This Article undermines two myths in American legal history: first, that <\/i>the law\u2019s circle of moral concern has steadily expanded; and second, <\/i>that legal protections have always centered on human persons. As to the <\/i>first, the law contains multiple, shifting circles of moral concern, expand<\/i>ing along some dimensions and contracting along others. As to the sec<\/i>ond, U.S. law and the English common law on which it was based have <\/i>long attributed moral status to nonhuman beings and inanimate objects.<\/i><\/p>\n
The Article shows that U.S. legislators, judges, and advocates have for <\/i>centuries treated a wide range of entities as deserving of moral concern <\/i>and legal protection. Historically, three kinds of entities stood at the center <\/i>of this legal universe: God, Country, and Man. U.S. lawmakers treated this <\/i>triad as <\/i>\u201c<\/span>superpersons<\/i>\u201d<\/span>\u2014<\/span>entities so elevated in moral status that they con<\/i>veyed some of their dignity onto objects in their penumbras. These penum<\/i>bra objects included religious artifacts and sacred sites, flags and national <\/i>monuments, corpses and effigies. Lawmakers protected these objects as <\/i>extensions of superpersons. They imposed limitations on the objects\u2019 prop<\/i>erty status. And at times, they even personified the objects, treating them as <\/i>\u201c<\/span>epipersons.<\/i>\u201d<\/span><\/p>\n Although the law\u2019s protection of these nonhuman and inanimate per<\/i>sons has waned, it has not disappeared. A broad range of laws, either <\/i>directly or indirectly, continues to protect and reinforce the moral status <\/i>and dignity of various superpersons and epipersons. Among them are <\/i>sovereign immunity doctrines, corpse abuse statutes, and laws prohibiting <\/i>the desecration of venerated objects, to name just a few. Uncovering the <\/i>law\u2019s historical universe of moral persons allows us to see more clearly the <\/i>ongoing shifts in who or what the law deems deserving of moral concern <\/i>and legal protection. Opening our eyes to these shifts can enable us to resist <\/i>a simplistic narrative of moral progress and to approach future status deter<\/i>minations with a greater sense of both agency and humility.<\/i><\/p>\n The historical precedents unearthed in this Article also offer a con<\/i>structive lens on contemporary legal battles over abortion, environmental <\/i>protection, and artificial intelligence. They allow us to see that personhood <\/i>debates in these contexts have a longer prehistory than is often realized, <\/i>based in centuries of contested legal protections for superpersons and their <\/i>penumbra objects. This prehistory points to a largely overlooked middle <\/i>position. Entities such as first-trimester fetuses, trees and lakes, and nonsen<\/i>tient AI systems need not be treated as either persons or property. Instead, <\/i>the law may treat them as epipersons. As epipersons, they would have <\/i>legally enforceable dignity interests and limitations on their property status, <\/i>but not the full-fledged rights of human beings.<\/i><\/p>\n Continue reading Law’s Shifting Circles<\/em><\/strong><\/a>.<\/em><\/p>\n