Visa Kurki: Persons and Personhood

This month we are in conversation with Visa Kurki. Visa received his PhD in Law from the University of Cambridge in 2017 and is currently working as an Academy of Finland Postdoctoral Fellow at the University of Helsinki Law Faculty. 

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Why did you decide to study law in the first place? And how did you become interested in legal philosophy?

Visa: It’s not a very straightforward story. As a child, I think I wanted to be an inventor. Not sure when I gave up on that idea, but I remember that in upper secondary school I had to start thinking about what I would like to study. The main candidates were philosophy and theology. I didn’t even consider law; I didn’t know anyone who had studied it, and it seemed extremely boring. But then a couple of things happened.

Finnish men have to complete either military or civil service, and this is normally done after finishing school. I chose the latter option and ended up working at a student union newspaper. Experiencing working life for a year shifted my focus from what it’s merely interesting to study to what kinds of things one can do with a university degree. This made me consider the social sciences.

While I was performing my civic duties, my girlfriend at the time decided to apply to study law, which involves a very rigorous entrance exam. I took a look at the materials she had to study beforehand and they seemed actually quite interesting. They connected law to fundamental philosophical and political questions. I remember reading about constitutional rights, and how they can be seen as conflicting with certain conceptions of democracy. However, I regardless applied to a social science programme at Åbo Akademi University (located conveniently in my hometown Turku), and got in.

In the first year of the social science programme, we had to pick introductory modules in at least three different social sciences – and law counted as a social science here. So I picked a couple of courses in law, and then got genuinely interested in it. I then decided to abandon social sciences altogether and apply to study law – and managed to pass the entrance exam.

As regards legal philosophy… one strange thing is that I’m in a way more or less self-taught. An odd – though thankfully disappearing – feature of Finnish university life is that you can have self-study courses, i.e. courses that have no teaching whatsoever. You just read the material and try your luck at the exam. My undergraduate Jurisprudence module was one of those.

Anyway, I guess the way I got more substantively interested in legal philosophy was via animal law. I wrote my Bachelor’s thesis on animal welfare law, and got interested in why so many jurists think animals don’t hold legal rights. This led me to questions such as what a right is, whether animals could be legal persons etc. Suddenly I was knee-deep in Hohfeldian analysis, and thinking about questions such as whether dogs exercise legal powers if they attack people. I had no-one to talk to about this stuff – most of the legal theorists I knew were not that much into analytic legal philosophy – which eventually led to my emailing Professor Matthew Kramer … and suddenly I found myself applying to Cambridge University to do a PhD there. I had tried to escape philosophy by studying law, but was unsuccessful.

You have just published a book on Legal Personhood. Why did you start to work on the topic?cover

Visa: This ties in with what I just said above. I wrote my Master’s thesis on animal rights and legal personhood. I encountered the very widespread claim that animals do not currently hold legal rights – they could only hold legal rights if they were first endowed with legal personhood, because legal personhood is the same thing as the “capacity to hold rights”. At first I took this conception of legal personhood at face value, but I became increasingly suspicious about it while writing my Master’s thesis. There was something fishy about the whole notion of legal personhood, though I couldn’t put my finger on it yet. Regardless, I felt that legal personhood in itself – and not just vis-à-vis animals – should receive a wholesale scrutiny.

What questions about Legal Personhood does your book discuss?

Visa: The book is primarily an analysis of what it means to be a legal person. Hence, I don’t really argue, say, that animals should be declared legal persons – I just ask what the treating of animals as legal persons would even mean. Another question that the book addresses is who or what can be a legal person.

A substantial part of your book argues against what you call the ‘Orthodox View’ on legal personhood. What is this view? And why do you think it is mistaken?

Visa: The Orthodox View is the traditional, black-and-white view of legal personhood. It originated within private law theory, where it still works relatively well, but it’s not good as a general theory of legal personhood.

The Orthodox View comes in somewhat different formulations, but its basic idea is that legal personhood is the same thing as the holding of legal rights, or the capacity to hold legal rights/duties. Thus, if you hold even a single right, you’re a legal person. The view has numerous problems, but I will mention the one that made me suspicious of the Orthodox View in the first place.

First, there is widespread agreement regarding central cases of legal persons: there are natural persons (born human beings) and artificial persons (corporations). There are also widely accepted cases of legal nonpersons: foetuses and nonhuman animals are not legal persons. Thus, if legal personhood equals right-holding, then foetuses and animals do not or did not hold any rights, whereas newborn infants hold rights, or at least have the capacity to hold rights.

