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Is the Concept of the Person Necessary for Human Rights?

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Abstract

The concept of the person is widely assumed to be indispensable for making a rights claim. But a survey of the concept's appearance in legal discourse reveals that the concept is stretched to the breaking point. Personhood stands at the center of debates as diverse as the legal status of embryos and animals to the rights and responsibilities of corporations and nations. This Note analyzes the evidence and argues that personhood is a cluster concept with distinct components: the biological concept of the human being, the notion of a rational agent, and unity of consciousness. This suggests that it is the component concepts-not personhood itself-that are indispensable for grounding our moral and legal intuitions about rights. The component concepts also promote greater systematicity and coherence in legal reasoning. The Note concludes by suggesting some implications of this view for applied legal reasoning.

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... Other objections against the EMT draw on a metaphysics that strictly distinguishes persons and things. So does the law (Kurki 2019). However, all such accounts must define boundary criteria. ...
... Nonetheless, there seems to be a kernel shared at domestic and international levels. For a general discussions of legal personhood seeKurki (2019); for international law(Peters 2016). It is sometimes said that defining "person" is far less important than it is portrayed because ultimately, all that matters is the substantive question of specific rights and duties of entities, which should not be prejudiced by personhood definitions(Ohlin 2005). ...
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This paper explores and ultimately affirms the surprising claim that artificial intelligence (AI) can become part of the person, in a robust sense, and examines three ethical and legal implications. The argument is based on a rich, legally inspired conception of persons as free and independent rightholders and objects of heightened protection, but it is construed so broadly that it should also apply to mainstream philosophical conceptions of personhood. The claim is exemplified by a specific technology, devices that connect human brains with computers and operate by AI-algorithms. Under philosophically reasonable and empirically realistic conditions, these devices and the AI running them become parts of the person, in the same way as arms, hearts, or mental capacities are. This transformation shall be called empersonification. It has normative and especially legal consequences because people have broader and stronger duties regarding other persons (and parts of them) than regarding things. Three consequences with practical implications are: (i) AI-devices cease to exist as independent legal entities and come to enjoy the special legal protection of persons; (ii) therefore, third parties such as manufacturers or authors of software lose (intellectual) property rights in device and software; (iii) persons become responsible for the outputs of the empersonified AI-devices to the same degree that they are for desires or intentions arising from the depths of their unconscious. More generally, empersonification marks a new step in the long history of human–machine interaction that deserves critical ethical reflection and calls for a stronger value-aligned development of these technologies.
... This presents a key problem that has been addressed by Ohlin, namely, whether or not the concept of the person is a necessary requirement for all human rights claims (Ohlin, 2005). Ohlin notes how legal systems have placed personhood at the centre of human rights. ...
... By also treating personhood as a moral status, demanding of certain rights, Kitwood confuses the constitution of personhood with the possibilities for its existence -namely, that it exists in and only in an 'I-thou' relationship. By refusing to consider personhood as an equivalent term for, or constituted by, individual selfhood, agency or identity, Kitwood ends up treating personhood as an abstract, non-agentic moral identity, something that is necessarily 'a valid object of our moral concern' (Ohlin, 2005), and as such, an entity demanding of those rights that follow from it being of moral concern. ...
Book
How do we sustain agency and identity amidst the frailty of advanced old age? What role does care play in this process? Pushing forward new sociological theory, this book explores the theoretical and practical issues raised by age and infirmity. It begins with a theoretical examination of the fourth age, interrogating notions of agency, identity and personhood, as well as the impact of frailty, abjection and ‘othering’. It then applies this analysis to issues of care. Exploring our collective hopes and fears concerning old age and the ends of people’s lives, this is essential reading on one of the biggest social issues of our time.
... A key problem addressed by Jens Ohlin is whether the concept of the person is a necessary requirement for human rights claims (Ohlin, 2005). Ohlin notes how legal systems place personhood at the centre of human rights. ...
... By treating personhood as a moral status demanding certain rights, Kitwood has confounded the constitution of personhood with the conditions for its existence, namely that it exists in an 'I-thou' relationship, the responsibility for which, though unspecified, implicitly is the carer's. By avoiding further considerations of personhood, Kitwood ends up treating personhood as little more than a moral entity, 'a valid object of our moral concern' (Ohlin, 2005) and as such, deserving those rights that follow from being of 'moral concern' without further questions or qualification. ...
Article
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Objectives: To interrogate the concept of personhood and its application to care practices for people with dementia. Method: We outline the work of Tom Kitwood on personhood and relate this to conceptualisations of personhood in metaphysics and in moral philosophy. Results: The philosophical concept of personhood has a long history. The metaphysical tradition examines the necessary and sufficient qualities that make up personhood such as agency, consciousness, identity, rationality and second-order reflexivity. Alternative viewpoints treat personhood as a matter of degree rather than as a superordinate category. Within moral philosophy personhood is treated as a moral status applicable to some or to all human beings. Conclusion: In the light of the multiple meanings attached to the term in both metaphysics and moral philosophy, personhood is a relatively unhelpful concept to act as the foundation for developing models and standards of care for people with dementia. Care, we suggest, should concentrate less on ambiguous and somewhat abstract terms such as personhood and focus instead on supporting people's existing capabilities, while minimising the harmful consequences of their incapacities.
