The perils of personhood: a foreword

Abstract

I am honoured to write the foreword for these new writings on legal personhood. I find them stimulating and provocative and I wish to rise to their provocations. They have pressed me to see law, and the idea of its subject, according to other world views. I want to engage with this new body of work, albeit briefly, and offer my counter provocations. There is a richness of material and ideas on offer here and a great range of themes, as the authors inquire into the legal status of corporations, people with a disability, children, and non-human life and entities. One concern I have is with the suggestion of several writers that natural entities, such as rivers, have intention and wisdom, even a spiritual dimension, and for this among other reasons should be recognised as persons. The reason for my disquiet is not the cosmologies themselves (after all we are all embedded in belief systems), but their invocation as a moral and legal basis of personhood. The problem is that this style of argument has an unwitting and unfortunate similarity to the approach adopted by influential British men to endow themselves with power via the concept of the legal person. For they too invoked a set of deep beliefs in their natural value and they were convinced that it made them quite naturally persons. In other words, (as the editors observe) the concept of the legal person has been used to consolidate the power of white Western men and they did so by claiming that by nature they were the right type of beings for personhood and legal subjecthood. Their idea was that educated white men had innately superior qualities which women lacked, and that law should follow nature; it should follow the man. Therefore, only men should be persons. Thus the concept of the person was openly deployed by the senior men of British law to advance the interests of their sex and to subjugate women. It was used by some of the most distinguished men of law who have remained revered figures in the legal pantheon. These men said explicitly that they as men were, in essence, natural and moral agents and they should therefore have the rights that such superior beings demanded. This claim to natural rightness and superiority was asserted without supporting evidence and yet it was advanced with total conviction. For this was how these men understood themselves to be. It was their belief system. The enduring effect of these deeply self-serving unconsidered convictions about male right has been departure from principle and the abuse of what might have been regarded as the natural rights of the other half of the population. The claims of male right have never been closely inspected, within mainstream jurisprudence, let alone made the subject of critical evaluation or apology. Personhood, therefore, has a worrying history. My continuing concern is that as grants of personhood are being sought for nonhuman beings and natural entities, to protect them from human depredation, the case for these grants of legal status is acquiring some of the cosmological dimensions that are to be found in men’s claims for themselves. Men saw themselves as inherently wise, rational, intentional and even spiritual agents, and so they were the fitting subjects of law. They reasoned from what they took to be their natures to law. From the 1860s to the 1920s, such statements were made clearly and forcefully in the so-called ‘person’s cases’ in which men of British law asserted exclusive rights to personhood for their sex.