However, if we just apply some of the most influential theories of rights, we will arrive at very different conclusions regarding right-holders. According to the interest theory of rights, foetuses and animals already hold rights because, respectively, we have laws restricting abortion and laws protecting animals. On the other hand, according to certain versions of the will theory of rights, infants do not and cannot hold rights. Thus, the Orthodox View claims that legal personhood equals right-holding, but does not seem to align with either of the main theories of rights.

This problem applies to many other cases as well. For instance, minorities are normally not conceived as legal persons, but regardless many constitutions and human rights instruments ascribe rights to them.

As Jeffrey Skopek, the internal examiner of my PhD, put it:

the Orthodox View + who or what is a legal person + theories of rights = contradiction

Given that there’s a contradiction, at least one of the three elements here need to be revised. Given that the Orthodox View has numerous other problems as well (which I cannot address here), I opted to abandon the Orthodox View and develop a new account of legal personhood.

On top of criticizing the ‘Orthodox View’, you also propose and defend a new theory of legal personhood: ‘The Bundle Theory’. Can you tell us a little bit about its main features and theoretical advantages? 

Visa: According to the Bundle Theory, legal personhood is similar to what ownership is according to bundle theories of ownership. To simplify somewhat, legal personhood is no single thing, but rather a number of things. It’s a bundle of legal positions (“rights and duties”). More specifically, the legal personhood of some entity consists in its being endowed with what I call incidents of legal personhood, and these incidents don’t always come together.

Let me put this a bit informally. If you read and ask around, you will notice that the notion of legal personhood is employed in very heterogeneous ways in different contexts. For some animal rights activists, legal personhood is primarily about legal standing and certain fundamental rights. For many corporate lawyers, corporate personhood is primarily about asset shielding, i.e. the separateness of the funds of the corporation and its owners. In the US context, corporate personhood can also relate to the fact that corporations are within the ambit of some of the rights guaranteed in the US Bill of Rights. For disability scholars, legal personhood often means the capacity to make one’s own choices in a legally binding way. And so on. This somewhat resembles the parable of the blind men and an elephant: one’s hand lands on the trunk, and he thinks the elephant is like snake; whereas another’s hand touches the ear, leading him to think the elephant is like a fan. Neither is wholly wrong, but they just don’t have the full picture. I don’t claim to have better eyesight than any of these people (I’m legally not allowed to drive a car without wearing glasses). However, after I got obsessed with legal personhood itself – instead of simply applying it to any particular problem – I tried to see the notion from different perspectives, employing the accounts offered by scholars of animal law, corporate law, disability and so on. I then realized that it actually consisted of many different incidents.

The book offers a structure of what legal personhood involves. First, I distinguish passive and active legal personhood. Passive legal personhood includes incidents such as standing in courts; property ownership; capacity to suffer legal harm; victim status in criminal law; etc. It does not depend on one’s capacity to e.g. exercise one’s rights or fulfil duties. Hence, infants are, and animals could be, passive legal persons. Active legal personhood, on the other hand, involves legal competences – the capacity to, say, enter contracts without a representative – and various notions of legal responsibility. Active legal personhood, then, is reserved to entities with more developed agential capacities.

My account does not suffer from the problems of the Orthodox View that I outlined above. It can also explain the grey areas and graduality of legal personhood. For instance, consider women’s legal status. Many think that married women in, say, 18th-century England were under so-called coverture and therefore not legal persons. However, the Orthodox View would then have it that women did not have any rights at all, and that there is a point in time when they received their first rights and became full legal persons. However, this is a strange way to look at it. Rather, women have gradually gained more rights and thus gradually attained full legal personhood.

I also think my theory can affect the way e.g. animal personhood cases (such as those pursued by the Nonhuman Rights Project) might be argued in the future, if the theory were adopted. Currently, these cases are framed as having to do with whether animals should receive their first legal right, the right to habeas corpus. This puts the judges in front of a momentous decision: whether to bring the animal to “the realm of rights”. However, on my view, animals already hold rights. Hence, the relevant legal question is whether the animal in question should hold this particular legal right – say, the right to habeas corpus – rather than rights at all.

It is common to hear lawyers saying that we can just stipulate what or who is a legal person. In the book you oppose this view. Why do you think it is flawed?  

