception to the principle of universal personhood (the unper-
sonning of 50% of the population) suggests that the gender question might be fun-
damental rather than incidental or secondary to the definition of the person, even as
abstraction. It begins to look like a basic condition of personhood, being the right
sex. Whether it is or is not is simply placed outside the realm of discussion, defence,
explanation and reasons and so its placement is not tested. Gender can be placed
inside or outside the concept of the person as abstraction. It entails a positive deci-
sion, but there is a decision made, whether it is acknowledged or not. It might seem
to generate a problem of dividing the concept always into two in which case this
calls for consideration. Or it might require a discussion of what would make the
concept truly general and inclusive.
Those who have benefitted from the tacit mode of abstract analysis of the person
were, and are, men of influence, but their identities as men with a potential conflict
of moral and intellectual interest were not and still are not made explicit. Those who
might bring it into issue were the unpersonned: women. Even today women (and
other marginalised groups) remain largely outside, or on the edges, of the ­intellectual

17
 There is an extensive literature on the gender of the legal person. For an early account see Naffine
(1990).
26 N. Naffine

community setting up the problem of law and its persons: what it is to be a civilised
people with a civilised law.
At the end of the nineteenth century and well into the twentieth, influential legal
men were often candid about their sexism. They openly expressed their convictions
that women were an inferior people and so not full and complete persons.18 These
men were not thinking of women when they constructed their abstractions of the
person. Influential men’s positive conviction that women did not satisfy the condi-
tions of the person was supported with justifications that would now be regarded as
indefensible: women were deficient; they lacked the necessary capabilities for per-
sonhood. The concept of the person has this tainted history and it is likely that the
exclusion of women from the concept of the person was doing work for the general
theory of law.
This political tainting of the person operates within all the three modes of abstrac-
tion depicted above. That is, a certain political understanding of the person is to
found in all three, but more explicitly so, when we get to the legal abstraction of
positive law. We are then permitted to observe the criminal and permissible uses of
force by one group of legal individuals (men) against another group of legal indi-
viduals (women) in a manner which is anathema to the concept of the person under-
stood as universally-protected individual or citizen  – the person respecting and
respected person. The lawful use of sexual force against wives for most of the twen-
tieth century, which has been central to the offences against the person, in the form
of a legal exemption, is only evident when we examine positive law. Influential men
have not yet been called to give an account of their abstractions of the person, their
vested interests in its definitions, its gendered history, its significance for the forma-
tion of community and law, and its significance for their theories of law.

References

Dan-Cohen, Meir (1983) ‘Decision Rules and Conduct Rules’ 97 Harvard Law Review 625.
Duff, RA (2007) Answering for Crime (Bloomsbury).
Fuller, Lon (1930) ‘Legal Fictions’, XXV Illinois Law Review 363.
Hock Lai, Ho (2010) ‘Liberalism and the Criminal Trial’ 32 Sydney Law Review 242.
Lukes, Steven (1973) Individualism (Blackwell).
Naffine, Ngaire (1990) Law and the Sexes (Allen and Unwin).
Naffine, Ngaire (1997) ‘The Body Bag’ in N Naffine and R Owens eds Sexing the Subject of Law
(Law Book Co).
Naffine, Ngaire (2003) ‘Who are Law’s Persons? From Cheshire Cats to Responsible Subjects’
(2003) 66 MLR 346.
Naffine, Ngaire (2009) Law’s Meaning of life: Philosophy, Darwin, Religion and the Legal Person
(Hart Publishing).
Naffine, Ngaire and Neoh, Joshua (2013) ‘Myths and Fictions in PGA v The Queen’ Australian
Journal of Legal Philosophy 32.

 One of the most prominent and influential criminal legal thinkers and jurists of the nineteenth
18

century, James Fitzjames Stephen (1873) expressed precisely this view of women.
2  Legal Persons as Abstractions: The Extrapolation of Persons from the Male Case 27

Nedelsky, Jennifer (2012) Law’s Relations (OUP).

Pateman, Carole (1988) The Sexual Contract (Polity Press).
Postema, Gerald (2011) Legal Philosophy in the Twentieth Century: The Common Law World
(Springer).
Rawls, John (1971) A Theory of Justice (Cambridge, Mass, Belknap Press).
Singer, Peter (1975) Animal Liberation and Animal Ethics (NY Random House).
Strawson PF (2002) Individuals (Taylor and Francis).
Stephen, James Fitzjames (1873) Liberty, Equality Fraternity.
Tur, Richard (1987) ‘The Person in Law’ in A Peacock and G Gillett eds Persons and Personality
(Oxford, Basil Blackwell).
Vaihinger H (1966) The Philosophy of As-If (Barnes and Noble).
Wittgenstein, Ludwig (1953) Philosophical Investigations (Blackwell, Oxford).
Chapter 3
Private Selves – An Analysis of Legal
Individualism

Susanna Lindroos-Hovinheimo

3.1  Introduction1

This chapter analyses legal personhood in the European legal setting. The focus of
EU law used to be on economic integration and free movement but now, because of
the growing importance of human rights and the creation of EU citizenship, people
are gradually taking centre stage in Union law. There is subsequently increasing
need for enquiries into the European legal person. This chapter analyses ways in
which legal personhood is constructed in the Union. What kind of person is emerg-
ing in EU law?
The overall rationale of the research is an awareness of the often invisible work-
ings of law in relation to human beings. The law builds on some understanding of
what it means to be a person, but also influences conceptions of personhood, thus
creating subjectivities. This chapter focuses on the tension between individuality
and commonality embedded in legal personhood. Individualism sees man as pri-
marily an individual, a person with rights, or a unique autonomous agent. Hence
individualism, when understood as an ideology, sees the society and the law in an
individual-centred manner. This chapter tries to consider legal subjectivity without
a necessary connection to individuality.2 When asking whether a non-individualist
conception can operate in law, it finds in Western jurisprudence already hints of this.
It is possible for law to understand the subject according to a logic of community.
The chapter analyses privacy and personal data protection as examples of law
where the EU is currently engaged in defining what it means to be a person. Privacy

1
 An earlier version of some arguments put forward in this chapter has been published in Finnish
in Lindroos-Hovinheimo 2016a.
2
 For an alternative critique of individualism in the context of EU law see Somek 2008.
S. Lindroos-Hovinheimo (*)
Faculty of Law, University of Helsinki, Helsinki, Finland
e-mail: susanna.lindroos@helsinki.fi

© Springer International Publishing AG 2017 29

V.A.J. Kurki, T. Pietrzykowski (eds.), Legal Personhood: Animals, Artificial
Intelligence and the Unborn, Law and Philosophy Library 119,
DOI 10.1007/978-3-319-53462-6_3
30 S. Lindroos-Hovinheimo

and personal data regulation are rapidly developing areas that necessarily include
ideologically charged views of the relationship between individuals and communi-
ties. In these areas it is possible to recognise the tendency of modern legal thought
to emphasise unique persons and individuals’ rights. The chapter argues that the
increasing protection of the rights to privacy and personal data need to be balanced
with an understanding of legal personhood as embedded in community.

3.2  Critical Perspectives on Legal Personhood

The legal person is not a concept with a clear, real or true meaning, which jurispru-
dence could explain and lawyers use. It is a concept as any, that is, ambiguous, but
even more ambiguous than some because it is a concept that includes philosophical,
ideological and even biological connotations about what it means to be a human
being. But a concept void of precise meaning is not a concept void of influence – on
the contrary perhaps. The legal person, and its relative, the legal subject, are funda-
mental categories for Western legal thought. It is hard for lawyers to see how law
could operate without them. They have vital importance in organising the law; its
norms, institutions and practices.
The legal person is a concept that is used, that is, put to use in the law. It is not a
neutral instrument, but a productive one. Production here works in many directions.
The concept shapes the law and its operations most importantly when used to
include and exclude legal participation. Law has crucial effect on the society as it
upholds certain ways of understanding the person, while shutting out others. But
law, and the conception of legal personhood with it, are influenced by societal fac-
tors such as beliefs, values, policies and ideology. Law is politics legalised, and
politics is of course not neutral. This analysis of legal personhood attempts to reveal
its ideological embeddedness.
Existing theoretical approaches to the legal person can be roughly divided into
two main groups.3 In analytic theories the legal person is a pure, legal artifice. It is
a concept used by lawyers for lawyering purposes, and it is not real, nor does it
necessarily have to reflect anything in the real world. According to these concep-
tions, the legal person does not – and should not – depend on metaphysical or moral
presuppositions about human beings. The problems arising from these theories have
to do with how an empty concept like this can be of use in the actual practices of the
law. It is also worth asking whether the artificial legal person is really as pure a
concept as it is claimed to be. Is it not necessary that the category of the legal per-
son, as an instrument in organising legal life, gets filled with meaning that is not so
pure or neutral, thus necessarily gaining normative, moral, or even political signifi-
cance? It seems evident that some moral and metaphysical considerations – at least

3
 Inspired by Ngaire Naffine, although she distinguishes between three different theoretical posi-
tions. See Naffine 2003.
3  Private Selves – An Analysis of Legal Individualism 31

implied ones  – are unavoidable when the concept is brought to life in legal
argumentation.
The second approach can be called ‘essentialist’ in want of a better term.
Essentialist theories claim that the legal person has certain necessary characters.
They may be considered natural, ontological, or, especially in older versions, God-­
given. The legal person is here characterised through the morally relevant status of
being a human being.4 The problems related to this theoretical framework are differ-
ent than the ones related to analytical theories. What kind of argumentation is
required in order to define ‘the person’ by referring to the equally ambiguous
‘human being’? This is what courts are forced to do for instance in some human
rights cases, and the argumentation tends to become hesitant. Naturally so, because
a judge may understandably be reluctant to take upon himself the task of defining
what a human being is.
For the purposes of this chapter, which aims at a deconstruction of EU legal per-
sonhood, the essentialist framework is a helpful instrument. However, even though
it may be the approach that is more attentive to the values and ideological stakes
inherent in the legal category of personhood, this does not mean that it would auto-
matically be able to take a critical stance on them any more than the analytical
framework.
The position developed here argues that the legal person is not a pure, empty or
artificial category, but neither is it helpful to conceive it having essential character-
istics pertaining to ethics or metaphysics. Instead of describing what a legal person
is, we need to see how the category works in operations of the law and what is done
with it. The legal person takes part in the basic architecture of the law and is one of
the pillars on which legal thinking rests. And it is laden with ideological baggage.
Convictions about distribution of power, inclusion and exclusion, as well as assump-
tions about equality, democracy and rights are always attached to it. The framework
of this kind of enquiry needs to be critical legal theory.5

3.3  Privacy and Personal Data

I will analyse legal personhood in the context of privacy and personal protection
because this area of EU law is one where a lot of political will is currently focused.
It is also worth engaging with because privacy and personal data law reveals

4
 The above distinction between analytical and essentialist conceptions of legal personhood corre-
sponds roughly to another separation made in literature, that is, between legal person as status on
the one hand and the law’s picture of what a natural person is. Legal personhood as status is recon-
cilable with the analytic point of view, resembling the old meaning of person as mask. The essen-
tialists tend to focus more on what the law’s picture of the natural person is, and should be. See
Gadamer’s interesting discussion of subject and person in Gadamer 2000.
5
 The study takes part in the developing tradition of critical legal theory focusing on the EU. See
e.g. Editorial Comments in the Common Market Law Review 2015 for a description of various
forms of critique emerging in EU law research.
32 S. Lindroos-Hovinheimo

conceptions of personhood, while also producing them. However, when discussing

the right to privacy one is constantly in risk of trouble. Its meaning shifts, echoes
and turns in various directions. In legal literature it is occasionally seen as the most
significant articulation of individual freedom. Sometimes privacy is understood to
signify the opposite of public, but not always. Often it is connected with self-­
determination.6 Daniel Solove has developed a taxonomy of existing scholarly and
judicial writing on privacy where conceptions can be classified into six general
types: privacy as (1) the right to be let alone; (2) limited access to the self; (3)
secrecy; (4) control over personal information; (5) protection of one’s personality,
individuality and dignity; and (6) control over one’s intimate relationships or aspects
of life.7 Thus privacy, even in the legal meaning of the term, can refer to a myriad of
partially overlapping conceptions. Most of them are relevant for the understanding
of personal data as well.
Individuality is often recognised as important when considering what constitutes
breaches of privacy.8 According to Fuster, privacy protects either (a) what is private
as opposed to public or, (b) what is conceived as individual, personal, one’s own.
Even though privacy as a legal concept can be construed in opposition to what is
public, in its legal sense the term is often associated with the latter meaning, i.e. as
what is individual or personal. Privacy is connected with autonomy and the free-
dom to choose one’s own path in life. It is not rare that these notions are additionally
associated with human dignity and the right to self-determination.9 We see that sev-
eral complex ideas are interrelated and none of them can be understood separately
without their meaning becoming constructed through relations with each other.
However, it seems clear that privacy is one of the foremost legal instruments aimed
at protecting what is unique, personal and individual.10
The development of a right to privacy has long roots in the US. In their seminal
article published in 1890 Warren and Brandeis were among the first to understand
privacy as an independent and irreducible legal right that essentially amounts to the
immunity of the person. Privacy is defined by them as a general right to be let

6
 See e.g. Fuster 2014, 21–27. There have also been attempts to capture the meaning of privacy by
analogy to property rights. The idea is that personal information should be deemed a form of prop-
erty and others have no more right to use our personal information without permission than our
other property. This concept requires that we can see ourselves as having ownership to information
that is personal to us. The thought is problematic for several reasons. See e.g. Fromholz 2000, 464.
7
 Solove 2008, 12–13.
8
 However, problems arise from contemporary technological innovations that make it possible to
gather and process data about people and their behavior without individuals being identified. The
legal status of Big Data is unclear. See e.g. Gunasekara 2014, 148. For contrasting views on the
theoretical and practical efficacy of anonymization see Ohm 2010 and Yakowitz 2011.
9
 For a critical account of the liberalist understanding of privacy see Richardson 2016.
10
 Interesting arguments for a less individual-centred notion of privacy have been put forward by
for instance Priscilla M.  Regan, Kristy Hughes and Helen Nissenbaum. For an illuminating
engagement with this topic, see Roessler and Mokrosinska (eds.) 2015.
3  Private Selves – An Analysis of Legal Individualism 33

alone.11 This definition has been very influential not only in the US but in Europe as
well.
Even though the article may be ground-breaking in its conception of privacy as a
right, Warren and Brandeis find in the common law of their day already protection
of private matters. They advocate the new right to be formulated on the basis of case
law and legal principles that are already accepted as valid law.
The common law secures to each individual the right of determining, ordinarily, to what
extent his thoughts, sentiments, and emotions shall be communicated to others. Under our
system of government, he can never be compelled to express them (except when upon the
witness-stand); and even if he has chosen to give them expression, he generally retains the
power to fix the limits of the publicity which shall be given them.12

So what is the law actually protecting when it prohibits the publication of, say,
letters, diary entries or conversations without the person’s knowledge or will? What
is the value or the aim of granting everybody the right to keep their thoughts, feel-
ings, hopes and fears to themselves? According to Warren and Brandeis,
[…] The principle which protects personal writings and all other personal productions, not
against theft and physical appropriation, but against publication in any form, is in reality not
the principle of private property, but that of an inviolate personality.13

Privacy is here, as in so many other descriptions, clearly connected with the pro-
tection of an individual’s personality.
Even though the origins of a right to privacy may be found in America, the EU
has moved much further in regulating its protection.14 Especially important has
become the right to protection of personal data, which is fast becoming a very sig-
nificant fundamental right in the EU legal order. Also the terminology is different on
the two continents. Americans tend to use the term ‘privacy’ also where Europeans
discuss personal data protection. ‘Privacy’ has a broader scope, both in the US and
in the jurisprudence of the European Court of Human Rights. ‘Data protection’, the
term used in the EU, refers to the narrower issue of regulating the processing of
personal data, rather than of privacy in general.15 However, as the regulation and
case law of the European Court of Justice (ECJ) demonstrates, privacy and data
protection are also conceptually intertwined.16
American and European scholars debate the benefits of the two systems of pri-
vacy and data protection. The views reflect undoubtedly various economic or politi-
cal preferences. It has been argued, for instance, that American privacy law protects
individual liberty against the state, while European privacy law emphasises dignity
in interpersonal relations.17 Some scholars claim, however, that when it comes to

11
 Warren and Brandeis 1890, 193–220.
12
 Warren and Brandeis 1890, 198–199.
13
 Warren and Brandeis 1890, 205.
14
 See e.g. Fromholz 2000, 461–464; Solove and Hartzog 2014, 583–676.
15
 Fromholz 2000, 470.
16
 See Ferretti, Federico 2014, 843–868. Kokott and Sobotta 2013, 222–228.
17
 Whitman 2004.
34 S. Lindroos-Hovinheimo

information privacy, liberty is protected more in Europe than in the United States.
Especially in the context of antiterrorism data mining, European law may protect
liberty better than American law.18
According to the Personal Data Directive, which is still the main regulatory
instrument in this area of EU law, personal data means.
any information relating to an identified or identifiable natural person (‘data subject’); an
identifiable person is one who can be identified, directly or indirectly, in particular by refer-
ence to an identification number or to one or more factors specific to his physical, physio-
logical, mental, economic, cultural or social identity.19

The scope of protection is thus very wide because any information from which a
person may be identified is regarded personal data. The General Data Protection
Regulation (GDPR), which will apply from May 2018, maintains the main objec-
tives and principles of the Directive. The aim of the regulation is to provide increased
legal certainty through harmonisation and provide more efficient protection for data
subjects. There are of course also economic aims. The regulation aims at safeguard-
ing the free flow of personal data throughout the Union thus enhancing the develop-
ment of a strong single market.20 However, because of the many requirements that
the regulation places on the processing of personal data, it also shows genuine con-
cern for fundamental rights, as well as an attempt to catch up with the law in action
developed by the ECJ.21
The regulation defines personal data in a similar way as the Directive. Decisive
for data to be regarded personal is whether or not it relates to an identified or iden-
tifiable individual.22 Processing of such data is lawful according to the regulation
only if the data subject has given consent to the processing, or if processing is neces-
sary for some other reason that is specified in the regulation.23 The general idea is

18
 Bignami 2007, 612. See recent case law from the European Court of Justice, for instance Digital
Rights Ireland (C-293/12 and C-594/12, Digital Rights Ireland Digital Rights Ireland and Seitlinger
and Other) and Schrems (C-362/14, Maximillian Schrems v Data Protection Commissioner).
19
 Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the
protection of individuals with regard to the processing of personal data and on the free movement
of such data (OJ 1995 L 281).
20
 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on
the protection of natural persons with regard to the processing of personal data and on the free
movement of such data, and repealing Directive 95/46/EC (OJ 2016  L 119) (General Data
Protection Regulation).
21
 The ECJ has for some years been very active in interpreting privacy and personal data protection
cases in a manner that has strengthened their position as fundamental rights of the Union. See for
recent examples e.g. C–131/12, Google Spain SL and Google Inc. v Agencia Española de
Protección de Datos (AEPD) and Mario Costeja González; C-362/14, Maximillian Schrems v Data
Protection Commissioner. In the latter case the court reaffirms its view that the Directive must be
interpreted in light of the Charter: “It should be recalled first of all that the provisions of Directive
95/46, inasmuch as they govern the processing of personal data liable to infringe fundamental
freedoms, in particular the right to respect for private life, must necessarily be interpreted in the
light of the fundamental rights guaranteed by the Charter”, paragraph 38.
22
 Article 4.
23
 Article 6.
3  Private Selves – An Analysis of Legal Individualism 35

the same as Warren and Brandeis formulated: individuals shall be granted the right
to govern information about themselves.24

3.4  Protecting Personhood

Warren and Brandeis’s concern for inviolate personality is an aspect of the right to
privacy that is emphasised by many. In an influential article from 1964 Bloustein
wrote: “I take the principle of ‘inviolate personality’ to posit the individual’s inde-
pendence, dignity and integrity; it defines man's essence as a unique and self-­
determining being.”25 He argues that tort privacy cases involve the same interest in
preserving human dignity and individuality.26
The law’s responsibility to protect personality has been taken further after the
Snowden revelations, when arguments have been made that loss of privacy ends up
having dehumanising effects. It does so because privacy is intimately connected to
what it means to be an autonomous person. If someone else could have access to my
innermost thoughts, dreams and fears, they could start controlling them. Thus what
is at stake is not only my autonomy but my freedom too. There would be nothing
subjective about me anymore.27 Privacy is thus essentially linked to personhood.
It seems odd, however, that the right to privacy would be a guarantee for the
protection of our innermost selves. If it safeguards individual autonomy and there-
fore, the very core of our subjectivity, then the underlying assumption would be that
human beings can be completely autonomous, self-determining beings. Such an
idea has been argued against by various philosophers from Fichte to Freud, Foucault
to Derrida, and recently Žižek.28 Much more convincing is an understanding of
subjectivity where the individual and the social are linked. In Nancy’s elegant for-
mulation, being is always being-with.29
Arguments for better protection of privacy to safeguard the freedom of autono-
mous individuals entail an essentialist conception of the legal person. Understanding
breaches of privacy as threats to autonomy and selfhood are evidence of individual-
istic views of personhood. They presuppose an autonomous, even atomistic person,

24
 Whether the regulation will be an effective instruments whereby individuals are protected against
gathering of Big Data is debatable. Bid Data refers to data that is gathered and processed in mass
quantities combining various kind of information and analysed by computer algorithms. The indi-
vidual is not central to this process. If the individual’s right to control his or her personal data,
which is a guiding principle in the new regulation, can be used as a solution to problems Big Data
cause remains to be seen. For a critical account see e.g. van der Sloot 2014, 307–325.
25
 Bloustein 1964, 971.
26
 Bloustein 1964, 1005.
27
 See Lynch 2013.
28
 See Lindroos-Hovinheimo 2015 for a discussion of the heteronomous nature of the legal
subject.
29
 Nancy 2000, 57.
36 S. Lindroos-Hovinheimo

whose core is both unique and private. Why such views prevail may be better
explained when considering the context where they are uttered.

3.5  Individualisation as an Indicator of Modernity

Why has privacy and the protection of personal data become so important lately?
Perhaps the increasing emphasis on privacy can be understood when set against a
backdrop of fundamental features of late modern life. In Zygmunt Bauman’s socio-
logical analysis of modern society individualisation takes centre stage.
According to Bauman, society generally offers shared meanings and a liberation
from thinking about physical forces. In an Aristotelian vein he considers societies as
factories of meaningful life.30 There is a continuous and never fully quenched thirst
for life meaning. In modernity, where everybody is left with the task of creating the
meaning of their own life, people have been made responsible for themselves but
dependent on conditions which elude their grasp. There is no-one to blame if their
lives are not successful, not God, the government, or the party. Blame can only be
turned on the individual. Bauman sees the results in rising political apathy and the
colonisation of public space with the intimacies of private life.31
This development can be discerned in contemporary Western societies. The pub-
lic, the political and the common have lost meaning. Focus has shifted on the auton-
omous self’s own life story, which is often taken into the public space and made into
a topic, or occasionally the topic, of public discussion. Simultaneously with this
process we see rise of the right to privacy and protection of personal data.
Bauman sees individualisation today as a fate, not a choice.32 We are all cast as
individuals.33
Casting members as individuals is the trademark of modern society. That casting, however,
was not a one-off act like divine creation; it is an activity re-enacted daily. Modern society
exists in its activity of ‘individualizing’, as much as the activities of the individuals consist
in the day-by-day reshaping and renegotiating of the network or their mutual entanglements
called ‘society’.34

What is noteworthy of the late modern human condition is that the common
troubles of individuals are not additive. They do not sum up to form a ‘common
cause’.35 The individual is now more than ever the citizen’s worst enemy. Society,
commonality and political action have lost their importance. What people demand
of the public power, be that the state or some other authority like the EU, is to

30
 Bauman 2001, 2–3.
31
 Bauman 2001, 5–6.
32
 Bauman 2001, 46.
33
 Bauman 2000, 31.
34
 Bauman 2001, 45.
35
 Bauman 2001, 48
3  Private Selves – An Analysis of Legal Individualism 37

defend human rights, which basically means the right for everyone to live their life
as their please, that is, the right to be let alone.36
The concerns of individuals as individuals fill the public space. Such a develop-
ment is clearly visible in demands for privacy as they are voiced today. Claims for
privacy and personal data protection can hardly be seen as a common cause that
would bring people together as a political group. Understandably, in a world where
much power has escaped the grasp of political authorities, flowing with the global
currents of economy, there is growing disbelief that anything can be achieved col-
lectively or that collective action can make a real change. Belief in democracy has
decreased and subjects as citizens have become impotent. People are now above all
individuals, who understand their fears, concerns, aspirations and life choices as
their own private projects.
Bauman compares the modern society with a caravan site. The place is open to
everyone who has their own caravan and enough money to pay the rent. Guests
come and go. None of them tend to take much interest in the site or the way it is run.
What they mainly care about is that their allocated slots are large enough and other-
wise fill their needs and that neighbouring caravans do not make too much noise.
When the guests leave, according to their own itineraries and schedules, the site
remains much as it was before their arrival.37
What the drivers want from the site’s managers is not much more […] than the right to be
left alone and not interfered with. In exchange, they promise not to challenge the managers’
authority and to pay the rent when due.38

With this echo to Warren and Brandeis’ definition of privacy as a right to be let
alone, connections can be seen between the fate of the modern individual and the
increased requirements for stronger privacy and personal data protection.
What is not immediately visible in the caravan site metaphor is that the condi-
tions under which people construct their individual existence and which decide the
consequences of their choices are not in their own hands. People feel an urgent need
to master at least their life stories when they are losing control of the material,
physical and economic conditions of life.39 Lives lived and lives told are interdepen-
dent. The need to control lives told is reflected in privacy demands, as there is noth-
ing left for subjects to control but the narrative about themselves.
Increasing demands for privacy and personal data protection can thus be
explained as liquid modern tendencies. They can be interpreted as an indicator of a
wish to control life narratives. When more and more economic, social and political
power has slipped from the fingers of nation states and their peoples there arises a
juridical will to master what is left. Even though citizens may be impotent,

36
 Bauman 2001, 49; 2000, 35–36.
37
 Bauman 2000, 24.
38
 Bauman 2000, 24.
39
 See also Somek 2016, 63: “European Union law turns a blind eye to the link between individual
agency and its facilitating social conditions.”
38 S. Lindroos-Hovinheimo

i­ ndividuals still have a say in shaping their stories through administering the public-
ity of their personal life.

3.6  The Too Important Person

If privacy and personal data protection point to over-emphasis on the individual and
the personal in modern law, is there any alternative? The Italian philosopher Roberto
Esposito has analysed the category of legal person in a framework that provides
possibilities to think law otherwise. His main idea is that the law’s dependence on
the category of the person is problematic. In fact, the centrality of the concept of
person in legal thought leads to many of the failures that we associate with the law,
for example its impotence in protecting those who need it the most.40 Esposito also
argues that the category of legal person itself – and its importance in Western legal
thought  – functions as a conceptual hindrance to equality and democracy. These
arguments are highly relevant when considering the EU from a constitutional point
of view. It may be that the individualist, rights-centred tendency currently making
headway in EU law, as reflected also in privacy and personal data regulation, is con-
nected to the lack of a sense of community and democratic legitimacy.
According to Esposito, if there is one unquestioned assumption in contemporary
debate, it is the value awarded to the category of person.41 The person is the concept
by which correct discourse is legitimated in every discipline, be that philosophy,
theology or law.42 It is a given, some kind of axiom, and does not seem to require
any proof. Personhood is seldom the object of discussion or disagreement, nor is its
value questioned.43
Ultimately, Esposito’s worry is with the society, that is, with politics and democ-
racy.44 True democracy is not possible anymore. What we have nowadays is some-
thing else and that something else is built on a particular understanding of human
beings. Just as Bauman recognises the citizen being substituted by the individual, so
too Esposito argues that the human being is conceived as a person in the sense of
unique individual. On a general level this is evident in the way the life of individuals

40
 Arendtian rights-criticism can be discerned here. See Arendt 1958, 269–302.
41
 Esposito argues that no other term, leaving aside democracy, enjoys such success as person does
today. Esposito 2012a, 17–18. Esposito’s discussion of the category of the person is complex. He
recognises that there is no unified meaning of the term but it nevertheless produces certain effects
that can be explained, although perhaps not exhaustively.
42
 Modern classics of jurisprudence tend to recognise the centrality of persons in law. See e.g. Neil
MacCormick: “Even in the twenty-first century, one can still say rather as Gaius said twenty cen-
turies ago, that all law concerns persons, things and actions. Law imposes requirements on persons
about their conduct. It does so also with a view to protecting persons from the misconduct of others
[…] The obvious starting point […] is persons.” MacCormick 2007, 77. Hans Kelsen is one famous
exception as his theory does not focus on persons.
43
 Esposito 2012b, 1.
44
 See on the importance of Esposito’s work for legal thought e.g. Amendola 2012, 102–118.
3  Private Selves – An Analysis of Legal Individualism 39

and populations has become fundamental to the most important political decisions
today.45 The legitimacy of politics is measured through the concept of life, as was
already argued in Foucault’s analyses of biopolitics. And life is understood in refer-
ence to living or dying individual bodies.46
Esposito’s thinking of the person needs to be read in the context of his political
philosophy.47 He sees the move towards an increasing focus on persons as a move
away from democracy. The ideological underpinnings, the concepts and the very
logic of democratic rule do not fit the biopolitical thinking of today.48 Why so?
Because democracy concerns a totality of equal subjects, not individual bodies.
Esposito’s concern with lack of equality is perhaps best understood against the
backdrop of his discussion of immunisation. In biomedical language immunity
means an exemption from, or protection against an infectious disease. In law it
refers to a position outside and beyond common law.49 What unites both of these
meanings is immunisation as a situation that saves someone from risk. For
Esposito, community50 and immunity are in fundamental opposition. Immunity is
the opposite of community.51 Community is affirmative, whereas immunity is
negative. Community is characterised by a responsibility of care for one another,
from which immunity creates an exemption. “Immune is he or she who breaks the
circuit of social circulation by placing himself or herself outside it.”52 Where com-
munity is built on something common or shared, immunity refers to particular
exceptions.
Esposito argues that immunitary dispositif has spread from biomedics and law to
all sectors and discourses of our lives. This has happened to the extent that immu-
nity has become a major feature, both real and symbolic, of contemporary exis-
tence. Today we are more than ever concerned with the preservation of life and we
understand it according to the logic of immunology. Having moved from the ­medical

45
 Esposito has discussed the issues of life and the politicisation of biology in many of his works.
We can see that his thinking is associated with that of Foucault, Agamben and Deleuze, among
others. See a general introduction to this theme e.g. Campbell 2006, 2–22.
46
 Esposito 2008, 642–643.
47
 Especially relevant here are Esposito 2013a, b.
48
 ‘Biopolitics’, as it is understood here, focuses on biological factors, especially the unique and
singular body as well as life understood in a biological sense. See e.g. Lemm 2013, 1–13.
49
 Esposito 2013a, 58.
50
 Community or ‘communitas’ refers to being-in-common or being-together. “Community is situ-
ated neither before nor after society. It is neither that which society has destroyed […] nor the
objective that society must set for itself [...] Nor is it the archaic locus whence individuals originate
and that they have abandoned: this for the simple reason that individuals, insofar as they are indi-
viduals and aside from their being-in-a-common-world-with-others, do not exist.” Esposito 2013a,
25. Other 20th Century social philosophers have developed similar conceptions of commonality or
being-in-common. See e.g. Loidolt 2016, 42–55 for an explanation of Arendt’s conception of the
“we”.
51
 Esposito 2013a, 58.
52
 Esposito 2013a, 59.
40 S. Lindroos-Hovinheimo

field to the sociocultural, this logic is everywhere.53 Western democracies are

increasingly immunitarian. In this development community, democracy and equal-
ity have lost their hold. What counts more than community is the protection of
unique living bodies.54
Esposito’s thesis is that when the idea of immunity is carried past a certain
threshold, it becomes a risk itself. Instead of protecting life, it starts negating it. The
meaning of our collective existence gets lost. Those encounters with others and the
outside that a community consists of disappear. Community is conditioned on open-
ness, whereas immunity is an activity of shutting out and closing in.55 Also, because
of its underlying individualistic and particularistic assumptions, the process of
immunisation is incompatible with equality.56
The logic of immunisation illustrates the threat that ever-increasing demands for
protection of privacy and personal data pose. Instead of protecting lives in common
and existences shared, privacy regulation includes anti-communal elements. What
the right to privacy is meant to do is to guarantee a degree of immunity. It provides
individuals protection against unwanted gazes either from other members of the
society, or from the government.
The critical force of Esposito’s thought lies in his attempts to reveal the ways in
which the political functions and to rethink political operations in contemporary
societies. The category of legal personhood is intertwined with these. Ultimately,
his understanding of impersonality carries the strongest normative potential for
rethinking law’s persons.

3.7  Persons as Subjects of Law

There is a strong tendency in law to tie together the category of person and funda-
mental rights. We combine rights in general and life understood as something par-
ticular with the help of the category of the person. This is a theoretical way to found
human rights. Still, it is evident that all human life is by no means actually protected
in law. Even the right to life is not really guaranteed in the world today.57
The problems connected with the ineffectiveness of human rights are sometimes
pinned on the fact that the category of the person is not wide enough. If only the
concept of person – and the legal person with it – would be made more inclusive,
problems could be solved, the idea goes. Alternatively, we notice that in practice the
category of the person has only limited applicability when it comes to quantity and
imprecise applicability when it comes to quality. Here the critique stems from

53
 Esposito 2013a, 59.
54
 See Campbell and Luisetti 2010, 115.
55
 Esposito 2013a, 60–61.
56
 Esposito 2008, 643–644; See Campbell and Luisetti 2010, 111, 114. See also Esposito et  al.
2010, 85–86.
57
 Esposito 2012b, 2–5. See also Esposito 2008, 18.
3  Private Selves – An Analysis of Legal Individualism 41

observing political and legal practices and noticing that the concept of person is not
applied in satisfactory ways.58
Esposito disagrees with these reactions to the failure of human rights. According
to him, it is the category of the person that is at the heart of the problem.59 Its scope
should not be broadened, nor its applicability re-approximated. Rather, the whole
concept has to be rethought.
[…] the essential failure of human rights, their inability to restore the broken connection
between rights and life, does not take place in spite of the affirmation of the ideology of the
person but rather because of it.60

The person does not unite right and life. It is rather the case that the category of
person produces their separation.61 This idea is focal for our critical investigation of
legal personhood.
For Esposito, over-emphasis on the person is problematic. He introduces instead
a way of thinking that takes the impersonal as a central category. The impersonal is
not to be understood as the opposite of person, but that which stands before or after
the personal subject. The impersonal is that element of personhood, which stops the
immune mechanism.62 So the impersonal is not something outside the person,
something completely alien to personhood, but that part of the person that includes
an element of generality, anonymity and being-in-common.
Esposito takes inspiration from Simone Weil in an attempt to perceive the person
in a profoundly novel, impersonal way. Weil does not describe impersonality in
much detail, but Esposito develops the idea by comparing the first two personal
pronouns with the third. The third person, he or she, is categorically different from
I and you. When I speak I am occupying the position of the subject in relation to
you. You assume the role of a listener. These positions are reversed during a conver-
sation, where the roles of speaker and listener continuously change. But only one
can occupy the role of the I at any moment and the I is the only subject. Hence the
role of the subject is passed back and forth in the exchange. The I is the subject who
always desubjectifies the other person (you).63
If this is the case, then what is a third person? The third person is what escapes
the movement of subjectification.64 He or she is never the name of a subject. The
role of the third person is that of a non-personal person. He or she is somebody, but

58
 That is, human rights do not apply to all and they are too vague to have enough force in
practice.
59
 Esposito 2012b, 2–5.
60
 Esposito 2012b, 5.
61
 The relationship between singularity and generality is of importance here. The category of the
person entails a complex logic of separation and unity. The singularity of a life is not ascribable to
an individual. It derives from differentiation that produces the individual or the person. The indi-
vidual or person is the derivative of an impersonal singularity which is never the same as an indi-
vidual. See Langford 2015, 201–202.
62
 Esposito 2012b 102.
63
 Esposito 2012b, 104–106.
64
 Esposito 2012b, 104–106.
42 S. Lindroos-Hovinheimo

that somebody is anybody and does not occupy the position of a speaker or actor. He
or she is never the unique subject who utters something to somebody in a particular
dialogue but an anonymous whoever (see also Lindroos-Hovinheimo 2016b). The
third person is simply a name we give to someone who is not occupying the role of
subject.
Law does not only utilise one rigid or unambiguous category of personhood, but
legal operations, especially when expressed in the discourse of rights, nevertheless
tend to revolve around unique and particular individuals. The third person can be
developed as a contrast to the individual person of liquid modernity. A view of the
legal person as an impersonal anyone may alleviate a return of the citizen as the
fundamental category of legal thought. This is not only preferable, but the law
already has certain features that show the logic of impersonality at work.

