Law is the social, economic, political and personal struggle that determines who counts as a member of the community. This struggle also determines how we should take account of the diverse interests of members of the community. Which entities, individuals or collectives do we consider members of the legal community? Of those entities, individuals and collectives, which rights, duties, privileges and protections should they enjoy? Legal rules create the contours of recognition for various entities, individuals and collectives. They define who counts and how we take account of them.
Legal disputes in a variety of areas can be understood as determinations about who counts and how we should take account of them. In family law, for example, custody disputes often concern determinations about which individuals are entitled to visitation or custody and which individuals are under an obligation to provide financial support. Legal rules, like the best interests of the child standard, (1) guide these determinations and shape adjudication. Immigration law bases the right to remain within a specific geographic nation state on who counts--i.e. which individuals are citizens (2) and permanent residents, (3) and which undocumented individuals may be deported. (4) The law also determines how we regard various diverse classes of foreign nationals to make determinations about which rights and considerations these individuals should enjoy. For example, certain immigrants may be granted a permanent visa while others are not. (5) In terms of federal tax law, the regulations governing joint or individual filing statuses determine which collective groups are recognized as a unit for the purpose of filing a federal tax return. (6) One man and one woman joined in a state sanctioned marriage can file jointly under federal law, accessing particular tax incentives, while two men, two women or one man, and four women may not. (7) Similarly, even though some families of two or more persons are prohibited from filing their taxes together, for the purposes of business ventures, groups of individual human beings shielded by the corporate form may file taxes together as a single unit. (8)
There are numerous ways to name the process of determining who counts and how we take account of them in law. Citizenship, (9) legal rights (10) and legal subjectivity (11) are various ways to speak about who counts in law and how we take account of them. Another way in which legal scholars talk about the issue of recognition for the purposes of structuring the legal community is accomplished through the concept of legal personhood. At the dawn of the twenty-first century, legal personhood has become a political battleground for activists and legislators. While some work to expand the community of legal persons to include unborn human beings like fetuses and zygotes, (12) others focus their efforts on pushing the boundaries of legal personhood beyond human beings to include great apes or whales and orcas. (13) And finally, some activists are concerned with limiting the community of legal persons to exclude collective legal entities like corporations, limited liability companies and unions. (14)
Recent activism concerning the status of persons and non-persons reveals how the legal boundaries of personhood have served as the background for debates in law and politics. In light of the recent legal and political activity concerning the boundaries of personhood, this article argues that feminist legal theory should engage with the question of legal personhood. To this end, it articulates one possible framework for a feminist legal theory of the person. Drawing on the work of scholars in vulnerability studies and embodiment theory, this article imagines and proposes an analytic framework to aid those who make and interpret the law when faced with the twenty-first century challenges of legal personhood.
Part I of this article examines the political battles around legal personhood in historical and contemporary contexts. …