So many key issues center on trying to get courts and state laws to recognize different entities as legal persons. But is humanism always served?
In 2008, a Macedonian court found a bear guilty of damaging beehives. Since it had no owner and belonged to a protected species, the state was made to pay the fine instead. Legal history abounds with stories of animal trials, especially in the Middle Ages and early Enlightenment, when both secular and Ecclesiastical variants played out. A pig could be sentenced to hang for killing and eating unattended infants, or for consuming consecrated water. Pest species like crickets, rats, beetles, slugs, and weevils faced excommunication and anathema if they did not leave crops alone when asked.
But the concept also goes back to Plato, whose Laws describe a “trial of things” that extends legal culpability even to inanimate objects. Anything that caused a person to die could be expelled from the land. The object itself bore moral culpability, and deserved to be cast out.
The arrogance of presentism allows many to look back at our ancestors and dismiss their actions and beliefs as superstitious nonsense. But when we look at the world today, the vast majority of our problems center on the same questions: Who or what bears rights and responsibilities in our societies? What does it mean to be a person under the law? And what are the implicit limitations of the idea of personhood in real-world practice?
Learning to be curious about personhood
We might intuitively think we “know” the answer, the way we think we “know” what a character in a book looks like while reading it, only to discover that fellow readers had wildly different ideas about their appearance. Obviously a person is X, and deserves Y, and is responsible for Z. But dwell a bit on the exact contents of X, Y, and Z, and we quickly realize that selective expansions and exclusions emerge in most every legal sphere.
A person is a human, of course, except that the rights of personhood can also cover corporations and associations, cities and other territories, nonhuman animals, and natural features like rivers and forests, all without bestowing those other protected entities with exactly the same responsibilities. And when two or more distinct humans rely on the same body, as in the case of conjoined twins or pregnant people, legal complexities deepen.
But we can say that a person is obviously a moral agent, right? Inasmuch as a person can be held accountable for transgressions? Well, sort of. Except that children up to a given age, and adults in certain states of mind, aren’t held liable for punitive damages, even for killing another human being. Meanwhile, if a corporation is found culpable for a death, it does not go to prison. If a flooded river ends human life, no court calls for the river to be ended, too.
This isn’t a game of trick questions. The word “person” is deceptively simple, yet lies at the heart of reams of legal scholarship, and generations’ worth of judicial struggle. Most legal definitions are deeply tautological: a person is a legal term that bestows certain rights and obligations on anything the law deems entitled to (and capable of) receiving said rights and obligations. Beautifully circular, no?
That’s the real problem, though: not the complexity itself, but our general cultural ignorance to the fact of complexity. There’s a massive gap between linguistic ideal and real-world application when it comes to our sense of what a person is and what personhood should do.
And yet, we’re often so sure that we know what a person is, and what personhood entails. But if we don’t even realize that this gap between vague inner conviction and legal praxis exists, how can we even begin to advocate competently around related themes?
A history of careless grandiosity
In founding documents like the US Declaration of Independence, we are given the most self-congratulatory of opening phrases: “We hold these truths to be self-evident”. This, from a text that immediately goes on to describe “all men [as] created equal … endowed by their Creator with certain unalienable Rights … among these Life, Liberty and the pursuit of Happiness”. And yet, the “men” in this assertion certainly didn’t include the nation’s slaves, its women, its indigenous population, and even the white men who did not hold property, or who ran afoul of societal laws with death or prison sentences attached.
Implicit exceptions underpin every facet of this “self-evident” text.
It’s not the word “men” that causes so many problems, then, just as it isn’t the fault of “person” or “personhood” now. It’s the fact that “self-evident … unalienable Rights” simply do not exist. If human rights to “Life, Liberty and the pursuit of Happiness” were “self-evident” and “unalienable”, they wouldn’t have had to have been fought for, time and again, both by the founders and by those who came after them. If they were really so obvious, they wouldn’t have needed to be written down or “secured” by a government at all.
Language in general is a concession to the fact that we are none of us mind readers. We need help to get our impression of the world across to someone else. Legal language strives to bridge an even bigger gap: to articulate into being a shared context of meaning that both defines its locus of concern and provides those who lie within it a vocabulary for their defense from and endowment by the shared context itself.
And both general and legal language are imperfect, precisely because they are only as good as their users, who all use them selectively, and who all come to key vocabulary with different impressions of its significance. Justice. Democracy. Rights. Responsibilities. Peace. War. The Nation. Righteous struggle. Not a word or term exists that doesn’t come to us shaped by our personal experiences. The question is, which experiences will a given society strive to codify at any given moment—and not just in written law but also in the people it chooses to adjudicate from that law, to make it come alive?
How a ‘person’ exists in legal language
Personhood manifests in many ways in legal language. People are generally grouped into two categories, “natural” and “juridical” persons, with the latter made up of nonhuman entities granted legal platforms similar to the former. Two of the most important relevant concepts are negative and positive rights, though it’s important not to treat these as binary or comprehensive. When a person is given a negative right, they are given a guarantee of protection from some facet of the state in which they are a member. A positive right, conversely, guarantees what the state should actively be providing them.