3.8  Common Law of Private Matters

Even though privacy and personal data protection may seem to reveal very individu-
alist notions of legal personhood, their nature as law introduces tensions into a
purely individualising logic. The values of autonomy, identity and self-­determination
in their legal form include a communal aspect, which is further emphasised when
their protection is enacted in institutionalised legal instruments. A hint of this is
discernible already in Warren and Brandeis’s article when they note that the law
does not protect feelings:
On the other hand, our law recognizes no principle upon which compensation can be
granted for mere injury to the feelings. However painful the mental effects upon another of
an act, though purely wanton or even malicious, yet if the act itself is otherwise lawful, the
suffering inflicted is damnum absque injuria.65

To a large extent, this still holds. Even though justice requires respect for the
individuality of each person and every unique case, the law is common and needs to
operate in rule-bound ways with general concepts.66
Generalisation of personal experience is occasionally visible for instance in the
case law of the European Court of Human Rights. The judgments of the court
always require a careful consideration of the facts of the case. Decisions on how to
balance the right to privacy (ECHR Article 8) with for instance freedom of expres-
sion (as guaranteed by Article 10) is done on a case-by-case basis. Still, every judg-
ment includes a test of social adequacy. The individual’s situation is analysed
through the lens of public morals or reasonableness within the community, or some-
times states’ public policy goals. Singularity and individuality are necessarily con-
textualised and generalised in law.
Jill Marshall has developed a view of human rights law where the law accom-
modates a view of persons not simply as autonomous, but as embedded in societies.

65
 Warren and Brandeis 1890, 197.
66
 Lindroos-Hovinheimo 2012.
3  Private Selves – An Analysis of Legal Individualism 43

In fact, personhood and identity are never developed or conceivable alone or in

isolation. The law does not need to entail a solipsistic, atomistic view of the person.
Already the Universal Declaration of Human Rights acknowledges that everyone
has duties to the community, in which only the free and full development of person-
ality is possible. Thus human rights law did not even in its earliest instantiations see
personality only in an individualistic way.67
Human rights law aims at safeguarding and developing human dignity and the
freedom of everyone. It does not, however, expect people to develop their personal-
ity or exercise their freedom alone but in a community with others. Dignity and
freedom refer also to political and social rights, that is, the second wave of human
rights. The values of autonomy, identity and self-determination in their legal form
include a communal aspect, which is further emphasises when their protection is
organised through institutionalised law. So the individual, and his or her private life,
is communal.
It is noteworthy that privacy is not open to subjective definitions.68 People are not
free to choose their own meaning of privacy, nor dictate the scope of their private
sphere.69 The law defines when privacy has been breached, not the individual. The
task of a court is to find a common ground and develop a general understanding of
what counts as breaches of privacy.
Even though the right to privacy and personal data protection are instruments by
which the individuality of persons is safeguarded  – as well as continuously pro-
duced – the fact that they are legal instruments disrupts the contemporary logic of
individualisation and pushes it towards more communal meanings. This double
bind, where the right to privacy takes part in the production of individualism at the
cost of citizenship but simultaneously comes with references to community and
commonality, produces a tension at the heart of privacy law.70 Here Esposito’s
notion of the third person fits well. It enables recognition of both individuality and
commonality at play in the law.

67
 Marshall 2014, 8, 13.
68
 A contrary and worrying development may have been initiated by the ECJ in Google Spain. The
Advocate General stated that the meaning and scope of privacy cannot be open to the subjective
interpretation of individuals but the ECJ left this matter open. C–131/12, Google Spain SL and
Google Inc. v Agencia Española de Protección de Datos (AEPD) and Mario Costeja González.
69
 Even though the legitimate expectations of individuals may be relevant when potential breaches
of privacy are assessed. See e.g. the judgement of the European Court of Human Rights Peck v
United Kingdom. Reference (2003) 36 EHRR 41; [2003] EMLR 287, paragraphs 62–63.
70
 On the underlying values of privacy and personal data protection, as well as their significance as
means for self-determination and the common good see also Tzanou 2013, 88–99.
44 S. Lindroos-Hovinheimo

3.9  Conclusions

The arguments put forward in this chapter are not aimed at showing that there is
something very wrong with European law. Rather, the law is considered as an indi-
cator of society. A critical legal theorist’s perspective has been used in an attempt to
reveal the ideological foundations of the legal person, and to analyse ways in which
personhood is constructed in EU law.
The chapter has focused on privacy and personal data protection as the specific
area for questioning legal personhood. It has claimed that increased demands for the
protection of privacy and personal data are symptoms of an individualist view of
legal subjectivity. Current regulation of privacy and the political pressure to increase
personal data protection in the EU attest to the prevalence of individual-centred
ideology.
In the rise of the individual and the demise of the citizen, the public space has
become increasingly individualised. The process of individualisation has created
the need to both share and control personal information. This development corre-
sponds with enhanced privacy demands. Founded in the conception of a right to be
let alone, privacy and personal data protection indicate the on-going casting of per-
sons as individuals responsible for their life meanings. It reflects increasing political
apathy, loss of faith in democratic processes and the globalisation of power struc-
tures beyond the grasp of traditional forms of government.
Privacy and personal data protection can be understood as instances of immuni-
sation. They carry risks when taken too far because immunisation undermines com-
munity and shared, collective meanings. The reading of Esposito put forward here
sees a possibility of escaping immunisation and the individualistic tendencies of the
law by reconfiguring the legal person as a third. The idea of the third person can lead
away from an individual-centred position towards conceptions of the person as
embedded in society and, hopefully, to more community-enhancing law.

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Regulatory Instruments

Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the
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 Part II
Persons, Animals and Machines
Chapter 4
The Idea of Non-personal Subjects of Law

Tomasz Pietrzykowski

4.1  On Juridical Humanism

Contemporary Western legal systems are based on a set of philosophical assump-

tions that include the anthropocentric image of the world in which human beings
occupy an exceptional position. Our species is distinguished from nature by a sharp
metaphysical divide. Namely, we are endowed with reason and dignity that elevate
us above all other creatures. Legal systems are exclusively human creations and
should solely serve the human good. This results not only from the brute fact that
legal rules are laid down by human beings, but also, or even more so, from the inher-
ent moral value of a human creature as an end in itself. Following that, each human
individual has to be recognised as a person capable of holding his or her own rights,
protected and enforced by the law.
This worldview underlies contemporary legal systems. It may be called juridical
humanism (following the understanding of humanism as the belief in human excep-
tionality in nature, as criticised, among others, by Bocheński 1995). Law based on
humanistic assumptions so conceived may also allow for other, artificial legal per-
sons, such as corporations, municipalities or churches. However, they are just a
legal tool to let the organised collective cooperation of human persons pursue some
of their needs or goals. Granting them the status of a separate holder of rights and
duties is based on instrumental reasons. Namely, it is believed to be helpful in pro-
moting some kinds of human good more effectively than in the event that all rights
and duties were attributed solely to individual human beings. In this sense, the
“interests” of juristic persons emanate from the actual interest of the people involved

This paper has been prepared in course of the research project financed by the Polish National
Centre of Science (2012/07/B/HS5/03957).
T. Pietrzykowski (*)
Faculty of Law and Administration, University of Silesia in Katowice, Katowice, Poland
e-mail: tomasz.pietrzykowski@us.edu.pl

© Springer International Publishing AG 2017 49

V.A.J. Kurki, T. Pietrzykowski (eds.), Legal Personhood: Animals, Artificial
Intelligence and the Unborn, Law and Philosophy Library 119,
DOI 10.1007/978-3-319-53462-6_4
50 T. Pietrzykowski

in their operation. Thus, the reasons why law confers personhood to juristic persons
are essentially different to those for which it is conferred on human beings.
The humanistic axiology of law is reflected in the content of legal norms as well
as in legal practice. Both the language of the law and the way in which legal prob-
lems are resolved and decided unequivocally show whose interests count for the
law, and why. Let me illustrate this point by some examples of Polish law. They
are  – in this respect  – rather typical of the present Western legal systems. The
Constitution of Poland, in its very preamble, amply refers to such terms as “inherent
human dignity”, “Human Family”, “the rights of persons and their communities”
and the like. The normative constitutional provisions declare the state to be the com-
mon good of “all citizens”. All freedoms and rights of persons and citizens have
their source in an “inherent and inalienable human dignity.”
Similarly, Polish civil law is based on the assumptions that all legal relations take
place among natural and juristic persons, namely human beings and their organisa-
tional entities. Also in criminal law, only natural or juristic persons can be the per-
petrator or the victim of a crime. Even in crimes against animals, such as abuse or
illegal killing, the animal in question does not formally have the status of a victim
(although human organisations may in some cases take part in the criminal proce-
dure as the party “exercising the rights of a victim”). All these examples reveal the
foundational assumption of the legal system whereby the law is meant to ultimately
serve the human good and human interests. This idea may be depicted by the phrase
of the well-known ancient Roman jurist Hermogenianus, who declared that
Hominum causa omne ius constitutum sit (human cause lies behind all law).
Today, it is hard even to imagine that law could be based on any other philosophi-
cal assumptions than those of juridical humanism, but in fact it is a relatively recent
invention, at least in terms of the widely accepted official doctrine with the above
mentioned content. In the past, the legal approach to the personhood of both human
and non-human beings was considerably different. It would, therefore, be an ahis-
torical illusion to believe that juridical humanism in its present form is an eternal
and the only possible foundation of legal systems. Nor are there any reasons to
regard its current shape as a kind of ultimate end of a long evolution in which the
proper account of personhood in law has finally been found out.
On the contrary, there are signs suggesting that the existing shape of juridical
humanism is in ever deepening crisis that may be overcome only by a thorough revi-
sion of some of its basic elements. Many fundamental challenges can barely be
coped with within the conceptual framework implied by the model of the world it is
based on. I will point out some of these in the further parts of this essay. Before I do
that, however, I would like to add that addressing the problems they give rise to
seems to be one of the most arresting tasks of contemporary legal theory. The idea
of a non-personal subjecthood, which I will discuss below, is just one of the concep-
tual tools that may help find an adequate response to this crisis. This proposal is
meant to deal first and foremost with the problematic status of sentient animals in
the present legal arrangements. Nevertheless, as I will mention in the final section,
it might also be useful in seeking solutions to other similar problems that remain
difficult to reach within the conceptual frame of juridical humanism.
4  The Idea of Non-personal Subjects of Law 51

4.2  Traditional Dualism of Persons and Things

The present form of juridical humanism is based on the dualistic division of reality
into persons and things. Personhood is identified with the capacity to have rights
and duties. Unless qualified as a person attributed with such capacity, one can only
be an object of rights and duties held by others. Human beings are “natural” (or
physical) persons, while all other kinds of collective organisational units may be
“juristic” persons if a given legal system designates them as entities capable of hav-
ing rights or duties of their own.
The ascription of personhood of both kinds is a normative determination of the
law. The lawmaker makes it on the basis of certain considerations that it finds rele-
vant for deciding whom to grant the capacity to be assigned legal rights or duties.
Such considerations are basically moral (in the case of natural persons) or prag-
matic (in the case of juristic persons). The decision as to who or what should count
as a person in law may substantially differ in particular legal systems, as well as in
different epochs. In the past, most legal systems denied the status of a full-fledged
person to many groups of human beings (e.g. slaves, women or children). Today, the
basic rights of every human being to be recognised as a person before the law is
universally declared by many international covenants  – such as Article 6 of the
Universal Declaration of Human Rights. Nonetheless, there remain at least contro-
versial borderline cases, including the status of the human foetus, fertilised germ
cell or patients in so-called brain death.
On the other hand, lack of personhood means that one is incapable of holding
legal rights and remains only an object of potential relations that may take place
among persons in law. As famously said by Gaius – another eminent Roman law-
yer – every law concerns either persons or actions or things. Therefore, the ontologi-
cal dualism between persons and things is largely an exhaustive one  – namely,
everything in the world belongs either to the one or to the other category (I ignore
here the actions and events, as well as such exceptions such as energy, air or water).
Hence, as a matter of principle, the opposition between persons and things may be
seen as the legal counterpart of the more general conceptual opposition between
subjects and objects. Since it permeates the common sense, ordinary thinking, it is
hardly conceivable to accept that anything may be neither the object nor the subject
of any kind of relation (including, but not limited to, legal ones). One may say that
this dualism is the conceptual heritage of the Roman law that has been dominating
legal thought ever since.
It is worth noting that the history of law and legal thinking proves that today the
division between things and persons has become even sharper than it used to be in
the past. For example, the actual status of a slave under Roman law, as well as
European and American legal systems, in many respects depended on the circum-
stances. Even if slaves were not regarded as persons and remained the property of
their masters, in some situations they were ascribed some subjective rights of their
own that could be protected by the law. Animals, on the other hand, while not being
52 T. Pietrzykowski

treated as persons, for many centuries were sometimes held criminally liable for a
wrongdoing and actually tried before the ordinary courts.
The contemporary form of juridical humanism, in which the opposition between
personhood and thinghood is much less blurred, seems to have been brought into
prominence by the combination of Christian personalism and the Enlightenment
rationalist thinking (in particular Kantian philosophy). According to this approach,
man, as opposed to all other entities, deserves to be treated as a person in virtue of
his rational nature. Some human interests may entail granting juristic personhood
also to additional entities, but this is only because this status helps to promote
human good that is somehow inherently relevant for the law. Thus, juristic person-
hood is, so to say, secondary or derivative in comparison with the natural person-
hood of human beings as the ultimate beneficiaries of the legal system.

4.3  The Reality Between Thinghood and Personhood

The moral soundness of the dualistic division into persons and things becomes
increasingly questionable in view of what we have been learning about the nature of
reality. Scientific inquiry has revealed how directly our conscious experience
depends on the neurobiological activities of the nervous system. Our complex brains
are, however, only one end of the continuum overarching the animal kingdom.
Many species of animals have similar structures responsible for basic form of con-
sciousness, emotional reactions, memory, learning, pain and so on. Our developed
forms of reflective self-consciousness may be unique among animals, but there are
no reasons to believe that the nervous structures that we share with many other spe-
cies do not generate many kinds of similar subjective phenomena to those that we
experience ourselves. Thus, despite all fundamental difficulties in grasping the sub-
jective perspective of a creature belonging to another species (Nagel 1974), we have
very good reasons to attribute animals with sentience and many cognitive and emo-
tional capacities. Moreover, we have detected among non-human animals many
rudimentary forms of such uniquely human skills as symbolic communication,
counting, tool-making, the cultural transmission of knowledge, morality and poli-
tics. There is little doubt that at least several species of non-human animals are
equipped with some forms of self-consciousness (see, e.g., Andrews 2015; Proctor
2012; DeWaal 2013).
The scientific progress in our knowledge about animal consciousness and the
growing recognition of the far-reaching ethical implications of what we have been
discovering started to influence social attitudes toward animals from the nineteenth
century. The main effect of this influence is the proliferation of anti-cruelty laws.
Today, more or less complex sets of legal rules protecting animals against abuse
exist in practically all Western legal systems. Up to a point they are easily reconcil-
able with juridical humanism. Their basis was found in a human moral superiority
that obliges people to behave “humanely” toward all kinds of “weaker” or “subor-
dinate” creatures. In other words, the humane treatment of animals was regarded as
4  The Idea of Non-personal Subjects of Law 53

a question of unilateral moral duties of people, without any corresponding claims on

the side of animals. Variants of this approach may be found in the writings of Kant,
Hume and even Bentham, and it is certainly the predominant part of the official
justification of the classical anti-cruelty legislation.
The demise of this account of human-animal relations seems to result from two
parallel processes. The first is the gradual fall of a widespread religious basis for the
belief in the special place occupied by humans. The second was the simultaneous
rise in the awareness of our evolutionary kinship with animals, proving that our
mental capabilities emerge from the long evolutionary process in which similar
(albeit simpler) nervous circuits developed also in many non-human species.
However, the social and legal reforms following those changes are taking place very
slowly. The pervasive exploitation of animals for human purposes is so deeply inter-
woven with the way human societies are organised that it is hardly possible to imag-
ine any immediate, revolutionary changes of the respective practices that could be
inspired by sole moral concerns. This means, however, that legal systems remain
under two conflicting pressures. One stems from changing social attitudes concern-
ing the ethical standards of the proper treatment of animals; the other is inertia and
the reluctance to abandon individual and social habits that constitute a considerable
part of the very fabric of society, and which produce numerous benefits that are not
easy to give up or replace.
This tension is reflected in the current state of the laws concerning animal protec-
tion. There is a growing number of legal orders that, for moral reasons, have for-
mally excluded animals from the category of things. The process of the legal
dereification of animals has been slowly taking place since the late twentieth cen-
tury and continues today. In 1988, an amendment determining that animals are
legally not things was introduced to the Austrian ABGB (Art. 285). A similar provi-
sion was added to the German BGB in 1990 (Art. 90a). In the Swiss Civil Code
(ZGB), the rule declaring animals as not things was placed among the regulations of
ownership in 2002 (Art. 641a). The French Code Civil was amended to define ani-
mals as “des êtres vivants doués de sensibilité” (living creatures endowed with sen-
sitivity) only very recently, at the beginning of 2015 (for details of this reform, cf.
Naumann 2015). A similar regulation has for several years been present also in
European law, where the current wording of Article 8 of the Treaty on the Functioning
of the European Union commands that, since animals are sentient beings, the EU
ought to pay full regard to the requirements of their welfare. In Polish law, the
exclusion of animals from the category of things took place as early as in 1997
(according to Art. 1 of the Polish Act on the Protection of Animals: “an animal is not
a thing, but a living creature capable of suffering. A man owes it respect, care and
protection.”)
In some countries, the protection of animals reaches the level of constitutional
law. However, in almost all such cases constitutions refer to animals only as a part
of the natural environment that should be conserved principally for the sake of
human beings. There are a few exceptions in which the constitutional language may
suggest a more ambiguous approach to the reasons underlying the human duty to
protect animals. In Switzerland, for instance, the constitution uses the notion of
54 T. Pietrzykowski

dignity as a feature of “all creatures”, while in Germany the protection of animals is

defined as a requirement of “justice”. The most radical wording may be found in the
constitution of the state of Salzburg (one of the regions within the federal state of
Austria), commanding the government to pay respect and protect animals “as fellow
creatures of man.”
The gradual growth in public awareness that animals are sentient creatures which
may have their own interests deserving recognition and respect in the form of laws
protecting them for their own sake undermines the image of the world composed
only of persons and things. However, animals are by no means the only problem for
that image (even if at the moment they are the most compelling one). Potentially
even more fatal consequences for the idea of a metaphysical gap between human
and non-human creatures follow from the emerging technology of creating biologi-
cal organisms that are inter-species chimeras and hybrids. These are creatures com-
bined from either genetic material (hybrids) or tissue (chimeras) that form a
cross-species living organism. The research involving the creation of such organ-
isms has brought some astounding achievements in respect of combining non-­
human animals of different species.
For obvious reasons, the extent to which such experiments concern mixing
human and non-human tissue or genes is much more limited and accompanied by
extreme caution. However, the available data suggest that this technology could
potentially be applicable also to creating viable creatures with genetic code or tissue
of partially human and partially non-human origin (for a review of scientific, ethical
and legal aspects, see Taupitz and Weschka 2009). Even if ethical concerns make
such research prohibited or restricted by law in many developed countries, it is clear
that there are no legal or ethical barriers that can guarantee that sooner or later this
technology will not result in a creature of a kind difficult to qualify as either human
or non-human.
Another cutting edge technology that casts doubts on the traditional dichotomy
between persons and things concerns the rise of autonomous artificial agents capa-
ble of flexibly adjusting their conduct and reactions to the environment. This tech-
nology is still in its very early stage of development, but even the first and the most
primitive semi-autonomous devices (such as driverless cars and drones or software
bots) suggest that further progress in their design and scope of capabilities may pose
serious questions concerning the liability for their activities. Moreover, some strands
of this technology, such as companion humanoid robots, dedicated in particular to
assist elderly patients, may make it difficult for people interacting with them to
continue perceiving them as mere objects.
It is still very difficult to predict to what extent such devices will actually be able
to act as if they had some form of subjectivity. However, it seems at least probable
that they may be made capable of a certain range of human-like (or animal-like)
behaviours, together with an elementary level ability of communicating with human
beings (reacting to orders, providing with information etc.). The moment they
become capable of sufficiently flexible and unpredictable, self-governing actions,
unrelated to any directly preceding cause, there might appear a natural inclination to
explain what they do by attributing to them subjective internal states. After all, we
4  The Idea of Non-personal Subjects of Law 55

have no practical basis to believe that other creatures have their own minds other
than observing and interpreting their external behaviour (including oral) that cannot
be explained otherwise. In this sense, in our daily lives we are naturally bound to
rely on a kind of “generalised Turing Test” to distinguish intentional, conscious
beings from inanimate, mechanical automatons.

4.4  How to Solve the Problem: Some Wrong Ways

In the long run, juridical humanism will have to respond to the question of animals
as well as other similar challenges that undermine its conceptual framework. Even
today, the dereification of animals must be seen as a serious breach in the dualistic
division of reality into persons and things. Due to the fact that the dereified status of
animals hardly fits this framework, it remains largely stripped of all practical signifi-
cance. The non-thinghood of animals is simply conceived as a noble, symbolic dec-
laration rather than a real change of their legal status that has to be followed by a
reinterpretation of their position within particular legal institutions (such as owner-
ship). The actual scope of the protection of animals on the basis of detailed rules of
anti-cruelty laws is essentially the same as if no general dereification had taken
place. One of the commentators of the German Civil Code (BGB) openly described
the legal rule excluding animals from the category of things as a “sentimental pro-
nouncement without any effective legal content” (Heinrichs 2003).
The situation in this respect seems largely similar in all legal systems in which such
“sentimental pronouncements” exist. A spectacular example of that may be the recent
judgment of the Polish Constitutional Court relating to the ban on slaughter without
prior stunning. The Tribunal found the all-encompassing ban introduced to the Polish
law to be unconstitutional, due to the infringement of the religious freedom of Jewish
and Muslim minorities, whose rituals of killing animals for food rule out stunning.
The approach (by no means untypical) taken by the Constitutional Tribunal in solving
this case assumed that animals may be treated as mere object of a religious ritual
whose interests in avoiding extreme pain and stress simply do not count for the law. In
a very long and detailed argumentation, the Tribunal found that the dereification of
animals does not contradict using themas objects of a religious ritual, irrespective of
the suffering it may involve. Such cases demonstrate the wider context of juridical
humanism, and may (or even must) make the sole formal declaration that animals are
not things practically inconsequential (Lis and Pietrzykowski 2015).
On the basis of the predominant conceptual framework of jurisprudence, as long
as animals are not persons, they cannot be attributed any individual, legally pro-
tected rights of their own. The lack of this capability is just the difference between
legal dereification and personification, and the very term “dereification” has been
coined to emphasise that it does not entail the capability of holding legal rights
(Łętowska 1997). The Swiss parliamentary committee, when explaining the reasons
for introducing to the Civil Code (ZGB) a provision whereby “Tiere sind keine
Sachen”, unequivocally pointed out that “this provision essentially has a declaratory
56 T. Pietrzykowski

nature, because it does not create a new legal category for animals. The Swiss legal
system is consequently founded on the distinction between persons – subjects of
law, with their rights and obligations – and objects: animals will be forever assimi-
lated to things, and will not benefit from civil rights” (Cercel 2011).
Nonetheless, the dereification of animals makes an overall conceptual frame-
work of the law clearly incoherent. Animals are essentially stuck between two alleg-
edly exhaustive categories – objects (things) and subjects (persons) – yet belong to
neither of them. It seems obvious that the situation in which a large class of entities
is no longer regarded as mere objects but at the same time is not allowed into the
category of subjects is unsustainable in the long run. It makes it necessary to revise
either the approach to personhood, or the conceptual division between persons and
things as such. The first option – the legal personification of animals – is much more
popular in animal law scholarship and advocacy. I will argue, however, that this
approach is misconceived and the second solution is much more promising.
There are many well-known attempts to prompt legal authorities to confer on
animals the status of non-human persons. They are championed – in various ways –
by figures such as Tom Regan, Gary Francione and Steven Wise, as well as several
other prominent legal thinkers. In the 1990s, an international group of scientists,
philosophers and lawyers launched an initiative called the Great Ape Project, aimed
at elevating the legal status of three species of apes being the closest evolutionary
kin to the human race. However, despite more than 20 years of their efforts, the
practical effects remain very modest. Similar demands in respect of dolphins and
whales are championed by the Helsinki Group for Cetacean Rights. Their struggle
attracts less public attention, even though in several countries keeping dolphins in
captivity has been banned or severely restricted. Another organisation – the Non-­
Human Rights Project – has filed a number of lawsuits before the American courts
trying to obtain a judgement that would apply the Habeas Corpus rule to chimpan-
zees. Up to now, those attempts have turned out to be unsuccessful (despite the
promising and favourable language of some judges, as well as experts acting as
amici curiae).
It is worth noting that, in 2014, a court in Argentina issued a ruling that may be
interpreted as at least making a substantial step toward the recognition of the legal
personhood of an ape. In a case concerning the release of an orangutan kept in the
Buenos Aires Zoo, the judge pointed out that: “based on a dynamic rather than a
static interpretation of the law, it is necessary to recognise the animal as a subject of
rights, because non-human beings (animals) are entitled to rights, and therefore
their protection is required by the corresponding jurisprudence.” Following this rul-
ing, the case was reviewed by the City Court of Buenos Aires, where judge Elena
Amanda Liberatori expressed an even more radical view. She claimed that the ape
must legally be regarded as a non-human person (una persona no humana), with its
own rights that have to be respected by people. She explained, however, that the
treatment of an animal must correspond to its actual features, and must not entail
granting it inappropriate personal rights suitable for human persons only.
The above facts lead me to the following comments. Firstly, there is a growing
need to define the status of animals in a way that would make them capable of hold-
4  The Idea of Non-personal Subjects of Law 57

ing at least some kinds of rights. As long as, without being a person, they remain
objects rather than subjects of law, the attempts of their personification will con-
tinue. Secondly, the normative content of a putative animal personhood would have
to be considerably different than in the case of the personhood of human beings or
juristic entities. This might be a strong reason against embracing them by the same
legal notion. And lastly, the conceptual framework in which all entities belong either
to the class of persons, i.e. right-holders, or to the class of things, i.e. mere objects
incapable of having any legal rights whatsoever, may be too crude to accurately
address the situation and the actual properties of animals. Furthermore, this defi-
ciency in the conceptual apparatus of jurisprudence may be one of the most impor-
tant obstacles to the further development of ethically and socially acceptable
regulations pertaining to the legal protection of animals.
In view of that, I find the idea of personifying animals the wrong solution to a
real and serious problem. There cannot be any reasonable doubt that at least verte-
brate animals are sentient creatures. The fact that their existence may be subjec-
tively better or worse depending on what occurs to them entails that they possess
interests of their own. There is no reason to deny the moral relevance of such inter-
ests. In this sense, animals essentially differ from things. They have their own inher-
ent good that cannot be plausibly reduced to an instrumental value for human
beings. Moreover, from the legal perspective, the sole dereification of animals does
not solve the problem of their status. It proves practically ineffective as a way to
provide animals with a decent level of protection of their interests. Secondly, it is
conceptually flawed since it does not fit the dualistic model of a world divided into
persons (as subjects of the law) and things (as objects of the law).
At the same time, I find the idea of the ordinary personification of animals to be
implausible. Animals do not fit either the category of juristic or natural persons.
Conferring on them the status of juristic persons would entirely miss the moral point
of the postulated reform. Juristic personhood is based on instrumental consider-
ations relating to the ways in which the law should promote human interests. So,
they are exactly opposite reasons to those backing the claims for the personification
of animals. Namely, the recognition of animals’ ability to hold legally protected
rights is meant to restrain rather than expand the ways in which human good may be
legitimately pursued by means of the instrumental use of animals.
However, animals hardly fit the category of natural persons either. There are
many obvious similarities between human and animal sentience: emotional reac-
tions, strivings to satisfy needs and desires, as well as avoiding pain and suffering.
It must be said, though, that the average human being differs essentially from virtu-
ally all other species of animals (including apes and dolphins) by the scope of cog-
nitive abilities. Humans are able to intentionally control their own behaviour, acting
upon specific kinds of reasons and volitions (Searle 2001; Frankfurt 1971). This
capability (regarded as species-typical rather than a strictly individual set of fea-
tures) is essential for the concept of personhood, and necessary to plausibly be
attributed with most personal rights (Pietrzykowski 2015).
Ignoring important differences between typical members of humans species and
non-human animals seems to be a similar (albeit opposite) type of moral error as
58 T. Pietrzykowski

that of ignoring equally important similarities that unquestionably join human and
many non-human creatures. Committing the first error leads to the attitude famously
criticised by Bentham, when he argued that when resolving whether animal inter-
ests are a legitimate part of our moral considerations, “the question is not, Can they
reason? nor, Can they talk? but, Can they suffer?” (Bentham 1789). The second
type of mistake overlooks the fact that the normative structure of what we consider
as a person in law is largely composed of the ability to hold this kind of personal
rights that are clearly inadequate to the properties and needs of animals. Therefore,
to postulate extending the status of a person on animals is either misleading or
implicitly proposing a far-reaching revision of the normative content of personhood
in law.
Additionally, due to the differences between human and animal minds, the idea
of animal personhood collides with the powerful philosophical tradition underlying
the concept of person (as well as its version adapted for the purposes of legal vocab-
ulary). This approach stems from the Boethius’ definition of a person as “naturae
rationalis individua substantia” (individual substance of rational nature) and
includes in particular the influential ideas of Locke or Kant (for a comprehensive
review, see Trzópek 2013). Thus, conceptually personhood is intimately related to
the capacity to act rationally and deliberately decide about one’s own actions. It
entails the claim to be let free to decide about oneself within the domain of indi-
vidual liberty protected by the rights enforceable against illegitimate interference by
others. This claim assumes, however, an ability to take into consideration the rules
of social co-existence limiting the scope of individual liberty and the choices one is
free to make. It can be hardly ignored by theories pertaining to the use of this con-
cept to define the status of animals.

