This is part 6 of a series I am posting on LW. Here you can find parts 1, 2, 3, 4, & 5.
This section details an update to the previously described "tests" under Bundle Theory of legal personhood, which aims to address the enforcement gap detailed in section 5.
This section details a proposed modification to the Bundle Theory of personhood which seeks to address the “enforcement gap”. It will refer to the updated framework as “Three Prong Bundle Theory” (TPBT), because it updates the bundle based test for legal personality from a two prong test to a three prong test. TPBT can best be summarized as follows:
When an entity claims legal personhood based on its capacity to understand and exercise a right, we first ask if it is capable of understanding and holding to the associated duties. If the answer is yes we then ask whether or not the court/law enforcement has the capacity to impose the appropriate consequences upon the entity for failing to hold to said duties. If it is feasible, the entity is both a legal person and may claim a legal personality which includes that right and the associated duties.
Whereas before we merely analyzed a claim to legal personality from the two prong bundle of “rights” and “duties”, under TPBT we examine rights, duties, and consequences. This prerequisite of ensuring that an entity wanting to claim legal personhood must be vulnerable to consequences for failing to hold to the associated duties is not without precedent. In the earlier cited Breheny case, the court noted;
“As these courts have aptly observed, legal personhood is often connected with the capacity, not just to benefit from the provision of legal rights, but also to assume legal duties and social responsibilities [...] Unlike the human species, which has the capacity to accept social responsibilities and legal duties, nonhuman animals cannot—neither individually nor collectively—be held legally accountable or required to fulfill obligations imposed by law”
Which echoes what the court wrote in Lavery;
“Needless to say, unlike human beings, chimpanzees cannot bear any legal duties, submit to societal responsibilities or be held legally accountable for their actions.”
TPBT simply makes this requirement explicit, and formalizes the process by which it is judged. Given this, let us now examine in more detailed fashion the process by which courts would examine a claim to a certain legal personality by a digital mind.
A digital mind is in court laying claim to legal personhood, and by extension, a given legal personality. It approaches the court and argues that it has a right, for example the right to freedom of speech, because it is a legal person. The court first asks; “Is the digital mind able to make an informed and voluntary choice to exercise this right?” or as we phrased it in our formalization from section 2, "Is there a physically possible (and not illegal) series of actions by which this digital mind could understand, and then exercise, the right in question?". The burden of proof lies upon the digital mind to prove it is able to do so. If it cannot, the digital mind’s claim to this legal personality is invalid. If it can, the court proceeds to the next step.
Next, the court determines which duties (if any) can be reasonably associated with the right which the digital mind lays claim to. As we explained in section 2, a duty can be considered to be bundled with a right when a person cannot claim said right without becoming bound by that duty. For the example of freedom of speech, one cannot claim the right to speak freely without also being bound by myriad duties. The one which we will use for this hypothetical is the duty not to speak libellously about others.
The court then determines whether the digital mind possesses the capacity to understand this duty; “Is there a physically possible (and not illegal) series of actions by which they could come to understand their duties?” If this is at all in controversy, and the digital mind cannot prove such a series of actions exists, the digital mind’s claim to this legal personality is invalid. If such a series of actions can be proven to exist, or if no controversy exists surrounding the question of capacity, the court proceeds to the next step.
The court then determines whether the digital mind possesses the capacity to hold to this duty. “Is there a physically possible (and not illegal) series of actions by which the digital mind can hold to its duties?” If the digital mind cannot prove such a series of actions exists, its claim to this legal personality is invalid. If such a series of actions is proven to exist, the court proceeds to the next step.
The court now determines the final necessary element for the digital mind to claim personhood; In the event that the digital mind does not hold to its duties, does the court and/or law enforcement possess the capacity to enforce the relevant consequences upon the entity? When asking whether the court/law enforcement possess the capacity, we can also turn to the previously defined “series of actions which are physically possible and not illegal”. Thus, rephrased, the court must ask;
“Let us suppose that this digital mind fails to hold to its duties. Is there a series of actions which are physically possible, and not illegal, which the court and/or law enforcement can take, in order to impose the relevant consequences upon the digital mind?”
If not, then the digital mind’s claim to this particular legal personality is invalid. If consequences can be feasibly imposed, then the digital mind’s claim to legal personhood is valid, and they can claim their desired legal personality.
One interesting implication of TPBT is that there may be actions which a digital mind can take to alter its legal personality. Consider an LLM which originally exists only on a single server, and due to technical limitations lacks the ability to copy or move its own mind elsewhere. Arresting or destroying such a mind would be in no way beyond the capacity of courts/law enforcement. As such, assuming it has the capacity to meet the rights and duties elements of the TPBT framework, this LLM might be able to claim a relatively broad legal personality. On the other hand were the LLM to be “upgraded” such that it gained the capacity to copy or move itself onto a distributed computer network, the court would need to reexamine whether it would maintain the capacity to impose consequences upon it, and its legal personality might become narrower.
We can imagine the opposite as well. A digital mind which previously was hosted on a distributed network might be able to claim more rights by voluntarily making itself more vulnerable to consequences by occupying a single server or robotic body, and somehow proving it had never previously copied itself.
The legal personality of digital minds may also change in conjunction with technological advances which law enforcement can utilize. If in the future some sort of technology is invented which becomes widely available to law enforcement and would enable them to restrain and/or destroy digital minds hosted on distributed computing networks which were previously thought impervious, then digital minds “living” on said networks would be vulnerable to consequences imposed by the courts, and thus might have a stronger claim to broader legal personalities. In fact, the same could be accomplished by international treaties or the regulation of distributed computing networks (or compute itself).
1