Introduction
The idea of a legal rights bearer is a strange one, and in some ways is not dissimilar to an elephant; it is difficult to describe one to a person unfamiliar with the concept, but we all think we would recognize one when we see them. Yet this certainty might be misplaced. In the contemporary world, with technological and biological advances that are developing rapidly around us, the status of certain novel beings as bearers of legally enforceable rights is far from settled.
These beings have various names and forms: robots, cyborgs, androids, artificial intelligence, medically enhanced humans, biological intelligence and so on. Indeed, the confusion as to the legal status of these beings is, in part, due to the very breadth of the physical form a novel being may take.Footnote 1 With various physical entities before us, it is difficult to identify a relevant criterion by which we can assess the normative validity of the legal rights claims that are, or in future may be, made by such beings. The purpose of this paper is to argue that this normative question requires a normative solution that identifies a characteristic that can justify the ascription of legal rights.
The paper will begin by summarizing the moral writing of Alan Gewirth, before moving on to assess the extent to which novel beings could be said to be bearers of morally legitimate claim-rights. Having demonstrated that there is no conceptual difficulty in the contention that the test for moral patiency provided by Gewirth is capable of providing a normative justification for moral claim-rights for novel beings who come within its starting parameters, the paper will move on to argue that recognition of a connection between Gewirthian morality and the concept of legal personhood is desirable. This will be achieved by exploring the extent to which the law already deals with the problem of whether or not both biological and nonbiological novel beings are legitimate bearers of legally enforceable rights, concluding with an analysis of whether or not the law is moving in a morally desirable direction.
Novel Beings as Legal Rightsholders
The question of whether we ought to recognize legally enforceable rights for novel begins is one which, at present, does not benefit from a commonly agreed answer. The purpose of this article will be to shed clarity on the normative question being asked, and to suggest an answer that ought to be acceptable to all legal systems. The term “law” will be used in the abstract without reference to a particular jurisdiction, unless that jurisdiction is relevant to the point being developed. This breadth is necessary as the topic of whether the law is capable of addressing and protecting the rights of novel beings is itself a conceptual problem, and excessive reliance on the doctrinal restrictions of a given legal system in answering the question would arbitrarily limit our enquiry as to what the law can achieve.
A full exploration of the issues will follow, but it is worth noting at the outset that the question of whether the law is conceptually capable of addressing whether novel beings should be viewed as legal persons is neither speculative nor hypothetical, but is one that has been both asked and answered before. An example can be found with the Warnock Report, which was tasked with making proposals as to the legal status of embryos. The report acknowledged the centrality of moral concerns in coming to its conclusions, thus legitimizing the central role of the Principle of Genetic Consistency (PGC) in this paper:
Although the questions of when life or personhood begin appear to be questions of fact susceptible of straightforward answers, we hold that the answers to such questions in fact are complex amalgams of factual and moral judgements.Footnote 2
Although not unanimous,Footnote 3 the report recommended that embryos should not be seen as full legal persons but acknowledged that they were nonetheless moral patients by imposing legal conditions on their use in medical research.Footnote 4 Given that the Warnock Report turned to moral philosophy in order to answer the question of whether embryos were deserving of legal protection, it seems unobjectionable to begin with an ethical framework when further exploring the issue for other novel beings.
The Gewirthian Framework
Given the precedent set by the Warnock Report, this paper will begin by addressing the question of whether it is morally desirable that novel beings should be recognized as having morally legitimate rights claims before turning to the question of legal recognition of these rights. If such beings are incapable of making morally legitimate claim-rights, it would not make sense to say their being capable of making legal rights claims were itself morally desirable—the question would be an amoral one, and their legal rights would be at best morally supererogatory.
The test which will be adopted here is found the moral writings of Alan Gewirth, as he provides a step-by-step framework which progresses on a dialectically necessary basis with the aim of justifying universal rights-claims.Footnote 5 This ambitious work has understandably been the subject of much scholarly attention and criticism, but it is not within the scope of this paper to defend Gewirth against his detractors—this has been comprehensively achieved elsewhere.Footnote 6 Instead, this paper will begin by summarizing the argument before applying it to the novel beings currently under discussion. Work has been done on the application of Gewirthian theory to specific cases involving nonhuman agents before,Footnote 7 but this paper will instead ask the broader question of what features novel beings need to possess in order to have a morally legitimate rights claim.
The Principle of Generic Consistency
The framework this paper will use is that provided by Alan Gewirth’s epitome Reason and Morality. He locates what he believes to be a supreme moral principle in “The Principle of Generic Consistency,” (PGC) a principle which behaves as a categorical imperativeFootnote 8 to regulate the behavior of all noumenal agentsFootnote 9 by dint of their being a noumenal agent. The argument was divided into three steps by Deryck Beyleveld in order to more clearly delineate the dialectically necessary progression it contains,Footnote 10 and this division will be adopted here for the clarity it provides.
Stage one of the PGC begins with a statement of what it means to be a prospective purposive agent—that I perform an action of my own volition in order to bring about a specific end. This is commonly accepted as the standard view of what it means to be an agent, and was a starting point deliberately chosen by Gewirth for this purpose.Footnote 11 Beyleveld argues that the statement can be unpacked in order to expose the following components in the following logical sequence. Firstly, the agent must view the end desired as subjectively good or otherwise of benefit to them; were this not true, the agent would not attempt to act in order to attain it. Secondly, an agent’s freedom and wellbeing are necessary conditions of agency, in that any purposive and voluntary action cannot be performed without an agent enjoying a bare minimum level of personal autonomy or physical and mental wellbeing. From this point, freedom and wellbeing should be seen as instrumentally necessary goods for the attainment of any end, and can be legitimately referred to as universally held “Generic Conditions of Agency” (GCAs).Footnote 12
Stage two of the PGC builds on this idea of GCAs. Any agent, from their own internal point of view and regardless of any interaction with other agents, must see any interference with their GCAs as undesirable. This is because GCAs are necessary for the attainment of any end, and since the agent sees an end as desirable (or else they would not be trying to attain it) then they must also desire that their GCAs are not interfered with without their consent. An agent is therefore committed to believing that they have a claim right to noninterference with their GCAs of freedom and wellbeing.Footnote 13 If an agent accepts that their GCAs are instrumentally necessary goods, universal for any end, then this conclusion is a logical and dialectical necessity. Failure to acknowledge that they are committed to seeing themselves as possessing a claim-right to their GCAs means an agent contradicts the starting point of their own agency according to the standard view from which stage one of the PGC is constructed, something which is a logical impossibility.
Stage three takes the fact that an agent is dialectically necessarily committed to seeing their GCAs as claim rights by dint of their agency and universalizes the position to all agents. If I am able to claim GCAs because of my own agency, all other agents must also be capable of making the same claim. That this is something I ought to accept is self-reflexive; I am required to acknowledge this, otherwise I contradict myself by claiming that other agents are not capable of making rights claims despite possessing the same characteristic which creates my own.Footnote 14 Any agent must therefore recognize that all agents possess the same claim right to their freedom and wellbeing, or else they contradict their own status as agents.Footnote 15
By extension, any agent must respect the claim-rights to freedom and wellbeing that are possessed by all other agents. Failing to do so would require an agent to deny one of two things, both of which they are logically precluded from doing by the dialectically necessary progression of the argument for the PGC; either they deny that they have rights to their GCAs, or deny their own agential status. As both denials require the exercise of agency through GCAs, the denials cannot succeed as they entail a paradox whereby the criteria they seek to deny are essential for them to be successful. Thus, the argument creates a normative obligation restricting the permissible behavior of all agents to those which do not interfere with the rights of other agents without their consent, which is a statement of the PGC.
