Before we can talk sensibly about legal personality for robots, we need to know what the expression “legal personality” means in general. Legal personality is a term of art in legal scholarship and practice. Jurists in multiple countries have set out definitions of it. This one, from the Yale Law Journal in 1928, is serviceable: “To be a legal person is to be the subject of rights and duties. To confer legal rights or to impose legal duties, therefore, is to confer legal personality...” (Smith 1928, p. 283). This definition is congruent with Solaiman’s characterization of legal personhood, discussed above.

Three observations about legal personality, so defined, are pertinent to the question of a possible electronic legal personality. First, legal personality is an artifice. When we say that an actor has legal personality, we mean that a legal system addresses its rules to the actor, both to give the actor rights and to subject it to obligations. Legal personality is not necessarily correlated with a metaphysical or ethical notion of personhood. While we should want our legal system to bear the metaphysical and ethical concepts in mind, at different times legal systems have conferred legal personhood on much less and much more than the set of metaphysical or ethical persons. Legal personality results from a legal system’s decision to recognize that a particular entity has it. We may thus think of legal personality as a kind of fictional status, which the law may confer when doing so suits its ends.

Second, legal personality is an aggregate of legal rights and obligations, and thus it is divisible. Legal people need not possess all the same rights and obligations, even within the same system. A legal system might treat a given actor as a legal person in respect of some rights and some obligations but not in respect of others. It may even be helpful to think of legal personhood as a scalar concept, so that an entity can be more or less of a legal person as it possesses more or fewer rights and obligations.

Third, the legal personality of an actor, even if it entails that the actor has extensive rights and obligations, does not necessarily entail the actor’s effective engagement with the legal system. Though the actor may be the beneficiary of certain rules that give it rights, or the addressee of others that impose obligations on it, this does not in itself tell us what opportunities the legal system provides to that actor to take advantage of the rules or to other actors to hold it to account for breaches. That is to say, the rights and obligations that a legal person may have as a matter of law may not match those it has as a matter of fact.

We now consider in detail how each of these observations about legal personality bears on the possibility of extending legal personhood to robots.

3.1 Legal personality is a fiction of a given legal system

An entity’s inherent characteristics do not determine whether it is a legal person. It is true that legal systems are less likely to confer legal personality on inanimate objects, and more likely to confer it on entities that are people in the ethical and metaphysical sense. This may be because most legal systems wish to recognize and give effect to the rights and obligations that true people possess. But this rough generalization can be misleading. To determine whether an entity is a legal person, one must look to the approach a given legal system takes toward it.

Because of the rough generalization that legal people are in fact people, that the legal rights and obligations correspond to real rights and obligations, it is natural to think of legal personality as a fiction pretending to be something real. When a legal system confers legal rights and obligations on an entity, it has determined to treat that entity as though it were a person in fact. It is a kind of pretense in which legal systems can decide to engage, regardless of whether an entity really is a person (See examples in Solaiman 2017, pp. 3–4). Calling legal personality “a fiction” does not mean that it lacks real effects. To the contrary, the purpose of conferring legal personality on an actor is to enable that actor to have certain effects in, and to be affected in certain ways by, the legal system.

Every legal system must decide to which entities it will confer legal personhood. Legal systems should make this decision, like any other, with their ultimate objectives in mind. The most basic question for a legal system with respect to legal personhood is whether conferring legal personhood on a given entity advances or hinders those objectives. Those objectives may (and, in many cases should) be served by giving legal recognition to the rights and obligations of entities that really are people. In many cases, though, the objectives will not track these metaphysical and ethical truths. Sometimes legal personhood may be denied to real people in order to serve odious ends, like perpetuating privileges for some smaller group of people. Other times, a legal system may grant legal personhood to entities that are not really people because conferring rights upon the entity will protect it or because subjecting the entity to obligations will protect those around it.

In this regard, the discourse and practice of recognizing legal personhood fits the kind of structure that philosophers call fictionalism. A domain of discourse is fictionalist if it seeks to represent something other than the literal truth (Eklund 2011). Participants in a fictionalist discourse engage in a sort of pretense (whether wittingly or not) by assuming a stance according to which things said in the discourse, though literally false, refer to real entities and describe real properties of these. Discourse about fictional narratives is one easy example. When someone asks whether Daenerys Targaryen has two or three dragons, they are not asking after some fact in the world. Rather, they mean to ask whether the statement is true within the fiction Game of Thrones. Many modern philosophers think fictionalism offers the best account of some familiar domains of discourse, from math (e.g.Field 1989), to morality (e.g. Joyce 2001), to truth (e.g. Burgess and Burgess 2011). When they argue that these domains of discourse are fictionalist, philosophers take on the burden also of saying why we would go to the effort of earnestly saying things that are literally false. Usually, this involves giving an account of why the discourse is useful—e.g., talk of fictional narrative is fun, talk of numbers allows us to build airplanes, and talk of morality allows us to organize socially.

