Welcome to the eighth blog post in a series on the theme of legal personhood. Each fortnight we will ask a La Trobe Law School academic to write about how the concept of legal personhood intersects with their research interests.Today’s post is written by Dr Steven Tudor, who researches and writes about legal theory, human rights and criminal law. This blog is partly based on a journal article he wrote in 2010: ‘Some Implications for Legal Personhood of Extending Legal Rights to Non-Human Animals’ (2010) 35 Australian Journal of Legal Philosophy 134.
Absurdity or justice?
The US based Nonhuman Rights Project recently argued before the New York County Supreme Court that Hercules and Leo, two chimpanzees being used for biomedical experiments at Stony Brook University in New York, should be granted a writ of habeas corpus and freed from custody. This is because, according to their lawyer, Hercules and Leo are ‘autonomous and self-determining beings’ who should be recognised as legal persons. The lawyer representing the university argued that such a decision would be without precedent and would create a ‘slippery slope regarding the rights of other animals’. Arguments closed on 27 May 2015, and the judge has reserved her decision.
The case is part of the Nonhuman Rights Project’s general ‘mission … to change the common law status of at least some nonhuman animals from mere “things”, which lack the capacity to possess any legal right, to “persons”, who possess such fundamental rights as bodily integrity and bodily liberty …’ Some might think that the idea that nonhuman animals (or animals for short) should be treated as legal persons is manifestly absurd and wrong-headed. Could it be seriously thought that animals could own property, make contracts, sue and be sued? Others, however, might view the recognition of animals as legal persons as a logical next step in the evolution of the law and necessary for the humane and just treatment of our fellow living creatures.
I think both views are a bit mistaken. The idea of legal personhood for animals is not particularly odd, given the chequered history of the status of legal person, which has been bestowed upon ships and corporations and denied to married women and enslaved human beings. However, at the same time, if animals did become legal persons, this in itself would not necessarily bring with it better markedly treatment for animals. This is largely due to the fact that legal personhood, useful tool though it is, is ultimately a rather hollow and formal idea.
Why can’t animals become legal persons?
Some animals are already the beneficiaries of various laws that impose duties on humans not to harm them. For example, section 9 of the Prevention of Cruelty to Animals Act 1986 (Vic) makes it a criminal offence to commit an act of cruelty upon an animal. By being the beneficiaries of such a legal duty, animals could be said to already enjoy a legal right of a sort. However, merely being the beneficiary of another’s duty does not seem to amount to legal personhood, if the beneficiary lacks standing to bring legal actions in its own name to enforce its rights.
Some might ridicule the idea of granting animals the standing to enforce their rights, on the basis that even the most intelligent and sentient among them would be completely unaware of their rights and have no actual mental capacity to exercise their legal capacity to enforce them.
The obvious answer here is that this situation is already well-known to the law. The law already recognises as legal persons certain human beings who lack the mental capacity to exercise their legal capacity themselves: the very young and certain kinds of disabled or infirm people. We have little trouble, conceptually, with the idea that such legal persons will need a guardian to act for them in legal contexts.
Similarly, there seems to be little conceptual difficulty with the idea that the exercise of an animal’s right to enforce its rights would need to be carried out by a guardian. Of course, the world of legal practice would likely be very different in some fields, but there need be no jurisprudential convulsion involved in admitting animals as legal persons.
It may be countered that legal persons usually have both rights and duties and it would be absurd to impose legal duties on animals, who have no capacity to understand and so comply with such duties. But why not allow some legal persons to have only rights and no duties? This duty-less legal person is in fact something the law is already quite familiar with in the form of infant human beings. Again, the conceptual shift needed for animals having a similar kind of legal personhood is not great.
If animals were granted legal personhood, what legal rights must that entail?
It seems reasonable that the basis for admission to legal personhood should have some direct connection with at least some of the rights thereby gained. If sentience is the most plausible basis for admitting certain animal species to legal personhood, what rights would follow? Many would argue that the right to life is clearly the most fundamental right, and should be accorded to sentient animals, since if they are not alive, they cannot remain sentient.
However, the criterion of sentience does not mean that animals have a right to be sentient. Rather, I would suggest, it need only entail that they have a prima facie right not to feel pain. This means that they would not necessarily have a right to life, only a right to be slaughtered humanely, if they are killed. Moreover, they may have to yield some of the right to be free from pain where it is over-ridden by a competing right of higher status legal persons (such as human beings’ right to health), for there is no reason to assume that all legal persons must be equal.
This is partly why I think the bare status of legal person would not in itself necessarily entail much of substance as to what rights animals would have. A lot more work is needed to work out what rights animals should have as legal persons. Simply being legal persons won’t do all or even most of the work.
But what about those ‘higher order’ species, like chimps, where we may well want to base their legal personhood on their intelligence or reason, or their complex emotional and social lives, and not mere sentience? I would indeed argue that such animals should be accorded a right to life, since there does appear to be a clearer connection between their having ‘mental lives’ and the need to preserve such life. But it still might not be enough to grant them freedom from captivity or even freedom from experimentation.
There seems to be an assumption behind the Nonhuman Rights Project’s campaign to liberate Hercules and Leo that legal personhood would bring with it the right to be free. But there seems to be no reason to believe this necessarily follows. Being a legal person simply means that the person has some enforceable legal right or rights. It does not entail what particular right or rights these must be. We can well imagine the judge in Hercules and Leo’s case deciding that they do have some legal rights and thus are indeed legal persons, but that those rights are simply the right to life and the right to humane treatment, and not a right to be free or a right not to be subjected to experiments by and for humans.
I’m not saying that such a decision would necessarily be right either in law or as policy. But it would be quite consistent with accepting chimps as legal persons — and would show how little the bare concept of legal personhood actually achieves.
Steven Tudor, ‘Legal Personhood #8: Animals’, Law and Justice, 17 June 2015 (La Trobe Law School Blog, http://law.blogs.latrobe.edu.au/)