This Article undermines two myths in American legal history: first, that the law’s circle of moral concern has steadily expanded; and second, that legal protections have always centered on human persons. As to the first, the law contains multiple, shifting circles of moral concern, expanding along some dimensions and contracting along others. As to the second, U.S. law and the English common law on which it was based have long attributed moral status to nonhuman beings and inanimate objects.

The Article shows that U.S. legislators, judges, and advocates have for centuries treated a wide range of entities as deserving of moral concern and legal protection. Historically, three kinds of entities stood at the center of this legal universe: God, Country, and Man. U.S. lawmakers treated this triad as “superpersons”—entities so elevated in moral status that they conveyed some of their dignity onto objects in their penumbras. These penumbra objects included religious artifacts and sacred sites, flags and national monuments, corpses and effigies. Lawmakers protected these objects as extensions of superpersons. They imposed limitations on the objects’ property status. And at times, they even personified the objects, treating them as “epipersons.”

Although the law’s protection of these nonhuman and inanimate persons has waned, it has not disappeared. A broad range of laws, either directly or indirectly, continues to protect and reinforce the moral status and dignity of various superpersons and epipersons. Among them are sovereign immunity doctrines, corpse abuse statutes, and laws prohibiting the desecration of venerated objects, to name just a few. Uncovering the law’s historical universe of moral persons allows us to see more clearly the ongoing shifts in who or what the law deems deserving of moral concern and legal protection. Opening our eyes to these shifts can enable us to resist a simplistic narrative of moral progress and to approach future status determinations with a greater sense of both agency and humility.

The historical precedents unearthed in this Article also offer a constructive lens on contemporary legal battles over abortion, environmental protection, and artificial intelligence. They allow us to see that personhood debates in these contexts have a longer prehistory than is often realized, based in centuries of contested legal protections for superpersons and their penumbra objects. This prehistory points to a largely overlooked middle position. Entities such as first-trimester fetuses, trees and lakes, and nonsentient AI systems need not be treated as either persons or property. Instead, the law may treat them as epipersons. As epipersons, they would have legally enforceable dignity interests and limitations on their property status, but not the full-fledged rights of human beings.

Continue reading Law’s Shifting Circles.