A Philosophical Journey Towards A Conceptual
Normative Structure of Personhood
Christiaan van der Does de Willebois 10579907
ABSTRACT
Master thesis Philosophy
Summer 2015
Graduate School of Humanities, University of Amsterdam
Coordinator: Jacques Bos
Second reader: Thomas Nys
Overview
Acknowledgements Introduction
Chapter 1 An Example of Non-Natural Personhood Section 1.1 Legal Personhood
Section 1.2 Moral Personhood
Section 1.3 The History of the Corporate Personhood
Section 1.4 The Merging of Legal Personhood and Moral Personhood: the Corporation Section 1.5 Corporate Moral Personhood: Should It Be?
A. Arguments against Corporate Moral Personhood B. Arguments for Corporate Moral Personhood Section 1.6 Conclusions
Chapter 2 Philosophical Theory: Moral Personhood Section 2.1 Three Account of Moral Personhood
Section 2.1.1 Ontological Account Section 2.1.2 Subjective Account Section 2.1.3 Objective Account Section 2.2 Conclusions
Chapter 3 A Normative Structure
Section 3.1 The Three Accounts of Moral Personhood and their Consequences Section 3.2 A Fourth Account: The Political-Natural Account
A. A Moral Interpretation: Natural Moral Personhood
B. Consequential Interpretation: Consequential Moral Personhood
Section 3.3 The Consequences of the Moral Personhood Accounts and Fundamental Rights
Section 3.4 Fundamental Rights Distinctions Section 3.5 A Hierarchy of Fundamental Rights Section 3.6 Conclusions
Acknowledgments
I would like to thank Jacques Bos for all help given and positive feedback during the past half year that I wrote this thesis.
Introduction
Non-natural persons are “hip” nowadays. Advocates of corporations, animals, and even plants, have tried to assure that these non-natural objects are granted personhood-status. Along with the personhood-status comes a package of rights, even fundamental rights. However, until now, only one non-natural object has succeeded in becoming a person in the eyes of the law: the corporation.
To give an example, in Citizens United v. Federal Elections Commission (FEC), the U.S. Supreme Court granted corporations the fundamental right of free speech in a case that had nothing to do with free speech. Citizens United sued the FEC, reasoning that, as campaign donations are a protected form of speech, the government cannot bind a corporation’s
independent political contributions. As corporations and natural persons are both seen as legal persons, also corporations should be granted the freedom of speech; they should be able to freely choose, both for and to, the cause they wish to donate. The Supreme Court agreed; because political speech is a form of speech, corporations were granted a version of freedom of speech. The Citizens United case came at the height of the equality battle between
corporations (or non-natural persons) and natural persons. This battle is known as the corporate personhood (CP) debate:
In the eyes of the law, the business corporation is a person. So, for example, the corporation can own property in its own right; it can sue or be sued, in contract or tort or any number of other causes of action; it can be prosecuted and punished for criminal activity; it enjoys various rights under the United States Constitution; and it is subject to tax liability. In these respects (and others), the corporation bears the legal attributes of an entity existing separately from the various natural persons who participate or have an interest in the corporation’s activities. (Millon, 2001, p. 1)
The concept of CP is exemplary for the rise of non-natural persons in contemporary times. In the United States, the notion of personhood is used as a way to claim (fundamental) rights. This implicates that, as natural persons have natural personhood and therefore certain rights, corporations should have certain rights as well, in the form of CP. The corporation will be held as an example for the rise of the non-natural person in this thesis.
Human rights, fundamental rights, and constitutional rights are used in essentially the same way: to prevent any infringements to these rights and to capacitate (natural) persons to act in society. These rights have a strong ethical footing. They are not just about biological human
beings, but also about something more. Most authors on human rights say that one has to be a “moral person” in order to have fundamental rights. This personhood-approach could be divided into multiple accounts. The classic approach bases moral personhood on humanity or human dignity. For example, the Universal Declaration of Human Rights (UDHR) and the European Convention on Human Rights (ECHR) take this approach. Other scholars say that the essence of a person is derived from certain characteristics that one possesses, such as intentionality, sentience, or language. Some academics argue that a moral person is defined through actions and deeds with others in society.
The fact that these human, fundamental, or constitutional rights are essentially meant for natural persons makes abstract the idea of granting these rights to “anyone or anything” other than natural persons, for example, to non-natural persons such as corporations, aliens, artificial intelligence (AI), robots, animals, and even plants.
There is a history behind the rise of non-natural personhood. Since corporations were the first non-natural persons, they will be held as the model in order to grasp this concept better. A fair question to ask would be, for example, if it is possible to become a citizen as a corporation. Other issues needing answers are how it is possible that corporations have moral personhood, and therefore, fundamental rights. If non-natural personhood has already resulted in
corporations gaining fundamental rights, then one wonders what that means for our future. It needs to be determined if there are limits to the rights of non-natural persons or if they will eventually be fully equated to natural persons, in the sense that they can also be granted the right to life. We need to be concerned where those boundaries are drawn. In this thesis, all these questions and issues will be answered.
The main question of this thesis is: In what respect should non-natural persons and animals
be equal to natural persons?
There are four sub-questions.
1) What is a person, and how did non-natural persons gain personhood-status? 2) What are the leading accounts of moral personhood?
3) Could we construct a normative conceptual structure to analyse personhood? 4) What are the implications of this normative conceptual structure for the hierarchy of fundamental rights?
Outline
First, the Citizens United case will be used as the example of a non-natural person that has been ascribed fundamental rights. In the first chapter, the origins of personhood will be discussed; and, the historical development leading to corporate personhood will be examined. Also, the arguments pro and contra of the ascription of fundamental rights to non-natural persons will be addressed.
In the second chapter, the three main accounts of moral personhood will be discussed. Moral personhood is leading in the attribution of fundamental rights to natural persons, and it is moral personhood-status that non-natural persons pursue. Defining moral personhood will be key to understanding the current personhood debate. Furthermore, it will help in the
development of a conceptual normative framework that merges the three accounts of moral personhood into one: the political-natural account of moral personhood. This will be discussed to a greater extent in chapter three.
Because there is a lack of normative personhood theories, this thesis is important, as it will develop such a framework. After elaborating on personhood and defining the limits of legal and moral personhood, the next step will show the legal implications of such a theory. In order to do so, it is necessary to first look at the underlying value of fundamental rights. After defining this underlying value, it will become clearer what steps should be taken to show the boundaries of non-natural personhood and the attribution of fundamental rights.
The corporation will be held exemplary for the non-natural person. This thesis, and the normative framework that is proposed here, is suitable for all non-natural persons, even if they come from Pluto, or are of the animal species. Having defined this framework, it will demonstrate why corporations should have a form of moral personhood.
