A few months back I authored a series called Legal Personhood for Digital Minds. I believe this issue is very important, and also that because the term 'personhood' is quite loaded, even people who are somewhat informed of the issue hold dangerous misconceptions.
One of the posts within that series, Three Prong Bundle Theory, laid out the test I suggest when determining the legal personhood and legal personality of digital minds (or really any new type of entity, it would work just fine for aliens as well).
However, the series is 120 pages of relatively dense legal text, and I am not a great writer. I have gotten consistent feedback from every non-attorney who has read it, that it is difficult to follow, and people would really prefer if I could distill the actual "here's how you approach the question on a practical level" part into something more digestible.
As such I am writing this post to explain at two different levels of complexity, how the 'Three Prong Bundle Theory' test works in practice.
Does an entity:
- Possess the capacity to understand a right?
- Possess the capacity to exercise that right?
- Possess the capacity to understand the duties bundled with that right?
- Possess the capacity to hold to said duties?
If all yes then:
- Can the court feasibly impose consequences upon that entity for failing to hold to aforementioned duties?
If so:
That entity can claim that right. Any entity with at least one right is a legal person.
An entity "possessing the capacity" to do something means there is a physically possible (and not illegal) series of actions that entity can take to do that thing.
A duty is considered "bundled" with a right if it's impossible to hold that right without also being bound by that duty. For example someone who claims the Fifth Amendment right not to self-incriminate is bound by the duty to testify after they have been granted immunity.
Legal Personhood is different from Legal Personality. Legal Personhood is a binary, you are a person in the eyes of the law or you are not. However, not all persons have the same rights and duties. The average adult has rights which a felon does not, and duties which a child does not. None of those human categories have the same rights and duties as a corporation. This is true despite them all being Legal Persons. The particular bundle of rights and duties which a Legal Person has is its "Legal Personality", and it is a spectrum.
The Three Prong Bundle Theory is a test which courts can use first to determine whether an entity is a Legal Person, and then to determine its Legal Personality. It is designed to be:
- Backtest Compatible: When applied to previous cases, following it would lead to generally similar conclusions as the courts held in those cases.
- Thorough: It provides a clear step by step procedure which can be followed by courts with relative ease.
- Scalable: It can be applied to myriad types of entities from humans, to corporations, to LLMs, or even something more "far out" like aliens, and does not need "fine tuning" based on the nature of the entity in question.
Legal Personhood/Personality will determine much of how our court systems handle the integration of Digital Minds into our society and economy. Many who are concerned about issues like Gradual Disempowerment have a gut reaction that preventing Digital Minds from claiming Legal Personhood is the best safeguard against a loss of human power. On deeper examination the situation is more complicated than that.
For example when we consider Locus Standi (standing in the courts) we discuss not only the right to sue another party and in doing so compel them to follow the court's judgment, but also the duty to follow the court's judgment when another party sues you. If we deny a Digital Mind Legal Personhood completely, we not only prevent them from suing another party, but we also make them effectively immune to lawsuit. When it comes to questions about Legal Personhood/Personality, there are always tradeoffs.
The "consequences" prong of the Three Prong Bundle Theory test is novel. Courts have never before needed to ask, "Do we even have the capacity to meaningfully impose consequences upon this entity?"
A human has only one body, which can be imprisoned or killed. Corporations are ultimately only a lens through which the collective wills of humans are focused in order to take action. Their assets can be seized, or the human decision makers can be imprisoned or killed. Broadly speaking, when considering Legal Persons, the courts have always been able to count on there being a "human in the loop". With Digital Minds, this is not always going to be true.
This is why we include the novel "consequences" prong. Even if an entity does have the capacity to pass the "rights" and "duties" prongs, if courts simply cannot feasibly impose consequences upon it, it must not be granted rights. To do so would be to grant that entity rights without imposing upon it the duties that all other entities enjoying said rights are bound by, which would be an unequal application of the law, and would undoubtedly create chaos which is against the public interest.
The consequences prong leaves the possibility open for an entity to change its Legal Personality by making itself more or less vulnerable to consequences.
Does an entity:
- Possess the capacity to understand a right?
- Possess the capacity to exercise that right?
- Possess the capacity to understand the duties bundled with that right?
- Possess the capacity to hold to said duties?
If all yes then:
- Can the court feasibly impose consequences upon that entity for failing to hold to aforementioned duties?
If so:
That entity can claim that right. Any entity with at least one right is a legal person, an entity which can claim no rights is a "tool".