Visa: (I realize my answers so far have been quite long, so I’ll try to be more succinct from now on!) These are what I call “anything-goes views” in the book. They are often just offhand remarks building on the idea that since law is a social construction or artefact or whatever, the legislator can choose to endow anything and everything with legal personhood. But if you start interrogating these people about how far they’re willing to go, they actually back down a little. Can gusts of wind be legal persons? Can the number 5 be a legal person? The notion that gusts of wind or numbers could be legal persons is ridiculous, so the notion must have some kind of limits. Then it’s just a question of what these limits are. I argue that one must be either an agent or ultimately valuable in order to qualify as a potential legal person – for reasons I can’t recount here.

The legal personhood of Artificial Intelligence is currently a trendy topic. What does your theory have to say about it? Do you think AI can be a legal person?

Visa:  Yes, it’s a very sexy topic. And yes, I think an AI can be a legal person.

Once again, the legal personhood of AI is not a single issue, but many issues. In the book, I distinguish three contexts having to do with AI legal personhood: the ultimate value context, the responsibility context and the commercial context. The first context is about protecting AIs for their own sake. Thus, if we thought AIs are sentient beings, we would maybe want to protect them through the means of legal personhood, a bit like we protect e.g. babies today. This form of legal personhood could be wholly passive, i.e. it would not require any kind of agential capacities from the AI.

On the other hand, the responsibility context has to do with e.g. whether we could punish AIs for their misdemeanours, and the commercial context with treating AIs as separate commercial entities that can for instance default on their debts. I think AIs can both be held responsible and default on their debts – though I don’t take a stand in the book on whether treating AIs in such a way would be desirable.

You have also written on theories of rights. In your ‘Rights, Harming, and Wronging: A Restatement of the Interest Theory, you defend that the Interest theory of rights can be reformulated in terms of what is known as ‘Bentham Test’. Before anything, can you briefly explain what is the Interest theory of rights and how is it usually formulated?

Visa:Well, rights and duties are connected somehow – right? But how? So-called will theories of rights normally maintain that the glue that binds rights and duties together is control: the right-holder can control the duty by e.g. waiving or enforcing it. According to interest theorists, the glue is interests (as in “benefit”). There are somewhat different accounts of the exact nature of this connection. According to e.g. Joseph Raz, rights are interests that justify the imposition of duties. According to Matthew Kramer, X holds a right only if Y bears a duty whose performance typically benefits X.

And what is the ‘Bentham Test’?

Visa: This is where we start to get to the nerdy part of rights theory. A simple version of the interest theory has a problem that was raised by HLA Hart, and earlier by Rudolph von Jhering. Shortly put, duties can benefit parties who we don’t want to say are right-holders. If I owe Mary €5000, the shops she normally frequents may benefit greatly from my paying the debt. But I don’t want to say that the storeowners hold a right correlative to my duty. Or – a topical example in the Trump era, though originally conceived by Jhering – import customs probably benefit local manufacturers, but we don’t to say that the duty to pay income charges is owed to the local manufacturers.

Kramer has tackled the issue by devising a test based on certain ideas by Jeremy Bentham. To simplify somewhat, X can only hold a right correlative to duty D if there is such a way to breach D that, by establishing the breach, we necessarily also establish detriment to X. Thus, if we want to establish that I have breached my duty toward Mary, we will necessarily also establish detriment to Mary: her not receiving the funds is certainly detrimental to her. But we don’t have to establish detriment to the storeowners – we don’t even have to establish that they exist.

What is gained by reformulating the Interest Theory in terms of the Bentham Test?

Visa: So what Kramer did was present Bentham’s test as an additional necessary condition of right-holding (or this is how I read his paper at least). However, I argue in my article that Bentham’s test is actually the heart of the interest theory: we don’t need the rest of the apparatus at all but can just focus on the conditions and implications of a breach of a duty.

This way of looking at the interest theory brings to the fore certain interesting implications. I argue that the interest theory can, for instance, explain the remediary rights better than the will theory: why should an “incompetent” individual (e.g. child or mentally disabled person) be compensated for his/her being assaulted? The interest theory provides a more straightforward answer than the will theory, especially those “hard” will theories that deny the rights of children and severely mentally disabled people altogether.

(By the way, I should mention that I’m not diehard interest theorist – I’m still happy to switch, if a better theory comes along.)

In a recent paper you discuss whether the Interest theory is compatible with Legal Positivism. Why think they are incompatible in the first place?

Visa:  I started thinking about this when reading about the global developments having to do with the rights of nature: for instance, the Ecuadorian Constitution gives rights to nature, or Pacha Mama. However, interest theorists such as Raz and Kramer would deny that nature can have rights, and they would do this on moral grounds: nature lacks the moral qualities required of a right-holder. How the heck is this compatible with the central tenets of legal positivism especially the separability thesis – that law and morality are separable?

