Patricia Nonis writes for Practice Source.com
Patricia is an advocate for animal liberation and rights, free speech, science and new atheism.
Patricia is an admitted lawyer of the NSW Supreme Court and also has a background in the liberal arts.
She is currently pursuing her thesis at the University of Sydney.
For all business queries please contact: [email protected]
https://www.patricianonis.com/
ANIMAL PERSONHOOD ARGUMENTS AND REFUTATIONS
The emerging conceptions of personhood is a contested topic in the legal and political arena, subject to rigorous international debate. The potential candidates for whom it is argued are entitled to such legal recognition range from fetuses,[1] to futuristic, (hypothetically sentient) artificial intelligence, and of course, to non-human animals.[2] The latter will be the focus of this article, which will provide an analysis of animal personhood as it has developed in the philosophical and legal literature, followed by common objections opponents of animal personhood have put forward. It is proposed the objections to animal personhood thus far are not based on true premises and often misunderstand the definition, nature and scope of legal person-hood, which is ultimately grounded in public policy, and has never been exclusive to merely human beings in its theory or application. The central argument which underpins animal personhood is that the condition or trait of sentience or consciousness ought to almost always give rise to individual legal rights. Finally, it can be demonstrated that even this condition is not always nessearry to establish individuals as legal entities.
PART I: OVERVIEW
Personhood is the legal status of being a person or having legal personality.[3] This does not necessarily mean one is a person, as in, a human, just that the entity in question has met a certain criteria, as determined by the rule of law, for legal personality[4]. Legal status and legal personality are often used interchangeably, depending on the context. The terms may have a slight variation in their meaning but for the purpose of this discussion, both terms will be assumed to hold a similar meaning. Once an entity has been afforded legal personality or personhood, they are afforded certain rights, protections, privileges, responsibilities and, in some cases, will carry legal liability. It has been said that an individual or entity is a “legal person” if their interests are recognised under the law for their own sake.[5] Since animals have no personhood, and therefore no rights, it is exceedingly difficult to advance their interests in a court of law. Currently one of the only ways to do so is via indirect arguments that invoke human interests, for example, the famous Australian case Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 where the High Court of Australia held that animal cruelty footage concerning Possums obtained illegally from a farm was able to be broadcasted because it was in the public’s interest[6] (not in the interests of the individual animals). Despite humanity’s choice to continue to ignore the mass suffering of other sentient beings, and directly support their suffering and enslavement[7] by funding the annual slaughter of billions of farm animals in the meat, egg and dairy industries, and trillions more marine animals,[8] personhood and legal rights for animals has nevertheless gained momentum over the past decade[9] for example, prominent lawyers such as Alan Dershowitz[10] and Laurence Tribe[11] of Harvard Law School have expressed support for non-human animal personhood. Animal law courses are (as of 2008) taught in 92 out of 180 law schools in the United States[12].
PART II: PERSONHOOD IS NOT A BIOLOGICAL CONCEPT
Relevantly, personhood is not exclusive to humans or moral agents. There is a common misconception that a trait such as moral agency or sentience is required to invoke legal status and protection under law. This is provably not true. For example, corporations and rivers have been granted legal personality, so even if it were the case that some kind of sentience or moral intelligence was required for the granting of legal status, which most animals would qualify for anyway,[13] it can also be persuasively argued that neither moral agency nor basic sentience is even necessary for the condition of personhood to exist under the law. This is because personhood is not a biological concept – it is not just about humans or human rights – it is a public policy decision which is aimed at protecting entities whom have individual and/or collective interests[14]. It is perplexing that the aforementioned propositions with respect to non-human animals are treated as radical, new and subversive; on contrary, prominent scholars in animal ethics claim the whole entire idea of sentient individuals being entitled to simple and fundamental rights under the law can hardly be considered a revolution.[15] The granting of personhood to animals would therefore operate as the minimum level of legal respect and protection owed to sentient beings whom are both morally valuable, and devastatingly vulnerable.
PART III: TRADITIONAL AND HISTORICAL DEFINITION
Before considering some common objections against animal personhood, it may be useful to first examine the traditional and historical interpretation of the word whilst also observing the progress animal personhood has made within various legal frameworks around the globe.
