So what is monster, what is human?
Other than the fact that this is my most monstrous sweater.
>> [LAUGH]
>> A flip answer is, monster and
human are words.
Two words, the sentences they're embedded in for
the title of this invite us to look at their definitions.
I actually think it's sort of interesting to look at their origins,
at their etymology.
The word human comes from the Latin word homo, which meant human male.
Subsequently expanded to include both sexes, or all sexes.
Its earlier derivation is unclear.
Some people think it comes from the Indo-European
root of nomen, gomen, which meant earth.
And the idea that it's an earthly being, not a divine being, but it's not clear.
Monster, on the other hand, is much clearer.
Monster came into English in the 14th century or so, it came from French.
One of the first uses of monster in English was actually Chaucer in
The Knight's Tale where he talks about the Minotaur as a monster.
The French came from the Latin, not surprisingly.
And monstrum in classical Latin meant an unearthly,
a horrible, a terrible unnatural thing.
But originally it meant something else.
It was a bad omen or
a divine omen, it was something that you should pay attention to.
The Latin for that came from the word monere, to warn, so it was a warning.
But the Latin from the early Indo-European,
the Proto-Indo-European, came ultimately from the word to think.
Men, like mental, is the root of monster through one of its verb forms,
to cause to think or to have caused to think, moneo.
So a monster is something that makes you think.
It's a similar root, similar source for admonishing or
monitor or premonition, things we need to think about.
I think Mary Shelley's monster has given us a lot to think about for
the past 200 years, and continues to now.
I wanna talk about two things.
As a recovered lawyer, long-time law professor,
I wanna talk about criminal liability.
The criminal liability potentially of both the monster itself or
himself and the choice of the pronoun there is kind of fraught,
and also the criminal liability of Victor Frankenstein.
And so in the short time I've got I'm gonna talk about those two things.
Let's start with the monster.
The monster killed, directly, three people in the novel.
Killed Victor's little brother William, somewhere in or
near the Republic of Geneva.
Killed Victor's best friend Henry Clerval, probably, apparently in Scotland.
And third, killed Victor's brand new wife Elizabeth Lavenza at Evian-les-Bains,
about 30 miles east of Geneva, where they went for
their honeymoon in the Savoy portion of the Kingdom of Sardinia.
He also was responsible indirectly, I think, for two other deaths.
The death of Justine, the Frankenstein family servant who is executed for
the murder of William, which always struck me is had to be an obvious
miscarriage of justice even at the time.
And the death of Alphonse Frankenstein,
Victor's father who died of a broken heart when he learned of Elizabeth's death.
The first death, the death of William, seems to have been in a fit of passion,
although not entirely clear.
The monster encounters William,
William makes fun of his ugly appearance, the monster gets a little angry.
William says, you can't treat me like that,
I'm the son of Alphonse Frankenstein, Syndic.
The monster realizes he is from the family of his enemy,
becomes enraged, and kills him.
The second two murders clearly are premeditated, trying to get back at Victor
by killing his friend, and then get back at Victor by killing his wife.
In normal course of events, a prosecutor would a have a pretty darn good case for
first-degree premeditated murder, at least in the second and third case.
But only people, only persons,
can be charged with crimes.
Now, that wasn't always true.
There were [LAUGH] a number of wonderful medieval precedents of non-persons
being indicted, tried, convicted, and executed.
Particularly pigs,
I'm not sure why they picked on- >> [LAUGH]
>> Pigs so much, but
there are a lot of great pig cases.
There's also a case of a cart that killed someone being, not so
much executed, but tried and confiscated.
And a tree that killed somebody by falling on it, the tree was executed and
given to the family of the dead man to burn or
use for its revenge or compensation as it chose.
As far as I can tell, the last of these animal liability cases,
at least in Europe, was 1596.
So, the events in this book took place some time in the late 18th century.
Shelley makes it clear in the letters, it's 17 dash dash.
So it's not 1816 when she wrote it, or 1818 when she published it, but
some time earlier.
They weren't hanging pigs for murder at that point.
Frankenstein's monster is not a pig, but what is he?
Is he a person?
Oddly enough, the law has two separate categories, at least two, but
two important for this purpose, separate categories of persons.