Terminology
In this thesis I will refer to natural persons, non-natural persons, and animals. Humans, in this thesis, are seen as natural persons. A natural person is anyone who, based on humanity and human dignity, is a living human being. Under non-natural persons are only artificial persons, such as corporations, artificial intelligence, and robots. Animals are not (yet) persons in the eyes of the law; however, they do have certain moral rights.
Mainly fundamental rights will be referenced to in this thesis; which includes also human rights and constitutional rights. There are two reasons that fundamental rights are used as an umbrella concept. First, “human rights” is a very confusing term in relation to anything that is not natural or human. Second, “constitutional rights” is, for many people, too vague of an expression, as it does not define exactly what is constitutional and non-constitutional; it is impossible to determine where the dynamic line is drawn. Therefore, the concept of fundamental rights is used here, as it has an exact and limited content: the most essential rights to persons.
For purposes of clarification, the idea of the construction of the normative framework is not meant to be all encompassing or exhaustive. It is merely to sketch the lines of thought along which the theory could be coloured in.
Chapter 1 An Example of Non-Natural Personhood
The subject of this chapter is the corporation, a non-natural person that has been granted personhood. This chapter will first introduce three different notions of personhood: natural, moral, and legal. Second, it will provide an overview of the development of the first non-natural person in history that has claimed fundamental rights: the corporation. Third, arguments pro and contra corporate personhood will be discussed.
Three different sorts of persons can be distinguished: natural, moral, and legal. Every natural person is moral and legal, but not every legal person is a moral and, therefore, natural person. For example, corporations are legal persons. They have rights and responsibilities and can sue and be sued; however, they are not moral or natural persons. Corporations are non-natural (artificial) persons, and are primarily created for the benefit of natural persons. Similarly, humans, as natural persons, are usually also considered as legal persons.
Section 1.1 Legal Personhood
The classical discussion of the idea of legal personhood is found in John Chipman Gray’s The
Nature and Sources of the Law. He formulated it as follows: “In books of the Law, as in other
books, and in common speech, ‘person’ is often used as meaning a human being, but the technical legal meaning of a ‘person’ is a subject of legal rights and duties” (Gray, 1921, p. 27). “The question whether an entity should be considered a legal person can be reduced to other questions about whether or not the entity can and should be made the subject of a set of legal rights and duties” (Solum, 2015). The set of rights and duties that come with legal personhood differs from the kind of person it is ascribed to; for a non-natural person, such as a corporation, it will be different than for a natural person. However, in general, it can be said that legal personhood minimally consists of the right to sue and to be sued in court and the right to own property (Ripken, 2010, pp. 101-102; Solum, 2015). Over the course of history, many different things have possessed legal rights, from temples in Rome to Church buildings, and even to ships. The City of London, for example, has had legal personhood since the 12th
Century (London, 2015; Robinson, 1936, p. 719). In present times, the most famous non-natural person is the corporation (Gray, 1921; Cline, 2010, p. 10). Legal personhood implies that one has certain rights and duties; however, this does not directly imply that fundamental rights are also included.
Until the Citizens United case, only natural persons were granted fundamental rights. In order to be ascribed fundamental rights, one had to be a moral person, next to being a legal person. Therefore, a more in depth definition of moral person needs to be examined and stated.
Section 1.2 Moral Personhood
While legal personhood is already slightly controversial, moral personhood is “one of the most contested ideas in contemporary legal, moral, and political theory” (Solum, 2015). One of the critical problems is how to define a moral person: are there some specific criteria that can be used? Can humanity be defined in terms of a set of traits, and can we then try to apply these criteria to non-natural persons? Examples of possible criteria are as follows:
intelligence, consciousness, intentionality, autonomy, language, or self-awareness (Solum, 2015). The question then arises of when someone is fully human. Also, is it possible to be “half” human when one does not possess all these traits? It is evident that this is a very difficult and complex discussion. The topic of moral personhood will be discussed to a greater extent in Chapter 2.
Section 1.3 The History of Corporate Personhood
The original idea of a corporation was to create a fictional “person” that could be recognized by the law and exists in eternity, according to the famous English jurist William Blackstone.
It has been found necessary, when it is for the advantage of the public to constitute artificial persons, who may maintain a perpetual succession, and enjoy a kind of legal immortality. These artificial persons are called bodies politic, bodies corporate,
corpora corporata or corporations: of which there is a great variety subsisting, for the
advancement of religion, of learning, and of commerce; in order to preserve entire and for ever those rights and immunities, which, if they were granted only to those individuals of which the body corporate is composed, would upon their death be utterly lost and extinct. (Blackstone, 1756, p. 455)
The corporation as a concept has been developed for some time, as the earliest traces can be found in Roman history (Risk Encyclopedia). However, the origins of the for-profit
corporation, as we currently know it, are found at the start of the 17th century when the idea of
limited liability surfaced. The first limited liability corporations were the British East-India Company and the Dutch East-India Company, founded respectively in 1600 and 1602. Since the Americas were discovered in 1492 by Christopher Columbus, vessels hopped on and off across the ocean to trade slaves, cotton, and more. It was the British who reigned over the seas after they defeated the Dutch Republic at sea in the Four War. This happened over the course of the 17th and 18th centuries (Boxer, 1974; Hainsworth, 1998). In those times, various
wars were booming, starting in America with the American Revolution in 1775.
Corporations were used as ways to deal weapons and privately fund wars (Ferguson, 2008, pp. 20-80). The people of North America saw corporations as tools of oppression by the King of England. Before the United States Constitution, the King gave corporations specific monopolies in the form of charters for a limited amount of time. This was done with the purpose of exploiting the “New World” and moving wealth back into the “Old World.” The King’s agents for the joint-stock corporations had plenty of autonomy to do their work in the 17th and 18th century; they could pass laws, levy taxes, and raise armies to manage and control
property and commerce. However, these corporation owners were not popular with the colonists.
Therefore, when the founding fathers drafted the United States Constitution in 1787, they wanted to be free of the influences of the English King (Bruns, 1986, p. 33). A chief aim of the Constitution was to create a government with enough power to act on a national level, but without so much power that fundamental rights would be at risk. One way in which this was accomplished was to separate the powers of government into three branches, and then include checks and balances on those powers to assure that no one branch of government gained supremacy. This concern arose largely out of the experience that the delegates had with the King of England and his powerful Parliament. The powers of each branch are enumerated in the Constitution, with powers not assigned to them reserved for the states (The White House). The founding fathers left the control of corporations to state legislatures1
where they would receive the closest supervision by the people (The National Constitution Center). Early corporate charters were very explicit about the limitations of a corporation. Most importantly, the corporations had to represent a clear benefit for the public good, such as building a road, canal, or bridge. In the event that corporations violated any of these terms, their charters were revoked by the state legislatures. During and after the Civil War, there was a rapid increase in the number and size of corporations, with this form of business starting to become an increasingly important way of holding and protecting property (Hammond, 1991, pp. 580-594). At that time, corporations had more rights than women and slaves, which caused great frustration among the population.