International Legal development Efforts
Some modern legal developments are captured below:
- In 1992, Switzerland amended its constitution to recognize animals as beings and not mere things.[16]
- In 2002 Germany guaranteed rights to animals in an amendment to its constitution, becoming the first European Union member to do so.[17]
- In 2007, the parliament of the Balearic Islands, an autonomous province of Spain, passed the world’s first legislation granting legal rights to all great apes.[18]
- In 2019, Sandra, an Orangutan, was classified as a nonhuman person and freed from captivity to a Florida sanctuary.[19]
There is also growing interest in animal personhood (and legal rights) in case law. For example, in 2014, the Supreme Court of India opined that ‘legal rights shall not be the exclusive preserve of the humans’ and also recognized birds’ ‘fundamental rights to fly in the sky[20].’ In a South American case, the Court stated in obiter dictum that animals are rights holders and should be recognized as legal subjects.[21] Legal scholars such as Saskia Stucki have argued for what she terms as ‘simple and fundamental rights’ for animals and, perhaps more provocatively, opines that in certain legislation, ‘weak’ legal rights can be inferred from current animal welfare laws.[22]
PART IV: ANIMALS MAY FALL WITHIN THE SCOPE OF LEGAL PERSONS WHEN CONSIDERED BENEFICIARIES
A relatively new legal argument emerging in personhood is the fact that animals can fall within the scope of the classes of persons who are considered beneficiaries; a class of which one cannot typically belong unless they are considered legal persons. A beneficiary is a person for whom a trust is created and who thereby receives the benefits of the trust.[23] A will, contract or other form of agreement may operate as trusts.[24] New York is among the few states that expressly allow nonhuman animals to be trust beneficiaries.[25] Pursuant to Lenzer v Falk, the court said that every “domestic or pet” animal beneficiary is a “person” for the purposes of this statute, as only “persons” may be trust beneficiaries.[26] Therefore, it may be true to say that there is slow, albeit growing judicial and legislative support for the granting of personhood to non-human animals.
PART V: DOCTRINES OF LIBERTY AND EQUALITY MAKE ANIMAL PERSONHOOD AN NESSCCARY IMPERATIVE
Finally, the moral values of freedom of movement and thought which help human and animal well-being flourish are built upon the foundations of a free, liberal democracy.[27] The refusal to recognize the personhood of a nonhuman animal where by robust evidence demonstrates that such a being is both autonomous and self-determining is a violation of our foundational values of moral and political autonomy. This line of thinking is also consistent with western legal principles such as habeas corpus, which guarantees every individual to fair treatment under the rule of law.[28]The study of personhood, is of course, not limited to the legal sphere.
PART VI: PHILOSHOPHICAL FOUNDATIONS OF PERSONHOOD
The origins of personhood are found in the study of reason, epistemology and philosophy with sentience existing at the crux of most if not all original conceptualisations of personhood[29]. An examination of the philosophical literature reveals the idea of personhood can be traced back to Descartes[30], Locke[31] and Hume.[32] The three philosophers broadly subscribed to the naturalist epistemological tradition of personhood which held that the term may be designated to any human (or non-human) who:
- Possesses continuous consciousness over time and;
- Is capable of framing representations about the world, formulating plans and acting on them.[33]
Further, Schwartz has offered a Paradigm Case Formulation of Persons as a format allowing judges to identify qualities of personhood in different entities.[34] Additionally, Julian Friedland has advanced a seven-tiered account based on cognitive capacity and linguistic mastery[35]. Given the sentience of animals is well established by large scale, empirical scientific literature[36], it could be asserted the criterion for personhood as advocated by Singer and Wynn et al appear excessive and even unnecessary. The crux of this argument stipulates that the condition or trait of sentience[37] will almost always give rise to individual rights. Humanity’s continued classification of animals as property has forced virtually all other life forms into a category which normalizes their exclusion from moral consideration and ultimately, fundamental legal protection. Most animals who have had the opportunity of having their cases for personhood heard in court have been limited to species such as apes, cetaceans, parrots, corvids and elephants because of their apparent intelligence and intricate social rules.[38] So far, it has been argued that all sentient non-human animals meet the criteria for legal personhood, and in fact, in many cases, the law already, to a certain extent, acknowledges them as legal entities.[39] Since the eligibility of animals for personhood has been established, it may be helpful to now refute certain objections put forward by opponents of animal personhood.
