Recognising personhood: the evolving relationship between the legal person and the state

The twenty-first century has already been characterised by substantive shifts in theory and law on legal personhood.¹ There have been profound legal commitments to the full personhood of disabled people,² dramatic new applications of personhood to natural entities such as rivers,³ and ongoing debates on the legal personhood of animals,⁴ artificial intelligence,⁵ and corporations and their public interest responsibilities.⁶ These shifts present an opportunity to re-examine our understanding of legal personhood. We may be able to move away from the white, European, able-bodied, cis-gender male approach to legal personhood that has dominated much of the world.

This dominant approach was developed throughout the last several centuries and has largely met the needs of feudal lords, slave owners, colonial settlers, husbands, capitalists, and others that have held positions of social privilege and had the power and freedom to influence the development of theory and law. In line with the interests of these groups, the approach to legal personhood that has developed is largely in line with liberal political values that prioritise individualism and often ignores the relational nature of our socio-legal world. It emphasises the role of the state as one of non-interference with the freedom of the individual. However, this definition assumes that the individual has the power and privilege necessary to move deftly through the socio-legal world to secure their rights and interests. It disadvantages most groups and individuals that are not experiencing high levels of power and privilege and doesn’t recognise the inherent interdependence that we all live within and benefit from.

In describing her concern related to this dominant conception of personhood, Ngaire Naffine stated:

[T]he law’s idea of ‘man’ can be discriminatory and arbitrary and so undermine the principle of equality. … legal personification serves a social and expressive function and is therefore not fully internal to law. It sends a message to the community and expresses, on behalf of the community, who or what is to count — who matters. … Because the adult, rational, autonomous, non-pregnant human tends to be the paradigmatic person, this being possesses not only the best set of rights, but also the personal power to enforce them. This being fares best in law, is best-suited to law.⁷

Naffine identifies the patriarchal forces behind the dominant approach to legal personhood and expresses concern for the large groups that are left out of this definition — with significantly less power and little means to change the situation. The new shifts in theory and law related to legal personhood, described above, may be the beginning of a significant advance in the evolution of legal personhood that could address Naffine’s concerns.

We may be able to harness the momentum of these new shifts to develop a new — perhaps more accurate — understanding of legal personhood that returns power to the groups that have been marginalised by existing definitions of legal personhood. We may be free to move towards a new definition of legal personhood that no longer seeks to adopt the often-fictitious characteristics of ‘man’, but instead seeks to encompass all entities deserving of justice and seeks to recognise our inherent reliance on others in almost every area of our lives. In this Special Issue on Recognising Personhood, we have brought together some of the leaders in the field of legal personhood to explore these shifts in theory and law. Our intention is to further stimulate these evolutions in legal personhood and help guide the discussion towards one that will lead us to an approach to legal personhood that benefits the whole of our diverse world, and not only those in positions of power and privilege.

In the rich field of philosophy and theory on legal personhood, leading academics have re-framed the debate on law’s person. For example, in her pivotal 2003 article, Ngaire Naffine acknowledged that the ‘law of ‘persons’ comprises an often-puzzling jurisprudence, marked by its uncertainty and its inconsistency’.⁸ Her work challenged the law to recognise the multiple ways in which jurists acknowledge personhood: (1) the person as ‘pure, legal artifice’; (2) the person as ‘a creature of nature … always and inevitably characterised by his essential (and to some, God-given) humanity’; and (3) ‘an intelligent and responsible subject’, in which personhood status is dependent on certain intellectual characteristics that enable accountability for actions (which Naffine terms P1, P2, and P3).⁹ Her scholarship has continued to underpin analysis of legal personhood in law, as scholars respond and react to her three constructions of personhood. Ten years later, Anna Grear extended Naffine’s analysis, and explained:

[T]he subject of law’s subject has become a topic of growing contemporary concern [in ways that highlight] law’s limits and the inadequacy of its constructs to mediate the complex, organic, shifting, embodied, mutable and situated affectability of the socio-material and spatio-temporal aliveness woven through, beyond and beneath law’s systemic closures.¹⁰

Grear highlighted the need for new discussions on legal personhood and insinuated a demand for change towards an understanding of legal personhood that better meets modern needs. Recently, Visa Kurki has presented a theory of legal personhood in which he constructs personhood as a bundle of rights and powers, and separates these into ‘passive’ and ‘active’ categories, as a way to make sense of law’s ability to recognise some beings and entities as legal persons, whilst also acknowledging significant differences in their accountabilities in law.¹¹ As the scholarly debate continues, we can see a move towards questioning the existing definitions of legal personhood and a push towards something new.

