Legal People

What’s a person? The answer’s not nearly as simple as you’d think.

Legal People

What’s a person? The answer’s not nearly as simple as you’d think.

On the 16th of March 2017, the Parliament of New Zealand passed a new law recognising Te Awa Tupua as a legal person.

That would have been strange enough. Stranger still was the fact that Te Awa Tupua was not a ‘person’, in the common sense of the term. It was, to use another of its names, the Whanganui River.

So why was the river becoming a ‘person’? The reason behind this landmark judgement was a battle that had been going on for over a hundred years.

When the British invaded Aotearea in the 1870s, they renamed the land to ‘New Zealand’, and also imposed their own legal system onto it. They saw the rivers and forests as resources to be made use of, rather than as ecosystems to be tended and cared for. So they began cutting the forests to get the timber, and diverting the river to water their fields and cities.

The invaders were working with the concept of ‘property’ that’s so common around the world today: the idea that whoever ‘owns’ something is allowed to use it for their own profit.

The native Maori, on the other hand, had a concept called rangatiratanga, where people have not right but responsibilities: to protect, to conserve, and to improve oven time for the benefit of future generations.

The Maori were worried that the land was being mishandled under the foreign system. They started battling to get at least some part of it back under protection — including their sacred river, Te Awa Tupua.

It took a long time, but the courts finally agreed that something had to be done. The question was of how to implement the rangatiratanga concept in the current legal system. They couldn’t just declare the river as ‘property’ of the government, or even ‘property’ of the Maori. All that would do would be to transfer rights from one person to another. It said nothing about the responsibility to protect the river itself.

There was only one good solution: to make the river itself into a ‘person’! That way, it could automatically fend for itself. It could sue people for damages. It would have the right to be looked after and the right to not be assaulted, in a way that fit with the legal system.

Of course, the river couldn’t complain all by itself. It could flood its banks, due to bad management, or run dry because of overuse. But those are not legally recognised ways of complaining.

Instead, the river now has two lawyers speaking for it. One of these ‘guardians of the river’ is appointed by the local iwi (tribe), and the other is chosen by the government. Their job is to attend court on behalf of the river — which is now considered a single living being “from the mountains to the sea, incorporating its tributaries and all its physical and metaphysical elements”.

While the solution is an elegant one, it raises a lot of questions. Now that the river is a person, what are its rights and responsibilities? Can it demand welfare funds? Can it be sued for flooding its banks? And, most important of all: how can a river be treated in the same way as a person?

It’s important to remember that, although the river is a person, it’s still not a human person. Yes, there are other kinds of ‘people’ in our courtrooms, too. And they’ve been around for hundreds of years.

When you think of the word ‘person’, it seems pretty clear what it means. Actually, however, that meaning has been constantly changing.

When the United States of America broke away from the British Empire, the new country promised that everyone would have the right to “life, liberty and the pursuit of happiness”. And yet, for eighty-six years afterwards, citizens of the U.S. regularly kept slaves: humans that were made to work for them, and who, while certainly alive, were neither given liberty nor allowed to pursue happiness.

How could that be possible?

It turns out that, until 1862, a slave was not counted as a ‘person’.

Instead, slaves were just some more property. Property that could be bought and sold, and used as their owners pleased. That wasn’t unique to the U.S. either. Many cultures in the past have had one group of people making another work for them, and not recognising the second group as actual people. When they began writing down laws into a fixed legal system, those same ideas remained.

In English-speaking countries, the word ‘person’ was used with the assumption that everyone would know what it meant. Nowadays, the legal system uses the plural ‘persons’ instead of ‘people’ to avoid confusion, but neither of the two meanings are rigidly fixed.

In 2011, a 7-year-old crested macaque called Naruto went up to a camera belonging to human photographer David Slater — and inadvertently took a selfie. The selfie was later uploaded to Wikipedia. Slater demanded that they take it down, saying that it was his photo and couldn’t be used without his permission. Wikipedia replied that the photo was taken not by him but by a monkey.