The PGC and Novel Beings
The PGC does not create a normative foundation for human rights, but for agential rights. The GCAs that it seeks to protect are necessarily capable of being claimed as rights by all agents that meet the requirements of agency according to the standard view, regardless of species or bodily form. Such a conclusion has been demonstrated by Beyleveld,Footnote 16 and from this, we are required to acknowledge that there is no normative reason why such claim-rights should be anthropocentric. Provided a novel being is an agent as per the standard view, their rights ought to be respected for our behavior to be PGC compliant. The question before us has therefore changed. No longer are we asking whether it is desirable to see novel beings as possessing legitimate rights-claims, but whether the novel being in question is an agent for the purposes of the PGC. If the answer to this question is in the affirmative, then the fact of our own agency requires us to acknowledge the rights-claim being made by the agent is as valid as the rights-claim we make for ourselves. If the novel being in question is not an agent, then the ascription of any rights would be supererogatory.
The question of whether or not novel beings are agents is, however, not one which has a readily available answer. As identified by Thomas Nagel, it is impossible for any agent to know whether or not another subject they encounter is an agent as the structure of our own minds renders us incapable of seeing into theirs to ascertain their “subjective character of experience.”Footnote 17 The same point is made by Beyleveld:
Because agency involves capacities like self-awareness, only Albert can know directly that Albert is an agent; he cannot know directly that Brenda is an agent. All that Albert can know directly is that Brenda behaves as though she is an agent… This cognitive deficiency is part of the very essence of being human.Footnote 18
We should recognize that, in circumstances where the agential status of a being is unknowable, we should act according to the precautionary principle. This holds that where an agent behaves as though they are an agent, then we should err on the side of caution and treat them as though they are. In order to understand the rationale for this caution, the following hypothetical scenario should be considered. A being whose agential status is unknown behaves in a manner that leads the observer to believe that they are an agent. The observer needs to decide whether or not they should treat them as though they are agents, and thus subject to the requirements of the PGC. The following options are open to the observer:
1) If the being is an agent, then:
i. If the observer treats them in a way that is PGC compliant, then the observer’s behavior is morally permissible.
ii. If the observer treats them in a way that is not PGC compliant, then the observer’s behavior is morally impermissible.
2) If the being is not an agent, then:
i. If the observer treats them in a way that is PGC compliant, then the observer’s behavior is morally permissible.
ii. If the observer treats them in a way that is not PGC compliant, then the observer’s behavior is morally permissible.
The PGC requires us to avoid behavior that is not compatible with its requirements, so the course of action that should be categorically avoided can be seen to be course of action 1) ii. If the agential status of the being is uncertain, the only way to avoid this outcome is to always treat the being in a PGC compliant manner—as this is the only means by which we are able to guarantee our actions will be morally permissible regardless of the agential status of the being we observe. This ought not to be rejected as excessive caution, as the precautionary principle is widely accepted in scientific fields and philosophical literature. Benjamin Capps relies on this same reasoning when he states that it would be unethical for human brain cells to be grown in animal hosts despite the potential medical benefits that may arise from such research, on the grounds that we cannot be sure whether such a procedure would give rise to human-like levels of consciousness. Since this is unknowable, the procedure should be avoided just in case it does give rise to this outcome.Footnote 19
There is no reason this conclusion should only be reached for biological entities.Footnote 20 Should they meet the agential requirements of the PGC then any novel being should be seen as a moral patient; a being deserving of moral concern.Footnote 21 Much contemporary literature proposes the standard view of moral patiency that considers a degree of moral agency necessary in order for AI to be considered a moral patient,Footnote 22 concluding that—given the technology required for AI to take meaningful moral decisions is far from being realized—the question of moral patiency for AI is itself moot.Footnote 23 This paper rejects this conclusion. The PGC demonstrates that it is dialectically necessary to see any potential agent under the precautionary principle as a moral patient regardless of their ability to be a moral agent. Far from being a novel way of looking at moral worth, this is something that correlates with how many world views treat members of our own species; babies are widely held to be of moral concern, despite being incapable of moral agency until they become more fully grown.Footnote 24 We can therefore conclude that moral patiency can exist regardless of the moral agency of the being in question. Any novel being that meets the agential requirements of the PGC supported by the precautionary principle is therefore a moral patient, and the recognition that they have claim-rights to their GCAs is morally obligatory.
Legal Personhood for Novel Beings
Having established that the PGC requires us to recognize the claim rights made by novel beings who meet its threshold criterion of agency supplemented by the precautionary principle are legitimate, we can move to the question of the legal recognition of rights for novel beings through the granting of legal personhood.Footnote 25 For the purposes of our argument, it is worth noting that the concept is commonly accepted to be a construct designed to denote that the legal person is the beneficiary of a bundle of legally enforceable rights.Footnote 26 The following section will argue that it is morally desirable that the law should reflect the fact that all agents that meet the minimum threshold supported by the precautionary principle are moral patients capable of possessing claim-rights to their freedom and wellbeing, and offer legal protection for these legitimate claims.
Gewirthian Legal Personhood
A Gewirthian conception of legal personhood would rest on what Ngaire Naffine has identified as a metaphysical idealFootnote 27—a conception of the person based in the dialectical necessity of recognizing noumenal agency as the foundation any claim-rights and, by extension, of moral patiency. Although several metaphysical conceptions of personhood exist,Footnote 28 the PGC requires us to focus exclusively on the centrality of noumenal agency as the source of our own rights-claims. As such, alternative conceptions are not directly relevant to the present argument. This is because a key benefit of the PGC can be found in that it provides an inescapable metric by which specific queries as to the desirability of legal personhood can be answered. An example of such a question can be found with cyborgs—questions as to the relevance of the extent to which the being is still a natural person as opposed to mechanical replacement componentsFootnote 29 are circumvented by the question of whether the being remains a noumenal agent. David Lawrence would therefore be pleased to hear that our conception of what it means to be “human” could also be substantially altered by the PGC,Footnote 30 and that it may be able to serve to grant rights to all novel beings who meet its requirements to the same extent as those we enjoy for ourselves.Footnote 31
The success of the metric provided by PGC rests on the fact that it provides a sound foundation for the expansion of legal personhood by identifying what a morally relevant characteristic for the ascription of this status is. It does so by answering the question of why we are able to see our own claim-rights as legitimate to the point of them requiring legal protection, thus allowing us to identify a clear foundation of legitimate rights that ordinary language usage cannot ascribe:
Surely, because I call it a “robot” is also not a creditable reason for you to deny that it is conscious. Otherwise I could start referring to the entity as a “human” and you would have to agree that it is conscious.Footnote 32
We are therefore able to use the PGC as a metric by which to avoid making similar mistakes as those that were made by previous denial of personhood to slaves, women and children in numerous societies.Footnote 33 Such a critical, normative foundation against which to assess the desirability of expansions of legal personhood can be seen to match developments in critical morality. It has been noted that most people, when confronted with the problem, believe that nonhuman biological persons are of equal moral worth to ourselvesFootnote 34 and equally reject the bio-centrism of debates around moral patiency.Footnote 35 We can therefore confirm the claim of Guido Boella et al. that there is no reason why artificial agents should not be seen as full members of the ontological community,Footnote 36 provided they be moral patients as identified by the PGC. We can assume, following Ugo Pagallo et al that technological advancements will make this question of moral patiency of novel beings more relevantFootnote 37—and Gewirth provides the tool by which this normative issue can be addressed. Put simply, our own agency requires us to see the extension of legal personhood to all novel beings who meet the same threshold criterion as morally desirable.
