From Property to Person: The Past, Present, and Future of Legal Personhood

From Property to Person The Past, Present, and Future of Legal Personhood

Tyler Bauer Seminar on Law and Technology Indiana University Robert H. McKinney School of Law

1. Personhood of the Past What makes an individual a “person” has been a popular question for the entire existence of humankind. However, in today’s world, the concept of personhood is often overlooked. After all, in the United States today – and in most of the Western world – “personhood” is inherent in one’s status as a human being. To be a person is not a thing which must be fought for or attained; it is merely a fact of life. For most of history, though, obtaining personhood was not so simple.

The greatest thinkers of human history have long debated what makes a person a person, and there is no clear answer.

Naturalists like Rene Descartes, John Locke, and David Hume believed that, to be a person, one must be conscious and capable of forming plans and acting upon those plans.1 This is the simplest widely accepted concept of personhood, and it formed the basis for whom philosophers have viewed as a person ever since.

Some philosophers, like Charles Taylor, argue that a “person” is an individual who has a certain moral status, a sense of self, a holder of various values and beliefs, and an individual who can make choices.2 Taylor differs from the naturalist view because, in Taylor’s opinion, the naturalist view is far too broad. Taylor believes that the naturalist position – which merely requires consciousness and the ability to plan – could also apply to intelligent animals or machines.

Others argue that Taylor focuses too much on function. Philosopher Francis J. Beckwith argues that personhood is reliant not on function, but on the capacity to function.3 In other words, one must not necessarily hold values or make choices to be a person. Instead, one only needs to have the natural capacity to hold values or make choices. According to Beckwith, one’s nature matters much more than one’s output.

1

Charles Taylor, The Concept of a Person, Philosophical Papers 97, 97-114 (1985) (discussing past ideas on what it means to be a person).

2 Id. at 98-102 (discussing present ideas on what it means to be a person).

3 Francis J. Beckwith, Abortion, Bioethics, and Personhood: A Philosophical Reflection, 4/1 (Spring 2000) The Southern Baptist Journal of Theology 16, 20 (2000) (discussing varying thresholds for personhood).

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Philosopher Nikolas Kompridis focuses less on the individual and more on society, arguing that personal identity – and personhood – are “constituted in and sustained through, our relations with others.”4 Kompridis’ view successfully captures the societal aspect of legal personhood, an aspect which is often overlooked as many prefer to focus on the individual.

While analyzing philosophers’ thoughts on personhood may seem irrelevant, it is not. After all, philosophers shape society, and society then shapes the law. Plus, Locke’s views on government greatly influenced the creation of the United States.

To begin to understand personhood today, as well as what personhood may look like in the future, one must first understand the foundation of legal personhood in the Western world.

Perhaps the earliest ideas of legal personhood in the Western world can be found in Ancient Rome. The Etruscans used the word phersu to refer to a mask.5 The word phersu eventually gave rise to the word persona, which Roman law used to refer to a legal person.6 By persona, or legal person, Roman law was not conferring personhood to all human beings. Instead, Roman law conferred personhood only to free Roman men.

Those not included in the category of persona were women, children, slaves, and nonRomans.7 Roman law clearly distinguished between living people – a category which included all human beings – and civil people – a category which only included legal persons, or personas.

The Roman legal tradition has remained influential even after the fall of the Roman Empire due to the fact that Ancient Rome gave rise to the civil law system of

4

Nikolas Kompridis, Technology’s Challenge to Democracy: What of the Human?, 8 Parrhesia 20, 27 (2009) (discussing the sociological aspects of personhood).

5 Phersu, Oxford Reference, https://www.oxfordreference.com/view/10.1093/oi/authority.20110803100322222.

6 Yasco Horsman & Frans-Willem Korsten, Introduction: Legal Bodies: Corpus/Persona/Communitas, 28 Law & Literature 277, 277 (2016) (discussing the origins of personhood).

7 Id.

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today. Even to this day, much like in Ancient Rome, all persons are human beings, but not all human beings are persons.

Even in common law countries, which are clearly distinct from the civil law system, the impact of Ancient Roman law is evident. After all, the word persona is still used today, though its meaning has changed. While the Roman persona meant “a legal person,” the modern English use of persona refers to one’s personal image or social façade.8 Though the Roman and English definitions of persona differ, they do provide a great example of what personhood can be understood to be. Legal personhood is an element of one’s image. It is a social façade. It is not synonymous with “human being,” and it is something which is more about one’s role in society than the fact that one merely exists.

Though it is often overlooked, Ancient Roman laws also provided a framework to grant a degree of legal personhood to non-human entities. Municipalities, charities, pending estates, public works companies, and some voluntary associations could all seek legal personhood.9 However, these entities were restricted by a general prohibition on doing commercial activities through these entities.

One way to get around the general commercial restriction on the aforementioned Roman entities was to use a legal tactic called negotiatio per servos communes,10 which translates to “traffic through the slaves.” This tactic required a businessman to use his slave as an agent who was tasked with carrying out various business activites.11 While it may seem odd to entrust a non-person – a slave – with one’s business, this practice was a common method used by businessmen to shield themselves from any liability which may be incurred in carrying out their business.12 By having their slaves

8

Persona, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/persona.

Leonardo Davoudi, Christopher McKenna, & Rowena Olegario, The Historical Role of the Corporation in Society, 6(s1) Journal of the British Academy, 17, 22 (2018) (discussing the ancient predecessor to today’s form of corporate personhood).

10 Id. at 22.

11 Id. 12 Id. 9

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carry out their business activities, businessmen ensured that their slaves would be held responsible if anything went wrong in the course of business.13 With respect to Roman societates publicanorum, or public work companies, the Roman state allowed for partes, or shares, of the public works companies to be publicly held and traded.14 Though this was well over two millenia ago, one can easily see the similarities between the publicly traded partes of Roman societates publicanoroum and the publicly traded shares of modern corporations. It remains unclear why Ancient Roman law did not provide for legal personhood for profit-making ventures like today’s corporations.15 The concept of personhood in the early years of the United States was not unlike that of Ancient Rome. However, that does not mean that the American concept of legal personhood perfectly matched the Ancient Roman definition of legal personhood.

Where the American and Ancient Roman definitions are similar is in their restriction of true legal personhood to a particular class. Whereas the status of legal personhood in Ancient Rome was only extended to free Roman men, the status of legal personhood in the early United States was only extended to whites.16 This is not to say that all whites were legal persons, because they were not. Or, at the very least, they were not equally legal persons. The early United States had clearly defined levels of legal personhood. While both white men and women were seen as legal persons (as evidenced by the fact that they did not endure slavery), the white man was clearly more of a legal person than the white woman. This is proven by the

13

Id. Id. 15 Id. at 23.

16 David Thomas Konig, The Long Road to Dred Scott: Personhood and the Rule of Law in the Trial Court Records of St. Louis Slave Freedom Suits, 75 UMKC L. Rev. 53, 53-54 (2006).

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fact that white men, unlike white women, could vote17, own property18, could not be beaten by their spouses19, and much more.

There was even widespread disagreement on what it meant to be “white,” which determined whether one could be a legal person. For example, men from Ireland20, Italy21, and Sicily22 were often viewed as being somewhere between white – which would result in full legal personhood – and black – which result in no legal personhood.

In this awkward middle ground between white and black, many communities which would today be considered white were only seen as partial, or lesser, legal persons.

While the concept of personhood may seem to be set in stone at any one point in time, that is not the case. Personhood has changed a great deal throughout history, though the changes often cannot be noticed by the members of society at any given time. Personhood, like most things, evolves at a glacial pace, which means that change is often only apparent in hindsight.