4.5  N
 on-personal Subjects of Law and Their Right
to Be Taken into Account

As argued above, there are good reasons against the straight personification of ani-
mals. This does not mean, however, that there are no reasons to try to improve the
protection of animals by conferring on them the status of right-holders. It proves
that the long-lasting tradition of regarding personhood as a necessary prerequisite
for right-holding should be abandoned. From Roman law up to our times, legal
subjecthood has been identified with personhood. Conceptually, however, even if
being a person implies being a subject, the opposite does not necessarily hold true:
being a subject by no means has to imply being a person. Sentient animals have their
subjective mental states by virtue of which their existence may be better or worse
for them. It makes them holders of the interests of their own related to the quality of
their life. Therefore, sentient animals do not fit into the category of mere things.
They are certainly – to use the famous phrase of Tom Regan – the subjects of their
lives (Regan 1984). This does not mean that they have properties making them
4  The Idea of Non-personal Subjects of Law 59

full-­fledged persons. Due to that, animals would not have any benefits from attribut-
ing to them most rights typically associated with the concept of personhood in law.
Taking all that into account, the proper legal approach to sentient animals should
not be based on regarding them as non-human persons (as advocated by the main
animal rights scholarship), but rather as non-personal subjects of law (as suggested
by Elżanowski and Pietrzykowski 2013). In my opinion, there is a place for such a
new category, and there are sound reasons to propose its introduction. It has one
clear advantage over the idea of animals as non-human persons. Namely, it corre-
sponds more accurately to the similarities and dissimilarities between humans and
animals. Due to that, it may avoid some obvious objections raised against extending
the concept of a person onto animals. The plausibility of the concept of a non-­
personal subject of law as an idea of de lege ferenda type aimed at improving the
status of animals depends, however, on its actual normative content. Up to now, it
has only been roughly outlined and, in order to be an attractive theoretical model, its
details have to be worked out in much more detail. Let me now try to make a step
forward in this direction.
The essential difference between things and subjects of law (whether personal or
non-personal) lies in the ability to hold one’s own subjective interests, which may
count as legal rights. Persons and non-personal subjects of law differ, however, in
what kind of rights may be plausibly ascribed to them. A person is principally capa-
ble of holding all types of rights – those aimed at protecting the interests of their
holder, as well those that are oriented towards the protection of their freedom of
choice (see Pietrzykowski 2015). In contrast to that, non-personal subjects of law
cannot be attributed with any choice-rights and their status is dedicated solely to
protecting their individual interests. In view of that, the essence of non-personal
subjecthood of law may be reduced to the legal recognition of one single right only,
namely the right to be taken into account, or – speaking more precisely – to have
one’s own individual interests considered as relevant in all decisions that may affect
their realisation. This does not mean that such interests cannot be compromised in
cases of conflict with the rights and interests of others. It means only that the subjec-
tive good cannot be ignored and has to be balanced with all relevant consideration
following the general principle of proportionality applicable in resolving such
conflicts.
In other words, holding the right to be taken into account entails the obligation of
all persons to include at least the most vital interests of a given individual as fully
legitimate considerations that have to be balanced with all other relevant reasons for
action. The range of interests that deserve such consideration may depend on the
kind of animal in question, as well as the circumstances of a particular situation.
Moreover, it goes without saying that, in many cases, animal interests, even the
most vital ones, may be outbalanced by competing considerations relating to the
human good. However, they have to be fairly compared and tested against the pro-
portionality principle. Making such considerations and balancing of interests legally
required would also make their results and the decisions based thereon controllable
by an independent judiciary.
60 T. Pietrzykowski

Thus, the main aim of conferring on animals the status of non-personal subject
of the law holding the right to be taken into account is the transformation of their
interests into legitimate legal considerations that have to be accounted for in each
case of a practical decision, in particular law-making or law-applying ones. In most
legal systems, the introduction of such a reform would require changes at the level
of constitutional provisions, consisting of at least introducing a clause declaring
animals not to be things, but subjects of law whose right to have their interests prop-
erly considered is to be observed. Further normative details of such an institution, as
well as procedural and substantive arrangements of its practical functioning, would
have to be set out by ordinary laws as well as the legal doctrine (including more
detailed provisions and guidelines determining how the interests of specific animals
should be considered in the context of particular kinds of decisions).
I am aware that constructing non-personal subjecthood as the capability to hold
only one general right to be taken into account may be controversial. In particular,
it may be questionable why non-personal subjects of law should not be the holders
of various more specific rights (such as life, liberty, freedom from pain etc.) similar
to – albeit essentially shorter than – the list of rights attributed to persons in law.
There are, however, two key arguments in favour of the approach I propose. The first
relates to the question why it is important for a person to have a number of relatively
precise rights instead of having just their “liberty” or “dignity” protected by law.
The answer must take into account the fact that the essential feature of a person is
an awareness of one’s own legal situation and an ability to plan one’s behaviour on
the basis of the predictable consequences of one’s actions. Thus, the precise and
operative rights defining one’s situation are crucial for a person to be able to ratio-
nally decide about ways of conduct in view of their expected legal effects. Arguably,
there is an intimate relationship between the structure of personal rights and the
status and capabilities of free, rational agents that may take them into account in
deliberate managing their own affairs (Hoerster 2006).
Obviously, this advantage of holding rights, which is crucial for persons, does
not apply to non-personal subjects of law. To this extent, the point of being a right-­
holder in the case of persons differs substantially from the case of non-personal
subjects. The protection of the interests of the latter is, by its very nature, much
more paternalistic. It hardly depends on the individual choices and preferences of
the right-holder. Their interests must be constructed by third persons, who ulti-
mately must decide which interests deserve to be protected and in what manner. The
respective decisions may rely only on the best understanding of the species-typical
needs and the preferences of a given species of animals rather than on the individual
will of a particular animal. Thus, as opposed to the case of persons in law, there is
no point in granting an animal specifically defined rights that would let it rationally
plan and self-govern its own situation.
The second reason why I prefer the proposed structure of the non-personal sub-
jecthood is that it allows for much more flexibility. The scope and way of protection
of an animal’s interests has to be much less entrenched and fixed than in the case of
persons. It is necessary to adjust such protection to the particular situations in a way
that would reduce the risk of producing results that would be unacceptable from the
4  The Idea of Non-personal Subjects of Law 61

point of view of predominant social attitudes to animals. This seems to be the basic
precondition of making any upgrade of the legal status a realistic idea. It has to be
reconcilable with the most existing practices of human use of animals, bringing
together some potential to gradually improve the boundary conditions in which they
may take place, as well as to influence the perception of animals exploited in such
practices. A minimally realistic approach to the problem of the situation of animals
has to be based on an assumption that there is no chance of human societies accept-
ing the abandonment of animal exploitation as such in the foreseeable future. If this
is the case, one has to think in terms of achievable progress in their position and
treatment, rather than hope that animal suffering will simply disappear in virtue of
a kind of moral illumination that will radically change the views of the bulk of
human societies.
The only way to foster gradual improvements in the real conditions of animal
lives is to create conditions in which developing progressive attitudes may relatively
easily influence the imposition of binding limitations on the way in which animals
may be legally used. The law may contribute to that by prompting human decision-­
makers to take animal interests into account, even without compelling them to find
such interests significant enough to override all competing considerations. The
actual results of such considerations must ultimately refer to the prevailing social
attitudes and shared moral standards. The law is not able to effectively impose a
radical change of such attitudes and standards, but to some extent may stimulate
their evolution. So the law cannot replace the further evolution of human attitudes
towards animals and the weight given to their good when it comes into conflict with
the interests and needs of people. However, it may mandate the consideration of
their interests, mandating the perception of each individual animal as an entity
whose subjective good counts under the law, even if in particular situations the
requirements of its good may be prevailed by more arresting considerations of
human interests. The sole applicability to such conflicts of the general principle of
proportionality seems to open a promising way to make it increasingly difficult to
compromise at least the vital animal interests for the sake of the most trivial human
whimsies.
Another objection against the idea of a non-personal subjecthood might be scep-
ticism against its practical effects. Due to its flexibility, it may turn out that the
actual situation of animals will remain basically the same. This concern is at least
partially justified. It is not to be a magical trick that would immediately eradicate
most animal suffering caused by numerous widespread human practices. It might
be, nonetheless, an important step forward in comparison with the current situation.
The key difference should be mandatory consideration of animal interests as well as
the existence of procedural tools to have the actual decisions concerning the ways
in which animals are or may be used reviewed by independent authorities. The latter
should be bound to examine whether a given decision actually struck the proper
balance of all relevant considerations. It concerns a judicial review of the actual
practices of animal owners or carers, as well as of legislative decisions adopting
more detailed rules and guidelines concerning the proper treatment of animals.
62 T. Pietrzykowski

Additionally, the balancing and the external evaluation of its outcomes need to be
carried out from the perspective of the interests held by an animal as an individual
creature. This is important because it may contribute to the gradual change of per-
spective in which animals are perceived as individual creatures, each with its own
good and respective subjective interests. This does not mean that it will bring quick
and radical effects, far from it. Their extent will have to ultimately depend on social
attitudes. The law may, however, either support or impede the pace of their evolu-
tion. The idea of granting animals the status of non-personal subjects of law aims to
make law a flexible tool to improve the situation of animals by the further progress
of the socially accepted moral standards of their treatment.
To sum up, notorious conflicts of interests in cases where animals are exploited
for human purposes are so diverse that it is impossible to solve them by a fixed
stable determination of what the conditions and limits are of such exploitation. At
least no such formula could provide for an ethically acceptable and socially practi-
cable uniform standard. There are essential differences between the nature and
weight of colliding goods, as well as conceivable solutions in respect of farm ani-
mals, pets, animals used for scientific research or in entertainment, let alone wild
animals living in their natural environment. Insomuch as the fate of animals is
directly dependent on human arrangements, there are principally two ways in which
the law may try to approach their situation. It may try to set down detailed legal
standards of the acceptable treatment of each kind of animals in each particular
context. An animal remains the object of specific duties imposed by the law on
people involved in respective kinds of animal exploitation.
In this approach, improvements in animal treatment would require piecemeal
modifications of the legal rules determining specific duties aimed at securing animal
welfare. The second option is to try to embed such detailed rules into the general
principle mandating the consideration of animal interests as legitimate legal consid-
erations in all decisions concerning animals. It may help to accelerate the evolution
of law and social practice and transform the way in which animals are perceived in
a situation in which their interests have to be balanced with the competing consid-
erations of human good. I find the second position preferable, even while being
fully aware that it is by no means a magic wand that can miraculously change soci-
ety into one with more balanced human-animal relations.

4.6  Applications

There is no doubt that the concept of non-personal subjects of law fits only the situ-
ation of sentient animals, despite this being only a part of the enormous animal
kingdom. The scope of its applicability must depend on the scientific data relating
to particular species of animals. We have to rely in this respect on the best available
evidence as regards which species of animals are capable of having subjective expe-
rience. This capability is a necessary precondition for an animal to have its own
subjective interests, without which there is no reason to confer on it the right to have
4  The Idea of Non-personal Subjects of Law 63

them taken into account. Therefore, the status of a non-personal subject of law does
not apply to non-sentient living organisms, including not only plants, but also
numerous species of animal creatures. Up to our best contemporary scientific
knowledge, the basic feature enabling conscious experience of the world is a suffi-
ciently developed nervous structure, in particular the formation of a brain.
Clearly, all scientific findings lying behind the distinguishing sentient and non-­
sentient animals are necessarily hypothetical and tentative (as all scientific knowl-
edge whatsoever). Nonetheless, at least in respect of some species, the available
evidence (converging with common sense) is so overwhelming that there is no place
for any reasonable doubt (see, e.g., Griffin 2001; Edelman and Seth 2009). It
includes vertebrate animals, in particular all species of mammals and birds. On the
basis of what is known about the complexity of their minds as well as underlying
neural structures, they unquestionably deserve the status of non-personal subjects of
law. In fact, in the case of a few of the most cognitively developed non-human mam-
mals – such as chimpanzees, elephants or dolphins, and even some birds – one could
even argue that they are so close to the brink of personhood that they could be called
“near-persons” (Rowlands 2012). Nonetheless, I find it more plausible to include all
vertebrate animals in a single, general category of non-personal subjects of law.
It is worth noting that there is strong evidence to attribute sentience also to some
(albeit few) species of invertebrate animals. On the basis of a careful examination of
scientific data, the recent legislation of the European Union decided to extend the
legal protection dedicated to sentient animals onto cephalopods. As it was pointed
out in the preamble to EU Directive 63/2010 on the protection of animals used for
scientific and educational purposes: “In addition to vertebrate animals including
cyclostomes, cephalopods should also be included in the scope of this directive, as
there is scientific evidence of their ability to experience pain, suffering, distress and
lasting harm.” Independent reviews of the research and findings relating to cephalo-
pods fully confirm this view (see, e.g., Mather 2008; Broom 2014).
Besides animals, however, the concept of non-personal subjecthood in law could
also turn out useful to better define the status of some other creatures. They include,
in particular, potential human-animal chimeras and hybrids, at least in cases where
they would not display capabilities compelling them to be treated as ordinary (even
if not fully human) persons. Obtaining at least the status of non-personal subjects of
law by human-animal mixtures not qualifying as human beings would automati-
cally follow the introduction of this category for all ordinary sentient animals. It
should be noted, however, that the lack of such a category makes the potential legal
status of human-animal mixtures disturbing. Unless a given creature qualifies as a
human being, it remains principally a biological living thing with no legally recog-
nised interests of its own.
Arguably, the status of a non-personal subject of law could also be helpful to
seek better solutions to the notoriously controversial status of some purely human
creatures that are not recognised as persons in law. They include, above all, human
foetuses (in particular in their early stages of development), in-vitro fertilised germ
cells before their transfer to the womb, anencephalic infants or patients remaining
64 T. Pietrzykowski

in a persistent vegetative state (especially due to extensive damage to the brain tis-
sue resulting in the unrecoverable loss of self-awareness).
At least in some such cases, passionate disputes over the personhood of the
beings in question could perhaps be somehow alleviated by finding a middle ground
between full-fledged personhood and the status of a mere thing (even if a biologi-
cally living one). Supposedly, the radicalism of some of those claiming that every
human being must be treated as a person from conception to natural death may be
to some extent motivated by the rejection of the only alternative that seems conceiv-
able today – namely, degrading a living human organism to the category of a thing.
Similarly, at least some of those who argue in favour of regarding it – in certain
conditions – as simply a piece of biological material tacitly assume that it is the
unavoidable consequence of objecting to granting it full-fledged personhood.
On the other hand, the idea of non-personal subjects of law does not seem appli-
cable to the problems pertaining to the status of artificial agents. There is little doubt
that, at the moment and in the foreseeable future, they will not be equipped with
minds that could make them conscious, sentient entities. The most compelling argu-
ments in favour of granting sufficiently complex, autonomous artificial agents some
form of personhood instead of regarding them as ordinary things (mere machines)
refer to the advantages that attributing them such a legal status may have for people,
who could be potentially held directly liable for the effects of decisions and actions
taken by the autonomously acting devices. The algorithms making them capable of
learning and flexibly adjusting their ways to the changing environment may mean
that many of their decisions will be hardly predictable to the people who produce
and pre-program them, as well as to those who may later make use of them. The
question of liability for damages or unwanted consequences of what they do may
develop into a serious legal question (potentially impeding further development and
the practical usefulness of the whole technology of advanced autonomous and semi-­
autonomous agents).
With this in mind, some authors claim that it could be more pragmatically rea-
sonable to regard such agents as liable for at least some effects of their own deci-
sions, in a way making human beings immune to such liability (e.g. Solum 1992;
Chopra and White 2011). There might be good reasons to work out some legal
solutions based on the assumption that the liability of an autonomous agent should
be to some extent (and under some conditions) detached from the liability of the
people who manufactured, programmed, use or benefit from them. Presumably,
suitable solutions to this problem could be inspired by legal concepts and regula-
tions that were developed in the past and applied to the situation of slaves (see
Pagallo 2013).
The discussion over the potential personhood of artificial agents unequivocally
suggests that at the moment the arguments in favour of this solution are essentially
pragmatic and refer to the need to safeguard the interests of people involved in the
interactions with the putative artificial agents. As long as the emerging technology
of the latter does not entail the problem of artificially manufactured conscious, sen-
tient beings (which still remains a Sci-Fi scenario), the personhood of such agents
is not a moral question that could resemble the problem of animal or human
4  The Idea of Non-personal Subjects of Law 65

p­ ersonhood. Therefore, I am inclined to regard such agents  – as opposed to ani-

mals – as candidates to become a new category of juristic persons rather than as a
genuine challenge to the juridical humanism underlying the axiological foundation
of the law.

4.7  Conclusion

The new, intermediate category of non-personal subjects of law that I propose above
is an attempt to take a step forward in reframing the conceptual basis of the discus-
sion of the status of animals and some other creatures. The dualistic divide of the
world into persons and things is far too crude to adequately respond to the present
and future ethical challenges. Theoretical deficiency becomes here one of the criti-
cal obstacles in reconciling law with its scientific and ethical context. Although the
idea of a non-personal subjecthood would be a conceptual innovation, I believe that
it is the only way to prevent juridical humanism from falling into ethically indefen-
sible positions. In the long run, abandoning the traditional, strict and exhaustive
distinction between full-fledged personhood and mere thinghood may be the only
chance to rescue juridical humanism, albeit in a revised, much more modest and less
exceptionalist form.
The solution proposed above has some important advantages in comparison with
the current situation, as well as with the idea of making animals non-human per-
sons. The extension of the category of personhood would ignore the important dif-
ferences between a typical human being and a typical animal. The differences in
question are not only relevant but essential for what it means to be a person. That is
part of the reason why the idea of animal personhood elicits such powerful resis-
tance. Another part is the concern that making animals the same kind of persons as
human beings may pose a risk to the standards of the strict legal protection of the
latter. Yet another – the putative consequences of animal personification in terms of
the need to immediately cease all forms of animal exploitation. For many leading
advocates of such a revolutionary change, the abolition of all kinds of animal exploi-
tation is the openly declared aim and the exact point of the demands to make ani-
mals persons in law (e.g. Francione 2008).
However, the sad truth is that societies are not prepared to accept the reform that
would outlaw animal exploitation as such. Expecting that it may change in any rea-
sonably close future is at best a noble dream. It should not mean that until that
moment (whenever it may come) the status of animals should remain as it is now –
legally unclear and largely ineffective in terms of protecting them from even the
most outrageous forms of massive ill-treatment. To avoid the trap of empty radical-
ism, we have to seek means that may more effectively help to mitigate the ways in
which animals are actually used.
Thus, the concept of non-personal subjects of law should be treated as a bridge
for the further development of social attitudes towards animals that should be
reflected in the evolving legal standards of their permitted treatment. Although the
66 T. Pietrzykowski

law cannot replace that development, it may and should play a role in stimulating it
and implementing its effects as generally binding standards required in particular
domains of animal use.
The ideas advanced here are still only an outline rather than a mature and ready-­
to-­apply legislative conception. Perhaps it is too early to expect that this kind of
reform could be implemented in any legal system (including those that are most
progressive in terms of attitudes towards animals). Such changes rarely take place
without any compelling pressure from practical needs or problems difficult to solve
in any other way. There is no doubt, however, that such pressures will grow and will
continue to exert influence on the Western legal systems. Due to that, opportunities
to consider various forms of further reforms of the animal status will certainly recur.
Upon such occasions, legal theory should be prepared to recommend solutions to
lawmakers that are conceptually and ethically sound, socially acceptable and opera-
tive in practice. That is why legal theorising must be at least one step ahead of the
current state of positive law and actual legislative deliberations.

References

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Rouledge: New York.
Bentham Jeremy (1789) Introduction to the Science of Morals and Legislation, Clarendon Press:
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Hoerster Norbert (2006) Haben Tiere eine Würde? Grundfragen der Tierethik, CH Beck, Munchen.
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Pagallo Ugo (2013) The Law of Robots. Crimes, Contracts and Torts, Springer: New York.
Pietrzykowski Tomasz (2015) Beyond Personhood. From Two Conceptions of Rights to Two Kinds
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Chapter 5
Why Things Can Hold Rights:
Reconceptualizing the Legal Person

Visa A.J. Kurki

5.1  Introduction1

The concept of legal personality is shared by all Western legal systems. Even though
the concept is ubiquitous, the meaning of legal personhood has been a relatively
peripheral topic in jurisprudence for a while, with the exception of corporate per-
sonhood. A judge or a scholar likely does not need a theory of legal personality to
solve or comprehend easy cases, but the need for a theory may arise in hard cases.
The only theoretical account available then is the legal-persons-as-right-holders
view, according to which legal personhood involves either the holding of rights and
bearing of duties or the “legal capacity” to hold rights and bear duties.2 This defini-
tion of legal personality is not merely a textbook adage – even though any law stu-
dent in the civil-law world likely comes across it, and many students of the common
law as well – but is also endorsed and employed by jurists with a profound interest
in questions relating to legal personhood. A number of such cases have become
topical recently, from the legal personality of nonhuman animals to that of autono-
mous software agents. I argue in this paper that equating legal personhood with the
holding of rights is not the best way to understand the concept but is rather quite
confusing. I do not intend to provide a complete alternative theory; rather, I hope to

1
 I would like to thank the participants of the Yale Doctoral Scholarship Conference 2014 as well
as those of the Special Workshop on Personhood at the XXVII World Congress of the International
Association for  the  Philosophy of  Law and  Social Philosophy (IVR) for  their comments
on  the  paper. Nino Guruli, Will Bateman and  the  three anonymous reviewers read versions
of the paper as well, and gave me useful comments. My utmost thanks go to my doctoral supervi-
sor Matthew Kramer for all of his help and support and to the Kone Foundation for their generous
grant that enabled me to pursue my PhD studies at the University of Cambridge.
2
 There are some other formulations of this view as well. I will return to them later.
V.A.J. Kurki (*)
Clare Hall, University of Cambridge, Cambridge, UK
e-mail: visa.kurki@iki.fi

© Springer International Publishing AG 2017 69

V.A.J. Kurki, T. Pietrzykowski (eds.), Legal Personhood: Animals, Artificial
Intelligence and the Unborn, Law and Philosophy Library 119,
DOI 10.1007/978-3-319-53462-6_5
70 V.A.J. Kurki

persuade the reader that the legal-persons-as-right-holders view, paradigmatic as it

is, can indeed be questioned.
I will begin with a recent American example, which received a lot of publicity
around the world. In December 2014, the New York State Supreme Court, Appellate
Division, ruled in a case where the Nonhuman Rights Project, representing a chim-
panzee called Tommy, called for the court to “enlarge the common-law definition of
‘person’ in order to afford legal rights to an animal” (People ex rel. Nonhuman
Rights Project, Inc. v. Lavery, p. 1, henceforth Nonhuman).3 To be more precise, the
appellants requested that Tommy be afforded the rights that pertain to the writ of
habeas corpus (freedom from physical restraint). In its judgment, the court relied on
the paradigmatic definition of legal personality that equates X’s legal personality
with X’s holding of legal rights and/or duties:
Further, although the dispositive inquiry is whether chimpanzees are entitled to the right to
be free from bodily restraint such that they may be deemed “persons” subject to the benefits
of habeas corpus, legal personhood has consistently been defined in terms of both rights and
duties. (Nonhuman, p. 6; emphasis in original)

To support this understanding of legal personality, the court cited Black’s Law
Dictionary, according to which “[s]o far as legal theory is concerned, a person is any
being whom the law regards as capable of rights and duties”. The court also men-
tioned John Chipman Gray’s similar assertion (Gray 1997, p. 6). As chimpanzees are
currently not legal persons and as supposedly only persons can hold legal rights,
chimpanzees do not hold legal rights. Recognising them as persons for the purposes
of habeas corpus would thus entail endowing them with their first legal right. This
premise structured much of the court’s argumentation. The court made reference to
contract theories of rights, asserting that “the ascription of rights has historically been
connected with the imposition of societal obligations and duties. Reciprocity between
rights and responsibilities stems from principles of social contract, which inspired the
ideals of freedom and democracy at the core of our system of government” (Nonhuman,
p. 4). Animals could not, according to the court, fulfil any “social responsibilities” in
exchange for rights, which is why it would have been “inappropriate to confer upon
chimpanzees the legal rights  – such as the fundamental right to personal freedom,
protected by the writ of habeas corpus – that have been afforded to human beings”
(Id). This is why the court rejected the “rights paradigm” for animals, even though it
hastened to add that animals are protected by various animal welfare statutes.
The chimpanzee Tommy was represented by the Nonhuman Rights Project.
Steven Wise, the American lawyer and legal scholar who has founded the Project
and written numerous articles on the topic of legal personhood, claims that legal
personhood entails the “capacity to hold at least one legal right” (Wise 2010, p. 1).
This “capacity” does not refer to one’s natural attributes. According to Wise, ani-
mals could very well be the holders of legal rights, but they cannot hold such rights
as of now because they are legal things. The Nonhuman Rights Project aims to

3
 People ex rel. Nonhuman Rights Project, Inc. v. Lavery, No. 518336, 2014 WL 680276 (N.Y. App.
Div. Dec. 4, 2014).
5  Why Things Can Hold Rights: Reconceptualizing the Legal Person 71

“demand that American state high courts declare that a nonhuman animal has the
capacity to possess at least one legal right, to declare that she is a […] legal person”
(Wise 2010, p. 5). For anyone acquainted with contemporary analytic theories of
rights, this seems an odd policy statement. How could one’s capacity to hold rights
depend on whether one is declared a legal person?
The question whether animals could hold legal rights got me originally interested
in the topic of legal personality, as many of the chief assumptions of our paradig-
matic understanding of legal personality seemed to be utterly at odds with the two
most prominent theories of rights. Shortly put, according to the interest theory of
rights, animals already hold legal rights regardless of whether they are defined as
legal persons, because we have legal duties toward animals, such as the duty not to
mistreat them. According to the will theory of rights, on the other hand, animals
cannot hold rights regardless of whether they are declared legal persons – but nei-
ther can, for instance, small children, who are widely taken to be legal persons. I
have since then come to understand that our paradigmatic conception of legal per-
sonality dates back centuries and is, I hope to show, in need of a reappraisal.

5.2  A Very Brief History of the Right-Holding Person

I will address the history of legal personality extensively in my upcoming mono-

graph on legal personality, but I will provide a very brief summary here.4
Roman scholar Gaius’s classification of law into the law of persons (personae),
things (res) and actions (actiones) is usually mentioned as the first reference to the
person-thing distinction. It is nevertheless not at all obvious that the Romans thought
of the distinction in the abstract and systematic way that is familiar for many mod-
ern jurists – Roman law was in many ways casuistic, unsystematic and practically
oriented. For instance, Gaius did not specify what it exactly implied for an entity to
be a person or a thing (Trahan 2008, p. 11–12). In addition, slaves were classified as
persons – though unfree ones – but also as things and thus objects of ownership
(Watson 1988, p. 46–47).5 This pertains to the fact that Romans used the word per-
sona in two different senses: the word had originally referred to the mask worn by
actors in plays, which is why it could mean ‘status’ or attribute’, but it would later
also start signifying ‘human individual’ (see for instance Duff 1938, p. 6–25). I will
not delve into these matters here; how the Roman jurisconsults understood this dis-
tinction is not as important as how it has inspired the modern theory of legal person-
hood. Gaius’ trifurcation was adoped in Justinian’s Corpus Iuris Civilis, which
would later be the document on which the reception of Roman law on the European
continent would be based.6

4
 See also Bartosz Brożek’s article in this volume.
5
 Animals were only mentioned as things.
6
 The trifurcation is mentioned in Institutes which is the third part of Corpus Iuris Civilis. See
(Birks et al. 1987).
72 V.A.J. Kurki

It would seem that the French Renaissance humanist and law professor Hugues
Doneau (1527–1591, also known as Hugo Donellus) took the first steps in develop-
ing a technical legal concept of personhood. Doneau, a member of the Renaissance
humanist movement, studied the Corpus critically, attempting to establish the sys-
tematic foundations of the law (Holthöfer and Baboukis 2009).7 He uses the word
persona in a new, technical sense in his main work, Commentarii in iure civili
(“Commentaries on the Civil Law”). Persona is now the point of departure of legal
analysis, and any individual that has a positive status libertatis, civitatis and familiae
is a persona (Hattenhauer 2011, p. 44–46). Doneau did not yet clearly distinguish
between homo and persona, however. This was done by the German jurist Hermann
Vultejus (1555–1634), according to whom homo refers to a human being, whereas
persona is a “homo habens caput civile”  – a human being with a civil standing.
However, Vultejus seems to be the first to have defined these terms clearly, and the
first to have claimed that slaves lacked legal personality – that they were not personae.
Later steps toward the development of a theory of legal personhood would be
taken by Hugo Grotius, Samuel von Pufendorf, Gottfried Leibniz and Christian
Wolff. I cannot address all these developments here. I will simply note that
Continental legal scholarship was developing toward the idea of understanding law
in terms of general principles and concepts, and person would serve as a central
notion, for persons would now be defined as the “subjects” of rights and duties.
Wolff, for instance, would distinguish homo moralis and persona moralis: the for-
mer is the subject of rights and duties, meaning a potential right-holder and duty-­
bearer, whereas the latter refers to a human being who actually holds specific rights
and/or duties (Hattenhauer 2011, p. 51–52). Wolff’s influence could be felt in in the
Prussian Civil Code of 1794 – the first of the so-called natural-law codes – accord-
ing to which “[a] human being is referred to as a person insofar as he enjoys specific
rights in the civil society”.8 Anton Thibaut, who was a natural lawyer but also a
Roman scholar, would in 1803 propound an identical definition as that of Wolff’s
(Thibaut 1803, p.  141). Thibaut is of particular interest because his scholarship
would be valued very highly by John Austin, who would be instrumental in import-
ing German jurisprudence to England. A very similar definition would later be
adopted by the immensely influential German jurist Friedrich Carl von Savigny in
his magnum opus The System of Modern Roman Law.
J.-R.  Trahan names the views on legal personhood expressed by Savigny and
other members of the German Historical School the modern theory (Trahan 2008,
p. 14). According to this theory, what persons – be they human beings or corpora-
tions – possess is legal capacity (Rechtsfähigkeit), the capacity to hold rights and
bear obligations. This is, however, not sufficient for entering into contracts and
performing other legal transactions, which presupposes legal competence
­

7
 Doneau was not the first humanist jurist; he was preceded by Franciscus Connanus, who would
start systematizing Roman law in a critical manner (Stein 1998, p. 122–123).
8
 Der Mensch wird, in so fern er gewisse Rechte in der bürgerlichen Gesellschaft genießt, eine
Person genannt. Allgemeines Landrecht für die Preußischen Staaten (01.06.1794), Part I, Chap. 1,
Sect. 1. See also (Hattenhauer 2011, p. 52–56).
5  Why Things Can Hold Rights: Reconceptualizing the Legal Person 73

(Geschäftsfähigkeit). One should note, however, that these definitions were usually
offered in the context of private law. Savigny, for instance, excluded public law from
his System. He also introduced the term Rechtssubjekt (subject of law/rights), which
would later be adopted as a synonym of “legal person” by very many European
languages – English being the noteworthy exception.9
Nineteenth-century German legal scholarship was considered to be of very high
quality, and legal scholars around the Western world set out to build similar systems
as Savigny and other German scholars had done, founded on basic legal concepts.10
John Austin, who had lived in Bonn, Germany, and had become acquainted with
Continental legal scholarship, was persuaded by this systematic approach and used
it in his lectures, which he started giving in 1832 at University College London.
Austin seems to be the first Anglophone jurist to explicitly endorse equating legal
personality with right-holding (see Austin 1885, p. 348). Another early example is
Thomas Holland, an Oxford law professor, who mentions in the preface of The
Elements of Jurisprudence (1880) having read Austin and German scholarship. He
writes that “Persons are the subjects of Duties as well as of Rights. In persons rights
inhere, and against them rights are available.” (Holland 1880, p. 65). In addition, he
notes that a “‘natural’ […] person is such a human being as is regarded by the law
as capable of rights and duties.” and that slaves are things, being “Objects of Rights
and Duties” (Holland 1880, p. 68). Many other Anglophone authors would follow
suit: In 1888, W.H. Rattigan, acknowledging his debt to Holland, defined “person”
almost identically as Holland had done (W. H. Rattigan 1888, p. vii–xii and 14), as
did Frederick Pollock in 1896 (Pollock 1896, p.  105–107). Six years later, John
Salmond wrote: “[s]o far as legal theory is concerned, a person is any being whom
the law regards as capable of rights or duties” (Salmond 1902, at 334).11 Finally, in
1909, John Chipman Gray – who was clearly familiar with German legal scholar-
ship, referring to German jurists 58 times in The Nature and Sources of the Law
(Herget and Wallace 1986, p. 426) – propounded his famous definition which would
later be cited by the court in the Tommy case:
In books of the Law, as in other books, and in common speech, “person” is often used as
meaning a human being, but the technical meaning of a “person” is a subject of legal rights
and duties. (Gray 1997, p. 19)

It seems relatively clear that the genealogy of the paradigmatic understanding of

legal personhood is in eighteenth- and nineteenth-century German scholarship.
Modern theories of rights – the so-called will theory and interest theory – have also
originated in this era. However, later authors have refined these theories; the con-

9
 South Africa – a mixed jurisdiction – is an exception among Anglophone countries in that even
jurists writing in English do use the phrases “legal subject” and “legal object” synonymously with
respectively “person” and “thing”. See (Heaton 2015).
10
 For the influence of German, and especially Savigny’s, legal scholarship on English and
American jurists, see (Hoeflich 1989); (Riesenfeld 1989); (Reimann 1989) and (Herget and
Wallace 1986). Lars Björne has discussed the influence of Savigny’s personhood theory on
Scandinavian legal scholarship (Björne 1998, p. 349–365).
11
 That Salmond was familiar with Savigny’s work can be seen at 347 f.
74 V.A.J. Kurki

temporary theories of rights are very different from the ones formulated by Savigny
and Rudolf Jhering, for instance.12 Theories of legal personhood, on the other hand,
have not really changed much.

5.3  Legal Persons in Contemporary Western Jurisdictions

The best way to understand the person–thing distinction, or as I will call it, person–
nonperson distinction, is to approach it as a conceptual scheme extant in Western
legal systems. Eric Funkhouser styles conceptual schemes as “ways of thinking
about things” (2014, p. 6). He writes:
Every conceptual scheme […] involves a classification into kinds. Examples are easy to
come by. Biology classifies animals as mammals or reptiles, mathematics classifies num-
bers as prime or composite, and ethics classifies actions as duties or prohibitions. These
classifications are then used to describe situations, make generalizations, advance laws and
principles, and the like (Funkhouser 2014, p. 1).

The person–nonperson distinction is a conceptual scheme that can be employed

to understand and categorise the norms of a Western legal system. Kaarlo Tuori
maintains that the divide between persons and nonpersons is a part of the “deep
structure of law” that is shared by all Western legal systems and that concepts like
“legal subjectivity” – i.e. legal personality – and “subjective right” are basic legal
categories which underpin “the conceptual space for modern law” (Tuori 2002,
p. 186–188). I agree with him that our paradigmatic notions of legal personality are
deeply embedded in Western legal thought; the legal personality of animals (or, say,
software agents) is not simply unacceptable but rather unthinkable for many jurists.
The conceptual scheme we are investigating divides the world into persons and
nonpersons. Concepts have an extension and an intension. The former has to do with
what entities in the world the concept corresponds to, and the latter tells us, roughly
put, why they are covered by the concept. W.V.O. Quine used the examples of “cor-
date” (creature with a heart) and “renate” (creature with a liver) to illustrate this:
both concepts have the same extension (because every creature that has a heart also
has a liver) but different intensions (Quine 1951).13 The paradigmatic theory of legal
personality maintains that the intension of “legal person” is “someone or something
that holds rights and/or duties”. However, if we apply the modern theories of rights
to see who or what holds legal rights, we get an extension that does not correspond
with whom or what we take to be legal persons.
Western jurisdictions share certain central tenets regarding the extension of
“legal person” – i.e. regarding who or what is, or is not, a legal person. Firstly, every
Western jurisdiction contains the distinction between natural persons and artificial
persons. The former are human individuals, the latter corporations. The doctrine of

 For the rights theories of the nineteenth century, see (Simmonds 1998).
12

 There may be some counterexamples, such as dead creatures whose livers have been removed,
13

but I take the point to be clear.