Naffine’s work, in turn, responds to that of Martha Nussbaum, who drew on John Rawls. All emphasise some element of the dominant liberal political perspective that prioritises the individual and seems to make personhood dependent on the ability of the individual to independently develop and communicate a certain form of rationality and morality.¹² This perspective reflects — or is highly influenced by — the white, European, able-bodied, cis-gender male approach referred to above. Although, it is important to note that Naffine, in particular, demonstrates an acute awareness of this in her work and engages in deep analysis to explore these boundaries. For example, she discusses personhood in relation to animals and questions whether the exclusion of animals is necessary or just.

Eva Kittay and Sylvia Wong have also recently begun to push the boundaries of the white, European, able-bodied, cis-gender male approach to personhood. They have, arguably, gone farther than other scholars, and challenged the limitations on personhood, which operate to only include those who can develop (and communicate) rationality and morality.¹³ Wong argues that is it more morally dangerous to exclude individuals from personhood based on an actual or perceived perception or deficit in rationality or morality. Building on this work, Anna Arstein-Kerslake and Eilionóir Flynn have identified the significant prejudice that drives the law’s recognition of legal personhood and the speed with which certain groups — such as disabled people — are designated as ‘passive’ holders of rights, with very limited ability to have their voices heard. They argue, in line with Wong, that all persons should be recognised as legal persons on an equal basis. Further, they argue that there is a responsibility, enshrined in human rights law, for the state to provide access to support for the exercise of legal personhood.¹⁴ This approach challenges the traditional patriarchal approach to legal personhood and demands that the state not only refrain from interference, but also take positive steps to ensure that the right to (and rights of) legal personhood is enjoyed by all.

The burgeoning novel categories of legal persons and new understanding of the role of the state in relation to legal personhood¹⁵ (and the historical exclusion at various times in human history of women, slaves, disabled people, and children) profoundly challenge the law’s ability to theorise the legal person. The question of who or what is ‘unthinkable’¹⁶ as a legal person at any given point in time is still the major barrier to the increasing inclusivity of personhood. Rather than being able to identify a simple answer to the question of who is necessarily a legal person, we are forced to grapple with the central importance of the normative question: who should be a legal person? Changing social mores, values, and new bodies of evidence are all drivers for the recognition of new forms of legal person. As such, any theory of legal personhood must acknowledge the political and power dynamics at play in the question of who is considered worthy of holding rights and duties in law.¹⁷ As Naffine noted in 2003:

Perhaps the greatest political act of law is the making of a legal person (simply put, he who can act in law) and, in the same move, the making of legal non-persons (those who cannot act in law and who are generally thought of as property).¹⁸

As our understanding of legal personality has expanded beyond human persons and corporations, there is a corresponding new emphasis on the obligation of the state to enable the exercise of personhood. This has significant implications in multiple fields of law. For example, in disability rights, international law now requires the state to recognise the legal capacity of all persons with disability on an equal basis with others — including those with cognitive disability.¹⁹ It also requires the state to provide appropriate measures to exercise personhood via support for decision-making. In environmental law, rivers and other natural entities have been recognised as legal persons with specific rights.²⁰ However, in both disability rights and environmental law, there has been varying levels of state support for these new recognitions of legal personhood and the corresponding new obligations on the state. For example, in disability rights, many are fighting to keep guardianship laws and non-consensual mental health practices that go against the new understanding of legal personhood that requires that disabled people are respected as legal decision-makers on an equal basis with others. In addition, in environmental law, there has been growing controversy regarding whether natural entities should be recognised as legal subjects (with rights and responsibilities) or legal objects (with merely a limited range of interests that are protected via proxies).²¹ This debate is increasingly influenced by the strategic leadership of Indigenous peoples who have developed culturally appropriate, pluralist recognitions of legal personhood.²² These recognitions reflect their cosmologies and laws — they include an understanding of the ‘legal person’ that goes beyond the boundaries of ‘subject’ versus ‘object’ and opens the possibility of rights and responsibilities being ascribed to entities traditionally treated as objects in European and settler state laws.²³

A common theme that unites these disparate developments is that the conferral of legal personhood is being advocated as a corrective legal tool for ongoing social marginalisation. It is viewed as the means for returning a voice to those that so often go unheard. However, it remains to be seen how legal personhood will be fully recognised for these historically disempowered groups. Further exploration is also needed to determine states’ obligations to ensure that such recognition fosters equality and provides protections for these groups on an equal basis with others.

