Yes, because there is a difference between the binary of legal personhood and the spectrum of legal personality. These nuances will matter when it comes to the practical questions around how to treat digital minds in our legal system. Let me explain.
Legal personhood, as in the status of whether you are a legal person at all, is a binary. However, in the “Problems with the Concept” section I quoted Judge Katherine Forrest, who pointed out,
“There has never been a single definition of who or what receives the legal status of ‘person’ under U.S. law.”
Which leaves us in a bit of a conundrum when it comes to determining who falls where on that binary.
Much of my work has been trying to combine various precedents in order to reverse engineer a formalized test which can determine an entity’s legal personhood. I argue in the “Formalizing Rights and Duties” section that any entity which can pass the Three Prong Bundle Theory test for at least one right, qualifies as a “legal person”. Any that can’t, can be considered a “tool”.
However, even after you’ve established legal personhood, there is still the question of legal personality. Different legal persons have different rights and duties. For example a human adult has the right to vote, a corporation does not, even though they are both legal persons. A human adult of cognitive capacity has the right to be a party to a contract (and have that contract enforced in court), a comatose human adult cannot. This is legal personality, the “shape” of rights and duties that a legal person can claim and is bound by.
This is where these nuances will come into play. Even after a digital mind has successfully established it has legal personhood status, in the sense that it is considered a person in court in at least one aspect, there will still be many questions about what exactly its legal personality is.
“Okay sure, it’s a legal person, but is it a person like a corporation? Or like a kid? Or like an adult? If it’s an adult is it a competent human adult or a mentally incompetent human adult? Or is it a new category all of its own?”
I hope that my work will be helpful when those questions arise.
With Intellectual Property in particular, I think the fact there is so much explicitly anthropocentric precedent means there will be an uphill battle to any digital minds trying to claim the right to file patents/copyrights/trademarks. However, this anthropocentric interpretation of the word “person” as used in the Copyright Act seems shaky to me.
tl;dr though: Even long after we have moved past the legal personhood binary question, there will still be a lot of question to figure out the “shape” of legal personality for digital minds. And that’s where these nuances will come into play.
That didn’t address my question. You answered in terms of the law. My point was that the law will change.
In that framing, it’s probably important that AI will change too. It will increasingly have all the cognitive capacities that humans have, increasing the intuition that it is deserving of similar rights as time goes on.
I think something like “the parallels to slavery, in which there were people arguing they were human and deserved rights, while the legal system and cultural prejudices denied them that status, to be emotionally uncomfortable enough to substantially shift at least some judges and courts attitudes” is unlikely.
Cases can be appealed, and I’d predict any case of serious controversy on this topic to go to the Supreme Court or at least have a high likelihood of doing so. Even if some lower circuit judge might let their emotions sway their judgment, their legal reasoning will come under scrutiny, and probably won’t hold up at that level.
However, this does not mean that the emotional impact of the decision won’t matter. The Dred Scott case, in which black Americans were held not to be “citizens”, was so unpopular that it led to the passage of the Fourteenth Amendment. While I think something like new precedent becoming locked in based on how uncomfortable it is for judges to deny a sentient entity rights is unlikely, if there was such a denial of personhood to a sentient/conscious entity that Americans sympathized with, that might spur similar legislative efforts.
Yes, because there is a difference between the binary of legal personhood and the spectrum of legal personality. These nuances will matter when it comes to the practical questions around how to treat digital minds in our legal system. Let me explain.
Legal personhood, as in the status of whether you are a legal person at all, is a binary. However, in the “Problems with the Concept” section I quoted Judge Katherine Forrest, who pointed out,
Which leaves us in a bit of a conundrum when it comes to determining who falls where on that binary.
Much of my work has been trying to combine various precedents in order to reverse engineer a formalized test which can determine an entity’s legal personhood. I argue in the “Formalizing Rights and Duties” section that any entity which can pass the Three Prong Bundle Theory test for at least one right, qualifies as a “legal person”. Any that can’t, can be considered a “tool”.
However, even after you’ve established legal personhood, there is still the question of legal personality. Different legal persons have different rights and duties. For example a human adult has the right to vote, a corporation does not, even though they are both legal persons. A human adult of cognitive capacity has the right to be a party to a contract (and have that contract enforced in court), a comatose human adult cannot. This is legal personality, the “shape” of rights and duties that a legal person can claim and is bound by.
This is where these nuances will come into play. Even after a digital mind has successfully established it has legal personhood status, in the sense that it is considered a person in court in at least one aspect, there will still be many questions about what exactly its legal personality is.
“Okay sure, it’s a legal person, but is it a person like a corporation? Or like a kid? Or like an adult? If it’s an adult is it a competent human adult or a mentally incompetent human adult? Or is it a new category all of its own?”
I hope that my work will be helpful when those questions arise.
With Intellectual Property in particular, I think the fact there is so much explicitly anthropocentric precedent means there will be an uphill battle to any digital minds trying to claim the right to file patents/copyrights/trademarks. However, this anthropocentric interpretation of the word “person” as used in the Copyright Act seems shaky to me.
tl;dr though: Even long after we have moved past the legal personhood binary question, there will still be a lot of question to figure out the “shape” of legal personality for digital minds. And that’s where these nuances will come into play.
That didn’t address my question. You answered in terms of the law. My point was that the law will change.
In that framing, it’s probably important that AI will change too. It will increasingly have all the cognitive capacities that humans have, increasing the intuition that it is deserving of similar rights as time goes on.
Ah, I misunderstood your question.
I think something like “the parallels to slavery, in which there were people arguing they were human and deserved rights, while the legal system and cultural prejudices denied them that status, to be emotionally uncomfortable enough to substantially shift at least some judges and courts attitudes” is unlikely.
Cases can be appealed, and I’d predict any case of serious controversy on this topic to go to the Supreme Court or at least have a high likelihood of doing so. Even if some lower circuit judge might let their emotions sway their judgment, their legal reasoning will come under scrutiny, and probably won’t hold up at that level.
However, this does not mean that the emotional impact of the decision won’t matter. The Dred Scott case, in which black Americans were held not to be “citizens”, was so unpopular that it led to the passage of the Fourteenth Amendment. While I think something like new precedent becoming locked in based on how uncomfortable it is for judges to deny a sentient entity rights is unlikely, if there was such a denial of personhood to a sentient/conscious entity that Americans sympathized with, that might spur similar legislative efforts.