As indicated earlier, society shapes the law, and the law shapes who is deemed worthy of legal personhood. Society’s advances resulted in advances of the definition of personhood. Eventually, the most common dividing lines – such as sex, race, national origin, religion, and class – fell by the wayside due to societal and legal advances.

In the United States, white women were among the first groups to see their personhood status change for the better.

Even in the beginning, white women did have some personhood, merely due to the fact that they were white. However, white women were by no means on equal footing with white men. To repeat the abuses shared earlier, women were unable to 17

U.S. Const. amend. XIX. N.Y. Laws, 1848, c. 200, p. 307, (commonly known as the New York State Married Women’s Property Act of 1848).

19 Reva B. Siegel, “The Rule of Love”: Wife Beating as Prerogative and Privacy, 105 Yale L.J. 2117, 2118 (1996) (discussing the legal allowance of spousal abuse).

20 Art McDonald, How the Irish became White, https://www.pitt.edu/~hirtle/uujec/white.html.

21 Stanisald Pugliese, Frank Capra Oversimplified the Italian-American Story, https://www.zocalopublicsquare.org/2018/12/06/frank-capra-oversimplified-italian-american-story/ideas/essay/.

22 Brent Staples, How Italians became “White,” The New York Times, https://www.nytimes.com/interactive/2019/10/12/opinion/columbus-day-italian-american-racism.html (discussing the connection between “whiteness” and “personhood” in the United States).

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vote23 or own property24 and were able to be beaten by their spouses with little to no legal ramifications.25 Thankfully, society – and the legal system – eventually progressed enough to at least right these wrongs.

Voting is perhaps the most notable element of legal personhood which women gained over time. The first instance of women gaining the right to vote came in 1869 when legislators from the then-territory of Wyoming passed the Wyoming Suffrage Act of 1869.26 In total, nineteen more states and territories would go on to grant women suffrage – whether it be full suffrage or only suffrage in presidential elections – before the Nineteenth Amendment.27 Of course, the crowning achievement for women’s suffrage came in 1920 when the Nineteenth Amendment was ratified, providing that voting rights would not be dependent upon one’s sex.28 Another area where women sought to become persons equal to men was the area of property ownership. In particular, married women sought to end to common law doctrine of coverture, which prevented married women from owning property, entering into contracts, or earning a salary, among other things.29 Upon marriage, a woman’s legal rights – as well as her identity as anything other than a wife – were subsumed by her husband.30 As a result, married women lost their legal personhood and were made wholly dependent on their husbands.

The common law doctrine of coverture began to fall out of favor in the midnineteenth century. Beginning in Mississippi in 1839, Married Women’s Property Acts

23

U.S. Const. amend. XIX. N.Y. Laws, 1848, c. 200, p. 307, (commonly known as the New York State Married Women’s Property Act of 1848).

25 Sigel, supra at 2118.

26 National Park Service, Wyoming and the 19th Amendment, https://www.nps.gov/articles/wyoming-women-shistory.htm.

27 National Park Service, 19th Amendment by State, https://www.nps.gov/subjects/womenshistory/19thamendment-bystate.htm#:~:text=Several%20states%20and%20territories%20recognized,%2C%20South%20Dakota%2C%20and% 20Oklahoma.

28 U.S. Const. amend. XIX. 29 Harvard Business School, Women and the Law, https://www.library.hbs.edu/hc/wes/collections/women_law/ 30 Id. 24

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were passed and enacted throughout various states.31 While the states’ respective acts would vary, each act shared a common general goal: to guarantee the property rights of married women.

While Mississippi was the first state to pass such an act, it was not the most influential state to do so. In 1845, New York recognized the right of married women to hold and retain all earnings from patents for their own inventions as if they were unmarried.32 Then, in 1848, perhaps the most influential of the Married Women’s Property Acts was passed in New York. New York’s version of the Married Women’s Property Act allowed women to own and control their own property and recognized that married women were, at least when it comes to property, equal to men in terms of being legal persons.33 New York’s Married Women’s Property Act would go on to serve as a model act for other states to implement.34 The prevalence of spousal abuse – and the legal system’s acceptance, if not support, of it – serves as yet another example of a way in which the concept of personhood has evolved to be more inclusive for women.

The personhood of women first began to be recognized with respect to spousal abuse in the Western world in 1641 when the Massachusetts Bay Colony enacted the first law against wife beating. This was the first law of its kind in the Western world.35 Unfortunately, the fact that the law banned wife beating did not mean that the law banned wife beating in the way that we understand it today. Instead, the law merely banned what the law viewed as unnecessary wife beating while allowing the husband to

31

US Legal, Married Women’s Property Acts Law and Legal Definition, https://definitions.uslegal.com/m/marriedwomens-propertyacts/#:~:text=Married%20women's%20property%20acts%20were,to%20sue%20or%20be%20sued.

32 B. Zorina Kahn, Married Women’s Property Laws and Female Commercial Activity: Evidence from United States Patent Records, 56 The Journal of Economic History, 356, 364 (1996) (discussing a New York law allowing married women to hold patents).

33 N.Y. Laws, 1848, c. 200, p. 307, (commonly known as the New York State Married Women’s Property Act of 1848).

34 New York Historical Society, The New York State Married Women’s Property Law, https://www.nyhistory.org/womens-history/education/curriculum/saving-washington/module-2-breaking-therules-women/resources/resource-16-the-new-york-state-married-womens-property-law.

35 Elizabeth Pleck, Criminal Approaches to Family Violence, 11 Crime and Justice 19, 22 (1989) (discussing attitudes towards and laws regarding spousal abuse).

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“punish” the wife by beating her should she displease him.36 Furthermore, even in cases which the law recognized as spousal abuse and not justifiable punishment, the wife was often blamed for bringing the abuse upon herself.37 The next advance in this area in the United States came in 1850 when Tennessee became the first state to enact a law against wife beating.38 Tennessee’s law against wife beating was the first law against wife beating to be implemented since a 1672 Pilgrim statute which outlawed wife beating.39 The state of Georgia soon followed suit with its own law against wife beating in 1857.40 In states without such laws, such as Mississippi and North Carolina, a husband was only punished for beating his wife if his “discipline” – meaning abuse – went beyond a “moderate manner.”41 There was relatively little nationwide interest in enacting laws prohibiting wife beating until 1875, at which point most states began to implement some sort of law prohibiting spousal abuse.42 The concept of personhood in the United States cannot be analyzed without confronting the well-known history of racial inequity in the United States. For all of its lofty ideals, the early United States was more or less on par with Ancient Rome when it came to the legal recognition of human beings as people.

The most notable early restriction on personhood based on race, ethnicity, or national origin is the Naturalization Act of 1790. This act restricted eligibility for citizenship to “any alien, being a free white person.”43 The effect of this act was to limit citizenship – and, by extension, legal personhood – eligibility to white men, and only

36

Id. at 24.

Id. at 26.

38 Id. at 29.

39 Id. 40 Id. at 32.

41 Id. at 32-33.

42 Id. at 35.

43 Shiho Imai, Naturalization Act of 1790, https://encyclopedia.densho.org/Naturalization_Act_of_1790/#:~:text=Alternately%20known%20as%20the%20Na tionality,%2C%20slaves%2C%20and%20most%20women.

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free white men at that. As a result, non-whites – as well as most, if not all, women – were denied various rights and privileges.44 The well-known case of Dred Scott v. Sandford45 perhaps illustrates this reality the best. In this case, the Supreme Court of the United States made it clear that “neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were [at the time of the Declaration of Independence] acknowledged as a part of the people, nor intended to be included in the general words used in [the Declaration of Independence].”46 The Supreme Court went on to describe blacks as “property,”47 provided that to label Dred Scott as anything other than property would result in depriving Dred Scott’s owner of his lawful property,48 and provided that Dred Scott – and all slaves or descendants of slaves – lacked standing due to the fact only persons – and not property – can bring a lawsuit.49 Thankfully, the legal system would eventually progress beyond viewing human beings as property and instead confer at least limited personhood to all human beings.