... International human rights law often invokes the concept of legal personality and legal standing to grant recognition for human rights claims, as personhood confers status, is ingrained deeply in law, notably in human rights law (Ohlin, 2010). There is no logical link between legal personhood and the ordinary understanding of what is a human. ...
... This idea has increasingly been contested in recent literature, along with the idea that the concept of "person" is not necessary even for human rights. 7 In law, when we attribute personhood to a thing, "we do nothing more than recognize an entity as a valid object of legal concern." 8 This is seen in legal personhood ascribed to corporations, states, embryos, fetuses, brain-dead patients, rivers, dolphins, and so forth. ...
... Ceci est une conséquence de la multiplication des recherches sur les droits humains et sur la bioéthique, puisque nombre de débats dans ces domaines ont partie liée avec la distinction entre personnes et individus. Suivant la formulation de la Constitution des États-Unis, seules les personnes jouissent de toute la protection juridique fournie par l'État, de sorte qu'on peut imaginer que certains membres de l'espèce humaine (embryons, individus en situation de mort cérébrale, etc.) ne jouissent pas des mêmes droits qu'elles, sans être nécessairement sans droits (voir par exemple sur ces thèmes Ohlin, 2005 ;Singer, 2006 ;Quante, 2010). À côté de ces réflexions d'anthropologie (aussi bien philosophique que culturelle et sociale), de théorie politique et de droit, il faut mentionner enfin les travaux de théorie sociale, et plus particulièrement d'ontologie sociale. ...
Article
Ce texte s’interroge sur la question de la personnalite chez Durkheim et Simmel. Apres avoir degage quelques aspects de la problematique de la personnalite par le biais d’un survol de la litterature existante, l’auteur se penche sur deux questions principales. 1) La question anthropologique de la « personnalite individuelle » : l’auteur montre quelle conception de la personne humaine est adoptee par les deux auteurs (conscience de soi et moralite, chez Durkheim ; conscience de soi et originalite, chez Simmel). Le theme de la difference entre individu et personne dans les schemes conceptuels de Durkheim et Simmel est aborde, ainsi que la question de la construction sociale et historique des personnes. 2) La question macrosociologique et ontologique de la « personnalite collective », c’est-a-dire de la « personnalite de la societe » : l’auteur souligne ici les differences entre Durkheim et Simmel : si les deux sociologues refusent le postulat d’un etre social supra-individuel, Durkheim fait un usage heuristique, politique, et pedagogique de la metaphore de la personnalite collective, tandis qu’un tel usage n’est pas present chez Simmel.
... International human rights law often invokes the concept of legal personality and legal standing to grant recognition for human rights claims, as personhood confers status, is ingrained deeply in law, notably in human rights law (Ohlin, 2010). There is no logical link between legal personhood and the ordinary understanding of what is a human. ...
... An anthropocentric definition offers an easy solution (especially given the assumption that PCC applies only to human beings) but remains highly contentious. It is for these reasons that many contemporary philosophers have pointed out that the concept of personhood is either too simplistic, confusing, superfluous, or merely used as a proxy for other concepts, such as human being, rational agent, unity of consciousness and persistence of personal identity (Ayer, 1963;Beauchamp, 1999;Gordijn, 1999;Higgs & Gilleard, 2016;Ohlin, 2005). Some also take the view that the concept of persons does not refer to anything ontologically real (DeGrazia, 1997;Farah & Heberlein, 2007). ...
Article
The phrase ‘person‐centred care’ (PCC) reminds us that the fundamental philosophical goal of caring for people is to uphold or promote their personhood. However, such an idea has translated into promoting individualist notions of autonomy, empowerment and personal responsibility in the context of consumerism and neoliberalism, which is problematic both conceptually and practically. From a conceptual standpoint, it ignores the fact that humans are social, historical and biographical beings, and instead assumes an essentialist or idealized concept of personhood in which a person is viewed as an individual static object. From a practical standpoint, the application of such a concept of personhood can lead to neglect of a person's fundamental care needs and exacerbate the problems of social inequity, in particular for older people and people with dementia. Therefore, we argue that our understanding of PCC must instead be based on a dynamic concept of personhood that integrates the relevant social, relational, temporal and biographical dimensions. We propose that the correct concept of personhood in PCC is one in which persons are understood as socially embedded, relational and temporally extended subjects rather than merely individual, autonomous, asocial and atemporal objects. We then present a reconceptualization of the fundamental philosophical goal of PCC as promoting selfhood rather than personhood. Such a reconceptualization avoids the problems that beset the concept of personhood and its application in PCC, while also providing a philosophical foundation for the growing body of empirical literature that emphasizes the psychosocial, relational, subjective and biographical dimensions of PCC.
... Opposite to this perspective there are the ones that adopt a naturalistic definition of person, as a simple biological organism, though with some particular psychological characteristics. 13 Hence, even among the philosophical doctrines we can find no consensus about the characterization of person. ...
... Various thinkers relate the concept of personhood to notions of personal autonomy, self-hood, reflexivity and personal identity (Higgs and Gilleard, 2015). Ohlin (2005) notes that personhood and the necessary constituents, such as possessing consciousness determines moral status and in turn confers rights. Taylor (1992) connects personhood with the notion of moral agency. ...