It is worth acknowledging at this point that several arguments have been put forward that would argue against the conclusion reached by the preceding analysis. A particularly comprehensive outline of such concerns has been proposed by Joanna Bryson et al with regards to extending legal personhood to AI in particular, but their objections are applicable to novel beings more broadly.Footnote 38 The three main arguments they propose are centered on the importance of restricting the legal recognition of rights-bearers to protect the interests of existing legal personsFootnote 39; the realist critique that no metaphysical justification of personhood can be used to ground the legal fiction of personhoodFootnote 40; and the purposivist objection that, as human legal systems are designed to protect human interests, rights of novel beings should not be prioritized over those of our own species.Footnote 41 Space precludes a fully reasoned rebuttal of these points, but it will suffice to state that these objections do not engage with the normative obligation contained within the PGC and proposed by this paper. As such, they fail to provide a convincing argument against the desirability of extending legal personhood to those classes of beings that possess the requisite level of agency to be recognized by the PGC as moral patients. Indeed, the conclusion reached by this paper is something that Bryson et al should accept—they themselves concede that AI should be granted legal personhood if a universal metric for moral patiency should be identified.Footnote 42
A contributory reason for the failure of their tripartite rebuttal is their reliance on a contestable notion of legal personhood. Bryson et al. rely on an extremely narrow definition proposed by Sheikh Solaiman, that legal personhood can only be granted to a being “that it is able to know and execute its rights as a legal agent, and that it is subject to legal sanctions ordinarily applied to humans.”Footnote 43 This view should be rejected for two reasons. First, the theoretical objection proposed by Naffine’s scalar modelFootnote 44 in which she suggests that explicitly connecting legal personhood with humanity is problematic:
The reliance of this definition of the person, at least in part, on a biological paradigm of human being means that it is exposed to controversies between biologists, which are in turn influenced by the new medical technologies… It is also vulnerable to social or cultural considerations because the meaning of biology is always socially determined.Footnote 45
Secondly, Solaiman’s definition fails to recognize that things incapable of being subject to sanction are already granted the status of legal person; a contemporary example is the recognition of legal personhood of rivers in New ZealandFootnote 46 and India.Footnote 47 Similarly, the Criminal Law of many jurisdictions holds children to be incapable of being subject to legal sanctions due to their age, but this does not remove their status as legal persons.Footnote 48 The criterion held to be necessary by Solaiman can therefore be seen to be anything but, and his definition should be rejected. The PGC compliant legal personhood outlined above can provide the metaphysical conception of legal personhood grounded in agency that, in turn, can respect the legitimate moral claim-rights of the novel beings Bryson et al. wish to deny. If legal personhood is a vehicle by which we attain legal protection of our own moral claim-rights, and our moral claim-rights are necessarily grounded in the PGC, it follows that consistency requires that legal personhood be extended to all beings who are subject to the PGC. Failure to acknowledge this would result in an arbitrary delineation that cannot be morally desirable. It is therefore morally desirable that legal personhood be extended to all novel beings who meet the PGC threshold criterion of noumenal agency.
Having identified this desirable outcome, this article will now move on to examine whether or not this theoretically desirable framework is compatible with legal practice by examining how the law currently interacts with both biological and artificial novel beings.
Biological Novel Beings and PGC Compliant Legal Personhood
We may now ask whether such novel beings are identifiable in the present as opposed to being academic thought experiments with no real-world relevance. It is evident that the issue is real and pressing. Recent advances in medical enhancement technology make this enquiry particularly timely with regards to biological advancements within our own speciesFootnote 49 in addition to nonhuman or nonbiological rightsholders. The issue is also prevalent in Animal Law, and the means by which two jurisdictions have approached the problem of legally enforceable rights for nonhuman animals will be addressed in turn in order to provide a commentary of how the law is addressing the issue in contemporary litigation.
Justice for Cecila
In 2015, an Argentine court heard the case of a 20-year-old female held in isolation, without her consent having being sought, in cramped and unsanitary conditions which were thought to be a direct cause of a noticeable decline in her physical and mental health and wellbeing.Footnote 50 Were Cecilia a member of the Homo sapiens species, the question of whether her writ for habeas corpus would be successful would not have been asked. The difficulty faced by the judge in this case was that Cecilia is a Chimpanzee.
To grant a writ of habeas corpus and enforce Cecilia’s right not to be held without her consent, the court needed to extend the concept of legal personhood and see her as a subject able to bear legal rights. This is something the judge felt able to do, explicitly awarding her the status of “non-human legal person.”Footnote 51 The court was careful to do this on purely legalistic grounds, drawing an analogy with diffuse interest rights already protected in the Argentine Constitution. These rights are grantable to things generally considered property, if their destruction or harm would reduce the right of Argentine citizens to enjoy their quality of life. The court held that all flora and fauna in Argentina, including those resident in zoos, were part of the environment—and as the environment was necessary for citizens to fully enjoy their quality of life, individual fauna were deserving of rights protection. And as Cecilia was a resident of the Mendoza zoo, this protection could be granted.Footnote 52
At first instance, it may not seem as though the courts saw Cecilia as a bearer of legal rights in her own right; any rights she had were apparently protected because of their instrumental benefit to Argentine citizens. Yet beneath this instrumentalization a deeper logic exists, one that expressly recognizes the moral element the judge believed to be operating beneath any claim to legal rights and personhood. By appealing to a moral conception of what it means to be human, the judge was able to make Cecilia’s own sentience an operative component of her deliberation as to her extension of legal personhood:
Great apes are legal persons and owners of the inherent rights of sentient beings. This affirmation seems contrary to the applicable positive laws. But this is only an appearance that comes out only in certain doctrine [sic] sectors that are not aware of the clear incoherence of our legal system that states that animals are things while it also protects them from animal cruelty, legislating for this even within criminal law.Footnote 53
This decision has laid the ground for future decisions with similar facts to be decided similarly. Although Civil Law jurisdictions do not generally use a strict system of stare decisis in the same way as Common Law systems, it is not unreasonable to conclude that animals in Argentina who meet the sentience threshold could, were a case to be lodged, have identifiable legal rights enforced. Whilst the full scope of the rights the Argentine Courts may wish to uphold is unclear, the system has shown itself willing to take the step beyond legal anthropocentricity and grant legally enforceable rights to nonhumans.
American Case Law
The Common Law is often seen as a vehicle through which rights can be granted by the courts through incremental change.Footnote 54 This is because, in addition to its prioritization of certainty and consistency, the Common Law is amenable to be responsive to fairness, reason, and flexibility.Footnote 55 The willingness of Common Law courts to identify wide-reaching rights can be seen clearly in the American context, such as the landmark decision to grant all United States citizens the right not to be discriminated against on the basis of sex.Footnote 56 Theory suggests that a legal change granting rights to previously disenfranchized beings will be permitted if a good enough reason—in law or fact—can be found to support it.Footnote 57 Yet despite much academic commentary in the United StatesFootnote 58 and persistent legal attempts to recognize Nonhuman Rights,Footnote 59 the courts have been reluctant to move beyond their traditional anthropocentricity. This is reluctance has been recently brought to the fore by the famous “Monkey Selfie” litigation.Footnote 60 The facts are as follows.