Composite rights, a mix of positive and negative, arise quickly. A government may be obligated to provide you with legal counsel at a trial (positive!), but this obligation stems from a negative right: a person’s guarantee of protection from losing liberty without due process. Likewise, privacy is complex: mostly, the right to privacy involves negative rights, but we’re also protected from privacy loss through informed consent, a positive-right provision that means other entities have a legal obligation to tell us the parameters in which our details will be used, and often to provide us with opportunities to opt out.
The US Constitution is a rare document in the legal realm, because most countries have rewritten their constitutions more recently, with much more focus on the creation of positive rights. The US Constitution, conversely, is both very old and very much built around negative rights. Its Bill of Rights essentially itemizes how the state should not infringe upon individuals, as opposed to what a state must do for its constituents. This makes it a far more adversarial document. And that has made a world of difference in its legal culture.
Canada’s Constitution Act of 1867 was amended in 1982 to introduce our Charter of Rights and Freedoms, which outlined some positive rights for Canadian constituents (e.g., guarantees of education), but also still drew upon negative rights, which the courts favor in any reading of Section 7 around what the state owes its constituents in the guarantee of “life, liberty, and security of the person”. In other words, the Canadian government supports these concepts broadly, but just as US courts have ruled that police do not have a constitutional duty to protect people from harm, so too have Canadian courts determined that the government has no proactive duty to secure these three core personal rights.
Are there other approaches? Certainly, if with mixed results. All across Latin America, many countries also updated their constitutions in the 1980s and 1990s. Colombia’s constitution, for instance, was rewritten in 1991 after a massive youth protest against the level of violence and terror that plagued existing politics.
As Colombian constitutional-law expert Rodrigo Uprimny notes, these changed Latin American documents are a form of “diversity constitutionalism”: more secular and more focused on protecting individual rights by identifying key marginalized groups that preceding legislation has failed to protect. However, as Uprimny also notes, such constitutional changes have yet to provide robust defenses against extreme poverty and related privations for these same groups. It’s almost as if the letter of the law, whatever it contains, continues to operate at a substantial remove from real-world praxis.
What is a person owed?
When someone says that they have “rights”, they could be invoking any number of subcategories upon which whole canons of legal history have been based. One might have a claim against the government or another legal entity (a negative right), a contractual right (for contracts that the state recognizes and promises to uphold), a statutory right (such as to copyright protections), a right to participation in government, free speech, and free association with others, and a right to equal treatment under the law.
But I’m neither lawyer nor legal expert. The crux of my concern is humanist. Which is why the rights that most interest me are the ones that aren’t always judicially enforceable: a far broader category than most of us realize, reaching all the way to those supposedly essential core concepts of “life, liberty, and [security of the person]/[the pursuit of happiness”.
What is the point of a legal system that doesn’t proactively uphold what it claims to be the most essential and inviolate rights of personhood?
Granted, common-law attempts to cover some of these gaps. The practice involves court-based judgment around existing legislation, and uses broadly understood entitlements to yield decisions that may in time become codified in law. But therein lies the heart of the struggle so readily overlooked in our grand mythologizing of the law and legal processes:
The judicial system is as much an active, living tool in our democracies as the concept of voting people into office. Its words on paper are only as good as the people charged with their interpretation, and the people charged with their interpretation are relentlessly informed by whatever broader cultures have the greatest hold during their time in office.
So what does being a ‘person’, legally speaking, do for us?
Exactly as much, or as little, as the holders of judicial offices permit.
The secular struggle for a more humanist justice
As a writer myself, I am no stranger to being enamored by literary precision. For millennia now, our species has habituated itself to taking for granted the power of text. The Good Book. Holy Scripture. The Word upon which the universe, some believe, was writ.
But legalism is a highly gamified facet of our pursuit of humanist justice. Whenever we advocate for different groups to be seen as persons under the law, or rail against what another group has granted in the way of supposedly “natural” rights to a nonhuman political entity, we’re making a painful concession to the status quo. We’re acknowledging that our systems are not set up to support more direct forms of just conduct. That, in fact, we’ve been trained up as a political culture to see legality as the most important measure of progress.
There are workarounds, not least of which include the concept of decriminalization without legal codification: a way of conceding that some things more squarely belong in the realm of collective cultural purview, along with individual choice. Of course, some will leap to the idea that if we seek to decriminalize “everything”, chaos is the only sure solution to follow. This is the fear that keeps so many of us from considering other ways of building society—and yet, the legal system is already predicated on many broad, uncodified social standards, along with individual interpretations of all our written law.
All we need to do, to start to make the change, is to recognize that legality is already based on human frailty, and an ever-shifting societal consensus shaped by active democratic chores. Because even if state documents bang on about personal rights that they then do a miserable job of protecting—even if being a legal “person” doesn’t offer anywhere near the guarantees we think it should—the fact remains that we, as individuals, still retain our own ideas of what a more just world should look like.
The trick is imagining that maybe, just maybe, laws and courts alone won’t get us there.