About the Author: Dr. Nicolette Bruner J.D., SIFK Postdoctoral Fellow, is an interdisciplinary literary scholar whose research focuses on nonhuman personhood from the nineteenth century to the present. She will be teaching an undergraduate course, Passing, in Spring 2020. Learn more about her research here.
Over the last month or two, if you watched any broadcast TV, you might have noticed Microsoft’s recent venture into the beguiling genre of holiday commercials. In the thirty-second spot, a young girl uses a Surface tablet equipped with voice-translation software to interrogate a pair of reindeer about their lives. “Happy Holidays in 60+ Languages,” the tagline states, before adding “Reindeer isn’t one of them. Yet.”
The commercial highlights the capacities of the Surface through a case well beyond its limits; of course we can’t talk to reindeer, but isn’t it cool how we can talk to other humans in their own languages? But there’s more translation happening here that isn’t mediated by the tablet. Think of all the ways in which humans and nonhumans relate to each other just within these thirty seconds. The girl becomes aware of the reindeer outside because the dog notifies her with a bark, which she seems to immediately understand. That dog gets the last word, so to speak, in the form of a querulous whine—skeptically commenting on cross-species communication even while engaging in it. Even the video call between humans at the outset of the commercial entails communication with the electronic interfaces in between, from the tablet to WiFi to whatever electronic intermediaries are at play on the other end—all packaged and produced by humans working on behalf of, or as part of, Microsoft Corporation, itself a person under law.
We are surrounded by similarly dense thickets of relations between persons. More than we realize, we depend on these persons, whether or not they are human. Once we separate person from human and recognize the former as entailing a more expansive set of both rights and responsibilities, we can bring into focus a whole range of nonhuman persons—or what I call “thing people”—that not only populate our world but shape it.
Think for a moment about what it means to be a person. The answer might seem obvious; in the words of Depeche Mode, “people are people.” But are they?
Well, yes and no. When we talk about people, we usually refer to humans—but not always. Take one educational example. Most parents recall teaching little ones: “we don’t hit people!” Who do we mean to cover in that prohibition? Other humans, obviously. But the statement also applies to companion animals who form part of the family in a practical sense. Think, now, of what it might feel like from a child’s point of view. If I get in trouble for playing roughly with a human sibling or the family dog, but I can throw around my stuffed toy dog and get no more than beleaguered sighs from the grown-ups in my life, then to me, the human and the dog are in one group—the protected group—and the stuffy is not. Put another way, if we don’t hit people, and that applies equally to sibling or dog, then the sibling and dog are people, while the stuffed animal is not. (From a legal perspective, both live dog and stuffed animal are property, but for many who live with companion animals, this doesn’t ring true.)
The right not to have your ears pulled by neighborhood toddlers is part of a larger group of rights that can be borne by a person. But there are limits. For example, that toddler already has some rights—personal integrity, ownership of property, and so on—but only in a very restricted sense. We don’t let children pick what they eat for dinner every night, let alone buy and sell a house (and for very good reasons!) Instead, we have established a somewhat arbitrary set of ages at which we have collectively decided that children will, barring some externally imposed exception, be able to bear certain rights—and the responsibilities that go with them.1
Personhood is thus less a status than a relation: a set of rules for how others in the community must treat the person, and how the person must treat others.
The rights part of this equation is perhaps easier to conceptualize. No less central to the status of person, however, are the responsibilities that those rights entail. For infants, those responsibilities wait in the wings until the age when (barring exceptional circumstances) the child will start to be held to them. And if they don’t—if, through some act of law, the child won’t be given certain responsibilities—then the child’s rights will be abridged as well. A person cannot have rights without responsibilities.
Now think about the corporation. Over the past hundred and twenty years, since Justice Field turned the dull tax case of Santa Clara v. Southern Pacific Railroad into a paean to corporate empowerment, the corporation has acquired a plethora of rights, including free speech and, in certain situations, the exercise of religion.2 Many commentators forget altogether that the corporation was already a person before that case came down—that it has been a person since before England started to colonize North America. As the venerable Sir William Blackstone remarked in his Commentaries, “it has been found necessary, when it is for the advantage of the public to have any particular rights kept on foot and continued, to constitute artificial persons, who may maintain a perpetual succession, and enjoy a kind of legal immortality.”3 For hundreds of years, the justification for corporate personhood was that corporations needed to be legal persons to serve the public good.
So how did we get from there to here? When the corporation was a rare form of organization that needed royal consent (or state legislation) to exist, it mattered to few whether the corporation was a person or not. In the 1830s and 1840s, though, populist Jacksonians saw the corporation as a tool of privilege—not because it was too widespread, but because it was too difficult to incorporate without the right set of connections. Fueled by this wave of populism, states began to pass general incorporation laws that made it much easier to create a corporation. With more corporations came more corporate tax revenue for the state that lured the most, and so states made it easier and easier to incorporate, gradually eroding the requirement that corporations include the public good as one of their objectives. Meanwhile, corporations developed a set of rights, including shareholders’ limited liability for corporate debts, that soon outstripped the responsibilities states had asked them to bear.4 Over the next century, the corporation kept winning right after right, without the responsibilities to match.
Right now, some advocates of corporate reform, like the coalition Move to Amend, argue that the solution to this imbalanced form of corporate personhood is to abolish it altogether via a constitutional amendment. But even that organization admits that it has “no objection” to an understanding of corporate personhood that “bestows upon corporations the ability to engage in many legal actions” like entering into contract and buying and holding property. Instead, their issue is only those interpretations of personhood that, in their view, have “corporations enjoying constitutional rights that were intended solely for human beings.”5 But what if, instead of eliminating the legal standing of corporations as people, we restore some of the responsibilities that have been stripped away?