That started a long legal battle. Who owned the photograph? Was it the macaque, who actually took the photo? Or was it the human, whose camera it was taken on? Can a non-human even be said to own anything?

The answer to the last question, surprisingly, is yes. In fact, most of the richest and most powerful ‘persons’ in the world are not humans at all. They’re not even alive, or even physically present. If everyone stopped believing in them, they would cease to exist.

In the beginning, people used to run their own businesses. They would farm, and sell the extra food they grew. Or, they would go into a full-fledged profession like preparing paper, building furniture, or making boxes. Merchants would go even further, collecting supplies, and hiring people to help transport and sell them in far-off lands.

Whatever the job, each person was responsible for his or her own resources. If a cobbler couldn’t sell enough shoes to pay for his leather, he’d have to sell some of his own land, or other personal possessions, to return the money he owed. If two people teamed up on a business, they would decide in advance how to split the profits. Or they would figure it out later, and maybe end up having a big fight at the end.

That was when, in Europe, some people got the idea of having a ‘company’.

The word company comes from the Latin words com (‘with’ or ‘together’) and panis (bread). It originally referred to people who ate their meals together — but those companies were much more than that.

The new companies were treated as a separate ‘person’. That meant they could have their own land, manage their own money, and even file lawsuits against other people, both in the company and outside it.

That was useful because the company was now separate from the humans it was made up of. Company land wouldn’t be taken away just because one of its owners was in debt for some other reasons. Because they have their own property, companies can exist forever. Even if all their original owners leave, they can still go on running as long as there’s somebody there to run them.

And when there was some legal trouble, the company itself could ‘go’ to court, instead of just the humans who happened to run it. (Of course there would need to be at least one human there to speak on the company’s behalf).

What people didn’t notice at first was what turned out to be the biggest benefit: the responsibilities also worked the other way round. If a company ran into debt, its property could be seized — but nobody could demand money from the humans who ran it. Their personal funds were still untouchable.

That was great, because people didn’t have to worry so much before starting a new business. Even if it went bankrupt, their own money would be safe. All they would lose was the money used up to start the company.

Today, there are other kinds of company too. But the most common one is still the same as described above: the ‘corporation’, on ‘limited liability company’. Unfortunately, separating companies from people also means they’re less responsible. When something like an oil-spill or a chemical gas leak happens, a human would be quickly arrested. But when a company is responsible, they can afford to stall and delay. You can’t put a company in prison.

Companies follow the laws of property, but not the laws of rangatiratanga.

It’s interesting that the New Zealand court had to make Te Awa Tupua into a person, even though the Maori themselves don’t think of it as a person.

Many cultures around the world have a respect for nature — or at least, they used to. The Shinto tradition of Japan is a well-known example, with different spirits for trees, rocks and rivers. But while those spirits can be prayed to and worshipped, they usually don’t enter the legal system.

Of course, that’s only usually.

When India was being controlled by the British Empire, the foreign rulers would often do things that upset the local people. These things included desecrating sacred spots and showing disrespect to the local deities. When people protested, the British would sometimes hold court hearings — with the deities themselves as one of the participants.

How did that come to pass? The rulers probably did it as a show of power, to say that even the gods are bound to obey the British legal system.

Whatever the reason, calling gods to court hearings is a tradition still continued to this day. (Meanwhile, the British East India Company, which started the invasion of India, is now owned by Indian citizen Sanjeev Mehta and is selling luxury goods in London. Companies may last forever, but that doesn’t mean they always continue to do the same thing.)

Soon after the Whanganui River judgement, the High Court of Uttarakhand (in India) declared the Ganga and Yamuna as ‘people’ too. Those rivers are actually traditionally revered as people — but unfortunately, the Supreme Court had to overturn the judgement as it was ‘unsustainable in law’. There were no clear instructions on how to handle the rivers if they became persons.