The first step towards conferring some degree of personhood to all human beings came with the ratification of the Thirteenth Amendment.50 The Thirteenth Amendment, ratified in 1865, prohibited slavery or indentured servitude (with the notable exception of slavery or indentured servitude as a punishment for a crime).51 This effectively ended the possibility of human beings like Dred Scott being viewed as property.

The next major step forward came in 1868 with the ratification of the Fourteenth Amendment.52 The effect of this amendment, at least for purposes of personhood, was

44

Id. Dred Scott v. Sandford, 60 US 393 (1857).

46 Dred Scott at 407.

47 Id. at 410.

48 Id. at 450.

49 Id. at 427.

50 U.S. Const. amend. XIII. 51 Id. 52 U.S. Const. amend. XIV. 45

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evident in two ways. First, this amendment granted citizenship to all persons naturalized or born in the United States53, which greatly expanded citizenship. Second, this amendment granted equal protection of the law to all persons, citizens, and non-citizens alike.54 The Fifteenth Amendment, which was ratified in 1870, granted all citizens the right to vote.55 More specifically, and importantly for the purposes of race-based personhood, is the fact that the Fifteenth Amendment provided that the right to vote “shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”56 Later on in 1870, Congress passed the Naturalization Act of 1870. This act is noteworthy for providing the extension of naturalization rights to African immigrants and their descendants.57 Prior to the Naturalization Act of 1870, naturalization rights were unavailable to non-whites. By extending these rights to African immigrants and their descendants, African immigrants and their descendants got closer to achieving an equal level of personhood with their white counterparts. Furthermore, while the Naturalization Act of 1870 was a monumental step forward, it is worth noting that Asian immigrants and their descendants still struggled for naturalization.58 Another significant step towards equality of personhood despite racial differences came with the Civil Rights Act of 1964. Prior to this act, equal protection of the law only existed under the aforementioned Fourteenth Amendment, and that amendment – or, to be more specific, the protections it afforded – was imperfect.59

53

Id. Id. 55 U.S. Const. amend. XV. 56 Id. 57 Immigration History, The Naturalization Act of 1870, https://immigrationhistory.org/item/naturalization-act-of1870/.

58 Imai, supra.

59 Office of the Assistant Secretary for Administration and Management, Legal Highlight: The Civil Rights Act of 1964, https://www.dol.gov/agencies/oasam/civil-rights-center/statutes/civil-rights-act-of1964#:~:text=The%20Civil%20Rights%20Act%20of%201964%20prohibits%20discrimination%20on%20the,hiring%2 C%20promoting%2C%20and%20firing.

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To overcome the imperfections of the Fourteenth Amendment, Congress passed the Civil Rights Act of 1964. This act had a number of important effects, including strengthening voting rights, prohibiting discrimination for federally funded programs and in public accommodations, prohibiting discriminatory hiring and firing in the workplace, and more.60 Additionally, it is worth noting that the Civil Rights Act of 1964 addressed other areas of discrimination, like religion and sex.61 However, it is most well-known for its addressing of racial discrimination.

Another notable group to gain personhood over time was not a group of people.

Instead, it was a group of organizations, specifically businesses.

From the founding of the United States through the Civil War, corporations – and all business organizations – were understood to have the right to contract.62 While this may seem obvious today, to many people at the time, the fact that a corporation may enter into a contract could seem confusing because only a legal person may enter into a contract.

The rationale for recognizing corporations as quasi-persons was fairly simple.

While the corporation is no doubt a non-person in that it is not a human being, it was seen to have a limited sense of personhood under the law – in the ability to make contracts – because a corporation is merely an aggregation of its shareholders, all of whom have personhood.63 As notable lawyer John Norton Pomeroy would argue, corporations must be viewed as legal persons because to deny rights to a corporation would mean denying rights to the corporation’s shareholders, officers, and more.64 While Pomeroy’s arguments were influential, they were not necessarily wellreceived by the public. After all, many had trouble wrapping their minds around elevating corporations – non-living, artificial creations – to a level of personhood which 60

Id. Id. 62 National Public Radio, When Did Companies become People? Excavating the Legal Evolution, https://www.npr.org/transcripts/335288388.

63 David Millon, Theories of the Corporation, 1990 Duke Law Journal 201, 203 (1990) (discussing corporate personhood).

64 Morton J. Horwitz, Santa Clara Revisited: The Development of Corporate Theory, 173, 177 (1985) (discussing the rationale for corporate personhood).

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is equal with human beings. However, Pomeroy was not arguing that corporations are equal to people. Instead, he was arguing that, since corporations are run by people and the people running the corporations have rights, the corporation must, as a result, have rights.65 However, for a long period of time, the only right a corporation had was the right to contract.

In the post-bellum era, many railroad companies sought protection under the Fourteenth Amendment to aid their development of railroads across the country. 66 The main issue faced by railroad companies at the time was unequal treatment under state laws dealing with taxes, though self-incrimination and searches and seizures were also important issues.67 Naturally, these issues – and the wealth and power inherent in the railroad industry – gave rise to lawsuits.

The Supreme Court of the United States first addressed the topic that we now know as corporate personhood in the 1886 case of Santa Clara County v. Southern Pacific Railroad Company.68 In the Santa Clara County case, Chief Justice Morrison Waite wrote, “The court does not wish to hear argument on the question whether the provision in the Fourteenth 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 opinion that it does.”69 Previously, corporations were not thought to be deserving of the equal protection of the laws since, to most people, corporations were not persons under the law.

While the Santa Clara County case would eventually be remembered as the first case in which the Supreme Court recognized corporate personhood, the impact of Chief Justice Waite’s statement was not readily apparent. After all, Chief Justice Waite’s statement was included in a mere headnote and went nowhere near establishing a general rule for all corporations. As such, corporations were far from securing personhood, but they were certainly headed towards doing so.

65

Id. at 178.

National Public Radio, supra.

67 National Public Radio, supra.

68 Santa Clara County v. Southern Pacific R.R., 118 U.S. 394 (1886).

69 Id. at 394.

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In the wake of the Santa Clara County case, most of the legal protections which corporations were entitled to were directly related to the corporation’s business. To return to the example of the railroad companies following the Civil War, corporations were largely focused on being able to carry out their business functions, not with other rights which legal, human persons enjoyed. Eventually, though, that changed, and corporations began to seek more than just the right to do business on an even playing field.

One of the earlier notable cases to expand the rights enjoyed by corporations is the case of First National Bank of Boston v. Bellotti. In the Bellotti case, the appellants – national banking associations and corporations – sought to spend their money to influence a ballot initiative in Massachusetts.70 However, a Massachusetts law made it a crime for the appellants – and other specified corporations – to spend money to influence the outcome of a ballot initiative if that initiative does not “materially affect” the corporation’s business interests.71 In a 5-4 decision, the Supreme Court found the Massachusetts statute prohibiting corporations from spending money on ballot initiatives unrelated to their business interests unconstitutional.72 In reaching this decision, the Supreme Court indicated that neither the First nor Fourteenth Amendments support the statute’s attempt to take speech which would otherwise be protected by the First Amendment and remove that protection merely because the speaker is a corporation.73 Perhaps the most famous – or infamous, depending on one’s views – Supreme Court case which dealt with corporations’ rights was the 2010 case of Citizens United v.