OBJECTION 1 : ‘ANIMALS ARE NOT PEOPLE’
While the central argument for animal personhood has rightfully been founded upon the sentience of non-human animals, it is important to understand that the trait of sentience or any related traits, are not necessary for an entity to possess the natural condition which invokes the doctrine of legal personhood or status under law[40]. This is because legal person is not a synonym for “human beings”, but designates an entity with the capacity to possess legal rights.[41] It is a legal concept – not a biological one as asserted earlier in this article. Before the 14th Amendment to the US Constitution was ratified, black people and freed slaves were not recognised by law nor did they have their legal rights protected – this is no way diminished the fact they were morally deserving of legal recognition, nor does it make anything their oppressors did to them ethical or morally acceptable. Corporations have been considered legal persons since circa 800 BCE. Further, the Whanganui River in New Zealand, has been designated as a legal person under an agreement between The Maori, the indigenous Polynesian people of New Zealand, and the Crown.[42] Therefore, the extension of the conception of personality beyond the class of human beings is not a new or radical proposal and in fact, is one of the most noteworthy feats of the legal imagination[43].
OBJECTION 2: “ANIMAL WELFARE AND PROTECTION LAWS ARE SUFFICENT”
It is not true to say that the current laws are sufficient or anywhere close to being adequate to protect animals, on contrary, the majority of laws regulating animals legitimise their commodification, enslavement and make it legal for humanity to violate their bodies.[44] If the violence perpetrated against animals in the food, entertainment, clothing and sport industries were committed against entities with legal status, they would over qualify for what would be considered violations of criminal law, sexual assault, rape[45] and grievous bodily harm, some of the most serious components of criminal felonies. Indeed, the current animal laws around the world are dedicated to slaughtering animals in the most efficient and profitable way possible. Therefore, the case for nonhuman personhood has become increasingly pressing in light of the systematic failure of traditional animal welfare law to protect animals in any meaningful way.[46] The idea that animal welfare laws are somehow good, even in a remote way, for animals, is conceptually absurd, statistically inaccurate and provably wrong.
OBJECTION 3: “ANIMALS DO NOT BEAR LEGAL DUTIES”
The capacity to bear legal duties is not a precondition for personhood.[47] There are classes of legal entities who are recognised under law who do not bear any legal duties in any significant way when compared to human adults, for example, children and persons with certain disabilities. The fact a three year old (or someone with a mind of a three year old) cannot bear legal duties does not mean they should not have their rights protected under law. Hence an important distinction must be made between a moral patient and a moral agent.[48]
A moral agent may well almost always bear moral and legal duties, but a moral patient is simply owed moral and legal duties, due to their innate qualities of consciousness and susceptibility to harm. Implementing social responsibilities as a perquisite for personhood is also inconsistent with liberal democratic values of liberty and equality pursuant to River v Katz:[49]
The requirement that an individual must also be able to bear duties or responsibilities in order to be recognized as a “person” is inconsistent with the common law values of liberty and equality because it denies personhood and legal rights to an individual who possesses the autonomy and self-determination that are supremely valued by the common law, arguably, even more than human life itself.[50]
In that case, the court held that patients with mental illness possess the same right to refuse medication as patients without mental illness, reaffirming the importance of individual rights and liberty for legal persons who may not have the same mental or intellectual capacities as others legal persons.
Despite there being scarce evidence for the claim that bearing legal duties is a precondition for legal personhood, even if such was the case, it can be asserted that the vast majority of sentient non-human animals would satisfy such a standard. For example, in Nonhuman Animal Rights Project vs Lavery[51] rigorous, science backed evidence was submitted to the courts in the form of amicus curiae by leading animal behavioral scientists and experts. These comprehensive documents overwhelmingly showed that chimpanzees demonstrated social and moral duties towards each other. The qualities of shared teamwork, social responsibility and a sense of fairness has been identified in a range of other animal species including dogs, elephants, dolphins, cows and rhinos. As mentioned, it is not this paper’s argument that animals bear responsibilities and therefore are entitled to personhood. The reality that animals do bear responsibilities is simply an over determining factor when considering (and concluding) that granting personhood to animals is a legal and moral imperative.