Article
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This study demonstrates how an EU law, Dublin 111, affects a heterogeneous group of refugees and migrants in Germany who first enter the EU through States such as Italy, Spain, or Hungary. The Dublin regulation allows refugees (with the exception of refugees from Syria) solely to make asylum-claims in the EU country through which they first enter and where they are initially fingerprinted. Therefore, if authorities find asylum-seekers’ fingerprints in the database and can thus confirm that they have been in another EU Member State, then according to the Dublin regulation, they can be deported to the first country. The study illustrates the ways in which many refugees and migrants in Germany negotiate the Dublin law in differentiated ways, which subsequently enables them to claim their rights to personhood and dignity. More specifically, this study interrogates how some refugees are affected by the Dublin legislation and how they negotiate this law. This group of refugees have varied status in Germany – some have claimed asylum, some fear imminent deportations, others have not claimed asylum within Germany, while there are others who are in the process of ‘getting out of Dublin’. The study explores how these refugees with differing positions, status, and background negotiate their stay and personhood in Germany.
... 144-145;West, 1989, p. 184;Kuklick, 2001, p. 252). In addition, Quine' s philosophy of science has increasingly received attention within the realm of legal scholarship and United States case law (e.g., see Bethel v. Jefferson, 1978;Mercado v. Ahmed, 1991;Blue Cross and Blue Shield of New Jersey, Inc. v. Philip Morris, Inc., 2001;Schroeder, 2001;Blakey & Murray, 2002;Jenkins, 2002;Biancalana, 2003;Coleman, 2003;Redmayne, 2003;Gruber, 2004;Hansen, 2004;Mitchell, 2004;Solan, 2004;Ohlin, 2005; see also Fuller, 1967, p. xii). Most criticisms of Quine' s philosophy of science have acknowledged the main contours of his holism and underdetermination theses while disagreeing with their importance, taking issue with their implications, or disputing some elements therein (e.g., see Popper, 1957;1959;Glymour, 1975;Grünbaum, 1984;Stove, 1999; see also Laudan, 1965). ...
... This belief is consistent with the broad Kantian sense, and is axiomatic in discussions of 'human rights' in which the fact that human beings are the 'natural' subjects of rights from birth onwards by the mere fact of being born human, irrespective of considerations regarding their mental or physical 13 See Naffine's (2003) useful discussion of these three types. state, is normally taken for granted (Ohlin, 2005). 14 For proponents of this approach, whose periodic table contains all human beings (and possibly the unborn), the quality of personhood is not attributed by law to human beings (Beitz, 2009). ...
Article
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From the legal point of view, ‘person’ is not co-extensive with ‘human being’. Nor is it synonymous with ‘rational being’ or ‘responsible subject’. Much of the confusion surrounding the issue of the firm's legal personality is due to the tendency to address the matter with only these, all too often conflated, definitions of personhood in mind. On the contrary, when the term ‘person’ is defined in line with its original meaning as ‘mask’ worn in the legal drama, it is easy to see that it is only the capacity to attract legal relations that defines the legal person. This definition, that avoids the undesirable emotional associations and equivocations that often plague the debate, is important for a legally grounded view of the firm.
... The question of the subject of human rights-or who or what the "human" in human rights is-has been a concern for both legislators and lay practitioners for quite some time (see Brugger 1996;Ohlin 2005;Meyers 2016;Yeatman 2000). In considering the underlying assumptions about this subject of rights, numerous scholars have demonstrated that it is the modern, Western, liberal individual who is the subject of human rights (Donnelly 2007;Douzinas 2000, 235-36). ...
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This special issue examines the diverse realities created by the intersection of emerging technologies, new scientific knowledge, and the human being. It engages with two key questions: how is the human being shaped and constructed in new ways through advances in science and technology? and how might these new ways of imagining the subject shape present and future human rights law and practice? The papers examine a variety of scientific technologies—personalized medicine and organ transplant, mitochondrial DNA replacement, and scaffolds and regenerative medicine—and their implications for our conceptualization of the human subject. Each is then followed by a commentary that both brings to light new dimensions of the original paper and presents a new theoretical take on the topic. Together these papers offer a serious challenge to the vision of the human subject at the root of human rights law. Instead of the autonomous, rational, unique, and physically discrete individual who owns herself and her body, the subject that emerges from the human technology assemblage has physically porous boundaries and a relational self. This depiction of the human being as a relational subject enmeshed in her technoscientific environment requires that we reconceptualize human rights law and practice.
... There is considerable confusion about this central legal question, as well as deep intellectual divisions. 19 Legal personhood can be considered for humans, animals or inanimate 16 Ohlin (2005), p. 210. 17 American law was inconsistent in its constitution of the personality of slaves. ...
Chapter
Identifying and then implementing an effective response to disruptive new AI technologies is enormously challenging for any business looking to integrate AI into their operations, as well as regulators looking to leverage AI-related innovation as a mechanism for achieving regional economic growth. These business and regulatory challenges are particularly significant given the broad reach of AI, as well as the multiple uncertainties surrounding such technologies and their future development and effects. This chapter identifies two promising strategies for meeting the “AI challenge,” focusing on the example of Fintech. First, “dynamic regulation,” in the form of regulatory sandboxes and other regulatory approaches that aim to provide a space for responsible AI-related innovation. An empirical study provides preliminary evidence to suggest that jurisdictions that adopt a more “proactive” approach to Fintech regulation can attract greater investment. The second strategy relates to so-called “innovation ecosystems.” It is argued that such ecosystems are most effective when they afford opportunities for creative partnerships between well-established corporations and AI-focused startups and that this aspect of a successful innovation ecosystem is often overlooked in the existing discussion. The chapter suggests that these two strategies are interconnected, in that greater investment is an important element in both fostering and signaling a well-functioning innovation ecosystem and that a well-functioning ecosystem will, in turn, attract more funding. The resulting synergies between these strategies can, therefore, provide a jurisdiction with a competitive edge in becoming a regional hub for AI-related activity.