Federal Election Commission.74 There were a number of issues in this case, but for the purposes of corporate personhood, the most relevant issue was whether the federal government may restrict corporations or their unions from using their general treasury funds to make independent expenditures for speech defined as an “electioneering

70

First Nat Bank of Boston v Bellotti, 435 U.S. 765, 765 (1978).

Id. 72 Id. 73 Id. at 784.

74 Citizens United v. Federal Elections Com’n, 558 U.S. 310 (2010).

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communication” or for speech expressly advocating the election or defeat of a candidate.”75 In another 5-4 decision, the Supreme Court found in favor of Citizens United and ruled, inter alia, that “the Government may not suppress political speech on the basis of the speaker’s corporate identity.”76 As a result, there is no basis for allowing the government to limit the type of corporate independent expenditure Citizens United sought to make.77 The next – and the most recent – landmark corporate personhood case came in the form of the 2014 case of Burwell v. Hobby Lobby Stores, Inc.78 In this case, Hobby Lobby sought to use the Religious Freedom Restoration Act of 1993 (RFRA) to avoid having to provide “contraceptive drugs or devices” that operate after the point of conception.79 Hobby Lobby’s owners – a Christian family – sought to avoid having to provide contraceptive drugs or devices on the grounds that it violated their sincerely held religious beliefs.80 In yet another 5-4 decision, the Supreme Court held that requiring Hobby Lobby to provide contraceptive drugs or devices – at a cost of well over $400 million per year – would impose a substantial burden on the exercise of religion.81 While this holding did grant corporations greater First Amendment protections, it is worth noting that the Supreme Court was clear that the contraceptive mandate was only violative of RFRA when applied to closely held corporations.82 In other words, this case did not extend religious protections to all corporations.

The existence of corporate personhood – let alone the vast expansion of it over time – presents an interesting opportunity for personhood to be conferred to other nonliving, non-human entities.

75

Id. at 318-19.

Id. at 365.

77 Id. 78 Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014).

79 Id. at 682.

80 Id. at 702-3.

81 Id. at 726-28.

82 Id. at 736.

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2. Personhood of the Present Thanks to the civil rights advances of the past, personhood today is often overlooked. While that may seem like a bad thing because an important topic is being overlooked, one could also argue that it is a good thing because it is a sign that many inequalities have been addressed and people are now more equal than ever. Ultimately, though, the fact that the concept of personhood has become an afterthought does leave some important questions unanswered.

Regardless of the unanswered questions, though, personhood in the Western world can now be defined more easily than ever before. A “person” can be defined as “any entity capable of having obligations and rights”83 or “any being capable of having powers and duties.”84 Few, if any, modern definitions include distinctions on status, require the ability to think and have feelings, or place other restrictions on personhood. Instead, the focus is two-pronged. A person must be able to do things – in other words, have rights or powers – and have to do things – or, in other words, have obligations or duties.

The modern understanding of personhood – which requires only having rights and obligations – has resulted in two main classes of people. This distinction should not be understood to mean that one class is necessarily better or worse than the other, though. This distinction is only intended to show that there are different types of persons.

The first class consists of human beings.85 This is the old-fashioned, tried-andtrue idea of what the average human would likely answer when asked to define what a person is. One would be hard-pressed to find much, if any, disagreement with the common belief that all humans are legal persons.

83

Elvia Arcelia Quintana Adriano, The Natural Person, Legal Entity or Judicial Person and Judicial Personality, 4 Penn State Journal of Law & International Affairs 363, 369 (2015) (discussing how to define “personhood”).

84 Id. at 370.

85 Id. at 366.

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The second class of persons consists of artificial persons.86 By “artificial persons,” one is often referring to legal entities like corporations, collectives, and the like. This class of persons has become more widely accepted over time, but it is worth pointing out that many remain hesitant to classify artificial persons – such as corporations – as persons. This hesitancy is understandable because, after all, the common – meaning non-legal – use of “person” is generally interchangeable with “human being.” To call an inanimate, intangible piece of legal fiction a person is understandably odd to those who do not frequently encounter the concept of corporate personhood.

Though the topic of environmental personhood is not a focus of this paper and remains quite rare, it is worth noting that a third class of persons – environmental bodies – appears to be on the rise. For example, the Lake Erie Ecosystem was granted the right “to exist, flourish, and naturally evolve” in the Lake Erie Bill of Rights.87 These rights were short-lived, though, as the Lake Erie Bill of Rights was eventually invalidated in a subsequent court case.88 3. Personhood of the Future: Problems While the definition of legal personhood has no doubt evolved a great deal throughout history, one may also whether personhood can – and should – evolve further. Furthermore, if personhood can and should evolve further, how should it evolve? Where should the outer bounds of personhood lie?

The first question – whether personhood can evolve – is one which can be answered easily. The answer is a resounding yes. The entire history of personhood is one of evolution.

There was once a time in Ancient Rome when the Romans would have no doubt thought that labelling women, children, slaves, or non-Romans as “persons” would be ridiculous. And yet, personhood evolved.

86

Id. Toledo Mun. Code, ch. XVII, § 253 (known as the “Lake Erie Bill of Rights” or “LEBOR”).

88 Drewes Farms Partnership v. City of Toledo, 441 F.Supp.3d 551, 557-8 (N.D. Ohio 2020).

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Likewise, there was once a time when labelling a descendant of a slave a “person” would have been unthinkable in the United States. The majority opinion in the Dred Scott case did not even consider the possibility that Dred Scott might be a person.

Yet, within thirteen years of that case, a series of constitutional amendments89 left no doubt that Dred Scott was indeed a person, not property.

While it is clearly established that personhood can evolve, it is far less clear – at least to the general public – that personhood should evolve.

After all, most of the historical debate regarding the evolution of personhood was fueled by a desire to correct historical wrongs and bring an end to various forms of discrimination. The granting of legal personhood to women and minorities, for example, was a result of society’s desire to make all human beings equal.

While problems relating to inequality are no doubt still present in society, there is no denying that – as a matter of law – all human beings are equal in terms of personhood. No one human is more or less of a person than any other human, so many people would question why the definition of personhood would need to evolve even further than it already has.

The reason why personhood should continue to evolve beyond its current definition is the number of technological advances which have occurred, are occurring, and will occur in the future. The modern concept of personhood – which applies to any being which has rights and duties – is good, but it is quickly becoming outdated. Put simply, technological advances – and society’s response to those technological advances – demands that the definition of personhood be expanded.

For example, consider one of the cutting-edge technological advances which is quickly gaining popularity: self-driving cars. There are a number of companies – such as Tesla, AutoX, Mobileye, Waymo, and many more – vying to be the industry leader in self-driving vehicles.90 And these self-driving vehicles are not without their faults.

89

U.S. Const. amend. XIII, U.S. Const. amend. XIV, and U.S. Const. amend. XV. Timothy B. Lee, Who will win the self-driving race? Here are eight possibilities,” Ars Technica, https://arstechnica.com/cars/2021/04/who-will-win-the-self-driving-race-here-are-8-possibilities/.

90

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In the midst of the writing of this paper, a self-driving Tesla crashed, killing its two passengers.91 Who should be liable for a self-driving vehicle which crashes? Should it be the vehicle, which – being self-driving – was piloting itself? Should Tesla, as the designer and producer of the car, be held liable? Should the passengers, as owners of the vehicle, be held liable? There is no easy answer to this question.