In this special issue, authors critically engage with these ground-breaking legal reforms to address important questions such as: How is law evolving to both recognise new persons as well as enable their full agency? What is the extent of the obligation on the state to enable personhood? Does this re-framing inadvertently re-assign power to the state, or does it harness state power to support marginalised persons and entities to exercise their own agency? This increasing emphasis on the role of the state reconnects ‘rights talk’ to a meaningful discussion of state obligations which creates a platform for action towards meaningful legal and social reform.

The special issue begins with three articles discussing three disparate areas of the law where significant changes in law and theory relating to legal personhood have occurred — corporate law, disability rights, and child rights.

The first article, by Michelle Worthington and Peta Spender, reminds us that contemporary examinations of the nature and function of legal personality frequently mirror ongoing scholarly and legal debates on the nature of the corporation. Worthington and Spender consider the elements of legal personality as the terms of a license, granted by the state. In particular, they identify the ‘public interest’ conditions of corporate personhood, and their analysis draws attention to the role of the state in creating and maintaining corporate legal persons, and asks us to consider both legal and normative questions about the outcomes achieved. They use the foundational case of Salomon v Salomon as a cautionary tale, and note that ‘the use of the unconstrained ‘individual’ as a template for synthetic legal personality should be avoided’.²⁴

In the next article, Eilionóir Flynn explores the power of language related to legal personhood. She identifies the dissonance between language used in legislation to ‘empower’ disabled people while simultaneously legislating for the removal of their legal personhood. She highlights the significance of the Right to Legal Capacity outlined in Article 12 of the United Nations Convention on the Rights of Persons with Disabilities — it recognises a right to legal personhood in greater detail than had ever been seen in international human rights law. She provides an overview of some recent reforms and analyses the language in these reforms to highlight the impact of language and the importance of consistency with international human rights law.

In the third article, Visa Kurki explores the legal personhood of children in Western legal systems. He develops the concepts of ‘passive’ versus ‘active’ personhood and explores where children fall on that spectrum. He also presents a new framework which distinguishes three categories of competences: independent competences, negative competences, and dependent competences. It could be argued that the theories he presents are in tension with those presented in the previous article by Eilionóir Flynn, whose work (along with that of Anna Arstein-Kerslake elsewhere and later in this Special Issue) argues that there is a human rights imperative for the full recognition of legal personhood for disabled persons (and all persons) on an equal basis with others. They would likely argue that the relegation of certain groups as only ‘passive’ legal persons is roughly equivalent of denying personhood to those groups and withholding the accompanying power and privilege of personhood from those groups. Notably, there are interesting debates here that will likely develop — including insights from the up-and-coming work of Clíona de Bhailís who is currently undertaking groundbreaking theoretical and empirical work in the area of disabled children’s right to legal personhood.²⁵

Moving next into an analysis of the rights of nature, the three following papers present (1) a novel application; (2) an analysis of the nature of the laws themselves in which natural entities are recognised as persons; and (3) a profound challenge to the rights of nature advocacy movement.

Rachael Mortiaux examines the potential applicability of ‘rights of nature’ concepts and legal doctrine to the coastal areas of Aotearoa New Zealand. Mortiaux makes the case for the necessity of a new legal mechanism by documenting the current state of Aotearoa’s coastal and marine areas, the threats to these beautiful and special places, and the gaps in the existing legal and regulatory framework. She argues that the examples of Te Urewera and Te Awa Tupua show that ‘the legal person model can be applied to an ecosystem and signal a shift in the societal values of New Zealanders, who are willing to legally recognise that these ecosystems are no longer objects under the law’.²⁶ She argues that recognising the legal personality of the coastal and marine areas will support a more holistic and collaborative approach to managing them, whilst also levelling the playing field between the interests of people and the rights of the environment. While being clear that legal personhood is not a silver-bullet solution, she concludes that it has the potential to ‘shift our mentality to value and respect this profound and spectacular ecosystem’.²⁷ Mortiaux’s paper shows the multiple roles of the state in the current regulatory failures, the potential creation of new legal persons, and supporting the implementation of the new legal arrangements to give full force and effect to nature’s new legal powers.