As time passed and memories of royal oppression faded, wealthy people increasingly started eyeing corporations as a convenient way to shield their personal fortunes; the benefits of the
1 The 10th Amendment was included in the Bill of Rights to further define the balance of power between the federal government
and the states. The amendment says that the federal government has only those powers specifically granted by the Constitution. These powers include the power to declare war, to collect taxes, to regulate interstate business activities and others that are listed in the articles. Any power not listed, says the 10th Amendment, is left to the states or the people. Although the 10th Amendment
does not specify what these “powers” may be, the U.S. Supreme Court has ruled that laws affecting family relations (such as marriage, divorce, and adoption), commerce that occurs within a state’s own borders, and local law enforcement activities, are among those specifically reserved to the states or the people.
limited-liability corporation were increasingly being discovered. States saw the rise of the limited liability corporation and the amount of money it generated. In order to attract more businesses, state legislatures increased corporate charter length while, at the same time, they decreased corporate liability and reduced citizen authority over corporate structure,
governance, production, and labour. This meant that corporations were not limited by time anymore while gaining more rights. As corporations acquired more rights, other inhabitants of the United States also started to claim more rights. Next to men, women and slaves were also publicly protesting for the attribution of these rights. States gradually started loosening property requirements for voting, so more and more men could participate in the political process. Women were publicly protesting for the right to vote. In 1865, the 13th Amendment
was ratified, freeing the slaves (Davis, 2015). A few years later, the 14th Amendment
provided citizenship rights to all persons born or naturalized in the United States; and two years after that, the 15th Amendment provided voting rights to black males (Turner,
Giacopassi, & Vandiver, 2006, pp. 181-195).
Because corporations were a creation of the government—chartered by the state
legislatures—they had duties to which they were held accountable.2 While dealing with these
duties, corporations wanted more rights so that they could expand their businesses even further. The corporation’s tool to realize this was the 14th Amendment that was ratified in 1868 (Paul vs. Virginia, 1868). The 14th Amendment, in addition to stating that all persons
born or naturalized in the US are citizens, says that no state shall “deprive any person of life, liberty, or property, without the due process of law; nor deny to any person . . . the equal protection of the laws.”3 The phrase about not depriving any person of life, liberty, or
property without the due process of the law is exactly the same wording as the 5th
Amendment, which protects people from that kind of abuse by the federal government. In the 14th Amendment, the states cannot abuse people in that way, either. These are important
rights; they were written in a short, straightforward manner; and, after the Civil War and all the agony over slavery, it was clear to the people in the states that ratified the 13th, 14th, and
2 Abraham Lincoln, in a Nov. 21, 1864 letter to Col. William F. Elkins, warned that “I see in the near future a crisis approaching
that unnerves me and causes me to tremble for the safety of my country. As a result of the war, corporations have been enthroned and an era of corruption in high places will follow, and the money power of the country will endeavor to prolong its reign by working upon the prejudices of the people until all wealth is aggregated in a few hands and the Republic is destroyed.”
3 The 14th Amendment contained three new limits on state power: a state shall not violate a citizen’s privileges or immunities;
shall not deprive any person of life, liberty, or property without due process of law; and must guarantee all persons equal protection of the laws. These limitations on state power dramatically expanded the protections of the Constitution. Prior to the adoption of the 14th Amendment, the protections in the Bill of Rights limited only the actions of the federal government, unless
the provision specifically stated otherwise. The Supreme Court, in what is called “the doctrine of incorporation” has since interpreted the Fourteenth Amendment to apply most provisions in the Bill of Rights against state and local governments as well. This has meant that the 14th Amendment has been used more frequently in modern court cases than any other constitutional
provision. Guaranteed Rights of Citizenship to all Persons Born or Naturalized: The right of citizenship in the 14th Amendment
was intended to overturn the case of Dred Scott v. Sanford, a decision that had long been considered as one of the Supreme Court’s worst mistakes. Dred Scott, born into slavery, argued that he should be granted freedom from the family that claimed ownership over him because he had lived in free states and, thus, had become a citizen of the United States before returning to Missouri, a state where slavery was sanctioned (Monk, 2003).
15th Amendments, that these were about righting the wrongs of slavery (Nelson, 1988, p. 4;
The National Archives, 2012). By this time, over 100,000 corporations operated in the US. This far exceeded the number of corporations created in any other country during that time. The United States thus became what might be called the first corporation nation (Hall, 2000).
As the rights to due process and equal protection were so valuable, the definition of the word “person” in the 14th Amendment became the focus of hundreds of legal battles for the next
twenty years. The watershed moment came in 1886, when the Supreme Court ruled on a case called Santa Clara County v. Southern Pacific Railroad. The case itself was not about corporate personhood, although many before had been and the Court had ruled that corporations were not persons under the 14th Amendment. The Santa Clara case was, like
many railroad cases, about taxes. But before the Court delivered its decision, the following statement was delivered by Chief Justice Waite: “The court does not wish to hear argument on the question whether the provision in the 14th Amendment to the Constitution, which
forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does” (Santa Clara County v. Southern Pacific Railroad , 1886). The statement appeared in the header of the case in the published version, while the Court made its ruling on other grounds. How this statement appeared in the header of the case is a matter of some mystery and competing theories; but because it was later cited as precedence, corporate personhood became the accepted legal doctrine of the land.
In 1976, in Buckley v. Valeo, the Supreme Court determined that spending money for political purposes was equal to exercising free speech; and, since “corporate persons” have First Amendment rights, they can basically contribute as much money as they want to political parties and candidates (Buckley vs. Valeo, 1976). Another landmark case, First National
Bank of Boston v. Belotti, reaffirmed the Santa Clara doctrine in 1978. This case was used to
justify granting corporations the First Amendment right to spend unlimited corporate funds on ballot initiatives. This jurisprudence laid the foundations for an important case in 2010 that continued the steady rise of corporate personhood. This was the Citizens United v. FEC case. Citizens United sued the FEC, arguing that, because people’s campaign donations are a protected form of speech (as was previously determined in Buckley v. Valeo) and corporations and people enjoy the same legal rights, the government cannot limit a corporation’s
independent political donations. The Supreme Court agreed. In Citizens United, the Court integrated the “money is speech” concept from Buckley with the “furthering free and open debate” consideration of Bellotti that paved the way to unlimited corporate money for political parties in election time (Hager & Leas, 2012; Mayer, 1990).
The Citizens United ruling may be the most sweeping expansion of corporate personhood to date, but it was not the last vital case for the development of the CP-doctrine. Another important case was tried before the Supreme Court in 2014. In the Burwell v. Hobby Lobby case, the owners of the Hobby Lobby stores claimed that their personal religious beliefs would be under intrusion if they were required to provide certain forms of birth control coverage to employees. Hobby Lobby’s owners wanted the court to recognize their own beliefs on birth control, but they also wanted to keep the protections of the corporate form for everything else, including limited liability. The Supreme Court granted this, making it the first time that the court accepted a corporation’s claim to religious beliefs. However, it is limited to closely held corporations. These are corporations that have a limited amount of shareholders, and their stocks are publicly traded on occasion, but not on a regular basis (Haberkorn & Gerstein, 2014; Investopedia).