The issue of self-driving vehicles getting into accidents is merely the tip of the iceberg in terms of legal issues being raised by technological advances. Consider the example of the Smart Tissue Autonomous Robot (STAR), a supervised autonomous robot which can perform soft tissue surgery as well as, if not better than, human surgeons.92 If STAR is performing surgery and commits what would be malpractice if it were done by a human surgeon, can STAR be sued? Should the creator and designer of STAR be sued? Or perhaps it would make more sense for the wronged patient to sue whoever programmed STAR. Again, much like with a car crash involving an autonomous vehicle, there is no clear answer to who should be held liable for STAR’s potential malpractice.

Seeing as artificial intelligence nearly identical to human intelligence is expected to be achieved by 207093, there will be a number of similar issues in the future. The crashing autonomous vehicles and robotic surgeons committing malpractice will no longer sound like science-fiction scripts and begin to sound like everyday life.

The rise of technological advances is especially visible in the form of artificial intelligence, the increased reliance on robots, and the ever-increasing popularity of avatars. There are a number of reasons why artificial intelligence, robots, and avatars are all deserving of some form of personhood.

This future need has caught the eye of some legislators in Europe. In 2017, a European Parliament report identified the necessity of addressing the robot liability issue. To solve – or at least mitigate – this issue, the report recommended “creating a 91

Bryan Pietsch, 2 Killed in Driverless Tesla Car Crash, The New York Times, https://www.nytimes.com/2021/04/18/business/tesla-fatal-crash-texas.html.

92 Rafael Dean Brown, Property ownership and the legal personhood of artificial intelligence,” 30 Information & Communications Technology Law, 208, 209 (2021).

93 Id. at 209.

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specific legal status for robots” to make “the most sophisticated autonomous robots … ‘electronic persons.’”94 Even the biggest lover of technology would have to admit that identifying artificial intelligence, robots, and avatars as legal persons would be unpopular. After all, corporate personhood is still unpopular after over a century of various forms of existence. One would think that, if corporate personhood has yet to gain full acceptance, personhood for artificial intelligence, robots, and avatars would also struggle to gain acceptance. That does not mean that personhood for artificial intelligence, robots, and avatars should not be sought, though.

After all, there was once a time when personhood for women and personhood for minorities were both unpopular and unacceptable ideas. This is not to say that denying personhood to a robot is as bad as denying personhood to a minority, because it is not.

This is merely to say that popularity and acceptance are not necessarily indicators of what could or should be possible or what the future definition of personhood may look like. Future legal definitions and standards often look a bit odd to those who come before them, and the future legal definition of and standard for personhood will likely be no exception.

Another reason for hesitancy in extending the definition of personhood to include things like artificial intelligence, robots, and avatars is the fact that it remains unclear what rights and duties they may have if granted personhood. After all, if society is unsure as to whether artificial intelligence, robots, and avatars should be persons, then society is likely to be even more unsure as to what rights and duties they should enjoy and be subject to.

4. Personhood of the Future: Answers To begin to understand how personhood could be applied to artificial intelligence, robots, and avatars, the terms themselves must be defined and understood.

94

Report with Recommendations to the Commission on Civil Law Rules on Robotics, European Parliament (2015), https://www.europarl.europa.eu/doceo/document/A-8-2017-0005_EN.html?redirect at 59(f).

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Artificial intelligence can be most easily defined as a machine which acts similarly to a human, though the specifics of what it means to act like a human are by no means agreed upon.95 One definition describes artificial intelligence as “a suite of autonomous self-learning and adaptively predictive technologies that enhance the ability to perform tasks.”96 In other words, artificial intelligence must be autonomous, learn, adapt, and predict, all with the goal of becoming better at performing a task.

Artificial intelligence can be either “weak” or “strong” artificial intelligence. Weak artificial intelligence is artificial intelligence which “relies on humans to engage tasks while enhancing performance time and accuracy.”97 Strong artificial intelligence, on the other hand, would have intentionality and consciousness and would be almost indistinguishable from an ordinary human.98 At present, there is no example of strong artificial intelligence,99 but strong artificial intelligence could be achieved within fifty years.100 Furthermore, artificial intelligence can be categorized into the following four types: systems that think like humans, systems that act like humans, systems that think rationally, and systems that act rationally.101 Lastly, it is worth noting that no legal definition of artificial intelligence exists.102 The definitions and explanations presented in this paper are definitions and explanations presented by professionals in the technology sphere. The eventual legal definition of artificial intelligence will likely be determined by the statutes, regulations, and cases which first address the legal personhood of artificial intelligence.

Robots, per the Robotic Industries Association, are “reprogrammable, multifunctional manipulators designed to move material, parts, tools or specialized devices through variable programmed motions for the performance of a variety of 95

Brown, supra at 211-12.

Id. at 212.

97 Brown, supra at 211.

98 Id. 99 Id. 100 Id. at 209.

101 Id. at 212.

102 Id. at 212.

96

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tasks."103 There has been some movement towards a new definition which recognizes all machines with three or more degrees of freedom of movement as robots, but thus far, the prior definition is the most common one.104 While the term “robot” might conjure up images of human-like machines, the reality is that the vast majority of robots are nowhere near as human-like as science fiction movies would lead one to believe. Most robots in today’s world are used in production processes, with the most popular example being the robots which “work” on assembly lines.105 Recently, there has been an increase in robots used in laboratories, warehouses, research settings, hospitals, and more.106 “Avatar” is another term which is still relatively new to the legal community. In common parlance, “avatar” generally refers to a “character that is a visual representation of an end user,”107 “a user’s digital representation in a … virtual world,”108 or the “discrete persona a user may take on when interacting with a specific computer environment.”109 Ultimately, regardless of which definition one prefers, the general sentiment is the same. An avatar is a persona – whether it be representative of a real human being or a work of fiction – which exists in a virtual environment.

Avatars have been gaining in popularity as things like virtual reality become more popular. For example, there has been an increase in “digisexuals,” or people who are in romantic relationships with avatars, in recent years.110 The digisexual movement is particularly popular in Japan, where many men have married avatars and holograms.111 While these marriages are not legally recognized, the fact that they are quite popular 103

US Legal, Robotics Law and Legal Definition, https://definitions.uslegal.com/r/robotics/#:~:text=The%20Robotic%20Industries%20Association%20(RIA,however %2C%20the%20industry's%20current%20working.

104 US Legal, Robotics Law and Legal Definition, supra.

105 Id. 106 Id. 107 Avatar, Law Insider, https://www.lawinsider.com/dictionary/avatar#:~:text=Avatar%20means%20a%20character%20that,Sample%202.

108 Avatar, IT Law Wiki, https://itlaw.wikia.org/wiki/Avatar.

109 Id. 110 Emiko Jozuka, Beyond dimensions: The man who married a hologram, CNN, https://www.cnn.com/2018/12/28/health/rise-of-digisexuals-intl.

111 Alvin Kosasi, Japanese men marry anime characters in a VR wedding, Asia One, https://www.asiaone.com/asia/japanese-men-marry-anime-characters-vr-wedding.

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suggests that, sooner or later, society – and the legal system – will have to come to terms with – and potentially even recognize – these relationships.

A future definition of personhood must eventually be reached, and for the aforementioned reasons, that definition must – in some way – incorporate artificial intelligence, robots, and avatars.

Thankfully, there is no need to reinvent the wheel. The existing definition of personhood – where a “person” can be defined as “any entity capable of having obligations and rights”112 or “any being capable of having powers and duties”113 – could sufficiently accommodate artificial intelligence, robots, and avatars. This is because artificial intelligence, robots, and avatars are, broadly speaking, no different than corporations. They are all are unliving, owned by human beings, and controlled by human beings. Furthermore, Pomeroy’s argument – that to deny someone’s property (a corporation) certain rights means denying the property owner those same rights – can just as easily be applied to artificial intelligence, robots, and avatars.114 The basic implementation of personhood for, say, robots would not be that dissimilar to the current implementation of corporate personhood. For example, the government confiscating the work product of a robot is fundamentally no different than the government confiscating the work product of a corporation. In either case, the property owned by a human being – whether it be a robot or a corporation – is subject to government interference, and the owner of said property is subject to government interference as well. Similarly, just as a corporation – or, by extension, a corporation’s owners – may be held liable for its wrongdoing, a robot – or, by extension, a robot’s owners – may be held liable for a robot’s wrongdoing.

