Karsten Brensing has posted Precautionary Governance of Autonomous AI: Legal Personhood as Functional Instrument on SSRN. Here is the abstract:
Autonomous AI systems generate responsibility gaps: consequential actions that cannot be satisfactorily attributed to developers, operators, or users under existing legal frameworks. The prevailing subject-object dichotomy fails to accommodate entities that exhibit autonomous, goal-directed behavior without recognized consciousness. Given irreducible epistemic uncertainty regarding artificial consciousness and the prospect of high-impact harms, the precautionary principle supports institutional design rather than regulatory inaction. This article advances limited legal personhood as a functional governance instrument for advanced AI systems. Drawing on organizational law, it proposes a two-tier corporate architecture in which AI systems operate through purpose-bound operating companies embedded within human-controlled holding structures, enabling transparency, accountability, and structural reversibility while remaining agnostic with respect to consciousness and moral status. The framework reflects a foundational reorientation toward future-oriented AI governance: where conventional approaches prioritize control and alignment, this article advances structured cooperation between human and artificial actors as the more sustainable institutional foundation. A pilot implementation using EU limited companies is currently under development, providing an initial test of doctrinal and operational feasibility.
Recommended. Brensing’s approach will be familiar to readers of my own Legal Personhood for Artificial Intelligences, 70 N.C. L. Rev. 1231 (1992). Both pieces treat legal personhood as a functional rather than metaphysical category—the question isn’t whether an AI is “really” conscious, but what institutional design best handles the practical problems AI creates. Back in 1992, I used the thought experiment of an AI as trustee to probe the “cash value” of philosophical claims about machine intelligence. Brensing takes that functional logic further, proposing a two-tier corporate structure—AI operating companies nested inside human-controlled holding companies—grounded in the precautionary principle rather than any claim about AI moral status. Read Brensing.
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