ABSTRACT
Legal-personhood debates about artificial intelligence typically ask a capacity question: is a system autonomous, cognitively complex, or self-directed enough to warrant rights and duties? This article argues that the capacity question is the wrong gate. Drawing on the only jurisdictions that have actually extended legal personhood beyond the human being-corporate law, the Whanganui River and Te Urewera settlements in New Zealand, and, negatively, the animal-rights habeas litigation culminating in the New York Court of Appeals’ decision in Nonhuman Rights Project v Breheny – the article shows that successful non-human personhood has never rested on capacity alone. It has rested on the simultaneous creation of a designated human or institutional organ that exercises the entity’s legal capacity in fact and absorbs its liabilities. The 2017 European Parliament proposal for ‘electronic personhood’, and the 156-expert open letter that halted it in 2018, are read as a dispute over exactly this missing organ, not over whether robots are clever enough to qualify. The inventorship and authorship litigation in Thaler v Comptroller-General of Patents (UKSC) and Thaler v Vidal (Fed Cir) confirms the same structural insistence from a different doctrinal angle. The article’s original contribution is the Designated Agency Test, a three-part heuristic-identifiable exercising agency, accountability flow-through, and proportionate scope-for evaluating any future non-biological personhood proposal, including for AI systems, independently of how sophisticated the system’s behavior appears. The analysis is doctrinal and comparative rather than empirical, spans UK, US, EU, and New Zealand authority, and concludes that AI legal-status reform should proceed through targeted attribution rules rather than through a personhood vocabulary the comparative record shows to be structurally premature.
Salomão De Oliveira, Northon, The Expansion of Legal Personhood: AI and Non-Biological Agency (September 14, 2026).
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