all persons are fictional

In the wake of the Hobby Lobby decisions, there have been renewed discussions of corporate personhood. The argument is relatively simple: the 19th century Supreme Court made a mistake when it created the legal fiction that corporations are persons. I don’t want to get into that argument here. Instead, I want to make a slightly different argument: all persons are fictions.

The debate over corporate personhood – at least the semi-popular versions of it floating around in op-ed pieces and blog posts – takes for granted the distinction between “natural persons” and “legal persons.” But individuals (usually equated with “natural persons” in debates about corporate personhood) are simultaneously constructed as natural persons and legal persons. And both of these constructions are a kind of useful fiction, just with two different narratives.*

The argument is easier to make for legal fictions. Yes, corporations are only persons because of grants by the state that declare them to be so. Before, say, the 19th century, there were very few such corporate actors. In the US, the 19th century saw an explosion of incorporations as states eased laws restricting corporations to limited purposes or limited lifespans, eventually creating the general purpose incorporation statutes we all know and love.**

But individuals are legal fictions as well. We can see this when we see cases of seemingly natural persons denied various rights, or when we look at the seemingly arbitrary lines dividing persons from non-persons or not-quite-persons. Useful liminal cases are children (who are almost people, potential people, or partial people, given some rights but not others), those deemed mentally incompetent, and perhaps stateless individuals (following Arendt and others who theorize the problematic legal status of the stateless). So, the point here is that individuals are not automatically legal persons, and that being a legal person is not quite so binary as the conventional discussion presumes (and that’s just in modern legal systems, not even opening the can of worms of historical legal systems where most natural persons were decidedly not rights-bearing legal persons).

The argument that natural personhood is a construction is a bit less intuitive but, I think, equally compelling. On what grounds do we assume that a particular material formation is a natural person? Is based on some unity of the actual matter composing that person? Well, no, the cells and atoms that make up a person change over time. What about based on some kind of informational identity, like genetic code? The argument, an especially popular one in the past few decades, equates DNA to essence. But this argument fails as well. Just consider identical twins on the one hand (same DNA, different persons) or chimerism on the other (one individual, multiple codes, cf. Martin 2007). Even outside of these seemingly special cases, we know that DNA changes over time within the life of an individual, and also that the expression of genes varies with all sorts of environmental factors. And what do we do with the “microbiome”? Having mapped the human genome, we realized we had still only a small part of the picture. The map between genetics and even a person’s body is weak, let alone the map between genetics and some kind of natural identity. And all of this is without even getting into the issue of when an embryo becomes a person.

But if we can’t even cleanly map one set of material objects-in-the-world in a deterministic way onto natural persons, how do we know what constitutes a natural person at all? The point is not that natural persons don’t exist, just that we have to do all sorts of cultural and technical work to make them exist – albeit of a different kind than we do for legal persons.

After that little detour, I suppose I should bring things back to the corporate personhood debate. I have only an inkling of what the connection might be. I think I’m just dissatisfied with public understanding of the vast space of the possible. Recognizing that, perhaps we will take the current sanctification of corporate personhood even less seriously than we already do. After all, corporations are recognized as persons because they are composed of natural persons, owned by natural persons (obligatory Romney link). But what it means to be a natural person isn’t even natural (in the sense of fixed, eternal, unchangeable, ahistorical).

* And as with all social construction-style arguments, remember that by constructed we don’t mean fake or the opposite of real, but rather contingent, potentially malleable, “could have been different”. That is, we are looking at the conditions under which something is real, why it is the reality that it is and not something else. For more on this, see Hacking 1999.

** There’s a relatively large literature on the history of the corporate form in business history, political science, and economic sociology. Three semi-random starting points would be Chandler’s Visible Hand, Ciepley 2013, Kaufman 2008.

*** I wonder if this taken-for-grantedness of natural personhood shows up in interesting places as an assumption of stability within individuals that might not actually exist. For example, economics has a long and powerful tendency to assume basically stable preferences within individuals. Why? Well, because we assume that biological individuals are basically the same from one moment to the next, and so it wouldn’t make sense for their preferences to be a discontinous jumble. And yet, observationally, people have wacky, seemingly contradictory preferences in very short spans of time, as documented nicely by game theorist Thomas Schelling (2004).