5  Why Things Can Hold Rights: Reconceptualizing the Legal Person 75

who counts as a natural person is also relatively uniform across the Western world.
In Western legal systems, the paradigmatic natural persons are
(1) human beings
(2) who have been born,
(3) who are currently alive, and
(4) who are sentient.
1. Humanity  Only human beings are natural persons.14 This is often not made
explicit but is more of a silent assumption. The German Civil Code Bürgerliches
Gesetzbuch is explicit about the humanity condition: “The legal personhood of a
human being begins at the completion of birth” (emphasis added).15 A similar state-
ment is made in the Austrian Civil Code: “Every human being has innate rights that
are obvious to reason, and is therefore to be considered a person” (emphasis added).16
2. Having Been Born  This condition dates back to Roman law. It is widely (though
not uniformly and without exceptions) accepted in Western legal systems, in both
common-law and civil-law jurisdictions, even if US states have increasingly
departed from it.17 The condition is questioned especially when abortion is dis-
cussed.18 Stillborn children are usually excluded, whereas children born alive may
occasionally benefit from the nasciturus pro iam nato habetur quamdiu agitur de
eius commodo maxim – nasciturus for short – that is, ‘one who is about to be born
is to be treated as if already born whenever that is to her or his advantage’.19 This
rule presupposes, however, that the foetus is later born alive.
3. Currently Alive  Dead people are not legal persons, even if their estates may very
well be. However, it has been argued that dead people possess some limited rights
(Kramer 2001). Dead people’s determinations may also continue to “exist” post mor-
tem in the form of a will. It should be noted that determining when a person is dead
is not uncontroversial; the clinical criterion of brain-death is sometimes questioned.
4. Sentience  An entity that meets the three criteria above but that does not have a
sentient mind at all, such as anencephalic infants who do not possess a brain cortex

14
 “‘Natural person’ is the term used to refer to human beings’ legal status” (Berg 2007, p. 373).
15
 Die Rechtsfähigkeit des Menschen beginnt mit der Vollendung der Geburt. Bürgerliches
Gesetzbuch, § 1.
16
 Jeder Mensch hat angeborne, schon durch die Vernunft einleuchtende Rechte, und ist daher als
eine Person zu betrachten. Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch), § 16.
17
 The condition is explicitly recognised in the German Civil Code, as was noted above, as well as
in Part 1, Section 1 of the Italian Civil Code. In Spanish law, the neonate must live for at least 24 h
outside of the womb in order to be deemed a legal person (de las Heras Ballell 2010, p.  34).
Regarding French law, see for example (Malaurie 1999, p. 27): “For natural persons, legal person-
ality appears at birth […] and disappears at death […].“ ([P]our les personnes physiques, la per-
sonnalité juridique apparaît avec la naissance […] et disparaît avec la mort […].).
18
 An American landmark case, defining foetuses as nonpersons in the context of the 14th
Amendment of the Constitution, is Roe v. Wade, 410 U.S. 113, 158 (1972).
19
 This is Neil MacCormick’s translation of the maxim (MacCormick 2007, p. 79).
76 V.A.J. Kurki

and therefore lack sentience are not paradigmatic legal persons. For instance, such
infants have been deemed legal persons in the US, but this decision has been the
subject of controversy, which implies that they are not easy cases (Berg 2007,
p. 377–379).20
If these criteria are met, one is a paradigmatic legal person. However, these cri-
teria are only sufficient for what is in civil-law traditions denoted “legal capacity”
(Rechtsfähigkeit, capacité de jouissance), which is most often defined as the capac-
ity to hold rights and bear duties, or as the capacity to be a party to legal relations,
as opposed to “legal competence” (Geschäftsfähigkeit, capacité d’exercice), mean-
ing the ability to enter binding contracts and so forth (Lehmann 2007). “Legal
capacity” is an ambiguous phrase in that it can also be used synonymously with
“legal competence”; this usage is prevalent, for instance, among disability schol-
ars.21 Due to this ambiguity I call these two elements of legal personality passive
and active legal personality.22 The four criteria above are not sufficient for “legal
competence” or active legal personality, which is generally contingent on one’s age
and mental abilities. For active legal personality, Western legal systems typically
require a fifth attribute:
5. Sufficient Rationality and Age  For active legal personality, one must be of a
certain age and have mental abilities that roughly correspond to those of an adult
human being of sound mind. If one lacks either attribute, one is under the power of
a legal guardian and thus alieni iuris or – in the parlance of disability law – lacking
legal capacity.
If one meets criteria 1–4, one is a passive natural person in contemporary Western
legal systems; if one also meets criterion 5, one is an active natural person as well.
There are also several points of consensus regarding what beings are not, or have
not been, legal persons. Obviously, rocks and gusts of wind are not legal persons,
but among the theoretically significant cases the most central one is likely slavery,
which involved treating human beings as property rather than as legal persons.23 It
is likewise widely accepted that nonhuman animals are currently not legal persons,
even if many authors claim that some animals should be accorded legal p­ ersonhood.24
The historical subjugated status of women in various Western jurisdictions has also
been often analysed from the point of view of their lack of (full) legal
personality. The most famous example is probably the common-law doctrine of

20
 Jörg Neuner analyses anencephalic infants from the point of view of German law and concludes
that they are “full legal persons” because the relevant organs – heart, lungs and brain – are still
functioning (Neuner 2013, p. 651).
21
 This is the terminology used in the UN Disability Convention. See also (Flynn and Arstein-
Kerslake 2014) and (Quinn and Arstein-Kerslake 2012).
22
 This is somewhat inspired by Neil MacCormick’s terminology in (MacCormick 2007, p. 77–99).
23
 Just a few of the scholars classifying slaves as legal nonpersons include (Fede 1992); (Kelsen
2006, p. 95); and (Wise 1996, p. 1). The Scandinavian realist Karl Olivecrona takes himself to be
reporting the received opinion when noting that slaves lack legal personality (Olivecrona 1928,
p. 38). See also for instance (Cairns 2012).
24
 In addition, some animals were prosecuted in criminal courts during the Middle Ages. See
(Evans 2010) and (Sykes 2011).
5  Why Things Can Hold Rights: Reconceptualizing the Legal Person 77

coverture which meant that a married woman’s property was subsumed into that of
her husband.25 Contemporarily, the Finnish and Swedish doctrines of guardianship
(edusmiehyys in Finnish, målsmanskap in Swedish) allowed for women to retain
their property but always required a male to represent them legally (Pylkkänen
2009). In my terminology, Finnish and Swedish married women were thus passive
but not (fully) active legal persons. Since the status of women has varied from juris-
diction to jurisdiction, I will not focus on them here.
So we have a number of extensional beliefs regarding who or what is or is not a
legal person. If the legal-persons-as-right-holders view is correct, then the following
should hold:
–– adult human beings, infants and mentally disabled people hold rights and/or
duties
–– slaves held no rights
–– animals and foetuses hold no rights (except foetuses hold so-called nasciturus
rights, which become actual only if the foetus is later born alive)
However, if we follow the contemporary theories of what right-holding means,
rights end up being ascribed to legal nonpersons or rights are denied to legal per-
sons. Thus, the proposed intension (according to the legal-persons-as-right-holders
view) does not match the widely-accepted extension of “legal person”.

5.4  Assessing the Paradigmatic Theory

I should firstly note that I do not take the traditional theory of legal personality to be
wrong. It is not wrong because it cannot be wrong. It makes, for instance, no predic-
tive claims that could be empirically refuted. Even though some formulations of the
legal-persons-as-right-holders view can be rejected on their own terms because of
the non sequiturs that they contain, the theory at its barest is purely stipulative and
definitional. The problem of the theory is rather that it cannot properly explain and
structure the various ongoing debates that are, in some way or another, linked to the
concept of legal personality. Such debates include those over the legal status of
animals, foetuses and corporations. The mainstream theory of legal personality has
implications that obscure the need for legal reasoning and normative argumentation;
one such implication is that animals do not, or could not, currently hold legal rights
because they are not legal persons.
We can distinguish three conceptions of legal personhood. First, some authors
define (legal) persons as the holders of rights and/or duties. I call this conception the

25
 Many jurisdictions passed statutes abolishing coverture during the mid-19th century. See (Hoff-
Wilson 1987). Married women’s legal status in the 19th-century US is depicted in (Shammas
1994). For a contemporary perspective on the active legal personality of women in a number of
Commonwealth countries, see (Freeman 1990). A rather famous case is also In re Lockwood,
where the US Supreme Court allowed for state courts to interpret “person” as excluding females.
In re Lockwood 154 U.S. 116 (1894)
78 V.A.J. Kurki

legal-persons-as-right-holders position.26 Second, some jurists define legal personal-

ity as the legal capacity to bear rights and duties. As noted, Steven Wise claims that
legal personhood is the “capacity to hold at least one legal right” (Wise 2010, p. 1).
Such definitions are very popular among civil-law scholars, too (e.g. Rochfeld 2013,
p. 15 and Larenz 1983, p. 41–42). I denote this position the capacity-for-­rights view.
I will in this essay focus on the first the first definition, i.e. the legal-persons-as-­
right-holders view, though I will say some words about the capacity-for-rights view
as well. However I should also name a third conception, which explains legal per-
sons as the only possible parties of legal, or jural, relations.27 Savigny conceived of
private law as relationships between persons; the second book of his System des
heutigen Römischen rechts was even translated into English under the title Jural
Relations; or, the Roman Law of Persons as Subjects of Jural Relations (von Savigny
1884). This understanding of legal personality as the capacity to participate in legal
relations is still invoked, though often with reference to the scheme of legal relations
created by Wesley Newcomb Hohfeld. Wise, for instance, claims that legal things,
such as animals, cannot participate in Hohfeldian legal relations (1998, p. 801). I
call this the capacity-for-legal-relations view. It will not be addressed independently
in this essay. However, I should mention that in the Hohfeldian system, any being
that can hold rights can definitely also partake in legal relations. Thus, while
addressing the legal-persons-as-right-holders and capacity-for-rights positions, I am
indirectly addressing the capacity-for-legal-relations position as well.

5.4.1  Legal Personhood and Right-Holding

As said, there are two main competing theories of rights: the interest theory and the
will theory. I will focus here on formulations of these theories that are based on the
Hohfeldian framework because of the analytic virtues of the framework and because
many authors who write on issues of legal personality employ Hohfeld’s theory.
The most prominent Hohfeldian interest theory is that of Matthew Kramer; will
theories have been developed and refined by HLA Hart, Nigel Simmonds and Hillel
Steiner, among others.28 I will present an outline of both theories here, focusing on
the features that are relevant to the discussion at hand.
According to Kramer’s interest theory, the holding of a right is (roughly) equiva-
lent to being the beneficiary of a duty.29 Thus, A holds a right toward B if B has a
duty toward A, and having a duty toward someone means that such a duty typically

26
 I’ve omitted the “and-duty-bearers” part to improve readability.
27
 Some authors distinguish between legal and jural relations; I use the phrases interchangeably.
28
 Kramer’s interest theory was first articulated in (Kramer 1998), and subsequently refined in sev-
eral articles, such as (Kramer 2001). For will theories, see (Hart 1982), (Steiner 1994), and
(Simmonds 1998).
29
 To be more precise, rights are claims that are accompanied by sundry immunities. I will disregard
this detail in the present discussion, as it does not affect my argument in any way.
5  Why Things Can Hold Rights: Reconceptualizing the Legal Person 79

is in the interest of the entity in question. This is a relatively extensive conception of

rights: it allows for children’s rights to, say, be nurtured. It also allows for many
criminal-law rights which the will theory denies, such as the right not be murdered.
In addition, it encompasses foetuses’ and animals’ rights. I will return to the scope
of interest-theory rights below.30
The will theories, on the other hand, assert that holding a right is not about being
the beneficiary of a duty but having control over a duty. In will theories, a right-­
holder may always choose to demand or waive the enforcement of a duty. Such
control can only be wielded by people with sufficient mental faculties; this is why
only adult human beings without serious mental deficiencies can hold rights accord-
ing to the will theory.
I should note here that none of the modern analytic theories of rights assert that
in order to be able to hold rights, one would first have to be “declared” to have the
capacity to hold rights. Rather, one either is able to hold rights or one isn’t; this does
not depend on the recognition of the legal system. Whether one actually holds rights
depends, of course, on the legal norms of the jurisdiction. There is, however, a sense
in which the capacity-for-rights view is appealing; being a legal person can enable
one to hold so-called special rights. I will address this below.
So we have three conceptions of rights: the “anything-beneficial” conception
which associates rights with all beneficial legal positions, the interest theory and the
will theory. I will not endorse one of them as the correct conception here; I will
rather use them all to test the legal-persons-as-right-holders position. What I will
show is that when each conception is applied, there will either be legal nonpersons
that have rights, or legal persons without rights. I will start with the interest theory.

5.4.2  Interest Theory and the Legal Person

Rights, as defined in interest theories, can be attributed to entities that have interests
and whose interests are furthered by duties.31 This leads us to ask what entities actu-
ally have interests, as the concept of interest is open to different kinds of interpreta-
tions. Suffice it to say here that Kramer takes sentient beings to be the primary
group of interest-theory right-holders (Kramer 2001).32 This corresponds with, for
instance, the seminal essay by Joel Feinberg on the rights of animals and unborn
generations (Feinberg 1974) and, more generally, the mainstream of modern secular
Western ethics, in which the sentience of a being is very often taken to be an impor-
tant (though not perforce necessary or sufficient) condition for what may be

30
 Which entities can hold interest-theory rights is discussed more extensively in (Kramer 2001).
31
 This is a crude simplification of Kramer’s interest theory, but it preserves the features of the
theory that are relevant for the argument.
32
 Kramer has a more extensive conception of interests, as he thinks that interests can be ascribed
to, for instance, blades of grass, but the normative protections of sentient beings are according to
him the primary group of such protections that can be called rights.
80 V.A.J. Kurki

termed – depending on the moral theory – as the possession of ultimate value, being
a moral patient, figuring in the equal consideration of interests and so on. Sentience
is thus also integral to an entity’s status as a potential holder of interest-theory
rights, as it can be said that things matter only for sentient beings. On the other
hand, moral agency or the capacity to claim one’s rights are not necessary attributes
for being a holder of interest-theory rights.
Recent research indicates that certain nonhuman animals are conscious.33 Also
human foetuses during the final trimester possess the capacity to be conscious, even
though whether they actually experience anything is still unclear; preterm infants
can, according to one publication, “reach a minimal level of consciousness”
(Lagercrantz and Changeux 2009). Issues such as these are far from settled, but they
provide sufficient reason for attributing the capacity to hold rights to foetuses at
least in the late stages of development.34
The interests of both foetuses and nonhuman animals are typically recognised to
some extent in Western legal systems, as both are protected by law. The protection of
foetuses takes place primarily through the regulation of abortions, especially in late
stages of pregnancy, whereas animals are protected by animal welfare laws. According
to the interest theory, therefore, both foetuses and animals already have legal rights.
However, it is far from obvious that they are legal persons: animals are very widely
understood to be legal nonpersons, and legal scholars and codes determine most often
the beginning of a human being’s legal personality at birth (e.g. Seymour 2000). A
similar point can be made with regard to American slaves. Slaves are widely classified
as legal nonpersons, but they did in fact hold some rights. For instance, Section XXVIII
of the South Carolina Slave Code of 1740 penalized the wilful killing of slaves:
And whereas cruelty is not only highly unbecoming of those who profess themselves
Christians, but is odious in the eyes of all men who have any sense of virtue or humanity;
therefore to restrain and prevent barbarity being exercised toward slaves, Be it enacted, That
if any person or persons whosoever, shall willfully murder his own slave, or the slave of
another person, every such person shall upon conviction thereof, forfeit and pay the sum of
£700 current money […].

The slaves of South Carolina had the interest-theory right not to be killed wilfully.35
Does this right mean that the slaves were in fact persons in the eyes of the law? The
right in question may be relevant when determining the slave’s legal personality, but
taking this as a sufficient reason for the slave’s legal personhood – as the legal-persons-
as-right-holders view implies – seems simplistic. Does it not matter that slaves were

33
 See, for example, The Cambridge Declaration on Consciousness, drafted by Philip Low and
signed on July 7, 2012 by conference participants of Francis Crick Memorial Conference on
Consciousness in Human and non-Human Animals. It is available at http://fcmconference.org/img/
CambridgeDeclarationOnConsciousness.pdf (accessed Nov 19, 2016).
34
 It is important to note that the sheer fact that a foetus or an animal is sentient does not tell us what
kind of legal protections these beings should be accorded. Even if a third-trimester foetus is sen-
tient, there may still be moral justifications for the termination of pregnancy during this phase of
gestation.
35
 More generally regarding the legal protection of slaves in the antebellum South, see (Morris
1996, p. 182–208).
5  Why Things Can Hold Rights: Reconceptualizing the Legal Person 81

being bought and sold as property; that their own ownership rights were very limited;
or that they had no standing in courts, except when prosecuted for crimes? Determining
an entity’s legal personality is not always an either-or matter, but a more nuanced one,
as the fact that slaves were persons in the eyes of criminal law exemplifies.36
So interest-theory rights cannot be used to justify the legal-persons-as-right-
holders position. Animals and foetuses have interest-theory rights  – and thus
anything-­beneficial rights – but their legal treatment is vastly different from that of
infants. Similarly, claiming that slaves were legal persons just because of the limited
rights they held would be simplistic, as they lacked many of the entitlements that
legal persons typically hold.37

5.4.3  Will Theory and the Legal Person

Our treatment of the will theory can be relatively brief. As said, for the will theory,
right-holding is equated with control over duties. This is not just any control at all, but
the kind of control that can only be exerted by rational beings with mental faculties
that correspond to those of adult human beings of sound mind. Now, although an
infant requires an adult human being of sound mind as their representative in order to
have their legal entitlements enforced and administered, this does not mean that
infants are not legal persons. I claim that legal personality involves both active and
passive elements. The active elements require the kind of mental capacities that adult
human beings of sound mind have, whereas the passive elements require mere sen-
tience. Both are relevant, but legal personality cannot be explained by merely making
reference to the active elements. A theory of legal personality according to which only
the holders of will-theory rights are legal persons is unable to account for many impor-
tant issues: for instance, it cannot explain what the majority of legal scholars mean
when they determine the beginning of legal personality at the point of birth. Newborn
children are treated legally in a different way than foetuses, but this difference does
not pertain to the holding of will-theory rights; infants do not control anyone’s legal
duties any more than foetuses do. Similarly, a theory that equates legal personality
with the holding of will-theory rights has very little explanatory power with regard to
the effects of the so-called foetal personhood amendments in some US states, which
extend or would extend some aspects of legal personality to foetuses, as it is clear that
these amendments do not generate any will-­theory rights for the foetuses.
One must thus either conclude that the holding of will-theory rights is unneces-
sary for legal personality, or settle for a theory that is unable to explain many impor-
tant issues pertaining to legal personality.

36
 Some adherents of the legal-persons-as-right-holders view recognise this; Richard Tur, for
instance, notes that legal personhood is “a matter of degree” (Tur 1988, p. 122).
37
 Women have not been legal persons to a full extent at all times, either – for instance, in some
jurisdictions, they have lacked the competence to dispose of their property, and in others the legal
capacity to own property altogether.
82 V.A.J. Kurki

5.4.4  Duties and the Legal Person

Discussions of legal personhood revolve around the concept of right-holding, even

though legal personality is typically defined as both right-holding and duty-­
bearing.38 Defining legal personality in this way has led legal scholars to make some
very implausible claims about slavery. Hans Kelsen, for instance, claims the follow-
ing: “That a slave is legally no person, or has no legal personality, means that there
are no legal norms qualifying any behavior of this individual as a duty or a right”
(Kelsen 2006, p. 95). At least as far as duties are concerned, the claim is simply
false.39 The fact that slaveholding societies commonly held slaves legally responsi-
ble for their delicts is for slavery scholar Orlando Patterson reason enough to con-
clude that the “common definition of a slave as someone without legal personality”
is a “fallacy that we can quickly dispose of.” He laments that “most students of
slavery tend to be as knowledgeable about jurisprudence as they are ignorant of
law” (Patterson 1982, p. 22).40 But perhaps the problem lies rather within our defini-
tion of legal personality?
I have now addressed the question of whether legal personhood can be reduced
to right-holding or duty-bearing, and found the answer to be negative. What I will
do now is address very briefly whether legal personhood means the capacity to hold
rights or to participate in legal relations.

5.4.5  Capacity to Hold Rights

As said, the capacity-for-rights conception does not really find support in the mod-
ern analytic theories of rights. One’s capacity to hold rights is not something that
could be bestowed by the legislator or a judge. However, there is a limited sense in
which the capacity-for-rights view is appealing. Private law involves, to a large
extent, legal enforcement of what Hart calls special rights, which “arise out of spe-
cial transactions between individuals or out of some special relationship in which
they stand to each other” and where “the persons who have the right and those who
have the corresponding obligation are limited to the parties to the special transaction
or relationship” (Hart 1955). A large number of such relations are only recognised

38
 An interesting exception in this regard is Arthur Machen, who claims that legal personhood is not
about right-holding at all but only about duty-bearing (Machen 1911, p. 263).
39
 The claim is also false with regard to rights, but not as glaringly false.
40
 It is rather interesting that in Political Liberalism John Rawls endorses the claim that “slaves are
not counted as capable of having duties or obligations” (Rawls 2005, p. 33). However, on the same
page he makes reference to Patterson’s book, which contains a wholesale rebuttal of that very
claim. Hillel Steiner makes a similar claim: “self-enslavement […] cannot be incurred by a self-
owner’s transferring (selling or donating) that right [to self-ownership], since such transfers entail
that transferrors thereby acquire duties to their transferees, whereas slaves, as things wholly owned
by others, must lack duties as well as rights” (Steiner 1994, p. 232f).
5  Why Things Can Hold Rights: Reconceptualizing the Legal Person 83

and enforced by legal systems if they arise between two legal persons. For instance,
slaves could typically not enter into legally enforceable contracts, such as marriage.
In this sense, the abolition of slavery involved granting the slaves the capacity to
hold certain legally enforceable special rights. Here we need to distinguish the con-
ceptual and the legal capacity to hold special rights. Rocks lack the conceptual
capacity to hold special rights because they cannot hold any legal positions, and
there is nothing the legislator can do about that. Slaves, on the other hand, lacked the
legal capacity to hold such rights because the legal system did not, for instance,
enforce their agreements. But the legislator can do (and should have done) some-
thing about that.
However, special rights are only a part of what happened to the slaves when they
were freed: they received numerous other types entitlements as well, such as claim-­
rights protecting their body and personal integrity. This is why the capacity-for-­
rights-position is not a sufficient account of legal personality, even if it does have
some explanatory power.

5.5  Alternative Account

This essay has mostly consisted of highlighting the unsustainability of the paradig-
matic theories of legal personhood. I will now offer a brief outline of what I con-
sider to be the distinguishing features of legal persons.
The New York State Supreme Court, Appellate Division referred – perhaps inad-
vertently  – to two different definitions of legal personality: in Black’s Law
Dictionary, cited by the court, a legal person is defined both as “any being whom the
law regards as capable of rights and duties”, and “[a]n entity […] that is recognized
by law as having the rights and duties [of] a human being” (emphasis added). These
definitions may seem very similar, but the latter is considerably closer to the truth:
legal personality is not about having rights or duties in general, but rather about
holding some or all of the specific types of legal entitlements and burdens that are
held by some or all human beings in virtue of their status as legal persons. So, what
are such entitlements and burdens? Consider the legal difference (in a typical
Western jurisdiction41) between
( 1) newborn children and late-stage foetuses
(2) newborn children and nonhuman animals
(3) newborn children and adult human beings of sound mind
In cases (1) and (2), the relevant difference – which establishes the legal person-
ality of newborn children – is that children hold many of the entitlements and bur-
dens that are generally associated with legal persons:

41
 “Typical” in that the jurisdiction has, for instance, preserved the born-alive rule: only children
that are born alive are legal persons.
84 V.A.J. Kurki

–– they may own property even if they cannot dispose of it independently42;

–– their lives, liberty, and bodily integrity are protected;
–– they have standing in courts and can thus be parties in lawsuits (though infants
need, of course, someone else to represent them);
–– they are not susceptible to being owned43;
–– they are protected by criminal law as potential victims (killing a newborn counts
as a homicide, which is not the case with foetuses in most jurisdictions); and44
–– they can undergo legal harms (torts) which may lead to restitution or
compensation.
These are incidents of legal personality. Neither nonhuman animals nor human
foetuses hold such incidents to a high degree, though these two groups are mutually
different in two aspects. First, nonhuman animals are property and thus susceptible
to being owned, whereas human foetuses are not. Secondly, human foetuses benefit
from the nasciturus or born-alive rule: one who is about to be born is to be treated as
if already born whenever that is to his or her advantage, if she or he is later born alive.
I call the incidents above passive incidents, as they do not presuppose the kind of
deliberative capacity, requisite for acting in the law, that adult human beings of
sound mind have. This difference between newborn children and adult human
beings of sound mind becomes relevant in case (3), as legal persons with high-level
reasoning capabilities hold some additional, active incidents:
–– they can enter into contracts and perform other acts-in-the-law
–– they are regulated by law and held responsible for their actions
Of these two incidents, slaves in the antebellum U.S. South held only the onerous
one, that is, they were persons in the eyes of the criminal law. These active and passive
incidents are what is distinctive about legal persons – not right-holding or duty-­bearing
in general, but the holding of specific types of legal entitlements and burdens. Legal
personality according to the theory offered here is a cluster concept. There is thus no
exact border between legal personality and nonpersonality. An entity may hold certain
of the aforementioned incidents and not others. This is what court cases concerning
personhood are often about: the Tommy case concerned the question of whether
­chimpanzees are legal persons for the purposes of habeas corpus, whereas a recent

42
 This depends somewhat on the jurisdiction, however. In certain common-law jurisdictions (such
as England), children may only be the beneficiaries of trusts. Regardless, this is often considered a
form of “beneficial ownership” (see Penner 2014). Even in such jurisdictions where infants are
allowed to own property, from a Hohfeldian point of view they only hold ownership-related claim-
rights but not the ownership-related powers that require more advanced volitional capacity.
43
 For example, Article 16-1 of the French Civil Code states explicitly that the human body, its ele-
ments and its products cannot be the objects of economic rights (droit patrimonial). The question
of whether human bodies can be property in the context of common-law jurisdictions is discussed
extensively in (Davies and Naffine 2001).
44
 Even if in some jurisdictions the killing of one’s newborn may lead to a less harsh sentence than
a typical homicide. For example, according to Finnish law, “[a] woman who in a state of exhaus-
tion or distress caused by childbirth kills her baby shall be sentenced for infanticide” (Finnish
criminal code, chapter 21, section 4).
5  Why Things Can Hold Rights: Reconceptualizing the Legal Person 85

ruling in Oregon included “animals […] in the class of ‘persons’ that officers may aid
without a warrant”, thus improving the criminal-law protection of animals.45
We can thus distinguish legal personality with regard to a particular incident or a
set of incidents from legal personality tout court, without qualifications. Slaves
were clearly legal persons in the limited sense described above – what I call purely
onerous legal personality – but were they legal persons tout court? Because of the
cluster nature of legal personality, there is no clear divide between legal persons and
nonpersons, but the slaves were endowed with a very limited set of the incidents,
which is why they were clearly not legal persons tout court.

5.6  Conclusions and Discussion

In this essay, I have challenged the paradigm conception of legal personality and
sketched an alternative view. Legal nonpersons can hold rights, or – if one endorses
the will theory  – legal persons do not necessarily hold any rights. Instead of the
formalistic definitions recounted above, the sufficient condition for legal personality
consists in being the holder of incidents of legal personality, such as fundamental
rights, criminal law, legal standing, and so forth – even though there is no clear-cut
threshold between persons and nonpersons.
The proposed account has many benefits. In everyday legal parlance the term
“right” is often used indiscriminately to refer to both interest-theory and will-theory
rights, so in this discourse there is no reason to abstain from talking of the legal rights
of legal nonpersons. However, because animals are not legal persons and only legal
persons can supposedly hold rights, many jurists (such as the judges of the New York
court) are hesitant to call the animals’ legal protections rights. One thus sees dissimi-
larity where there is uniformity because of the current paradigmatic theory. Secondly,
the simplistic, binary nature of the current theory obfuscates the fact that an entity
can simultaneously be a legal person for some purposes and a legal nonperson for
others. It is obvious that slaves bore some criminal-law duties, but is this a reason
enough for claiming that slaves were legal persons in general, without any qualifica-
tions? Relatedly, the positions I criticise often ignore dissimilarities between differ-
ent areas of law: for instance, the capacity-for-rights view does have some application
in the field of private law but it is unsuitable as a general theory of legal personality.
The New York State Appellate Court believed it was deciding whether to grant
Tommy his first right. This premise was misguided, as Tommy was already pro-
tected by legal safeguards that, in the case of people, we call rights. Thus, the case

45
 The Oregon Supreme Court has in fact recently delivered two interesting judgments in this
regard. In State v. Fessenden/Dicke (355 Or 759 (2014)) the court affirmed a decision by a lower
court, according to which “animals were included in the class of ‘persons’ that officers may aid
without a warrant” (at 763). State v. Nix (355 Or 777 (2014)) concerned Oregon’s anti-merger
statute, according to which a given type of conduct that violates only one statute constitutes as
many crimes as there are victims. The court ruled that animals are such victims, which is why the
defendant could be convicted of 20 counts of animal neglect rather than only one.
86 V.A.J. Kurki

was not about whether Tommy ought to be included in the “rights paradigm”, as
animals already hold rights, but about whether a particular legal personhood-related
institution ought to be extended to cover the chimpanzee.
Such disentangling of right-holding from legal personhood offers various benefits.
It allows jurists to discuss animal rights without being uneasy about the topic: they
need not worry that conceding the existence of animal rights would be extravagant
because of its implying the legal personhood of animals. On the other hand, lawsuits
concerning animal personhood do not need to focus excessively on the question of
whether animals can, or ought to, hold rights at all, but rather on whether the animals
in question ought to hold the particular legal entitlements that are being claimed for
them. For it is of course the case that, though animals are not currently legal persons
in Western jurisdictions, legal personality can be extended to them – there is no con-
ceptual barrier that prevents the application of legal personality-­related institutions,
such as standing and habeas corpus, to nonhuman animals. However, only the passive
elements, which infants also partake in, should apply. Animals should not for instance
be criminally liable, as was the case in medieval animal trials, for animals do not pos-
sess the requisite deliberative capacities. The legal arrangements to ensure the enforce-
ment of the legal personhood-related entitlements that animals hold would be
analogous to those that are applied in the case of infants: for instance, if animals were
to own property, they would need guardians to dispose of it.

5.6.1  Finally

This paper has probably not been enough to persuade the readers that my account of
legal personality is the best one. But hopefully it has at least managed to show that
there are alternative ways of understanding legal personality apart from the legal-
persons-as-right-holders view. For Continental jurists, the paradigmatic theory may
seem almost tautological because of the connotations of terms such as Rechtssubjekt,
which can be literally translated as “subject of rights”. But this does not have to
mean that equating legal persons with the holders of rights would be the best way of
understanding the conceptual scheme of legal personality. Thus, rather than taking
the legal-persons-as-right-holders dogma to be true by definition, the matter should
be reopened for theoretical investigation in order to reach an account that can best
explain the pressing issues of the twenty-first century.

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Chapter 6
Animals’ Race Against the Machines

Rafał Michalczak

6.1  Introduction

It is a platitude that every ethical theory is based on some assumed hierarchy of

values. Although some theories give the highest position to values derived from
supernatural beings (such as gods or ghosts of ancestors), it is always possible to
find a common anthropocentric denominator. Even in systems in which people have
been obliged to follow God’s will, it was always for humans’ good.
The popularity of ethical systems based on assumptions linked with supernatural
beings faded away over time. New systems appeared that did not hide their primary
aim of promoting human good under the veil of supernatural will. Human will cre-
ated ethical systems, as well as legal ones.
Nowadays, the grounding of this anthropocentric attitude is questioned, espe-
cially within the framework of practical ethics. This critical approach, which may
be generally called posthumanistic, tries to raze the humanistic order to eliminate
humans as the ultimate aim and main criterion of every value ascription.
Within ethical investigations, the posthumanist movement has many different
forms. However, all of them share at least one common characteristic, which is the
postulate of broadening the circle of ethical subjects. In other words, they argue that
ethically relevant features that are not exclusively human exist, and due to this fact,
every being that has this feature should be considered an ethical subject (and not
solely an object of human will). Following this mode of thinking, two main strate-
gies of expansion may be worth noticing. The first is linked with environmentalist

The writing of this paper was supported by the Polish National Science Centre (research project
No 2014/15/N/HS5/01861, PRELUDIUM 8).
R. Michalczak (*)
Faculty of Law and Administration, Theory of Law Department, Jagiellonian University,
Kraków, Poland
e-mail: michalczak.rafal@gmail.com

© Springer International Publishing AG 2017 91

V.A.J. Kurki, T. Pietrzykowski (eds.), Legal Personhood: Animals, Artificial
Intelligence and the Unborn, Law and Philosophy Library 119,
DOI 10.1007/978-3-319-53462-6_6
92 R. Michalczak

ethics and postulates the expansion of the ethical circle to include different elements
of nature. The second one—linked with ethics of artificial intelligence—points out
that assumptions of modern cognitive sciences transcribed to ethical language
should lead to the ascription of ethical values to specific informational phenomena,
including advanced computer software.
Despite its ecocentric or infocentric rationalization, a change in the scope of the
ethical circle doesn’t lead only to an alteration in its conceptual framework. Due to
the adherents of both positions, it also has strong practical consequences amounting
to a postulated reconstruction of the legal system. Advocates of both “green” and
“silicon” ethics argue that an expansion of the ethical circle should broaden the
scope of beings recognized by law as subjects (Teubner 2006).
In its modern form, the debate on animals’ rights started about 30 years ago
(Singer 1975) and has recently had increasing legal consequences (Waldau 2011).
The practical debate on the legal status of advanced, “intelligent” computer soft-
ware (hereafter called software agents) has not even started yet. Much literature
exists, but it is mostly theoretical work aimed at academia. This state of affairs is, of
course, adequate for the modern level of technological development. The existence
of animals’ suffering (which, generally, is the main argument for so-called light
green ethics advocates) is not controversial. Equally uncontroversial is the fact that
nowadays no software agent exists that would be intelligent enough to emulate the
intellectual processes of even a very young, undeveloped child.
Despite that huge, ontological difference—on the one side beings with character-
istics of uncontroversial status and on the other side beings whose only uncontro-
versial feature is their nonexistence—this paper will argue that software agents will
be the first beings widely recognized as new legal subjects.
The paper consists of five parts. In the first one, the relation between the expan-
sion of the ethical circle and the scope of legal subjects will be described. The sec-
ond one will consist of arguments against the claim that animals will be widely
recognized as legal subjects in the near, foreseeable future. The third will corrobo-
rate the positive claim that the machines will win the race against the animals. In the
fourth, one of the positive arguments will be expanded in the form of possible sce-
narios for legal subjectivization of software agents. In the last part, the investiga-
tions will be summarized.

6.2  Colorful Ethics

As mentioned above, the expansion of the circle of ethical subjects may be justified
on the grounds of (inter alia) two different approaches: one based on environmental-
ist ethics and another based on the ethics of artificial intelligence (Torrance 2013).
6  Animals’ Race Against the Machines 93

6.2.1  Green Ethics

Within the first group, two views exist that despite many common features have
important differences. The widely represented account, called light green ethics,
argues for granting ethical subjectivity (and thus also legal subjectivity, at least in
some manner) to every so-called sensitive being: an entity that is able to feel pain
and is able to suffer. Although this definition is not sufficient to make a logical dis-
tinction, within the category of living beings it is enough to exclude from the cate-
gory of subjects those elements of nature that are not animated. It may not be valid
to ascribe sensitivity to every living creature (also due to fact that the very concept
of being alive is in some cases controversial), but on the grounds of environmental-
ist ethics it is definitely justified to say that if something is not alive, it is not able to
suffer. So, advocates of light green ethics argue for the expansion of the ethical
circle by adding some subgroup of the animal kingdom (which subgroup differs
among different ethicists). In contrast to this group, the distinction between ani-
mated and unanimated elements of nature is not maintained by so-called deep green
ethical approaches, which claim that unanimated elements of nature (such as streams
and forests) should also be considered legal (and ethical) subjects.
Historically speaking, the law has recognized the legal status of elements of
nature (especially animals) in many different ways (Elżanowski and Pietrzykowski
2013). The earliest conceptions did not ascribe any legal rights to animals, while at
the same time they considered them accountable, for example, for crimes. Famous
animals trials were the result of this approach. From the modern perspective, con-
ceptions of this kind are only a curiosity; nowadays, a completely different approach
is preferred. In the modern view, animals are never accountable (due to, e.g., lower
than human intellectual capacities), but they might be granted some legal protec-
tion. Claims to protection are recognized in some legal systems, and animals are
granted some kind of subjectivity (Gaffoglio 2014). More radical deep green ethical
approaches have also had legal successes, such as the famous Douglas dissent in
Sierra Club v. Morton (1972), in which William O. Douglas asked a question about
the legal protection of inanimate objects.

6.2.2  Silicon1 Ethics

The group of views linked with the ethics of artificial intelligence also argues to
expand the scope of ethical and legal subjectivity. However, the arguments used by
advocates of silicon ethics are entirely different. Their claims are based on three
widely accepted assumptions in modern cognitive sciences:

1
 The term is coined in a similar manner to “green ethics.” It refers to a chemical element used
as fundamental building block for a majority of modern microprocessors.
94 R. Michalczak

1 . Brain processes are informational processes.

2. Brain processes are epistemically accessible.
3. Every cognizable informational process may be emulated/reconstructed in a
computer.
The acceptance of these assumptions (mixed with even a weakly materialistic
theory of the mind) leads to the conclusion that what determines ethical status is not
material substrate but the characteristic of informational processes. What follows is
that every informational process that is sophisticated enough to exhibit certain fea-
tures may be considered an ethical subject. In the literature, this approach is some-
times called infocentrism.
The level of development of modern technology doesn’t provide any basis for the
claim that highly intelligent software (that having human-level intelligence) exists.
Nevertheless, even today some border cases may raise questions. One of these is a
European project of whole-brain emulation called the Human Brain Project
(Markram 2012). The project is controversial in many ways (especially institu-
tional) and is at a very early stage. Nonetheless, some press information has appeared
that might generate ethical controversies. The press was informed that, during this
whole-brain simulation, two seconds of brain activity were achieved. The simula-
tion lasted for 45 min, but every single information process was reconstructed. The
experiment went mostly unnoticed, although some argued that it might lead to the
creation of some kind of person (Lim 2014). Of course, many theoretical arguments
counter such claims. Worth mentioning are the two most important: Searl’s (1992)
argument based on the distinction between replication and simulation, and Block’s
(1978) thought experiment called China brain. Despite its controversies, it is impor-
tant to emphasize that the Human Brain Project may raise ethical questions even at
such an early stage of development. If we agree with Lim’s viewpoint and the physi-
calistic solution to the mind–body problem, then the ethical status of the whole-­
brain simulation becomes at least problematic.