Corporate personhood offers us a chance to recognize the very real nature of our relationships with corporations—who, however much we might wish otherwise, are entities that do not and cannot think and act the way the humans who comprise and are employed by them might do. The question is not what rights the Framers intended for the corporation, or even what rights we want it to have now, but rather the same question we must ask about all nonhuman persons: what responsibilities can this member of the community understand and bear, and what rights can they reasonably exercise and expect us to honor in return?
When it comes to corporations, even some modest changes can get the ball rolling in the right direction. We could undo, on a state level, the “chartermongering” that took away the expectation that a corporation benefit the public as well as its shareholders.6 We could adjust how we regulate corporations so that our expectations rely less on some anthropomorphic view of how corporations should and could feel and more on how corporations actually process data and make decisions.7 And we have the power to hold corporations much more accountable for harming the community. Right now, each state in the union can revoke the charter of any corporation that violates its obligations to others in the legal community—a step sometimes referred to as the “corporate death penalty.”8
And if we can legally accommodate an entity that only comes into being through incorporation documents and stock certificates, then what of the family dog patiently waiting for the small human to learn how to be gentle with others? What of the tree growing down the street, or the river a few miles away, or the tablet playing children’s music on command? Of course, they are not, and cannot be, persons in the same way as humans or even corporations. But we don’t treat human personhood the same for a single being over the course of its lifetime. Why, then, would we assume that there is only one way to be a nonhuman person?
Disentangling person from human lets us think more clearly about the entities we share the world with—that we form a part of, and that form a part of us. From Andi the slime mold collective to the Tree that Owns Itself, Paul the Octopus to the Railway Octopus, we live our lives in relation to thing people every day. Whether or not we admit it to ourselves, or write it into our statutes, we give nonhumans rights and ask them to bear responsibilities in turn—though the status is sometimes honored more in the breach.
This, then, brings us to the uncomfortable paradox at the heart of our relationship with nonhuman persons. When we think about thing people, we hover in an uneasy world in between what we wish for and what we, limited by our human umwelt, can actually do.9 Most of the time, we expect nonhumans to bear responsibilities without actually articulating our expectations, since we don’t know how to think or talk like they do. Trapped in our own way of seeing the world, we struggle to see our relationship with thing people clearly. Even so, our imaginations strive, over and over again in our literary worlds, to understand what it is like to be something other than ourselves.
Cite this article:
"Bruner, Nicolette I. 2020. What is a Person?, January 1, 2020. Formations, The University of Chicago. https://sifk.uchicago.edu/blogs/article/what-is-a-person/"
1 Contract law can help illuminate some of these limitations. If a child agrees to a contract before they turn eighteen, that contract is usually voidable—the child or their representative can have it dismissed without holding either party to its terms, because under the law a child is typically considered incapable of the complex thinking required to fully understand a contract and its consequences. But the moment the child turns eighteen, they have the power to bind others in contract—and to be bound in turn. By contrast, some nonhuman entities – most notably the corporation – can enter into contract the moment they start to exist.
2 The twentieth-century scholar Howard Jay Graham was instrumental in uncovering the distortion of the Fourteenth Amendment’s legislative history. For an engaging and accessible account of Field’s role in this endeavor, see the fourth chapter of Adam Winkler’s recent book, We the Corporations (Norton, 2018). With free speech, I refer to Citizens United v. FEC, in which the majority held that governmental regulations limiting the amount of money corporations may spend on political speech violated those corporations’ First Amendment rights; with the exercise of religion, I refer to the holding in Hobby Lobby v. Burwell that, where each owner of a closely held corporation shares a given religious belief, that the corporation as a legal entity shall be considered to hold that religious belief under the Religious Freedom Restoration Act of 1993.
3 William Blackstone, “Of Corporations,” p. 455 (emphasis added).
4 See Morton Horwitz, “Santa Clara Revisited: The Development of Corporate Theory,” p. 181.
5 Move to Amend, “What is Corporate Personhood?” Move to Amend seeks to remedy this through a Constitutional amendment—the “We the People Amendment”—that erases all Constitutional rights for corporations (Sections 1 and 2), except perhaps the freedom of the press (Section 3). To my reading, the “We the People Amendment” is overly broad, as it would eliminate Constitutional rights like freedom from unreasonable search and seizure (4th Amend.), just compensation for governmentally seized property (5th Amend.), and the freedom of contract (Art. 1, §10) along with the more recently acquired ones. (Imagine if Apple had to hand over any and all data collected on users to the government without a pretext, or if federal and state contractors could no longer trust that their contracts will be honored, or if airlines could have passenger jets seized for military use without compensation.) Of course, it is much more likely that states would simply engage in yet another race to the bottom, granting corporations extensive “privileges” with minimal “regulations” as long as they incorporated in, and paid taxes in, their jurisdiction--just as they did at the end of the nineteenth century.
6 See Christopher Grandy, “New Jersey Corporate Chartermongering, 1875-1929”.
7 The “corporate social responsibility” movement, which aims to help corporations regulate themselves more conscientiously, is an important element here—though as with natural persons, self-regulation is sometimes not enough.
8 See, e.g., Mary Kreiner Ramirez, “The Science Fiction of Corporate Criminal Liability: Containing the Machine through the Corporate Death Penalty”; Kent Greenfield, “Ultra Vires Lives!: A Stakeholder Analysis of Corporate Illegality.”
9 The term is the twentieth-century biophilosopher Jakob von Uexküll’s. See, e.g., A Foray into the Worlds of Animals and Humans (trans. Joseph D. O’Neill).