What Is Legal Personhood? Deciding Who Can Hold Rights and Be Sued

Legal personhood is a bundle of capacities that a legal system recognises in an entity, and the bundle can be granted in part. The core capacities are holding rights and bearing duties, owning property, entering binding agreements, suing and being sued, and being the subject of legal protection. An entity may hold some and not others, so a person under a certain age holds rights while lacking capacity to contract, and a body may be capable of suing without being capable of owning. That divisibility is the key to understanding the category, since the question is never simply whether something is a person but which capacities it holds and for what purposes. Recognising that removes a great deal of confusion from arguments about extending the category.

The boundary has moved substantially and in both directions:

• •Corporations, which hold extensive capacities in every developed legal system and are the most consequential non-human persons
• •States, international organisations and public bodies
• •Trusts, estates and funds in various forms depending on the jurisdiction
• •Ships in certain admiralty proceedings, which can be sued directly in some systems
• •Temples and deities in Indian law, which can own property and litigate through representatives
• •Rivers, forests and ecosystems in several jurisdictions in recent years, with mixed practical effect

The history of the category is substantially a history of exclusion and its reversal. Enslaved people were classified as property rather than as persons in law, which is the starkest instance and which required constitutional change to reverse. Married women in common law systems lost separate legal existence on marriage under the doctrine of coverture, unable to own property or contract in their own name, which was dismantled by statute over the nineteenth century. Children, people with disabilities and people under various forms of guardianship have held restricted capacities, with substantial reform driven recently by arguments about supported rather than substituted decision-making. In each case the exclusion was defended at the time in terms of capacity or of nature, and the arguments used are recognisably similar across the cases, which is a reason to examine current exclusions carefully.

The most consequential non-human person is the ordinary business corporation and its features repay attention. It exists separately from its owners, which means it survives them, can be sold entire and holds property in its own name rather than theirs. Its owners are not liable for its debts beyond what they invested, which is limited liability and is the feature that made large-scale investment practical. It can contract, sue and be sued as a unit, which removes the need for every shareholder to join a lawsuit. Those capacities were assembled over centuries and were controversial, with early critics arguing that separating ownership from responsibility would encourage recklessness, an objection that recurs whenever a company causes harm exceeding what it can pay. Arguments about whether such entities hold rights beyond the commercial reach courts regularly.

Several extensions are being pressed and the reasoning differs. Great ape and cetacean personhood has been argued in courts in several countries, generally seeking limited capacities such as the right not to be detained, with courts mostly declining while a small number have granted partial recognition. Rivers and ecosystems have been granted legal personality in New Zealand, Ecuador, India and elsewhere, which allows proceedings to be brought on their behalf and which has produced real cases and real difficulties about who represents them. Artificial systems have been discussed, with proposals for limited personhood to handle liability and with substantial opposition on the grounds that it would shield the people deploying them. Each argument turns on what the capacity is for rather than on any general question about what a person is.

The category is a divisible bundle of capacities including holding rights, owning property, contracting and litigating, and entities can hold some and not others. Corporations, states, ships, deities and in several jurisdictions rivers hold some. Enslaved people and married women were excluded on arguments recognisably similar to those used now, which is a reason to examine current exclusions carefully.