Author: Dan Hirschman

I am a sociologist interested in the use of numbers in organizations, markets, and policy. For more info, see here.

15 thoughts on “all persons are fictional”

  1. Nice points, Dan. Personally (pun!) I think we shouldn’t be giving any collection of people personhood rights (corporations or any other group), and keep rights at the level of bags of skin.

    A nice location to watch the construction of personhood in situ is couples who are fighting over whether to have an abortion or not, or women and men who are fighting with themselves over how they feel about aborting.

    There is no way we would observe women who, to quote a friend, feel like an unborn fetus is “an alien sucking the life out of me,” and other women who put headphones on their bellies, if fetal personhood weren’t socially constructed.

    I think a nice radical argument to throw back at social conservatives, is that (1) we recognize the limited personhood and limited rights of children, and (2) a gradient of those that diminishes with age. It can follow that a fetus, even though a person, does not have a right to its own life.

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  2. First, another example to add to your stories. Under English and (thus) US common law, a married couple were one person and that person was the husband, i.e. married women did not exist as people under the law except insofar as they were a part of the corporate entity of a married couple.

    But now to back up, because you need to distinguish several quite different issues: (1) Legal “personhood” as someone with rights under the law and the existence of corporate entities with personhood. Your main story. Families rather than individual people were often considered the relevant legal units. (2) Personhood understood as a naturalized entity, ignoring the law. Even in traditional common law, when people were having conversation over dinner, they knew the woman was a different person from her husband. Children have names even if they don’t have rights. (3) Personhood understood as the marker of beings who deserve to be treated as human in a moral sense, distinguishing them from other distinct living beings who do not carry that weight, i.e. debates about animals, non-viable fetuses. (4) Dependent people, who are seen as people with humanity and rights, but have deficient capacity and thus must be cared for. Children, mentally incompetent. These are seen as having the moral worth of people, and their guardians have responsibility to take care of them. This is different from non-persons (e.g. animals) for whom there is no such responsibility to treat them as human.

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    1. We see a similar but stranger model in Roman law. Only the pater familias was a true legal person, all other members of the household were legal extensions of him. For instance his children and slaves could not own property in their own right, only have a “peculium” (account) that was allocated to them but was legally his.

      It was even weirder for women in that a woman usually this was her father, even if she was married though this got complicated and a woman would customarily spend a few days a year apart from her husband’s to maintain her father’s guardianship rather than falling under her husband’s. Orphaned women and girls would have a guardian appointed and we know that Cicero abused his guardianship over a rich orphan, Publilia, to steal her inheritance so as to pay off his dowry debt to his ex-wife, Terentia.

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  3. Legal Crits have been chasing these socially constructed turtles all the way down for decades to no avail. Legal education is this country is virtually all practice oriented so there is little room for critical theoretical scholarship to take hold. Law Reviews are student run and peer review for all practical purposes does not exist. As a practicing lawyer I find the argument interesting and as a legal realist, I have few illusions that law is in anyway immune from politics but you can’t argue that in briefs and expect to win. Everyone has to maintain the “fiction” or the system falls apart…

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    1. Sympathies. I’ve always wondered how legal journals became student refereed. Isn’t this kind of the ideal of common law, though? That we make the rules up as we go along, from precedent and let the plebes decide rather than our Platonic overlords, in the journals?

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  4. Dan and grahamalam,

    Instead of saying that children have limited rights, isn’t it more correct to say that adults and children have rights that do not completely overlap? Sure, in many cases, children have fewer rights than adults: for instance, children cannot consent to certain things; children have limited privacy rights; children have limited free speech rights in school; and children do not have the right to vote. But in other cases, children have more rights than adults, such as in the criminal justice system; unless I’m missing something, permitting the state to execute adults but not children is an example of a negative right given to children but not adults.

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    1. The rules about children in the criminal justice system are different from the rules about adults, the penalties for actual crimes are generally lower for children than for adults, and there are special rules about incarcerating children that reduce some of the horrors of our prisons and jails for adults, but I don’t think it would generally be agreed that children have more rights in the CJ system; in many ways, they have fewer rights. Children can be adjudicated delinquent and punished for actions that are not crimes for adults (e.g. staying out late, having consensual sex, drinking alcohol); children have little say about important things in their lives (e.g. with whom they will live in the case of a family disruption or problematic parenting); and children can be effectively punished (i.e. incarcerated) when they are deemed “in need of services” even when they have done nothing wrong. Children are supposed to be protected, but that isn’t the same thing as having the rights of personhood, if legal personhood is understood as being allowed to make decisions for oneself.