Natural persons and unnatural persons.
And I'm willing to bet that everybody in this room is a natural person.
>> [LAUGH]
>> Although some of you,
probably all of us,
are somehow related to, or parts of, various unnatural persons.
Interestingly, for something so fundamental,
we've got basically no law on what a natural person is.
The closest, biggest precedent we've got in the United States is Roe v Wade.
Which says that for purposes of the 14th amendment of the US Constitution,
a fetus is not a person.
But it doesn't actually say what a person is.
Looking at it, stepping back, it appears that our default definition
is a person is any living organism born from the body of a woman.
Now Frankenstein's monster was not born from the body of a woman.
And it wasn't even made up of one thing born from the body of one woman.
It appears, although Russ is right, [LAUGH] the description is just really
frustratingly vague, he spent a lot of time in basically the morgue and
the slaughterhouse in order to build the monster.
So clearly there seem to be parts of several different people.
And also, probably parts of non-human animals in there.
Probably necessary to extend it and give it its eight-foot height and
its large bulk.
Although that also is not clear.
So it's not something born out of a woman, it doesn't have parents.
If we do think of it, if we do try to go back to the pieces that made it up,
to think that, well, maybe it's a person and it's the people who made it up.
Is it all of those people?
If it was 20 people, 3 pigs, and 4 horses, is it all of them?
Do you indict 20 people, 4 horses, and 3 pigs?
If it's not all of them, is it one of them, and if so, which one?
Is it the head, that has the brain?
Of course,
we don't even know if it was just one head or one brain that went into the monster.
And I think [LAUGH] it's a really interesting issue, how old is the monster?
The monster seems to have been around for a year or so when it first killed William,
and a couple of more years when it killed Elizabeth and Henry.
It's three years old?
We don't criminally indict and try three-year-olds.
Is it too young to be tried?
Now, you may be thinking, all these are lawyer's quibbles.
>> [LAUGH]
>> And that is of course what I'm paid to
teach people how to do, among other things.
Both make quibbles and see through quibbles.
But I do think, and it's certainly possible, if we were ever to develop,
if restless tissue engineers were ever to develop an artificial womb,
I think we would say that a normal looking human baby coming out of
an artificial womb, not born directly of a woman, would still be viewed as a person.
And similarly, if some truly bizarre person were to
try an awful experiment and it turned out to work and
a woman was able to carry a chimpanzee fetus to term in her uterus, and
that was born alive of the woman, I don't think we would call that a person either.
We haven't had to face those, because they've never happened so far.
We haven't had to come up with the question of what happens when we've got
something that is born of a woman but not a person, or
not born of a woman but seems to be a person.
We have some other issues around personhood.
Maybe the chimpanzee, we'd say it doesn't have human DNA, or
doesn't have human structure, or human features.
Although, of course, human is kind of an average.
And out of the 7.3 billion of us, many of us don't have two eyes, a nose,
a mouth, other things we think, two arms, two legs.
And other things we think of as, quote, normal, close quote, human features.
And there are things out there that have human DNA that we wouldn't view as
persons, like cell lines.
How many of you have read The Immortal Life of Henrietta Lacks, for example?
That's a humanish sort of organism.
But we don't view that as a person even though it has more or less,
actually more, than human DNA.
So we've got those kinds of issues lurking about what we would call it.
What about intelligence?
I think some of you are probably thinking, well,
the defining issue of what's a person or not is intelligence.
But at least eight hours a day, and my wife and
kids would say many more hours a day, I am not intelligent, I'm asleep.
And we still treat as persons people who are in a persistent vegetative state, or
in a coma, or who otherwise are not showing any intelligence.
And for those in a persistent vegetative state,
who have no prospect of ever showing any intelligence.
There are babies born with a condition called anencephaly, where the cerebrum,
to a greater or lesser extent, the front, the top of their brains never develop.
There was discussion about 15 years ago of maybe treating those babies as if
they were dead and using them as living organ donors.
Well, not living, dead organ donors.
Even though they were breathing and suckling and so on.
That discussion didn't go very far.
We viewed it, even though they not only didn't have intelligence,
they didn't have the most important parts of their brains.
