Personhood is a very controversial and complex topic that academics and jurists have different views on. Commonly, personhood can be understood from three main positions: positivism, humanism and liberalism. In this essay, I will explore the positivist position and the inherent flaws in its definition of legal persons. I will further incorporate and evaluate alternative approaches to personhood such as humanism and liberalism. Finally, I will discuss how liberalism is the most compelling out of the three positions, but how these approaches fail to sufficiently address personhood on their own and may require us to define personhood using collective viewpoints.
Positivists are concerned only with what the law is and not what it ought to be; therefore, they take a more abstract view when it comes to personhood. F.H Lawson would argue it is futile looking at the metaphysical elements that make us persons i.e. things that set us aside from animals because “legal persons are […] mathematical equations devised for the purpose of simplifying legal calculations”. This can be seen as a very simplistic view, because whether someone classifies as a human purely depends on their ability to engage with the legal system; “The legal person has no particular moral, social, political or historical character; indeed, he has no substantive nature. He exists only as an abstract capacity to function in law”.
While positivism may oversimplify what it means to be a ‘person’, this approach may be the most inclusive definitions of personhood. This is because it could include the dead, foetuses, animals and the environment; since “Anything can be a legal person, because legal persons are stipulated as such or defined into existence”. However, in our current law this can see as untrue; even though animals “may have non-moral and non-legal responsibilities, they are not well understood as having moral or legal obligations”. Furthermore, this is a “device-based conception of personhood” that is completely detached from metaphysical elements such as morality. This is arguably a colourless way to perceive persons. Naffine Ngaire argues “by denying the moral, the natural, the spiritual, even the rational dimensions of her subject…she takes out the real people and replaces them with cardboard cut-outs”. It is because of this that a positivist stance appears too far removed from the standard conception of what a ‘persons’ are, which tends to include morality, and so personhood should not be understood purely from this position alone.
By contrast, humanism seems to adopt a ‘natural dimension’ to personhood: humans are born with natural legal rights and when a person dies those rights are taken away. Understanding personhood from this position allows non-law areas such as medicine to contribute to the definition making it less mechanical and law orientated, like that of the positivist stance. In support of humanism, the opening statement of the Universal Declaration of Human Rights states “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace”. This shows the humanist definition of personhood to be compatible with the human rights movement and includes all human lives regardless of any metaphysical characteristics.
An obvious criticism here is the lack of inclusivity and blatant speciesism. Peter Singer, a moral philosopher challenges our bias in favour of our own species since many animals “are more intelligent, more aware of what is happening to them [and] more sensitive to pain […] than many brain-damaged humans” and urges that we make “a mental switch in respect of our attitudes and practises towards…animals”.
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Moreover, if we rely on the definition of personhood being associated with our biology, it excludes the potential idea of posthumanism. Phillippe Ducor argues that “nonhuman intelligence, comparable in character to human intelligence, would challenge the current legal belief that only humans are persons”. For example, if you could download consciousness onto machines in the future, would this be a person? If so, this would completely undermine the humanist definition of personhood. The lack of inclusivity of other species and the limiting of prospects are a few of the reasons why humanism, like positivism, is not a sufficient approach to understanding personhood.
A liberalist definition, on the other hand, may account for future technological advancements and artificial intelligence. To qualify as a person the two keys factors are rationality and legal competence; this assumes a person is intelligent enough to make rational decisions and be aware of the consequences. It’s because of this we are accountable for our actions. According to Richard Tur, to acquire full legal personality it “requires that a person be able to initiate actions in the court, to ‘sue or be sued”. While this rules out the questions about animals, foetuses and children, the concept of rationality can be brought into question. Traditionally, women and slaves were excluded from the terrain of personhood due to being too ‘irrational’; so much so that women couldn’t vote or buy property and in 1958 in the Virginia Supreme Court said, “in the eyes of the law” a slave was “not a person”. Even though the legal system has modernised, this type of categorisation is potentially dangerous as it still excludes minorities. Though it may make sense to think of some individuals as having diminished personhood for their own good, it can become ambiguous when it comes to some disabilities or illnesses such as Dementia. It is hard to determine in these cases at which point it is appropriate to diminish or remove personhood. Furthermore, it is difficult to decide whether or not we can even make these decisions, let alone who would be responsible for them. Similarly, pregnant women are seen as having diminished personhood in the sense that “the rational subject must be fully individuated” and therefore pregnancy “compromises individuation”. These examples demonstrate how the liberalist definition of personhood is not wholly inclusive, highlighting the flaws of this approach.
An additional criticism of liberalism is that it doesn’t consider the socio-political context. Under a liberalist definition, it’s assumed that people take responsibility for their crimes because they wanted to do them. What if someone is forced to steal because they are poor and need to provide for their children?
Despite the weaknesses addressed, liberalism makes a strong contribution to the definition of personhood by including metaphysical elements and because of this, provides a more focused definition of personhood than positivism and humanism. However, it’s lack of inclusivity and apparent carelessness for those it excludes raises more questions than it addresses.
Personhood is an important, ongoing debate as it is an integral part of the legal system and to an extent our everyday lives. Positivism isn’t sufficient in defining personhood as it is shown to be unrealistic and is too far from metaphysics that ‘real people’ get lost in its definition. On the other hand, humanism provides too narrow of a definition as it excludes other species from its scope. In contrast, liberalism finds the balance between the two and gives a more focused and grounded approach. However, when considering all three, none of these approaches individually define personhood sufficiently, suggesting that perhaps an interdisciplinary approach including a variety of positions may be recommended in order to meaningfully understand personhood.
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