Sentience gives rise to moral consideration and consequently, individual rights. Animals must be captured within the scope of personhood as a legally protected class of people because personhood, like all legal doctrines, is an ever changing concept and its scope has widened as society has morally progressed, and by virtue of the very logic and principles which underpin our legal system such as liberty and equality. Overall we can see that non – human animals over qualify for personhood and legal status given the nature of the operation of law. Personhood is not just about humans or human rights – it is a public policy decision which is aimed at protecting entities which have individual and collective interests.
SOURCES
[1] C’Zar Bernstein, Paul Manta, ‘Moral Responsibility and the Wrongness of Abortion’ (2019) 44(2) The Journal of Medicine and Philosophy: A Forum for Bioethics and Philosophy of Medicine 243-262.
[2] Yuval Noah Harari, Homo Deus (Harper, 2017).
[3] Charles Taylor, The Concept of a Person (Philosophical Papers, Volume 1, 1985) 97.
[4] Henry Campbell Black, Black’s Law Dictionary, (West Publication Co, 5th ed, 1981) s 2(1).
[5] Jay Shooster, Legal Personhood and the Positive Rights of Wild Animals (Wild Animal Suffering Research, July 11, 2017) ch 2 sec 1 [1].
[6] Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd, [2001] HCA 63.
[7] ‘Number of Animals Slaughtered for Meat, World 1961 to 2018’, Our World in Data <https://ourworldindata.org/grapher/animals-slaughtered-for-meat?country=~OWID_WRL>
[8] Animals Deserve Absolute Protection Today and Tomorrow (The Kill Counter) http://www.adaptt.org/.
[9] Robby Berman, ‘Are Animals ‘Persons’? New York Court hears the case of Happy the elephant” (Current Affairs, 18 November, 2020).
[10] Alan Dershowitz, Rights from Wrongs: A Secular Theory of the Origins of Rights, (Basic Books, 2005) 198-199.
[11] Laurence Tribe, Amicus Curiae, Brief for Amicus Curiae Laurence H. Tribe in Support of Petitioner-appellant (The Nonhuman Rights Project, INC on behalf of Happy).
[12] ‘Animal Law Courses’, Animal Legal Defense Fund, (03/06/2008) <https://web.archive.org/web/20080306074941/http:/www.aldf.org/content/index.php?pid=83>
[13] The Cambridge Declaration on Consciousness (July 7, 2012).
[14] Margaret Blair, Corporate Personhood and the Corporate Persona (Discover Archive, Vanderbilt University’s Institutional Repository, 2013).
[15] Steven Wise, ‘Hardly a Revolution – The Eligibility of Nonhuman Animals for Dignity-Rights in a Liberal Democracy’ (1997/1998) 22 (793) Vermont Law Review.
[16] ‘Switzerland- Recognition of animal sentience and prohibition of animal suffering’, Animal Protection Index (October 3, 2020) <https://api.worldanimalprotection.org/country/switzerland>
[17] ‘Germany- Recognition of animal sentience and prohibition of animal suffering’, Animal Protection Index (October 3, 2020) <https://api.worldanimalprotection.org/country/germany>
[18] Nature Neuroscience, ‘Primate Rights?’ (2007) Nature Neuroscience.
[19] Pedro R. David, Crime Prevention and Justice in 2030, (Cham Springer, 2021) 313-336.
[20] Supreme Court of India 7 May 2014, civil appeal no 5387 of 2014; Kerala High Court 6 June 2000, AIR 2000 KER 340 [13]; Delhi High Court 15 May 2015, CRL MC no 2051/2015 [3] [5].
[21] Tercer Juzgado de Garantías de Mendoza 3 November 2016, Expte Nro P-72.254/15.
[22] Saskia Stucki, ‘Towards a Theory of Legal Animal Rights: Simple and Fundamental Rights’ (2020) Oxford Journal of Legal Studies 533-560.
[23] ‘Animal’s Legal Status’, Animal Legal Defense Fund (March 23rd, 2020) <https://aldf.org/issue/animals-legal-status/> .