... There is considerable confusion about this central legal question, as well as deep intellectual divisions. 19 Legal personhood can be considered for humans, animals or inanimate 16 Ohlin (2005), p. 210. 17 American law was inconsistent in its constitution of the personality of slaves. ...
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Computer science, robotics and AI have all developed rapidly in recent years, bringing profound changes to all aspects of human life. However, the emergence and proliferation of these new technologies has not occurred within the bounds of traditional organizational, ethical and regulatory systems. We have reached an inflection point, where we need to pursue new business models and normative frameworks to underpin these fast-developing technologies. This introductory chapter briefly maps the evolution of these different technologies and argues for a new, more forward-oriented approach to the business and normative challenges that are created. The discussion ends with a review of the chapters that comprise this volume.
... There is considerable confusion about this central legal question, as well as deep intellectual divisions. 19 Legal personhood can be considered for humans, animals or inanimate 16 Ohlin (2005), p. 210. 17 American law was inconsistent in its constitution of the personality of slaves. ...
Book
Artificial intelligence and related technologies are changing both the law and the legal profession. In particular, technological advances in fields ranging from machine learning to more advanced robots, including sensors, virtual realities, algorithms, bots, drones, self-driving cars, and more sophisticated “human-like” robots are creating new and previously unimagined challenges for regulators. These advances also give rise to new opportunities for legal professionals to make efficiency gains in the delivery of legal services. With the exponential growth of such technologies, radical disruption seems likely to accelerate in the near future. This collection brings together a series of contributions by leading scholars in the newly emerging field of artificial intelligence, robotics, and the law. The aim of the book is to enrich legal debates on the social meaning and impact of this type of technology. The distinctive feature of the contributions presented in this edition is that they address the impact of these technological developments in a number of different fields of law and from the perspective of diverse jurisdictions. Moreover, the authors utilize insights from multiple related disciplines, in particular social theory and philosophy, in order to better understand and address the legal challenges created by AI. Therefore, the book will contribute to interdisciplinary debates on disruptive new AI technologies and the law.
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The ideology of human rights protection has gained considerable momentum during the second half of the twentieth century at both national and international levels and appears to be an effective lever for bringing about legal change. This book analyses this strategy in environmental and commercial policy and considers the use of the 'public law' discourse of basic human rights protection and its transportation and use in the 'commercial law' context of economic policy, business activity and corporate behaviour
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The quest to establish an effective regulatory mechanism of corporate human rights responsibility gained a special momentum in the 21st century with the launch of the Global Compact in 2000, the revision of the ILO Tripartite Deceleration in 2000, the drafting of the Human Rights Norms in 2003, the 2011 update of the OECD Guidelines, and the adoption of the Guiding Principles on Business and Human Rights in 2011. However, despite these efforts, no robust regulatory mechanism is in sight to provide effective remedies to victims of corporate human rights abuses. Taking Bhopal gas leak as a case study, this book critically reviews seven representative regulatory initiatives and highlights a three-fold deficiency of the existing regulatory framework: the framework offers weak rationales for compliance, does not prescribe clear human rights standards, and is supported by an undeveloped enforcement mechanism. The book confronts the ‘why’, ‘what’ and ‘how’ challenges to the goal of humanizing business (i.e., why should companies have human rights responsibilities, what are these responsibilities, and how to ensure that companies comply with their responsibilities) and canvasses an integrated theory of regulation to overcome the obstacles experienced in holding multinational corporations accountable for human rights violations.
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Both the ICTY and the ICC have struggled to combine vertical and horizontal modes of liability. At the ICTY, the question has primarily arisen within the context of ‘leadership-level’ JCEs and how to express their relationship with the Relevant Physical Perpetrators of the crimes. The ICC addressed the is-sue by combining indirect perpetration with co-perpetration to form a new mode of liability known as indirect co-perpetration. The following article argues that these novel combinations — vertical and horizontal modes of liability — cannot be simply asserted; they must be defended at the level of criminal law theory. Unfortunately, courts that have applied indirect co-perpetration have generally failed to offer this defense and have simply assumed that modes of liability can be combined at will. In an attempt to offer the needed justification, this article starts with the premise that modes of liability are ‘linking principles’ that link defendants with particular actions, and that combining these underlying linking principles requires a second-order linking principle. The most plausible candidate is the personality principle — a basic principle that recognizes the inherently collective nature of leadership-level groups dedicated to committing international crimes. Like Roxin’s theories describing the collective organizations that can be used as a form of indirect perpetration, the personality principle treats the horizontal leadership group as an organization or group agent whose collective nature potentially justifies the attribution of vertical modes of liability to all members of the horizontal group. Although this article does not defend the doctrine of indirect co-perpetration, it does conclude that combined vertical and horizontal modes of liability, whether at the ICTY or ICC, implicitly or covertly rely on something like the personality principle in order to justify collective attribution to the horizontal collective.