Section 1.4 The Merging of Legal Personhood and Moral Personhood: the Corporation
The historical development of the CP doctrine has been described. The legal development of it can be narrowed down to three concepts over the past ages. Discussed above were the differences between legal personhood and moral personhood. In this section, it will be investigated how the U.S. Supreme Court merged both definitions to one, over time. First, the corporation was seen as “an Artificial and Dependent Person.” Personhood was only attributed to a non-natural entity because of the benefits it had for the economy, as it could be used as a legal vehicle to govern wealth, and engage in legal relationships. The corporation could, as a result, enter into contracts, hold property, sue and be sued, and ultimately, transact business in the corporate name. The artificial person theory is thus constituted in two separate elements: (1) a fictional aspect, and (2) a dependence aspect (i.e., the dependence on the law for its legal personality). The fictional aspect means that natural persons created the corporation; it is their invention (Nesteruk, 1990, pp. 543, 564; Schall, 2006, pp. 105, 118). Chief Justice Waite’s statement made this clear in Trustees of Dartmouth
College v. Woodward: “A corporation is an artificial being, invisible, intangible, and existing
only in contemplation of law. Being the mere creature of law, it possesses only those
properties which the charter of its creation confers upon it” (Trustees of Dartmouth College v. Woodward, 1819). Ripken describes the second aspect as that, “the corporation is artificial, fictional, and conditional because it cannot come into being unless and until the law sanctions it” (Ripken, 2010, p. 107). This theory was leading in American legal thinking during the first half of the 19th century (Bratton Jr., 1989, pp. 407, 434).
After that, the corporation further developed. The second stage was that the corporation was viewed as an Aggregate Person. This was based on the fact that the corporation is, in fact, the
aggregate, the collective of the natural persons acting under a single name for a mutual benefit (Hessen, 1979, p. 22). The entity is “owned, managed, and administered by people, [and] its so called actions are but manifestations of actions by real persons” (Cressey, 1989, pp. 31, 36). According to this idea, “the rights and duties of an incorporated association are in reality the rights and duties of the persons who compose it, and not of an imaginary being” (Young, 1912/2014, p. 113). The U.S. Supreme Court indirectly based its view on this theory in Santa Clara v. Southern Pacific Railroad, when it declared that a corporation is a person for purposes of the Fourteenth Amendment and, therefore, its property cannot be taxed in a different way as the property of individuals (Ripken, 2010, pp. 110-113; Santa Clara County v. Southern Pacific Railroad , 1886). Eventually, the Courts could not uphold the Aggregate theory anymore as it was out-dated, and they had to find a solution.
The third stage saw the realization of the concept of the corporation as a Real and
Independent Person. This is the view that is still supported today. It is a complete, “living”
entity that has a place in society. “The large corporation is simply a natural outgrowth of the economic tendency toward business combination” (Ripken, 2010, p. 113); and it has
developed into such a strong entity that the law has granted it official recognition (Geldart, 1911, pp. 90-96). The real entity theory sees corporations as something distinct from the humans that collaborate under its roof. Its (perpetual) existence and identity is not dependent on its shareholders (French P. , 1984, pp. 19-30). Under this view, a corporation can have its own will and intentions, and can pursue its own goals, distinct from the will and goals of each individual member. One might say that this leads to a “collective consciousness, intentions or will” (Ripken, 2000, pp. 790-799).
As such, there are now two ways of viewing the corporate personhood in terms of fundamental rights. The first way is to view the corporation as a real and natural entity, similar to a natural person. In this view, the corporation should be granted the same rights and privileges as natural persons. The second way is a more public-oriented view. If a corporation is regarded as a real person in society, it should be granted the same rights as natural persons. This also implies, however, that it has moral and social responsibilities. Being a citizen, and part of a larger community, it should act like this (Nesteruk & Risser, 1993, p. 77). The law is there to regulate corporations to use their power, not only to maximize profits, but also to help society move forward. This view is in support of a public law of corporations (Ripken, 2010, p. 116).
Section 1.5 Corporate Moral Personhood: Should It Be?
Different accounts have served as bases for ascribing rights to non-natural persons, such as corporations, and will be described in more detail. This will begin by examining the arguments, for and against Corporate Moral Personhood, which have been explained very well by, among others, Susanna Ripken (Ripken, 2010; Millon, 2001; French P. A., 1979). All the arguments given are sec, so without directly concluding anything. An opinion on these arguments will be given later.
A. Arguments Against Corporate Moral Personhood
First, attributing moral blame to a corporation does not make sense, as one could similarly blame a mug, a book, or a couch. It is not the corporation that does the wrong, it is the individuals behind the corporation (Garettt, 1989, pp. 535-544). Thus, only the individuals should be held morally accountable for actions taken in the name of a corporation.
Second, moral personhood desires a minimal level of autonomy. Someone can only be held morally responsible if that person has autonomous control of the body (Spicker, 1970). The argument then is as follows: as corporation do not have autonomous control over their bodies, and thus their actions, they cannot be held morally responsible for their actions (Wolgast, 1992, pp. 64-65). Similarly, this argument can be applied to another “human” attribute: intentionality. Moral responsibility means that a person must act intentionally in order to be blamed. However, in corporations it are the humans behind it who steer their actions (May, 1983, pp. 69-71). To give a comparison, when the Titanic sunk, it was the captain who was responsible for the navigation, not the ship itself. It is then also incorrect to speak of the goals and intentions of a corporation, as these are the combined goals and intentions of the natural persons behind the body. This form of individualism means that a corporation’s actions, whether good or bad, can be traced back to the humans within the corporation. As corporation cannot have the same experiences such as these, they cannot be seen as moral persons; and, therefore, cannot be held accountable for their actions (Donaldson, 2013).
Third, a related argument is to say that corporations simply cannot be categorized as moral persons because of their constitution. John Ladd thinks corporate organizations are more “like machines” than like persons, and “it would be a category mistake to expect a machine to comply with the principles of morality” (Ladd, 1970, pp. 488-500). The reason for this is that corporations are only “alive” in so far as they act as a vehicle to maximize profits, or to achieve certain goals. As this is what they were made to do, they should also be evaluated in the same way. “[A]ny considerations that are not related to the aims or goals of the
process” (Ladd, 1970, p. 496). A corporation is like a machine, unable to understand moral language and, thus, it cannot take into account moral considerations while making a decision “to be honest, courageous, considerate, sympathetic, or to have any kind of moral integrity. Such concepts are not in the vocabulary, so to speak, of the organizational language-game” (Ladd, 1970, p. 499) For example, actions such as “[s]ecrecy, espionage and deception do not make organizational action wrong; rather they are right, proper and, indeed, rational, if they serve the objectives of the organization” (Ladd, 1970, p. 500).
