You might think this is a question with an obvious answer – but in law, that’s not the case. That’s because the concept of legal personhood means something very different to how we use the word ‘person’ in everyday speech. Dr Josh Jowitt, Lecturer in Law, takes us through who, or what, is a person.
The macaque issue
“Don’t be daft, Josh – it’s a monkey.”
It wasn’t the response I expected when I told my family and friends what I was currently doing at work. On the face of it, my project was about the dullest of copyright disputes, lodged before the Federal Courts in California, about who owned a photograph of a macaque. But the photo was special – it was a selfie, and court were being asked whether this meant the macaque was its author. If they thought that it was, that meant that the macaque owned the copyright to the photo – and because the selfie featured in a bestselling book, this meant that an Indonesian ape was in for a financial windfall.
My friends in particular thought the whole thing was a joke. But as a lawyer, I was fascinated – why couldn’t the macaque own copyright? And as an ethicist, I was intrigued – why shouldn’t he? The case was ultimately settled out of court, but at the heart of the case was a deceptively complicated legal question: Who, or what, is a person?
So, what is a person?
You might think this is a question with an obvious answer – but in law, that’s not the case. That’s because the concept of legal personhood means something very different to how we use the word ‘person’ in everyday speech.
Since Roman times, the law has classified everything as either a ‘person’ or a ‘thing’. But the legal term ‘person’ has never meant the same thing as ‘human’ – it is traditionally seen as a formal classification that simply says who (or what) can bear rights. ‘Things’, by contrast, are property – and as such, cannot bear rights.
Where this gets messy is that the law in many jurisdictions classifies things that we might usually consider to be property as legal persons – common examples are temple buildings, idols, or ships. Collective enterprises such as corporations have also long been recognised as separate persons in law – so much so that they were entitled to a vote in the constituency in which they were headquartered in all UK Parliamentary Elections until this right was repealed by section 1(2) of the Representation of the People Act 1948.
More recently, rivers have also been recognised as legal persons – most famously perhaps in New Zealand – as a means to further conservation efforts and protect ecosystems believed to hold spiritual significance.
The elephant in the room
What very few jurisdictions have done, however, is openly reflect on the legal status of other living things.
Many of us would agree, for example, that animals have some kind of moral worth. They are sentient beings – with sentience being defined as the capacity to sense and respond to the external world beyond themselves. For example, it is uncontroversial to claim that we should avoid causing unnecessary suffering to sentient beings wherever possible. But in law, animals remain property – ‘things’ that are theoretically incapable of bearing rights.
But how can we say that the law is in a good place if beings we accept have moral worth are classified as mere property, no different to a brick or a table?
This uncomfortable disconnect was most recently demonstrated by the case of Happy the Elephant, whose bid to be freed from conditions that experts believe to be causally linked to a variety of poor health outcomes was dismissed by the highest court in the state of New York in 2022. I wrote an overview of the decision at the time here, but the key thing to take from the judgement is this: the courts accept Happy is a moral being who is deserving of rights protection, but feel powerless to act because of her status as property.
Though the majority of jurisdictions appear to take the same line as the US courts, some – notably Colombia, Argentina and Pakistan – do not. But the important lesson here seems to be this: regardless of which way they decide a case, the distinction between ‘legal person’ and ‘thing’ is one that many courts rely on when reaching their decisions. If the law takes the moral worth of animals seriously, then it seems important to recognise that they are more than just property: that they too should be recognised as a ‘legal person’.
Sentience and personhood for neural networks
This has huge consequences not just for animals, but for a wide variety of human activity. If we accept that animals have moral status because they are sentient, and that this means they should benefit from a change to their legal status, it follows that the same must be true of all sentient beings.
We must therefore ask an uncomfortable question: what else might be sentient?
Towards the end of 2022, a lab in Melbourne had grown human brain cells in a lab and taught them to play the video game Pong. If we apply our previous definition of sentience here – the capacity to sense and respond to the external world – does this mean their ability to engage in this activity is evidence that these neural networks are sentient? Because if so, then we ought to avoid causing them unnecessary suffering – which means there are clear moral limits on how these clusters of cells can be used in the laboratory setting.
At this point I ought to say explicitly that the team in question don’t think there is enough evidence for sentience just yet. Even if we accept that playing Pong shows these neurons are responding to an external stimulus, we just don’t know whether they are doing so knowingly or with the understanding that their actions are causally linked to certain outcomes. But I think that the fact we are even having to speculate here means that their moral and legal status is a problem we need to take seriously. What if these networks do achieve sentience? And does this mean the law should respond by recognising them as persons?
Beyond biology; finding the limits of personhood
The problem also isn’t limited to biological life.
You may remember a news story last year in which a man named Blake Lemoine, at the time employed as a software engineer at Google, argued that his interviews with the company’s chatbot, LaMDA, led him to believe that it had achieved sentience. He argued that this meant its interests needed to be taken seriously – perhaps though recognising personhood and granting it specific legal protection.
Lemoine’s belief in LaMDA’s sentience was widely dismissed, but the episode again raises an important question: what should our society do in the event that AI does ever achieve sentience? Does this mean that AI should be seen as a legal person that could bear legal rights?
Lessons to be learned
Regardless of where the courts take any of the above examples, one thing is clear.
The problem of who (or what) is a person in law isn’t going to go away, and it’s important that we address it head on instead of pretending it isn’t being asked. Joined-up thinking is needed so that we can future-proof the law and avoid playing catch-up if (or when) new technologies reach the place where we think they deserve meaningful legal protection.
This is a tough question to answer – but the fact that a question is hard is not a good reason to avoid asking it.
You might also like:
- Find out more about Dr Josh Jowitt, Lecturer in Law
- Explore the world-leading work and research done by Newcastle Law School
- Read Dr Jowitt’s peer-reviewed journal article about human cerebral organoids that is available open access: On the Legal Status of Human Cerebral Organoids: Lessons from Animal Law
- Read an earlier piece Dr Jowitt wrote for The Conversation, inspired by this paper: Should lab-grown brain cells have legal rights?
- Find out more about the legal conclusion of the macaque photograph debate: Photographer settles ‘monkey selfie’ legal fight
- Discover more about the potential sentience of LaMDA: Is LaMDA Sentient? — an Interview