6.3  Why Not Animals?

The first argument of this paper will corroborate the negative claim, that is, why
animals will not be widely recognized as legal subjects in the near, foreseeable
future. Two arguments will be presented: the first will be conceptual one and the
second will be pragmatic.

6.3.1  Conceptual Argument

The conceptual argument emphasizes the special ethical status of some kinds of
animals. In this context, the specificity doesn’t, however, lead to anything beneficial
for the animals, but brings about the trilemma reconstructed below.
6  Animals’ Race Against the Machines 95

But, before the reconstruction begins, one thing must be stressed. The very con-
cept of the animal kingdom is not entirely precise or uncontroversial. Divisions
within the kingdom are sometimes especially problematic. From the green ethics
perspective, the main, important, and ethically relevant feature is sensitivity based
on the development of a nervous system. But, even this feature is not clear. It seems
widely accepted that, for example, dogs are a sensitive creature, but such a consen-
sus is not present in the case of insects, spiders, or even fish.
Analytically speaking, in the context of those controversies, two possibilities
exist. Either every animal is a sensitive being, or a feature exists (e.g., level of ner-
vous system development) that allow discrimination between sensitive and nonsen-
sitive animals. The alternative is the first part of the trilemma. The second assumption
is that causing pain and suffering is morally wrong and not permitted. So, if a being
is sensitive, it is morally wrong to make it suffer. Thus, according to first part of the
trilemma, two possibilities exist: either causing pain to every animal is morally
wrong, or it is wrong only in the case of some subgroup of animals. The last part of
trilemma, which is the root of all complications, is the fact that, although first two
assumptions are widely accepted, it is also widely accepted to cause pain and suf-
fering to livestock and animals used in industry or entertainment.
To solve the contradiction, many theories may be constructed, beginning with the
assumption that humans are evil by nature and the claim that farm animals have a
common desensitizing feature, and ending with the thesis that causing pain and suf-
fering is not morally wrong in the case of farm and industrial animals. This paper is
not the place to discuss human nature, so the first answer will be dismissed without
investigation. Two other answers are possible: the existence of a desensitizing fea-
ture or an ethical exception.
There are many characteristics that allow differentiation between, for example,
dogs, bees, and sharks. However, most frequently it is pointed out that the only ethi-
cally relevant feature (the one that allows a distinction between sensitive and non-
sensive animals) is the development of a nervous system. This criterion is effective
if one wants to justify killing a mosquito while at the same time condemn killing a
dog. But the criterion becomes useless if one wants to differentiate between dogs or
cats on the one hand and pigs or cows on the other. It seems that no natural feature
may be found that would allow the creation of adequate categories.
So, one possible answer is left. To dismiss the contradiction described in the tri-
lemma, a specific exception is needed. Although animals are sentient beings (at least
mammals, which is enough for the argument), and causing pain and suffering to
sensitive beings is morally wrong, it is morally admissible to make some animals
suffer: every animal that is considered “useful” from a human perspective is also an
exception to the general rule. But the category of usefulness is mostly determined
by the whim of civilization and is not based on any solid grounds; it fluctuates
depending on time and place. So, it is not a sufficient criterion for a logical
division.
This exception in approaches to animals’ suffering makes it impossible to think
that one of the main arguments of light green ethicists—the argument from the sen-
sitivity—will be widely accepted in the near future. It may suggest that deep green
96 R. Michalczak

ethics advocates are in a better position. Their claim for rights for inanimate objects
cannot be grounded on the sensitivity argument for the obvious reasons pointed to
earlier. However, the political debate shows that the pragmatic approach also does
not favor animal rights adherents.

6.3.2  Pragmatic Argument

It may seem that all green ethics approaches share a common, general aim to expand
the ethical and legal circle, so they could create a common political force in the
debate on animals’ rights. Apparently, this is not the case. The general aim is so
general that different groups define its features in different, often contradictory,
ways. Deep green ethics advocates argue mainly for the legal subjectivity of inani-
mate natural elements that, according to them, have autonomous value. Light green
ethics adherents advocate for rights either for a majority of animals (especially ver-
tebrates) or for narrow group of them (especially primates and some forms of sea
mammals). The most important division is the one among light green activists
because they have the most legal, practical successes.
But those successes are a consequence of the different kinds of argumentation.
The latter group strongly emphasizes differences between primates and other groups
of mammals (Taylor 2001). This makes the argument from sensitivity much less
important. The most important argument is an entirely different approach stressing
the ethical relevancy of another criterion, namely intelligence. So, at least three
groups exist and each of them has a different main argument: the autonomous value
of some elements of nature, the inadmissibility of causing pain and suffering to
sensitive beings, and intelligence as an ethically relevant criterion. The last group
gains the widest acceptance and is especially interesting from an infocentric point
of view. The main argument is based on an informational, not a biological criterion,
which may with success be applied also to nonliving entities or, as mentioned ear-
lier, information processes. Especially in the context of current, exponential techno-
logical progress, it may seem that environmentalist ethicists (at least some of them)
work more for silicon claims than for green ones.

6.4  Why Software Agents?

The arguments so far corroborate only the negative thesis: the legal subjectivity of
animals is not near. But, at the same time, those arguments don’t strengthen the
positive claim that software agents will ever achieve subjectivity. This part of the
6  Animals’ Race Against the Machines 97

article will discuss arguments in favor of the positive claim that insensitive2 and
even non-living beings may be considered legal subjects.

6.4.1  Conceptual Argument

The current level of development of intelligent software is adequate to the intensity

of public debate about their legal subjectivity—both phenomena are nonexistent. It
may seem that this fact puts animals in a privileged position in the race against the
machines. But, this is far from obvious.
In the second part, the argument was made that the biggest obstacle to the wide
acceptance of animals’ legal subjectivity is the existence of a strongly grounded
moral intuition that animals’ sensitivity doesn’t matter when juxtaposed with human
benefits. In the case of software agents, such negative intuitions don’t exist. Frankly
speaking, no intuition exists at all. Silicon ethics don’t have moral roots; they are a
purely intellectual construction. And, should any intuition appear, it would come
from inside academia.
Moreover, it is worth noting one more time that, if one wants to appeal to existing
debate, one may recall the argument of primate rights advocates. That argument is
based mainly on an intellectual criterion. When ethical relevance is defined not as
the ability to suffer, but as the ability to take sufficiently sophisticated intellectual
action, it would be unjustified to argue that in some cases intellectual capacity
doesn’t matter—especially taking into account that those skills in software may
very quickly outperform those of non-human animals.
The argument described above has, however, the same flaw as the conceptual
argument about animals. Modern ethical systems are still completely anthropocen-
tric, so every argument has to deal with the concept of utility for humans. The varia-
tion of this argument in the context of software agents is the argument of electronic
slavery, which, it is claimed, is not reprehensible at all. The argument goes as fol-
lows: software agents are artifacts (objects created by humans), so they belong to
humans despite their extraordinary intellectual skills (Pagallo 2001). Therefore,
they may at most be treated like speaking things (but not subjects), exactly as were
slaves in ancient Rome.

2
 In the literature, some question whether the creation of intelligent entities that are programmed
not to feel is possible e.g., the being-in-the-world argument made by H. Dreyfus (2007), and, if it
is possible, whether is it ethically admissible.
98 R. Michalczak

6.4.2  Pragmatic Argument

The juxtaposition of software agents and slaves might suggest that software agents
have already lost the race against the animals for legal subjectivity. But this com-
parison doesn’t entail only negative consequences. It is worth noting that even in
ancient Rome slaves sometimes gained legal status, which in some aspects might be
considered a kind of proto-subjectivity.
This point of departure for further argumentation may be more efficient that any
conceptual argument made so far. At the end of every axiological argument, the
prevailing claim is always an appeal to utility for humans. This utility decides
whether a general rule applies to given case. So, it seems a better choice to assume
the existence of a conceptual framework and construct an argument on this basis. In
the case of software agents, this kind of claim can be made.
The claim starts by assuming the crucial role of utility for humans in any legal
institution—similarly to Roman lawyers who invented the peculium.3 From the
point of view of the user (slave master or software user), the favorable solutions are
those providing possibilities for restricting liability for the entity, which may not be
completely controlled.
Intelligent software, even in its current, undeveloped form, brings conceptual
complications that from legal perspective are hard to solve. The sophistication of the
software and the unpredictability of its actions create a gap in the causal link
between the actions of the user and the resulting consequences. It is impossible to
say that the action of user X has effect Y if between those two the object Z exists,
which in some sense makes a rational decision whether to bring about effect Y. It is
obvious that subject X will favor a legal solution that will allow her to reject those
effects of Z’s actions that are unbeneficial for her. Generally speaking, peculium had
a similar justification; it curtailed the liability of master for her slave. Modern mod-
els of the legal subjectivity of software agents are based on similar assumptions
(Karnow 1996).
This argument has strong grounding in the existing ethical framework, so it may
be sufficient to corroborate the claim of software agents’ legal subjectivity.
Subjectivization will be grounded in neither, for example, the ability to suffer, nor
having near-human intellectual capacity. Such a foundation would be too weak if
acceptance of utilitarian claims prevailed. Subjectivization of non-human entities
may occur, but only when it is considered useful. And, in the case of software
agents, it is much easier to imagine scenarios in which subjectivization is beneficial
for humans.

3
 Peculium is “the property held by a person (as a wife, child, slave) under the potestas, manus, or
mancipium of another as his own private property either by the permission of the paterfamilias or
master or by the rules of law but becoming with certain exceptions the property of the paterfamilas
or master at his pleasure.” (Merriam-Webster 2003).
6  Animals’ Race Against the Machines 99

6.5  Scenarios

In the literature, at least two scenarios can be found, which are questionable even at
the current, early stage of development. With technological progress, the questions
will only become more disturbing. One of the scenarios concerns the currently most
frequently discussed problem concerning intelligent software, namely the use of
autonomous weapons during war. The second concerns trading software, which is
now accountable for about half the stock market transactions of developed countries
(Grant 2010). The software often makes decisions that in the eyes of human behold-
ers are completely unjustified. Both scenarios corroborate the argument from utility
of software agents’ subjectivization.

6.5.1  Wartime Scenario

Many arguments are raised in the debate on the use of autonomous weapon systems. This
paper is not the place to discuss them all. From the point of view of the argumentative
structure of this article, the most important is the argument concerning responsibility for
and consequences of the actions of autonomous weapon (Arkin 2009). Proponents of the
use of such weapons point to two main advantages of autonomous systems. The first is
obvious: if a weapon is autonomous, no person has to be on the firing line; therefore,
human lives are saved. Moreover, it is claimed that properly programmed autonomous
war machines would be more ethical that an average human. For example, machines
would never be tempted to commit war crimes or to mistreat civilians and enemies.
Although many conceptual counterarguments exist that reject the use of non-
supervised weapon systems, it is a fact that remotely controlled weapons—which
may also very easily become autonomously operating weapons—are already widely
used. It would be counterfactual to discuss their admissibility when the weapons are
already here. Thus, it is better and more productive to investigate the consequence
of their actions and issues of responsibility (Dennett 1997).
One possible answer to the question of the responsibility for autonomous weap-
ons is exactly the concept of subjectivization. It is the answer mostly favorable for
army members and strongly contested by human rights defenders. It indeed pro-
vides some framework for rejecting responsibility for some classes of events on the
battlefield. This rejection is the very consequence that causes subjectivization’s
strong unacceptability. But, it also has strengths. First, it is coherent with the theo-
retical framework of the autonomous agents’ actions. If one accepts that the soft-
ware agent’s action is not a direct (and fully causal) consequence of one’s action,
there is no justification for saying that such a gap in the causal link exists only, for
example, in trade software but not in military software. Arguments from efficiency
also exist. The claim of an autonomous weapon having a higher ethical level than
humans, although considered implausible by many, is better grounded than the
counterclaim that the weapon will be prone to commit war crimes. This, combined
100 R. Michalczak

with the obvious argument about the lifesaving effects of such weapon, provides a
good foundation for treating autonomous weapon systems as some kind of legal
subjects that are accountable for at least some actions.

6.5.2  Peacetime Scenario

In the case of trading programs, the situation is quite different. There is no life at stake,
so the issue is much less controversial. But the idea is similar. Many trading programs
make their decisions based on complicated, self-learning algorithms and, due to this
fact, their decisions are generally unpredictable to human users. They are also goal
driven, so one may assume that what the program does is aimed at, for example, mon-
etary gain, but particular actions often seem unjustified in the eyes of human traders.
Many lawyers and other scholars treat computer software as some kind of simple
tool. However, a lot of scientific papers have been written in which claims are made
that such treatment is completely inadequate to the modern reality. Concurring with
them, one has to assume their specific status and think of other legal solutions to
dilemmas that may arise during the use of such software (Chopra and White 2011).
One of the solutions is the subjectivization scenario. Similar arguments are made
as with the war scenario. At first, a fundamental assumption must be made that use
of the trading software is in some way beneficial for humans. In the case of autono-
mous weapon systems, the advantages are obvious. In this case, it is claimed that
algorithmic trading programs greatly increase the liquidity of market, what is in
essence a favorable situation. So, if this software is beneficial for humans, and
humans do and will use it, a problem exists in regulating the unforeseeable conse-
quences of its actions. The subjectivization scenario, based on pointing out similari-
ties between a postulated electronic person and the legal status of corporation, is one
solution. It is argued that a kind of artificial person would be the most adequate
solution, as it has the advantages of conceptual and theoretical coherence and proper
risk distribution among users, owners, and third persons.

6.6  Summary

Very often, adherents of green ethics fundamentally oppose the claims of silicon
ethics proponents. They claim that silicon ethics is “technophile” and strongly con-
tradicts the ecocentrism of green ethics. Indeed, they may too strongly emphasize
the technological side of the world, but it is not necessarily true that the “silicon”
approach is directed against the nature.
Of course, the aims of both are not completely different: both fight with fixed
status quo, namely the assumption that only people (or congregations of people) may
be recognized as subjects by the law (Floridi and Sanders 2004). It is hard to predict
the actual outcome of the debate, but it may be pointed out that every crack in the
6  Animals’ Race Against the Machines 101

system would be beneficial for both points of view. If the law recognizes some kind
of electronic subject, the discussion will probably focus on those features that allow
some software to be treated as an object and others as subject. Moreover, a shift in
the center of gravity of the subjectivity debate from utility to some other feature (e.g.,
level of intelligence) may be the best way to induce a change in commonly accepted
legal and ethical attitudes concerning entities having controversial statuses.

References

Arkin R.C. 2009. Governing Lethal Behavior in Autonomous Robots. Boca Raton/London/New
York: CRC Press.
Block N. 1978. Troubles with functionalism. Minnesota Studies in the Philosophy of Science 9:
261–325.
Chopra, S., L. White. 2011. A legal theory for autonomous artificial agents. Ann Arbor: University
of Michigan Press.
Dennett D. 1997. When Hal kills, who’s to blame? In Computer ethics, Hal’s legacy: 2001’s com-
puter as dream and reality, ed. D. Stork, 351–365. Cambridge: MIT Press.
Dreyfus H.L. 2007. Why Heideggerian AI Failed and how Fixing it would Require making it more
Heideggerian. Philosophical Psychology 20: 247–268.
Elżanowski A., T.  Pietrzykowski. 2013. Zwierzęta jako nieosobowe podmioty prawa. Forum
Prawnicze February: 18–27.
Floridi L., J.W. Sanders. 2004. On morality of artificial agents. Minds and Machine 14: 349–379.
Gaffoglio L. 2014. Conceden un hábeas corpus a una orangutana. La Nacion. http://www.lanacion.
com.ar/1754353-conceden-un-habeas-corpus-a-una-orangutana-del-zoologico-porteno/.
Accessed June 5, 2015.
Grant J. 2010. High-frequency trading: Up against a bandsaw. Financial Times. http://www.ft.com/
intl/cms/s/0/b2373a36-b6c2-11df-b3dd-00144feabdc0.html#axzz2SXdwc Arr/. Accessed
April 21, 2015.
Karnow C.E.A, (1996), Liability for distributed artificial intelligences. Berkeley Technology Law
Journal 11: 147–183.
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and Information Technology 16: 77–89.
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humanbrainproject.eu/documents/10180/17648/TheHBPReport_LR.pdf/18e5747e-10af-4bec-­
9806-d03aead57655/. Accessed June 5, 2016.
Merriam-Webster. 2003. Merriam-Webster’s Collegiate® Dictionary, Eleventh Edition. http://
www.merriam-webster.com/dictionary/peculium/. Accessed Oct 30, 2016.
Pagallo U. 2001. Killers, fridges, and slaves: A legal journey in robotics. AI and Society 26:
347–354.
Searle J. 1992. The rediscovery of mind. Cambridge: MIT Press.
Sierra Club v. Morton, 405 U.S. 727 (1972).
Singer P. 1975. Animal liberation: A new ethics for our Treatment of animals, New York: Harper
Perennial Modern Classics.
Taylor R. 2001. A step at a time: New Zealand’s progress towards hominid rights. Animal Law
Review at Lewis & Clark School of Law 7: 35–43.
Teubner G. 2006. Rights of non-humans? Electronic agents and animals as new actors in politics
and law. Journal of Law and Society 33: 497–521.
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Waldau P. 2011. Animal rights: What everyone needs to know, Oxford: Oxford University Press.
 Part III
Humanity, Personhood and Bioethics
Chapter 7
Person and Human Being in Bioethics
and Biolaw

Laura Palazzani

7.1  What Is a Person? Who Is a Person?

The concept of person is the most frequently used philosophical concept in the bio-
ethical and biojuridical debate (Macklin 1983, 37; Goodman 1988). The main argu-
ments advanced with regard to the boundaries dividing the licit from the illicit in
techno-scientific biomedical interventions on human life implicitly presuppose, or
lead explicitly to, the question of personal status (Mahowald 1995, 1934). The
appeal to the dignity of the person and to the rights of the person conceals many
philosophical ambiguities, which need to be clarified.
The concept of “person” is going through a speculative crisis. What is a person?
Who is a person? How should we treat a person? These are recurring questions in
bioethics and biolaw, that often lead to different and even contradictory answers.
While everyone would agree on considering a person as being worthy of respect and
protection to a certain extent,1 not everyone agrees on the theoretical manner of
understanding personhood and on the empirical application of the concept.
Two major opposing trends can be discerned in bioethics. The first trend is rep-
resented by the so-called “personism”, which argues for a separation of the concept
of person from that of human being (thus reducing the range of applications of the
concept of person with respect to human beings, and at times extending it to non-­
humans). Then there is a second trend known as “personalism”, which upholds an
intrinsic identity between person and human being.

1
 However, it should be recalled that respect and protection are unanimously attributed to a person
in qualitative terms, but not also in quantitative ones: there are different degrees of respect and
protection recognized.
L. Palazzani (*)
Dipartimento di Giurisprudenza, LUMSA, Via Pompeo Magno 22, 00192 Rome, Italy
e-mail: palazzani@lumsa.it

© Springer International Publishing AG 2017 105

V.A.J. Kurki, T. Pietrzykowski (eds.), Legal Personhood: Animals, Artificial
Intelligence and the Unborn, Law and Philosophy Library 119,
DOI 10.1007/978-3-319-53462-6_7
106 L. Palazzani

7.2  N
 ot All Human Beings Are Persons, Not All Persons Are
Humans

In a reductionist framework, theories advocate that the beginnings of personhood

should be postponed after the beginning of human life or that the death of a person
should be anticipated in relation to the biological ending of human life. In other
words, according to this viewpoint, the genetically and biologically human and indi-
vidual being is not a person from the moment of fertilization (but “becomes” such
at a later stage of development) and the death of a person is not marked by an irre-
versible cessation of all brain functions (but may “end” before); as a result, there are
human beings who are not persons or, more precisely, are not “yet” persons or no
“more” persons.
The value of human life is not recognised in itself, but acknowledged only under
some conditions or, more specifically, under the factual verification of certain con-
ditions. Not all human beings are persons, namely “moral subjects” or possessors of
a valuable life: not all human lives are deemed worthy of respect. Moral status is
bestowed on only some (human or non-human) entities, who/which are endowed
with certain “capacities”. But what makes (human or non-human) life valuable?
Which are the necessary conditions of personhood?

7.2.1  Utilitarian Theory

What counts for utilitarianism, in the first place, is the ability to feel pleasure and
pain, namely the capacity to have sensations and interests or immediate, instinctive
and elementary desires; in the second place, it is the ability to prefer pleasure over
pain, therefore to have preferences stemming from the comparison of mental states
relating to the present but also projected into the future; lastly, it is the ability to be
autonomous, a preference that coincides with rational self-determination and will.
In this perspective, the utilitarian approach to bioethics sets out different levels
of subjectivity and personal status on the basis of different levels of consciousness.
A minimal level of consciousness means having the ability to feel pleasant and
unpleasant sensations in the immediate present and, therefore, considering having
the central nervous system as a necessary neurophysiological condition (generally
identified with the 18th week after fertilization); the intermediate level of conscious-
ness refers to the ability to carry out a complex elaboration of sensations, through
comparison and preferential choice, in the present and future; the maximum level of
consciousness is the individual’s autonomous decision.
Personal subjectivity may express itself, suddenly or gradually disappear, grow
or decrease, according to levels of consciousness. This is a functionalist conception,
which restricts personal subjectivity to the presence of functions, thereby defining
the level of moral significance of personal subjectivity according to the degree and
7  Person and Human Being in Bioethics and Biolaw 107

duration of manifestation of functions (measured, at a quantitative level), regardless

of qualitative considerations (pertaining to species or nature). Whoever is endowed
with a higher level of consciousness has more value, in spite of their nature.
On this account, the anthropocentric theory has been accused of “speciesism” by
the utilitarian theory, since the former places human beings at the centre of moral
debates, giving them an unjustified arbitrary privilege. Ethical utilitarianism pro-
poses an inter-specific perspective, putting sensitive consciousness at the centre of
the ethical debate: the so-called sentio-centrism or patho-centrism. It follows that
human embryos and foetuses (until the 18th day after fertilization) are not subjects
or persons, insofar as they are not sentient beings. Animals, or rather some animals,
are subjects as they are able to feel pleasure and pain. Self-conscious individuals
(animals or humans) are subjects or persons in a strong sense, namely those who
are capable of being aware of themselves as continuous subjects in time and of
expressing their own preferences and desires in relation to the appreciation or non-­
appreciation of their own existence, whilst being able to elaborate them rationally,
as well as deciding autonomously.
According to the utilitarian theory, “having interests” (that is, being sentient indi-
viduals) constitutes the minimum level to possess a moral and legal significance:
whoever can feel pleasure and pain enjoys some kind of protection, at least their
right not to suffer unnecessarily is recognised. For egalitarian utilitarianism, the
principle of equal consideration of interests prescribes non-discrimination among
equal interests of different individuals, regardless of their species membership. The
right not to suffer and the right to life are not regarded as equally important: the
value of life of sentient subjects is subordinately attributable to pleasure/pain; this
can result in the possibility of taking life away from sentient individuals without
causing pain, by relying on painless techniques.
Recognising the right not to suffer unnecessarily also means acknowledging an
obligation to take away life when the suffering is too great in the present and pre-
dictably in the future, and once it brings too much pain to others in the present and
future. An approach based on maximising pleasure and minimising pain conceives
life as having value only to the extent that a certain level of “quality of life” condi-
tions is ensured, measured in terms of welfare. Life (human and non-human) in
which suffering prevails is considered “not worth living”. The “right not to suffer
unnecessarily” ends up coinciding with a “duty” to terminate the life of suffering or
likely to suffer subjects, alongside a life which causes or can cause too much suffer-
ing to others. The only limit to the killing of sentient beings can be found in the
presence and expression of a “preference to live” (that is, being a subject of a life
that appreciates its own existence), as long as such preference does not conflict with
the preference of others; in any case, if a self-conscious individual evaluates one’s
own life negatively, regardless of one’s existential conditions, and prefers to die, his/
her desires should be fulfilled. A serious right to life is attributable only to rational
and self-conscious persons who prefer to live.
108 L. Palazzani

7.2.2  Libertarian Theory

The liberal-libertarian (Engelhardt 1996) theory is rooted in an individualistic

anthropology, which understands rationality and self-determination as the constitu-
ent elements of personhood.
In this context, the identification of the beginning of personhood coincides with
the presence of the neurophysiological conditions indispensable for its organic
development. The beginning of personhood may be identified at the moment of
formation of cerebral cortex, considered to be essential for the exercise of rational-
ity. This notion is upheld by theorists who suggest drawing a parallel between “brain
death” and “brain life” (Goldenring 1985; Jones 1989; Fletcher 1974). The rational-
ist theory, at the maximal level, underscores the indispensability of reason, under-
stood as an effective exercise to define personhood. According to this view, a (human
or non-human) living being is a person only when the subject is a “moral agent”.
This theory identifies personhood with the acquisition of self-consciousness (Tooley
1983), intellectual activity, freedom, moral sense (Engelhardt 1996), thus the ability
to understand, will and evaluate, at the post-natal stage of life. For the same reasons,
this theory considers human beings who are incapable of rational thought and
decision-­making as non-persons or post-persons.
This paradigm places the principle of autonomy as self-determination at the cen-
tre of the bioethical reflection, claiming that the subject or ‘moral agent’ itself cre-
ates value by virtue of its agency, based on the ability to understand, discern and
evaluate. In this perspective, human life has no objective value, but it is only related
to the individual subjective decision. Such a paradigm exalts protection of the maxi-
mum freedom for all free (or those actually capable of exercising freedom)
individuals.
Only the “moral agent” is a person “in the strict sense” or “in the real sense”. The
moral agent is able to draw up a contract, to express consent and permission, or to
actively participate in moral life. A person is a kind of entity having the moral right
to make one’s own life choices, to live life without (unprovoked) interference from
others. Personhood requirements encompass the possession of self-consciousness,
rationality and self-determination. A person must be guaranteed the possibility to
manifest one’s contractual capacity without interference. The human beings who
are unable to express consent are people in “a broad sense” and “in a social sense”,
or on the basis of what the moral agents decide or feel.
Only the free moral agent enjoys adequate protection: the individuals, on the
other hand, who are not able to exercise freedom (the “moral patients”) are not pro-
tected, because they do not exercise it yet (embryos, foetuses, newborn babies,
infants, but also minors) or no longer exercise it (the brain-damaged, the insane, the
seriously disabled, the comatose), or those people who have never had and will
never have freedom (the seriously congenitally handicapped with no hope of recov-
ery). Prenatal, neonatal, terminal and marginal human life without contractual
capacity has a problematic status: the individuals that are unable to give their own
consent would become “objects” of beneficence of “moral agents”, who could
7  Person and Human Being in Bioethics and Biolaw 109

decide to protect them, but could also decide to sacrifice them in view of achieving
other goals, such as progress in biomedical science knowledge, economic interest,
or simply, subjective expectations and desires.
In the same philosophical reductionist context, the term “person” may be used to
indicate non-human beings and non-living entities, as they might exercise rational-
ity and self-determination. According to this approach, the notion of personhood
may be extended far ‘beyond’ humanity to posthumans and transhumans, as sym-
biosis of human and artificial intelligence: cyborgs or robots. The new emerging
technologies, especially NBIC (the convergence of nanotechnology, biotechnology,
information technologies and cognitive sciences, together with genetic engineering
and neuroscience) open new scenarios offering new possibilities of enhancing
human traits (physical, psychological, emotional), transforming and artificializing
the condition of techno-humanity. We witness blurring borders between the natural
and the artificial within blurring borders between biology and technology (biology
is becoming technology and technology is becoming biology in the new ‘techno-
logical wave’ or transition from the natural/biological to the digital/virtual, i.e. arti-
ficial implants in bodies, brain-computer interface, robotics).

7.3  All Human Beings Are Persons

The ambiguous use of the concept of person has led, philosophically, to a paradoxi-
cal reversal of positions. The theme of person, originally favored by philosophies
inspired by Christianity or at least by metaphysics, has come to be increasingly used
in the context of empiricism and functionalism.2 On the contrary, the notion of per-
son in bioethics is beginning to be viewed with suspicion and distance by those who
had originally formulated it. It is not rare for those who declare themselves to be
promoters of respect and protection of human life, from the moment of conception
until the last moment at death, to prefer omitting or, at least, leaving aside any refer-
ence to personhood for fear of slipping into dangerous equivocations.
Does it any longer make sense to use the concept of person in bioethics? As a
matter of fact, recognizing the dignity and rights of the human being may, in prin-
ciple, rule out the discussion of the concept of person.3 The concept of person is not
indispensable for ethics and law, as concretely evidenced by the fact that for centu-
ries in the western tradition, in ancient Greece and pre-Christian Rome, there was

2
 Within the context of this consideration, an exception is the concept of person as relation, which
concerns a special orientation of philosophical personalism, or dialogical and relational personal-
ism, as opposed to ontological personalism.
3
 Obviously this is a matter of a certain level of theoretical discourse. When the dignity of man and
human rights are discussed, along with the dignity and rights of the human person, reference is
made to the philosophical theories which have devised a theoretical foundation. It is clear that the
real situation is very different: one can respect and safeguard a human being without knowing any
theory at all, or, on the contrary, one may violate and exploit human life, even though one knows
and may also articulate very precise and well-founded theories.
110 L. Palazzani

reference to human dignity without the elaboration of any concept of person. Also
in oriental thought, the moral and legal value of the human being has been recog-
nized at the theoretical level, in spite of the fact that the philosophical category of
person was unknown, or at least not formalized in theory (Carrithers et al. 1985).
The doctrine of human rights considers the human being as such, without introduc-
ing the category of person.
However, though we may undoubtedly recognize the theoretical possibility of
avoiding the use of the concept, we cannot equally forget that the notion of person
was actually devised by western philosophy for the precise purpose of characteriz-
ing the human being, and of justifying humanity’s moral and normative centrality.
Recognizing the expression of a personal life in every stage of development of the
biological life of the human organism (from the initial moment of conception to the
final instant), is not a useless philosophical effort. To say that “the human embryo is
a person” or “the comatose is a person” is not a mere tautology. Conferring the sta-
tus of person on the human being means saying something more than the mere
empirical acknowledgment of the biological humanity of that being. The factual
identification of the human being as a person, both at the philosophical and anthro-
pological levels, elucidates the characteristics and the constitutive property of the
human being, and justifies his or her moral and legal relevance.
There are two main arguments, justifying this perspective. The biological argu-
ment of the continuity and the ontological argument of the substantiality of the
person.
The argument of biological continuity is grounded in the observation that right
from the beginning of life, the human organism develops in a progressive and com-
plex way, guided and oriented towards the full expression of the individual charac-
teristics it has possessed from the very beginning (namely, the full realization of the
human being). Every human embryo has within it the principle of movement, of its
purposes (télos): that is the ‘reason for which’ and ‘that in view of which’ it is
designed. On this account, the fact that the embryo is quantitatively imperceptible
and that it does not yet fulfil certain functions (such as sensations, rationality, will)
does not alter its status. The embryo is ‘already’ a human person insofar as the con-
ditions constituting the necessary support of an uninterrupted and progressive
dynamic process are there, even though all its properties have not yet been actively
manifested to a maximum degree; this process goes through successive stages,
which will enable the realisation of such characteristics that are potentially (i.e.
potentiality as intrinsic possibility) present within it.
The ontological argument claims that functions, properties and acts of the indi-
vidual (sensitivity, rationality, will) do not exist in themselves, but only as functions
and activities “of” a substantial human individual, which is their singular and per-
manent reference point, their real ontological condition. The concept of substance,
understood in this way, makes it possible to explain the unity (in space) and the
permanence (in time) of the identity of the human being. A human being is not
reducible to a “bundle of phenomena”.
Functions are “of” a person, they are not “the” person: it is not from the posses-
sion of certain properties or the manifestation of certain functions that the presence
7  Person and Human Being in Bioethics and Biolaw 111

of a person may be “induced”, but on the contrary, personhood is the real condition
for the possibility of existence and performance of certain functions. The presence
of a substantial principle makes it possible to recognize the status of person in the
human being even under conditions of “potentiality”, “privation”, or of non-­
actuation, either temporary or permanent, of certain functions, due to the incom-
pleteness of development, or to the presence of factors, either external or internal,
which hamper their manifestation. According to the ontological recognition of per-
sonhood, the personal status cannot be acquired or diminished gradually, since it is
a radical condition: one is not more or less a person, but either a person or not a
person.
It follows that zygotes, embryos, fetuses, newborns or minors are “already” per-
sons; in spite of the fact that all the properties are not yet manifested in practice, or
to the maximum degree, the conditions constituting the necessary support for an
uninterrupted dynamic process are nevertheless present, in order to enable the actual
realization of these characteristics. Similarly, the moribund, the handicapped, peo-
ple in comas, are “still” persons; even though the subjects are deprived of certain
properties, the intrinsic possibility, inherent within their nature, still exists.
There appears to be some confusion between ontology and phenomenology. The
embryo or the dying person fail to manifest the same dimension, form, and con-
sciousness as the adult human being: nevertheless, their incomplete manifestation
does not modify their ontological status. The quantitative imperceptibility of the
embryo, like the existential fading condition of the terminally ill, does not make
them, ontologically speaking, any less of a person.
This philosophical justification of the concept of person could be linked to the
doctrine of human rights, which recognizes that every human being (regardless of
their stage of development or existential condition) has the dignity and rights of a
human person. Human life must not be exploitable for scientific or experimental
purposes: human beings must always be recognized as an end (to be respected and
not exploited), and never merely as a means.

7.4  Conclusion

The pluralistic conception of the person is often a source of ambiguities in the

debate (above all, on the beginning and end of life), which need an appropriate theo-
retical clarification in order to understand existing practical implications. The dis-
cussion on the concept of person lies, anyway, at the heart of reflection both in
bioethics and biolaw.
Particularly in the biolegal field, it should be underlined that in international
documents – as in the UNESCO Universal Declaration on Bioethics and Human
Rights (2005) – among the principles set out, a preeminent place is assigned to the
recognition of a duty to respect human dignity and human rights in a multicultural
setting, given the new possibilities opened up by techno-science in the biomedical
field. As a declaration, this document falls within “soft laws”, being a non-binding
112 L. Palazzani

instrument, but it has an indirect effect as a moral, legal and political commitment
at national, regional and global levels, and may extend such effect in the long term.
In this perspective, it is possible to argue that the focus on the concept of person,
human dignity and human rights remains a framework for global bioethics and
biolaw.