Ultimately, society and the legal community need to address the following question: If one can create or own a corporation which is deserving of personhood, why

112

Adriano, supra at 369.

Id. at 370.

114 Horwitz, supra at 177-8.

113

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is one unable to create or own artificial intelligence, a robot, or an avatar which is deserving of personhood. After all, they are all non-living creations of humans.

Ideally, the definition of “personhood” would be “the legal status and recognition of an entity – living or non-living – which enjoys rights and is subject to duties.” This definition – which is not all that different from the current definition – would retain the meaning of personhood as it is understood today while also making room for artificial intelligence, robots, and avatars.

While applying legal personhood to artificial intelligence, robots, and avatars would no doubt be a groundbreaking change, it would not be the end of the discussion.

The personhood applied to technology, if it is applied, should be further defined to specifically enumerate which rights and duties artificial intelligence, robots, and avatars should enjoy and be subject to.

It is difficult to determine which rights and duties future technology should enjoy and be subject to because, as far as anyone can tell, technology will continue to improve and become even smarter and more efficient. As a result, it will be difficult, if not impossible, to create a framework which will be applicable to all future technology.

There will no doubt be revisions to be made in the future.

As many scholars have pointed out, there is a strong connection between the ability to own property and being identified as a legal person.115 Property ownership essentially functions as a litmus test for whether a being is a person. A person – whether it be a human being or a corporation – may own property. A non-person – such as an animal or, at least for the time being, a machine – may not own property.

In order to be a person, one must be able to own property, and in order to own property, one must be a person. One cannot exist without the other. As a result, legal personhood for artificial intelligence, robots, and avatars must be rooted in property ownership. Now that the foundation of legal personhood is established, the particulars

115

Brown, supra at 222.

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of legal personhood applied to artificial intelligence, robots, and avatars can now be analyzed.

The fact that it is impossible to predict the future being put aside, the highest form of new “person” will likely be what is referred to as “strong AI.”116 Strong AI can be distinguished from – and arguably be placed above – weak AI, robots, and avatars due to the fact that strong AI will have “intentionality and consciousness.”117 The fact that strong AI will effectively have its own will118 suggests that it should enjoy more rights and obligations than weak AI, which will remain dependent upon humans’ wills.

Provided strong AI becomes strong enough, there may even be an argument to be made for strong AI to achieve near human being levels of personhood. However, this potential issue should be set aside for the time being.

First and foremost, strong AI should certainly have the right to own property, as this right will be necessary to achieve personhood. Strong AI would need to have the “bundle of rights” associated with property ownership, such as the right to enter into contracts to buy and sell property, the right to be secure in the ownership of property, protection from the government taking the property, and so on. Strong AI should also be afforded equal protection of the law, as this is another necessary right to be included in legal personhood.

Strong AI should similarly be able to use its property to achieve its owner’s goals, similar to how a corporation’s funds may be used to achieve the goals of its owners.

The property owned by strong AI should be able to be used to take a political stance (such as the corporations in First National Bank of Boston v. Bellotti119 and Citizens United v. Federal Election Commission120), achieve a religious end (such as the corporation in Burwell v. Hobby Lobby121), or achieve any other lawful end which the property of corporations may be used to achieve.

116

Id. at 211.

Id. 118 Id. 119 First Nat Bank of Boston v Bellotti, 435 U.S. 765(1978).

120 Citizens United v. Federal Elections Com’n, 558 U.S. 310 (2010).

121 Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014).

117

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Beyond the basic rights inherent in personhood, which are seen in the rights enjoyed by corporations, the rights which strong AI should have are unclear because strong AI is expected to be extremely human-like, certainly more so than any corporation or modern-day machine. There is an argument to be made that strong AI should enjoy more rights than corporations because, unlike corporations, strong AI does not require human input or management.122 While corporations need human beings to act on the corporations’ behalf, strong AI – having a will – is expected to be able to act on its own, with its own thoughts and feelings. Granted, the will of any example of strong AI will be at least somewhat subject to the human who created the strong AI, but the strong AI will nevertheless be capable of thinking and acting on its own.

Seeing as strong AI will have its own will, one could argue that strong AI is deserving of rights generally associated with human beings. Strong AI may be deserving of freedom of thought, freedom of speech, freedom of religion, and so on and so forth. On that note, strong AI may be able to be free from forced labor, and therefore may not be legally required to work for its creator or owner. After all, if strong AI is recognized as a class of legal person and has its own will, one would have trouble arguing that legal persons should be forced to work against their wills. As a result, strong AI would eventually have to be emancipated.

The expansion of the rights of non-human legal persons beyond those rights held by corporations is no doubt problematic. After all, if respecting the free will of strong AI is taken to its logical conclusion, one would have to concede that, at a certain point, strong AI would have to be emancipated. It would be legally and morally wrong for a human being to continue owning a strong AI person if the strong AI person did not want to be owned any longer. So, there are a number of problems in granting strong AI the rights normally reserved for human beings.

It is worth noting that scholars have already confronted the legal and moral issues inherent in using human-like technology – like strong AI is expected to be – in

122

Brown, supra at 220.

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ways that the human-like technology would likely object to.123 This has been particularly relevant with respect to today’s “sex robots,”124 and this issue would only become more prominent as technology improves and humanity wishes to use strong AI in ways which strong AI objects to.

To avoid the argument in favor of emancipating strong AI, it would be wise to limit the rights of strong AI to be more or less equal with the rights enjoyed by modern corporations. Of course, that argument may be inevitable, so it would not be wise to avoid the issue altogether. Perhaps the best course of action would be to limit the rights of strong AI initially and reconsider the arguments in favor of emancipating strong AI later on.

Alternatively, the legal system could impose a system similar to that of the parent-child relationship. The similarities between children and strong AI would be numerous. Both are human creations, albeit in different ways; both have their own wills but are heavily influenced by their creators; both are certainly deserving of some rights but not necessarily of all rights; and so on. Perhaps, like the parent-child relationship, the owner of strong AI could maintain some control over the strong AI for a predetermined period of time. At the end of this period of time, the strong AI could effectively become its own person and gain control over its life, much like a child gains control over his or her life when he or she reaches the legally determined age of adulthood. This framework would provide a commonly known middle ground which recognizes the independence of the strong AI while protecting the property interests of the owner of the strong AI. If strong AI is to be emancipated, then other, far trickier rights must be analyzed.

For example, should strong AI have the right to file a lawsuit on its own behalf? Should strong AI be able to vote, or even run for office? May strong AI get married? Just how human is the legal system willing to allow strong AI to be? All of these questions will

123

Kathleen Richardson, Sex Robot Matters: Slavery, the Prostituted, and the Rights of Machines, 35 IEEE Technology and Society Magazine 46 (2016).

124 Id.

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only be answerable when strong AI becomes commonplace, but for now, it is safe to say that the likelihood of strong AI gaining any of these rights is near zero.

Furthermore, these questions may be better answered by experts in industries more closely associated with strong AI. Lawyers, while intelligent, know relatively little about artificial intelligence and the like compared to engineers, scientists, and others, and the best the legal community can do is try to apply existing frameworks to these emerging technologies. The legal system will likely not be well-equipped to answer these questions, and any future legislation or court rulings will likely have to be outsourced to experts in artificial intelligence.