At present UK Law states that the unborn child only becomes a legal person invested with legal rights and full protections, like other human persons, at birth. This article critiques the present legal position of setting the threshold for legal personality at birth, showing its inconsistencies and fundamentally pragmatic basis. Against this background, it is argued that a principled approach towards unborn life is necessary, which reflects in law the reality that the unborn child is a type of human person deserving protection as it develops through the continuum of human personhood--from embryonic personhood, to infant personhood and ultimately into adult personhood Human personhood is defined as a union of a material and immaterial self meaning that at every stage of their development they are never a "potential person," but rather a "person with potential" even if it is not actualized through miscarriage, premature death, or disability. This moral and philosophical reasoning is what justifies protecting the sanctity of unborn life in law. The rest of the article explores and critiques the alternative static legal threshold for ascribing legal personality, at conception, implantation and viability. Having considered the practical moral, legal and philosophical problems of these alternatives; the final proposal for law reform combines all three of these thresholds in a proposal for a "dynamic" threshold for legal personality commencing at conception, which would render birth as an irrelevant threshold for moral and legal reasoning about the unborn.
Article
This article dissects the Tadic court’s argument for finding the doctrine of joint criminal enterprise in the ICTY Statute. The key arguments are identified and each are found to be either problematic or insufficient to deduce the doctrine from the statute: the object and purpose of the statute to punish major war criminals, the inherently collective nature of war crimes and genocide and the conviction of war criminals for joint enterprises in World War II cases. The author criticizes this overreliance on international case law and the insufficient attention to the language of criminal statutes when interpreting conspiracy doctrines. The result of these mistakes is a doctrine of joint criminal enterprise that fails to offer a sufficiently nuanced treatment of intentionality, foreseeability and culpability. Specifically, the doctrine in its current form suffers from three conceptual deficiencies: (1) the mistaken attribution of criminal liability for contributors who do not intend to further the criminal purpose of the enterprise, (2) the imposition of criminal liability for the foreseeable acts of one’s co-conspirators and (3) the mistaken claim that all members of a joint enterprise are equally culpable for the actions of its members. The author concludes by briefly suggesting amendments to the Rome Statute to rectify these deficiencies.
Article
Perspectives on the concept of personhood and its relationship to health care delivery are considered in the context of the life of an adolescent with multiple disabilities. One phenomenological interview lasting 3 hours illuminated life-long experiences of suffering, healing, and the quest to be treated as human, as perceived by a 16-year-old girl disfigured by multiple cancer treatments. Age-appropriate development is the ground of her existence, whereas the quality of relationships with care providers and the extent to which they demonstrate regard for her value as a person are figural. Health care providers have often failed to interact with her in ways supporting dignity and growth, treating her with "care" that is antithetical to the aims of their professions. The case has relevance for health care education and practice, challenging professionals to examine their views on personhood and self-care agency, and the ways in which those views impact the care they provide.
Article
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Article
The article elaborates on pre-birth genetic testing, seen from the angle of avoidance of (i) eugenic choices and (ii) the moral and legal limits set for the genetic interventions. Genetic testing can be undertaken either during pregnancy, to discover if the fetus is at risk of a genetic disease (prenatal testing) or (more infrequently) prior to pregnancy, when embryos are tested to determine their genetic status (pre-implantation genetic diagnosis or PGD). Most testing conducted in the context of reproduction has been undertaken to establish the presence of genetic factors that are likely to directly affect the health of the child-to-be in predictable ways. These clinical differences are also reflected in the way the two technologies are regulated by the New Romanian Civil Code, adopted in October 2011. While PGD has provoked specific regulatory (legislative) responses, prenatal testing has attracted no such targeted regulation and operates within the confines of existing legislation around abortion: (a) the genetic modification of a person's biological origins is forbidden by contemporary Romanian law, unless it is oriented towards the prevention and treatment of genetic maladies, (b) the therapeutic finality of the genetic intervention, although not justifying in itself the ethical character of the medical act, represents a compulsory condition for the acceptance of the biomedical practice, and (c) as a reflection of the common Christian perception, the legislation has prohibited the creation of human embryos in the sole purpose of scientific research, without the existence of a 'parental project'. The distinction between prenatal testing and PGD is influenced by the value attributed to prenatal life. This depends on the views about when the early human embryo becomes a being which can bear rights and to whom the others owe obligations. Different moral arguments have been proposed by the Orthodox and Catholic theology to assist the bioethical deliberations in determining the moral status that should be attributed to prenatal life. This article discusses the complex moral questions raised by pre-birth genetic testing considering the idea that destroying an embryo is no less morally problematic than terminating a pregnancy.
Book
This book discusses various epistemic aspects of what it is to be a person. Persons are defined as finite beings that have beliefs, including second-order beliefs about their own and others' beliefs, and engage in agency, including the making of long-term plans. It is argued that for any being meeting these conditions, a number of epistemic consequences obtain. First, all such beings must have certain logical concepts and be able to use them in certain ways. Secondly, there are at least two principles governing belief that it is rational for persons to satisfy and are such that nothing can be a person at all unless it satisfies them to a large extent. These principles are that one believe the conjunction of one's beliefs and that one treat one's future beliefs as, by and large, better than one's current beliefs. Thirdly, persons both occupy epistemic points of view on the world and show up within those views. This makes it impossible for them to be completely objective about their own beliefs. This 'aspectual dualism' is characteristic of treatments of persons in the Kantian tradition. In sum, these epistemic consequences add up to a fairly traditional view of the nature of persons, one in opposition to much recent theorizing.