Naruto was a black crested macaque who lived in a reserve in Sulawesi, Indonesia. David Slater, a photographer, laid a camera trap in the forest; Naruto found the trap, dismantled it, and took a series of selfies which Mr Slater later published. PETA brought a suit on behalf of Naruto, arguing that as the author of the image, he was also the owner of the copyright to their publication; all proceeds from their use therefore belonged to him and should be used to benefit the reserve in which he lived.Footnote 61 The case of authorship centered around Naruto’s intentional action in dismantling the trap and taking selfies; that “Naruto’s use of his hands in any activity resulted from his intentional, purposeful, and concentrated action, not mere happenstance or accident.”Footnote 62 PETA argued this demonstrated an understanding on Naruto’s part of a cause and effect relationship between pressing the shutter release and the change of his reflection in the lens, thus constituting autonomous intentional action leading to the creation of the published images.Footnote 63
The courts at first instance rejected PETA’s claim that Naruto could claim property rights over his image, holding that such rights could only be possessed by a human subject. They did, however, acknowledge that they were open to the possibility of nonhuman rights—but that express Congressional legislation would be required for them to be legally recognized.Footnote 64 This openness, providing the correct legislation was passed, was restated by the 9th Circuit when rejecting PETA’s appeal.Footnote 65 Central to this reasoning was the courts’ prioritization of the “Cetaceans Case” that first made reference to the necessity of Congressional authorization of nonhuman rights.Footnote 66
There is evidence however that, despite their reluctance, the U.S. Courts are beginning to recognize that these cases are not frivolous, but instead contain serious legal arguments with equally serious consequences for the claimants. Last year in a concurring judgment in ongoing litigation brought by the Nonhuman Rights Project on behalf of Tommy the Chimpanzee, Eugene Fahey J observed the following:
The issue whether a nonhuman animal has a fundamental right to liberty protected by a writ of habeas corpus is profound and far-reaching. It speaks to our relationship with all the life around us. Ultimately, we will not be able to ignore it. While it may be arguable that a chimpanzee is not a “person,” there is no doubt that it is not merely a thing.Footnote 67
If this statement is indicative of judicial opinion, then American Courts may be fast approaching the liminal space where rights for novel beings are recognized without congressional approval.
Applying the Gewirthian Framework
Applying the precautionary principle to Cecilia and Naruto, we ought to ask whether apes exhibit agent-like behavior sufficient to trigger the precautionary principle. The bench in both cases expressly accepted that they do—with reference made to Cecila’s emotional awareness and tool useFootnote 68 and Naruto’s intentional action.Footnote 69 As both Cecilia and Naruto are capable of making legitimate rights claims grounded in the PGC which, the extension of legal personhood to them can be seen to be desirable. To this extent, Argentine Law is behaving in a manner which is consistent with the requirements of the PGC in extending habeas corpus to Cecilia. American Law, by contrast, is clearly deficient in denying Naruto the possibility of legal enforcement of his legitimate rights claim. This is something that ought to be remedied, whether by statute or common law recognition of standing for nonhuman actors.
Artificially Created Novel Beings and PGC Compliant Legal Personhood
It could be objected that these beings are not truly novel when they are undeniably so similar to ourselves. An artificially created biological entity would be truly novel, and may be closer to existence than a lay-reader would think. The technology required to grow a biological brain and connect it to a robotic body already exists; such experimentation tends to use rat neurons that spontaneously reconnect when the correct conditions are provided.Footnote 70 Anecdotal reports from lab teams suggest that this artificial life is capable of learning and developing according to the environment in which they are grown,Footnote 71 and the same teams believe that advances in their techniques may mean that cultures of artificially grown rat neurons could create a level of brain processing power which would surpass that of patients who have suffered severe strokes.Footnote 72 The question of the legal status of such artificially created novel beings is one that ought to be considered.
Novel beings may also be completely artificial, in that they do not contain a biological component. Such entities are often referred to as “Artificial Intelligence,” although this term should be treated with caution due to its vagueness and breadth. In any case, it is widely accepted that AI currently comprises “intangible algorithms of which we see the work, not tangible cyborgs that inhabit our world.”Footnote 73 Although such agents are “capable of multiple and autonomous intervention [sic] in the legal world,”Footnote 74 such technology is very different from the androids we see in much science fictionFootnote 75 and, it is argued, means that current robots and AI should not be seen as legal agents.Footnote 76 The point is made by Bartosz Brozek and Marek Jacubiec, who introduce a character know as Mr Y. Mr Y is an android programmed to replicate human behavior, and the authors conclude he is undeserving of moral concern due to the fact he is nothing more than any other technology.Footnote 77 They argue that the mere replication of human behavior lacks an element of “folk-psychology”—an internalization by a population that the autonomous machine is one that is deserving of recognition as legally responsible based on characteristics the society deems relevant regarding beliefs, goals, intentions, and desires.Footnote 78
As long as AI merely mimic “cognitive functions that humans associate with their own intelligence, such as learning and reasoning, planning and problem solving…”Footnote 79 they would not be considered agents worth of protection under the PGC. Kenneth Himma draws the analogy of a dog that is trained to attack people who wear red. This is not a sign of agency; that requires deliberative decisionmaking followed by action.Footnote 80 Any AI must therefore have the potential to be self-aware and capable or engaging in exercises of practical rationality in order to be considered a moral patient.Footnote 81 Once it can do so, such AI could conceivably pass the threshold required for moral patiency under the PGC supported by the precautionary principle—and were it to do so, there would be no question that extension of legal rights to such a novel being would be morally desirable.
This may be far away from being realized, but the point itself remains valid. The question of whether robots and other novel beings have legally enforceable rights is more than a “bunch of academics having fun.”Footnote 82 Professional bodies have argued that the debate is both valuable and necessary,Footnote 83 and the closer we get to the existence of artificial as well as biological novel beings, the larger the ethical pressure to extend legally enforceable rights will become.Footnote 84 This is not to say that the rights of such novel beings will automatically trump those of existing rights holders—only that their rights should be seen as of equal concern, and that conflicts as to their scope should be treated as identical in law to any other.
Conclusion
This article should not be misconstrued as arguing that all forms of novel being, and in particular AI, are deserving of legally enforceable rights. Instead, it has sought to demonstrate that novel beings, regardless of their physical form, are capable of making legitimate claim-rights should they meet the requirements laid out by Gewirth’s PGC. This conclusion is dialectically necessary, as to deny this requires the reader to deny that they themselves are deserving of the same protection of their GCAs. From this, it is desirable that any legal interaction with such novel beings considers this moral status, ideally through recognition of their legal personhood given that this is the most commonly accepted way of recognizing an agent as being in possession of enforceable legal rights.
If the fact of our own agency requires us to acknowledge the rights-claim being made by the novel being is as valid as the rights-claim we make for ourselves, legal protection of these rights as at least morally desirable. Courts should therefore recognize that if novel beings are capable of making rights-claims on the same foundation as our own, the PGC suggests the law should seek to reflect this by offering a degree of rights protection. In order to enjoy such protection, novel beings would need to be recognized as being a legal subject capable of having their rights recognized by the courts.
This is a position that future developments in the field should build upon. Far from being speculative, the development of artificial novel beings means the time to seriously consider this question is almost certainly upon us. The issue was at the forefront of legal consciousness when Saudi Arabia granted citizenship to a robot named SofiaFootnote 85; though later exposed to be a publicity stunt, the fact that the issue of citizenship for AI so captured the public imagination suggests that the question of legal personhood for novel beings is one that we need to consider.Footnote 86 This is especially true if we believe that developments in technology may give rise to artificial agents whose cognitive abilities are similar to our own, requiring us to more accurately assess whether both future and existing novel beings are true noumenal agents. If it is conceivable that this question may soon be answered in the affirmative, it is better that the law be prepared for their answers than be found wanting.