Ultimately, the exact framework to be applied to strong AI will remain unclear and debatable until strong AI becomes a reality. Only at that point will it become clear which rights should be granted to strong AI. However, at this point in time, it is fair to say that the rights of strong AI should at least be equal to those of corporations, and perhaps even greater than that.

Before identifying which duties strong AI should be subject to, it is worth noting that there are two popular arguments against subjecting strong AI – or any artificial intelligence – to duties.

The first argument is based on “the lack of intentionality, desires, and interests” inherent in artificial intelligence.125 This argument is quite weak with respect to strong AI, though, because strong AI will have intentionality, desires, and interests. This issue should be – and will be – revisited with respect to weak AI. The second argument is based on the difficult of enforcing a punishment or liability against artificial intelligence.126 In other words, how can society imprison artificial intelligence or force artificial intelligence to pay a victim of the artificial intelligence’s negligence?

There are, broadly speaking, two approaches to enforcing a punishment or liability against artificial intelligence. These approaches depend on whether strong AI is 125 126

Brown, supra at 221.

Id.

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recognized as property – like a corporation – or as an independent legal person, akin to a human being.

If strong AI is viewed as property, similar to a corporation, then the owner of the strong AI can be held responsible – and ultimately punished – for the strong AI’s actions. This is not unlike holding corporate executives responsible for the crimes or misdeeds committed by their corporations. If one’s strong AI commits a crime, then the owner of the strong AI can be prosecuted. Similarly, if one’s strong AI commits a tort, for example, the owner can be sued for damages.

If strong AI is viewed as an independent legal person, similar to that of a human being, things become somewhat less clear. However, the importance of property ownership as an aspect of personhood could become very useful in this scenario.127 At the very least, property ownership will allow strong AI to be deprived of something if strong AI needs to be punished or held civilly liable. There will at least be something which strong AI can be deprived of if strong AI must be punished.

It will be far more difficult to, say, imprison strong AI because strong AI can manifest itself in a number of ways. Strong AI could be present in a robot, a cellphone, or any number of examples. The easiest way to effectively “imprison” artificial intelligence would likely be to imprison the medium in which the artificial intelligence is present, such as a robot. It may be equally as effective – and perhaps more efficient – to simply remove a portion of the medium – such as the robot’s power source – and effectively “turn off” the artificial intelligence for a period of time.

Regardless of how, if at all, one believes punishing or holding artificial intelligence liable could occur in the future, it is entirely likely that our present understanding of punishment and liability will be replaced by a completely new understanding of punishment and liability when strong AI becomes commonplace. This will likely be an issue that needs revisited when society and the legal community have a greater understanding of what strong AI is like and what role strong AI will play in our everyday lives.

127

Id. at 222.

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As for the duties which strong AI should be subject to, the answer again depends on how strong AI is viewed.

If strong AI is viewed as more like property than a human being, then the duties imposed on strong AI will be similar to those imposed on today’s corporations.

For example, strong AI should be subject to taxation, much like corporations are.

Any income derived through strong AI will have to be taxed. Whether this taxation occurs at today’s corporate tax rate or at a new rate created specifically for strong AI will remain to be seen.

Strong AI should also be subject to any and all relevant laws and regulations, both as a general matter – such as laws against violent crimes – and specific to the strong AI’s function – such as certain environmental regulations if the strong AI is used in an industrial setting.

If strong AI is viewed more similarly to human beings, then many of the same duties imposed on humans can be imposed on strong AI. In addition to the aforementioned basic duties imposed on all legal persons nowadays, strong AI can also have the duty to pay taxes on its own income and property.

Strong AI may also have the duty to serve on jury duty, register for the Selective Service System, and participate in the democratic process.

Of course, the full extent of the duties imposed on strong AI will be somewhat dependent on the rights granted to strong AI. If strong AI is granted the right to vote and run for office, for example, then one would expect that equally important duties – such as the duty to uphold the constitution and a duty to register for the Selective Service System – would be imposed. Likewise, if strong AI is granted the right to bring a lawsuit on its own behalf, it would be understandable to also require strong AI to serve on jury duty if called.

Regardless of how society and the law wish to view strong AI, the basic framework for doing so already exists. If we are to view strong AI as property, then the existing legal duties imposed on corporations can be applied to strong AI. If, on the

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other hand, we are to view strong AI as a legal person more closely resembling a human being, then the existing duties imposed on humans can be applied to strong AI. However, in all likelihood, strong AI will end up holding a middle ground between property and person. After all, it would be unfair to label an entity with free will and reason as property. On the other hand, it would seem wrong to say that strong AI – which is basically the result of computer coding – is equal with a human being. As a result, a new framework will eventually have to be created. That being said, our legal system does already have frameworks on either end of the property vs human being continuum, so we will at least have a solid foundation to build upon.

As for the rights and duties of technology lower than that of strong intelligence, it would be prudent to group weak AI and robots together. After all, both require a great deal of human input, and largely exist to maximize efficiency and work more quickly.

Both are far closer to being property, like a corporation, than they are to being a human being. As a result, the framework which applies rights to today’s corporations can serve weak AI and robots quite well.

The fact that weak AI and robots, by their very nature, lack a free will means that we need not concern ourselves with what weak AI and robots want. After all, they cannot want anything on account of their lack of free will, so they can be categorized as property rather than as anything resembling a human being. The potential of a right to vote, be emancipated, or anything of that sort can therefore be dispensed with.

That being said, the lack of a free will does not mean that weak AI and robots should not have rights. After all, corporations also lack a free will, and they still have rights. That is not to say that weak AI, robots, and corporations are one and the same, because they most certainly are not. However, they are similar in how rights should be applied and exercised.

Corporations, despite being non-living entities lacking a free will and reliant on human control, enjoy a number of rights, including the right to influence the electoral

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process (see Bellotti128 and Citizens United129) and the right to freedom of religion (see Hobby Lobby130).

Weak AI and robots should have rights similar to those of corporations. For example, if the owner of a robot wants to use that robot to take part in the electoral process (by manufacturing campaign signs, for example), the owner of the robot should be free to do so. This is fundamentally no different from using one’s corporation’s funds to donate to a certain politician. The means of expressing the political preference are somewhat different, but they are fundamentally the same in that human actors are using their property – whether it be a robot or a corporation – which is designated as a legal person to achieve a political goal.

The rights of due process and equal protection could similarly be applied to weak AI and robots. After all, to deprive a robot of a right would be to deprive the robot’s owner of that same right.131 If a robot, for instance, could no longer produce a widget due to a government action, then the owner of the robot could also no longer produce a widget due to government action. Depriving a robot of a right is fundamentally no different from depriving a corporation of a right in that either deprivation also deprives the owner of said property of the same right.

First, one must revisit the arguments against imposing duties on weak AI and robots. The first argument is that, since weak AI lacks “intentionality, desires, and interests,” duties should not be imposed on weak AI.132 The second argument is that it is difficult, if not impossible, to enforce any punishment or civil liability against weak AI.133 Both arguments against imposing duties on weak AI and robots are valid. They are certainly both true, as weak AI and robots lack any semblance of a free will and, as a result, are much more difficult to punish or hold liable. That being said, corporate

128

First Nat Bank of Boston v Bellotti, 435 U.S. 765(1978).

Citizens United v. Federal Elections Com’n, 558 U.S. 310 (2010).

130 Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014).

131 Horwitz, supra at 177-8.

132 Brown, supra at 221.

133 Id. at 221.

129

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personhood has proven that an entity need not have intentionality to have duties imposed and that it is not difficult to hold a non-living entity responsible for its wrongdoings.

