Non-human legal persons in history
History gives plenty of examples of non-human legal personhood, some more misguided than others. In the Middle Ages, one could sue non-human animals.[1] Plaintiffs could seek redress for wrongful death at the hooves of a bull or even damage caused by barley-eating locusts. Animals “were summoned, arrested, and imprisoned, had counsel assigned them for their defence, were defended, sometimes successfully, were sentenced and executed.”[2] This kind of legal charade strikes the modern mind as ridiculous, but these courts were working from a pre-scientific mindset. According to law professor John Chipman Gray, these medieval societies actually believed that the animals had some notion of justice.[3] This belief is preposterous to us, but it is certainly understandable in light of medieval society’s ignorance about human psychology. Without a physiological warrant for the fundamental difference between human and animal cognition, it’s almost inevitable to assume that animals see and respond to the world the same way we do.
Legal scholar Richard Tur calls this misguided projection of agency “animism,”[4] and it explains the medieval grant of legal personhood to the Christian God and long-dead saints[5] as well as the Roman Prytaneum’s grant of legal personhood to inanimate objects like falling boulders and lightning.[6] What Tur means by calling these societies animist is that they believed that “there are spirits, or souls, behind everything… From such a perspective, it is not events that are occurring, but acts; and acts presuppose agents.”[7] Without the powerful empirical methods of science, nature is totally mysterious, even threatening. In this state of helpless ignorance, societies had negligible control over natural events. The animist mindset projected rational agency onto stochastic phenomena, and that apparent agency justified the grant of legal personhood. If they were rational agents, these ancient courts reasoned, they should be punished for violating the law.[8]
In light of the limited scientific knowledge of ancient times, these cases illustrate the instrumental nature of the grant of legal personhood. A society wants a successful crop season but lacks irrigation technology, so it treats a river as an intentional agent that responds to tribute. A society wants to discourage murder, so it treats humans as intentional agents that respond to homicide statutes. In a modern scientific society, the grant of personhood to a river strikes us as silly. It’s not silly because rivers lack some essentialist property that humans retain, but rather because granting legal personhood to the river is not an effective means to the stated goal: controlling the behavior of the river. The river will run regardless of the punishment threatened, whereas the human will cower, and behave. The pre-scientific societies did not recognize this distinction. The pointlessness of granting legal personhood to inanimate objects has become evident only in an age of science, and the same can be said for granting legal personhood to animals and supernatural beings. Cows and gods do not, as previously believed, bow to the dictates of the law. Legal personhood doctrines have evolved accordingly.[9]
[1] H. Kelsen, General Theory of Law and State 45 (1945).
[2] Gray, supra note 86 at 45.
[3] Id.
[4] Richard Tur, The ‘Person’ in Law, in Persons & Personality 120 (Arthur Peacocke & Grant Gillett eds., 1987).
[5] Gray, supra note 86 at 41.
[6] Tur, supra note 97 at 119.
[7] Id. at 120.
[8] Tur offers a colorful anecdote about Ancient Egyptians dealing with the Nile: “When a river fails to rise, what should be done to persuade it to rise? Note the use of the word ‘persuade’… It is not a technological, but a human matter. We treat the river as if it were a person, a human being like ourselves. We therefore in our initial, least confident phase offer the river a gift… What would a river like? … a river likes precisely what human beings like… So one gives it whatever is valued in the society, which for primitive people usually turns out to be goats, camels, and virgins. But as time goes by, goats, camels and virgins tend to be depleted through repeated giving. And inevitably the river rises ultimately. If it fails the first time, it simply means that you didn’t give it a big enough gift, or that you didn’t say the right words. Later, however, as confidence grows, you enter into a contract with the river… In this second phase, a contract would be issued, stating that if the river rose, it would be given x goats and y of the other things the society deemed valuable… In the final phase, however, the river was commanded to rise upon the solemn authority of the law” (pg. 120-1).
[9] Samir Chopra and Laurence White, Artificial Agents – Personhood in Law and Philosophy, Proceedings of the 16th European Conference on Artificial Intelligence 635 (2004).