Fourth, another difficulty is that if corporations are granted moral personhood, that implies that they have moral rights in addition to their moral responsibilities. To tackle this dilemma, use is made of Kant’s categorical imperative: we should treat all human beings as an end in themselves and never as a means to another end (Kant, 1785/1948). Corporations are the inventions of humans, formed as a means to achieve the end of those human beings that chose to participate in them (Ripken, 2010, pp. 122-123). If corporations are regarded as equal to humans, then corporations have the same moral rights and, therefore, the right to be treated as an end in themselves. This would lead to odd consequences. Corporations could not file bankruptcy anymore, as this would be equal to murder, and a merger would be a form of suicide (Pfeiffer, 1988, pp. 69-75). Some argue, like Ladd, that moral personhood should not be extended to corporations in order to avoid such results. Corporations should be seen as creations serving only human ends. An alternative for this is to say that corporations can be seen as moral persons, and therefore, have certain moral rights; however, this would be only for serving a particular purpose in law. Others say, that as corporations are not regarded as autonomous persons in the Kantian sense, ends instead of means, they cannot claim full moral personhood-status. As such, we can only treat them as moral subjects for some purposes, but not for others.
B. Arguments in Favour of Corporate Moral Personhood
First, intentionality and the ability to act are often seen as important criteria for moral personhood. There are philosophers that believe that corporations are capable of intentional action, and thus, can be regarded as moral persons. These philosophers emphasize that corporate actions and intentions cannot be reduced to the persons behind the corporation (Risser, 1978, pp. 23-28; French P. A., 1979). The collective nature of the corporation is what transforms the intentions of the natural persons into a collective one of the corporation itself (Wilson, 1992, pp. 74-75). Moral responsibility, therefore, falls upon all the individual members of the corporation itself. Not just on one, as that would be unfair. This is where corporate criminal liability comes into play, as it would otherwise be impossible to identify the individual wrongdoers and to punish them. The individuals behind the corporations are
shielded from persecution, as they all had something to do with the action, but it cannot directly be retraced to the individuals themselves. In these sorts of situations, the corporation should be morally responsible for the policies and practices that provide the environment in which individual actions are likely to combine to cause harm (Werhane, 1989, pp. 821-822). Second, as a corporation can act apart from its individual constituents, it also has its own intentions, that is to say, “a deliberate disposition to do something in a certain manner or to realize a state of affairs” (Werhane, 1989). This corporate intent has to be distinguished from the individual intention of the individuals behind the corporation. It is the collective nature of the corporation’s decision-making system that turns the total individual input into one final corporate output. Peter French has argued that intentionality should be seen as the sufficient and necessary condition for moral personhood (French P. A., 1979). He posits that corporate intentionality can be traced to the corporation’s internal decision structure (CID structure). This structure has two elements: (1) an organizational flowchart outlining the different levels within the corporate hierarchy, and (2) corporate rules that are generally established in corporate policy (French P. A., 1979). If the corporation wants to act, it should first discuss what action should be undertaken, and whether this action is appropriate and feasible. The CID structure collects the individual inputs within the corporate hierarchy, contemplates upon them, and then engages in a decision-making and ratification process. “When operative and properly activated, the CID Structure accomplishes a subordination and synthesis of the intentions and acts of various biological persons into a corporate decision” (French P. A., 1979). This all enforces the CID structure and enables the corporation to act intentionally. According to French, corporations are, therefore, intentional actors capable of moral
personhood and exist as “full-fledged moral persons” with all the rights, privileges, and duties that such status implies” (French P. A., 1986, p. 37).
Third, an alternative approach is to see what specific qualities a natural moral person has, and then try to project these on corporations to see whether they have similar features (Hindriks, 2013, pp. 5-6). Kenneth Goodpaster and John Matthews claim that two essential traits that characterize the morally responsible person are rationality (the capacity of rational decision-making) and respect (the awareness of the effects of one’s decisions on others) (Goodpaster & Matthews Jr., 1982). As corporations are capable of assembling information regarding the impact of their actions on others, and capable of using this information to make decisions, corporations display both rationality and respect; thus, they must be seen as moral persons (Goodpaster & Matthews Jr., 1982, pp. 134-135). Some say that corporations could be even more capable of rational action than natural persons, as they do not have emotions,
consciousness, or sentience that influence their decision-making processes. This relates to the idea that corporations “can and should have access to practical and theoretical knowledge which dwarfs that of individuals,” and, therefore, corporations “must have, in addition to
good intentions, superhuman intelligence” (Donaldson, 2013, p. 125). With this view in mind, corporations should be held to even higher moral standards than human beings when they fail to utilize such intelligence in morally appropriate ways.
Section 1.6 Conclusions
The fact that corporations are seen as a Real and Independent Person seems to be a bizarre outcome of the legal debate. Due to this, corporations were granted fundamental rights in the United States. It is an oxymoron; fundamental rights and corporations do not seem to go together. However, the U.S. Court sees it as a fact that moral personhood can be ascribed to corporations, as they apparently can have their own will and intention. Not only are
corporations seen as real persons, they can also be seen as a citizen of a particular state, if mostly this is of use for tax purposes (Forbes, 2014). It seems that it is only a matter of time before non-natural persons become even more anthropocentric. The question remaining is how far we are willing to go in making them even more natural. In the next chapters, this topic will be discussed.
Chapter 2 Philosophical Theory: Moral Personhood
After examining the legal background of corporate personhood as a form of non-natural personhood, the philosophical dimensions of moral personhood will now be explored.
Moral personhood is one of the most contested ideas in contemporary legal, moral, and political theory (Solum, 2015). This is the case because it implies a certain standard: what it means to be a person. Is there a special set of criteria that must be met in order for one to be correctly called a “person”? Are all humans persons? Or, can it be that some humans are not persons? What about non-human beings? Can something non-human be categorized as a moral person? All of these questions aim at discovering the nature of personhood and determining the kinds of entities that can properly be considered moral persons. When addressing these questions, however, the answers uncovered may vary according to the way one defines “personhood.”
Section 2.1 Three Different Accounts of Moral Personhood
This section focuses on diverse aspects of moral personhood. It will discuss three different accounts of moral personhood, which are the ontological, subjective, and objective accounts. The original idea for these three accounts is derived from Elisa Aalthola’s paper Personhood
and Animals: Three Approaches (Aalthola, 2008).
