LW928

Creating legal fictions : the importance of meaning

Through the course of the week and discussions that have taken place during the LW928 module, we have tried to grasp and understand what the legal fiction is and what it entails. I have found that a certain example of a legal fiction in particular could be linked to a specific area of law that I’m extremely interested in, which is legal personhood.

Indeed, the fact that a corporation is seen as a ‘person’ in law is a very well established principle that offers practicality and opportunity to both a corporation and the institutions of the law. The aspect that interests me is how this very legal fiction is the argument that environmental lawyers and animal activist and thinkers put forward when ideas of giving natural entities legal personhood or giving animals legal personhood are debated.

If we agree that a corporation is a person, then why can’t we grant legal personhood to a river? And what would it mean to do so?

Eric Posner’s article in particular caught my attention. His very pragmatic and practical explanation of legal personhood and the limits of law gives, in my opinion, a false account of what the law can do, in the sense of meaning. When he writes ‘In none of these cases was a judge fooled into thinking that an animal possesses all the rights of human beings. The lawyers bringing them were simply ensuring that a judicial remedy was available to address the harm that Congress sought to fix’[1], he reduces the law as a tool without recognizing its power.

While granting legal personhood to a river or a tree, as it as been done in recent legal history, might be seen as nothing more than one ‘judicial remedy’ amongst others, it holds a certain meaning. It addresses contemporary environmental and political issues, it recognizes the value of Nature and the need to protect it, it gives a space and a voice to certain indigenous communities for whom this river or tree might be something important. Not to mention, it opens up a new area of law that seemed off-limit before.

Legal fictions hold a practical purpose but it would be too restricting to ignore the situations they can produce and the voids they can fill.

 

[1] Eric Posner, ‘Stop Fussing Over Personhood’ (Slate, 11 December 2013) < https://slate.com/news-and-politics/2013/12/personhood-for-corporations-and-chimpanzees-is-an-essential-legal-fiction.html >

 

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5 thoughts on “Creating legal fictions : the importance of meaning

  1. fo86 says:

    Thank you both for your lively discussion! There are very interesting points that made me want to engage in your conversation.
    Starting from the point that I agree on a better and stronger protection of the environment, I am not sure if the granting of legal personhood is the better or appropriate way of doing so.
    Of course, I agree with the statement that granting legal personhood to a river (or any other non-human entity) suppose a political statement and it can ‘open a gate to make people realize what is at stake’. However, I think that an institutionalisation of the protection of the environment by means of, for instance, statutes, is a better way of achieving the ultimate goal (if there is an explicit one whatsoever).
    With the granting of the legal personhood, the river (in this case) is put in the juridical world as equal with corporations and individuals wanting to exploit it. In the end, the protection is left to a matter of trial, as a matter of a juridical battle between to equals. Then, is the protection of non-human entities just a matter of personhood? Does granting legal personhood achieve the objective of protecting them from indiscriminate attacks?
    I think that a better approach is to recognise such non-human entities as legal ‘things’ (I am using this word not in a pejorative way, but because of my inability to find a proper term to englobe all the possible subjects -or objects- of protection) with their own legal status. I think that the recognition made by the Constitutions of Bolivia and Ecuador are really interesting cases of study, for they do not necessarily give legal personhood to the environment (which suppose to believe that the environment can ‘act’ for itself), but they recognised it as an ‘object’ subjected to particular rules. Then, the effective protection is not left to a battle in courts between equals (although, ultimately, any controversy will be brought to courts) but to the proper design of the rules meant to protect this new object/subject.

  2. sc930 says:

    Thank you for your reply and it’s almost a shame this question didn’t arise during class because it could have led to a lot of very interesting questions and debate!
    My point on Constitutional amendments was just to show that the law is in constant need of change and new concepts, things that maybe weren’t thought of in the beginning.
    In my personal point of view, legal personhood for a river doesn’t have to be a constitutional matter. Bolivia and Ecuador have included the protection of nature in their Constitutions but they haven’t given it legal personality – which leads back to my point about the symbolic of such an action over the actual application of this norm.
    If you are interested in this issue, I think you should read the cases of India and New Zealand where this exact scenario was discussed, in the case of India through judicial interpretation. You might find it very interesting.

    Now, on your final point, through my research on this matter, the question of whether or not granting nature legal personhood would change the way the world works has come and gone. I don’t actually think this is solution but it is one of the most common ideas presented when discussing the topic and the protection of nature.
    I completely agree with you in the sense that I wonder if another solution might not be more suited. I even strongly believe so. But I do think that legal personhood could be a first step.

  3. js2096 says:

    Thank you so much for your thoughtful reply. I have found it very helpful for better understanding the issue, and the rationale behind your argument. I am also rather persuaded by your arguments concerning the temporality/spatiality of granting legal personhood, as well as your resistance to pointing to precedent as a reason not to grant legal personhood a river.