In the legal context, there is a long history of conferring legal personhood on corporations, and recognizing that the discourse surrounding corporate legal personhood is fictional. The United States has perhaps the most thoroughly developed legal discourse on the matter. Under U.S. federal law, the term person is defined to include corporations.5 Participants in the legal system recognize that the discourse surrounding corporate personhood is fictional. As the U.S. Supreme Court wrote, “[T]he corporate personality is a fiction, although a fiction intended to be acted upon as though it were a fact...”6 Scholars for the most part take such statements at face value (Dewey 1926, pp. 655–73; Laufer 1994, pp. 647, 650). Creating a fictional discourse according to which corporations are people was a useful shorthand for conferring on them the legal rights and obligations possessed by human people within the legal system. These include, for example, the corporate right to bind others through contract and the corporate obligation to satisfy commitments under contract. Without an extensive suite of rights and obligations characteristic of legal personhood, corporations could not be the engines of economic progress they have become.

Sometimes legal systems will even confer legal personality on an ad hoc basis to individual entities. This happened, for example, with the Bank for International Settlements. In a case involving claims against the Bank, an arbitral tribunal noted that the international instruments that created and empowered the Bank—part of a Convention concluded in 1930 by Germany, Belgium, Great Britain, Italy, Japan and Switzerland—confirmed that the Bank was to be an international law entity. The arrangement was novel, a company limited by shares and, apparently, generally recognized as a person under international law. Some of the participants doubted that this was legally tenable, and so they set up a rather tangled structure to give the Bank a Swiss law status—even as Swiss law was expressly not the Bank’s governing law for its most important purposes.7 The Bank was intended to be an international legal person, and the states participating in the Bank communicated their intention by adopting a treaty.8 The Bank’s personality was confirmed (the tribunal went on to observe) by explicit statements in other international agreements.9

We are concerned here about possible future cases concerning the legal personality of robots. Some academic writings about robot legal personality address questions of personhood in other than a legal sense, e.g., what does it take to constitute a person in a social, biological or even theological sense (Foerst 2009). Legal personality, however, results from a decision in the legal system to confer legal personality on a given entity. This decision may, but need not, be informed by the status of robots as persons vis-a-vis these non-legal senses. Legal personality is a highly elastic concept. The range of actors on which a system might confer legal personality is large, a point understood since at least the 1930s (see Nékám 1938, p. 34). The European Parliament Motion of 27 January 2017 to consider the possibility of conferring legal status on robots, accordingly, is not trivial. Nothing in the character of legal systems as such forecloses the possibility, and there is significant precedent to enable it.

3.2 Legal personality is divisible

Legal personhood is not an all-or-nothing proposition. Since it is made up of legal rights and obligations, entities can have more, fewer, overlapping, or even disjointed sets of these. This is as true of the legal personhood of human beings as it is for non-human legal persons. Every legal system has had, and continues to have, some human legal persons with fewer legal rights and different obligations than others. The world-wide struggle for equal rights for women, ethnic and religious minorities, and other disadvantaged groups in many nations bears continuing witness to this fact. The disparity is not always invidious; sensible policy can ground different rights and obligations (in some ways more, in others less) for non-citizens, felons, and children (Asaro 2007, p. 3).

As discussed above, legal systems can confer legal personhood on non-human entities. In almost every case, these will have both fewer rights and fewer obligations. Consider the legal personhood that environmental features now have in several countries–the Whanganui river and Te Urewera national park in New Zealand (Rousseau 2016), the Ganges and the Yamuna rivers in India (Safi 2016), and the entire ecosystem in Ecuador.10 Of necessity, the legal rights and obligations accorded to these environmental features differ from those given by their respective nations to human beings. In the case of the Whanganui River, for example, the primary concern was to ensure the rights of the river not to be owned (Calderwood 2016). Corporations in the United States may be the legal persons with the suite of legal rights and obligations most closely approximating those given to human beings. A detailed constitutional jurisprudence has grown around the issue. While the U.S. Supreme Court seems on track to affirm that corporations have nearly every constitutional right and obligation, it has balked in some rare instances, such as the right against self-incrimination at criminal trial.11