Section 2.1.1 The Ontological Account
Central to the ontological account is humanity as a essential class. Humanity is described as “being a person,” and personhood described as “being human.” Humanity has an effect to human dignity; the former cannot be without the latter. The idea is that humans are persons and persons are humans. This means humanity has some definite moral effects: “Personhood can best be applied to beings who have a serious moral right to life” (Goodman, 1988, pp. 5, 8). This account implicates that only humans are moral persons, and all other persons are not moral. Once having decided that an organism is a human, we know that this makes it the kind of organism that is likely to belong to humanity.
The ontological approach accentuates personhood as an essential class, to which a being basically belongs based on some intrinsic factor. For example, Carl Cohen states, “Morality is an essential feature of human life; all humans are moral creatures, infants and the senile included (…) Rights are universally human, arise in the human realm, apply to humans
generally” (Cohen & Regan, 2001, p. 37). This involves a firm ontological postulation, as the essence of humans is distinguished categorically from the essence of non-humans. Cohen says that the argument from marginal cases is incorrect, as it does not understand that agency is “not a test to be administered to human beings one by one,” as the “critical distinction is one of kind” (Cohen & Regan, 2001, p. 53). The claim builds up to an idea of generic species-specific capacities. Even if not all humans have the active “ability” for moral agency, they all still have the inherent “capability” (Wetlesen, 1999). Being human makes us carriers of the conventional human capacities, even if we do not ourselves have them on the individual level. However, this leaves much lacunas open in this account. Most prominently, it sounds
somewhat strange to say that we all have the common capacities of our species, even if some do not attain these on the individual level. This is apparent when we look at other qualities than moral agency. There are many “averages” that are characteristic of the human species, which do not belong to each individual (e.g., that human beings, in general, have visual capacities, does not mean that a blind person could argue to be able to see). How is it possible that we privilege an amount of given skill that is seen as the average of human kind, but we cannot claim to possess a skill or capacity, even if most humans do possess it? By not doing so, we do not exclude any human being that is disabled or in a vegetative state. Whether the capacities are mental or physical, the only thing that matters is what happens on the individual level, not the generic level. “Requiring individuals to be treated in accordance with the norm for their species rather than their own individual characteristics is outrageously unfair” (Hoffman, 1993, p. 9). If we humans, as species, have generic capacities that can be valuated, then we should value the human species in general. To be seen and valued as individuals, however, we need to possess the required capacities as individuals as well.
There is an interesting change of position at play here. Where it is usually non-natural persons that are understood on the basis of their group characteristics (robots, computers, animals, and even corporations), and humans that are defined through individual traits, here the claim is contrary. The outcome is that it is still vague as to why it is morally doubtful to value humans on the basis of their race, sex, gender, nationality, etc., while on the other hand, it is morally justified to value humans based on their species. This involves an essential inconsistency. In relation to non- natural persons, natural persons are described through types, not
individuality; and in relation to other natural persons, natural persons are described through individuality (Cohen & Regan, 2001, pp. 43-59). Potentiality and lost capacities could also be mentioned in connection with the basis of personhood (Holland, 1984, pp. 281-291).
“Humans live lives that will be, or have been, or remain essentially moral (…) what humans retain when disabled, rats never had.” In the case of the comatose or disabled, the class of humanity starts to play a role (Callahan, 1970). The well-known example is that even though
we are all potentially dead, it does not mean that we ought to be treated as such (Johnson, 1991, pp. 92-93). It is hard to see that our value is actual and plays in the “now,” as if the substance of the condition plays only in future or past. Besides, some humans will never be, and never have been, moral agents such (temporarily) comatose people or foetuses.
However, the use of personhood as some inherent factor shared by all human beings begs the question as to what this essence of man/woman is; the UNDHR and ECHR use human dignity as underlying value for humans, and the fundamental rights awarded to people are based on this factor. It is the individual value of one person that counts; or in the words of Kant, one should treat beings as an “end in themselves” (Aalthola, 2008, p. 5). However, the problem with using humanity as the basis for personhood is that it is defined rather than justified. This implies that all others, for example non-natural persons, ought to be excluded (Aalthola, 2008, p. 11). It is, therefore, some sort of quasi-empirical superiority argument: because we are humans, we have a certain essence and, therefore, we should not worry about justifying it. This means that we should just take it for granted. This is important for purposes of this discussion, because this line of thought leads to discrimination, as it implies that, unlike natural persons, all other kinds of persons and animals need to justify their claim to
personhood. One could argue, however, that this is exactly what needs to be done in order to make a distinction between “us” (the natural persons) and “them” (the non-natural persons).
Section 2.1.2 The Subjective Account
Subjective approaches to personhood underline the purist capacities of personhood. Purist capacities reflect the most essential characteristics of humans. This account is called subjective, because it is about the capacities that humans experience from a first person perspective. There are two different forms: one that stresses the multiplicity of capacities, and a second one that focuses on one exclusive capacity. Personhood here, in the subjective account, implies several exclusive human capacities. Gary Francione mentions the following capacities as the basis of personhood:
…minimum intelligence, self-awareness, self-control, a sense of time, a sense of futurity, a sense of the past, the capability of relating to others, concern for others, communication, control of existence, curiosity, change and changeability, balance of rationality and feeling, idiosyncrasy, and neocortical functioning. (Francione, 1993)
DeGrazia claims that personhood entails “certain complex forms of consciousness,” such as “self-awareness over time, rationality, and sociability” (DeGrazia, 2004). Mary Anne Warren
argues that the six key markers of personhood are as follows: (1) sentience, (2) emotionality, (3) reason, (4) capacity to communicate, (5) self-awareness, and (6) moral agency (Warren, 1997, pp. 83-84). John Harris defines personhood as that “persons are beings capable of valuing their own lives” (Harris, 1990, p. 1683). Michael Tooley argues that “an organism can only possess a serious right to life if it possesses the concept of a self as a continuing subject of experiences and other mental states, and believes that it is itself such an entity” (Tooley, 1987, p. 82). Nonetheless, the danger in using these criteria is that personhood is seen as a condition that involves different “symptoms.” Personhood, therefore, turns into an indefinable state, as there is neither transparency nor consistency in the specification of these symptoms. For example, if rationality is an essential quality to be seen as a person, then all children under a certain age will fail to count as persons. Tristan Engelhardt says on this account, “If being a person is to be a responsible agent, a bearer of rights and duties, children are not persons in a strict sense” (Engelhardt, 1975).
