Leshem on Law's Shifting Circles

Ela A. Leshem, Fordham University School of Law, is publishing Law's Shifting Circles in volume 114 of the Georgetown Law Journal (2026). Here is the abstract.

This Article undermines two myths in American legal history: first, that the law’s circle of moral concern has steadily expanded; and second, that legal protections have always centered on human persons. As to the first, the law contains multiple, shifting circles of moral concern—expanding along some dimensions and contracting along others. As to the second, U.S. law and the English common law on which it was based have long attributed moral status to nonhuman beings and inanimate objects. The Article reaches these insights by showing that U.S. legislators, judges, and advocates have for centuries treated a wide range of entities as deserving of moral concern and legal protection. Historically, three kinds of entities stood at the center of this legal universe: Man, Country, and God. U.S. lawmakers treated these entities as “superpersons,” enjoying such elevated moral status and legal protection that even objects falling into their penumbras received moral consideration. These penumbra objects included corpses and effigies, flags and national monuments, religious artifacts and sacred sites. Lawmakers protected these objects as extensions of superpersons and, in so doing, treated them at times as “epipersons.” Although the law’s protection of these nonhuman and inanimate persons has waned, it has not disappeared. A broad range of laws, either directly or indirectly, continue to protect and reinforce the moral status and dignity of superpersons and epipersons. Among them are sovereign immunity doctrines, corpse abuse statutes, and laws prohibiting the desecration of venerated objects, to name just a few. Uncovering the law’s historical universe of moral persons allows us to see more clearly the ongoing shifts in who or what the law deems deserving of moral concern and legal protection. Opening our eyes to these shifts, as this Article shows, can enable us to resist a simplistic narrative of moral progress, and to approach future status determinations with a greater sense of both agency and humility. The historical precedents unearthed in this Article also offer a constructive lens on contemporary legal battles over abortion, environmental protection, and artificial intelligence. They allow us to see that personhood debates in these contexts have a longer prehistory than is often realized, based in centuries of contested legal protections for superpersons and their penumbra objects. This prehistory points to a largely overlooked middle position between treating entities such as first-trimester fetuses, trees and lakes, and nonsentient AI systems as either persons or property—namely, treating them as epipersons with legally enforceable dignity interests and limitations on their property status, but without full-fledged rights.

Download the article from SSRN at the link.