Legal personhood for non-human animals? The case of the Non-Human Rights Project — Dr Linda Roland Danil

by Guest Contributor

This guest article argues that it is time to consider seriously the case for granting legal personhood to certain classes of sentient animals.

Introduction

This post is inspired by a larger project I have recently begun investigating – that of granting legal personhood to non-human animals. This guest post will focus on one of a number of cases initiated by the Non-Human Rights Project (NhRP), specifically in relation to the NhRP’s bid to have a number of chimpanzees in captivity relocated to a sanctuary – the case of Matter of Nonhuman Rights Project Inc. v Lavery (2017) (hereinafter ‘Lavery’).

Beginning in December 2013, the NhRP has filed petitions for writs of habeas corpus on behalf of four chimpanzees (as well as, at the time of writing, three elephants) held in captivity – two of the chimpanzees (Tommy and Kiko) are being held by private individuals, and the other two chimpanzees (Hercules and Leo) who were kept, until recently, by Stony Brook University for research into the evolution of human bipedalism. In order for this to be executed, however, the chimpanzees would have to be considered legal persons. It is important to note here that, as the NhRP itself argues, legal personhood is not synonymous with ‘human being’ – as most prominently exemplified by the fact that, for example, corporations have legal personhood. One of the aims of the NhRP is‘[…] change the common law status of great apes, elephants, dolphins, and whales from mere “things,” which lack the capacity to possess any legal right, to “legal persons,” who possess such fundamental rights as bodily liberty and bodily integrity.’ The NhRP is beginning with great apes, elephants, dolphins, and whales because they are members of species for whom there is considerable and robust scientific evidence of self-awareness and autonomy.

Brief summary of the relevant facts of the case

In the case of Lavery, the petitioner, NhRP, sought a reversal of the motion court’s judgment declining to extend habeas corpus relief to two adult male chimpanzees, Tommy and Kiko. This was rejected by the Supreme Court of the State of New York, Appellate Division, First Judicial Department, in a unanimous decision. The Court affirmed the lower court’s judgment, and provided the argument that, amongst other things:

The asserted cognitive and linguistic capabilities of chimpanzees do not translate to a chimpanzee’s capacity or ability, like humans, to bear legal duties, or to be held legally accountable for their actions.

The NhRP argued that the ability to acknowledge a legal duty or legal responsibility should not be determinative of entitlement to habeas relief, since for example, infants cannot understand that they owe duties or responsibilities, and a comatose person lacks sentience. (More broadly, it could be argued that persons temporarily or permanently lacking mental capacity still have rights.) Here, the Court held that

This argument ignores the fact that these are still human beings, members of the human community.

Discussion

Many animals are sentient beings with lives of their own and capacities for enjoyment and suffering. Further, animals like great apes, elephants, dolphins and whales have demonstrated complex cognitive abilities. For example, chimpanzees have been demonstrated to possess, amongst other things, an autobiographical self, self-determination, self-consciousness, and episodic memory, as well as the ability for sequential learning and tool-use and tool-making. As another example, African and Asian elephants have been demonstrated to possess, amongst other things, self-awareness, intentional communication, and learning, memory, and categorization abilities.

The lawsuits initiated by the NhRP bring the focus to animals’ rights, rather than their welfare, as is generally the focus of animal welfare legislation. As of writing, the lawsuits have been unsuccessful – although Hercules and Leo, two of the chimpanzees mentioned in the introduction – have been moved to a sanctuary.

The first thing to note is that the NhRP is arguing for something very specific – the organization is not trying to establish that the non-human animals in question are the same as human beings by wishing to establish legal personhood for them – as argued above, the NhRP is seeking recognition of the legal personhood and fundamental rights to bodily liberty and bodily integrity of specific animals – individual great apes, elephants, dolphins and whales held in captivity across the US. The NhRP is therefore taking an incremental approach. However, this is admitted to be ‘a starting point’ for their ‘long-term litigation campaign.’ Nonetheless, this incremental approach allows room for decisions to be made on a case-by-case basis that reduces the risk of changes being introduced too quickly and disruptively in relation to the concept of legal personhood – and all of the consequences that could entail, such as in terms of, as just one example, human beings’ present economic reliance on animals.

