“Identity, Mereological Puzzles, and the Construction of Fundamental Legal Concepts” by Yafran Fodoye.

I. Introduction

Legal discourse makes frequent references to “persons” and “property” with little more than technical jurisprudential squabbles about what these terms indicate or mean in esse. It is often enough to assume the common-sense definitions of these terms as the Kelsenian grundnorm of legal discussion. But, as with many other definitions of common-sense, philosophical discussion tends to complicate some of these conceptually primitive notions. “Persons” and “property”, if we take “property” to describe any non-human entity that may licitly be possessed, enjoy an eminent place in the literatures of very diverse branches of philosophy: metaphysics (particularly mereology), philosophy of mind, existentialism, ethics, and philosophical anthropology, in particular. In this paper, I am particular interested in the question as it is complicated by discussions in metaphysics and the philosophy of mind, and more narrowly in the very earliest systematic discussion of “personal identity”, and more generally ontological “identity”, English philosopher John Locke’s “An Essay Concerning Human Understanding”, and how this complication highlights the artificial nature of legal concepts.

II. The Problems of Metaphysical Identity

Metaphysical identity is a slippery issue, as anyone who has ever come across the puzzle that is the Ship of Theseus is aware. Theseus, son of two fathers and a mother, is said to have sailed to Athens from Crete in a magnificent ship which the Athenians memorialized and preserved for centuries, according to Plutarch, by changing whichever plank became weak or rotten with new ones. Philosophers had the occasion to ask, using this story, an interesting question about identity: suppose we changed a single plank of the ship, does it remain the same ship? The intuitive answer, of course, is yes—for most people, at least. This seems to be the common-sense idea of identity, and legal judgement would assume the continued existence of Theseus’ ship in such a case—identity is not assumed to have been broken by the mere changing of one plank. In essence, if the ship, before the plank change is designated by A0, and after the change of the plank by A1, then:

A0 = A1

A follow-up question may be asked: if the changing of one plank does not make A0 different from A1, then surely the changing of one plank in A1 does not make the ship, A2, with two new planks (relative to A0) different from A1, does it? Surely, there would be a contradiction if we assumed that one plank could change the identity of A1 but not A0? To avoid this contradiction, and following intuition:

A1 = A2

It also follows, from the above, by the law of transitivity, that:

A0 = A2

By now we can begin to generalize from the cases above (following the law of transitivity) that if An = An+1 and An+1 = An+2, then An = An+2 for any n. But what happens, say, if the ship had a total of x number of distinct mereological parts and we replaced each of these parts one at a time until we had replaced x planks/parts? Is the ship still Theseus’ ship or an altogether new ship? That is to say is the following proposition correct:

A0 = Ax

Given the law of transitivity, and that An = An+1 for any value n in the series, as we have already shown, and that x is a member in the series {A0, A1, A2, A3…Ax}, that conclusion seems valid.

This raises an interesting mereological puzzle, one which I take a counter-intuitive tack in answering. For me, there is a dilemma. Either transitivity is in fact a valid rule, or

A0 ≠ A1

I choose the latter horn of the dilemma because I believe the set of properties P0 of the ship A0 is not strictly identical to the set of properties P1 of the ship A1, primarily because P0 lacks some member x, which is the unique plank now added, while P1 excludes the member y, which is the unique plank now removed. But this dilemma need not be true, at all, as some philosophers have argued, presenting other more philosophically challenging responses, like a four-dimensionalist “time worm” account of identity, to the puzzle. This, in fact, is a tangent, because while there is this obvious philosophical challenge, there is also a legal puzzle that is as interesting and more pertinent to this discussion: is Theseus, suppose he had not died over those long centuries, legally entitled to the ship Ax? Or even more critically: does Ax have the same legal identity or (to use the term very loosely and analogously) corporate personality as A0? And to advance the depth of our inquiry even more, let us ask the question which Thomas Hobbes asked of this ship: suppose all the old planks had not rotted and had actually been used to construct an ostensibly “new” ship, does that ship retain the identity of A0, and does Theseus have any legal claim over it?