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Introduction
The idea of a legal rights bearer is a strange one, and in some ways is not dissimilar to an elephant; it is difficult to describe one to a person unfamiliar with the concept, but we all think we would recognize one when we see them. Yet this certainty might be misplaced. In the contemporary world, with technological and biological advances that are developing rapidly around us, the status of certain novel beings as bearers of legally enforceable rights is far from settled.
These beings have various names and forms: robots, cyborgs, androids, artificial intelligence, medically enhanced humans, biological intelligence and so on. Indeed, the confusion as to the legal status of these beings is, in part, due to the very breadth of the physical form a novel being may take.Footnote 1 With various physical entities before us, it is difficult to identify a relevant criterion by which we can assess the normative validity of the legal rights claims that are, or in future may be, made by such beings. The purpose of this paper is to argue that this normative question requires a normative solution that identifies a characteristic that can justify the ascription of legal rights.
The paper will begin by summarizing the moral writing of Alan Gewirth, before moving on to assess the extent to which novel beings could be said to be bearers of morally legitimate claim-rights. Having demonstrated that there is no conceptual difficulty in the contention that the test for moral patiency provided by Gewirth is capable of providing a normative justification for moral claim-rights for novel beings who come within its starting parameters, the paper will move on to argue that recognition of a connection between Gewirthian morality and the concept of legal personhood is desirable. This will be achieved by exploring the extent to which the law already deals with the problem of whether or not both biological and nonbiological novel beings are legitimate bearers of legally enforceable rights, concluding with an analysis of whether or not the law is moving in a morally desirable direction.
Novel Beings as Legal Rightsholders
The question of whether we ought to recognize legally enforceable rights for novel begins is one which, at present, does not benefit from a commonly agreed answer. The purpose of this article will be to shed clarity on the normative question being asked, and to suggest an answer that ought to be acceptable to all legal systems. The term “law” will be used in the abstract without reference to a particular jurisdiction, unless that jurisdiction is relevant to the point being developed. This breadth is necessary as the topic of whether the law is capable of addressing and protecting the rights of novel beings is itself a conceptual problem, and excessive reliance on the doctrinal restrictions of a given legal system in answering the question would arbitrarily limit our enquiry as to what the law can achieve.
A full exploration of the issues will follow, but it is worth noting at the outset that the question of whether the law is conceptually capable of addressing whether novel beings should be viewed as legal persons is neither speculative nor hypothetical, but is one that has been both asked and answered before. An example can be found with the Warnock Report, which was tasked with making proposals as to the legal status of embryos. The report acknowledged the centrality of moral concerns in coming to its conclusions, thus legitimizing the central role of the Principle of Genetic Consistency (PGC) in this paper:
Although the questions of when life or personhood begin appear to be questions of fact susceptible of straightforward answers, we hold that the answers to such questions in fact are complex amalgams of factual and moral judgements.Footnote 2
Although not unanimous,Footnote 3 the report recommended that embryos should not be seen as full legal persons but acknowledged that they were nonetheless moral patients by imposing legal conditions on their use in medical research.Footnote 4 Given that the Warnock Report turned to moral philosophy in order to answer the question of whether embryos were deserving of legal protection, it seems unobjectionable to begin with an ethical framework when further exploring the issue for other novel beings.
The Gewirthian Framework
Given the precedent set by the Warnock Report, this paper will begin by addressing the question of whether it is morally desirable that novel beings should be recognized as having morally legitimate rights claims before turning to the question of legal recognition of these rights. If such beings are incapable of making morally legitimate claim-rights, it would not make sense to say their being capable of making legal rights claims were itself morally desirable—the question would be an amoral one, and their legal rights would be at best morally supererogatory.
The test which will be adopted here is found the moral writings of Alan Gewirth, as he provides a step-by-step framework which progresses on a dialectically necessary basis with the aim of justifying universal rights-claims.Footnote 5 This ambitious work has understandably been the subject of much scholarly attention and criticism, but it is not within the scope of this paper to defend Gewirth against his detractors—this has been comprehensively achieved elsewhere.Footnote 6 Instead, this paper will begin by summarizing the argument before applying it to the novel beings currently under discussion. Work has been done on the application of Gewirthian theory to specific cases involving nonhuman agents before,Footnote 7 but this paper will instead ask the broader question of what features novel beings need to possess in order to have a morally legitimate rights claim.
The Principle of Generic Consistency
The framework this paper will use is that provided by Alan Gewirth’s epitome Reason and Morality. He locates what he believes to be a supreme moral principle in “The Principle of Generic Consistency,” (PGC) a principle which behaves as a categorical imperativeFootnote 8 to regulate the behavior of all noumenal agentsFootnote 9 by dint of their being a noumenal agent. The argument was divided into three steps by Deryck Beyleveld in order to more clearly delineate the dialectically necessary progression it contains,Footnote 10 and this division will be adopted here for the clarity it provides.
Stage one of the PGC begins with a statement of what it means to be a prospective purposive agent—that I perform an action of my own volition in order to bring about a specific end. This is commonly accepted as the standard view of what it means to be an agent, and was a starting point deliberately chosen by Gewirth for this purpose.Footnote 11 Beyleveld argues that the statement can be unpacked in order to expose the following components in the following logical sequence. Firstly, the agent must view the end desired as subjectively good or otherwise of benefit to them; were this not true, the agent would not attempt to act in order to attain it. Secondly, an agent’s freedom and wellbeing are necessary conditions of agency, in that any purposive and voluntary action cannot be performed without an agent enjoying a bare minimum level of personal autonomy or physical and mental wellbeing. From this point, freedom and wellbeing should be seen as instrumentally necessary goods for the attainment of any end, and can be legitimately referred to as universally held “Generic Conditions of Agency” (GCAs).Footnote 12
Stage two of the PGC builds on this idea of GCAs. Any agent, from their own internal point of view and regardless of any interaction with other agents, must see any interference with their GCAs as undesirable. This is because GCAs are necessary for the attainment of any end, and since the agent sees an end as desirable (or else they would not be trying to attain it) then they must also desire that their GCAs are not interfered with without their consent. An agent is therefore committed to believing that they have a claim right to noninterference with their GCAs of freedom and wellbeing.Footnote 13 If an agent accepts that their GCAs are instrumentally necessary goods, universal for any end, then this conclusion is a logical and dialectical necessity. Failure to acknowledge that they are committed to seeing themselves as possessing a claim-right to their GCAs means an agent contradicts the starting point of their own agency according to the standard view from which stage one of the PGC is constructed, something which is a logical impossibility.
Stage three takes the fact that an agent is dialectically necessarily committed to seeing their GCAs as claim rights by dint of their agency and universalizes the position to all agents. If I am able to claim GCAs because of my own agency, all other agents must also be capable of making the same claim. That this is something I ought to accept is self-reflexive; I am required to acknowledge this, otherwise I contradict myself by claiming that other agents are not capable of making rights claims despite possessing the same characteristic which creates my own.Footnote 14 Any agent must therefore recognize that all agents possess the same claim right to their freedom and wellbeing, or else they contradict their own status as agents.Footnote 15
By extension, any agent must respect the claim-rights to freedom and wellbeing that are possessed by all other agents. Failing to do so would require an agent to deny one of two things, both of which they are logically precluded from doing by the dialectically necessary progression of the argument for the PGC; either they deny that they have rights to their GCAs, or deny their own agential status. As both denials require the exercise of agency through GCAs, the denials cannot succeed as they entail a paradox whereby the criteria they seek to deny are essential for them to be successful. Thus, the argument creates a normative obligation restricting the permissible behavior of all agents to those which do not interfere with the rights of other agents without their consent, which is a statement of the PGC.
