Separate and Unequal: Why Nonhuman Legal Personhood is Needed

This week guest writer Joe Wills will look into the topic of personhood.

One of the law’s most fundamental divides is between the human and nonhuman. If you are human, you have basic rights to life, to liberty, to freedom from torture and inhuman treatment, to non-discrimination, to freedom from enslavement, to a family life and so on. Of course, violations of these rights are frequent, but they exist as de jure rights under international, constitutional, customary and common law.

By contrast, it is entirely consistent with nearly every legal system on the planet to kill, mutilate, confine, poison, dissect, drug, artificially inseminate, isolate, trap, hunt, abduct, experiment on, exterminate and, put bluntly, enslave and torture nonhuman animals in the pursuit of a wide variety of trivial human goals.

Of course, there is legislation that purportedly protects animals, but these laws, when examined in their totality, are more significant in terms of the huge amount of violence they explicitly or implicitly sanction than the more peripheral forms of cruelty they outlaw.

A case in point is the recently passed US Preventing Animal Cruelty and Torture Act (PACT), which makes it a federal crime to purposefully crush, burn, drown, suffocate, impale or otherwise inflict serious bodily injury on animals. Leaving aside the fact that PACT doesn’t prohibit killing or inflicting ‘non-serious’ bodily injury, it sounds relatively promising right? Well, yes, until you read the small print. The Act does not apply to conduct that involves, amongst other things, ‘a customary and normal veterinary, agricultural husbandry or other animal management practice’, ‘the slaughter of animals for food’, ‘hunting, trapping, fishing… predator control, or pest control’, or ‘medical or scientific research’. In short, PACT carves out exceptions so large you could drive a tank through them, leaving the vast majority of instances of violence against animals legally unchallenged.

While there are other examples of animal protection legislation that do not sanction violence against animals in the blatant way that PACT does, most follow the same basic structure: they either protect a very narrow range of animal interests or allow for protected animal interests to be easily overridden when they interfere with human goals.

Scholars and practitioners working in the field of animal law are seeking to challenge this anthropocentric and speciesist legal order and to reform the law so that the interests of animals are more adequately protected. One way in which they seek to do this is by broadening and strengthening existing animal protection laws. While this has undeniably been, and continues to be, an important strategy, it also has a significant limitation from an anti-speciesist standpoint: it does not challenge the apartheid structure of the law, which grants robust fundamental rights to human beings and a comparably far weaker protection regime for animals. Even if new animal welfare laws could more closely approximate human rights protections, as long as animals remain legally ghettoised and viewed as separate and inferior, there will always be strong pressures to downgrade their levels of protection. Where animals have relevantly similar interests to humans – for example their interest in avoiding the infliction of bodily injury - there is no reason why they oughtn’t be protected under the same legal framework.

Obviously, moving nonhuman animals into the same paradigm of legal protection as humans is no mean feat. This is where strategies to get animals recognised as ‘legal persons’ comes in. In common parlance, ‘person’ is often taken to be synonymous with ‘human’ but in law the term has a more expansive meaning. It has long been recognised that entities as diverse as corporations, ships, states and religious texts, buildings and idols can be recognised for various purposes as ‘persons’ in the law. Recently, natural entities such as rivers and mountains have been granted legal personhood in some jurisdictions, and more recently still, this category has started to be applied by Courts to nonhuman animals too.

Animal Legal Personhood

In 2015, an Argentinian Court declared an orangutan called Sandra to be una persona no humana or ‘a non-human person’, finding her captivity in Buenos Aires Zoo to be an unlawful detention. The following year, a similar judgement was issued in relation to a chimpanzee called Cecilia who was being held at Mendoza Zoo. Both great apes have subsequently been relocated to sanctuaries.

In 2017, a court in Colombia found a spectacled bear called Chucho to have ‘juridical personhood’ entitling him to be relocated to ‘full and decent semi-captivity conditions’ conducive to his wellbeing. This ruling was subsequently reversed and is currently being adjudicated before the Colombian Constitutional Court.

In 2018 and 2019 two different Indian High Courts ruled that the ‘entire animal kingdom’ were legal persons (more on this below).

