Legal personhood in the context of agentic AI

In this chapter, Hildebrandt builds on a post-phenomenological philosophy of technology to update speech act theory in the context of law. She contends that speech act theory has been focused on orality, with little attention to the constitutive nature of the technologies of text for modern positive law and the Rule of Law. The latter define the foundational legal concepts of notably legal subjectivity and legal effect, which - in terms of speech act theory - is a performative effect. The notion of performative effect must be distinguished from both logical and causal effects, highlighting that legal subjectivity is an institutional fact. In that light, Hildebrandt develops a non-utilitarian, consequentialist understanding of legal personhood, aligned with pragmatism and an updated speech act theory. The emerging transition of modern positive law towards computational law requires keen attention to potential transformations of such foundational concepts and the impact of their transformation on the Rule of Law. Computing systems operate in terms of logic and/or correlations; they do not attribute legal effect, even though we may attribute legal effect to their output model or output behaviours. The chapter will argue that attributing legal personhood to agentic AI systems will not necessarily solve the problems presented by these systems, while raising numerous new problems about their identification, definition, representation and about the accountability of those who develop, provide and/or deploy them. One of the most interesting questions will be whether we could give standing to agentic AI systems without requiring representation, accepting the output of their models as computational speech acts with potentially performative effect. The point of this chapter is not to answer that question, instead offering an architecture to trace the implications of attributing performative effect to the output of agentic AI systems.