Research leaders: Frederik Swennen, Elise Goossens & Eva Bernet Kempers.
Short text
Since the late modern period, private law has relied on the dichotomy between persons and things. However, recent societal and scientific developments challenge this dichotomy – the addition of (certain) 'animals' as a new category in some jurisdictions is a recent example. Certain things are increasingly regarded as sentient beings (e.g. animals) or bearers of a certain intelligence (e.g. AI), which raises the question of a possible attribution of legal personality, at least of subjective rights. In a context of climate change and other ecological challenges, some argue for a separate legal status for natural entities (e.g. rivers, forests), at least for the legal recognition of their interests. In addition, a commodification of (parts of) the human body is also taking place. These developments invite a reconceptualisation of the foundations of private law. This research line focuses on the changing views on the legal status of persons and things, their implications for all branches of private law, and the (ir)relevance of the dichotomy between persons and things in law.
Comprehensive text
Overview
Since the late modern period, private law has relied on the dichotomy between persons and things. Only persons are holders of rights and duties, with which they participate in legal transactions. Things, on the other hand, are only the objects of rights and duties of persons, and not the holders. They do not participate as such in legal transactions. Within private law, only human beings count as 'persons' (legal persons are excluded here). All other legal entities, including other living beings, are considered ‘things’ and are thus subject to property law.
Recent societal and scientific developments, however, challenge the traditional dichotomy between person and thing. Both in the international context and within Belgian private law (see Article 3.38 of the Civil Code), animals are for instance increasingly approached as a separate, third category. Additionally, some advocate the attribution of legal personality, or at least subjective rights or an otherwise special legal status to other things, such as artificial intelligence or natural entities. At the same time, a commodification of (parts of) the human body is also taking place, raising questions about its legal status. These developments invite a re-evaluation of the relationship between all these legal entities and of the desirability and tenability of the strict dichotomy between persons and things.
Debates
This line of research has a threefold objective.
First, we aim to identify and evaluate changing views on the legal status of persons and things. In particular, we aim to contribute to the following legal debates:
· The legal status of the animal, focusing on the development of a comprehensive principle of 'animal dignity' (within the Animal & Law Chair);
· The legal implications of any ability to think, feel and judge on the part of artificial intelligence and robots, in particular as regards the granting of legal personality or subjective rights (and duties);
· The legal status of unborn life and the deceased (in particular within the Antwerp Health Law and Ethics Chair);
· The legal status of the human body and human body material, particularly in light of increasing commodification (within the Antwerp Health Law and Ethics Chair);
· The legal implications of strong personal interests in relation to certain things (e.g. personal correspondence, family souvenirs, social media accounts).
Second, we aim to identify the implications of these changing views on the legal status of persons and things for all areas of private law. Our focus is both on national as well as European and international private law. For example, within the Animal & Law Chair, research is being conducted into shaping an overarching, normative principle of 'animal worthiness' on which all human acts concerning animals should be based. Together with the research line on Liability and Accountability, we study the consequences of the blurring between persons and things for the recoverability of damages. In addition, within the Antwerp Health Law and Ethics Chair, we examine whether there is progressive legal protection in the case of unborn life as embryo and foetus reach a certain stage of development. Also, the increasing commodification of the human body (e.g. surrogacy) or parts of the human body (e.g. organs, tissues and DNA) is examined, as well as the legal solutions provided for this. Where appropriate, we also take into account the gender implications of these legal issues.
Third, we also question desirability of the person-thing dichotomy. We examine to what extent animals and certain things can be considered at least partially 'persons' by being granted certain subjective rights, and to what extent (parts of) the human body can be considered at least partially 'things' by being subjected to rights in rem. At the same time, we examine whether certain entities transcend the dichotomy between 'person' and 'thing'. We study whether there is a need for a new legal statute for entities to which personality rights and rights in rem apply simultaneously, or whether the dichotomy between 'person' and 'thing' should be revised in globo. In particular, we examine the role of contractualisation in this regard (together with the research line on Contractualisation). In collaboration with the research line on Kinship, we approach these questions from the perspective of assemblage theory, focusing on the fluidity, exchangeability and connectivity of social and legal concepts.
Specific research questions
1. What is the legal status of the animal, what should it be and in what way can a comprehensive principle of 'animal dignity' guide this?
2. To what extent do medical and ethical developments require a special legal qualification for unborn life, the human body and human body material?
3. To what extent can strong personal interests regarding certain things lead to a special legal status of these things (e.g. within inheritance law)?
4. Is the current dichotomy between 'persons' and 'things' in private law still tenable and desirable? What is the role of contractualisation in this regard?