Elizabeth Macpherson, Axel Borchgrevink, Rahul Ranjan and Catalina Vallejo Piedrahíta present one of the first papers from their global Riverine Rights project. In their paper, the authors undertake an analysis of the recognition of rivers as legal persons and/or legal subjects in Aotearoa New Zealand, Colombia and India by considering the constitutional relevance of these new laws. Drawing on the work of Louis Kotzé,²⁸ they argue that the multiple recognitions of the legal personality of rivers ‘are attempts to ‘transcend “normal” politics and law, reaching deep into the moral fabric of a society’.²⁹ They describe these three cases as ‘small-scale, ad hoc and ultimately incomplete’ constitutional experiments that are attempting to create innovative legal frameworks for protecting and managing rivers. Only one of these examples (Colombia) is explicitly constitutional, but the authors examine the role of constitutional provisions (or founding documents, such as Aotearoa’s Te Tiriti o Waitangi) in shaping the law and legal outcomes in each case. They argue that each of the cases ‘can be understood as an attempt to work around the limitations of regulatory frameworks for rivers, by going over and above them and appealing to fundamental rights and higher-level norms’.³⁰ Again, there is an emphasis on the current failings of the state to protect rivers, and but also an acknowledgement of the power of the instruments of the state to reshape the relationship between people and rivers.

Jade-Ann Reeves and Timothy Peters examine the case of Te Awa Tupua (the Whanganui River in Aotearoa New Zealand) to explore the nature of the challenge that recognising natural entities as legal persons presents to anthropocentrism. The rights of nature movement is typically framed as eco-centrism in action, as it displaces humanity (and human corporations) from the pinnacle of legal rights, and emplaces us within a wider network of similarly legally powerful and important beings.³¹ Reeves and Peters argue, however, that the core of the problem is the legal hierarchy that personhood creates. Merely expanding the number (and types) of legal persons does not necessarily challenge humanity’s relationship with the remaining legal objects. Indeed, by recognising ‘special’ cases, it may in fact entrench the dichotomy between legal subjects and objects, continuing to justify the exploitative treatment of legal objects. They hold that:

Addressing anthropocentrism does not involve changing the legal constitution of natural things; it sits in the need to dismantle anthropocentric rationalities of governance by cutting at the root the philosophical, juridical, and political lexicons on which they rest, and cultivating a new relationality between human beings and the world.³²

The two final papers in this special issue respond to the challenge thrown down by Reeves and Peters by developing new concepts of the legal person that emphasise this relationality. The first of these is lead-authored by the Martuwarra River itself, in a profound acknowledgement of the power, presence, and agency of the river as a collaborator and co-producer of knowledge. The paper grounds its analysis of the legal person and legal subject status of rivers and nature in the First Law of the Martuwarra, opening with the story of Yoongoorrookoo, and uses this story to ‘build a semantic bridge between [the] two apparently distant legal worldviews’ of settler state law and the First Law of the Indigenous Peoples of the Martuwarra.³³ The authors draw on a range of examples to demonstrate shifts in legal language as jurists and legislators recognise ‘the deep and intrinsic value, the spirit of the rivers, and the continuities through time and space that they also represent.’ The language of living rivers, as being ‘alive, full of potential … and creative in their interaction with the communities that rely on them’, is a distinct shift.³⁴ The authors argue that when considered alongside the cosmologies and laws of Indigenous Peoples, this legal language is ushering in a novel form of legal person: the ancestral person. This construction draws on both the settler state law of personhood (rights, powers, and duties) but embeds this into ancestral relations, in which contemporary people owe obligations to ancestral beings. This paper presents its own challenge to the settler colonial state, inviting it to recognise the legal pluralism present in all settler states occupying stolen Indigenous lands, and to modify foundational legal concepts, such as legal personhood, accordingly.