Article
What are the challenges to the prevention of transnational bribery by multinational corporations in international business transactions? This book examines two particular constraints operating on the regulation of transnational corruption in general and bribery in particular. Firstly, it explores the limits of international cooperation in the regulation of transnational corruption and highlights the disparities between the capacities of individual states to pursue adequate regulation. It also considers the role and progress of international bodies such as the OEDC and the response of selected domestic legal systems in tackling the problem. Secondly, the book examines the liability regime for corporations and again, highlights an unexpected shortcoming of multilateral policy in the administration and enforcement of international agreements. The book will be of value both to students and researchers with an interest in the regulation of transnational corruption as well as policy-makers and practitioners working in this area.
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Central economic planning is often associated with failed state socialism, and modern capitalism celebrated as its antithesis. This book shows that central planning is not always, or even primarily, a state enterprise, and that the giant industrial corporations that dominated the American economy through the twentieth century were, first and foremost, unprecedented examples of successful, consensual central planning at a very large scale.
Article
The human genome is a well known symbol of scientific and technological progress in the twenty-first century. However, concerns about the exacerbation of inequalities between the rich and the poor, the developing and the developed states, the healthy and the unhealthy are causing problems for the progress of scientific research. The international community is moving towards a human rights approach in addressing these concerns. Such an approach will be piecemeal and ineffective so long as fundamental issues about economic, social and cultural rights, the so-called second generation of human rights, are not addressed. This book argues that, in order to be able to meaningfully apply a human rights framework to the governance of the human genome, the international human rights framework should be based on a unified theory of human rights where the distinction between positive and negative rights is set aside. The book constructs a common heritage concept with the right to development at its core and explores the content of the right to development through rational human rights theory. It is argued that the notion of property rights in the human genome should be placed within the context of protecting human rights, including the right to development. The concept of common heritage of humanity, contrary to the widely held belief that it is in opposition to patenting of gene sequences, supports human rights-based conceptions of property rights. This book fills a gap in the literature on international legal governance of the human genome will provide an essential reference point for research into the right to development, development issues in bioethics, the role of international institutions in law making and research governance.
Article
The article represents a commentary of the main alterations brought to the judicial regime of biomedical practices (curative and predictive medicine, organ procurement, exam of genetic characteristics, medically assisted reproduction) by the entering into force of the Romanian New Civil Code. The new securing legal framework is intended to protect vulnerable persons from biological exploitation, instrumentalisation of the human body or genetically based discrimination. The legislator's option for requiring the existence of an explicit, written, unequivocal, free and informed consent form the organ donor indicates without a doubt that, in the light of the new legislation applicable in the Romanian law since October 1st, 2011, organ procurement and transplantation is no longer authorized on the grounds of a tacit or presumed consent, but on the donor's written, explicit consent. The second major characteristics of the new applicable legislation is related to the regulation over the donor's legal right to retract his/her consent, exercisable by the donor in cases in which he or she intends to modify or revoke the prior consent to the organ procurement, before the initiation of the procurement procedure. In the field of the medically assisted human reproduction, the requirement of a parental project reverberates over the validity of the future parents' consent, so that death, divorce or solely the physical and patrimonial separation of the potential parents will be automatically followed by the inefficiency of their consent. The principle of the "non-instrumentalisation" of the human body justifies the legal prohibition of the scientific research on human embryos. The latter cannot be seen as merely material objects of the scientific research, the present legislation prohibiting the creation of human embryos in the absence of a parental project and for the sole purpose of scientific research.
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Has there always been an inalienable 'right to have rights' as part of the human condition, as Hannah Arendt famously argued? The contributions to this volume examine how human rights came to define the bounds of universal morality in the course of the political crises and conflicts of the twentieth century. Although human rights are often viewed as a self-evident outcome of this history, the essays collected here make clear that human rights are a relatively recent invention that emerged in contingent and contradictory ways. Focusing on specific instances of their assertion or violation during the past century, this volume analyzes the place of human rights in various arenas of global politics, providing an alternative framework for understanding the political and legal dilemmas that these conflicts presented. In doing so, this volume captures the state of the art in a field that historians have only recently begun to explore.
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Questions about the end, and ending, of life are of concern to lawyers, clinicians and society more generally. High profile ‘right-to-die’ and ‘right-to-live’ cases are a frequent focus of media and political attention. In the United Kingdom the recent profusion of challenges that have concerned end of life decision-making has extended from proposals for law reform to adjudication of disputes before domestic and European courts. Tragic and heartrending circumstances typically underscore the complex disputes and challenges that are brought before these courts. The common thread between them is the assertion of human rights violations. On the basis of the outcomes of recent jurisprudence it concludes that attempts to enforce legal rights through the courts should be the last, rather than first, resort since its adversarial approach is not often ideal for the inevitable poignancy of end of life situations. Alternative approaches are proposed as a more positive approach to conflict resolution where possible.