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      1. Sorry for any ambiguity: I did not mean to imply that, in the criminal justice system, children have more rights than adults in the sense that the sum total of the rights of children outweigh the sum total of the rights of adults. I did mean to imply heterogeneity in rights, the sense that, on some dimensions in the criminal justice system and perhaps elsewhere, children are given a right that is not extended to adults.

        Dan appeared to be making the argument that children are given limited rights and thus have a lower level of personhood: “…children (who are almost people, potential people, or partial people, given some rights but not others).” But I do not think that it is correct to conceptualize children as *only* receiving a limited subset of the rights that are extended to adults; I think that, in certain cases, children are given some rights that are not extended to adults, the negative right protecting against state execution being the example that came to mind.

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      2. Several points above I hadn’t considered. I don’t have a tally or know what the net of rights is that kids enjoy, but LJ makes a good point about the immunity kids enjoy. Kids aren’t liable for restitution in property crimes (in Chicago), and gangs are completely up front about using kids to do dirt because they can’t be punished.

        Still, my sense is that the net balance of rights and duties for children is limited compared to adults, and that those limitations decrease as a monotone function of age. Though that status can be downgraded when kids act out (depending on who gets to define “acting out”).

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  5. Dan, this is a great post with lots of important implications. I would add that different persons are differently constituted in different situations — i.e., individuals in market contexts are afforded different bags of capabilities and constraints than those in family contexts. I also think it’s key to separate sociological insight (which strives to be descriptive) from legal (performative). Different kinds of produced persons are afforded different kinds of opportunities and constraints due in part to legal performance. Speech is a current version of some of these (see https://scatter.wordpress.com/2011/05/25/hearing-voices-can-a-corporation-speak/).

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  6. Thanks all for the thoughtful responses to this admittedly three quarters-baked post. There are definitely a lot of interwoven threads to be disentangled: legal rights, cultural assumptions of responsibility and agency, the partial mappings between different kinds of personhood (in the market, before the law in different settings, in ethical debates, etc.), and the performative vs. descriptive understandings of personhood.

    In re: children and limited rights – I think my point was not that children simply have less rights, but that they have different collections of rights that correspond to our understanding of children as only partial persons. That is, children under a certain age (7 historically) were presumed incapable of committing a crime. Yes, you can think of this as a ‘right’, an immunity from prosecution, but it points back to the same cultural understanding that children are not full persons (yet).

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    1. Hi Dan,

      I think that you are correct that children have been and often still are perceived to be not-yet-fully-developed adults, but I’m not sure that it is necessary to read anything about legal personhood from that.

      Correct me if I am wrong, but if children were or are perceived to be partial legal persons, then we’d expect criminal penalties to be lower for crimes against children than for equivalent crimes against adults. I can think of at least one situation in which a crime committed against a child is treated more harshly than an equivalent crime against an adult; maybe I’m overlooking something, but I cannot offhand think of a case where committing a crime against a young child is perceived to be a mitigating factor. I’d be interested in whether there are historic examples of this.

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      1. “Correct me if I am wrong, but if children were or are perceived to be partial legal persons, then we’d expect criminal penalties to be lower for crimes against children than for equivalent crimes against adults.”

        I don’t think that quite follows. Children are sacred in a certain way, and thus crimes against them are (to use the Law & Order phrasing) considered “especially heinous.” But that’s not equivalent to considering children as fully persons, because children themselves are seen as incapable of bearing certain kinds of responsibilities. But it does push our towards refining just what we mean by “person”, which is just the conversation we should be having.

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      2. I wonder if childhood innocence isn’t a product of the early modern construction of liberal personhood / individual sovereignty. Marx’s outrage about kids in factories was extremely recent. For most of history and prehistory, children worked from the day they were able.

        I wonder if there was a dual movement wherein by granting adults greater rights and duties informally and legally, we constructed an other in children, who did not have those same rights or duties.

        Children (like women) never had any rights or duties inside the home (where they both worked) that were protected or recognized by the law (any maybe not much by communities either). The world we live in, where children recognize that they can appeal to (public) authorities higher than their parents, is quite new.

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