In New Zealand, the case was the opposite. The river was legally made a person, even though, culturally, the people involved were not rivers but mountains.

The seven great mountains of New Zealand (so the story goes) were once gods and warriors of great strength. The only female among them was Pihanga, and all the other mountains were deeply in love with her.

Who would get to marry Pihanga? There was only one way to decide. They would have to fight for the right to her hand in marriage.

It was a fierce battle, with violent eruptions of smoke and fire, and hot rocks that burnt the sky for days. Finally, the mountain Tonagariro emerged victorious. He took his place next to Pihanga, and the other warriors were given a night to move away.

And so they departed; some angry, some sad, and some accepting the situation. One mountain, Taranaki, was so angry that he gouged a great trail in the earth, all the way to where he now stands overlooking the ocean.

The trail he left behind was filled with the tears he wept for Pihanga, and they formed Te Awa Tupua — the Great River — that still runs down to this day, bringing nourishment and prosperity to the land.

In September 2017, an agreement was reached on the ‘monkey selfie’ case. The human was allowed to keep the photo, but 25% of the profits he got for it is to be donated to charities that help protect crested macaques like Naruto in Indonesia.

The U.S. courts never decided whether crested macaques could own photos or not. In other countries, the case can be different.

Nine years ago, Spain became the first country to extend some ‘human rights’ to non-humans. Or, more specifically, to gorillas, chimpanzees, bonobos and orangutans. The Declaration on Great Apes — created by an NGO and approved in parliament — states that nonhuman apes are entitled to the rights of life, liberty, and protection from torture.

Practically, that meant keeping apes for circuses, TV ads or filming would be forbidden. The zoos which already had apes were allowed to keep them, but their living conditions would have to be drastically improved.

Earlier, Germany had updated its Constitution to add “and animals” to the bit saying “uphold the dignity of humans”. Even earlier, Switzerland changed their law to say that animals were ‘beings’ and not ‘things’.

In some ways, recognising other species as ‘persons’ makes sense. If you have a dog in your family, you probably think of him or her as a ‘person’ rather than as ‘thing’ you own.

In the future, will people think the same of Aibo, the dog-like robot that was being sold as a companion for the elderly? Closer home, how do you feel about digital assistants like Alexa and Siri?

In the cryptocurrency world, we have these things called ‘smart contracts’. Little documents in cyberspace that keep their own money, and release it only when programmed to do so. You can use a smart contract to make sure a payment is only made at a certain date, or at a certain time, or when a certain other perhaps more complicated thing happens.

Let’s say you make a bet with your friend about the weather. The winner is to get ₹10. But what if the loser refuses to pay? To solve that problem, you create a smart contract. You and your friend give it ₹10 each, and program it to automatically check a service like AccuWeather and send the money to the winner.

Of course, smart contracts will usually be used for more complicated deals. Just like normal contracts, but you don’t have to trust the other person to obey them. They happen automatically.

Because smart contracts can keep their own money, at least temporarily, they have the potential to act as little companies. Conrad Barski’s Bitcoin for the Befuddled mentions one possibility: an autonomous pizza-delivery company. Not owned by anyone, but just a piece of code all on its own; an app in cyberspace that manages its finances to keep the business running.

That would be more like a ‘person’ than the companies we see today, where there are always some humans behind the scenes doing the actual stuff.

The word ‘person’ comes from the Latin persona, meaning a mask worn by actors who play different roles in a drama.

In some ways, the word ‘person’ is also like a mask. A mask that we wear to make others treat us differently; a mask that we put onto others to be able to treat them the same. The word ‘person’, though it seems so fixed at first, is actually very fluid. Worn by those who take on the role in society — a role where the actors are always changing.

When you notice how a customer stays loyal to a company, a dog looks at its owner, and a gardener takes care of his plants — when you see the way different creatures, living and non-living, form connections and relationships with one another, it makes you wonder.

Maybe, one day, you’ll look up and realise that everything is a potential person.

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