AI inventorship is reliant on neoliberal concepts of property and economic rationality

The long history of struggles for legal recognition by marginalised human groups reveals the degree to which rights and personhood were always reluctantly and incompletely conceded. A wide range of critical scholarship exposes the fact that the gradual historical expansion of the legal categories of rights-bearers carries with it an entirely predictable set of marginalisations. And while contemporary marginalised human subjects (women, children, indigenous people, refugees, climate migrants etc.) stand in more complex relation to law’s inclusion, neither the universal human of human rights, nor the legal person, have ever cast off a centripetal tendency towards an intrinsically Eurocentric construct prioritising the putatively rational, property owning, white male. Such a centripetal tendency is evident in the fact that all ‘others’ to this trope—including indigenous peoples—and ‘nature’ itself—are complexly objectified, and feminised, and cannot form central case instances of the human legal person.

These archetypal conceptual patterns and their material expressions of power are also firmly embedded in constructs of international legal personhood. Koskenniemi argues that ‘the international doctrine of State sovereignty bears an obvious resemblance to the domestic-liberal doctrine of individual liberty’, while Nijman argues that the ‘individual and the collective (e.g. the state) Self are (philosophically) intertwined [and that t]his is self-evident as the individualist, subjectivist perspective has marked the deep structure of international law’—including, of course, the structure of international legal personhood. The state is, in many senses, the individual writ large—a continuity that comes as no surprise, notwithstanding the importance of rejecting a reductive equivalence between the sovereign state and the individual. Despite complexities and distinctions, a range of scholarship makes clear the fact that the ultimate subject of all forms of law is the privileged, ‘rational’, white male template central to Eurocentric law, politics, economics and philosophy.

This master-trope reflects a particular set of subject-object relations that undergird the boundary function of liberal law’s two central ontological categories: persons and property. The binary contradiction between personhood and property is, however, rather more apparent than real. As Davies, Naffine and others have argued, law’s person is in reality constituted by property-centred assumptions, and personhood fulfils an important ideological function in assuring the prioritisation of property and the interests of the propertied in liberal legal systems.

In short, a relentless ideological and structural priority is given to a Eurocentric conception of possessive individualism, and liberal law—including international law—constructs its archetypal persons—as individuals, states and/or corporations (corporations are more fully discussed below)—on this basis. This explains why entities serving the interests of propertied elites present no difficulty as putative legal persons, unlike the marginalised human beings who can never represent paradigmatic instances of legal personhood: ‘[T]rusts, corporations, joint ventures, municipalities… and nation states’ have all been designated as rights-holders, and it is notable that corporations and nation-states, as was just implied, have historically tended to be idealised—at an archetypal level—as idiosyncratic embodiments of the paradigmatic liberal legal actor.

The relentless prioritisation of property and its owners central to such patterns is thoroughly visible in rights-based national constitutions in Europe and the US, testament not only to the historical influence of propertied elites, but also directly continuous with the corporation-centred ‘new global constitutionalism’ of the neoliberal order.

The construct of the legal person is thus legible as a property-centred assemblage that conditions multiple sites of capitalistic biopolitical governance. Legal personhood is a pivotal and mutable ideological tool for mediating exclusionary power relations. It is also key to privilege of corporations and equally pivotal to the production of marginalised subjects intransigently marked as law’s ‘outsiders.’

Against this background, and read against the long history of rights claims turning, in the process of institutionalisation, towards the re-inscription of the rights of men of property, it is easy to see why business corporations have accrued a form of corporate legal humanity through the accumulation of rights originally reserved for the elite humans in whose image and interests they were first formed. The consequences of the ways in which legal personhood is constructed, while presented as a neutral legal concept, are incontrovertibly serious and too often overlooked by a significant number of those pursuing novel approaches to legal rights and personhood—an oversight that might prove increasingly in conditions of entrenched and deepening global uneveness.

