You may regard the animation of corpses to be an aspect of folklore and horror stories, and you may see the attribution of agency and responsibility to non-human entities as an element of science fiction and AI. But both have been done in a practical manner and for a very long time by law and lawyers.
The key word here is “incorporation”. Look at the word carefully, especially the “corp” bit, as “corpse” or “corporal” or “corpus”. The term “incorporation” means nothing less than the creation of a body out of thin air—a person recognised by the courts as existing. It is one of the most magical feats that can be done by the ancient craft of law.
Human beings are, of course, natural persons at law (though this was long disputed by those in favour of slavery). But alongside these natural persons are what are called legal persons, and they too can have rights and responsibilities, own property and enter into transactions.
The most familiar corporations to most people are companies. These entities, which we deal with every day, have no inherent tangible existence. Their existence may be manifested in documents such as articles of association and so on, but they exist only because we believe them to exist—or, more particularly, because parliament and the courts tell us that corporations exist. Corporations are ultimately affairs of the mind.
Many companies today are established by a simple statutory process, but before then incorporation was something which was often done by original acts of parliament or by a royal charter. Like with other forms of magic, a ritual had to be followed with long words used in a certain order, and hey presto: you had a legal person created before you.
Some of these historic corporations, such as the East India Company or the Hudson Bay Company, became very powerful, almost as state actors in their own right. But they were still always a legal fiction. However mighty these entities were, they existed only because the law posited their existence. And when the law changed, many of these entities were extinguished or curtailed.
Before these vast merchant companies, and still existing, are the (in wonderful phrases) “corporations sole” and “corporations aggregate” created to solve certain legal problems in the medieval and early modern period.
Making a bishopric a corporation sole meant that property could still be held by the diocese even when the seat was vacant. The Lords Commissioners of the Treasury are a corporation aggregate that still have to (nominally) meet for certain transactions on behalf of His Majesty’s Treasury. If one looks carefully at the British state, you can see all sorts of peculiar legal entities, sometimes in the oddest places.
So these legal persons—these intangible legal fictions—are commonplace. In some ways they are so familiar, as with limited companies, that we often do not really think about them at all. Even inanimate objects such as ships can have legal personality.
But why do we thereby often have such difficulty extending the concept of legal personhood beyond the established categories? As Monica Feria-Tinta rightly points out in an interview by Heather Brooke elsewhere in Prospect, there is a compelling case that rivers and other natural features would benefit from legal personhood. Indeed some jurisdictions already do this “environmental personhood”.
And there is also a strong argument that certain animals should be allowed to be regarded as legal persons. At least such animals have the benefit of actually existing, unlike a commercial company. Such personhood would mean that they would be able to have rights that can be enforced on their behalf.
Against the knee-jerk argument that animals and natural features should not have legal personhood because they lack capacity to make decisions like a natural person is the fact that many humans—babies or the infirm—also lack capacity, but that does not make them any less of a person at law.
The capacity of a natural or legal person to make decisions is a separate and distinct question from whether they are a legal person in the first place. Capacity instead goes to who can act on that person’s behalf. A director or other agent can act on behalf of a company; an attorney or trustee can act on behalf of a child or other human unable to give instructions.
Once there is legal personhood, a whole range of tricky legal issues become easier. Instead of being subject to the legal powers of others, rights can be asserted directly on behalf of the legal person which have to be recognised by the courts. Such rights may not be absolute—they may need to be balanced with the rights of others—but a court has to accept they exist even if they are then qualified.
If a ship and the corporation that own her can both be legal persons, why not the river on which the ship is sailing and some of the protected species looking on? None of these are natural persons, so why are only some and not others given a special status at law?
