'The Desirability of Legal Rights for Novel Beings' by Joshua Jowitt in (2021) 30(3) Cambridge Quarterly of Healthcare Ethica 504-516 comments
The debate around whether novel beings should be legally recognized as legitimate rights holders is one that has produced a vast amount of commentary. This paper contributes to this discourse by shifting the normative focus of moral rights away from criteria possessed by the novel beings in question, and back toward the criterion upon which we ourselves are able to make legitimate rights claims. It draws heavily on the moral writing of Alan Gewirth’s identification of noumenal agency as the source of all legitimate rights claims. Taking Gewirthian ethical rationalism as providing a universally applicable hypothetical imperative which binds all agents to comply with its requirements, the paper argues that it is at least morally desirable that any legal system should recognize the moral rights claims of all agents as equally legitimate. By extension, it is at least morally desirable that the status of legal personhood should be granted by a legal system to all novel beings who are noumenal agents, insofar as this status is necessary for rights’ legal recognition. Having established the desirability of this extension, the paper closes with an examination of recent cases involving both biological and nonbiological novel beings in order to assess their conformity with the desirable approach outlined above. The paper demonstrates that such recognition is conceptually possible, thus requiring us to move beyond the current anthropocentricity of legal systems and recognize the legitimate moral claim for legal personhood for all novel beings who possess noumenal agency.
Jowitt states
The idea of a legal rights bearer is a strange one, and in some ways is not dissimilar to an elephant; it is difficult to describe one to a person unfamiliar with the concept, but we all think we would recognize one when we see them. Yet this certainty might be misplaced. In the contemporary world, with technological and biological advances that are developing rapidly around us, the status of certain novel beings as bearers of legally enforceable rights is far from settled.
These beings have various names and forms: robots, cyborgs, androids, artificial intelligence, medically enhanced humans, biological intelligence and so on. Indeed, the confusion as to the legal status of these beings is, in part, due to the very breadth of the physical form a novel being may take. With various physical entities before us, it is difficult to identify a relevant criterion by which we can assess the normative validity of the legal rights claims that are, or in future may be, made by such beings. The purpose of this paper is to argue that this normative question requires a normative solution that identifies a characteristic that can justify the ascription of legal rights.
The paper will begin by summarizing the moral writing of Alan Gewirth, before moving on to assess the extent to which novel beings could be said to be bearers of morally legitimate claim-rights. Having demonstrated that there is no conceptual difficulty in the contention that the test for moral patiency provided by Gewirth is capable of providing a normative justification for moral claim-rights for novel beings who come within its starting parameters, the paper will move on to argue that recognition of a connection between Gewirthian morality and the concept of legal personhood is desirable. This will be achieved by exploring the extent to which the law already deals with the problem of whether or not both biological and nonbiological novel beings are legitimate bearers of legally enforceable rights, concluding with an analysis of whether or not the law is moving in a morally desirable direction.
