Legal Personhood—Bundle Theory

[Stephen Martin]

This is part 2 in a series I will be posting on LW. Part 1 can be found here.

This second section details the “Bundle Theory” of examining legal personhood. Bundle Theory is a lens through which legal scholarship and jurisprudence often examines the question of legal personhood/​legal personality.

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Since Gray wrote his definition of “person”, scholarship exploring the concept of legal personhood has often converged on viewing it through the lens of “Bundle Theory”. Bundle theory treats each unique form of legal personhood, which we call an entity’s “legal personality”, as its own unique “bundle” of rights and duties. Indeed Bundle Theory is an interpretation which the courts have implicitly endorsed in some cases pertaining to the question of legal personhood, such as when they wrote the following in Nonhuman Rights Project v. Breheny;

“courts have aptly observed, legal personhood is often connected with the capacity, not just to benefit from the provision of legal rights, but also to assume legal duties and social responsibilities”

Or when they wrote in People ex. Rel Nonhuman Rights Project v. Lavery;

“Reciprocity between rights and responsibilities stems from principles of social contract, which inspired the ideals of freedom and democracy at the core of our system of government [...] Under this view, society extends rights in exchange for an express or implied agreement from its members to submit to social responsibilities [...] Case law has always recognized the correlative rights and duties that attach to legal personhood”

This is not to say that bundling together rights and duties is a necessary feature of legal personhood. There are certain types of legal persons who have rights without duties bundled with them, such as infants. Generally speaking though, examining the “bundle” of rights and duties is how courts will approach examining an entity’s legal personality.

Sometimes it is obvious that when an entity is granted a right, it comes with a corresponding duty. For example a person may have the right to sue, and in doing so compel another party via the judgment of a court. That person will also have the duty to act as the court compels them to, should another party sue them. Legal persons cannot enjoy that right without also taking on the corresponding duty. It is reasonable to say this right and duty come bundled together when a person cannot claim a right without also taking on a duty.

Bundles of rights and duties can exist by default, or be opted into;

• A legal person in the United States enjoys constitutional rights such as freedom of speech, they also have a duty not to infringe upon another person’s constitutional rights such as the right to speak freely. This right and duty pair was never “granted” to the person who enjoys it. No contract has to be signed or court order issued for them to enjoy their rights and be held to their duties. Thus, this is a bundle that exists by default.^[1]

• A legal person in the United States can enter into a contract with another legal person to compensate them for services rendered. This gives them the right to compel that person to abide by the terms of the contract. It also obligates them to a duty to pay, as specified in the contract, once the services have been rendered as promised. Until the contract was voluntarily signed, neither party had any sort of automatic claim to the other’s services and/​or money, or the right to compel them to abide by the terms of the contract, or the duty to abide by those terms themselves. Thus, this is a bundle that was opted into.

When a person fails to adhere to their legal duties, they have broken the law, and are subject to consequences. Note that these consequences do not necessarily entail a loss of the associated right. The “bundling” relationship between rights and duties does not imply that a person who fails to hold to a duty loses a right, but rather that a legal person cannot claim a right without also being obligated by a duty. This will be covered in greater detail in an upcoming section called “Understanding Rights and Duties”.

The rights and duties afforded to different kinds of legal persons have been spelled out over a precedential history spanning centuries. Even as far back as 1819, in Trustees of Dartmouth College v. Woodward, we can read as Chief Justice Marshal opines on the legal personality of corporations:

“A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it either expressly or as incidental to its very existence. These are such as are supposed best calculated to effect the object for which it was created. Among the most important are immortality, and, if the expression may be allowed, individuality—properties by which a perpetual succession of many persons are considered as the same, and may act as a single individual [...] It is chiefly for the purpose of clothing bodies of men, in succession, with these qualities and capacities that corporations were invented, and are in use. By these means, a perpetual succession of individuals are capable of acting for the promotion of the particular object like one immortal being.”

Precedents which help define a given entity’s legal personality, once it has been established that said entity is in fact a legal person, are abundant and provide ample guidance when dealing with entities which our legal system is already familiar with. There are few, if any, unresolved questions about the legal personality of corporations vs. humans for example.

1. ^

   For the purpose of clarity, it is worth mentioning that a person’s right to free speech does not necessarily prevent another person from regulating their speech as a prerequisite to entering/​occupying a private space.

[Dagon]

I’m not sure I agree with this focus on bundling. I think many courts focus on the capability of candidate-person, and the bundle is just a convenient set of things to evaluate the capability for adhering/​benefitting.

connected with the capacity, not just to benefit from the provision of legal rights, but also to assume legal duties and social responsibilities

This is a good description—“it’s connected with the capacity” being the controlling clause.

A legal person in the United States has a right to free speech, they also have a duty not to infringe upon another person’s right to speak freely.

This is simply not true. Individuals in private spaces are generally free to limit others’ free speech. Even if it were true, they’d be separate things—right to free speech does not depend upon the duty to let others speak.

A legal person in the United States has a right to enter into a contract with another legal person to compensate them for services rendered. They also have a duty to pay, as specified in the contract, once the services have been rendered as promised. Until the contract was voluntarily signed, neither party had any sort of automatic claim to the other’s services and/​or money. Thus, this is a bundle that was opted into.

A contract is itself a bundle. “enter into a contract” is a singular act, binding all clauses of the contract. This does not imply that bundling is a general feature of personhood.

I appreciate this series, but I do fear that it’s not formal enough in defining terms and listing requisite features of different kinds of personhood.

[Stephen Martin]

Hey thanks for the feedback. Very useful and constructive criticism, thanks for taking the time to type it out.

Regarding , “right to free speech does not depend upon the duty to let others speak” it’s not that a right which is bundled with a duty is dependent upon that duty, in the sense that if you fail the duty you lose that right. It’s that the right is bundled with the duty in the sense that if you fail the duty, you suffer consequences. It’s not possible to claim the right without also being bound by the duties.

That said, I think you bring up a good point that this bundle is not focused around free speech, specifically, but more around general constitutional rights. I have edited the example to reflect this. There is a later section “understanding rights and duties” which elaborates a bit more on the nature of consequences for failing to hold to duties, but given I’m posting this piecemeal I’m also adding in some clarification to this chapter.

Your point about private spaces is correct, however you’re not infringing on another person’s right to free speech when you regulate someone else’s speech as a prerequisite to enter/​occupy private space. There’s an old adage “my right to swing my fist ends where your nose begins”. I have a right to free speech, but it does not supercede your right to control who enters/​occupies your private property. I will add a line explaining this exception as a footnote.

On contracts I have changed the phrasing in order to be more specific and accurate based on your feedback. It now reads “This gives them the right to compel that person to abide by the terms of the contract. It also obligates them to a duty to pay, as specified in the contract, once the services have been rendered as promised. Until the contract was voluntarily signed, neither party had any sort of automatic claim to the other’s services and/​or money, or the right to compel them to abide by the terms of the contract, or the duty to abide by those terms themselves. Thus, this is a bundle that was opted into.”

I think your point about bundling not being a general feature of personhood is also relevant, it’s clear my writing is not leaving readers with the impression I was hoping for. Bundling isn’t a “feature” of personhood, rather bundle theory is just a commonly used lens through which courts and legal scholars view rights and duties when assessing legal personality. I will add a line explaining this as well.