III. Jurisprudential Implications of Mereological Puzzles

Some of these questions, from a practical, and so legal point of view, but not a mereological one, are very easy to answer, but have interesting implications. The first question, “is Theseus entitled to the new ship?” may be answered on the assumption that Theseus had secured legal possession of all the new planks for use as replacement material, in which case he still owns the ship because all the new parts now added to it are under his legal possession. In essence, all that happens here is that he adds new property (the new planks) to old property (the old ship). But still, an interesting question remains: suppose the old ship A0, was built at time t0 and the first replacement was made at time t1. Now suppose Theseus was paying a mortgage on the ship (although this additional thought is not necessary to see the problem I am about to put forward), at time, t2, when the last replacement is made and the ship becomes Ax, is Theseus required to continue payment on Ax, or is he now paying the mortgage on A0 which no longer exists in a strict sense. In essence, given that Ax (the ship made of all new planks) has a historical identity that begins properly at t1, or t2, depending on which philosopher you ask, how does it retain the legal identity of A0 whose historical properties begin at time t0?

This leads to our next question: “does Ax have the same legal identity or (to use the term very loosely and analogously) corporate personality as A0?” At the moment when Ax comes into existence, is the deed for A0 rendered null? Does he need to get a new deed? The intuitive answer, of course, is no, because even at the moment the last plank is being replaced, he is legally paying for repairs on a ship whose existence is anchored on the identity of A0. And given my argument that A0 ≠ A1, and a fortiori, that A0 ≠ Ax we may well ask, why such an intuition of continuity subsists in legal discourse? Why will the law take my car to be the subject of the same legal identity even if I overhaul its upholstery? Locke has an answer for this: for Locke, a machine continues to be the same machine, despite external changes if its function is preserved – if the machine continues to help me drive around and I change a single part, it is still the same machine because its identity is anchored on its function. But even this response will find it difficult to explain why, legally speaking, A0 = Ax. We would have to extend the response (which Locke does in different ways in different places in his “An Essay Concerning Human Understanding” which, for reasons of economy and simplicity, I won’t go into here) to say that the legal identity of objects or “property” is anchored not on their material constitution per se but in their “essence”. Of course, this introduces a metaphysical complexity into our account by postulating an intangible property (one which Medieval scholastic philosophers struggled constantly with), but it helps us solve the problem: the ship is the same ship because we see that in “essence” it is the same ship. This is a common-sense notion which legal explanation can and does work with, but it does point out to us that the legal identity of property, unless we intend to be “legal platonists” (akin to mathematical platonism), whatever that may be, is constructed rather than discovered to be inherently persisting in objects. In essence, that legal identity does not refer to anything in esse, but to an artificial and extrinsic construct applied to things.

IV. An Essentialist Ontology of the Legal Identity of Property

Once we see this, we are able to answer the rest of our questions with ease. Hobbes’ question, for instance, is resolved by our essentialist legal ontology: Ax is, in fact, A0, and unless Theseus retained legal ownership of the old planks, whatever new ship is built from it he cannot claim any legal ownership of. But, suppose he did retain ownership of the planks, unbeknownst to a man called Athenadorus, who then came and built a new ship out of it, what becomes of the new ship, seeing that it is composed of property belonging to Theseus and the labor of Athenadorus? This, I think is an interesting question, but not an unprecedented one; however, it is a question not directly related to the legal-metaphysical problems we are currently discussing.

V. John Locke on the Identity of Persons

The first systematic discussion of the problems of personal identity were undertaken by English philosopher John Locke in “An Essay Concerning Human Understanding”. From a jurisprudential perspective (I will not delve into the ontological problems he raises) Locke problematizes our workaday notion of personal identity by having us consider that when we speak about persons, we are usually referring to a person as a body, a conception of personhood that is not sufficiently powerful to ground law. Consider, for instance, that committing a homicide while sleepwalking (let us imagine it is possible) will most likely not result in a conviction. That, of course, is a farfetched example, but serves to highlight a point: insanity, or any other form of mental “incapacitation” is considered enough evidence that a deed was not committed by a person, or at least the person whom the individual would be were they lucid or not incapacitated. Consider the fundament of contemporary insanity laws, the M’Naghten (McNaughton) Rules from Queen v. M’Naghten:

“Jurors ought to be told in all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proven to their satisfaction; and that to establish a defense on the ground of insanity, it must be clearly proved that, at the time of committing the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong.”

Consider, also, Durham v. the United States (1954), where “an accused is not criminally responsible if his unlawful act was the product of mental disease of mental defect”. Suppose an “incapacitated’ or “insane” individual became lucid after their crime, do they become responsible for crimes committed during that incapacitation or insanity? The right answer, of course, is taken to be no. And so the same body that committed the crime does not take responsibility for the crime, meaning, of course, that there is an implicit and necessary dualism in the methodology of law in such cases. The person, then, becomes, in large part, a mental entity.

