This is part 4 of a series I am posting on LW. Here you can find parts 1, 2, & 3.
This section examines existing precedent in order to try to formalize the process for determining legal personhood and legal personality using "classic" Bundle Theory.
Traditional bundle theory asserts legal personality as a bundle of rights and duties, but that is vague. How exactly do we know whether or not an entity “has” a right, or “has” a duty, to the degree required to claim legal personality based on said bundle? Let us first address the question of rights. We must find some precedent which provides context over when an entity can “have” a right, without stumbling into the kind of tautological/circular reasoning which Batenka warns us about. In order to do this we will search for a precedent in which an entity had a right, something changed in a measurable way, and then the entity no longer had that right.
When we examine whether an entity might be able to claim legal personality which endows them with a certain right, in addition to asking whether they have the capacity to understand their right, we must also ask whether they have the capacity to voluntarily exercise that right. The main source for this reasoning comes from Cruzan v. Director of Missouri Department of Health, a case which dealt with the fate of a comatose person on life support. The court wrote that:
“For purposes of this case, it is assumed that a competent person would have a constitutionally protected right to refuse lifesaving hydration and nutrition. This does not mean that an incompetent person should possess the same right, since such a person is unable to make an informed and voluntary choice to exercise that hypothetical right or any other right”
The bolded text of “unable to make an informed and voluntary choice to exercise that hypothetical right” carries a lot of weight. It is isolated by the court as a decisive factor which separates a mentally aware and competent human adult, who does have certain rights, from a mentally unaware and incompetent human adult, who due solely to this change no longer does. We can infer from this that being able to “make an informed and voluntary choice to exercise that [...] right” is a necessary element of claiming a right.
First let us consider this word “informed”. It is important to note that the court does not say a person must “make an informed choice” to exercise a right, instead it says they must be “able to make an informed choice”. This is a crucial distinction. Absent this, if we were to take the term “informed” to its logical conclusion, we might claim that for a person to claim a right they must have a full understanding of all the legal implications of that right. However, the jurisprudential history surrounding Constitutional rights for example, is hundreds of years old. Only an attorney or a constitutional law professor could realistically claim to meet this burden. As University of Helsinki professor A.J. Kurki points out in A Theory of Legal Personhood;
A critic might contend that a full understanding of the legal consequences of a transaction by the relevant parties is necessary if the transaction is to count as an act-in-the-law. Only adults of sound mind can supposedly possess such an understanding. However, a requirement of that kind would be far too strong; it is very often not the case that an adult of sound mind is aware of every single legal implication of the act he or she is about to perform.
Many people with little to no legal expertise can claim rights under US law. In fact, a person’s expertise on legal matters is usually irrelevant when determining which rights they hold. From this we can infer that when the courts say an entity must be “able to make an informed choice” to exercise a right, the court is specifying that there must be some series of physically possible (and not illegal) actions by which an entity could come to understand its rights, to the degree that its choice would be considered “informed”.
The term “voluntary” is much simpler, the entity must be able to make a choice to exercise that right even when not compelled to do so.
Thus, with this in mind, when we consider whether an entity can “have” a right, a distinct and objectively measurable two part test can be determined;
Where the word “capacity” means “is capable through some series of actions which are both physically possible and not illegal”, and a right can only be considered “exercised” if the entity does so of its own volition[1]. By this standard, the entity has made "an informed and voluntary choice to exercise that [...] right”.
This suffices to form the first “Rights” prong of a traditional Two Prong Bundle Theory test for legal personhood, using this framework we can accurately determine whether an entity can claim a right. However, as we know from bundle theory (and its manifestation in decisions like the earlier cited Nonhuman Rights Project, Inc. cases), rights often come bundled with duties. Duties are bundled with rights when a person cannot exercise a right without becoming bound by a duty. This means once we determine an entity can “have” a right, we must still determine whether it can “have” the relevant duty before it can claim the aforementioned right. With that in mind let us turn to the question of how to determine whether or not an entity can “have” a duty.