The decision in the case of Lavery, in my view, brings to the fore certain points that will be elaborated upon in future work, but some of which I will touch upon here. To begin with, there were no sound, persuasive, or well-argued justifications provided by the Court as to why exactly Tommy and Kiko should not be considered ‘persons’ and therefore refusing to issue a writ for habeas corpus. There was, however, an explicit hierarchy set up in which humans were privileged, by virtue of being members of the ‘human community’ – without further elaboration as to why this privileging is justified. Further, in relation to the argument that legal rights necessitate legal duties – there is a point that needs to be made here beyond the fact that children and mentally incapacitated individuals, for example, are afforded rights whilst owing limited or no legal responsibilities. David Bilchitz, writing within the context of South African animal welfare legislation, has also offered the following, persuasive argument in relation to right and duties:

… if the duties to animals arise as a result of their interests in not being subject to suffering, then it is unclear why such duties do not confer rights upon animals not to be subjected to suffering by human beings … The fact that animals have interests of their own involves recognising that they are not simply property and that duties are owed to them directly. If this is so, then this provides reason to recognise that they have rights and consequently to challenge the status of animals as legal objects.

In my view, what seems implicit is that the judgment in Lavery was motivated by, amongst other things, policy considerations. Implied, in my view, in the refusals to extend legal personhood to non-human animals – in this case, chimpanzees – was also a fear of the breaking down of the human-animal distinction – a distinction that is predicated on human beings’ denial or disavowal that – in spite of, amongst other things, our position as the dominant form of life on earth and our extraordinary capability to manipulate and mould the external world – we are likewise animals (albeit different) nonetheless.

Indeed, as philosophers like Julia Kristeva have argued – human culture itself is fundamentally predicated upon the disavowal and unequivocal exclusion of animals and our animal nature. The philosopher Jacques Derrida has similarly argued that the human comes about through a process of disavowing its animality. This does not mean that we should dispense with our socio-symbolic codes and legal systems and revert back to a state of nature – rather, recognizing that other non-human animals have rights could potentially mean a move towards greater enlightenment, compassion and empathy towards other non-human animals, as well as a greater respect for the environment more broadly, in a movement towards ‘respectful co-existence’. This is all the more pertinent in a time when climate change is a pressing, global concern. This recognition should increase our respect and empathy for non-human animals and human beings alike, rather than lead to a collapse of the human-animal distinction that would supposedly have us wholesale equating humans with animals, or regarding some humans as less valuable than others, such as in relation to cognitive abilities, as some have argued.

Another issue is the fear of a slippery slope and the inevitable need to one day determine exactly which animals are worthy of being considered persons in the eyes of the law. The sheer number of animal species on earth makes this a tremendous proposition to contemplate. Succinctly, as Alexia Staker argues in relation to the decisions reached in the NhRP cases,

… the unsuccessful outcomes … are likely attributable to the simple fact that society is not yet ready to abandon the human-animal divide.

In light of these questions and others, the best approach, in my view, would not be to exclude the possibility of non-human animals from being ‘persons’ categorically and entirely. Rather, an incremental, cautious approach should be contemplated – one that begins by granting a number of non-human animals personhood, such as those suggested by the NhRP and therefore great apes, elephants, dolphins and whales, and to begin with, specifically in relation to the legal rights of bodily liberty and bodily integrity – and seeing where we go from there. At the very least, I wholeheartedly agree with Alexia Staker’s position here – that even when unsuccessful,

… these cases help to reshape societal views regarding animal rights and welfare, paving the way for future cases and strengthening the animal advocacy movement more generally.

Dr Linda Roland Danil is a researcher presently living and working in London.