In some cases, courts have had to address the divisibility of legal personhood head-on. The General Assembly, in 1948, asked the International Court of Justice whether the UN had the capacity to bring an international claim against a State. The Court advised in the affirmative. In so advising, the Court drew attention to the varied character of persons in a legal system:

“The subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community... [T]he [UN] is an international person. That is not the same thing as saying that it is a State, which it certainly is not, or that its legal personality and rights and duties are the same as those of a State... Whereas a State possesses the totality of international rights and duties recognized by international law, the rights and duties of an entity such as the [UN] must depend upon its purposes and functions as specified or implied in its constituent documents and developed in practice.” (Liang 1949)

The Court understood that legal personality is a divisible concept. It is not necessary in any legal system for there to be one uniform and unified status of legal person.

The divisibility of legal personhood raises the question of which rights and duties a legal system should confer on a legal person, once it has decided to recognize the legal person as such. We should resolve the issue of the legal personhood of robots at this level, rather than treating legal personhood as an all-or-nothing black box (Koops et al. 2010, p. 556). Edsger Dijkstra has noted, “A convincing demonstration of correctness being impossible as long as the mechanism is regarded as a black box, our only hope lies in not regarding the mechanism as a black box” (Dijkstra 1970). A legal system, if it chose to confer legal personality on robots, would need to say specifically which legal rights and obligations went with the designation. If it does not, then the legal system will struggle, as happened with the Bank for International Settlements, to make sense of what it has done. To try to confer “legal personality,” without being more specific, is to regard legal personality as a black box. In line with the fictionalist paradigm, and as the ICJ opined with respect to the UN, the legal system should determine the legal rights and obligations of a new legal person by reference to how the legal person relates to the legal system’s purposes.

3.3 The gap between de jure and de facto legal personality

Even once a legal system has determined which rights and obligations to confer on a legal person, practical realities may nullify them. Legal rights with no way to enforce them are mere illusion. Standing—the right to appear before particular organs for purposes of presenting a case under a particular rule—is crucial to a legal person seeking to protect its rights in the legal system. Standing does not necessarily follow from the existence of an actor’s legal personality. An entity, even when its legal personality is not in doubt, must exercise its standing before it can avail itself of relevant procedures (Vollenhoven et al. 1926). When an entity tries to invoke newly conferred rights, challenges to its standing are all the more likely (Shah 2013).

Consider the legal right of “integral respect” that Ecuador gave to its ecosystem. While the ecosystem may have the right as a matter of law, it clearly lacks the non-legal capacities it would need to protect the right from encroachment. To effectuate the right, the Ecuadorian constitution gave standing to everyone in Ecuador to bring suits on behalf of the ecosystem. Thus, in 2011, private Ecuadorians successfully sued the Provincial Government of Loja to halt expansion of a roadway that was damaging an important watershed (Greene 2011). The outcome would have been very different if Ecuador had provided no mechanism for protecting nature’s legal right of integral respect. Nature cannot protect itself in a court of law.

Just as legal rights mean nothing if the legal system elides the standing to protect them, legal obligations mean nothing in the absence of procedure to enforce them. The advisory opinion of the ICJ establishing that the UN has legal personality was in 1948, but this resolved only whether the UN could bring a claim. It said nothing about an obvious correlate: the legal capacity of the UN to bear responsibility and answer for its own breaches. Affirmation that the UN indeed can be responsible for its breaches did come—but over half a century later (Wickremasinghe and Evans 2000, para. 66). Despite the efforts of international lawyers, there is still no reliable procedure for suing an international organization.12

We could never anticipate ex ante all the ways purely synthetic legal people would interact with other legal persons and with the institutions of the legal system (courts, administrative agencies, legislatures, police, etc.). In its first encounters with the legal system, every rule invoked on a robot’s behalf or against it would require novel and controversial developments in law. Courts and other organs would struggle to decide how, if at all, the rules—heretofore addressed to other legal persons—address the robot. Both the robot’s standing against other actors and other actors’ standing against the robot would be sharply contested. If the topic of electronic personality is to be addressed, as directed in the European Parliament’s 27 January 2017 Motion, standing—both of robots and other purely synthetic entities to sue and of others to sue them—is a further matter that would need to be considered.

3.4 Summary

The intricacies described in this section are not just inevitable ‘bugs’ to be eventually worked out. They are crucial questions that we must answer before introducing novel legal personhood. Concerns about legal accountability, and the way electronic persons might affect accountability, are our main motivation in writing this paper. We now turn to consider the impacts of offering some form of personhood status to robots.

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Of, for, and by the people: the legal lacuna of synthetic persons