The PGC and Novel Beings
The PGC does not create a normative foundation for human rights, but for agential rights. The GCAs that it seeks to protect are necessarily capable of being claimed as rights by all agents that meet the requirements of agency according to the standard view, regardless of species or bodily form. Such a conclusion has been demonstrated by Beyleveld,Footnote 16 and from this, we are required to acknowledge that there is no normative reason why such claim-rights should be anthropocentric. Provided a novel being is an agent as per the standard view, their rights ought to be respected for our behavior to be PGC compliant. The question before us has therefore changed. No longer are we asking whether it is desirable to see novel beings as possessing legitimate rights-claims, but whether the novel being in question is an agent for the purposes of the PGC. If the answer to this question is in the affirmative, then the fact of our own agency requires us to acknowledge the rights-claim being made by the agent is as valid as the rights-claim we make for ourselves. If the novel being in question is not an agent, then the ascription of any rights would be supererogatory.
The question of whether or not novel beings are agents is, however, not one which has a readily available answer. As identified by Thomas Nagel, it is impossible for any agent to know whether or not another subject they encounter is an agent as the structure of our own minds renders us incapable of seeing into theirs to ascertain their “subjective character of experience.”Footnote 17 The same point is made by Beyleveld:
Because agency involves capacities like self-awareness, only Albert can know directly that Albert is an agent; he cannot know directly that Brenda is an agent. All that Albert can know directly is that Brenda behaves as though she is an agent… This cognitive deficiency is part of the very essence of being human.Footnote 18
We should recognize that, in circumstances where the agential status of a being is unknowable, we should act according to the precautionary principle. This holds that where an agent behaves as though they are an agent, then we should err on the side of caution and treat them as though they are. In order to understand the rationale for this caution, the following hypothetical scenario should be considered. A being whose agential status is unknown behaves in a manner that leads the observer to believe that they are an agent. The observer needs to decide whether or not they should treat them as though they are agents, and thus subject to the requirements of the PGC. The following options are open to the observer:
1) If the being is an agent, then:
i. If the observer treats them in a way that is PGC compliant, then the observer’s behavior is morally permissible.
ii. If the observer treats them in a way that is not PGC compliant, then the observer’s behavior is morally impermissible.
2) If the being is not an agent, then:
i. If the observer treats them in a way that is PGC compliant, then the observer’s behavior is morally permissible.
ii. If the observer treats them in a way that is not PGC compliant, then the observer’s behavior is morally permissible.
The PGC requires us to avoid behavior that is not compatible with its requirements, so the course of action that should be categorically avoided can be seen to be course of action 1) ii. If the agential status of the being is uncertain, the only way to avoid this outcome is to always treat the being in a PGC compliant manner—as this is the only means by which we are able to guarantee our actions will be morally permissible regardless of the agential status of the being we observe. This ought not to be rejected as excessive caution, as the precautionary principle is widely accepted in scientific fields and philosophical literature. Benjamin Capps relies on this same reasoning when he states that it would be unethical for human brain cells to be grown in animal hosts despite the potential medical benefits that may arise from such research, on the grounds that we cannot be sure whether such a procedure would give rise to human-like levels of consciousness. Since this is unknowable, the procedure should be avoided just in case it does give rise to this outcome.Footnote 19
There is no reason this conclusion should only be reached for biological entities.Footnote 20 Should they meet the agential requirements of the PGC then any novel being should be seen as a moral patient; a being deserving of moral concern.Footnote 21 Much contemporary literature proposes the standard view of moral patiency that considers a degree of moral agency necessary in order for AI to be considered a moral patient,Footnote 22 concluding that—given the technology required for AI to take meaningful moral decisions is far from being realized—the question of moral patiency for AI is itself moot.Footnote 23 This paper rejects this conclusion. The PGC demonstrates that it is dialectically necessary to see any potential agent under the precautionary principle as a moral patient regardless of their ability to be a moral agent. Far from being a novel way of looking at moral worth, this is something that correlates with how many world views treat members of our own species; babies are widely held to be of moral concern, despite being incapable of moral agency until they become more fully grown.Footnote 24 We can therefore conclude that moral patiency can exist regardless of the moral agency of the being in question. Any novel being that meets the agential requirements of the PGC supported by the precautionary principle is therefore a moral patient, and the recognition that they have claim-rights to their GCAs is morally obligatory.
Legal Personhood for Novel Beings
Having established that the PGC requires us to recognize the claim rights made by novel beings who meet its threshold criterion of agency supplemented by the precautionary principle are legitimate, we can move to the question of the legal recognition of rights for novel beings through the granting of legal personhood.Footnote 25 For the purposes of our argument, it is worth noting that the concept is commonly accepted to be a construct designed to denote that the legal person is the beneficiary of a bundle of legally enforceable rights.Footnote 26 The following section will argue that it is morally desirable that the law should reflect the fact that all agents that meet the minimum threshold supported by the precautionary principle are moral patients capable of possessing claim-rights to their freedom and wellbeing, and offer legal protection for these legitimate claims.
Gewirthian Legal Personhood
A Gewirthian conception of legal personhood would rest on what Ngaire Naffine has identified as a metaphysical idealFootnote 27—a conception of the person based in the dialectical necessity of recognizing noumenal agency as the foundation any claim-rights and, by extension, of moral patiency. Although several metaphysical conceptions of personhood exist,Footnote 28 the PGC requires us to focus exclusively on the centrality of noumenal agency as the source of our own rights-claims. As such, alternative conceptions are not directly relevant to the present argument. This is because a key benefit of the PGC can be found in that it provides an inescapable metric by which specific queries as to the desirability of legal personhood can be answered. An example of such a question can be found with cyborgs—questions as to the relevance of the extent to which the being is still a natural person as opposed to mechanical replacement componentsFootnote 29 are circumvented by the question of whether the being remains a noumenal agent. David Lawrence would therefore be pleased to hear that our conception of what it means to be “human” could also be substantially altered by the PGC,Footnote 30 and that it may be able to serve to grant rights to all novel beings who meet its requirements to the same extent as those we enjoy for ourselves.Footnote 31
The success of the metric provided by PGC rests on the fact that it provides a sound foundation for the expansion of legal personhood by identifying what a morally relevant characteristic for the ascription of this status is. It does so by answering the question of why we are able to see our own claim-rights as legitimate to the point of them requiring legal protection, thus allowing us to identify a clear foundation of legitimate rights that ordinary language usage cannot ascribe:
Surely, because I call it a “robot” is also not a creditable reason for you to deny that it is conscious. Otherwise I could start referring to the entity as a “human” and you would have to agree that it is conscious.Footnote 32
We are therefore able to use the PGC as a metric by which to avoid making similar mistakes as those that were made by previous denial of personhood to slaves, women and children in numerous societies.Footnote 33 Such a critical, normative foundation against which to assess the desirability of expansions of legal personhood can be seen to match developments in critical morality. It has been noted that most people, when confronted with the problem, believe that nonhuman biological persons are of equal moral worth to ourselvesFootnote 34 and equally reject the bio-centrism of debates around moral patiency.Footnote 35 We can therefore confirm the claim of Guido Boella et al. that there is no reason why artificial agents should not be seen as full members of the ontological community,Footnote 36 provided they be moral patients as identified by the PGC. We can assume, following Ugo Pagallo et al that technological advancements will make this question of moral patiency of novel beings more relevantFootnote 37—and Gewirth provides the tool by which this normative issue can be addressed. Put simply, our own agency requires us to see the extension of legal personhood to all novel beings who meet the same threshold criterion as morally desirable.