Finally, efforts are presently afoot in Argentina to have endangered jaguars recognised as legal persons. A group that has played a central role in developing animal legal personhood strategies is the US-based Nonhuman Rights Project (NhRP) who, since 2013, have filed lawsuits on behalf of four chimpanzees and four elephants, seeking to release them from the facilities where they are detained.

While as-of-yet no courts have recognised any of the NhRP’s clients as legal persons for the purpose of their lawsuits, there has undoubtedly been a shift in the nature of judicial discourse on animals. A sympathetic judgement from Fahey J of State of New York Court of Appeal in 2018 stressed the need for serious deliberation about the legal status of animals, stating that ‘we should consider whether a chimpanzee is an individual with inherent value who has the right to be treated with respect’. A month later, the New York State Supreme Court Appellate Division declared that ‘it is common knowledge that personhood can and sometimes does attach to nonhuman entities like… animals.’ A subsequent New York criminal court dealing with an animal cruelty case further noted ‘an emerging awareness of the injustice of treating animals as “things,” and present efforts to change the status of nonhuman animals from “things” to legally recognized “persons,”’.

These rulings are indicative of the beginnings of a shift in judicial culture; claims of animal legal personhood are no longer automatically greeted with glib dismissals as they were in the recent past.

Which Animals Ought to Be Legal Persons?

From this brief survey, we notice that animal legal personhood strategies have taken a variety of forms. A central tactical consideration for such campaigns is which species of animal ought to be advocated for, and why? The NhRP are at present litigating on behalf of ‘self-aware, autonomous beings’ on the basis that such individuals have liberty interests of the sort protected at common law. At present, they are limiting their potential clients to great apes, elephants, dolphins and whales living in capacity across the US. The two successful rulings from Argentina both involved captive great apes. Meanwhile, the ongoing spectacled bear and jaguar cases seem closely tied to the imperatives of species and environmental preservation.

At the most expansive end of the spectrum, the two High Court rulings in India declared the entire animal kingdom, including avian and aquatic species, to be legal persons. In his 2019 ruling for the Chandigarh High Court, Justice Rajiv Sharma stated that citizens are loco parentis for the welfare and protection of animals, implying that they have legal responsibilities and functions similar to the legal guardians of children. Beneath the rhetoric, however, the judgement’s prescriptions do not appear to exceed those of traditional animal welfare adjudication. The judgement confirmed that animals should not carry loads exceeding prescribed limits and applied existing rules around veterinary care, housing and food for animals. While this outcome is admirable and the ruling itself a stirring defence of animals, I’d suggest that Justice Rajiv Sharma's invocation of ‘personhood’ may have been unnecessary, and runs the risk of draining the concept of its potential emancipatory force.

When it comes to legal personhood, it may well be preferable, under present conditions, to pursue a strategy of advancing it for a narrow range of species, rather than the entire animal kingdom as the Indian High Courts have done. This is not because only a narrow range of species are morally deserving of much better legal protection (I happen to think that all sentient beings are entitled to fundamental legal rights) but rather because, under present conditions, affording human-like rights to all sentient creatures by judicial decree is unfeasible. Courts are not realistically in a position to issue rulings with implications that would likely be the termination of multi-billion dollar industries.

The upshot of this is that when animal legal personhood is interpreted as applying very broadly, the transformative features of the concept risk getting watered down. Whereas the Argentinian Courts’ habeas corpus rulings on personhood for great apes secured liberation from human exploitation, the Indian Courts’ judgements were more closely tied to placing limits on human exploitation, i.e. the historic mission of animal welfare law. This is not to dismiss the importance of the latter, merely to suggest that there may be utility in a clear division of labour between welfarist and personhood legal strategies so as to preserve the benefits of each.

Legal personhood strategies can be classified as ‘deep and narrow’ in so far as they have the potential to radically alter the legal status of animals but feasibly only apply to a small number. Animal welfare strategies, by contrast, can apply to a broad range of species but tend to offer relatively meagre limitations on human violence against animals.

While personhood and welfare strategies are sometimes viewed as oppositional approaches, they are perhaps better thought of as complementary, each making up for the weaknesses of the other. Animal legal personhood ought to be seen as an important component of the panoply of campaigns to advance the legal status of animals. Potentially its most significant contribution is challenging the sanctity of the species divide that has hitherto consigned the entire non-human animal kingdom to the law’s wastelands.