Are Rivers People? Are Corporations? The Use and Abuse of Legal Fictions

03/23/2017 12:56 pm ET

The ancient Greek philosopher Heraclitus famously observed, “You cannot step in the same river twice.” A court in India begs to differ. Not only can you step in the same river twice, but now the river might sue you for trespass.

Are these decisions to be applauded? Decried? Should other parts of the environment receive legal standing? A lake? A stream? A unique rock formation?

Let me suggest that the answers to these questions ultimately should depend on what objectives we are trying to achieve by granting legal personhood to such entities. Moreover, we need to recognize that this extension of legal personhood is a legal fiction and not become so engrossed by this fiction that we fail to distinguish a useful fable from reality.

Legal fictions by which entities that are not natural human persons are granted legal standing are nothing new, of course. Corporations are an obvious example. They are also an example of how useful legal fictions can be transformed, by fuzzy metaphysical thinking, into impediments to sound policy.

For-profit corporations are an efficient means of pooling the resources of a number of individuals while limiting their individual liability. Indirectly, we all benefit from the existence of these artificial entities as a result of the goods and services they provide, which likely would be otherwise unavailable. These artificial entities, via their human agents, act and are acted upon, with the result that sometimes they cause harm or are harmed. So, it was necessary to provide them with the status of ‘persons’ so they could sue and be sued and, in some cases, be subject to criminal liability.

All this is so much a matter of common sense, at least in our contemporary world, that we hardly ever think about it. The problem is that this eminently sensible legal fiction has been reinterpreted in recent years to provide corporations with rights that should be restricted to natural persons.

For example, in Citizens United, the Supreme Court ruled that corporations were entitled to use their financial resources to advocate for or against political candidates on the ground that this was encompassed by corporations’ rights to free speech. After all, corporations are people too, right?

But this was a wooden application of the legal fiction of corporate personhood. The Court should have recognized that while allowing individuals to pool their resources for commercial purposes may serve society’s objectives, allowing corporations to use their vast financial resources to influence our political process may not serve society’s objectives.

Citizens United was then followed by the bizarre decision in Hobby Lobby, in which the Court held that because corporations are legal persons they are entitled to protection under the Religious Freedom Restoration Act. A lot can be said about the flaws in this decision, but suffice it to say that I have never seen a corporation pray—although perhaps some of them look forward to eternal life.

The point is that recognizing an entity as a legal person for some purposes should not deceive us into thinking that we need to recognize this entity as a person for all purposes.

Which brings me back to rivers and other features of our environment. Allowing someone or some group to sue in the name of a river may constitute good policy if the objective is to bring environmental concerns before a court that otherwise might be ignored. But we need to recognize that this is a fiction. It’s even more of a fiction than the grant of legal personhood to corporations because corporations can be fined. We can’t fine a river.

The other thing we need to recognize is that appointing a legal guardian for a river is in itself a policy decision. Again, at least for corporations we can ascribe something like an intent to them because of the actions approved by the corporation’s board and agents. Rivers don’t have intentions or desires, nor should we pretend that they do. We have no more right to say that the river ‘wants’ to keep chemicals from being dumped in it than to say that it ‘wants’ chemicals to be dumped in it. (Maybe it wants to serve industry!) What constitutes a harm for a river is what we collectively, through our representatives, decide, and any legal guardian of the river should reflect these collective interests.

Legal personhood has not only been sought for environmental features, such as rivers, but it has also been sought, so far with negligible success, for some animals, in particular chimpanzees. In the future, it might be sought for some human-animal chimeras or robots. Each of these cases needs to be examined carefully on their own merits, without any preconceived notions. We should not peremptorily dismiss such claims because taken literally they might seem ridiculous, nor should we unthinkingly embrace such claims because of sentiments like “all things are persons.” That may make good poetry, but bad policy— and it’s the policies we want implemented that should determine the grant of legal personhood.

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