It is worth acknowledging at this point that several arguments have been put forward that would argue against the conclusion reached by the preceding analysis. A particularly comprehensive outline of such concerns has been proposed by Joanna Bryson et al with regards to extending legal personhood to AI in particular, but their objections are applicable to novel beings more broadly.Footnote 38 The three main arguments they propose are centered on the importance of restricting the legal recognition of rights-bearers to protect the interests of existing legal personsFootnote 39; the realist critique that no metaphysical justification of personhood can be used to ground the legal fiction of personhoodFootnote 40; and the purposivist objection that, as human legal systems are designed to protect human interests, rights of novel beings should not be prioritized over those of our own species.Footnote 41 Space precludes a fully reasoned rebuttal of these points, but it will suffice to state that these objections do not engage with the normative obligation contained within the PGC and proposed by this paper. As such, they fail to provide a convincing argument against the desirability of extending legal personhood to those classes of beings that possess the requisite level of agency to be recognized by the PGC as moral patients. Indeed, the conclusion reached by this paper is something that Bryson et al should accept—they themselves concede that AI should be granted legal personhood if a universal metric for moral patiency should be identified.Footnote 42
A contributory reason for the failure of their tripartite rebuttal is their reliance on a contestable notion of legal personhood. Bryson et al. rely on an extremely narrow definition proposed by Sheikh Solaiman, that legal personhood can only be granted to a being “that it is able to know and execute its rights as a legal agent, and that it is subject to legal sanctions ordinarily applied to humans.”Footnote 43 This view should be rejected for two reasons. First, the theoretical objection proposed by Naffine’s scalar modelFootnote 44 in which she suggests that explicitly connecting legal personhood with humanity is problematic:
The reliance of this definition of the person, at least in part, on a biological paradigm of human being means that it is exposed to controversies between biologists, which are in turn influenced by the new medical technologies… It is also vulnerable to social or cultural considerations because the meaning of biology is always socially determined.Footnote 45
Secondly, Solaiman’s definition fails to recognize that things incapable of being subject to sanction are already granted the status of legal person; a contemporary example is the recognition of legal personhood of rivers in New ZealandFootnote 46 and India.Footnote 47 Similarly, the Criminal Law of many jurisdictions holds children to be incapable of being subject to legal sanctions due to their age, but this does not remove their status as legal persons.Footnote 48 The criterion held to be necessary by Solaiman can therefore be seen to be anything but, and his definition should be rejected. The PGC compliant legal personhood outlined above can provide the metaphysical conception of legal personhood grounded in agency that, in turn, can respect the legitimate moral claim-rights of the novel beings Bryson et al. wish to deny. If legal personhood is a vehicle by which we attain legal protection of our own moral claim-rights, and our moral claim-rights are necessarily grounded in the PGC, it follows that consistency requires that legal personhood be extended to all beings who are subject to the PGC. Failure to acknowledge this would result in an arbitrary delineation that cannot be morally desirable. It is therefore morally desirable that legal personhood be extended to all novel beings who meet the PGC threshold criterion of noumenal agency.
Having identified this desirable outcome, this article will now move on to examine whether or not this theoretically desirable framework is compatible with legal practice by examining how the law currently interacts with both biological and artificial novel beings.
Biological Novel Beings and PGC Compliant Legal Personhood
We may now ask whether such novel beings are identifiable in the present as opposed to being academic thought experiments with no real-world relevance. It is evident that the issue is real and pressing. Recent advances in medical enhancement technology make this enquiry particularly timely with regards to biological advancements within our own speciesFootnote 49 in addition to nonhuman or nonbiological rightsholders. The issue is also prevalent in Animal Law, and the means by which two jurisdictions have approached the problem of legally enforceable rights for nonhuman animals will be addressed in turn in order to provide a commentary of how the law is addressing the issue in contemporary litigation.
Justice for Cecila
In 2015, an Argentine court heard the case of a 20-year-old female held in isolation, without her consent having being sought, in cramped and unsanitary conditions which were thought to be a direct cause of a noticeable decline in her physical and mental health and wellbeing.Footnote 50 Were Cecilia a member of the Homo sapiens species, the question of whether her writ for habeas corpus would be successful would not have been asked. The difficulty faced by the judge in this case was that Cecilia is a Chimpanzee.
To grant a writ of habeas corpus and enforce Cecilia’s right not to be held without her consent, the court needed to extend the concept of legal personhood and see her as a subject able to bear legal rights. This is something the judge felt able to do, explicitly awarding her the status of “non-human legal person.”Footnote 51 The court was careful to do this on purely legalistic grounds, drawing an analogy with diffuse interest rights already protected in the Argentine Constitution. These rights are grantable to things generally considered property, if their destruction or harm would reduce the right of Argentine citizens to enjoy their quality of life. The court held that all flora and fauna in Argentina, including those resident in zoos, were part of the environment—and as the environment was necessary for citizens to fully enjoy their quality of life, individual fauna were deserving of rights protection. And as Cecilia was a resident of the Mendoza zoo, this protection could be granted.Footnote 52
At first instance, it may not seem as though the courts saw Cecilia as a bearer of legal rights in her own right; any rights she had were apparently protected because of their instrumental benefit to Argentine citizens. Yet beneath this instrumentalization a deeper logic exists, one that expressly recognizes the moral element the judge believed to be operating beneath any claim to legal rights and personhood. By appealing to a moral conception of what it means to be human, the judge was able to make Cecilia’s own sentience an operative component of her deliberation as to her extension of legal personhood:
Great apes are legal persons and owners of the inherent rights of sentient beings. This affirmation seems contrary to the applicable positive laws. But this is only an appearance that comes out only in certain doctrine [sic] sectors that are not aware of the clear incoherence of our legal system that states that animals are things while it also protects them from animal cruelty, legislating for this even within criminal law.Footnote 53
This decision has laid the ground for future decisions with similar facts to be decided similarly. Although Civil Law jurisdictions do not generally use a strict system of stare decisis in the same way as Common Law systems, it is not unreasonable to conclude that animals in Argentina who meet the sentience threshold could, were a case to be lodged, have identifiable legal rights enforced. Whilst the full scope of the rights the Argentine Courts may wish to uphold is unclear, the system has shown itself willing to take the step beyond legal anthropocentricity and grant legally enforceable rights to nonhumans.
American Case Law
The Common Law is often seen as a vehicle through which rights can be granted by the courts through incremental change.Footnote 54 This is because, in addition to its prioritization of certainty and consistency, the Common Law is amenable to be responsive to fairness, reason, and flexibility.Footnote 55 The willingness of Common Law courts to identify wide-reaching rights can be seen clearly in the American context, such as the landmark decision to grant all United States citizens the right not to be discriminated against on the basis of sex.Footnote 56 Theory suggests that a legal change granting rights to previously disenfranchized beings will be permitted if a good enough reason—in law or fact—can be found to support it.Footnote 57 Yet despite much academic commentary in the United StatesFootnote 58 and persistent legal attempts to recognize Nonhuman Rights,Footnote 59 the courts have been reluctant to move beyond their traditional anthropocentricity. This is reluctance has been recently brought to the fore by the famous “Monkey Selfie” litigation.Footnote 60 The facts are as follows.