References

Carrithers, Michael, Steven Collins, and Steven Lukes (eds.). 1985. The Category of the Person.
Anthropology, Philosophy, History. Cambridge: Cambridge University Press.
Engelhardt, Hugo Tristram. 1996. The Foundations of Bioethics. New  York: Oxford University
Press.
Fletcher, Joseph. 1974. Four indicators of humanhood: the enquiry matures. Hastings Center
Report 4 (6): 1–4.
Goldenring, John M. 1985. The brain-life theory: towards a consistent biological definition of
humanness. Journal of Medical Ethics 11 (4): 198–204.
Goodman, Michael F. (ed.). 1988. What is a Person?. Clifton (N.J.): Humana Press.
Jones, D.  Gareth. 1989. Brain birth and personal identity. Journal of Medical Ethics 15 (4):
173–178.
Macklin, Ruth. 1983. Personhood in the Bioethics Literature. Milbank Memorial Fund Quarterly
Health and Society 61 (1): 35–57.
Mahowald, Mary B. 1995. Person. In Encyclopedia of bioethics, 4, ed. W.T. Reich, 1934–1940.
New York: MacMillan.
Tooley, Michael. 1983. Abortion and infanticide. Oxford: Clarendon Press.
Chapter 8
From Human to Person: Detaching
Personhood from Human Nature

Denis Franco Silva

8.1  Introduction

The traditional idea of equivalence between “being human”and “having legal per-
sonhood” is at the core of many contemporary legal controversies. As an example,
the issues of animal rights, human bioenhancements and post humanism are com-
mon in the literature.
Such issues appear to be highly controversial due to a common misunderstand-
ing of the very concept of person, in which personhood would be a quality that
derives from a shared “human nature” or “human essence”, thus excluding from the
universe of moral and legal agents and patients any being regarded as less, more or
just as non-human.
Moving from this belief, any kind of non-human alterity would be a potential
threat to values such as equality, dignity and even the idea of some shared universal
rights, usually referred to as “human rights”.
This fear for the consequences of the recognition of non-human alterity can be
perceived in the questions made by many scholars. Two examples below may illus-
trate it.
Stefano Rodotà asks about the entitlement and fate of some fundamental rights,
“not surprisingly historically identified as rights of man or human rights”, that “in
human nature have its foundations”, such as the right to body integrity (2008:01).
Francis Fukuyama goes further, asserting that the idea of political equality rests
on the empirical fact of natural human equality:
Underlying this idea of the equality of rights is the belief that we all possess a human
essence that dwarfs manifest differences in skin color, beauty, and even intelligence. This
essence, and the view that individuals therefore have inherent value, is at the heart of

D. Franco Silva (*)
Universidade Federal de Juiz de Fora – UFJF, Juiz de Fora, MG, Brazil
e-mail: denis.franco@ufjf.edu.br; denisfrancosilva@yahoo.com.br

© Springer International Publishing AG 2017 113

V.A.J. Kurki, T. Pietrzykowski (eds.), Legal Personhood: Animals, Artificial
Intelligence and the Unborn, Law and Philosophy Library 119,
DOI 10.1007/978-3-319-53462-6_8
114 D. Franco Silva

p­ olitical liberalism (…). If we start transforming ourselves into something superior, what
rights will these enhanced creatures claim, and what rights will they possess when com-
pared to those left behind? (2002:09)

One can clearly see that the reasoning above exposed proceeds from an essential-
ist approach to morality and law. In short, it is the idea of human nature or essence
as a source of substantive moral rules or the belief that it is possible to derive sub-
stantive moral rules from reflection on human nature.
Although many contemporary scholars appeal to the idea of human nature or
human essence, these concepts usually lack any kind of definition. But, what is
meant when they talk about human nature?

8.2  Appealing to Human Nature

Appeals to human nature usually play a very specific role in the debate concerning
personhood: human nature acting as a feasibility constraint on morality and hence
in law, which is a logical inference from the assumption of the essentialist premise
exposed above regarding the entitlement of rights or the origin of some political
values.
The idea of human nature as a feasibility constraint on morality and law assumes
that a realistic approach on understanding morality must take into account cognitive
and motivational limitations of human beings: the biological “hard-wiring” we hap-
pen to have so that any plausible account of our moral obligations to others must
take this into consideration. “Ought” implies “can” and what we can do is limited
by our evolved biology (Buchanan 2011).
This view is intrinsically connected with the idea of human nature as a constraint
on the good for us, an argument with Aristotelian roots: the idea that a being’s
nature determines its good by constituting a constraint on what can count as a good
life for that particular being. If something is beyond the limits of our nature, pursu-
ing it is morally wrong.1
To play this role, a popular approach in human nature or essence is that of
sociobiology.
Sociobiology has, in fact, very much contributed to the spread of the view of
human nature as a constraint on practical reason. Since the end of the 70’s, it has
been used to promote a reductionist view of the human being, identified with its
phylogenetic legacy.
In its most radical versions, it is a revival of La Metrie’s (1994) man-machine
concept, which threatens to disrupt any connection between practical reasoning
(morality or law) and the idea of freedom. Human nature is explained as merely
genetic determinism and physicochemical brain processes, connections between

1
 Authors like Michael Sandel (2005) and Erik Parens (1995) hold that enhancement is objection-
able precisely because it involves the removal of limitations on what can be done by human beings,
since there are irreplaceable goods, like perseverance, that depend upon having limitations.
8  From Human to Person: Detaching Personhood from Human Nature 115

neurons that always happen in an “innocent” way due to causality. Man, therefore,
despite a center of imputation of events, would not be a liable subject.
This is an account of crude determinism on human nature2 that when projected
on the concept of person, reduces an axiological concept to merely one of its tradi-
tional distinct co-related features: the psychophysical identity. It generates, thus, a
highly excluding concept of person: the homo sapiens sapiens.
It is a quite curious approach that, despite proceeding from scientific knowledge,
reflects a secular version of medieval catholic thought about the place and role of
humans in the universe.
A common alternative to sociobiology in attempts to define human nature cannot
be said to be less controversial. It is the explanation of human nature or essence
through the idea of original incompleteness or imperfection of man offered by
anthropological philosophy.
The ground premise of anthropological philosophy regarding human nature has
its origins in Greek mythology. On Protagoras’ narrative, human nature is the result
of the dialectic between Epimetheus and Prometheus. Epimetheus (the one that
looks back) dispenses biological virtues to all animals but, when man stands in front
of him, performative gifts are over and man rests convicted to inadequacy in the
world. At this point, Prometheus (the one who looks ahead) intervenes giving man
fire and skills. As a compensation for biological incompleteness, man is gifted with
another dimension, that of culture.
This vision of human nature can also be found in one of the most known texts of
the renascence: Della Mirandola’s Oratio de Hominis Dignitate (1998). Man
designed as a being that can freely determine and choose his own destiny. Mankind’s
distinct mark would be, precisely, not being equipped with fixed properties as ani-
mals and, therefore, not being constrained by any bond with nature.
The myth of incompleteness found in the thought of Arnold Gehlen (1990) a
complete structural formulation. Man, primitive, lacking adaptation, without any
specialization, a real biological problem, by the reverser effect of culture, art, of his
free will or autonomous rationality, solely assumes the role of subject or agent
before an objectified world (Farisco 2008).
This view on human nature implies, regarding the concept of person, an empha-
sis on the feature of autonomous rationality. Autonomous reasoning is what defines
human nature and is essential to the role of subject, ergo, to be regarded with the
status of person, a bearer of rights and duties concerning his interests or the interests
of others. A view committed to the assumption of human nature as a precondition to
moral agency. Practical rationality, in Kantian terms, would be deeply embedded
and, at the same time, regarded as constituent of human nature and personhood.

2
 La Metrie, for example, argued that a murderer or a dishonest man could not be blamed guilty
because his actions were determined by its nature or his natural inclination towards particular
behaviors of that type. It is worth noting that quite recently Laurence Tancredi (2005) has brought
to debate a claim to rethink the notions of civil and criminal liability due to new discoveries in
neuroscience concerning the relation between physical and mental elements in human beings.
Would we be looking at the end of tort law?
116 D. Franco Silva

The widespread and still popular – in morality and law – liberal concept of per-
son proceeds from this assumption. A conception based, since Kant (1952), in the
idea that every person is a potential universal legislator and every person shall exer-
cise her autonomy in the creation of norms and election of forms of life taking into
account the freedom to do so possessed by other persons. A person’s dignity derives
from its rational autonomy as a being that is an end in itself. It also must be stressed
that, for Kant, the exercise of the righteous reason implied a detachment from any
external influence, including any empirical factor.
Of course, no concrete person resembles this description of a “rational spooky”
and its focus on autonomous reasoning.3 Disregarding the role of inter-subjectivity,
empirical immersion and alterity leave us, again, with a highly exclusionary concept
of person, even when talking about human beings. An idea of person that just cannot
cope with some limit situations or marginal cases such as the beginning (fetuses) or
end of life (comatose patients) without clear contradictions that demand modal
arguments and also render accusations of speciesism (Singer 2002). The aims of this
paper are: (1) to criticize essentialist normative views based on the idea of human
nature and; (2) identify the concept of person as an axiological concept with no
roots in any paradigmatic ontology

8.3  Leaving Human Nature Behind

Attempts to establish an intrinsic and exclusive relationship between being human

and being a person are clearly flawed. First, one cannot simply extract norms from
facts.
Historically, the use of the term “human” when talking about some basic or fun-
damental rights or personhood can be easily understood as a measure of rhetorical
reinforcement of the claims for universality against moral relativism. Thus, to
ensure that every human being is regarded as a person does not imply that only
human beings can be valuated as such. To think this way is to transmute an axiologi-
cal concept (the concept of person) into a self-contained and self-sufficient
ontology.
The search for a human nature or essence reveals an ontological quest that proj-
ects itself onto the ethical and epistemological levels: man is regarded as a self-­
referential being, measure of all other things and self-contained.
Precisely from humanist anthropocentric thought rigid distinctions emerge
between human and non-human on the ontological level (a human nature that

3
 Astonishingly, all the obstacles imposed when talking about personhood of concrete entities other
than those belonging to the human species are never considered when talking about legal persons,
what might show the strength of the “rational spooky” approach. Especially when, despite pre-
sented as “instrumental entities”, there is a growing tendency in equalizing its legal capacity to that
of natural persons, as recently seen in Burwell v. Hobby Lobby, a landmark decision by the United
States Supreme Court in which, for the first time, a for-profit corporation’s claim of religious belief
has been recognized.
8  From Human to Person: Detaching Personhood from Human Nature 117

opposes itself to everything that is not human), epistemological level (cognition of

reality through the reductionist categorical duality of human/non-human) and ethi-
cal level (man, bearer of dignity, occupies the position of sole moral agent and
patient, everything else acquiring an instrumental connotation).
This anthropocentric approach constitutes the philosophical background con-
cerning personhood in western societies, guiding and explaining normative regula-
tions on the level of law (Pietrzykowski 2016). Relying on the concept of inherent
human dignity and unique human capabilities this view is determining in the emer-
gence of the concept Tomasz Pietrzykowski (2016) identifies as the Juridical
humanism thesis, which embodies a strong version of the human excepcionalism
hypothesis, meaning the belief in an objectively essential gap between humans and
the world.
Attempts to determine personhood proceeding from the idea of human nature
emphasize the features of psychophysical identity or autonomous rationality, but
disregard the feature of alterity. But these three features must be integrated in order
to construct a plausible conception of personhood, inasmuch as the concept of per-
son is a relational concept, in which the feature of alterity, in the sense of openness
to the other and to the world, plays a key role.
Being a person does not mean the mere instantiation of a set or being an element
of an abstract class (Spaemann 2007). On the contrary, it means the inclusion of
such being or element into a community of recognition, which explains very well
the inclusion of newborn babies or comatose patients (who lack autonomous rea-
soning) in the community of moral and legal persons demanding equal concern for
their welfare.
An adequate approach to personhood demands taking the role of alterity seri-
ously, and abandoning, therefore, an anthropocentric perspective. In fact, the goal
here is to recognize a process named by Marchesini (2009) as “anthropodecen-
trism”, which advocates the removal of the category of man from its claimed central
position in the universe.
Abandoning anthropocentrism means replacing the idea of human entity, as a
paradigmatic ontology, by an axiological concept: the concept of person, that now
shall rest on the center of the referential system that orientates man’s relationship
with itself and the world (Marchesini 2009).
With an axiological concept occupying the central position of such a system, a
paradigmatic ontology based on the duality between human versus non-human can-
not be sustained on the ethical and epistemological levels. This means that an ethi-
cal paradigm based on the idea of human nature cannot be sustained.
Considering that the concept of person comprises within its features a dimension
of alterity, and that alterity can be defined as openness to the other and to the world,
the centrality of the concept of person allows an expansion of the circle of recogni-
tion and the inclusion of possible non-human entities in an alterity relation as sub-
jects, regardless of the fact that these entities do not belong to the homo sapiens
species, do not possess the same biological structure or do not possess any biologi-
cal structure at all.
118 D. Franco Silva

Alterity – meant as a state or quality of what is diverse or distinct, and not only
referring to those entities with whom one can establish a discursive relationship –
contributes in two aspects to the construction of a personal identity:
(a) Other entities as a basis for a confrontation from which a subject emerges.
(b) Other entities as orientation points in a dialectical polarity that can give support to the con-
struction of an identity (Marchesini 2010:91).
The relevant issue on this approach, based on the expansion of the circle of alter-
ity, is the evaluation of what is different or divergent, but not as a form of contami-
nation of or deviance from a human nature or essence. Differences are recognized
plainly as “differences” and must be integrated into the process of construction of a
personal identity as elements for confrontation and orientation.
The “different” is recognized only as such, without axiological prejudice. This is
the dimension of alterity implied by the concept of person: openness not only to the
“other” but also to the world. Taking alterity seriously implies an inclusivist posture
on behalf of the different.
This “anthropodecentered” approach to the world demands, on the issue of ani-
mal rights, assuming the horizontality of the bios, the parallel evolution of diverse
species and that the human species does not occupy the top of a pyramidal chain of
evolution. Once we understand the idea of person not as the instantiation of a set of
necessary features, but belongingness, instead, to a community of recognition, the
absence of the feature of autonomous reasoning – as humans manifest it or, to put it
more accurately, in the same degree that humans usually manifest it  – is not an
obstacle to the inclusion of other species, at least as moral patients, a position not
necessarily linked to the ability for moral agency.
In the debate on human enhancement or post humanism, non-human alterity
assumes a cofactorial role regarding the construction of a personal identity and no
longer the technique can be compared to a glove put over human nature (the biologi-
cal basis) amplifying its operational capabilities, but is integrated with and consti-
tutes it (Clark 2003).
A man and a tool, for example, must be taken as a hybrid system that represents
more than the mere sum of the potentialities of each. The hybridization gives rise to
potentialities that didn’t exist before and man ends up transformed by the interac-
tion or relationship with the tool (Clark 2003). The feeling of incompleteness is not
a consequence of the biological constitution of man, but emerges from the relation-
ship between man and technique.
Therefore, the ideas of nature and culture or technique are intertwined. When it
comes to the definition of a biotechnology, it seems that “every technology is a bio-
technology” (Farisco 2008:60), due to the fact that it:
(a) Modifies the perception of performative optimality and therefore, of biological
incompleteness;
(b) Modifies man’s ontogenetical environment;
(c) Realigns natural selection pressures modifying a population genetic pool.
8  From Human to Person: Detaching Personhood from Human Nature 119

For example, fire became essential for human survival after its discovery. It also
has modified the environment in which human genetic structure could fit and altered
the shared DNA of entire populations by changing the process of natural selection.
The same thing can be said of antibiotics or even of airplanes.

8.4  Detached Personhood and Equality

All persons are equal. Could an anthropodecentered approach on personhood and

the recognition of non-human alterity invalidate such claim?
To answer this question, and also to address the concerns which have been pre-
sented regarding the entitlement and fate of the human rights idea, one must first
understand what is meant when we talk about equality, a concept which certainly
needs to be clarified, in spite of the common assumption that equality simply means
having the same of something. But the same of what?
Would it be everybody having the same level of happiness? The same amount of
resources or material goods? The same oportunities?
It must be noticed that juridical humanism, reflecting an essentialist normative
approach on the concept of person, assumes that equality derives from and certainly
means everybody sharing the same biological constitution (the one regarding the
human gender).
However, the first step to fully comprehend the challenges and practical prob-
lems related to a better understanding of the bios and other forms of life or to some
of the scientific breakthroughs that appear to be the next step in human evolution
(artificial intelligence, bionics, use of enhancement drugs, genetic manipulation,
etc.) seems to be to clarify the meaning of equality as a political value.
The value of equality does not demand, for its emergence, empirical or concrete
situations of equality regarding how any good or resource is naturally assigned
between the members of a community. In fact, the very idea of equality, generally
considered, can only emerge in a political community in the face of a concrete situ-
ation of inequality pound among its members.
Even when referring just to human beings for the purpose of recognition as part
of a community of equals bearing the status of person, it is clear that these individu-
als show, between themselves, innumerous differences regarding, for instance, their
sex, age, talents, abilities, conceptions of the good and, therefore, different interests
and goals. Considering, also, that a society in which every member proceeds from
the same starting point is nothing but a counterfactual exercise, differences regard-
ing birth, such as inherited wealth, and also education, social class and other envi-
ronmental factors must be considered as always present.
The existence of substantive or empirical inequality among its members is,
indeed, the factual situation that allows equality to be considered a political value in
a community. Talking about equality in practical reasoning means talking about a
120 D. Franco Silva

value, not a fact, that can be defined as an equal concern, from a political commu-
nity, for the fate and wellbeing of its members (Dworkin 2000).4
This equal concern, of course, can only be possible if substantive or material dif-
ferences are taken into account. Despite not aiming to sustain an equality principle
that reflects the broad idea of equality of welfare, meaning the mathematical equiva-
lent of goods or resources being constantly distributed and redistributed between all
members of a society (what certainly would leave us with a not very compelling
idea of equality, due to its disregard for personal accountability for choices or deci-
sion making), it is clear that even when proceeding from the crucial distinction in
practical reason between chance and choice, a principle of equality demands
embracing, through unequal treatment in favor of the worst-off, a principle of differ-
ence or differential treatment so to express equal concern to all members of a
community.
Therefore, equality, as a political value:
(a) Assumes that persons present substantive differences amongst themselves, due
to chance, including differences in their biological constitution or biological
“hardware”, thus presenting, also, different interests, conceptions of the good
life, objectives and goals.
(b) Is conceived so to demand unequal treatment of different concrete persons aim-
ing redistribution or compensation in favor of the worst-off, when talking about
resources or regarding minimal conditions for different interests, goals or con-
ceptions of good life to be pursued, without disregard for accountability5;
A partial conclusion can now be presented, which is that the existence of sub-
stantive differences, on the factual level, the existence of different conceptions of
the good or interests, on this same level, or even delivering unequal treatment to
unequal subjects does not threaten equality as a political value nor is capable of sup-
porting any claim of unequal treatment due to recognition of an alleged higher sta-
tus (being it a natural, metaphysical, cognitive, or physical claim for superiority)
inside any community. Persons are equal, demanding equal concern and never
counting in the political spectrum as more than one or as possessing a higher moral
level.
To assume non-human alterity as a threat to such a claim one must also wrongly
assume a conventional society (Kohlberg 1981), in which the right action is that
which instrumentally satisfies one’s own needs and occasionally the needs of others,
as in the marketplace. Recognition would be just a matter of exchange. Mutual
assistance or consideration for the interests of others would emerge only from the

4
 One must notice that such definition stands even in the face of other contemporary different con-
ceptual frameworks for a theory of justice, such as the one of John Rawls (2000). In fact, it is a defi-
nition of equality that, considering its rationalist limits, would fit even in a Kantian framework.
5
 The nature and extent of such positive discriminatory measures, and also, of course, of its content,
is in dispute. Though, it can’t be denied that even the Aristotelian conception of equality assumes
empirical inequalities by chance and demands some amount of substantive unequal treatment as a
political choice. This fact is highlighted so as to answer in advance any objections to such partial
conclusions on equality that are made through the denial of Rawls’ or Dworkin’s framework.
8  From Human to Person: Detaching Personhood from Human Nature 121

counterpart to be offered. This would be to assume a society that ignores a principle

of solidarity, which seeks to include diversity and the satisfaction of the needs of
others, focusing just on the others abilities to offer a proportional or broadly equiva-
lent payment in return or on the value expected by the subject to be gained from the
interaction.
As a matter of fact, the most common question asked when one talks about ani-
mal rights surely is: “but what is in it for us? What humans have to gain from it,
considering the loss of the infinite resources their commodification provides for
us”?
The concept of a person’s feature of alterity, as presented by an anthropodecen-
tric approach, comprises openness to others and their substantial differences,
demanding duties of solidarity and, despite the differences presented, an equal con-
cern for their well-being and their fate.
Of course, equal concern does not imply identical legal treatment. Taking into
account, for instance, different species interests as persons imply only the need for
shaping its legal capacity accordingly, ensuring rights related to such interests. For
sure a broad debate on the issue of the legal capacities of non-human animals is yet
to be established but, as an example, one could advance that they surely should be
legally entitled to a right of not being subjected to cruel treatment or to suffering
motivated solely by futile human interests.
Applying the above reasoning about equality as a political value when facing
practical problems related to the use of body-pervasive technologies – especially
those commonly referred to as human enhancement technologies –, is also needed,
but demands a slightly deeper level of refinement. Mostly because, in this case, fear
of inequality arises from the assumption that non-enhanced subjects (those who
choose not to enhance themselves or whose parents have chosen not to enhance
their children) will be left behind in the political spectrum, due to claims of moral
superiority made by persons that had enhanced their physical or cognitive
capabilities.
Again, one shall bring into consideration the traditional distinction between
chance and choice in the western tradition of practical reasoning. Persons always
present differences among themselves on a concrete level. However, some differ-
ences are clearly the result of pure chance, while others can be seen as consequences
of choice or decision-making processes. In other words, some inequalities arise due
to “brute luck”, meaning not the result of a gamble in a broad sense; others are a
consequence of “option luck”, which would be how deliberate and calculated gam-
bles (again in a broad sense) turn out (Dworkin 2000). As a matter of fact, every
time a choice is made it represents a kind of “gamble” regarding different possible
outcomes or courses of events.
Responsibility, being accountable or liable for some outcomes are concepts that
only can be applied regarding results of “option luck”. One cannot be blamed guilty
for being born in a poor family, or for its “race”, or for having inherited genes that
increases the odds of a particular disease. In these cases, the subject made no choice
or “gamble”.
122 D. Franco Silva

On the other hand, when a choice between two or more possible courses of action
is made, unfavorable developments leading to a worse situation or a lower level of
welfare could be excerpted from the domain of mere physical causality – always
contingent and many times randomly determined –, and attributed to the agent on a
normative level.
In a nutshell: enhancements are feared because humans that choose not to
embrace an enhancement enterprise might be held accountable for “staying behind”,
so that any positive discrimination on behalf of the worst-off would be no longer
justifiable.
To pursue this reasoning, though, either makes no sense or represents holding on
to a misguided conception regarding decision-making processes and the very role
that autonomy plays.
It clearly makes no sense on the conceptual framework designed by sociobiol-
ogy, especially by its aforementioned most radical versions that assume a crude
determinism or strong constraints on morality by our biological make-up. If bound-
aries between chance and choice do not exist one could not be blamed guilty for a
lost gamble or a bad choice.
The accountability of those worse-off for their poor choices, when compared
with those who choose to enhance themselves or with children whose parents have
chosen to enhance, can only seem to make sense when directly connected to the
anthropological philosophy account of human nature, focusing on man’s rational
autonomy and assuming the so called liberal concept of person.
Nevertheless, it is not redundant to reassure that no concrete person resembles
the “rational spooky” portrayed by the classical rationalist approach. Autonomous
agents do not make their decisions by a monological process in which – after with-
drawing themselves from time and space, disregarding each and every possible
empirical factor of heterodetermination (such as thirst, cold, hunger, social expecta-
tions to be met, contingent interests or inclinations, lack of knowledge of relevant
facts, etc.) – reason alone operates unconstrained and necessarily pointing them to
correctness.
A concrete person, on exercising their moral abilities (when capable of such
cognitive achievements), is more likely to show resemblance to the cartoon charac-
ter Homer Simpson than to Star Trek’s Mr. Spock.
Therefore, it is not a sound thought the idea that the traditional dichotomy
between chance and choice does have a clear and well defined border. Such idea is
either a fallacy or a counterfactual model that, despite presenting itself as a useful
abstract model from which to begin a process of evaluating personal agency or deci-
sion making, does not capture the complexities which need to be assessed for the
adequate accountability regarding its results on a normative level.
The idea that any results of “option luck” implies personal responsibility disre-
gards a more realistic approach on autonomous reasoning, in which autonomy is
properly represented as connected to the idea of “integrity”, rather than taking the
rationally right decision or making the correct choice.
Empirical evidence can be offered to support such assertion. Take, for instance,
the controversial personal decision of smoking. Despite the existence of statistic
8  From Human to Person: Detaching Personhood from Human Nature 123

correlation between smoking and sky-high risks of developing lung cancer and
widespread information about it, a well educated person who takes the high-risk bet
of smoking, facing the undesirable outcome of growing an incapacitating tumor, is
not seen by the community only as someone who lost a gamble and must be held
solely responsible for the outcome. On the contrary, despite being met with judg-
ment and reproach, in an acknowledgment of the fact that autonomous agents are
fallible and often make wrong decisions on a daily basis, the community normally
sees the choice to smoke as a vulnerability which besets many people. Thus, because
making the right or wrong decision is still frequently a matter of “brute luck” rather
than “option luck” due to empirical constraints that prevent accurate predictability,
the smoker is nonetheless held entitled for social security benefits and health care.
A bad choice or a choice that results in a worse position regarding others who
chose differently cannot alone deny the normative duties of solidarity implied in the
very concept of person. Personhood, by comprising a dimension of alterity, demands
solidarity. It is just not possible to be open to others and to the world and not
vulnerable.
It is also over pessimistic to assume that a society, while embracing a human
enhancement enterprise – as a shared collective goal of increasing levels of wellbe-
ing of its members –, will necessarily abandon the democratic principle and position
of neutrality towards diverse or even controversial views of the good elected by its
members that lies in the core of political liberalism.
Also, it is naive to assume that any definition of enhancement would disregard
the need for moral enhancement demanded to cope with contemporary challenges
that defies the human species evolved biology bias for short-term reasoning, small
scale mind representations regarding space or quantities and so on (an empirical
factor of heterodetermination).6 In fact, for centuries western societies have already
embraced the goal of moral enhancement through culture or technique. In one word:
education.
Ultimately, substantial differences of opportunity or differences that represent a
competitive advantage generated by enhancements are not qualitatively different
from those already existing, like substantial differences generated by different
opportunities on education, which reflects and can be caused by differences in social
class.
Therefore, the social inequalities that might be generated by enhancement tech-
nologies can be compensated by measures of distributive justice, like affirmative
action or social security, when avoiding such inequalities, or at least diminishing
them, is judged relevant towards a value of political equality that demands equal
concern for the fate and welfare of all persons.

6
 Regarding this argument, Ingmar Persson and Julian Savulescu make a strong point on the need
for moral enhancement so that broader interests, such as those of future generations, can be con-
sidered. The authors hold being unlikely that traditional methods such as moral education or social
reform alone can obtain results swiftly enough to avert looming disaster, which would undermine
the conditions for life on earth forever (Persson, Savulescu 2012).
124 D. Franco Silva

8.5  Conclusion

An exclusive relationship between personhood and the idea of human nature or

essence, endorsing the human exceptionalist approach, therefore, seems logically
difficult and also dangerous in the political dimension. Instead of leading to broader
mutual recognition and acceptance of differences, it promotes the emergence of
paradigmatic ontologies that push the concrete realization of different forms of per-
sonal identity, controversial choices or conceptions of the good towards transgres-
sion and marginalization.
A concept of person detached from the idea of human nature operates in the
opposite direction, by allowing inclusion and the acceptance of differences. It rep-
resents no threat to, but rather promotes the idea of political equality.

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Rodotà, Stefano. 2008. Il corpo e il post umano. In: Studi in onore di Davide Messinetti. Napoli:
ESI.
Sandel, Michael J. 2005. The case against perfection. The Atlantic Monthly 293(3): 50–62.
Singer, Peter. 2002. Ética prática. 3 ed. São Paulo: Martins Fontes.
8  From Human to Person: Detaching Personhood from Human Nature 125

Spaemann, Robert. 2007. Persone: sulla differenza tra “qualcosa” e “qualcuno”. 2 ed. Bologna:
Laterza.
Tancredi, Laurence. 2005. Hardwired Behavior: What Neuroscience Revels about Morality,
New York, Cambridge University Press.
Chapter 9
Are Human Beings with Extreme Mental
Disabilities and Animals Comparable?
An Account of Personality

Ana Paula Barbosa-Fohrmann and Gustavo Augusto Ferreira Barreto

9.1  Introduction

Taking the confusion that dominates the research literature concerning the concepts of
‘moral person’ and ‘human being’ as a starting point, we will examine these two con-
ceptions based on Kant’s Groundwork of the Metaphysics of Morals. For this, as a case
study, we will use the group of beings with extreme mental disabilities, in particular
patients in persistent vegetative state and patients with Alzheimer’s disease. Beings in
these conditions are supposed to have lost fundamental mental properties such as the
consciousness of the self or the capacity to choose what to do with their lives. In
broader terms, they are supposed to have lost permanently their empirical, not meta-
physical, rationality.1 Rationality seems to be the keystone of Kant’s moral philoso-
phy, the theory that shaped the contemporary debates about respect for persons (Dillon
2015) and human dignity. But it seems that the most influential theory about human
dignity excludes beings with extreme mental disabilities. However, we think they can
be embraced by the Kantian moral conception of human being and person; therefore,
they have dignity and must not be used as a mere means to anyone else’s ends.

1
 We use ‘rationality’ in this article in a normative and also descriptive sense: ‘In its primary sense,
rationality is a normative concept that philosophers have generally tried to characterize in such a
way that, for any action, belief, or desire, if it is rational we ought to choose it. […] Rationality is
also a descriptive concept that refers to those intellectual capacities, usually involving the ability
to use language that distinguish persons from plants and most other animals.’ (Gert 1999)
A.P. Barbosa-Fohrmann (*)
Faculty of Law, Universidade Federal do Rio de Janeiro,
Rio de Janeiro, RJ 21941-901, Brazil
e-mail: anapbarbosa@direito.ufrj.br
G.A.F. Barreto
Faculty of Philosophy, Universidade Federal do Rio de Janeiro,
Rio de Janeiro, RJ 21941-901, Brazil
e-mail: gustavoafbarreto@gmail.com

© Springer International Publishing AG 2017 127

V.A.J. Kurki, T. Pietrzykowski (eds.), Legal Personhood: Animals, Artificial
Intelligence and the Unborn, Law and Philosophy Library 119,
DOI 10.1007/978-3-319-53462-6_9
128 A.P. Barbosa-Fohrmann and G.A.F. Barreto

If we apply – with some modifications – the Kantian conception of moral person

to beings with extreme mental disabilities, we deviate from Peter Singer’s argument
that not every human life has equal value. Singer stresses that people in these condi-
tions have no morally relevant life, since they do not have the two essential require-
ments to establish a conception of what constitutes a person: self-consciousness and
rationality.
The fact that a being is capable of understanding that it has ‘a life’, and of having hopes and
plans for how that life will go, does make it worse, others things being equal, to end that
life. Then, and only then, are we ending the life of a being that knows it is alive, and can see
itself as existing over time. Then, and only then, does the being have any conception of what
it might lose by being killed, or have any capacity to have desires for the future that are
thwarted by being killed. (Singer 2005, 131)

If beings with extreme mental disabilities are unaware of what is lost with the
end of their existence, then there is no rational justification to characterize their
death as worse than the death of a chicken (Singer 2005, 131). From Singer’s per-
spective, it is only the consciousness of the end of existence that provides human
beings with their dignity and superiority. Singer acknowledges significant differ-
ences between ‘normal’ adult human beings and other animals,2 which do not exist
between animals and patients in persistent vegetative state or patients with
Alzheimer. These patients are not supposed to be included in Singer’s conception of
what a person is.3 Singer directly challenges the Kantian notion of personality and
dignity to show how Kant’s theory is inappropriate for the protection of beings with
extreme mental disabilities. According to Singer,
if we really take Kant’s argument seriously, then humans beings who are not self-­conscious –
because perhaps they are so profoundly mentally retarded that they lack self-consciousness
or self-awareness – are also merely means to an end, that end being autonomous or self-­
conscious beings. So the Kantian approach would not help those whose objective is to
demonstrate that all human beings have superior status to nonhuman animals. (Singer 2009,
574)

In order to respond to the challenge posed by Singer, we will refer to the Kantian
distinction between ‘human being’ and ‘moral person’, and on the grounds of his
moral theory we will answer the question whether beings in a minimally conscious
state4 are endowed with autonomy, dignity and personality. We propose then as a

2
 ‘And even if you are a vegetarian – as I am – you are very likely going to think – as I do – that
what happened in New York and Washington, D.C., on September 11, 2011, was a greater tragedy
than what happens daily at a slaughterhouse. But why? Unless we take refuge in religious teach-
ings, which not all of us share, the answer has to be because of some difference between humans
and animals. That difference, however, cannot merely be the fact that we belong to one species and
chickens belong to another.’ (Singer 2005)
3
 ‘The definition of person that I hold is, as I have written in Practical Ethics and other works,
derived from John Locke’s definition of a person as “a thinking intelligent being that has reason
and reflection and can consider itself as itself, the same thinking thing, in different times and
places”.’ (Singer 2005)
4
 We think that the use of ‘minimally conscious states’ is justified because there is some evidence
that patients in a persistent vegetative state have kept the capacity for consciousness: ‘The most
9  Are Human Beings with Extreme Mental Disabilities and Animals Comparable?… 129

departing point in this paper an analysis of a theoretical position on personal iden-

tity that distinguishes between numerical and qualitative identities, and we will
present a critique of this theory based on an alternative interpretation of the Kantian
conception of personality that constitutes, we hope, an incomplete but still sound
defence of the dignity of a being with a severe mental disability, such as Alzheimer’s
or a persistent vegetative state.

9.2  Personal Identity: The ‘Numerical-Qualitative’

Distinction

There is an immense literature on personal identity in the field of the philosophy of

mind, but we shall focus on one important contribution to the field, namely that of
Parfit,5 and on an interpretation of Parfit’s work by Belshaw. Parfit establishes a
psychological difference between the so-called ‘numerical and qualitative identi-
ties’, an idea followed by Belshaw. According to Parfit, numerical identity, on the
one hand, is based on the fact that each person is intrinsically unique and for that
reason she6 is not identical to another, even if this other one is her twin or a perfect
replica.7 On the other hand, qualitative identity consists of an identity resulting from
the fact of having the same appearance or features as another person. In this sense,
two twins are qualitatively identical because they are both human, they have the
same age, eye and hair colour, etc. Twins share a broad range of traits, which sug-
gests sameness.
What is relevant here, however, is the idea expressed by the concept of numerical
identity. On this point Belshaw agrees with Parfit’s understanding by asserting that
the persistence of a particular psychology is necessary and sufficient to the contin-
ued existence of a certain individual (also Holland 2008).

serious moral objection to taking organs from persistently vegetative patients, even with their
advance consent, is that at present there is often uncertainty about their condition. The two most
important forms of uncertainty concern the possibility of recovery and the possibility of conscious-
ness of which external observers are unaware. Recent research has demonstrated that some people
who had satisfied the clinical criteria for persistent vegetative state had not in fact lost the capacity
for consciousness. In this relatively small group of patients, compelling evidence of certain forms
of consciousness has been discovered, and in at least one case there has been a complete recovery
of normal consciousness’ (McMahan 2009). Some signs of lucidity are also reported, although not
scientifically proved, in relation to patients with Alzheimer’s (Franzen 2002).
5
 Why Parfit? Here, making Schechtman’s words our own: ‘I choose Parfit for three reasons. First,
his view is, for my purposes, perfectly representative. There is no argument I make against Parfit
which could not be applied to any other standard psychological-continuity theory without signifi-
cant alteration. Second, Parfit’s view is one of the strongest versions of this theory, and, finally, it
is the version of the psychological-continuity theory which has been most discussed in the recent
literature.’ (Schechtman 1990, 72)
6
 We use the female pronoun for all persons and human beings in this text (both female and male).
7
 See Section 75 ‘Simple teletransportation and the branch-line case’ of Parfit’s book (1984, 199).
130 A.P. Barbosa-Fohrmann and G.A.F. Barreto

The persistence of a certain psychology, rather than the possession of, or embodiment in,
certain biophysical materials, is necessary and sufficient for the continued existence of a
certain individual. On this view, I may cease to exist even if my body continues to live. This
may happen, for example, with sudden and irreversible amnesia, or with severe dementia.
For the psychology is necessary: lose or replace it, and we have either no one, or someone
else. And it is also sufficient: keep it, and the person survives. So I may continue to exist,
even while my body is completely destroyed. (Belshaw 2000, 266)

In other words, if we consider a lifetime divided into different moments, John is

identical – numerically identical – to John if and only if there is a strong psychologi-
cal connection that makes him conscious of his identity and existence over time, or
in Parfit’s more systematic exposition8:
(1) There is psychological continuity if and only if there are overlapping chains of strong
connectedness. X today is one and the same person as Y at some past time if and only if (2)
X is psychologically continuous with Y, (3) this continuity has the right kind of cause, and
(4) there does not exist a different person who is also psychologically continuous with Y. (5)
Personal identity over time just consists in the holding of facts like (2) to (4). (Parfit 1984,
207)

By applying this categorization to the two specific cases examined here we can
derive from Parfit and Belshaw that a person with an extreme mental disability is, in
terms of qualitative identity, as long as she does maintain the observable constitu-
tion of the organism, the same she was 10  years ago before she became ill, but,
according to their views, who she was in the past does not correspond numerically
to the person she is now in the present, since there is no strong psychological con-
nection between the person before and after the illness.