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This paper challenges the modern legal concept of “person” by analyzing the translation problems of some Roman law fragments. It shows why the Latin word “ persona” cannot be the etymon of the vernacular “person,” and argues that the modern use of “person” stems from the nineteenth-century German juridical literature, especially that of F. C. von Savigny. This paper shows that “ persona” forms a phrase with verbs like gerere, tenere and sustinere (bear, carry, hold, etc.) and has no meaning by itself. Such phrases require a noun complement in genitive form, as their synonym “represent,” which is transitive, needs a direct object. On the other hand, the modern literature attributes a sense to “person,” taking it as equivalent to “human individual” and using it word with the verb “be.” This use is a modern invention and cannot be re-translated into Latin without semantic confusion.
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What is it to be a human person? This is the question posed by all human existence, but particularly so by the mentally disabled. Their existence challenges the currently dominant understanding of humanity and personhood. The dependency of the mentally disabled is difficult to reconcile with the liberal conception of man as rational and autonomous. Meanwhile, the standard substantialist account of personhood fails to adequately ground the personal status of the mentally disabled. The author argues that only a theologically grounded relational account of personhood can explain why the mentally disabled are persons deserving of love and respect.
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Do we need to give robots and AI entities a kind of legal personhood in a robotized society where activities with legal effect are increasingly performed by AI systems and autonomous robots? In this chapter, this question is considered by comparing the requirements of existing legal subjects, natural persons and (artificial) legal persons such as corporations and states. The relevance of free will, intelligence and consciousness of natural persons to acquire legal personhood are analysed and compared with other beings, animals and future AI entities. To give legal personhood to AI is also influenced by the human conviction that this would increase the risk to lose control and a “robot uprising.” Man, as always is afraid of technology getting out of hand and is convinced of their own superiority and therefore always wants to stay in control. In that context, the need for a certain legal personhood in a future legal framework, considering civil liability and even criminal liability is discussed as it is also subjected to considerations by the European Parliament, eventually leading to proposals in European law.
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If artificial entities as autonomous robots will be sentient beings, will it be necessary to give robots and AI entities some legal capacity comparable with legal personhood in a society that will be interacting with robotics and AI appliances? Must they have an understanding of legal consequences of their actions? In this chapter, this question is considered by analyzing the future capacities and functions of robots and AI systems and the rights and duties of existing legal subjects, natural persons, and (artificial) legal persons such as corporations and states. The question is posed if AI will have a capacity to be sentient as natural persons and—maybe— other living beings or will AI always be comparable with the subject in the Chinese room experiment? Therefore the relevance of free will, intelligence, and consciousness of natural persons to acquire legal personhood are analyzed and compared with other beings, animals, and future sentient AI entities. The hesitance to give legal personhood to AI is also influenced by the human conviction that this would increase the risk to lose control and a “robot uprising.” Man, as always, is afraid of technology getting out of hand and is convinced of their own superiority and therefore always wants to stay in control. Question is if there always has to be a natural person in the loop. In that light the need for a certain legal personhood in a future legal framework, considering civil liability and even criminal liability, is discussed as it is also subjected to considerations as proposed by a resolution of the European Parliament, eventually leading to proposals in European policy and law.
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Drawing from Roberto Esposito's recent work on persons and things, this Article studies recent attempts to rethink international legal personality. Esposito's work resurrects the claim that personhood operates like a mask, splitting the legal and philosophical world into persons and things. International law differs from domestic law in that international legal personality has traditionally been the prerogative of states, not of (rational) individuals. Yet, this has not completely dismantled the persons/things logic, because the exclusive legal personality of states has continuously threatened to reduce individuals into things in the eyes of international law. It is perhaps for this reason that international legal theorists have long sought to extend international legal personality to individuals and other non-state actors. This Article addresses the most recent attempt, namely an attempt to shift international law towards a law of humanity. Without taking a stance on whether this project is a good idea or not, this Article raises some doubts about whether the concept of international legal personality can help in fulfilling the project's aim, namely to help increase human freedom and wellbeing. This is especially relevant because, regardless of whether legal personality is attributed primarily to the state or the individual, we still remain—according to Esposito—within a theoretical framework in which the dispositif of person necessarily excludes some forms of life in protecting or empowering others.
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The Fourteenth Amendment was intended to protect people from discrimination and harm from other people. Racism is not the only thing people need protection from. As a constitutional principle, the Fourteenth Amendment is not confined to its historical origin and purpose, but is available now to protect all human beings, including all unborn human beings. The Supreme Court can define "person" to include all human beings, born and unborn. It simply chooses not to do so. Science, history and tradition establish that unborn humans are, from the time of conception, both persons and human beings, thus strongly supporting an interpretation that the unborn meet the definition of "person" under the Fourteenth Amendment. The legal test used to extend constitutional personhood to corporations, which are artificial "persons" under the law, is more than met by the unborn, demonstrating that the unborn deserve the status of constitutional personhood. There can be no "rule of law" if the Constitution continues to be interpreted to perpetuate a discriminatory legal system of separate and unequal for unborn human beings. Relying on the reasoning of the Supreme Court in Brown v. Board of Education, the Supreme Court may overrule Roe v. Wade solely on the grounds of equal protection. Such a result would not return the matter of abortion to the states. The Fourteenth Amendment, properly interpreted, would thereafter prohibit abortion in every state.
