Published on August 12, 2025 5:15 AM GMT
This is part 3 of a series I am posting on LW. Here you can find parts 1 & 2.
Once the legal personhood of an entity has been established, there is abundant precedent to help the courts navigate questions surrounding its rights and duties. However, when it comes to that first fundamental question of “Is this entity a person?”, things are not so cut and dry. Despite the integral role which the concept of legal personhood plays in US law, there is no single objective test by which the personhood of a new type of entity can be determined. As former New York Judge Katherine Forrest wrote for the Yale Law Journal:
“There has never been a single definition of who or what receives the legal status of ‘person’ under U.S. law.”
This may come as a surprise. There are centuries of legal rulings which are intricately intertwined with legal personality, which range from subjects as diverse as corporate law to freed slaves to fetuses. How could it be that such a broad corpus of work has emerged surrounding a term which has never directly been defined? The answer lies in what FSU Law Professor Nadia Batenka called the "circularity" problem. Often when reading early precedent on the subject of legal personhood for one entity or another, the defining factor cited was that the entity "has a right to sue or be sued" or something similar;
“Consider, for instance, some of the conditions that courts have looked for in deciding whether an entity enjoys legal personhood, such as whether the entity has the ‘right to sue and be sued,’ the ‘right to contract,’ or ‘constitutional rights’. While this may be a reflection of the realist theory of legal personhood, these are conditions that an entity that already enjoys legal personhood possesses but at the same time courts use them to positively answer the question of legal personhood for an unresolved case. This is the issue of circularity in legal personhood.”
An entity can only sue or be sued if it is a legal person, this entity can sue or be sued, thus it must be a legal person. Early precedents around legal personality are fraught with such tautologies. This may be interpreted as the courts operating from a perspective of “expediency”, where they endowed an entity with legal personality in order to serve some “public interest” or the interest of the courts in facilitating the application of the law.
Whether we take that interpretation, or the less charitable interpretation of judges simply wanting to rule on the narrowest grounds possible in order to “punt” the more fundamental question of what makes an entity a person in the first place, is immaterial. Whatever the courts’ motives were, we are still left in the unfortunate position of having no precedent based test by which to evaluate new types of entities absent legislation. Given the likelihood that the courts will need to confront questions of legal personhood for digital minds before such legislation can be passed, it behooves us to develop a framework of our own for determining the legal personality of a digital mind.
Judge Forrest is correct that there exists no single definition of a “person” within the law, and Professor Batenka is correct that many of the earliest and landmark precedents around what is and is not a “person” rely on tautologies. However, this does not mean that now as we look back on centuries of jurisprudential history, we cannot reverse engineer a systematic approach to the issue of legal personhood. There has never been an attempt to combine all of this disparate information, sourced from both precedent and legal scholarship, into a formalized system in order to provide a simple framework by which the fundamental legal questions of “is this entity a legal person” and “if so, what is its legal personality” could be reliably answered. Such a formalized system is needed now more than ever, as humanity stands on the cusp of an intelligence explosion in which we will find ourselves dealing with new entities in the form of digital minds.
Further, some consideration must be given to how this system of legal personhood and personality must be adapted in order to function when it includes digital minds. Of particular importance is the presence of an "Enforcement Gap”. The kinds of legal person which the US judicial system is used to dealing with are, by their very nature, not difficult to enforce consequences against. As such the courts have never had to ask “how” or “if” consequences can be imposed upon a given legal person. This is particularly important when rights and duties come bundled together. If an entity can claim rights without being held responsible when it fails to hold to its corresponding duties, then we risk an Enforcement Gap where some persons have rights without really being bound by any corresponding duties.
What is needed is a single formalized system which;
- Allows courts to assess whether an entity is or is not a legal person.Allows courts to assess the legal personality of an entity.Provides a solution to the “Enforcement Gap”.Does all of this in a fashion which is backtest compatible (when applied to past cases, would lead a reasonable person to reach the same verdict courts reached), thorough (provides a clear step by step procedure by which they can assess the personhood status and/or legal personality of an entity), and scalable (can feasibly be applied across myriad different types of law and to myriad different entities).
Later in this series, I will aim to provide such system. First, I will attempt to break down the existing “Two Prong Bundle Theory”, which measures rights and duties, into a formalized system based on existing precedent. Next, I will describe a phenomenon I call “The Enforcement Gap” and explain why I believe digital minds possess unique qualities that necessitate an alteration of the Two Prong Bundle Theory framework. Lastly, I will outline the proposed “Three Prong Bundle Theory” which adapts existing precedent in order to provide a framework which does not “break” when dealing with digital minds.
Discuss
