ETHICS OF AN ARTIFICIAL PERSON

Stanford University Press

Contents

Introduction...........................................1ONE Feigned and Fictional Persons.....................9TWO Who Is Responsible?...............................19THREE Roles...........................................40FOUR Fractured Autonomy...............................58FIVE Corporate Persons................................79SIX The State as Servant..............................96SEVEN Personal Instruments............................114EIGHT Persons in Context..............................131NINE Making Changes...................................146Index..................................................159

Chapter One

Qui facit per alium facit per se. [Who acts through another acts himself.] Latin saying

It is just as possible to bring wrongs to pass through free human agents as through slaves, animals, or natural forces. Oliver Wendell Holmes, Jr., "Agency I"

A PERSON "is he whose words or actions are considered, either as his own, or as representing the words or actions of an other man, or of any other thing to whom they are attributed," Hobbes says. Two possibilities are open: one can act either in one's own name, as a "natural person," or in the name of someone else; and "when [someone's actions] are considered as representing the words and actions of an other, then is he a Feigned or Artificiall Person."

"Person," Hobbes observes, derives from the Latin persona, which means a disguise or appearance on the stage. "So that a Person, is the same that an Actor is, both on the Stage and in common Conversation; and to Personate, is to Act, or Represent himselfe, or an other; and he that acteth another, is said to beare his Person, or act in his name." Since "person" is connected with a theatrical context, Hobbes likens the way that an actor on stage portrays some character to the way an artificial person acts as someone else. The objection leaps to mind that while an actor can play a part, no one in real circumstances can act as another person. It seems inherently strange to suppose that one person can be fully responsible for what another does. Hobbes does require that where a capable adult is represented, an agreement is necessary and the scope of the authority must be specified. But under these conditions the author is responsible for his agent's actions, effective or futile, right or wrong, and regardless of whether they were expressly ordered: "their words and actions [are] Owned by those whom they represent." One person does something, the other gets credited with it. "The Person is the Actor; and he that owneth his words and actions, is the Author."

Hobbes's idea is large and metaphorical; and since artificial persons take different forms, their differences must be kept in mind. For instance, while citizens are responsible for the actions of their governments, infants and the insane are not responsible for their representatives in the same way. In fact, it is precisely children's inability to act as responsible adults that requires someone to act for them. Sometimes, Hobbes says, a person "may be Personated ... but can be no Author," as with a child or an incompetent who can do many things only through representatives. But human persons are generally able to act for themselves, and thus are the authors of what their representatives do; in sum, the author does it. That means that a representative who makes a "covenant by Authority ... bindeth thereby the Author, no lesse than if he [the author] had made it himselfe; and no lesse subjecteth him to all the consequences of the same."

There are many interesting cases where nonhumans are spoken for by artificial persons: a church, a hospital, even a bridge may be personated, Hobbes says. And "the true God may be Personated" by his particular spokesmen. And in politics "a multitude of men, are made One Person, when they are by one man, or one Person, Represented; so that it be done with the consent of every one of that Multitude in particular. For it is the Unity of the Representee not the Unity of the Represented, that maketh the Person One." A representative makes a group of people into one person.

Yet when it comes to responsibility, the multitude remain many. The citizens "cannot be understood for one; but many Authors, of every thing their Representative ... doth in their name; Every man giving their common Representee Authority from himselfe ... and owning all the actions the Representer doth." What the representative does, the citizens do through him, its action is theirs as individuals, and they are unequivocally responsible. This multiplicity of authors must be dealt with whenever a group of people designate someone to speak for them, for members may differ in their choice of a representative and in what they want her to do. How can this be settled, and how can unity be attained? "The voyce of the greater number, must be considered as the voyce of them all," says Hobbes; it is "the only voyce the Representative hath." Lacking a better means, a majority is employed to make the many voices into one.

I

Acting through a representative is a practice common and accepted in contemporary life. Legal theorist John Chipman Gray says that "normal human beings ... can exercise their rights through agents, such as servants, bailiffs, or attorneys, and they can delegate to their agents the decision of the question whether the rights of the principles shall be exercised or not." An agent can exercise a person's rights for him, and in this, as in many things, it is largely a matter of how one wants to accomplish something—in person or by using another.

One common kind of representative is an attorney. Gerald Postema describes a lawyer's function this way.

The characteristic activities of lawyers often require the lawyer to act in the place of the client ... [using] his capacities to deliberate, reason, argue, and act in the public arena.... The lawyer ... acts as the client's agent.... He often acts, speaks, and argues in the place of the client. He enters into relationships with others in the name of the client. When he argues in his client's behalf, he often presents his client's argument; when he acts, he is often said to be "exercising his client's rights" and what he does is typically attributable to the client. Thus ... the lawyer becomes an extension of the legal, and to an extent the moral, personality of the client.

One hears plainly the echoes of Hobbes.

The practice of doing something through an agent has a long history. It is found in Roman times, where a master is held responsible for all actions of his slave or servant. The foundation for the practice, Oliver Wendell Holmes, Jr. says, is the identification of the head of a household with its members, whose actions, like their possessions, became the master's. "As all family rights and obligations were simply attributes of the persona of the family head," any economic transaction of theirs involved him. "For that purpose they were one with the paterfamilias" On a similar basis "early [English] law dealt with married women on the footing of servants." So if a woman was party to some transaction prior to marriage, after marriage her husband simply took...