D2.13: Virtual Persons and Identities

D2.13 Virtual Persons LEGAL CONSEQUENCE, LEGAL ACTION AND LEGAL FACT; CIVIL AND CRIMINAL LIABILITY

Before investigating the question of which subjects should or should not be granted legal subjectivity, we must explain the difference between legal actions and legal facts, and between civil and criminal liability.

Legal consequence, legal action, legal fact

The difference between an act and a legal action is that a legal action has legal consequence, attributed to that action by the law. A legal action presumes that the legal subject had the intention to achieve the legal consequence, while a legal fact can also be established when the legal subject did not act intentionally. 

Some examples: 

1. The conclusion of a contract is a legal action; it has as a consequence the legal (enforceable) obligation to deliver whatever the contract stipulates and this legal consequence was intended when concluding the contract;

2. Committing a tort is a legal fact; it has as a consequence the legal (enforceable) obligation to compensate damages, even though this legal consequence was not intended when the tort was committed; 

3. Being born is a legal fact; it has as a consequence that certain rights are attributed, that the parents have certain legal obligations towards the child, that a certain nationality is attributed, etc.; this is the case even though the child did not intend such consequences (not being in a position to intend much more than enjoying the milk and warmth of a loving parent).

It should be noted that whenever a non-human subject is attributed legal subjectivity it will need representation in law to perform legal actions. This also means that such a non-human legal subject will need representation to have standing in a court of law, to contest charges in the case of tort or crime and to fulfill its legal obligations.

Criminal and civil liability

The fact that a legal subject can be held liable in civil law does not imply that it can be held liable in criminal law. Corporations can be liable for certain criminal actions under some jurisdictions, but this will depend on the jurisdiction. One of the reasons for not enabling criminal liability for a corporation is the fact that criminal liability requires mens rea (in the common law) or guilt (in continental law), and one can argue that an organization cannot be blamed because moral blame only makes sense with regard to an individual. While in civil law moral blame may also be a condition for liability, many torts depend on strict liability, which would be a problem for the criminal law. Regulatory offences may come close to establishing a kind of strict liability, but the whole idea of a punitive intervention is either that the punishment is deserved (which can only be the case if the subject can be blamed) and/or if the subject will be deterred by the punishment (which can only be the case if the subject is capable of reflection). One could object, of course, that training a dog by means of threatening it with a stick, works very well, without depending on the dog’s capacity for reflection. However, in that case we are discussing discipline rather than punishment.