[24] Gale Group, West’s Encyclopedia of American Law, (Thomson and Gale, 2nd edition, 2006).
[25] Lenzner v. Falk (1947) 68 N.Y.S.2d 699, 703.
[26]Lenzner v. Falk, (1947) 68 N.Y.S.2d 699, 703 (13) para 2.
[27] John Stuart Mill, On Liberty (1859).
[28] ‘Habeas Corpus’, Legal Information Institute <https://www.law.cornell.edu/wex/habeas_corpus>.
[29] Charles Taylor, The Concept of a Person (Philosophical Papers, Volume 1, 1985) 97.
[30] Charles Taylor, The Concept of a Person (Philosophical Papers, Volume 1, 1985) 97–114.
[31] Ibid.
[32] Ibid.
[33] Ibid.
[34] Wynn Schwartz, ‘The Problem of Other Possible Persons: Dolphins, Primates, and Aliens’ (1982) 2 Advances in Descriptive Psychology 31.
[35] Julian Friedland, ‘Minds that Matter: Seven Degrees of Moral Standing’ (2004) 13(4) Between the Species 1, 15.
[36] Mark Bekoff, ‘After 2,500 Studies, It’s Time to Declare Animal Sentience’ Live Science (June 20, 2013) https://www.livescience.com/39481-time-to-declare-animal-sentience.html; Proctor et al, ‘Searching for Animal Sentience: A Systematic Review of the Scientific Literature’ (2013) 3(3) The Natural Centre for Biotechnology Information 1.4.
[37]Lori Marino, ‘Sentience’ (2010) Encyclopedia of Animal Behavior 132-138.
[38]Ross Donald, ‘Consciousness, Language, and the Possibility of Non-human Personhood: Reflections on Elephants’ (2019) 251(25) Journal of Consciousness Studies 227; Steven Wise, ‘Nonhuman Rights to Personhood’ (2013) 30(3) Pace Environmental Law Review 1278.
[39] Above n 22.
[40] Sebastian Davis, ‘The Legal Personality of the Commonwealth of Australia’ (2019) 1(3) Federal Law Review 47, 330.
[41] Steven Wise, Rattling the Cage Toward Legal Rights for Animals (Da Capo Press, 2000) 4.
[42] Kennedy Warne, ‘This River in New Zealand is a legal person. How will it use its voice?’(Webpage, 12 March 2021) <https://www.nationalgeographic.com/culture/graphics/maori-river-in-new-zealand-is-a-legal-person>; EC Hsiao, ‘Whanganui River Agreement – Indigenous Rights and Rights of Nature’ (2013) 42 Environmental Policy & Law 371-374.
[43] Steven Wise, ‘The Case for Animal Personhood’ (Web Page, 30 March 2021) 1 [4] <https://famous-trials.com/animalrights/2600-the-case-for-animal-personhood>.
[44] Australian Veterinary Association, Humane Slaughter (Web Page, 29 March, 2021) <https://www.ava.com.au/policy-advocacy/policies/euthanasia/humane-slaughter/>; Slaughtering Act 1913 (No 27) 1913, amended by Norfolk Island Continued Laws Ordinance 2015.
[45] Crimes Act 1900 (NSW) s 33; Crimes Act 1900 (NSW) s 6(1).
[46] Gary Francione, ‘Animal welfare and the moral value of nonhuman animals’ (2010) 6(1) Association for the Study of Law, Culture and the Humanities 1, 24-36.
[47] Steven Tudor, ‘Some Implications for Legal Personhood of Extending Legal Rights to Non-human Animals’ (2010) 35(1) Australian Journal of Legal Philosophy 134-139.
[48] John Barton, Ethics in Ancient Israel (Oxford University Press, 2014); Daniel Dombrowski, Babies and Beasts: The Argument from Marginal Cases (University of Illinois Press, 1997).
[49] Rivers v Katz Court of Appeals of the State of New York (June 10, 1986) 67 NY 485 <https://casetext.com/case/rivers-v-katz-1>.
[50] Ibid.
[51] See Matter of Nonhuman Rights Project, Inc v Lavery (June 8, 2017) NY Slip Op 04574 [152aD3d 73] <https://law.justia.com/cases/new-york/court-of-appeals/2018/2018-268.html>.