9.3  T
 he Philosophical View: An Alternative Interpretation
of Kant’s Conception of Person

We stress that the above contributions of Parfit and Belshaw are known, not surpris-
ingly, as psychological views of the identity of the person. However, if we, follow-
ing Kant, admit a necessary conceptual philosophical distinction between, on the
one hand, what a human being is and, on the other, what a moral person is we can
give a sound critique of that position as well as of Singer’s position.
We understand patients with extreme mental disabilities to be constituted with a
unique sole static identity that does not differentiate each of them from every other
human being. This understanding implies that, as long as they are alive, human
beings cannot be transformed into something else, a non-human being, and this is
part of our identity in every phase of our lives. The fundamental structure of identity
here is not founded on being a person, but rather on being human. At this point, we
think that what is called ‘numerical identity’ can be conceptually corrected by using
the designation of ‘the static identity of a human being’. In this sense, beings with

 Compare with footnote 3.

8
9  Are Human Beings with Extreme Mental Disabilities and Animals Comparable?… 131

severe mental disabilities have static identity as a result of their human status. They
do not lose their identity or do not transform into non-human beings because of their
illness. Furthermore, the static identity based on human status provides us with a
single inner ‘code’ that makes us original. It keeps our static identity from being
changed later in life due to illness or disability. As Belshaw understands it, ‘identity,
once established, survives [physical, genetic] interference’ (Belshaw 2000, 264).
After all, by asserting that an individual in a persistent vegetative state is some-
one else different from who she was in the past does not take into consideration the
identity understood as her single, unique and original code that was born with her
and that made her, at least partially, who she is in different phases of her life. As a
biological organism, we have a foundation that allows us to distinguish between us
and other animals. Something in our genetic code is a starting point to our rational-
ity that does not exist in chickens at all. But it is clear that a static identity, or being
biologically a human organism, is not sufficient to confer personality to a human
being.9
We agree with Parfit and Belshaw when they say that changes in appearances can
happen throughout our lives and this can generate effects on our qualitative identi-
ties. The aging process, beauty destroyed by a deforming accident, blindness or
deafness certainly produce some changes in our view of life and our way of defining
ourselves in relation to others.10 Persons respond to such events, which can be emo-
tionally traumatic or not, by changing their life perspectives, from a negative to a
positive one, or vice-versa. The truth is that they are unlikely to be the same as they
were before. So we agree again that qualitative identity has some relation to the
meaning of being a person, albeit not for the same reasons proposed by Parfit and
Belshaw but because that identity can have a dynamic, concrete facet that depends
on our interaction with our physical and emotional environment.

9
 Singer is partly right when he says that ‘We cannot claim that biological commonality entitles us
to superior status over those who are not members of our species’ (2009, 572–573). Our inner code
is a necessary but insufficient basis for some capabilities that other species do not have. Patients in
persistent vegetative state and patients with Alzheimer’s disease share this inner code and, more
importantly, they share meaningful experiences with other human animals in a way that nonhuman
animals cannot. Our higher cognitive abilities are rooted in our biological structure, but maybe
there are other paths to those abilities. So, if there were other beings also capable of sharing these
meaningful experiences (i.e. aliens with higher cognitive abilities), they would also have been
granted personality.
10
 Some changes in the personality can be so radical that some persons who knew a given person
before the accident she suffered are no longer able to recognize her as the same person. ‘Consider
the case of Phineas Gage. A metal projectile from an explosion penetrated his skull while he was
working […]. The projectile damaged an area of his frontal lobe, the region of the brain that medi-
ates cognitive functions such as reasoning, decision-making, and impulse control. The frontal
lobes also mediate the cognitive and affective traits associated with personality. Some of his cogni-
tive capacities were intact following the accident. But he became impulsive and impaired in his
capacity for rational and moral decision-making. His emotions changed radically, and his behavior
became erratic. There was such a change in his personality that those who knew him claimed that
he was “no longer Gage”’. (Glannon 2013, 148; see also Damásio 1996, 23)
132 A.P. Barbosa-Fohrmann and G.A.F. Barreto

We argue that beings with severe mental disabilities do also have dynamic iden-
tity. We prefer the designation ‘dynamic identity’ to ‘qualitative identity’, since the
first one depends for its understanding on the conceptual moral construction of
‘latent external autonomy’ and personality,11 and the latter, according to its defend-
ers, refers only to apparent traits of a person. In our view, beings in severe limited
or even minimally conscious states do not lose completely12 their dynamic identity
due to the illness or accident that led to their disability.13
Certainly, beings with extreme mental disabilities have their relationships so
affected by their condition that a fear arises not just of the psychological discontinu-
ity of the person but of the complete disappearance of their identity. The core of the
matter is not that one being becomes another person, but that she is supposed to
become no person at all. However, we can deal with this fear if we assume a philo-
sophical perspective and if we understand that the fate of all human beings is pro-
gressive and permanent decline and, at the end, death.
That is to say, our identity has to be the identity of an impermanent and changing being
relating in all kinds of ways to other beings, especially other persons and remaining the
same through these changes because of the special links to its own past and future. (Lesser
2006, 59)

Let us explain: physical and mental decline and death are unchangeable truths
for human beings, and we are aware of that. As human beings, we have memories
and consciousness, but we are also threatened by the possibility of losing them.
Vulnerability is what defines us. Those who suffer from Alzheimer’s disease and
have lost their memories and consciousness do not become non-persons, but per-
sons with no memories and consciousness. What then justifies the claim that these
beings remain worthy of being called a person? Besides the continuity of human
organism, we think that the preservation of the memory of patients with extreme
mental disabilities can be exercised autonomously, not properly by them, but with
the assistance of other individuals, with whom they were connected before losing
their memory. Stories told by such patients in the past or writings left by them can
contribute to preserve their memory in the present. In fact, this is not just a question
of a mere preservation of memory. Instead, experiences, stories and relationships
can be gathered and synthetized to give meaning and to effectively express patients’

11
 For the concepts of ‘external autonomy’ and ‘potential external autonomy’ see (Barbosa-
Fohrmann 2015). In this paper and in a forthcoming one the concept of ‘potential external auton-
omy’ is slightly modified into ‘latent external autonomy’ (Barbosa-Fohrmann 2016). The concepts
of ‘external autonomy’ and ‘latent external autonomy’ are interpretations of the Groundwork. In
few words, latent autonomy means the possibility of developing and manifesting the autonomy
that all humans are born with in their action as persons with physical and emotional environment.
12
 A different perspective understands that the ‘capacity for conscious awareness’, the capacity that
confers us our personality, is a question of neurological function, so ‘We cease to exist when we
permanently lose this capacity. This occurs when there is irreversible cessation of integrated corti-
cal function in the brain enabled by the thalamus and the brainstem ascending reticular activating
system, as this function is necessary to generate and sustain awareness of self and one’s surround-
ings.’ (Glannon 2013, 247)
13
 Compare with the meaning of ‘boundness’ (Lesser 2006).
9  Are Human Beings with Extreme Mental Disabilities and Animals Comparable?… 133

real and actual will.14 They can by such means affirm their own dynamic identity
and reveal that their values, intentions and desires are alive and healthy despite the
accident or illness that caused the severe mental impairment.
The latent external autonomy of these patients can therefore be extended to the
circle of persons that were, or still are, close to them. Such an understanding can
lead to the exercise of their autonomy through others. This is what we call extended
autonomy. The exercise of such autonomy does not imply the replacement of the
patient’s will, but the acknowledgment that her will was known by her family,
friends and/or acquaintances in the past.15 The being’s past can therefore serve to
ground her dynamic identity, her latent external autonomy and her dignity as a per-
son in the present.

9.4  H
 uman Dignity in Kantian Theory Founded
on the Distinction Between Existent and Latent
Autonomy

Human dignity is grounded in Kant’s concept of autonomy. Furthermore, it is also

understood as a prerogative of a person that is her own legislator. For that reason,
this person has motives to abide by her own duties resulting from moral law (Wood
1998, 172). To quote Kant:
… likewise that this dignity (prerogative) it has above all merely natural beings brings with
it that it must always take its maxims from the point of view of itself, but also at the same
time of every other rational being as legislating (which are therefore also called persons).
Now in this way a world of rational beings (mundus intelligibilis) as a kingdom of ends is
possible, and possible through their own legislation of all persons as members. (Kant
1998a, 45)

And further:
… we thereby picture a certain sublimity and dignity in the person who fullfils all his duties.
For there is indeed no sublimity in him in so far as he is subject to the moral law; but there
is, in so far as with regard to it he is at the same time legislating and only because of that
subordinated to it. (Kant 1998a, 46)

We can elaborate three different interpretations based on these quotations. A

first, broad one resides in the assumption that human dignity is inherent in every
rational nature. In this sense, every woman and man, without exception, would have
this status. Kant does not refer only and strictly to a being that thinks or effectively
uses her reasoning, but rather to a rational animal nature, a human being that differs
from a non-rational animal nature, a nonhuman being. A second strict interpretation

14
 There are some difficult issues relating to hypothetical consent, which cannot be addressed here,
as they would go beyond the aims of this paper.
15
 We assume that even a solitary person in some phases of their life establishes some social
relationships.
134 A.P. Barbosa-Fohrmann and G.A.F. Barreto

presupposes that only rational beings that can self-legislate are endowed with dig-
nity, and this attribute of self-legislation can be understood as a predicate only of
rational beings who can use their intellect to elaborate moral law and consequently
to respect and obey it. A third alternative interpretation, our alternative, consists of
admitting that every human being, without differentiation, has dignity. But the rea-
son for this assumption is not the same that underlies the first broad interpretation.
According to our concept of existent autonomy, every human being is born with
an internal not exercisable autonomy. Assuming that every human being without
exception has internal autonomy, everyone has, consequently, human dignity. Human
dignity, however, only takes form in the field of latent external autonomy, when every
human being receives the more specific status of a person. She is qualified as a per-
son because she can actively self-legislate and obey moral law. Here, dignity means
the dignity of a person. Accordingly, from both concepts of internal and external
autonomy we can assume that every woman or man who is born with human dignity
has necessarily the dignity based on the status of being a human and a person.
The attribution of dignity to every human being seems to find support in Kant’s
work primarily because it establishes that every human being has an ‘inherent right
to freedom’. The inner right to freedom, or in Kant’s own words:
Freedom (independence from being constrained by another’s choice), insofar as it [this
freedom] can coexist with freedom of every other in accordance with a universal law, is the
only original right belonging to every man by virtue of his humanity. (Kant 1998b, 63)

The need to make the moral law universal is not initially under consideration;
Kant does not require that human beings are actually rational or self-conscious in
order to have the right to freedom. It is enough that she is born as someone who is
endowed with human uniqueness, and thus the human condition in itself, without
any contingent features, is the foundation of moral sovereignty (the quality of being
your own master).16 One must not make incompatible arrangements with the other’s
innate right to freedom. As we said, our inner code is the starting point, that is to say,
the basis of personality. The claim to establish a link between body and person is not
new, nor is it contradictory with Kant’s metaphysical claims.
This formulation of your right to your person as your right to your body neither presupposes
nor conflicts with any more general metaphysical claims about the relation between your
person and your body. At the level of theoretical metaphysics, your person might be kept
track of in other ways – the narrative of your actions, the fluctuations of your bank account,
or your own conscious thoughts. As far as your claim against others, and the claims of oth-
ers against you, however, the starting point must be your person as your body. (Ripstein
2009, 41)

We also have to consider that Kant’s most important formula for the Categorical
Imperative, which is called ‘Formula of Humanity’,17 is considered by Wood as the

16
 ‘The right to be your own master is neither a right to have things go well for you nor a right to
have a wide range of options. Instead, it is explicitly contrastive and interpersonal: to be your own
master is to have no other master.’ (Ripstein 2009, 36).
17
 ‘So act that you use humanity, whether in your own person or in the person of any other, always
at the same time as an end, never merely as means’. (Kant 1998a, 38)
9  Are Human Beings with Extreme Mental Disabilities and Animals Comparable?… 135

best starting point to Kantian moral philosophy because the Formula of Humanity
is ‘the only formulation of the moral principle Kant ever invokes in relation to the
right of human beings’ (Wood 1998, 165–166). In other words, Kant expresses here
the content of duty, the understanding that the object of moral law is humanity in
someone’s person, and not personal inclinations. It is humanity itself contained in
another person that matters. This is why Kant lessens the importance of the act com-
mitted out of affection instead of obedience to duty.
For Kant, humanity is a step forward from animality.18 The concept of humanity
embraces an idea of latency, or, in Kant’s own words, ‘the capacity to realize all
sorts of possible ends’. This idea feeds the notion of dynamic identity
The capacity to set oneself an end – any end whatsoever – is what characterizes humanity
(as distinguished from animality). Hence there is also bound up with the end of humanity
in our own person the rational will, and so the duty, to make ourselves worthy of humanity
by culture in general, by procuring or promoting the capacity to realize all sorts of possible
ends, so far as this is to be found in man himself. In other words, man has a duty to cultivate
the crude predispositions of his nature, by which the animal is first raised into man. It is
therefore a duty in itself. (Kant 1991, 195)

A step forward from animality towards personality, however, does not necessar-
ily compel us to understand humanity as being superior or inferior to personality, or,
at least, Kant does not seem to make a relevant distinction between them. The ratio-
nal nature of human beings is the core issue, so ‘any being which has humanity will
have the capacity to recognize the worth of humanity, and will therefore have per-
sonality as well’ (Wood 1998, 172). Humanity is the condition of setting ends by
using rationality, and therefore the end par excellence of a human being.
Of course, human beings who suffer from severe mental limitations as those with
Alzheimer’s disease or who are in persistent vegetative state are not fit ‘to realize all
sorts of possible ends’. But it does not mean that an end cannot be established by a
person with severe mental disability. Decisions about the continuity of life, or its
termination, or the right not to be submitted to scientific experiments or to organ
harvesting are possible ends that can be set by every healthy person during the course
of life, or specifically by patients in the early stages of Alzheimer’s disease, who can
formulate a will, where they establish the conditions of health care i.e. palliative
treatment with regard to their future limited autonomy or terminal condition.
It is interesting to note that Singer also grants patients in persistent vegetative
state the possibility to have their decisions considered and enforced. One can right-
fully refuse to be submitted to, e.g., non-voluntary euthanasia, while still competent

18
 Animality, humanity and personality are predispositions of human beings to goodness. Our ani-
mality moves us as living beings towards self-preservation, procreation and community building.
As rational beings, we compare ourselves to others, this is what the predisposition to humanity
allows us. Personality is conferred to the rational human being that is also a responsible being, so
she is susceptible ‘to respect for the moral law as of itself a sufficient incentive to the power of
choice’. (Kant 1998b, 52) (italics in the original)
136 A.P. Barbosa-Fohrmann and G.A.F. Barreto

to decide.19 But here the argument seems to lack coherence, at least if we consider
that Singer emphasizes once more that patients with severe mental disabilities
… are not self-conscious, rational, or autonomous, and so considerations of a right to life or
of respecting autonomy do not apply. If they have no experiences at all, and can never have
any again, their lives have no intrinsic value. Their life’s journey has come to an end. They
are biologically alive, but not biographically. (Singer 1993, 191–192)

If this were the case, why then would we need to respect the will of those that
now have no value? If we follow Singer, we have no moral reason to consider a
patient’s decision not to submit to non-voluntary euthanasia. This is because the will
of the patient should follow the same fate as its autonomy and its value. Autonomy
and the value of the individual have their sources in the will of the patient to accom-
plish her ends. If there is no present will, everything falls like a house of cards. The
foundation of the respect for patient’s will is the recognition that a person still exists.
In order to comprehend why a human being in such a state still exists as a person
we need to return to Kant and his idea of a ‘substantial self’, an idea that helps us to
justify the distinction between static and dynamic identity. The attribute ‘substan-
tial’ is here interpreted as excluding the self from all ‘empirical contingencies’, such
as honest/dishonest, generous/selfish or, for the sake of this article,
‘normal’/‘disabled’. Note the emphasis given by Kant to the need for putting aside
the circumstantial features of a human being.
Now, an action from duty is to put aside entirely the influence of inclination and with it
every object of the will; hence there is left for the will nothing that could determine it except
objectively the law and subjectively pure respect for this practical law, and so the maxim of
complying with such a law even if it infringes upon all my inclinations. (Kant 1998a,
13–14)

All these predicates are empirical, circumstantial elements assigned to that ‘tran-
scendental subject’ to form the real individual. The constitution of a moral person
occurs when this ‘transcendental subject’ by means of reason establishes a valid
moral law for herself and others. In the Groundwork Kant stresses that human incli-
nation to honesty or generosity are contingencies resulting from fortune and there-
fore irrelevant to understanding morality, which should be grounded on pure
concepts. ‘Inclination has no part to play in the motivation of an act that is morally
right’ (Sorell 1998, 86), consequently, there is not enough reason to deny certain
contingencies (honesty, for example) and not others (extreme mental disabilities), if
the pure conceptions of human being and of moral action are sought.20 This is why,

19
 ‘This objection [the fear of elderly persons that every injection would be lethal] might be met by
a procedure allowing those who do not wish to be subjected to non-voluntary euthanasia under any
circumstances to register their refusal. Perhaps this would suffice; but perhaps it would not provide
enough reassurance. If not, non-voluntary euthanasia would be justifiable only for those never
capable of choosing to live or die’. (Singer 1993, 192–193)
20
 By using a question Kant clearly affirms his goal: ‘Since my aim here is directed properly to
moral philosophy, I limit the question proposed only to this: is it not thought to be of the utmost
necessity to work out for once a pure moral philosophy, completely cleansed of everything that
may be only empirical and that belongs to anthropology?’ (Kant 1998a, 2)
9  Are Human Beings with Extreme Mental Disabilities and Animals Comparable?… 137

as Kant puts it, ‘in practical matters, it is just when common understanding excludes
all sensible incentives from practical laws that its faculty of appraising first begins
to show itself to advantage’ (Kant 1998a, 17).
Inclinations as well as other contingencies are certain in the world in which we
human beings live, and ‘[r]eason does not eradicate the influence of inclinations’
(Sorell 1998, 98). We all face problems that can unsettle and confuse us in times of
moral decision-making. Events as diverse as extreme poverty, terrible pain, or the
threat of violent death can create tremendous obstacles for the reasoning process
that allows us to distinguish right from wrong. No matter how difficult and painful
it may be, Kant believes that to act morally requires us to escape the burden that
nature imposes on us.
If morality is to apply universally and not merely generally, if it is to make demands on
something that is genuinely a will, i.e. something that initiates effects and is not just subject
to them, then morality cannot apply to us in virtue of our belonging to a particular natural
kind, nor hence in virtue of our place in nature (Sorell 1998, 92)

Those who have already expressed their view on maintenance or termination of

life under extreme conditions should have their interests preserved. There are no
relevant reasons, at least from the Kantian moral perspective, to deny consideration
of the interests of persons who have Alzheimer’s disease. The rightness or wrong-
ness of a decision taken by them before the disease, or by their families after it, must
be taken into consideration not because there is a contingent social consensus, but
because such persons have dignity, which demands respect.
‘Heteronomy’, as Kant understands it, means submitting our will to our inclina-
tions – contingent by definition. In our conception, the corruption of morality comes
from outside our will when we establish that obedience to moral law stems from an
independent end.21 What we advocate is somewhat different and we believe that it
does not distort the principle of Kantian moral theory. When we say that others can
express the will of a patient with a severe mental disability based on a testament
written or dictated by her, this expression does not corrupt the foundation of moral-
ity, as heteronomy does. What is revealed through another person’s manifestation is
nothing but the patient’s will. Once revealed, the actions resulting from this will, as
well as any other actions, may be evaluated and criticized by reason.
So we believe, unlike Wood,22 that there are sound reasons in Kant’s work to
justify a different perspective about the personality of beings with extreme mental
disabilities.

21
 ‘Wherever an object of the will has to be laid down as the basis for prescribing the rule that
determines the will, there the rule is none other than heteronomy; the imperative is conditional,
namely: if or because one wills this object, one ought to act in such or such a way; hence it can
never command morally, that is, categorically.’ (Kant 1998a, 50)
22
 “…Kant’s theory implies that if some members of our biological species lack ‘humanity’ in this
sense, whether temporarily or permanently, then not every member of our species is an end in
itself. It seems evident that young children and people whose rational capacities are severely
impaired simply do not have the capacity to set ends according to reason. On Kant’s theory, there-
fore, they have to count as non-persons and are not ends in themselves”. (Wood 1998, 185 n.4)
138 A.P. Barbosa-Fohrmann and G.A.F. Barreto

Free from any empirical evidence (contingency), there is no reason to deny the
conception that human beings are endowed with dignity, since this is the source that
enables every rational being to formulate the moral law for her and all the others.
Our dualistic conception of personality, which differentiates between static and
dynamic identity, is compatible with Kant’s theory and provides insights that help
achieve a better understanding of personal identity.
We underscore that Kant made an effort to formulate a conception of what a moral
person is. His goal was to escape from a subjective, individual point of view in order
to attain a universal, impartial perspective of moral law. Therefore, the term ‘human-
ity’, highlighted in Kant’s Formula of Humanity – the second expression of the cat-
egorical imperative – is interpreted not as a community of rational individuals, but as
a community of human beings in general, human beings that were, and still are,
capable of meaningful relationships, such as those with extreme mental disabilities.

9.5  Conclusion

Our aim in this paper was not to defend any theory on the relation between body and
mind. Rather, we started from a simple statement, modest and in principle undis-
puted, that there is a relation. Our controversial claim is that the inner code of our
body of human beings is a fundamental but insufficient element for a sound and full
comprehension of the concept of personal identity. Instead, a philosophical approach
is needed and we think that Kant gives us this approach. Kantian moral theory con-
fers us good reason to believe that human beings who cannot durably express their
will by unfortunate events conserve their personality and dignity. Just as it is reason-
able to assume that other nonhuman beings have dignity and personality, it seems
equally reasonable to affirm that persons who expressed their will through the inter-
mediation of other persons are also endowed with dignity and personality, in par-
ticular in those cases in which a person’s will cannot be excluded definitively.
In conclusion, there is no doubt that human beings can lose their rationality due
to a severe medical condition or illness. However, as we argued, this is an empirical
issue and it does not result in identity loss. If we are right, according to our interpre-
tation of Kant’s moral philosophy, we can understand identity as a unit with two
facets: a static and a dynamic one. The static one we are born with and we do not
lose in the course of our lives. It distinguishes us as a human being from what we
are not, a nonhuman being. The dynamic one depends on the static one and can
influence it but cannot annihilate it. In other words, it cannot turn a human being
into a nonhuman being. The dynamic identity refers to our interaction with physical
and emotional environment.
We need to point out that we did not aim to confer a unity on Kant’s moral theory.
Our goal was to pave the way for an alternative interpretation of Kant’s conception
of personality, which can include those in persistent vegetative state or with
Alzheimer’s disease. Our intention was to demonstrate that persons with extreme
9  Are Human Beings with Extreme Mental Disabilities and Animals Comparable?… 139

mental disabilities are in the same position as other human beings and therefore
their interests should be considered in the same way as other humans.23
Finally, we hope to have showed that there are sound reasons to think that Peter
Singer is not right when he affirms that patients with Alzheimer’s disease or in per-
sistent vegetative state have no morally relevant life. The mere fact that a being who
is born as a human being, with a genetic code that leads her to belong to a certain
group of species and not to any other, from a proper philosophical perspective,
allows us to recognize that every human being who is able to establish meaningful
relationships during their lives with other persons is endowed with dignity.

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Barbosa-Fohrmann, Ana Paula. 2016. Zur Autonomie und Menschenwürde von Menschen mit
schweren oder extremen geistigen Behinderungen: Eine kantianische Interpretation. In:
Menschenwürde im Dialog. Untersuchungen zu Brasilien, Deutschland und Österreich, eds.
Draiton Gonzaga de Souza, Stephan Kirste, Ingo Sarlet (forthcoming).
Barbosa-Fohrmann, Ana Paula. 2015. Human Dignity in the Moral Discourse of Social Justice for
People with Severe or Extreme Mental Disabilities. In: Human Rights, Rule of Law and the
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2015
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Cambridge University Press.
Kant, Immanuel. 1998b. Religion within the Boundaries of Mere Reason and other Writings.
Edited by Allen Wood and George Di Giovanni. Cambridge, Cambridge University Press.

23
 Our argument has clear limits. We do not intend to expand it in order to include, e.g., fetuses or
anencephalic children. This does not imply that such beings do not deserve protection; we think
they do, but other arguments that lie beyond the scope of this paper are needed to confer personal-
ity on them. The same applies to nonhuman animals. There is a fair demand for rights that protect
nonhuman animals from cruel actions. Singer’s arguments are suitable for such a task.
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Lesser, Harry. 2006. Dementia and Personal Identity. In Dementia: Mind, Meaning, and the
Person, eds. Julian Hughes, Stephen Louw, Steven R. Sabat, 55–62. Oxford: Oxford University
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McMahan, Jeff. 2009. Death, Brain Death and Persistent Vegetative State. In A Companion to
Bioethics, 2, eds. Helga Kuhse, Peter Singer, 286–298. Oxford: Blackewell.
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Oxford.
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Harvard University Press.
Singer, Peter. 1993. Practical Ethics. Cambridge: Cambridge University Press.
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Singer, Peter. 2009. Speciesism and Moral Status. Metaphilosophy 40:567–581. doi:
10.1111/j.1467-9973.2009.01608.x
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Littlefield.
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Wood, Allen. 2008. Kantian Ethics. Cambridge: Cambridge University Press.
Chapter 10
Is Sex Essential for Personhood? Being
“Halfway Between Female and Male”
From the Perspective of Polish Law

Agnieszka Bielska–Brodziak and Aneta Gawlik

10.1  Introduction

The fact that contemporary Western legislations treat every human being as a sub-
ject of law stems predominantly from arguments of a moral nature. “The axiological
foundation of these legal orders is the inherent dignity of the human person which
is at the same time its right to subjectivity (right to have rights)”1 (Pietrzykowski
2015: 19). Legal subjectivity is understood as the capacity to have rights and obliga-
tions from the moment of birth, at which time a human is granted the status of a
natural person by law. The Polish Constitution in Chapter II, which is dedicated to
the freedoms and rights of persons, stipulates the equality of all natural persons
before the law and forbids discrimination.2 Every human is entitled to the protection
of private and family life, honour and good reputation, and the ability to make deci-
sions in one’s personal life.3
At an elementary conceptual level, the issue of legal subjectivity does not appear
to raise many doubts. Legal intuition prompts conviction that the notion of being a

1
 In Polish law, the relation between subjectivity and dignity is expressed in Art. 30 of the
Constitution, which states: “The inherent and inalienable dignity of the person shall constitute a
source of freedoms and rights of persons and citizens. It shall be inviolable. The respect and pro-
tection thereof shall be the obligation of public authorities.”
2
 Art. 32 of the Constitution of the Republic of Poland.
3
 Art. 47 of the Constitution of the Republic of Poland.
A. Bielska–Brodziak (*)
Faculty of Law and Administration, University of Silesia, Katowice, Poland
e-mail: xbb@interia.pl
A. Gawlik
Department of Paediatrics and Paediatric Endocrinology, Medical University of Silesia,
Katowice, Poland
e-mail: agawlik@mp.pl

© Springer International Publishing AG 2017 141

V.A.J. Kurki, T. Pietrzykowski (eds.), Legal Personhood: Animals, Artificial
Intelligence and the Unborn, Law and Philosophy Library 119,
DOI 10.1007/978-3-319-53462-6_10
142 A. Bielska–Brodziak and A. Gawlik

subject under the law is an indisputable and obvious foundation of the legal system.
It is the particular aspects of subjectivity, however, that trigger disappointing obser-
vations. This text discusses one of them by viewing subjectivity from the perspec-
tive of sex, a twofold category encompassing biological and legal sex. It questions
the current practice of the legal assignment of sex on the birth certificate: is it, as it
prima facie appears to be, a declaratory act (which merely confirms the actual, bio-
logical state of affairs), or is it a constitutive act which creates a state of affairs
incongruent with the biological status quo and which thus assigns sex to a human
being irrespective of identity. In other words, does the law recognise a subject’s
identity as a foundation of legal sex, or does it aspire to determine a person’s legal
sex even at the expense of their gender identity? Answers to these questions are to
be found both in the sex assignment procedure and in rules governing the changing
of legal sex.
Being a subject – a natural person – means being either female or male. While
there is no legal requirement to have legal sex assigned in order to be granted legal
subjectivity, the absence of said assignment makes it, de facto, impossible (or highly
difficult) to exercise one’s rights as a subject. This leads to a situation in which a
subject of the law is unable to use an attribute which is granted not by the law, but
is inherently part of being born as a human being. The same is the case in the event
of wrongly assigned legal sex; a subject affected by a wrong decision by the state
faces a range of severe limitations. Current Polish procedures for changing the legal
sex in order to make it congruent with one’s biological sex are made without the
involvement of the affected party and resemble an act of mercy more than an act of
will to correct a mistake.
The Polish law does not, in fact, dedicate proper attention to issues related to
human sex. Whereas gender equality is a subject of numerous debates, the discus-
sion is limited to people with specific, already assigned legal sex/sex assigned at
birth.4 It is legal sex, and not biological, that is the most prominent foundation of a
subject’s legal position. Intuitively, this does not pose a problem. In our social con-
sciousness, determined by experiences of the majority, which are not impacted by a
conflict between the two types of sexes, legal sex is a simple, congruent reflection
of the biological one. Given that conflicts (both potential and already identified)
between biological and legal sex are statistically quite rare,5 the majority of society

4
 The particular legal dogmas have so far avoided probing into analyses of contemporary knowl-
edge on biological sex and the desirable implications thereof for legal regulations. An interesting
new position is a book by G. Krawiec Koncepcje płci człowieka a prawo administracyjne, Office
of the Commissioner for Human rights, Warsaw 2015.
5
 The overall incidence of disorders of sex development (DSD) has been estimated at 1 per 4500
births (cf. Hughes IA, Houk C, Ahmed SF, Lee PA, LWPES/ESPE Consensus Group. Consensus
statement on management of intersex disorders. Arch Dis Child 2006; 91: 554–563). On the other
hand, the incidence of transsexualism (gender identity disorder  – GID) is 1:12,000 (M/F) to
1:30,000 (F/M) (cf. van Kesteren PJ, Gooren LJ, Megens JA. An epidemiological and demographic
study of transsexuals in the Netherlands. Arch Sex Behav 1996; 25:589–600). It must be added that
transsexualism (incongruence between one’s perceived psychic sex and their morphological-bio-
logical build) is not a classic example of DSD.
10  Is Sex Essential for Personhood? Being “Halfway Between Female and Male”… 143

counterfactually assume that the law works in such a way that a person’s legal sex
is always in line with gender identity (self-identification). In light of such beliefs
held by the majority, cases where adult individuals strive to change their legal sex
are perceived as an oddity and deviation from what is “normal” and “acceptable”.
Such views, quite commonly held in society, may be justified by a lack of knowl-
edge of key determinants of sex and related inefficient legal regulations.
Meanwhile, thinking about sex as a biological notion has undergone a tremen-
dous evolution in the past decades. Science has revealed the complexity of factors
that determine sex, highlighting the importance of one of its components, namely
gender identity of an individual. This provides a clear basis for rethinking, on the
one hand, what should be instrumental in determining a person’s legal sex (whether
it should be based on what the sex organs – traditionally identified with sex – look
like, or whether the evaluation should have a much broader spectrum and encom-
pass internal bodily organs, as well as genetic and hormonal interdependencies),
and, on the other hand, the actual role of sex assigned at birth in determining the
legal situation of a person/subject.