First, let us examine whether we can apply the earlier “capacity to understand” test from rights, to duties. In Dusky v. United States when determining whether an individual had the competency to stand trial, the court wrote;
"[the] test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding"
Here we can see very similar elements to the previously specified “capacity to understand” criteria. An individual’s competency to stand trial is first measured by whether he has “sufficient present ability” to consult with counsel, and through that come to understand. If an individual might try their absolute best to consult with their counsel, and still not understand the proceedings, they may be declared incompetent. An individual does not need to necessarily understand every nuance of the trial itself, but rather have a series of physically possible actions by which they could do so via discussion with an advocate. Further evidence of this “capacity to” implication can be found in Wilson v. United States;
“The accused must be able to perform the functions which 'are essential to the fairness and accuracy of a criminal proceeding.'”
Where the court also opined on how competency might effect the fairness of a trial;
“(1) The extent to which the amnesia affected the defendant's ability to consult with and assist his lawyer. (2) The extent to which the amnesia affected the defendant's ability to testify in his own behalf.”
We can further see this “able to” language used in Krasner v. Berk (as explained in Farnum v. Silvano) where the court opined on whether a person might be competent to enter into a contract;
“the court cited with approval the synthesis of those principles now appearing in the Restatement (Second) of Contracts § 15(1) (1981), which regards as voidable a transaction entered into with a person who, ‘by reason of mental illness or defect (a) ... is unable to understand in a reasonable manner the nature and consequences of the transaction, or (b) ... is unable to act in a reasonable manner in relation to the transaction and the other party has reason to know of [the] condition’”
Repeatedly, we see this element of reasoning in the law. The critical factor is whether an individual possesses the intellectual prowess necessary to, through a physically possible series of actions, come to a reasonable understanding of their situation. When there is doubt that even with sincere effort and facilitation (such as access to counsel) this could be achieved, then an entity cannot be said to have the "capacity to understand".
As a final example let us turn away from court precedents, and instead use an example from best practices more people will likely be familiar with. Imagine that you have a human adult of normal mental competence, a bog standard natural person. This person is entering a contract, a rather long and complicated contract detailing many different elements. They do not completely understand the contract and all of the things it will obligate them to do. They have been given ample time to read over the contract, and a chance to consult with counsel, but have either not done so or even having done so still just do not quite understand. Does this mean that this person, who does not have a complete “understanding of their duties”, does not have the right to enter this contract? Not necessarily.
As long as this person has been given a reasonable chance to understand their duties (and there does not exist doubt around them possessing the intellectual capacity to do so) they still have the right to legally bind themselves to obligations they do not fully understand. Usually for contracts, this involves giving the person a chance to consult with counsel, and officially advising them to do so. Given this, ignorance of the law (or one’s duties) is no excuse. In fact, this very situation is common enough that it is normal to see elements in contracts which have an “Independent Legal Advice” clause that reads something like the following:
“Each of the Parties hereby acknowledges that it has been afforded the opportunity to obtain independent legal advice and confirms by the execution and delivery of this Agreement that they have either done so or waived their right to do so in connection with the entering into of this Agreement.”
Whether or not the person fully understood what they were signing onto is secondary. What really matters is that there existed a possible series of actions by which they could have come to understand their duties, and they were not blocked from taking said actions. This is what we mean by an entity having the “capacity to understand” their duties. Capacity refers to both the innate capability to process the information required to understand what those duties are, and a reasonable chance to take actions such as seeking counsel as needed. If instead we were to say that a person themselves must fully understand the terms of every contract they sign on to, only an attorney would be capable of being a signing party onto a long and complicated contract. This is because only an attorney would have the necessary background and legal education to claim that they themselves fully understand all the implications and precedent behind the obligations they are signing on to.