What is your main argument for their compatibility?

Visa: Well, it boils down to the scope of legal positivism. In the paper, I distinguish between voluntarism and positivism. Voluntarism is the view that law, legal concepts, rights, right-holders and so on are whatever the officials take them to be. Voluntarism is also a very silly view. Positivism, on the other hand, is (in the Hartian tradition) a thesis about duty-imposing and power-conferring norms: the content of these norms is whatever the officials take them to be (barring some special cases). So a rights theorist who wants to be a positivist must take the content of duties and powers as a given. But they can regardless deny that these duties and powers entail rights to e.g. the nature or gusts of wind or whatever, regardless of what the legislator claims. Put somewhat differently, the positivist must take the norms of a legal system as a given but can regardless question what legal positions flow from these norms.

What are you working on at the moment?

Visa: I have a number of things I’m working on, simultaneously, in a very haphazard fashion. I told the Academy of Finland that I would apply social ontology to law, and they gave me money to do that, so that’s what I try to do. My as-of-yet-unwritten paper argues that the notion of corporation is actually not merely a legal notion but a social notion – there are nonlegal corporations. This draws in particular on certain ideas of Raimo Tuomela and Margaret Gilbert.

In addition, I’m supposed to present on the notion of (legal) animal dignity in Antwerp next April, so that’s another topic that I’m trying to work on, as well as on some more general issues having to do with animal law theory.

I’m also writing a Finnish-language textbook on legal theory and methodology together with Tapio Määttä and Pauli Rautiainen, and co-editing a Festschrift for Matthew Kramer together with Mark McBride. So a lot going on.

How do you usually come across the ideas for your papers?

Visa: Good question. Not sure really. Many of my papers (and books) are clarificatory/analytic in nature. I guess I often get confused by something people are saying and then try to figure out why I’m confused. Usually I then end up questioning the assumptions they’re building their argument on. This is often followed by a period of (mild) on-and-off obsession where I’m bugged by the problem, until I then maybe figure out some kind of a solution.

In general, I find it important to have routines where you can sort of let your mind wander and wonder freely. Smartphones etc. are very detrimental in this regard – I definitely use mine way too much. The sauna is a great place for this, as you can’t use your phone there. Boring concerts are great too.

How do you usually work? Do you write a bit every day or in sprints? Do you usually plan every step of your papers in advance or let the arguments and the structure develop while writing?

Visa:  I don’t write every day, but I do try to churn out stuff relatively steadily because I’m just unable to do extended sprints. (I’ve never done an allnighter in my life.) Writing is thinking for me, so I don’t plan too much ahead. Normally I put together all sorts of material (ideas, quotes etc.) on a Word file and then just start turning it into a paper.

What do you do for fun? Any hobbies?

Visa: Well, I do a lot stuff. What takes up a lot of my time is the choir Lain Huuto. It consists solely of jurists but is quite good anyway. Even the name is a legal pun: it can mean, roughly, both “conveyancing” and “the cry of the law”. We just finished our second album and are about to have our 10-year anniversary concert.

I also play video games quite eagerly. I guess the most lasting attraction is Europa Universalis IV, which I’ve clocked over 850 hours into (since, maybe, 2012?). However, I’m finally starting to get tired of the game. I also watch TV shows quite a bit, often with my wife.

I’m an eager sauna-goer, a member of the Finnish Sauna Society and everything. I normally go to the sauna a couple of times a week. In the winter, it’s great to combine it with winter swimming.

Can you name two books that have influenced your philosophical views the most?

Visa:  Reading Peter Singer’s Animal Liberation in upper secondary school was certainly a transformative experience for me. And, if I may cheat somewhat by naming altogether three books, the account of speech acts provided by John L. Austin in How to Do Things with Words and John Searle’s Speech Acts has had a profound impact on how I understand language, society and law.

What are your two favorite books outside philosophy or law?

Visa: I always end up giving different answers to this question. As a teenager, I used to read massive amounts of fantasy and sci-fi. I guess a somewhat boring answer is the A Song of Ice and Fire series by George R.R. Martin – which I started reading way before there was any talk of a TV show! (You may have heard of the show; its name is based on the first book in the series, called A Game of Thrones.) The books are incredibly massive and subtle at the same time.

A Finnish classic, Under the North Star (Täällä Pohjantähden alla by Väinö Linna) is also a highly impressive and touching work about 19th– and 20th-century Finnish history.

You can find more information about Visa Kurki and his work on his website.