Christophe Geiger, Craig Allen Nard and Xavier Seuba (eds), Intellectual Property and the Judiciary, Cheltenham, Edward Elgar, 2018, 560 pp, hb £135.00.
| Published date | 01 November 2020 |
| Date | 01 November 2020 |
| Author | Karen Walsh |
| DOI | http://doi.org/10.1111/1468-2230.12543 |
bs_bs_banner
REVIEWS
Visa A.J. Kurki,A Theory of Legal Personhood, Oxford: Oxford University
Press, 2019, 240 pp, hb £70.00.
Visa Kurki’s A Theory of Legal Personhood is an exciting new volume in the Ox-
ford Legal Philosophy series that successfully undertakes the ambitious project
its title promises. It offers a workable and unifying account of legal person-
hood that tracks contemporary advancements in analytical jurisprudence whilst
masterfully incorporating a long-neglected subject into that broad tradition. Its
direct and rigorous confrontation of many longstanding puzzles should be wel-
comed not only in the analytical jurisprudence tradition but also by practitioners
and scholars who have been vexed by this thorny concept.
The book’s key motivation is to disentangle the related notions of a legal
person and the capacity to have legal positions. Kurki calls the tradition that
defines a legal person as a subject of legal rights and duties the ‘orthodox
view.’ He goes on to argue that ‘in light of Hohfeld’s theory,’ many paradig-
matic doctrinal judgments in diverse Western legal systems (extensional beliefs)
‘come into conflict with the Orthodox View’ (15, 55). This is because ‘modern
theories of rights, which are based on the Hohfeldian analysis, either ascr ibe
rights to entities that are not usually classified as legal persons, such as foetuses
and nonhuman animals, or deny rights to entities that are ordinarily classi-
fied as legal persons, such as human children’ (15, 55). Kurki then suggests
that following a Rawlsian method of reflective equilibrium would necessitate
that some beliefs ‘be readjusted in order to render the overall set of beliefs
consistent’ (16).
Given the high stakes involved in abandoning the Hohfeldian analysis, the
choice remains between either revising the extensional beliefs or the ‘orthodox
view’ (16). Kurki argues that nothing will be gained from revising the former
but avers that revising the latter can address both paradigmatic and peripheral
doctrinal cases of legal personhood with consistency – a promise that the rest
of the book indeed fulfils. His solution is an alternative to the ‘orthodox view’
which explicates legal personhood in terms of a cluster of interconnected but
distinct incidents that correspond to paradigmatic ways in which the law enables,
protects, or treats legal persons.
Kurki calls this theory ‘the Bundle Theory of legal personhood’, because it
conceives of legal personhood ‘as a cluster property . . . just as ownership is
often analysed as a bundle of rights’ (4). The incidents in the bundle of legal
personhood are primarily ‘par ticular types of claim-rights,responsibilities, and/or
competences’ (5) and can be divided into passive and active. Passive incidents are
what distinguish human infants from animals in the eyes of law and include
the infant’s capacity to own property, its insusceptibility to being owned, its
protection by the law of tort, and its protection by criminal law as a potential
victim. Active incidents are what distinguish an infant from an adult of sound
C2020 The Author. The Modern Law Review C2020 The Modern Law Review Limited. (2020) 83(6) MLR 1354–1385
Reviews
mind in the law and include responsibilities and competences such as criminal
liability and the capacity to form contracts. Adults of sound mind are full legal
persons, meaning they ‘are fully endowed with both the active and the passive
incidents’ (6). Every other entity ‘may be a legal person for some purposes but
not for others’ (6).
The book consists of three substantive parts. Part I, ‘The Orthodox View,’
presents and critiques the ‘orthodox view’ in Chapters 1 and 2. Part II, ‘The
Bundle Theory,’ proposes the new theory of legal personhood in Chapters 3
and 4. Part III, ‘Applying the Theory,’ consists of Chapter 5, which examines
corporate personhood; Chapter 6, which focuses on the legal personhood of
artificial intelligences (AIs); and Chapter 7, which explores the role of legal
personhood in normative debates.
Chapter 1 examines the evolution of the ‘orthodox view’ from the Ro-
man notions of personhood to a technical usage of the word ‘persona’by
Renaissance-era French and German scholars that led to the definition of ‘per-
sons’ as right-holders in nineteenth-century Ger many. This is the definition
that later became dominant in the English-speaking world as well. In offering
this historical context, Kurki exposes the correlated development of the no-
tions of personhood and rights but notes that whereas theories of r ights have
significantly developed since the nineteenth century, the ‘orthodox view’ has
not been revisited since then. The historical account in this chapter is invaluable
and highlights both the practical and logical necessity of Kurki’s overarching
project.