The downside of this is that personhood has become a “cluster concept” (DeGrazia, 1997, p. 35) that involves composite capacities, the required levels of which continue to be unclear. This leads to odd questions. If you have 5 out of 10 of the suggested capacities, can you then be described as a “person,” “partial person,” or “roughly a person”? Besides, how many of the qualities do you have to show? Is some self-awareness, consciousness, intentionality,
rationality, etc. enough, and, if so, how much is “some”? The discussion becomes very much detailed, unclear, and unstable. Looking towards a more singular view of personhood, matters such as theoretical reason, autonomy, and moral agency have been highlighted. Possibly the most famous example is Kant, to whom personhood was chiefly comprised of autonomy; and later, Harry Frankfurt, as he based his argument on “free will.” He writes, “What philosophers have lately come to accept as analysis of the concept of a person is not actually analysis of that concept at all.” As Frankfurt would frame, “The criteria for being a person... are designed to capture those attributes which are the subject of our most humane concern with ourselves and the source of what we regard as most important and most problematical in our lives” (Frankfurt, 1971, pp. 5-7). Charles Taylor proposes a significance-based view of personhood. “What is crucial about agents is that things matter to them. We thus cannot simply identify agents by a performance criterion, nor assimilate animals to machines... [likewise] there are matters of significance for human beings which are peculiarly human, and have no analogue with animals” (Taylor, 1985, pp. 98-102). Furthermore, Peter Singer defines a “person” as being a conscious, thinking being, which knows that it is a person (self-awareness) (Singer, 1985, pp. 55-62).Daniel Dennett argues that the capacity to conceptually understand both the intentionality of oneself and another is the primary source of personhood (Dennett, 1976). Another common argument concerns moral agency. For example, Carl Cohen has claimed that in the absence of a capacity for reciprocity, the concept of personhood
cannot be applied (Cohen & Regan, 2001, p. 35). Furthermore, James Griffin’s notion of personhood is related to agency and, therefore, human rights:
What seems to me the best account of human rights is this. It is centred on the notion of agency. We human beings have the capacity to form pictures of what a good life would be and to try to realize these pictures. We value our status as agents especially highly, often more highly even than our happiness. Human rights can then be seen as protections of our agency—what one might call our personhood. (Griffin, 2001, p. 4)
Even though these theories have a certain value, they also increase the complexity of the situation. Capacities could be used in a quantitative way that implies a scale for personhood, dependent upon the level of rationality, autonomy, etc. (VanDeVeer, 1995). Additionally, the criteria used in this approach are based on generalizations. No one is “rational” in all aspects of their life—in fact, every human being fails constantly on this task. Paradoxically, the very thing that we cannot achieve is regarded as the criterion for our value. For moral agency, there is a division between “how” and “what”—we do not have to be moral in order to have moral value (Aalthola, 2008, p. 12). And, if applied consistently, an emphasis on moral agency (and other purist qualities) as a criterion for being a person would leave many human beings without personhood (Dombrowski, 1997).
Evidently, the subjective approach encounters many problems about what the criteria of personhood might actually be. But not all those suggestions are implausible, and it would be easy enough, in principle, to strike out or refine the implausible ones. However, it is noteworthy how little purists feel the need to do this. In practice, purists (or subjectivists) often seem perfectly happy to stick with what, intuitively, seems like crazily over-demanding criteria for personhood, such as Tooley’s (which excludes anyone who does not believe that he/she is a persisting self) or Engelhardt’s (which excludes children). However, the plausibility of the various suggested criteria is not the real issue. The key difficulty for purism lies in the notion that the sort of properties that it hones in on are true criteria of personhood at all, and not various made up interpretation of beings.
Concluding, the subjective account aims to define humans by specific traits. A human is a complex of such traits. It is about the capacities, in contrast with a certain type of essence, which is the core of the ontological account (Aalthola, 2008, p. 7). Intentionality, sentience, awareness, intelligence, and/or consciousness are, for example, often used as defining characteristics of a person (DeGrazia, 2004; Aalthola, 2008). So, one could say that, only if one satisfies the conditions of the list of characteristics, is one seen as fully human, and
therefore, has personhood. One could, therefore, also have moral personhood to a certain degree, for example, if one has eight out of ten traits. This, however, would lead to bizarre outcomes, as the question arises when one is seen as “fully” human or “partially” human. For example, is a comatose person, or someone asleep, also to be counted as truly human? This is the main reason that any account based on such a list is very hard to use in discussions about non-natural personhood in terms of corporations; however, for artificial intelligence and animals, there could be a basis for a claim on this account. This is the subject of the next chapter.
Section 2.1.3 The Objective Account
The objective account approaches personhood in terms of continuity of identity, and the ability to reflect on this. Therefore, personhood does not rest on a static quality or category, but is a project that feeds on activity, or interaction. In this account it is about the second person perspective, which are essentially the relations one has with another. “Personhood” originally was linked to “a mask,” which, in antiquity, was connected with a role in a play (Singer, 1985). This view is important in virtue ethics, which highlights the roles of persons in relation to others. Alasdair MacIntyre argues that personhood results from the capacity to respond to other beings (MacIntyre, 2001). In ethics, this is sometimes mentioned because of the relevance given to moral personhood; only if one is a moral person, can one have a role in relation to others. However, “roles” should be regarded in a wider perspective. Being
someone means that one is “a subject of relations” (Cavalieri, 2001, p. 120). MacIntyre argues that these relations can be “self-relations” (such as self-consciousness), or “hetero-relations” (relations to others), and “Such a reading raises the question whether one may not in the end interpret the notion of ‘person’ in terms of the simple possibility of relating to other beings and, consequently, of the mere capacity for consciousness” (Cavalieri, 2001, pp. 120-121).
Daniel Dennett’s intentionality criterion is important in this sense. Persons constitute each other as persons, and as agents, by treating each other as persons and as agents. But, what is relevant is not the capacity to conceptualize oneself or another as an intentional agent in the first or third person sense, but rather in the second person sense. This means that the personhood of others is experienced in direct interaction; I behave intentionally towards another, who behaves intentionally towards me. The immediate recognition of one’s own and other’s intentionality comes in the form of “feeling the subjectivity of others,” “relating to others” in “face to face interactions.”
Others are not understood as persons because we infer from their behavior that they must have intentions and ideas about other people’s intentions, but because we are capable of engaging with them in specific patterns of inter-subjective interactions that include emotional and expressive behaviors… Persons are capable of representing others as ‘second persons’, i.e., as creatures capable of engaging in inter-subjective encounters. (Gomez, 1998)
This means that individuality exists through interaction. Personhood is built through a relation to the world, and especially to other individuals. “X” is a person if he/she reacts to others, whom he/she understands to be reacting towards him/herself. Finally, this view emphasises the ability to experience, which is also stressed by some authors in animal ethics. Beings that can have affective responses to the outside world and other beings can be called “persons.” Empathy has a significant role in this. Next, also identification relies on the capability to be able to see from the other being’s point of view, and thus, is fortified by interaction. The knife cuts both ways, as interaction is also strengthened by identification. We can better interact when we understand the other being’s point of view. For animals, this view would not make sense; however, corporations could have a claim.
The objective approach does involve important complications. Because of the possibility of simulation, identification would be problematic (Holton & Landon, 1999).