3b The form(s) of legal personhood

There are two major traditions in the jurisprudence of persons: one naturalistic, which draws closely upon heavily naturalised subtending notions of the human being, and the other positivistic, for which persons are generated by law as a technical fiat. For naturalistic accounts, legal personhood is a designation merely recognising a set of assumed human characteristics—most notably, the capacity for rational choice. For positivist accounts, by contrast, the ‘person’ in law is merely a formal operational referent designating the meeting place of norms and their relations. While it would be natural to assume that the corporation is straightforwardly an instance of a positivist construct of the legal person and that law’s ‘natural persons’ are straightforwardly human, matters are more complex than that—and it is in these complexities that we find important clues to threads linking TNC privilege, Eurocentricity, coloniality and the pathological uneveness of the neoliberal global order.

All forms of personhood, even the most ‘natural’ are, in fact, a constructus. The ‘natural person’ of law, precisely because it posits a human figure as its direct substrate, heavily disguises its constructed nature. In contrast, positivist accounts are overt about the constructed nature of their person. Anything ‘can be a legal person because legal persons are stipulated as such or are defined into existence’. The explicitly manufactured, abstract or ‘empty’ person stands at one end of a spectrum, therefore, at the other end of which is the most exclusive of naturalistic conceptions, the archetypal rational liberal legal actor (‘the classic contractor’). Significantly, however, even the most abstracted and ‘empty’ of conceptions of legal personhood is forced to ‘materialise’ —and when it does, it nearly always tends to do so as the archetypal rational liberal legal actor (the Eurocentric rationalistic legal man). Even the human rights universal, the most putatively inclusive naturalistic template, relentlessly prioritises the same submerged Eurocentric trope of the subject. In short, as Naffine concludes, legal personhood ‘fairly systematically helps to support a quite particular interpretation of the person, and one which has an intimate connection with its companion concept, property’. Legal personhood, in other words, systematically privileges the elite, property-owning ‘man’ at the heart of the liberal political order, a construct constituted by the ‘Reason’ thought to justify the civilisational priority of European males over other humans, whether women, children, indigenous peoples, non-Europeans or non-property owners (including nomads).

This submerged politics matters for thinking about legal personhood generally: all forms of legal personhood—including new and inventive forms—need to be critically evaluated for the degree to which they are drawn into the traction of this centripetal ideological construct.

3c Legal personhood and the politics of disembodiment

Key to the Eurocentric trope of the paradigmatic legal actor is its underlying, broadly Cartesian and Kantian disembodied ontology. Rationalist, property-centred ‘legal theory [has systematically underplayed] the mundane fact that in order for the law to function at all it must first and foremost have a hold over bodies’ — while simultaneously elevating a form of disembodied reason that detaches law’s paradigmatic person from that very same embodiment. A slippery politics is at work here. Some bodies remain fully vulnerable to the operation of law’s ultimately coercive hold over corporeality even as other bodies are, at least at an archetypal level, selectively privileged by their simultaneous centrality and imputed disembodiment. The imagined inferiority of the non-European, the non-male, the non-white, the non-property owner and other ‘less than fully rational’ others turns upon their degrees and kinds of corporeality, emotionality, animality and other forms of constructed unreason. Kapur has observed in this connection that

the liberal project could reconcile promises of universality with exclusions in practice through a clear and persuasive logic. Rights and benefits were linked to the capacity to reason, and the capacity to reason was tied to notions of biological determinism, racial and religious superiority, and civilizational maturity.

Critical legal theorists of various stripes (feminists, critical race scholars, TWAIL scholars, indigenous scholars and so forth) have stripped back the impossible disembodiment of the rational actor to reveal its all-too-particular ‘smuggled’ body. This body is unmistakeably that of the white, European, male, heterosexual paterfamilias, the archetypal citizen of civilised liberalism whose sociality resides in contractual exchanges and whose autonomy is expressed in the possession of property.

It is precisely such assumptions that co-situate marginalised humans, non-dominant humans, non-human animals and natural systems in ‘entanglements of oppression’ particularly destructive since the advent of corporate industrial capitalism —and increasingly troubling in the age of the Anthropocene. The ontological and epistemological assumptions underpinning these assumptions remain powerful in the contemporary neoliberal global order, with its parallel hierarchical binary between the global North and South. Meanwhile, at national and international levels alike, ‘liberal legalism [deliberately occludes] both “the legal ordering of economic policy” and the inherently political nature of that legal ordering’ in order to evade troubling questions of structural injustice.