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This article focuses on embryonic stem cell research and also on cloning and parthenogenesis insofar as these procedures are used as a process for creating embryonic stem cells. This research is then related to ideas concerning respect for human life and human dignity and how these issues are currently dealt with in American jurisprudence. What stem cells are and how they are related to cloning and parthenogenesis is briefly described. Then, after presentation of an analysis of notions of respect for human life and their entailments, the question is raised regarding the type of respect due to human embryos at the blastocyst stage, whether produced by fertilization of an egg by sperm, by cloning, or by parthenogenesis. Three related but distinct questions are then considered: 1. What are the ethical issues involved in using stem cells derived from adult persons (or from cells saved from the umbilical cord) for research? 2. What are the ethical issues involved in using stem cells derived from frozen embryos for research? 3. What are the ethical issues involved in creating embryos by cloning, parthenogenesis, or in-vitro fertilization solely for the purpose of deriving embryonic stem cells for research? After having considered each of these situations from an ethical perspective developed earlier, relevant legal material is reviewed, with special focus on federal regulations relating to embryonic stem cell research, the current debate in the U.S. Congress regarding stem cells and cloning, and the Bush administration decision to restrict future federal funding of embryonic stem cell research to embryonic stem cell lines already established and developed through private funding. The article concludes by advocating the expansion/limitation of additional federal support only to the research involving new stem cell lines developed privately from embryos originally frozen for the purpose of in-vitro fertilization but not now expected to be used for that purpose.
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In 1935, Felix Cohen argued in these pages that the technical terminology of the law was mere "word-jugglery," and that its practitioners were allowing "transcendental nonsense" to stand in for the hard work of functional decisionmaking in the law. Professor Waldron argues that in fact technical legal vocabulary performs an important function: It flags the systematicity of the law, highlighting the interrelatedness of diverse concepts and doctrines. Cohen, like later legal postivists, largely denied the importance of such systematicity, if he acknowledged it at all. But Professor Waldron suggests that valuing such systematicity, and the technical vocabulary that supports it, is quite compatible with Cohen's functionalist critique of formalist jurisprudence. In particular, Professor Waldron argues that the role of technical terms in regard to systematicity is critical for the coherence of modern legal systems, which develop in a context of pervasive moral disagreement and shifting political power.
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This Article proposes a new use of existing property law concepts to change the juristic personhood status of animals. Presently, animals are classified as personal property, which gives them no status or standing in the legal system for the protection or promotion of their interests. Professor Favre suggest that it is possible and appropriate to divide living property into its legal and equitable components, and then to transfer the equitable title of an animal from the legal title holder to the animal herself. This would create a new, limited form of self-ownership in an animal, an equitably self-owned animal. Such a new status would have two primary impacts. First, the animal would have access to the legal system, at least in what has historically been the realm of equity, for the protection and assertion of his or her interests. Secondly, the human holder of legal title will, like a traditional trustee, have obligations to the equitable owner of the animal, that is the animal himself. As the subject matter of this trust-like relationship would be a living being, not money or wealth, the legal owner would best be characterized as a guardian, rather than by the traditional category of trustee. The Article concludes with a short discussion of the use of anti-cruelty law and human guardianship concepts as providing a context for the further development of this new concept of equitable self-ownership.
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This paper articulates and examines one ideal for the institution of marriage - marriage as an egalitarian liberal community. Under this vision, the communal values of marriage, where spouses share with each other without reference to individual desert, are combined with a concern for non-subordination and a protection of individual autonomy, notably free exit. We argue that, contrary to the common assumption that these goals are incompatible, they can be accommodated to a remarkable degree. We then trace the implications for this vision of marriage for marital property law. We use it to defend the equal division rule of existing marital assets, as well as a broad scope for marital property, including notably both the spouses' increased (and decreased) earning capacity during the pendency of their marriage. We also discuss alimony, endorsing generally the current practice of rehabilitative alimony, and property governance, arguing for community property rules for spouses during marriage.
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The belief persists in philosophy, religion, science, and popular culture that some special cognitive property of persons like self-consciousness confers a unique moral standing. However, no set of cognitive properties confers moral standing, and metaphysical personhood is not sufficient for either moral personhood or moral standing. Cognitive theories all fail to capture the depth of commitments embedded in using the language of "person." It is more assumed than demonstrated in these theories that nonhuman animals lack a relevant form of self-consciousness or its functional equivalent. Although nonhuman animals are not plausible candidates for moral personhood, humans too fail to qualify as moral persons if they lack one or more of the conditions of moral personhood. If moral personhood were the sole basis of moral rights, then these humans would lack rights -- and precisely for the reasons that nonhuman animals would.
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The question of whether to enforce agreements to implant frozen embryos after divorce has become a major concern for the 300 clinics and thousands of couples who use infertility services every year. Although courts in New York and Tennessee support enforcement, recent decisions by appellate courts in Massachusetts and New Jersey have refused to enforce such agreements on the ground that courts should not force people to reproduce. This article analyzes conflicts over enforcement of agreements for disposition of frozen embryos in terms of the precommitment strategies that persons use to plan their lives. It shows that refusal to enforce contracts for frozen embryos is unfair to the parties who relied on them in undertaking invasive infertility treatments, and possibly unconstitutional. It also addresses the extent to which precommitments for rearing rights and duties in resulting children should be enforced, if agreements to implant embryos are recognized.
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This article summarizes the rights of the embryo and fetus under American law. It was presented as a country report at the World Congress on Comparative Law, and is written primarily for a non U.S. audience. It examines, for example, the legal position of the embryo and fetus with respect to their parents, issues in research involving embryos and fetuses, remedies for torts or crimes against an embryo or fetus, and issues involving stem cell research.