With this context, Chapter 2 highlights the inadequacies arising from the
stagnation of the ‘orthodox view’. The chapter starts with a helpful overview
of Hohfeld’s original framework. It then considers three contemporary con-
ceptions of rights: the interest theory, the will theory, and the vague anything-
beneficial conception, according to which any beneficial legal position is a right.
This is followed by five formulations of the orthodox view: Rights-or-Duties,
Rights-and-Duties, Capacity-for-Rights, Capacity-for-Legal-Relations, and
the Kelsenian ‘personhood as a bundle of rights’ positions. The chapter then
shows that the application of each conception of rights to each formulation of
the ‘orthodox view’ (except the Kelsenian one, which is addressed in Chapter
4) yields discrepancies between extensional beliefs and that formulation.
For example, Kurki examines the Rights-or-Duties and the Rights-and-
Duties formulations by applying the three conceptions of rights and making
the following observations: First, under the interest theory conception of rights,
these formulations of the ‘orthodox view’ would define legal personhood as
the holding of interest-theory rights. Such a definition, however, would be
inadequate in explaining the extensional beliefs regarding who or what is a
legal person. This is because it is widely believed that interest-theory rights are
held by entities such as foetuses, nonhuman animals, and slaves, who are very
commonly classified as legal nonpersons. The same goes for the ‘anything-
beneficial’ conception because if animals and foetuses have interest-theory
rights, they most definitely have anything-beneficial rights. On the other hand,
the ‘orthodox view’ under the will theory conception of rights would identify
legal personhood with the holder of will-theory rights. That definition would
C2020 The Author. The Modern Law Review C2020 The Modern Law Review Limited.
(2020) 83(6) MLR 1354–1385 1355
Reviews
lead to the converse problem, because infants, animals, and individuals with
severe mental disability are among the central cases of legal personhood, yet
they are believed to not hold rights according to hard will-theories.
Chapter 3 is where Kurki presents his Bundle Theory, which describes legal
personhood in terms of interconnected but distinct incidents (94). It expli-
cates the passive and active incidents of legal personhood as follows: passive
incidents consist of three substantive incidents and three incidents relating to
their enforceability (and the exactment of applicable remedies). The substan-
tive passive incidents are fundamental protections, the capacity to be a party to
special rights, and the capacity to own property (and insusceptibility to being
owned). Active incidents are the capacity to perform acts-in-the-law (legal
competences) and criminal and civil legal responsibility (onerous legal person-
hood). The Bundle Theory thus explains how paradigmatic legal persons are
typically endowed with the incidents of legal personhood whereas paradigmatic
nonpersons typically lack them. The incidents can be grouped in various ways
and all conjoin only in the case of adults of sound mind.
The comparative explanatory power of the Bundle theory over the ‘orthodox
view’ lies in its further ability to explain grey area cases. The Bundle Theory
explains that these cases arise in the presence or absence of only certain incidents
of personhood. Articulating legal personhood as a cluster property eliminates
any exact border between legal personhood and nonpersonhood. On such an
account, an entity can be a legal person for some purposes but not others.
Thus, the Bundle Theory allows for the fact that slaves were endowed with
some incidents of legal personhood though not with others, or that women’s
path to ‘full’ legal personhood was a matter of gradual change over time. In
this respect, Kurki’s theory elegantly shows that the question whether an entity
is a legal person is not always probative in the relevant way, because not all
incidents of legal personhood are always at stake.
This chapter also explains how the incidents of legal personhood are corre-
lated but distinct. For example, Kurki notes that in most instances, tort liability,
which is an active incident, is only feasible if one has the capacity to own
property, which is a passive incident (117). This correlation is also why the
concept of legal personhood can be considered as a ‘functional whole’ rather
than disparate incidents (120). On the other hand, the contested legal person-
hood of foetuses must be understood in terms of limited incidents, such as
whether they should be treated as potential victims in the context of criminal
law (117).
Chapter 4 further develops the Bundle Theory. First, Kurki notes that the
term ‘legal person’ is systematically ambiguous between two senses: a bundle
of legal positions and an entity that holds them. He then proposes to reserve
‘legal person’ as strictly referr ing to an entity with relevant legal positions and
introduces the term ‘legal platform’ to refer to the bundle of legal positions
that a legal person has (133). Accordingly, each legal person corresponds to
at least one default legal platform and holds the entitlements and burdens
which pertain to it. Since entities like infants are legal persons, having control
over a legal platform is not necessary for personhood (persons without such
control can be represented by administrators). ‘Natural’ legal platforms follow
1356 C2020 The Author. The Modern Law Review C2020 The Modern Law Review Limited.
(2020) 83(6) MLR 1354–1385
To continue reading
Request your trial