Anthropomorphism also poses a threat, as a falsely “intentional stance” may be ascribed to non-humans such as animals, projecting human experiences onto the animal. Moreover, the model that stresses interaction could be critiqued for the circumstance that plants, animals, and AI could respond suitably to other things/beings without having an intentional mental state, and therefore, could be qualified as subjects of “interaction.” This means that the objective approach may use too wide of criteria. Several “tools” that examine experiences can override the simulation related problem. This has been named an “asymmetry view,”
according to which we adopt different procedures to understand the minds of non-humans and human beings (Jamieson, 2002; Aalthola, 2008, p. 18). We understand non-human minds in a comparable way as human minds, through achieving knowledge of their backdrop, context, etc. These variances have to do with the emotive aspects of behaviour—interaction does not only depend on affective attitudes, these attitudes are also being formed in interaction. Therefore, the capacity to experience helps us to see the difference between men and women, between sharks and pigeons, and between a boat and pineapple trees. What matters in the end, is the capacity to experience and make contact with others via experiences. This is the basic root of personhood. Individuality only exists in relation to others: “I am a person in so far as I and another perceive and treat each other as persons” (Gomez, 1998).
Concluding, the objective account bases personhood on a certain kind of behaviour or actions. Personhood is something that exists and is created through relations and actions in the world. Only by doing so, one creates personhood. It is something that exists and is created through interaction (Aalthola, 2008, p. 12). However, the problem that could arise is, for example,
simulation, as it would be impossible to actually know whether animals or other non-natural
beings really understand their experiences. Therefore, the risk of anthropomorphism is a danger, as we do not know if one is faking their experiences or not. This is something that could only be a problem with animals (Aalthola, 2008, p. 13), but perhaps with AI as well.
AI is a different and difficult topic as these are machines that are built to be the most human-like. When AI becomes more and more anthropocentric over the coming years, they will also be able to commit acts with the outside world. They will even have more human-like traits, such as a consciousness or a certain amount of intelligence, and could possible think on their own. Therefore, they could fall both under the subjective and the objective account.
Section 2.2 Conclusions
In the past century, different accounts have served as a basis for ascribing rights to non-natural persons. The philosophical definition and the legal definition of moral personhood are different. In philosophy, it means one of the three accounts as mentioned earlier, the
ontological, the subjective or objective, , while in law, it means that anyone and everyone is moral once they can claim certain fundamental rights. The legal assumption is a contrario, because natural persons are conceived as moral persons, which have been granted
fundamental rights, and non-natural persons who have been granted fundamental rights are also regarded as moral persons. The definitions from each field of science are therefore different and, especially in law, too strict.
Each account has been used to grant moral personhood status, and each account has valid point in doing so, but they also face critique. That is the reason that none of these accounts are all encompassing or complete. Once an account has been developed, there come up cases by which the particular personhood theory does not fit. I think that we should rule out the
accounts but rather take the good out of each of them and fit them in a larger composure. This is what will be shown in the next chapter.
Chapter 3 A Normative Structure
In this chapter, first will the three accounts of moral personhood be discussed and the
consequences of each account to (non-) natural persons and animals. Second, a fourth account of moral personhood will be introduced: the political-natural account. Third, fundamental rights distinctions will be discussed, as well as a list of fundamental rights constructed for non-natural persons and animals.
Section 3.1 The Three Accounts of Moral Personhood and their Consequences
The first chapter showed that a non-natural person has been attributed moral personhood by the U.S. Supreme Court and there were arguments given pro and contra.
The second chapter introduced three accounts of moral personhood: the ontological, the subjective, and the objective account. Each account has a different perspective and different arguments for/upon declaring something or someone a moral person.
The discussion will now turn to the consequences of each account of moral personhood in terms of natural persons, non-natural persons, and animals.
First, there is the ontological account that bases its view entirely on humanity or human dignity. Humanity means that one belongs to a specific class, which is based on an intrinsic factor that all humans share. This factor cannot be derived one way or another: one either has it, or does not have it. Therefore, it is a black-or-white approach. Only humans and natural persons have this intrinsic factor, and non-natural persons and animals cannot, nor ever will, share this factor. If one bases its approach of moral personhood on the ontological account, as the ECHR has done in its preamble, this means that only natural persons could be granted fundamental rights. The consequence of this account is that non-natural persons, such as corporations and animals, cannot have moral personhood and, therefore, no fundamental rights, simply because they do not belong to the human race.
Second, the subjective account will be discussed. Where the ontological account uses a class, the human race, as its defining feature, this account uses a set of characteristics to define a natural person. For example, a natural person can be defined according to intentionality, sentience, self-awareness, language, consciousness, and many more characteristics, as discussed in chapter 2. The threshold is different for each philosopher.
The consequences are that this account is not suitable for corporations. When reflecting on the “Real and Independent Person” theory, as formulated by the U.S Supreme Court, the court has used the subjective account in order to attribute moral personhood to corporations. This
view leads to the belief that the corporation has a “collective consciousness, intentions, or will” (Ripken, 2000, pp. 790-799). The view of the Court is largely based upon this belief since the Santa Clara-case of 1886, and led to the attribution of a fundamental right in the Citizens United-case and in the Burwell-case.
It is a mistake of the U.S. Supreme Court to base its view and their arguments on this, because how can it possibly be that a corporation has consciousness or intent? Its intent, or consciousness, comes from the natural persons behind the corporation, not from the corporation itself.
However, the subjective is more suitable in the argument of attributing certain fundamental rights to non-natural persons such as AI and animals. Natural persons have a form of
consciousness, intentionality, self-awareness, or language; but, can we say that a corporation has consciousness or is self-aware? It seems hard to argue for such a case, as these traits only seem to be given to natural creatures. For example, animals do possess some form of
consciousness or self-awareness; at least that is what is argued in the animal personhood debate. Animals do have some of these traits and, therefore, an argument could be made in attributing some fundamental rights to them. For future non-natural persons, AI for example, the subjective account could be used to formulate an argument for moral personhood based on consciousness or intent, if these machines are capable of these characteristics.
Last, the objective account of moral personhood will be discussed. The objective account could be characterized as that “personhood does not rest on a static quality or category, but is merely a project that feeds on an activity, which forms a point of continuation for the being” (Aalthola, 2008, p. 12). This account defines a person through the acts it performs and the relations it has with the world.
The consequences of this account are that animals cannot be seen as committing intended acts. Of animals, it could not be said that it has relations with the world around it, or through its acts does it establish these relations.
However, a good case could be made for corporations. Corporations do act through their relations with the world. They are, in general, seen as active contributors to society and our economies. If they do not act, they cannot do business. A similar argument was made in favour of corporate personhood, that there is something such as corporate intent, next to the intent of the individuals behind the corporation. A corporation acts with an own intent. Peter French also highlighted this. (French P. A., 1979). Because of this, the objective account could be a good starting point in arguing for corporate moral personhood.
All three accounts have their arguments pro and contra. When using a personhood account strictly on the ontological version, non-natural persons and animals will not have any rights.