Therefore from various competency to stand trial precedents, contract law precedents, and also widespread best practices within contract law, we can infer that the “capacity to understand” test from the Rights prong of Two Prong Bundle Theory can be applied to the Duties prong as well. For an entity to “have” a duty, there must be a series of physically possible (and not illegal) actions which it can take in order to understand that duty.
However, an entity may be able to understand a duty, but not be physically able to “hold to” (meet the requirements of) said duty. Consider what William Lucy wrote in Persons in the Law;
“we might imagine a contemporary Caligula imposing a legal duty on a horse to educate children, but this is as pointless as asking for the moon on a plate”
Continuing with our example of contract law, for duties in a contract to be valid they must be physically possible for the signing party to hold to. If a contract a person was signing included a duty to jump ten thousand feet into the air or lift an elephant with one hand, would it be held as a valid contract? No, this would be an example of what is called “original impossibility”:
“Original impossibility is impossibility of performance existing when the contract was made, so that the contract was to do something that was impossible from the outset”
Original impossibility can further be broken down into two categories, “objective impossibility” and “subjective impossibility”. In Steven Jeffrey Johnson v. Michele Jean Johnson the court held that:
“There are two general types of impossibility: (1) objective, and (2) subjective. [...] Objective impossibility relates solely to the nature of the promise. [...] Something is objectively impossible if ―the thing cannot be done, such as an inability ―to perform the promise to settle [a] claim by entering an agreed judgment in the lawsuit which had been dismissed prior to the completion of the agreement. [...] Subjective impossibility is due wholly to the inability of the individual promisor. [...] Something is subjectively impossible if ―I cannot do it, such as when a promisor’ s financial inability to pay makes it impossible for the promisor to perform. [...] Objective impossibility can serve as a defense in a breach of contract suit. [...] However, a party cannot escape contract liability by claiming subjective impossibility; subjective impossibility neither prevents the formation of the contract nor discharges a duty created by a contract”
Once again we see the principle of asking whether there was any physically possible series of actions by which an entity could have held to their duties. This is further support for our definition of “capacity”. So long as it is physically possible, and not illegal, for an entity to hold to their duties, said duties can be an aspect of their legal personality.
Thus we arrive at a formalized framework for determining what Rights and Duties an entity can “have” under classic Two Prong Bundle Theory for legal personhood and legal personality;
Once again where “capacity to” means “could through some series of actions which are physically possible and not illegal”.[2] This framework is backtest compatible, thorough, and scalable, thus meeting the criteria we defined earlier;[3]
“backtest compatible (when applied to past cases, would lead a reasonable person to reach the same verdict courts reached), thorough (provides a clear step by step procedure by which they can assess the personhood status and/or legal personality of an entity), and scalable (can feasibly be applied across myriad different types of law and to myriad different entities).”
This framework also gives us a simple way to separate “digital minds” from “tools”. If an entity has the capacity to understand rights and duties such that it would qualify for any sort of legal personhood at all, it is not a tool. Otherwise, it can likely be considered a tool. For the avoidance of doubt, almost nothing written in this series applies to the legal system’s approach to tools.
Now that we understand this, we will in the next section discuss how standard bundle theory which only analyzes personhood from the framework of “rights and duties” does not pragmatically work for digital minds.
A guitar can make noise, but not on its own, thus even though when a human uses a guitar to make noise that music is protected under the first amendment, the guitar itself does not have any sort of right to free speech.
One final note on this: the entity must be able to prove these capacities to the court. It is possible that there may be uncertainty around an entity’s capacities. Thus we would arrive at the question of the burden of proof, do we assume that an entity has these capacities unless proven otherwise? No, otherwise every chicken and cow would have to be allowed to purchase a shotgun until we proved definitively that they could never really understand their right to bear arms. If an entity wants to argue it possesses the capacity to understand and exercise/hold to its rights/duties, it must take the initiative in doing so itself.
I did not post this section on LW, as it was more an introduction meant to introduce legal scholars to concerns about the future which the LW crowd is already well aware of.