Pushing at the Boundaries of Legal Personhood

In July 2021, Engracia Figueroa a prominent disability activist flew from Los Angeles to Washington DC to take part in a political rally at which she was due to speak. On her return flight with United Airlines her custom-made wheelchair suffered significant damage while stored in the cargo hold, forcing her to use a loaner chair provided by the airline. Using a wheelchair that was not properly fitted to her body led to the development of a pressure sore. She died of complications from this injury in October 2021 aged 51. Before her death Figueroa argued that a wheelchair is ‘an extension of our body’, which airlines are entrusted with and should be expected to care for as if it was a person. This led a number of high-profile disability activists to argue that mobility aids, and wheelchairs in particular, should factually be treated as an extension of a disabled person’s body and therefore damage to a mobility aid should attract the same legal penalties as equivalent harm being done to a person’s body.

As Sylvia Federici argues ‘[a]s the point of encounter with the human and non-human world, the body has been our most powerful means of self-expression and the most vulnerable to abuse’ (p.53). Considering the body in law then seems crucial to our understanding of what it means to have legal personhood. Analyses of legal personhood have broadly highlighted that legal personhood tends to be understood as a ‘common sense’ concept, despite clearly being an evolving, socially constructed phenomenon. However, as Ngaire Naffine notes, the actual embodied form of the legal person often remains vague in both law and jurisprudence, where if it is envisaged at all, it is primarily as a rational, able-bodied adult (p.144). Socio-Legal Studies as a discipline has a long history of drawing on emerging forms of knowledge to argue for an interpretation of legal concepts that better includes ways of being that deviate from the male, white, heterosexual, able-bodied norm. Rosie Harding, for instance, highlights the importance of gender and sexuality-related norms in shaping how same-sex couples engage with laws around legal status, such as marriage and civil partnership. Nevertheless, to date there has been less engagement within Socio-Legal Studies with the ways in which non-normative embodied practices may challenge dominant ways of understanding legal personhood.

Contemporary English criminal law clearly recognises that at times the human body can be extended in its form and reach through objects. For instance in R v Thomas [1985] Crim LR 677 the Court held that touching a person’s clothing, such as the hem of a skirt, can constitute an assault on the person themselves for the purposes of criminal law. Clearly in some circumstances objects have a transitive capacity for harm, even if the victim themselves was not actually harmed by the touching/interaction with the object. Following this line of legal reasoning, then, someone grabbing a mobility aid being used by another is exercising force on that person’s body and would potentially be committing assault against that person. Here, law would treat the touching of an object as equivalent to the touching of a body and impose a sentence legally proportionate to the injury caused. However, wheelchairs and other mobility aids are only treated by law as an extension of the body while in direct contact with their owner. Otherwise, they revert to being mere belongings or property, subject to criminal laws regarding property offences. But can this distinction always be made so neatly?

Disability and the use of adaptive technology offers specific ‘thoughtways’ regarding the constitution of the legal person. These thoughtways suggest that something that is generally considered property can also be a fundamental part of a person’s body, identity, and abilities. These thoughtways clearly also challenge essentialist definitions of personhood that equate legal personhood with the human as a generalisable rational, independent, able-bodied, male figure and draw on the recognition of non-human objects as legal persons in the sense that they are part of people, but also separate from them, but unlike non-human objects also draw out the ‘transient cluster concepts’ Naffine  describes as defining legal personhood (p.78). Disability seems to point towards a new type of emerging boundary cases for legal personhood, namely the status of humans when in interaction with, or modified by, technology and other objects. If we accept that legal personhood is socially constructed, then it seems crucial for Socio-Legal Studies to engage further with scholarship in the law and technology field, which challenges definitions of personhood that focus solely on the biological, non-modified human body. This seems particularly pressing given the rapid development of technology around artificial intelligence, genetic modification, animal to human organ transplants and the technological modification of bodies more generally.

Could we then imagine a framework of legal personhood that recognises persons with removeable parts? Or that what law recognises as a person might shift and change over time and in different contexts? Given the contemporary challenges posed to static and ‘common sense’ understandings of human bodies (for instance the new availability of an artificial pancreas), re-considering the limits of legal personhood in light of emerging and embedded interactions between humans and technology seems a crucial step towards a more expansive, representative, and nuanced understanding of legal personality. If Socio-Legal Studies is to take seriously its commitment to understanding law as a social phenomenon, then there is a need for the field to reflect on what currently are still minority experiences, but which over time will likely become more embedded social practices that pose significant challenges for our existing legal frameworks.