They couldn't, as far as we could tell, have intelligence.
They were still persons, they're natural persons.
So would the monster be a natural person or not?
Hard to say because we haven't had to confront that issue.
I think we may in the future, whether it's little green women or
men from someplace else or whether we learn how to talk to whales and porpoises.
Or whether artificial intelligence comes through.
We're gonna have to confront it, but we haven't yet.
And under the current, at least implicit,
definition of a natural person, the monster doesn't seem to count.
But we don't indict pigs.
Other possibilities, unnatural person.
What's an unnatural person?
Stanford University is an unnatural person.
Apple Corporation is an unnatural person.
The County of Santa Clara is an unnatural person.
And in a phrase I really like, from a case that I read years ago,
the Catholic Archbishop of Chicago is both a natural person but
he is also an unnatural person.
He is a corporation sole.
S-O-L-E, I thought it would be better if it was S-O-U-L.
>> [LAUGH]
>> So we've got these things.
What does it mean to be an unnatural person?
You can sue and be sued.
You're a person for those purposes.
Can you be tried for a crime?
The answer is yes.
Can you be tried for a homicide?
There's a case going back over a hundred years where a corporation was
successfully tried for a homicide.
And more recently, Ford has been tried for homicide in the Pinto cases.
Some of you will remember that, some of you old enough will remember that.
Six Flags was tried for the burning death of some people in New Jersey and
convicted.
These are all tried and convicted but of what we considered negligent homicide or
manslaughter, where the corporation was held not to have used sufficient care.
But what about murder, first-degree premeditated murder?
Have no evidence that anybody was ever tried and convicted, any corporation or
other unnatural person, was ever tried or convicted for it.
15 states have tried or convicted corporations for
homicide, but none of them were first-degree homicide.
Now could the monster be an unnatural person?
Could if the legislature said it could be.
All these unnatural persons are created by legislatures.
They say you can be a corporation, you've got a charter, you can sue and be sued.
You can a be a trust, you can sue and be sued.
They could say, you're a monster of certain characteristics.
We won't count you as a person but we'll count you as an unnatural person, and
allow you to sue and be sued.
But that would take legislative change.
And nobody's gonna do that until there's a reason to do it,
and we don't have the reasons yet.
Victor, what about his liability?
I think there's no question Victor would have civil liability for damages.
Sort of the way that if you keep lions, tigers, and bears and they escape,
that's an ultra hazardous activity and you're liable for people's damages.
You're liable for the damages your dog creates.
Although interestingly, in most states, not for damages your pet cat makes.
>> [LAUGH]
>> But what about criminal responsibility?
I think he could be liable for negligent homicide if they said,
you created this dangerous thing, you didn't pay enough attention to them.
But premeditated murder, no, he didn't want those people killed.
They were people he loved.
So if the monster can't be criminally indicted for a premeditated murder,
if Victor can't be tried for premeditated murder, and yet there were premeditated
murders we seem to have a situation that the law doesn't really love.
Of a problem without a remedy, damages without any sort of compensation.
Now I hope you found this vaguely interesting.
I think the criminal liability issues, I don't know whether they're important or
not, but what I do think is important is this issue of responsibility for
things we create but we cannot control.
How many of you are parents?
You've all created things that, >> [LAUGH]
>> If you're new parents,
you may be under some illusions, >> [LAUGH]
>> But if you're older parents,
you know you cannot control.
And you are somewhat responsible for them.
What about artificial intelligence?
You create the artificial intelligence.
Are you responsible, are you responsible civilly, are you responsible criminally?
One of the issues I think about a lot is CRISPRed species, gene-edited species.
You make a new kind of mosquito.
Are you responsible for the harm it does, the damage it does,
the people it may end up killing?
We don't know yet.
And finally, responsibility has two different versions.
There's this sort of bad side, but there's also the credit side of responsibility.
And some people create things that go beyond their control, for
which they deserve credit.
Like an 18-year-old unmarried mother living in adulterous sin with her
boyfriend on the shores of Lake Geneva in 1816, who created something.
Frankenstein, the modern Prometheus.
It quickly went beyond her control and
has lead to all of us being in Cubberley Auditorium on this evening.