The last paper in the special issue draws together perspectives from disability law and the rights of nature to demonstrate the categorical flaw inherent in the law’s concept of personhood. As Grear notes, the ‘liberal individual effectively became the fundamental unit of law’,³⁵ a position only possible to achieve when the overwhelming majority of legal and philosophical thinkers were white, able-bodied, cis-gender men, whose intellectual endeavours were largely supported by the often unacknowledged labour of women and people of colour. This paper draws on the formal recognition of disabled people as legal persons in the 2008 Convention on the Rights of Persons with Disabilities and the ever-growing list of natural entities recognised as legal persons to challenge the ‘prevailing neo-liberal understanding of legal personhood [as] an atomistic, isolated individual making independent decisions’.³⁶ The authors acknowledge the potential discomfort of linking two such separate fields of law, but argue that both show that the individualised understanding of the legal person has failed to respond to reality. The authors argue that the similarities across these diverse fields of law, both of which respond to the need to give voice and power to marginalised people and natural entities, demonstrates the need for a new conceptualisation of personhood: relational personhood. The authors draw explicitly on the work of Indigenous scholars such as Vanessa Watts,³⁷ and the idea of relational closeness and circles of intimacy (developed through disability law) to show how relational personhood can function,³⁸ and that recognising our interdependence is a pathway to giving full effect to autonomy and individual will and preference.

Editing this special issue has been a wonderful experience of academic collegiality and the power of exchanging ideas across quite distinct and disparate fields of legal study. The origins of this special issue stem from a serendipitous conversation between the editors at the 2018 Australia and New Zealand Law and Society conference, which in turn grew into a workshop in Melbourne in 2019, drawing people from across Australia and Aotearoa New Zealand to join in new conversations about legal personhood.³⁹ As editors, we are so grateful for the participation, intellectual generosity and openness from all workshop participants. We also warmly welcome the international contributors to this special issue, who brought their expertise into an ongoing conversation about the function, purpose, and power of personhood, and the role of the state in creating, maintaining, and supporting legal persons. In addition to the particular contributions of each of these excellent papers to the scholarship on legal personhood, this collection underscores the necessity and the value of uniting legal theory with socio-legal analysis that explicitly considers positionality, power dynamics, real-world outcomes, and the fundamental importance of relationships.

Notes

1 Naffine (2009); Boyd (2017); Kurki (2019).

2 Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008) art 12.

3 See, for example, Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 (New Zealand).

4 Kurki and Pietrzykowski (2017).

5 Gellers (2020).

6 Solaiman (2017).

7 Naffine (2009), pp 180–1.

8 Naffine (2003), p 346.

9 Naffine (2003), pp 349–50.

10 Grear (2013), pp 77–8 (emphasis in original).

11 Kurki (2019).

12 Nussbaum (2006); Rawls (1993).

13 Kittay (2005); Wong (2007).

14 Arstein-Kerslake (2017); Flynn and Arstein-Kerslake (2014).

15 Gellers (2020); Kurki and Pietrzykowski (2017); Arstein-Kerslake (2021).

16 Stone (1972).

17 Although the term ‘worthy’ is not usually directly used, discussions of capacity and capability can be seen as coded terms for whether the author or the jurist considers a particular entity as being worthy.

18 Naffine (2003), p 347. A note on the gendered language in this paper: Naffine uses he/him deliberately as a feminist tactic, to ‘remind the reader of the masculine qualities of this being in some of his manifestations’.

19 Arstein-Kerslake (2017).

20 Clark et al. (2018); Boyd (2018).

21 O'Donnell (2018); Macpherson, Torres Ventura, and Clavijo Ospina (2020).

22 Martuwarra RiverOfLife et al. (2020); Ruru 2019).

23 Geddis and Ruru (2020); O'Donnell et al. (2020); Watts (2013).

24 Worthington and Spender (2021), p 19.

25 de Bhailís and Flynn (2017).

26 Mortiaux (2021), p 14.

27 Mortiaux (2021), p 21.

28 Kotzé (2017).

29 Macpherson et al. (2021), p 1.

30 Macpherson et al. (2021), p 26.

31 Macpherson and Clavijo Ospina (2018).

32 Reeves and Peters (2021).

33 Martuwarra RiverOfLife et al. (2021), p 1.

34 Martuwarra RiverOfLife et al. (2021), p 12.

35 Grear (2013), p 83.

36 Arstein-Kerslake et al. (2021), p 1.

37 Watts (2013).

38 Watson, Wilson, and Hagiliassis (2017).

39 O'Donnell et al. (2019).