Rethinking Legal Personality
Welcome to the first in a series of articles by Håkon Evjemo. The pollen project is honoured to share this imaginative yet practically-minded writing - we are all the brighter for Håkon's thoughts. You'll find a more detailed introduction to the author at the base of this page. Enjoy.
RETHINKING LEGAL PERSONALITY TO MEET THE NATURE AND NEEDS OF AN OAK TREE:
Legal definitions are extremely important. They set the rules of the game and draw the line that separates the players from the pieces. For example, any definition of legal personality has two main roles. First, it determines which beings can access the legal system as a person. Second, it outlines the rights and responsibilities of those legal persons within that legal system.
One of the problems with legal definition is the either/or attitude that denies the ambiguity of the real world. There is one definition of legal personality and you either do or do not fit into it. But the line that separates human and nonhuman is not as clear as this suggests. When we compare commonalities and differences between humans and nonhumans the line blurs at a startling rate. Ambiguity is a real, positive presence in the world. With this in mind, can a one size fits all approach to defining legal personality do justice to the overlapping, co-existence of humans and the rest of the world?
One way to illustrate this point is to explore how corporations were granted legal personality and the consequences that followed. In the UK's precedent making case of Salomon v A. Salomon and Company (1897), the court was asked to determine whether Mr. Salomon, the majority shareholder of A Salomon & Co Ltd, should be personally liable for the company’s debts. The courts eventually concluded that Mr. Salomon was not liable because any company that had been legally incorporated must be treated like any other person with its rights and responsibilities appropriate to itself.
Since this decision, and many similar ones around the world, corporations have entered into and significantly changed the fabric of society. Their lasting impact on the world, for better or for worse, was largely facilitated by the prevailing definition of legal personality and the rights and responsibilities that came with it. Many of the less favourable consequences include:
people hiding behind limited corporations to take responsibility for their bad decisions;
the influx and domination of corporate spending in elections;
the abuse of corporate financial power via the threat of SLAPP or libel cases in private disputes;
the role offshore corporations play in tax avoidance through the possession and management of assets; and
the way legal obligations to protect shareholder value of companies narrow decision making to the detriment of the consideration of public goods or moral value.
Is it unfair of me to accuse the law for failing to anticipate these outcomes? Is it even the right way of looking at the situation? I wonder if we can explain these consequence as part of a failure to ask whether the definition of legal personality was appropriate to meet the nature and needs of corporations.
This moment of wonder conceals a silent belief of mine. I believe scientific rationalism has made us a victim of our own success. I believe we have begun to over-value certain criteria of knowledge that emphasize clarity, logical coherence and systematicity. In short, the evident success of reason based inquiry has turned analytic satisfaction into our most valued object of desire.
Nowhere is this more evident than in the law. This unspoken but prevalent desire for a logical system of control that gradually encroaches on infallibility influences the way we attend to the apparent shortcomings of legal definitions. For example, while it can be strongly argued that legal personality was initially created by and for human participation in legal systems, any further amendments to legal personality are largely in service of guaranteeing legal coherence with the system as a whole or establishing clearer, more objective rules for determining legal personhood. Somewhere along the line we stopped caring about how legal definitions relate to actual beings and more about how they serve the abstract system of which they are a part. The desire to preserve logical coherence has taken precedence over the messiness of the real world.
To me, this is like defrosting a chicken in a kettle. Forcing one being into a construct that was specifically designed for a different being will lead to unintended consequences. I will go as far as to say that when we gave corporations the status of legal personhood, without adjusting that definition of legal personhood to suit the nature and needs of corporations, we opened a can of worms (as described above) that we continue to feel to this day.
The question I am interested in is as follows:
The rise in corporate activity and their interaction with humans was a demand on the law to find a place for corporations within the existing legal system. Granting corporations legal personality can and should be celebrated as an example of the law demonstrating its resilience to and recognition of this demand. However, if we were to return to the era in which corporate legal personality was first introduced and developed in common law, should we have given more thought to whether the existing definition of legal personality, arguably created by and for human participation in the legal system, was an appropriate model for corporate legal personality?
In other words, should the unintended consequences of the way in which corporations were squeezed into a mostly unchanged definition of legal personality serve as a cautionary tale for the rights of nature approach? Should any definition of legal personality also require sufficient inquiry into whether that definition would benefit the intended nonhuman?
I say yes. I believe any consideration of granting legal personality to nonhumans is a balancing act between ensuring the health of a legal system by guaranteeing legal coherence and ensuring the representation of nonhumans by guaranteeing that the definition of legal personality attends to the nature and needs of nonhumans. One without the other will lead to the kind of unintended consequences of a chicken smelling kettle.
The purpose of the rest of this series of blog posts is to demonstrate how one might go about rethinking legal personality with this balancing act in mind. More specifically, I will develop a definition of legal personality that meets the nature and needs of an oak tree.
First, I will identify three key components of the prevailing definition of legal personality that we must dispense with:
the notion of individual liberty;
the idea of being a fundamental centre of action and responsibility; and,
the idea of human language as the only form of communication between legal persons.
I will explore how each component is not only problematic for legal personality in general, but also contributes to an unsatisfactory model of legal personality that is meant to meet the nature and needs of an oak tree. Importantly, I will not respond to this problem by indulging my desire for analytic satisfaction. I will not analyse the concept within the context of legal coherence. I will turn directly to the tree itself. I will ask the oak tree, for example, what liberty means for it, if not individual liberty. The answer will be the notion of diffuse liberty, which serve as the first pillar of a foundation for rethinking legal personality for an oak tree.
About the author: Håkon Evjemo is a PhD student at the University of Dundee. His research interests include non-human agency, dynamic ontologies, embodied phenomenology and indigenous approaches to nature philosophy. Click below to read another exploratory piece by Håkon, shared by Lawyers for Nature in June 2023:
