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Personhood

This note is about the concepts of person and personhood.

Agent

Key Concepts

  • Personhood is not only about humans
  • Corporations already have personhood
  • Other concepts without the baggage of personhood are likely to be better

Beyond Personhood

Personhood has imperial origins and Anthropocentric connotations that cannot be overcome and are thus not helpful strategically even if that can be of use to activists in courts tactically. This type of personhood is not even that good for humans as feminist critique has demonstrated.

Other, more relational notions are needed such as 'beingness' with relationality, vulnerability, etc. promoted by Deckha.

Deckha, Maneesha. Animals as Legal Beings: Contesting Anthropocentric Legal Orders. Toronto: University of Toronto Press, 2021.

Notes

Ontological and social nature of plants as occupying middle ground between

  1. “animals as persons” (Singer 2001; Haraway 2007; Francione 2008; Wolfe 2012; Nonhuman Rights Project 2016) and
  2. inanimate agencies if not personhood (Cohen 2014, 2015; Koch 2014; see Horgan 2015).

Nonhuman Personhood

Pain, Nicola, and Rachel Pepper. ‘Can Personhood Protect the Environment? Affording Legal Rights to Nature’. Fordham International Law Journal 45, no. 2 (2021): 315–78.

How Law Determines Agency

Personhood scholarship attributes agency, goals, and interests through rival tests.

  • Capacity. Cognitive evidence establishes personhood, with practical autonomy as the court-facing criterion.1
  • Institutional incidents. Legal personhood consists of a bundle of incidents rather than a capacity threshold, so nothing about an entity's cognition settles whether it can hold rights, and the claim that nature holds rights raises more conceptual trouble than advocates assume.2, 3
  • Relational beingness. Embodiment and vulnerability justify legal standing, rather than cognition. See Beyond Personhood above.
  • Membership. Participation in shared social life supplies the goals and interests, rather than individual capacities.4
  • Legislated personhood. Rights-of-nature instruments mostly skip agency tests and install personhood directly, with guardians who speak for the entity.5, 6, 7 Critical scholarship reads these instruments as constructing their legal subjects rather than discovering them.8 Comparative studies show the entity's goals written as ecological criteria: existence, regeneration, and the maintenance of vital cycles, structures, and functions.9
  • First Law. In Indigenous law the sequence reverses. The Martuwarra's personhood follows from ancestral relationship and First Law, with agency, goals, and obligations already given in the legal order rather than awaiting empirical detection.10, 11

See Phase Space on personhood as installed agency, Agency for the evidence ladder these tests bypass, and Rights.

Notes

Footnotes

  1. Wise, Steven M. “Animal Thing to Animal Person: Thoughts on Time, Place, and Theories.” Animal Law 5 (1999): 61–68.˄

  2. Kurki, Visa A. J. A Theory of Legal Personhood. Oxford: Oxford University Press, 2019.˄

  3. Kurki, Visa A. J. “Can Nature Hold Rights? It’s Not as Easy as You Think.” Transnational Environmental Law 11, no. 3 (2022): 525–52. https://doi.org/10.1017/S2047102522000358.˄

  4. Kymlicka, Will. “Membership Rights for Animals.” Royal Institute of Philosophy Supplements 91 (2022): 213–44. https://doi.org/10/gshcg8.˄

  5. O’Donnell, Erin L., and Julia Talbot-Jones. “Creating Legal Rights for Rivers: Lessons from Australia, New Zealand, and India.” Ecology and Society 23, no. 1 (2018): art7. https://doi.org/10.5751/es-09854-230107.˄

  6. Chapron, Guillaume, Yaffa Epstein, and José Vicente López-Bao. “A Rights Revolution for Nature.” Science 363, no. 6434 (2019): 1392–93. https://doi.org/10.1126/science.aav5601.˄

  7. Youatt, Rafi. “Personhood and the Rights of Nature: The New Subjects of Contemporary Earth Politics.” International Political Sociology 11, no. 1 (2017): 39–54. https://doi.org/10.1093/ips/olw032.˄

  8. Tănăsescu, Mihnea. Understanding the Rights of Nature: A Critical Introduction. Bielefeld: transcript, 2022.˄

  9. Kauffman, Craig M., and Pamela Martin. The Politics of Rights of Nature: Strategies for Building a More Sustainable Future. Cambridge, MA: MIT Press, 2021.˄

  10. RiverOfLife, Martuwarra, Anne Poelina, Donna Bagnall, and Michelle Lim. “Recognizing the Martuwarra’s First Law Right to Life as a Living Ancestral Being.” Transnational Environmental Law 9, no. 3 (2020): 541–68. https://doi.org/10.1017/s2047102520000163.˄

  11. RiverOfLife, Martuwarra, Alessandro Pelizzon, Anne Poelina, Afshin Akhtar-Khavari, Cristy Clark, Sarah Laborde, Elizabeth Macpherson, Katie O’Bryan, Erin O’Donnell, and John Page. “Yoongoorrookoo: The Emergence of Ancestral Personhood.” Griffith Law Review 30, no. 3 (2021): 505–29. https://doi.org/10.1080/10383441.2021.1996882.˄

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