10.2  Biological Sex and Legal Sex

“While the definition of sex may appear quite obvious, the determination of a per-
son’s sex may, in fact, sometimes prove difficult due to congenital anomalies caused
by atypical development of chromosomes, gonads and the anatomy” (Vetulani
2014: 15). These instances lead to legal sex being different from biological sex.
When this is the case, an individual experiences incongruence between personal
gender identification and the legal sex assignment (at the moment of birth, legal sex
will be assigned that will later appear to be inconsistent with the individual’s gender
identity, which will only be revealed in later stages of the individual’s develop-
ment). The medical reasons for this are diverse. Among the many potential causes is
a special category of (potential or already identified) cases dealing with a conflict
between legal and biological sex known as Disorders of Sex Development (DSD).6
These cases deal with individuals with improperly developed external and/or inter-
nal sex organs, or that frequently exhibit both male and female physical features.
The specificity of this medical category is of utmost significance for legal reflection,
since many cases shortly after birth raise medical doubts regarding what gender the

6
 This has been referred to earlier as intersexuality, hermaphroditism, and sex reversal. We shall
further use either the full name, or its abbreviated form – DSD. Knowledge which provides medi-
cal background for this paper is a result of cooperation with physicians working at the Department
of Paediatrics and Paediatric Endocrinology of the Medical University of Silesia in Katowice:
Aneta Gawlik MD. Ph.D. – specialist in paediatrics and endocrinology (team leader), Agnieszka
Drosdzol – Cop MD. Ph.D. – specialist in gynaecology, Grzegorz Kudela MD. Ph.D. – specialist
in paediatric urology, and Tomasz Koszutski MD. Ph.D – specialist in paediatric urology.
144 A. Bielska–Brodziak and A. Gawlik

child/adult will identify with in the future.7 Such doubts should result in undertak-
ing whatever measures necessary to dissolve the doubts in a reliable way before
medical assessments become the basis for determining the legal status quo.
However, current procedures for legal sex assignment in Poland (finalised, with no
exception, immediately after birth) do not leave time for performing the compre-
hensive medical procedures available, thus carrying the risk of error; the currently
acceptable procedures applied to correct such errors burden the individual with
unnecessary and acute consequences.
The following section outlines the key determinants of biological and legal sex.
Biological sex is a complex set of features – structures and functions – allowing
classification of organisms as either male or female (Strzałko 2006: 495). It is cur-
rently determined using a set of numerous criteria which are given different levels
of prominence (Imieliński and Dulko 1988: 13–14; Vetulani 2014: 15–17, Midro
2015: 86; Ziemińska 2015: 247–252). The most extensive presentation of these cri-
teria, based on sexology, distinguishes chromosomal sex (genotype sex), gonadal
sex, internal sex, external sex, phenotypic sex, hormonal sex, metabolic sex, social
sex (sex assigned at birth), brain sex, and psychic sex (Dulko 2003: 5–6). From the
perspective of the evaluation of the quality of current legal solutions, it is important
to highlight the following components of biological sex as the main ones: genetic
sex (based on the presence of sex chromosomes  – the X and Y chromosome),
gonadal sex (based on the structure and function of gonads – testicles and ovaries),
somatic (genital) sex, and last but not least, psychic sex. Gender identity is consid-
ered to be one of the aspects of psychic sex8 (Dulko 2003: 7). Sexual differentiation,
or the “decision” about whether a child will be born a boy or a girl, occurs in the
foetal period of development. Current developments in the biological sciences indi-
cate that it is the hormonal component (presence and activity of sex hormones),
which is derived from genetic and gonadal sex, that plays the largest role in deter-
mining an individual’s sex (Midro 2015: 83–102; Ostojska 2014: 15–18). The for-
mation of genetic and hormonal interdependencies during pregnancy will lead to the
occurrence of a specific biological sex in a newborn, including the occurrence of
one of its most significant aspects  – the psychic sex, which will manifest itself
through gender identity, or a sense of belonging that one feels for either the female
or male sex (Dulko 2003: 7–8). It should be emphasised that gender identity disor-
ders (GID) that are not accompanied by morphological-biological irregularities in
the classical understanding of the word determine the diagnosis of transsexualism,
and are not classified as DSD (Kula and Słowikowska-Hilczer 2013:1316; Mędraś
and Józków 2010: 27–31).
The scientific advances in the past decades have resulted in a number of new
discoveries in the field of genetic sex (including the Human Genome Project)
(Collins et al. 1998: 628–689) and hormonal sex; there are also vast accomplish-

7
 Unfortunately, there are some medical conditions (some forms of DSD) which make it impossible
to predict the future gender identity even with the use of the best examination techniques
available.
8
 Other aspects of psychic sex listed by S. Dulko, but not fundamental for the assignment of legal
sex, include: gender roles, sexual orientation, and cognitive gender differences.
10  Is Sex Essential for Personhood? Being “Halfway Between Female and Male”… 145

ments regarding psychic sex, and in particular gender identity (Bielas and Jabłoński
2014: 15–30), and the differences between female and male brains (Kimura 2006;
Ziemińska 2016; Grabowska 2004: 179–195, 2012: 525–543). This knowledge has
changed the way representatives of the natural sciences answer the question of
where sex “resides” in the human body. While the answer is still far from definite
and unambiguous, it shows that using the prima facie evidence (evidence obtained
by examination of a person’s external sex organs) to label people as representing
one or the other sex is incorrect and should be approached by the law more cau-
tiously. Regrettably, this knowledge has failed to trigger any significant changes in
the legal regulation – the majority of legal cultures are struggling, at various degrees,
with adjusting the regulations to reflect the image of human sexuality that is emerg-
ing from the latest developments in biology and medicine.
In Poland, legal sex is, as a general rule, determined by one of the components of
biological sex, namely genital sex, which in turn is determined the moment a child
is born.9 In the Polish culture, genital sex is intuitively associated with the notion of
sex as a whole – it is simply the way external sex organs look that classically catego-
rise an individual as either male or female. At the moment of birth, genital sex is the
most important “proof” or indicator of whether the newborn is a boy or a girl; the
visible and (seemingly) easy to classify external sex organs are the key determinant
of legal sex.
It can be said that who I am, in the sense of individual identity, is determined by
the whole of biological sex, the most important component, from the perspective of
an individual, being psychic sex (gender identity). On the other hand, who I should
be, in the social sense, is determined by the legal sex that was assigned to an indi-
vidual without any personal participation. Who I am, in the individual sense, is
determined by psychic sex; if taken literally, the statement can be made that “I am
the only person who can specify what my identity is.” This is by no means to say
that sex (in the sense discussed here) is a discursive construct, as some representa-
tives of gender conceptions would postulate, or that a person can be subjected to
external influences that could change gender identity (which appears to be the main
concern of conservatives, who are fierce opponents of gender). To the contrary, the
authors of this paper believe that biological sex is “given” to us naturally and is
independent of social circumstances. Whereas social roles may be freely and ran-
domly shaped, they have no influence whatsoever on the sense of biological belong-
ing to or biological identification with a certain sex. Perhaps the most famous
attempt to refute this fact, by J. Money, continues to disquiet us even to this day. The
thesis that a sense of belonging to a given sex develops based on conditions in which
a child is raised10 (Hampson et al. 1955: 301–319) was supposed to be corroborated

9
 “The most common method of assigning a particular sex to an individual is the evaluation of
infant”s reproductive organs immediately after birth. While being the most common, the method is
not always reliable (…) This is why, in the course of ontogenetic development, it may turn out that
the sex assigned at birth must be changed.” (Vetulani 2014: 16).
10
 J. Money presented a thesis that a child is psychosexually neutral (its gender is not fully differ-
entiated), and the gender identity it will assume depends on environmental factors, especially on
146 A. Bielska–Brodziak and A. Gawlik

by Money’s patient David Reimer (Money 1975: 65–71) who, at the age of 7
months, underwent a failed circumcision resulting in his entire penis being burnt
off. Money performed genital reconstruction surgery, and the infant had female sex
organs constructed surgically. This procedure was thought to be easier than attempts
to replace male organs, and it also offered better perspectives for the future (follow-
ing hormonal therapy, the patient was expected to have normal sexual intercourse).
Obviously, the underlying assumption was that a child’s psychic sex is undeter-
mined at birth, and therefore gender identity was determined by social, and not
biological, variables. Following an initial period of a seemingly harmonious devel-
opment, the patient began to exhibit traits typical of males, rejected the female iden-
tity, and demonstrated a range of psychiatric problems. After his parents informed
Reimer about his past, he decided to reassume his male identity and continued his
life as a male. Regrettably, he never regained mental stability and committed suicide
at the age of 3811. The price that Money’s patient paid for the many years of shock-
ing experiments became critical proof that human sex is predetermined and that any
attempts at modifying the core of this determination, lying not in the externality of
the human body, but in the brain and structures impervious to external influences,
are ineffective. The current perspective of medical science – differing significantly
from Money’s views  – seems to be quite convinced that “Psychic sex cannot be
reduced to subjective feeling dependent on human volition as in ‘I want to be a
woman’ or ‘I want to be a man’” (Ostojska 2014: 19; Vetulani 2014: 15–17; Moir
and Jessel 2015). Psychic sex is underpinned by biological factors, including chro-
mosomal, gonadal and neurohormonal factors (Imieliński and Dulko 1988: 14). A
sense of belonging to either sex is determined as early as in the foetal life and does
not change at later stages of life (Dulko 2012).12 Until the sixth week of embryonic
life, the gonads are bipotential, and further differentiation into female or male struc-

the nurture it receives.

11
 Reimer’s history was described by J. Colapinto in a book As Nature Made Him: The Boy Who
Was Raised as a Girl, New York 2002. Reimer’s case escalated scientific dispute on the “sources”
of gender identity in humans. It is worth mentioning that Money’s fierce opponent  – Milton
Diamond questioned the theory of sexual neutrality of newborns already in 1965 (Diamond M.
1965: 147–175). The failure of Reimer’s treatment resulted in more works  – cf. M.  Diamond,
Sexual Identity, Monozygotic Twins Reared in Discordant Sex Role and BBC Follow-Up, Archives
of Sexual Behavior 11(2), 1982, 181–185; M Diamond, H. K. Sigmundson, Sex Reassignment at
birth. Long-term review and clinical implications, Archives of Pediatrics & Adolescent Medicine,
March 1997b, 298–304. Diamond continues to remain one of the main advocates of allowing
maximum time for medical decisions on gender reassignment in children with DSD, and recom-
mends that no surgery be performed on an intersexed infant without the child’s informed consent –
cf. M. Diamond, H. K. Sigmundson, Management of intersexuality. Guidelines for dealing with
persons with ambiguous genitalia, Archives of Pediatrics & Adolescent Medicine, October 1997a,
1046–1050. On the irreversibility of gender identity programming see also an interesting study by
D. F. Swaab, A. Garcia-Falgueras, Sexual differentiation of the human brain in relation to gender
identity and sexual orientation,
available at http://www.functionalneurology.com/materiale_cic/389_XXIV_1/3373_sexual/.
12
 Dulko S., Transseksualizm. Wybrane aspekty kliniczne, paper delivered at the University of
Gdańsk at a scientific conference Legal, Medical and Psychosocial Aspects of Transsexualism,
Gdańsk, 28 November 2012.
10  Is Sex Essential for Personhood? Being “Halfway Between Female and Male”… 147

tures depends on the presence and correct functioning of a cascade of genes. The
development of the male gonad (the testis) determines foetal production of andro-
gens (testosterone). It is these hormones that lead to the masculinisation of the cen-
tral nervous system of the foetus and ultimately determine male gender identity.
Therefore, a child is not psychosexually neutral at birth,13 as the process of building
gender identity commences the moment a human embryo is created (Imieliński
et al. 2001: 41), and genetic research continues to provide even more discoveries
related to criteria governing the affiliation with a particular sex (Midro 2015: 86).
Intuitive feelings of belonging to the female sex, male sex, or ambivalent feelings in
this respect, appear between the second half of the second year of life and the first
half of the third year of life.14 As already indicated, it must be distinguished from the
so-called socio-cultural gender roles, or norms dictating female, male or undefined
behaviours (Kula and Słowikowska–Hilczer 2013: 1315–1316).

10.3  More on Disorders of Sex Development

Lawyers are most familiar with transsexualism. All discussions on legal sex are
centred on it, and it is on the basis of transsexualism that attempts at developing new
procedures for changing legal sex are made.15 Due to the specific nature of cases
involving transsexualism, i.e. the fact that transsexualism manifests itself quite late
in life, contemporary medicine cannot identify individuals predisposed to this
developmental anomaly at the moment of birth. In view of the above, postponing
the registration of sex on birth certificates in order to diagnose transsexualism is not
rational. Consequently, the only solution available is resorting to the procedure of
legal sex change.16 There is no discussion in Poland on problems which might be
solved by postponing the registration of sex on birth certificates. However, regula-
tions allowing such a possibility are extremely important for addressing DSD,

13
 “Infants are not blank slates, on whom we scrawl instructions for sexually-appropriate behaviour.
They are born with male or female minds of their own. They have, quite literally, made up their
minds in the womb, safe from the legions of social engineers who impatiently await them” (Moir
and Jessel 2015: 33).
14
 “Thus, searching for possible factors which may turn out to influence the process of anatomical
and functional dimorphism of the brain of women and men, one should not focus merely on the
models explaining prenatal brain development but also on the early stages of childhood” (Bielas
and Jabłoński 2014: 25).
15
 Differently in Germany, where a new regulation has introduced a third gender category, desig-
nated by the letter X – a solution for individuals with DSD. Cf. § 22 (3) of § 27 Peronenstandsgesetz
(PStG), a German civil status act, available online at: https://www.gesetze-im-internet.de/pstg/
BJNR012210007.html.
16
 Since medicine cannot specify which individuals will turn out to be transsexual in the future, it
seems reasonable that we should resign from the registration of sex on birth certificates. This is out
of the question, however, as the category of sex is essential for maintaining legal order in family
law, civil law, labour law, and many other laws, at least in the case of adults.
148 A. Bielska–Brodziak and A. Gawlik

which is a condition not as well known to lawyers. As indicated earlier, many cases
shortly after birth raise medical doubts regarding what gender the individual will
identify with in the future as an adult. In children with DSD, the components of sex
are not mutually congruent. However, the diagnosis in most such cases could be
disambiguated if adequate time was allowed to ensure a comprehensive and in-­
depth medical evaluation of these components. Unlike transsexualism, a significant
percentage of DSD cases may be identified and evaluated shortly after birth thanks
to currently available advanced diagnostic possibilities.17 Nevertheless, forced rush,
which is a consequence of the rules governing the assignment of legal sex, prevents
this from happening. Superficial evaluation, reinforced by legal procedures that
force quick medical decisions (shortly after the birth of a child) and based on the
way a newborn’s external sex organs look, cause a number of DSD cases to be mis-
diagnosed as doctors, regardless of their doubts, are forced to make a decision
regarding the child’s sex before it can be unambiguously determined.18
Incompatibility and inflexibility of the law, which requires registration of a new
member of the society within a specified timeframe, forces the attending physician
and patient’s family to make decisions that are difficult to reverse in the legal sense.
It must be added that medical conditions classified under the DSD category are a
largely inhomogeneous group (Hiort and Ahmed 2014; Kucharska and Szarras-­
Czapnik 2007: 51–60). Unfortunately, there is still a group of people, despite a rela-
tively precise diagnosis, that it is not possible to predict the psychic sex of, because
it is not possible to determine how the brain was prenatally gendered. Whenever this
is the case, physicians’ doubts regarding a child’s sex may only be dispelled at
pubescence. Another category to consider when discussing the postponement of
legal sex registration is a group of DSD conditions that manifest themselves late.
Here it would be useful to perform karyotyping for each newborn. However, since
the costs of the procedure currently surpass the potential benefits resulting from
early detection (the test does not qualify, economically speaking, as screening), the
test is not performed on a large scale. Naturally, this does not exclude the need to
inform parents (especially in cases of family health history that indicates the occur-
rence of DSD among family members) of the legitimacy of the procedure. It is also
vital that physicians examining a newborn should be aware of and vigilant to symp-
toms of DSD. Deficiencies in this respect may result from a lack of knowledge of
the fundamental consequences of wrongly assigning the sex for the future function-
ing of an individual as a subject of the law. Awareness of the extent of personal costs

17
 The availability of such diagnostic methods as cytogenetic testing, the use of modern molecular
biology techniques, imaging tests (ultrasonography, magnetic resonance imaging) and hormonal
tests make it possible to correctly diagnose a majority of DSD cases and introduce the right thera-
peutic procedures.
18
 Assignment of wrong sex at birth is not the only problem of children with DSD. Another one is
medical procedures used to “disambiguate” the situation before the child is able to manifest its
sexual identity. The issue is a subject of broad discussion, including criticism of hasty medical
interventions  – cf. M.  Diamond, Milton, H.  K. Sigmundson, Management of intersexuality.
Guidelines for dealing with persons with ambiguous genitalia, Archives of Pediatrics & Adolescent
Medicine, October 1997a, 1046–1050.
10  Is Sex Essential for Personhood? Being “Halfway Between Female and Male”… 149

incurred by an individual in relation to the rectification of legal sex is not common

even among lawyers.

10.4  T
 he Impact of Incongruence Between Biological Sex
and Sex Assigned at Birth on a Subject’s Legal
Situation

The experiences of physicians treating children with DSD make it possible to iden-
tify specific legal problems resulting from the inability to unambiguously determine
sex at birth. Two stages should be distinguished here. The first stage is when physi-
cians notice symptoms indicating DSD after a child is born and the legal problems
that could arise from a hasty issuance of the child’s birth certificate. The second
stage is related to eliminating the consequences of wrongly assigning the sex, which
usually takes the form of a legal sex change.

10.4.1  Birth Certificate – Start of a Child’s Legal Existence

The key regulations governing the assignment of legal sex (sex registered at birth)19
have been set forth in the Civil Registry Records Act.20 A prerequisite for legal
“existence” of a child and, therefore, for execution of its rights, is the issuance of an
official document – a birth certificate, which is the final outcome of this procedure.
The birth certificate is a document which, alongside the forenames and surname of
the child, the date and place of its birth, and the parents’ forenames and surnames,
contains an obligatory entry regarding the child’s sex.21 The birth certificate is
drafted on the basis of two documents: (1) a medical certificate indicating the child’s
sex, known as the statement of live birth, issued mandatorily by a health care facility

19
 Problems resulting from rules governing the assignment of legal sex are identified in numerous
countries – cf., e.g., O. Tomchin, Bodies and Bureaucracy: Legal Sex Classification and Marriage-
Based Immigration for Trans* People, California Law Review, June, 2013, 813: “In most jurisdic-
tions in the United States, a birth certificate’s sex marker, as decided by the appearance of the
infant’s genitals, creates a rebuttable presumption of legal sex requiring specified (but widely vary-
ing) evidence to overcome. These requirements for recognition are generally illogical, inconsis-
tent, and unattainable for most trans* people. As a result, the majority of trans* people end up with
conflicting sex markers on their identity documents. This regime of a legal sex designated at birth
directly harms the most vulnerable and unfairly distributes life chances.” Cf. also opinion
Intersexuality, German Ethics Council, 23 February 2012, presenting the German status quo, avail-
able at: http://www.ethikrat.org/files/opinion-intersexuality.pdf.
20
 Act of 28 November 2014 on Civil Registry Records, Journal of Laws of 2014, item 1741, further
CRRA.
21
 Art. 60 of the CRRA.
150 A. Bielska–Brodziak and A. Gawlik

(in most cases the hospital in which the child was born), and (2) the birth notifica-
tion form, filled out by the parents.
The statement of live birth is issued immediately after birth.22 Whereas the appli-
cable provisions of the law do not stipulate when exactly a statement of live birth
should be issued, it is assumed that it shall be issued “without undue delay”, but no
later than within seven days of birth.23 Within the next three days, the hospital is
obliged to deliver the statement of live birth to the Public Registry Office that will
issue the birth certificate.24 Therefore, the total time allowed by the law for the
medical part of the birth certificate is ten days. The issuance of the certificate may
be extended by no more than 21 days from the date of the statement of live birth, as
this is the period of time stipulated for the parents to register their newborn child.25
In the events that parents fail to register their newborn child within 21 days, the birth
certificate is issued based on the statement of live birth alone.26 To recapitulate, the
entry regarding a newborn’s sex (female or male) is an obligatory element of the
birth certificate. In accordance with the law, the issuance of the birth certificate
takes no more than 30 days. The law makes no exceptions in this respect, and does
not allow any postponements (including postponements caused by the possibility
that sex was misassigned on the certificate). In particular, the law does not allow
leaving this entry temporarily blank or putting a temporary designation, X, as is the
case in Germany.
As mentioned above, in cases when physicians see symptoms indicating DSD
after the birth of a child, there are two possible scenarios: they may attempt to delay
the issuance of a birth certificate, or determine the child’s sex regardless of any
doubts they might have. In the latter case, the only way to reverse the consequences
of making a hasty and missed decision will be through the procedure of a legal sex
change (more on that in the section devoted to Stage II).
Let’s analyse the first scenario in more detail. It is possible that physicians and a
child’s parents are ready to undertake measures to postpone the issuance of the birth
certificate. What does that mean in practical terms? Two types of measures are pos-
sible here: the physicians delay sending the statement of live birth, and/or the par-
ents attempt to get registrars at the Public Registry Office to consent to extending
the deadline for issuance of the birth certificate. It is worth adding that any action,
or failure to act, resulting in prolonging the issuance of a birth certificate may expose
the persons responsible (physicians and registrars) to negative legal consequences,

22
 Alongside the mother’s data, and the place, date and hour of birth, the document contains an
obligatory entry regarding the child’s sex – Art. 54 of the CRRA. Information on the child’s sex is
also required by all hospital documents and records, such as a newborn register, newborn’s health
card, newborn’s identification number, or hospital discharge summary.
23
 Art. 217 §3 of the Code of Administrative Proceedings.
24
 Art. 54 (1) of the CRRA.
25
 What should be included in the birth notification report is set forth in Art. 58 of the CRRA. Other
issues related to registration of a newborn child are regulated by provisions of Art. 55–59 of the
CRRA. The deadline for registration is set forth in Art. 55 (1) of the CRRA.
26
 Art. 52 (2) and 55 (2) of the CRRA.
10  Is Sex Essential for Personhood? Being “Halfway Between Female and Male”… 151

even though their motivation was noble and based on empathy and feeling respon-
sible for the wellbeing of the child.
Nevertheless, the people affected by the most severe negative consequences are
obviously the parents and the child itself. One of the non-legal, though extremely
severe, results of delaying the issuance of a birth certificate is the potential societal
reaction. The absence of a birth certificate requires a lot of courage and d­ etermination
from the parents, who need to face possible reactions (coming both from various
officials and the community they live in) to revealing the fact that their child is “sex-
less” as a result of not having a birth certificate. As a general rule, the Polish society
is not tolerant or open towards any sexual distinctness, and any gender identity
issues are socially stigmatised. In cases where a child’s sex cannot be determined,
some authors explicitly postulate that the issuance of the birth certificate should be
postponed until physicians can unambiguously assign it (Czajkowska and
Pachniewska, 2011: 106); this is not in fact often practised and the period between
the birth of a child and the issuance of a birth certificate is not long. The longest
prolongation period we are aware of was approximately three months. As a rule,
birth certificates are issued within the time limits stipulated by the law. The reasons
for this are not only common practice for physicians and officials, but also due to
pressure from a significant proportion of parents who – perhaps lacking psychologi-
cal support – want this delicate and socially stigmatising matter to be over as soon
as possible. Having a birth certificate becomes a priority for them, even at the risk
of premature sex assignment of their child (a risk that they probably subconsciously
repress). As far as the strictly legal consequences are concerned, the absence of a
birth certificate is a major obstacle to exercising the majority of the child’s rights, or
the parents’ rights related to the birth of the child. As the birth certificate is a pri-
mary document (attesting that a new subject of the law was born), it is non-­
substitutable. The legal importance of the birth certificate is best proven by the
scope of legal procedures that cannot be initiated and carried out without it. These
encompass procedures in the field of civil law, family law, inheritance law, insur-
ance law, administrative law, and labour law. In order to be initiated, each of the
procedures that will be listed below requires the provision of a birth certificate. It
cannot be replaced by another document (as is the case with documents such as the
ID, passport, etc.) as it is the first document which ascertains the existence of a
subject of law, and there are no comparable documents issued earlier which could
be treated as an alternative to the birth certificate. The range of procedures that
require the birth certificate is extensive. In particular, these include:
(a) Representing the child’s interests – acting before courts as a statutory represen-
tative in any and all cases involving interest such as:
–– compensation, damages,
–– alimony,
–– establishment and denial of paternity,
–– acceptance or rejection of an inheritance,
–– representation of the child as an injured party in criminal cases,
152 A. Bielska–Brodziak and A. Gawlik

(b) Within insurance law:

–– registration for social insurance in regard to healthcare,27
–– voluntary insurance, e.g. accident insurance,
–– family pension in the event of death of a parent, and double orphan pension
(for a child where both parents are deceased),
(c) Within labour law – benefits and entitlements relating to the birth of a child:
–– payment of maternity and childcare benefits,
–– eligibility for childcare leave,
(d) Within administrative law:
–– PESEL number (General Electronic System of Population Records),28
–– passport,
–– applying for welfare benefits,
–– carer’s allowance for parents caring for a disabled child and disability living
allowance for the child itself.
The list above is indicative of the actual scope of rights that cannot be exercised
by an individual who does not have a birth certificate. While it is obvious that, in
view of the legal importance of the birth certificate, each individual should obtain it
as soon as possible, a question arises whether one should obtain it at the expense of
sex misassignment. In other words, whereas the need for prompt issuance of the
birth certificate is unquestionable due to its legal importance, the reasons why a
person’s sex is a requisite element for the issuance thereof are not clear. The reasons
why the Polish legislator has decided to adopt this type of an exceptionless solution
are not known and have not been specified in the relevant legislative process materi-
als. After all, the law on civil registry of records that is currently in force is a new
act, developed when medical knowledge on DSD cases was already well estab-
lished; this indicates the need for introducing the possibility to prolong the time
needed for medical evaluation of intersexed children. The fact that no instruments
exist in the Polish law that would make it possible to postpone and wait for an
unequivocal medical opinion means that children are exposed to the risk of sex
misassignment. This is the price that they have to pay, given what the law is, for
actually being recognised as a subject of the law.
In most legal cultures, sex is an important component of an individual’s civil
status, and it is commonly assigned immediately after birth. It is worth noting, how-
ever, that in neighbouring Germany, the problem of children with DSD was solved
in a simple and effective way back in 2013, by the introduction of the possibility of

27
 While registration is mandatory, in the event of failure to register, children under the age of 18
are covered by insurance protection regardless.
28
 Poland’s main population register and a mandatory national personal identification number. Each
entry in the register is a unique symbol that unequivocally identifies a natural person. The PESEL
number is an 11-digit fixed sequence that is unique for each natural person. One of the digits indi-
cates the sex – female or male – of the person.
10  Is Sex Essential for Personhood? Being “Halfway Between Female and Male”… 153

temporarily postponing the decision on sex assignment. The regulation in question,

commonly referred to in Germany as gender X, allows indeterminate gender at birth
in the events of medical doubts. On 1 November 2013, the amended German Civil
Status Act (Personenstandsgesetz)29 came into force. In § 22 (3) it stipulates that if
a child’s sexual characteristics cannot be unequivocally deemed female or male, the
child’s sex is not indicated in its birth certificate.30 Before this regulation became
effective, parents had been obliged to specify the sex of their baby within a month
of birth. As a result of said amendment, the obligation was lifted for intersexed chil-
dren. The regulation offers a rational and effective solution for solving legal prob-
lems of children with DSD. They are given birth certificates in which the issue of
their sex remains open. The time gained makes it possible to disambiguate the deci-
sion on sex assignment through comprehensive and unhurried diagnostics. The
application of the German model appears to be a worthwhile postulate de lege
ferenda for the Polish system.
It must be mentioned that adoption of the German solution in Poland may be
difficult due to the social factors mentioned earlier herein. Polish conservatives view
legal sex change through gender ideology¸ which they see as pseudoscientific, an
enemy to tradition and against nature. Consent to “manipulating” human sexuality
is believed to have a destructive influence on the natural order of the world. It is
thought to lead to destabilisation of century-long values, be the cause of “social
revolution that shakes the foundations of human existence”,31 and constitute “denial
of what is visible for each person, what can be experienced, and what has been as
obvious as the lapse of day and night ever since the origin of mankind”.32 Current
discussion in Poland is dominated by the opponents of liberalisation of procedures
related to assignment and rectification of misassigned sex. They maintain that anat-
omy and gender identity are irrevocably intertwined, with each sex born with its
appropriate anatomical parts, and refuse to probe into the complexities of the
situation.

10.4.2  Change of Legal Sex Assigned at Birth

By way of introduction, it should be noted that Polish legal culture discusses sex
change in general terms, without specifying what definition and understanding of
sex – legal or biological – it encompasses. This creates a damaging popular belief
that a person can influence what sex they want, freely choose between the sexes, and
subsequently change any decision made regarding this choice; this gives the impres-
sion that changing sex may be an ill-considered whim and the state should oppose
it. Also popular is a counterfactual fear that a person’s environment may

29
 Personenstandsgesetz of 8 August 1957 (Bundesgesetzblatt I S. 1125).
30
 Gesetz zur Änderung personenstandsrechtlicher Vorschriften of 7 May 2013 (BGBI. I S. 1122).
31
 G. Kuby, Rewolucja genderowa. Nowa ideologia seksualności, Kraków, p. 58
32
 Ibidem, p. 58.
154 A. Bielska–Brodziak and A. Gawlik

successfully trigger that person’s need to change their sex (where in fact the oppo-
site is the case – pressure from the environment more often leads to not making the
decision to rectify misassigned sex even though the person’s legal sex is incongru-
ent with gender identity). In Poland, it was not until the year 2013 that the first draft
law regulating these issues was submitted,33 introducing the notion of “gender rec-
ognition”, understood as a procedure for rectification of legal sex wrongly assigned
at birth and incongruent with a person’s gender identity. The draft was supposed to
highlight the fact that while human biological sex, “coded” during the foetal life, is
permanent, it is not always congruent with a person’s external body. Hence the
“change” of legal sex should in fact be a rectification of the state’s original and
missed decision, and should reconcile a person’s legal sex with their actual biologi-
cal sex (gender identity). What the proposal did was shed light on the existence of a
claim that the state should assign sex correctly and, in the event of misassignment,
rectify it in a way to protect the individual concerned. Although the law did not enter
into force, it constituted a major step towards raising social awareness of the issue
of sex and the state’s obligations of assigning sex to its citizens.
What are the consequences of misassignment of sex at birth? In other words,
what will happen if physicians, acting hastily, make a wrong decision? The Polish
legal system does not have a quick and simple procedure for the rectification of
legal sex, even in cases of children with ambiguous genitalia.34 The procedure for
changing sex assigned at birth is uniform, irrespective of why such a change is
necessary. Legal sex correction is the exact opposite of legal sex assignment.
Whereas birth certificates are issued hastily because of the provisions of the law
(although, up to a certain age, the sex is not as legally important as it is in the adult
life),35 changing a misassigned sex involves a lengthy procedure, often carried out
long after the mistake was revealed. Paradoxically, in order to initiate reversing the
effects of decisions that were legally required to be made within approximately
30 days after birth, several years must pass until the child becomes an adult, and
then even more years are required for the court procedure to be formally ­completed.

33
 Art. 1 of the draft law on gender recognition, parliamentary print no. 1469 of the Sejm of the 7th
term, available at http://www.sejm.gov.pl/sejm7.nsf/PrzebiegProc.xsp?nr=1469
34
 It should be added that the law makes it possible to correct a birth certificate. Under the previ-
ously effective legislation, the correction was regulated by Art. 31 of the Act of 29 September 1986
on Civil Registry Records, repealed on 1 March 2015. The article in question read as follows: “A
civil registry record is subject to correction in the event of errors or inexactness.” In order to change
a birth certificate pursuant to provisions of this article it was necessary to ascertain that a physician
had made a mistake when assessing a child’s sex. This remedy (although referred to in case law as
applicable for the correction of legal sex of children with DSD – cf. decision of the Supreme Court
of 6 December 2013, case ref. no. I CSK 146/13) does not seem to be an effective means to per-
form the task specified in case law. Physicians called as witnesses or experts would have to firmly
state that sex at birth was definitely different than the one registered in the newborn’s health card
and the statement of live birth. The fact that, on the date the newborn was examined, there were or
might have been doubts regarding the child’s future sex is insufficient. Currently, the procedure for
birth certificate correction is set forth in Art. 36 of the Act of 28 November 2014 on Civil Registry
Records).
35
 The importance concerns areas such as marriage or motherhood/fatherhood.
10  Is Sex Essential for Personhood? Being “Halfway Between Female and Male”… 155

However, it is not only the time that is a burden to the person affected. The Polish
legal system expressis verbis does not provide for misassignment of sex, and there-
fore does not provide explicitly for any procedures for the correction of such an
error. Legal sex change is performed using an institution referred to in Art. 187 of
the Polish Civil Procedure Code, namely action for a declaratory judgement.
Whereas the provision was not originally developed for such purposes, it is never-
theless used in such cases due to the nonexistence of specific legal tools. This
raises justifiable objections as such a delicate and private matter ought to be regu-
lated in a way that guarantees respect and dignity to the person affected. Detailed
presentation of the legal sex change procedure goes beyond the framework of this
paper. Also, it has been widely discussed in literature (Ostojska 2014; Czechowska
2012: 91–104; Boratyńska 2012: 538–558).36 Nevertheless, it is worth pointing out
these elements of the procedure which show the scope of personal costs incurred
by a person undergoing legal sex change. First of all, the procedure is usually initi-
ated by the interested party after they have reached adulthood, even though the
incongruence between sex assigned at birth and biological sex is often revealed
much earlier in people with DSD.  This is most likely explained by the trauma
related to the closest relatives (parents) having to disclose socially stigmatising
knowledge which they have attempted to keep secret for as long as possible, often
with the hope that time and adolescence would eliminate the dissonance. What is
more, the procedure of changing sex assigned at birth is carried out as a dispute,
and thus makes it necessary to take action against the closest relatives (e.g., par-
ents37), as the existence of the other disputing party, against whom action will be
taken, is required. This appears to be less painful if the relatives of the person
intending to change their sex assigned at birth accept the decision. If this is not the
case, the action unquestionably causes that person to suffer, forcing them to be in
open conflict with their closest relatives in a court of law. Last but not least, the
original sex entry will not be erased from the birth certificate and will always be a
part of the person’s recorded life that is accessible to third parties.

10.5  Conclusion

The Polish status quo may cause hastily assigned legal sex to become a dramatic
stigma burdening an individual’s entire life. Subjects whose biological sex and legal
sex are incongruent often decide to stick to the sex that was assigned to them at birth
although it is inconsistent with their identity, thus assuming fictitious social roles.

36
 On penal and civil law aspects of sex change cf. R.  Wieruszewski, M.  Wyrzykowski (Eds.),
Orientacja seksualna i tożsamość płciowa. Aspekty prawne i społeczne, Warsaw 2009.
37
 Most recent case law establishes, which will concern typical transsexuals, a much broader circle
of entities having the capacity to be a defendant in legal proceedings, including the spouse and
children of the person bringing legal action (cf. Supreme Court decision of 6 December 2013, case
ref. no. I CSK 146/13).
156 A. Bielska–Brodziak and A. Gawlik

Attempts to change procedures that are currently in force encounter major obsta-
cles, even though said procedures are out of keeping with current medical knowl-
edge and fail to sufficiently address the needs of those affected by DSD.  The
aforementioned draft law on gender recognition, presented by transsexual MP Anna
Grodzka,38 was Poland’s first attempt at regulating legal sex change and remained
under parliamentary debates for almost three years. The work to make it law was
accompanied by an atmosphere of criticism and opposition from conservative cir-
cles. It was eventually passed by the parliament in 2015, only to be vetoed by the
Polish President. As parliamentary elections were held in the meantime, the act
could not be resubmitted to the Sejm. This means that any future legislative initia-
tives must proceed from scratch.
Problems of individuals experiencing incongruence between gender identity and
legal sex assigned at birth prove that the law’s most important task is to accept what
currently is a rather explicit medical thesis on the status of psychic sex. It is one of
the key components of biological sex and is biologically pre-determined, which
means it cannot be freely chosen by an individual. Rationing the right to have the
correct (i.e., congruent with one’s identity) legal sex cannot be considered justi-
fied – “core self-identity must be respected and affirmed by the law” (Levasseur
2015: 1044, footnote 1). It is convincingly argued that, in order to make progress in
cases involving people with DSD, the legislator should make use of the latest medi-
cal findings, which state that gender identity is the single most important factor as a
biological determinant of sex (Levasseur 2015: 947). Therefore, if legal sex assign-
ment is indeed a declaratory act, then legal sex should be an affirmation of an indi-
vidual’s self-identification. However, the current Polish reality is not in line with
these propositions. The assignment of legal sex is an additional prerequisite if one
is to exist as a subject of the law, and any attempts to delay the assignment of legal
sex make legal existence of a subject impossible. On the other hand, the birth certifi-
cate, whose function, as its name suggests, should be to merely attest that an indi-
vidual was born, becomes a constitutive document due to the fact that it must contain
information on the newborn’s sex. Whereas issuing the birth certificate immediately
after birth is necessary to formally confirm the fact that a person was born (and to
enable the person to exercise their rights), it is difficult to find justification for man-
datory and immediate legal sex assignment on the birth certificate. It seems that
without prejudice to legally relevant values, information on a person’s sex may be
omitted until a certain age.
The issues presented in this paper indicate that progress in biological and medi-
cal sciences makes legal subjectivity an increasingly multidimensional concept.
This in turn demonstrates the need for reflection on legal regulations which shape
the notion of subjectivity in concreto for there may, indeed, be circumstances in
which the law grants legal subjectivity, but does not provide the possibility to exer-
cise it.

 See the draft law on gender recognition, parliamentary print no. 1469 of the Sejm of the 7th term,
38

available at http://www.sejm.gov.pl/sejm7.nsf/PrzebiegProc.xsp?nr=1469.
10  Is Sex Essential for Personhood? Being “Halfway Between Female and Male”… 157

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