Naruto was a black crested macaque who lived in a reserve in Sulawesi, Indonesia. David Slater, a photographer, laid a camera trap in the forest; Naruto found the trap, dismantled it, and took a series of selfies which Mr Slater later published. PETA brought a suit on behalf of Naruto, arguing that as the author of the image, he was also the owner of the copyright to their publication; all proceeds from their use therefore belonged to him and should be used to benefit the reserve in which he lived.Footnote 61 The case of authorship centered around Naruto’s intentional action in dismantling the trap and taking selfies; that “Naruto’s use of his hands in any activity resulted from his intentional, purposeful, and concentrated action, not mere happenstance or accident.”Footnote 62 PETA argued this demonstrated an understanding on Naruto’s part of a cause and effect relationship between pressing the shutter release and the change of his reflection in the lens, thus constituting autonomous intentional action leading to the creation of the published images.Footnote 63
The courts at first instance rejected PETA’s claim that Naruto could claim property rights over his image, holding that such rights could only be possessed by a human subject. They did, however, acknowledge that they were open to the possibility of nonhuman rights—but that express Congressional legislation would be required for them to be legally recognized.Footnote 64 This openness, providing the correct legislation was passed, was restated by the 9th Circuit when rejecting PETA’s appeal.Footnote 65 Central to this reasoning was the courts’ prioritization of the “Cetaceans Case” that first made reference to the necessity of Congressional authorization of nonhuman rights.Footnote 66
There is evidence however that, despite their reluctance, the U.S. Courts are beginning to recognize that these cases are not frivolous, but instead contain serious legal arguments with equally serious consequences for the claimants. Last year in a concurring judgment in ongoing litigation brought by the Nonhuman Rights Project on behalf of Tommy the Chimpanzee, Eugene Fahey J observed the following:
The issue whether a nonhuman animal has a fundamental right to liberty protected by a writ of habeas corpus is profound and far-reaching. It speaks to our relationship with all the life around us. Ultimately, we will not be able to ignore it. While it may be arguable that a chimpanzee is not a “person,” there is no doubt that it is not merely a thing.Footnote 67
If this statement is indicative of judicial opinion, then American Courts may be fast approaching the liminal space where rights for novel beings are recognized without congressional approval.
Applying the Gewirthian Framework
Applying the precautionary principle to Cecilia and Naruto, we ought to ask whether apes exhibit agent-like behavior sufficient to trigger the precautionary principle. The bench in both cases expressly accepted that they do—with reference made to Cecila’s emotional awareness and tool useFootnote 68 and Naruto’s intentional action.Footnote 69 As both Cecilia and Naruto are capable of making legitimate rights claims grounded in the PGC which, the extension of legal personhood to them can be seen to be desirable. To this extent, Argentine Law is behaving in a manner which is consistent with the requirements of the PGC in extending habeas corpus to Cecilia. American Law, by contrast, is clearly deficient in denying Naruto the possibility of legal enforcement of his legitimate rights claim. This is something that ought to be remedied, whether by statute or common law recognition of standing for nonhuman actors.
Artificially Created Novel Beings and PGC Compliant Legal Personhood
It could be objected that these beings are not truly novel when they are undeniably so similar to ourselves. An artificially created biological entity would be truly novel, and may be closer to existence than a lay-reader would think. The technology required to grow a biological brain and connect it to a robotic body already exists; such experimentation tends to use rat neurons that spontaneously reconnect when the correct conditions are provided.Footnote 70 Anecdotal reports from lab teams suggest that this artificial life is capable of learning and developing according to the environment in which they are grown,Footnote 71 and the same teams believe that advances in their techniques may mean that cultures of artificially grown rat neurons could create a level of brain processing power which would surpass that of patients who have suffered severe strokes.Footnote 72 The question of the legal status of such artificially created novel beings is one that ought to be considered.
Novel beings may also be completely artificial, in that they do not contain a biological component. Such entities are often referred to as “Artificial Intelligence,” although this term should be treated with caution due to its vagueness and breadth. In any case, it is widely accepted that AI currently comprises “intangible algorithms of which we see the work, not tangible cyborgs that inhabit our world.”Footnote 73 Although such agents are “capable of multiple and autonomous intervention [sic] in the legal world,”Footnote 74 such technology is very different from the androids we see in much science fictionFootnote 75 and, it is argued, means that current robots and AI should not be seen as legal agents.Footnote 76 The point is made by Bartosz Brozek and Marek Jacubiec, who introduce a character know as Mr Y. Mr Y is an android programmed to replicate human behavior, and the authors conclude he is undeserving of moral concern due to the fact he is nothing more than any other technology.Footnote 77 They argue that the mere replication of human behavior lacks an element of “folk-psychology”—an internalization by a population that the autonomous machine is one that is deserving of recognition as legally responsible based on characteristics the society deems relevant regarding beliefs, goals, intentions, and desires.Footnote 78
As long as AI merely mimic “cognitive functions that humans associate with their own intelligence, such as learning and reasoning, planning and problem solving…”Footnote 79 they would not be considered agents worth of protection under the PGC. Kenneth Himma draws the analogy of a dog that is trained to attack people who wear red. This is not a sign of agency; that requires deliberative decisionmaking followed by action.Footnote 80 Any AI must therefore have the potential to be self-aware and capable or engaging in exercises of practical rationality in order to be considered a moral patient.Footnote 81 Once it can do so, such AI could conceivably pass the threshold required for moral patiency under the PGC supported by the precautionary principle—and were it to do so, there would be no question that extension of legal rights to such a novel being would be morally desirable.
This may be far away from being realized, but the point itself remains valid. The question of whether robots and other novel beings have legally enforceable rights is more than a “bunch of academics having fun.”Footnote 82 Professional bodies have argued that the debate is both valuable and necessary,Footnote 83 and the closer we get to the existence of artificial as well as biological novel beings, the larger the ethical pressure to extend legally enforceable rights will become.Footnote 84 This is not to say that the rights of such novel beings will automatically trump those of existing rights holders—only that their rights should be seen as of equal concern, and that conflicts as to their scope should be treated as identical in law to any other.
Conclusion
This article should not be misconstrued as arguing that all forms of novel being, and in particular AI, are deserving of legally enforceable rights. Instead, it has sought to demonstrate that novel beings, regardless of their physical form, are capable of making legitimate claim-rights should they meet the requirements laid out by Gewirth’s PGC. This conclusion is dialectically necessary, as to deny this requires the reader to deny that they themselves are deserving of the same protection of their GCAs. From this, it is desirable that any legal interaction with such novel beings considers this moral status, ideally through recognition of their legal personhood given that this is the most commonly accepted way of recognizing an agent as being in possession of enforceable legal rights.
If the fact of our own agency requires us to acknowledge the rights-claim being made by the novel being is as valid as the rights-claim we make for ourselves, legal protection of these rights as at least morally desirable. Courts should therefore recognize that if novel beings are capable of making rights-claims on the same foundation as our own, the PGC suggests the law should seek to reflect this by offering a degree of rights protection. In order to enjoy such protection, novel beings would need to be recognized as being a legal subject capable of having their rights recognized by the courts.
This is a position that future developments in the field should build upon. Far from being speculative, the development of artificial novel beings means the time to seriously consider this question is almost certainly upon us. The issue was at the forefront of legal consciousness when Saudi Arabia granted citizenship to a robot named SofiaFootnote 85; though later exposed to be a publicity stunt, the fact that the issue of citizenship for AI so captured the public imagination suggests that the question of legal personhood for novel beings is one that we need to consider.Footnote 86 This is especially true if we believe that developments in technology may give rise to artificial agents whose cognitive abilities are similar to our own, requiring us to more accurately assess whether both future and existing novel beings are true noumenal agents. If it is conceivable that this question may soon be answered in the affirmative, it is better that the law be prepared for their answers than be found wanting.
Acknowledgments
I would like to thank all who have commented on oral and written drafts of this article, particularly the anonymous reviewers, for their invaluable help. All errors remain my own.