    Your response has raised a couple further thoughts for me. The first is that you mention the amendments to the Constitution, and this made me wonder whether you have in mind a judicial interpretation of legal personhood that incorporates rivers under that legal category – or rather, a constitutional amendment that specifies that legal personhood applies to rivers. Of course, you might just be arguing that legal personhood ought to be applied to rivers, without the corresponding claim that it ought to be applied in such-and-such a fashion. I think this is an interesting area worth thinking more about, not just in terms of the possibilities for progressive activism within the law, but also because they might imply different ways on conceptualizing the legal personality of rivers. Furthermore, it strikes me that the two arguments are very different: to say that a constitutional amendment ought to be introduced is to make a political argument, whereas to say that legal personhood ought to be applied to rivers through judicial interpretation is to make a comment about what the law already provides for, and is perhaps more amenable to criticism.

    The second is that your response has given me space to reflect on what the legal personality of rivers allows for, and how it might be contrasted with the more general “protection of nature” that you mention in your final paragraph. If the intention here is a political and symbolic achievement in recognizing the inherent worth of nature, and instituting protections to facilitate legal recourse for injury to nature, then I am still unconvinced that conservation and preservation-focused environmental laws would not be better suited for the task. This makes me wonder what the claim of legal personhood offers that would not be provided for by these other remedies. It seems to me that the distinguishing element is that recognizing legal personhood gives nature (or certain elements of nature) agency within the law, the prized ‘subject’ status in the law. Whether giving agency to (elements of) nature before the law resolves these issues, and is the best tool for doing so, still seems to me an open question.

  4. sc930 says:

    Thank you for your comment, I appreciate it. I agree with a lot of what you are saying and I’m actually excited to reply.
    I’ll answer several points that I found interesting.
    The first one is that legal personhood is very much linked to a place and time. You say that giving legal personhood to a corporation doesn’t mean it has to be given to a river, and I agree, one does not lead to the other. While granting legal personhood to a corporation was a necessary thing to do in order to ensure coherence and practicality, I’d like to point out that women, disabled people or children were not granted legal personhood at some point in time. So what might seem ‘strange’ to us now, in granting legal personhood to a river, might become the most basic thing in a hundred years.
    I hear your point on jurisprudence and precedent but I would point out that the first decision granting legal personhood to a corporation did not have one. Like any new legal norm and concepts, it appeared as a consequence and reply to a certain situation.
    I would also agree that granting legal personhood might solve everything but law never truly solves anything, does it? Making murder illegal did not make dissolve the act of murder from the world. Dissuasion, in most cases, is the first step. I also think, as I said, that the symbolic of granting legal personhood to a river is what is a stake here. I agree that it could make the process complicated and, at the end of the day, lead to only trouble and failure, but legal is built on experiences and changes otherwise the American Constitution wouldn’t have twenty-seven amendments.
    Overall, I agree with your final point, but certain countries have included the protection of nature in their Constitution, for example, why? Because of the message it carries. One does not put a right or norm in the most basic text in the legal hierarchy without knowing the meaning it holds. This is what I think granting legal personhood could do, open a gate to make people realize what is at stake, or at least try.

  5. js2096 says:

    Thank you so much for this wonderful blog post. I was likewise captivated this week by our discussions of legal fictions and of legal personality. There are a few thoughts that your post raised for me.

    The first concerns the question you pose, “If we agree that a corporation is a person, then why can’t we grant legal personhood to a river?” Surely, we can grant legal personhood to a river, but I do not think that is what is at stake in this question. It strikes me, in the context of your comments, that this question is largely rhetorical, as you argue for granting legal personhood to address contemporary environmental and political issues. So, since this question is asked in the context of such an argument, perhaps we can re-phrase it as a conditional proposition: if we grant personhood to corporations, then we should grant personhood to rivers. It would follow that since we have done the former, we ought to do the latter.

    However, it strikes me that this is a wrongheaded approach. Legal personality is applied to corporations because corporations are a coalition of individual human beings, who are pooling resources and effort in order to accomplished shared goals. Furthermore, the application of legal personhood to corporations, in terms of rights and duties, is historically established in the law, dating back to the earliest American jurisprudence. There is therefore both precedent and good prudence for applying legal personhood to corporations. For rivers, I’m not so sure we have either. There is certainly no precedent in American jurisprudence for giving a river legal personhood, but more to the point, I am not sure that doing so solves the problem. If a river has legal personhood, then what exactly is it protected from? My concern here echoes one of my concerns with Posner’s article.

    In Posner’s article, his final sentence summarizes one of his central claims: “The law does not turn something into a person by calling it one.” Well, the law might not turn something into a human being by calling it one, but if it calls something a person within the law, then that does entitle it to certain relevant rights. Once a corporation was deemed a person before the law, then that opened the floodgates to many rights—and the history of the relevant jurisprudence has been a steady expansion of corporate rights from freedom of speech to freedom of religious expression. Calling something a person before the law does something. However, in the context of calling a river a person the acquisition of rights from freedom of speech to freedom of religion are, to be frank, rather nonsensical. If the goal of calling a river a person is to employ a legal fiction in order to protect it, then I would think that other legal tools and policy approaches could more directly address what seems to be an issue of conservation. After all, legal personhood does not protect persons from the disastrous consequences of our current levels of polluted air and water in cities, and there are existing laws to protect rivers from certain levels of pollution and issues of waste management. On the issue of conservation, the sorts of policies we need to protect the natural environment are constitutively different from those needed in protecting human beings. I think we need to reflect more on what giving personhood does, and whether it is the best or most appropriate category to be applied.

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