
Ela Leshem
Fordham School of Law
Law's Shrinking Circle
Abstract
The U.S. legal system has historically attributed moral personhood to a wide circle of entities. Among them, for instance, are gods and sovereigns, religious artifacts, sacred sites, national monuments, flags, corpses, and effigies. The law has narrowed this circle of moral concern over time. But its historical personhood conceptions continue to shape many entities’ legal status today. And this legacy holds lessons for contemporary debates over the personhood and property status of natural landscapes, fetuses, AI systems, and more.
Legal theorists tend to assume that the U.S. legal system has—in fits and starts—expanded its circle of moral concern over time. On this conventional account, U.S. law has recognized an increasing number of moral persons over the course of the last several centuries. It has done so, for example, by extending the franchise to men of color, women, and indigent people. In some contexts, it now recognizes certain nonhuman animals, too, as moral persons whose agency and welfare are worthy of legal protection. Some philosophers view advanced AI systems as the next frontier of expansion.
This account is, I argue, significantly incomplete. It fails to capture the full breadth of entities that the law has treated as moral persons. Historically, the law has structured its conception of moral personhood around three entities that I call “superpersons”: God, Country, and Man. The law has treated their dignity interests as so intense that these interests emanated at times to entities associated with each superperson and elevated those entities, too, to the status of moral persons. These “epipersons,” as I call them, include divine epipersons such as religious artifacts and sacred sites, sovereign epipersons such as flags and national monuments, and human epipersons such as corpses and effigies.
My account of superpersons and epipersons reveals that the law’s circle of moral concern has both expanded and contracted. Over time, the law has pared back personhood status for all of these entities except for human beings. That is true not only for the superpersons God and Country, and their associated divine and sovereign epipersons, but also for human epipersons like corpses and effigies. The reasons for this shrinking circle are complex. They include constitutional concerns about free speech and religious establishment, as well as rationalist skepticism about personifying gods, states, and venerated objects.
But despite the law’s diminishing moral concern for this broad set of persons, my account of superpersons and epipersons is far from obsolete. The U.S. legal system retains protections for divine and sovereign superpersons, as well as epipersons of all kinds, that we fail to grasp if we do not understand their historical status. What is more, my account of superpersons and epipersons points to a legacy of conceiving of some entities as partial persons that can give new direction to contemporary debates over the moral status of natural landscapes, fetuses, and AI systems.
About
Ela Leshem is a legal theorist who teaches and writes about the property and personhood status of human bodies, nation states, animals, fetuses, religious artifacts, venerated objects, and artificial intelligence. Her work has appeared in the Vanderbilt Law Review and Yale Law Journal.
Before joining Fordham, she was a fellow at the Senate Judiciary Committee and clerked for Chief Judge David Barron on the U.S. Court of Appeals for the First Circuit. Leshem holds a JD and BA from Yale, where she served as Editor-in-Chief of the Yale Law Journal. During her time at Yale, she worked for Gupta Wessler in D.C., Public Counsel in Los Angeles, Judge Jeffrey Meyer at the U.S. District Court for the District of Connecticut, and Justice Goodwin Liu at the California Supreme Court.
Leshem studied music at the University of the Arts in Bern, Switzerland, and at the State University of Music in Stuttgart, Germany. She completed a doctorate in philosophy and a masters in political theory at Oxford on a Rhodes Scholarship.