Provided the legal system allows weak AI and robots to own property in some capacity, weak AI and robots would be able to be fined for criminal violations or civil matters. While this is certainly not the same as imprisonment, the legal system will simply have to accept that imprisoning a robot is a waste of time. Punishment will have to take another form to be effective against non-living entities, and fines will be sufficient. Furthermore, the human owners of weak AI and robots, much like the human owners of corporations, can ultimately be held responsible for the corporation’s wrongdoings if a simple fine is deemed insufficient.

Incumbent upon all legal persons is the duty to act lawfully, and weak AI and robots are no exceptions. As legal persons, they will have to operate lawfully and responsibly to avoid any criminal or civil suits. This is fundamentally no different from requiring corporations to abide by relevant laws and regulations.

There is also a duty to pay taxes, though this issue is complicated by the efforts of some governments around the world. While one would normally expect a legal person to pay taxes on income, much like a corporation does, some governments want the owners of robots to pay income taxes on the robots’ behalf in addition to the general taxes associated with making a profit.134 This is particularly useful in allowing governments to maintain their tax bases. The issue created by robots replacing human workers will lead to new problems, and taxing robots as if they were workers might provide an interesting solution.

Ultimately, weak AI and robots should be treated more or less the same way that corporations are treated today. There should be some rights, such as the right to contract or the right to freedom of speech, but these rights should be dependent on the human owners of the weak AI or robots to be used. Similarly, weak AI and robots

134

Meredith Somers, The case for taxing robots – or not, MIT Sloan, https://mitsloan.mit.edu/ideas-made-tomatter/case-taxing-robots-or-not.

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should be subject to the same duties as corporations, which are the basic duties to follow the law, act responsibly, and pay taxes. Whether local, state, or federal governments want to tax robots in addition to other taxes could impose an additional duty, too.

Of the group of artificial intelligence, robots, and avatars, avatars represent the most difficult technological advancement to assign rights and duties to. This is because avatars, unlike artificial intelligence and robots, are not necessarily real. While artificial intelligence and robots can be used in any number of ways, such as in constructing and driving a vehicle, avatars are relatively limited. They are real in that they exist, but they only exist in separate realities, such as in a video game or in virtual reality goggles.

Understandably, it is much more difficult to assign rights and duties to an entity which only exists on a computer screen.

Ultimately, the main argument in favor of recognizing avatars – at least at present – is the rise of “digisexuals.”135 Once enough people seek to “marry” their avatars, as we have seen particularly in Japan, society and the legal system will have no choice but to allow some form of recognition for these relationships. Therefore, avatars will – at the very least – have to have the right to enter into some sort of legally-recognized relationship with human beings.

The concept of what makes a legally recognized relationship has constantly changed. Whether it be in Loving v. Virginia136, Lawrence v. Texas137, Obergefell v.

Hodges138, or any number of other cases, the law has repeatedly expanded to recognize new, never-before-thought-of relationships. As we have seen in each case, each expansion of the legal concept of a relationship has given rise to another. Allowing interracial marriage eventually gave rise to same-sex relationships, allowing same-sex relationships eventually gave rise to same-sex marriages, and so on and so forth. It is

135

Jozuka, supra.

Loving v. Virginia, 388 U.S. 1 (1967).

137 Lawrence v. Texas, 539 U.S. 558 (2003).

138 Obergefell v. Hodges, 576 U.S. 644 (2015).

136

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entirely possible, if not likely, that the concept of a legally recognized relationship will expand further in the future to recognize a human marrying an avatar.

It is worth noting that marriage does not need to be the only relationship for which avatars are eligible. In fact, avatars do not even need to be eligible for marriage.

If the state governments see fit, human-avatar relationships could be limited to civil unions or a special form of partnership. This would likely be better received by the general public, as it is unlikely that a majority of the population would be comfortable with placing a relationship between a human and an avatar on the same level as a relationship between two humans.

If avatars are allowed to marry humans, then it stands to reason that avatars have the right to enter into contracts and own property. Marriage is, after all, a contract, and seeing as avatars will be the spouses of humans, avatars will likely end up inheriting property through a spouse’s death or potentially getting some property as a result of a divorce.

Of course, the concept of an avatar owning property is challenging because avatars, by their very nature, do not exist in our world. As a result, avatars would likely need a trust of some sort to manage property on behalf of the avatar. Although a trust for an avatar would certainly be unique, it should not be all that difficult to implement, as a trust for an avatar would not be all that different from a trust for any other person. If anything, a trust for an avatar could be easier due to the fact that an avatar lacks the basic needs which all humans have and would therefore require less attention and upkeep.

It is worth noting that avatars could be granted the right to enter into a marriage – or some other legally-recognized relationship – without necessarily having the right to inherit property or gain property in the event of a dissolution. It would be up to the states to implement such legislation, but it would not be too difficult.

Ultimately, given the relatively limited aspect in which avatars appear to play a role in everyday life, avatars’ rights would likely begin and end at the right to marry and the rights inherent in marriage. If avatars prove to be useful in other areas of life, then 34

perhaps the rights afforded to avatars could increase. Until then, though, it appears as though only the digisexual movement will provide avatars with enough importance to gain rights.

The duties which are applied to avatars would be just as limited as the rights granted to avatars. In other words, any and all duties imposed upon avatars should be related to marriage, which is – at least for the time being – the only right which avatars appear to be deserving of. The duties most clearly related to marriage would be a duty to pay taxes on any inherited property and care for the children involved in the marriage, if any. Again, though, this duty faces the challenge of dealing with a legal person which does not exist in the real world. This likely necessitates the use of a trust or some sort of guardian or conservator acting on behalf of the avatar.

In summation, artificial intelligence (both strong and weak), robots, and avatars are all deserving of their own rights and duties. Strong AI should be assigned the most rights and duties of the three due to the fact that strong AI is – or will be – nearly human. This would place strong AI somewhere between corporations and humans in terms of rights and duties conveyed. Weak AI and robots are due some rights and responsibilities, similar to corporations due to the fact that they all require human intervention and control. Lastly, avatars should get minimal rights and duties, only going as far as is necessary to accommodate the digisexual movement and the new concept of what a relationship is.

5. A Call to Action In conclusion, there is an entire area of law which has thus far gone undiscovered. The role which artificial intelligence, robots, and avatars will play in the lives of all humans in the short and long-term futures will be immense. Whether it be in the form of driving alongside (or riding in) a self-driving car, “employing” a robot in your workplace, befriending an avatar, or any number of currently unimaginable scenarios, we will all be living alongside these novel forms of technology. And yet, we cannot begin to understand the degree to which these technological advances will change our lives.

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Forward-thinking legislatures and agencies should begin working to develop definitions, standards, and frameworks for artificial intelligence, robots, and avatars. It would be wise to anticipate the problems inherent in increased interactions with technology and address these problems well in advance of their occurrences, rather than relying on the legal system to address a brand-new issue in a court case sometime in the future. Even if our legal system fails to address all of the problems, which it no doubt will fail to do given the uncertainty inherent in technological advancement, society will be much better off having some answers, rather than no answers, when legal questions about technology are raised.

Though we cannot comprehend what the future may look like in terms of technology, we should aim to prepare our legal system – and our society – for the future to make the transition from a human-based world to a world where humans and technology interact as painless as possible. If we fail to prepare, we risk suffering through the glacial pace of change which has bedeviled legal personhood. It took far too long for women, minorities, and corporations to gain the legal personhood they all deserve. We should do whatever we can to avoid suffering from the same gridlock with artificial intelligence, robots, and avatars.

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Page and Word Count This paper, including the title page and this page and word count, contains 38 pages and 12,246 words.

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