This, in fact, is the basis of Locke’s account of personal identity—the internal representation of the individual. For Locke, personhood is not anchored on the identity of substance (the body), for instance), for one, as we have seen, because it is possible for the act committed by a sleeping body not to be attributed to the person normally in possession of such a body. What remains to anchor personal identity is the mental. Now, whether one takes a strongly dualist position on the mental or a strongly material position is inconsequential, since in any case we can suppose different material or immaterial substances harboring the same mind—Locke shows this using several illustrations in his work (but I shall not enter on those here). The substance (material or immaterial) is always contingent; it is the mental, whatever produces it, that is necessary to the identity of a person.

On the Lockean account, the mark of the mental, which is consciousness, must be the chain that links together the acts of the person, and so personal identity must be anchored by conscious awareness. And if so, then “as far as this consciousness can be extended backwards to any past action or thought, so far reaches the identity of that person” (Locke, Ch. XXVII, Book II, §11). This account is, thus, often called “the memory account of personal identity”. I am personally partial to this account, and I do sometimes take exception to this latter name because it not only trivializes the Lockean account of personal identity, it often mischaracterizes it to the point of deliberate strawmanning. I will not spend time to defend this account here because that is an ambitious philosophical project, but I do put forward that it is the best account there remains of personal identity.

VI. The Puzzle of Continued Existence and the Identity of Persons as Legal Fiction

But suppose a person got drunk and committed a crime, then claimed not to be able to remember it. Or suppose an individual claimed merely not to remember any crimes they committed. Or suppose this criminal was an amnesiac. Does this hole in their conscious historical perception of themselves mean a cessation in personal identity (the ontological puzzle) or that they should not be responsible for what they did during that chunk of missing time (the legal puzzle)? This is one of the key critiques brought up against the Lockean account.

I will not attempt to resolve the ontological puzzle here (because, as I have pointed out with a couple of such problems so far, it involves quite a bit of philosophical muscle-work, particularly in mereology which is itself a very byzantine subject). But I must attempt to resolve the legal one as this is the aim I set for myself at the beginning. Locke has an answer, one which is somewhat an extension of his response to the identity of non-conscious objects, and which I here reiterate.

Consciousness, which Locke sets up as the criterion of personal identity, can only be experienced from the inside and is always subjective (Nagel, What is it like to be a Bat?, 442). Given this solipsistic reality, it follows that the personhood of a person is only completely confirmable from the inside. For this reason, Locke tells us, the law has no way in such cases to be sure that the plea of ignorance or unawareness of one’s actions is true, and so such defenses are legally inadmissible. In essence, the law must attempt to do its best in such cases, assuming that since the person currently under trial usually is in the body under trial it must be taken to have been aware of its action, or at least, it must be taken that the same principle, be it material or immaterial, that constituted the person at the time of the crime is the very same that now constitutes the person at the time of trial. As is obvious, Locke’s solution is stringent and extremely broad. In fact, it is so broad that it even covers somnambulists: they, too, under the assumption, must be persecuted, because the law “cannot distinguish certainly what is real, what counterfeit” (Locke, Ch. XXVII, Book II, §24).

But this need not continue to be so. Thomas Nagel, in his landmark “What is it like to be a Bat?” argues, in a similar spirit as Locke, that the internal experience of an individual cannot be “revealed in the physical operation of that organism” (Nagel, 442). If this is the case, then, obviously, Locke’s wide net is justified. But modern neuroscience can approximate mental states from brain states, and gives us the opportunity to refine the law. While we could remain true to some extent to the Lockean idea (or even better extend the presumption of innocence to those in these situations), we have the opportunity to alleviate ostensible injustice and must do so. The popularity of expert testimony from psychologists and neuroscientists is thus a welcome innovation in contemporary law.

VII. Conclusion

If this Lockean account of the legal reasoning behind punishing the drunk is reasonable, and given the metaphysical slipperiness of personal identity, it is (or ought, at least, to be) justified, then it follows that the court develops an artificial construct of the person in order to operate effectively with the idea of the person. While with property it must resort to an essentialist ontology to secure the persistence of identity, with “persons”, the law must resort to a naive ontology to secure the same. The bottom-line, of course, is that the legal concept of identity in both cases is secured not by ontological verities, but by constructed fictions. As such, they are not only open to criticism and scrutiny, they must be continually criticized and scrutinized to ensure justice is always served to the fullest possible extent.

Yafran Fodoye is a pseudonym. Fodoye is a student of Rutgers University. He is interested in philosophy, psychology, sociology, and anthropology, not only of the African continent, but of a more catholic and global flavour.

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