Peter Radan (2 January 2019)
Over recent years courts, especially in the United States, have grappled with the issue of whether animals are "legal persons". If they are, then they would be able to assert rights, in much the same way that human beings do. The ultimate legal question here is whether an animal is a person or a thing (ie. property).
One of the recent cases on this issue is the decision of the New York Court of Appeals, handed down on 8 May 2018, involving an application for a writ of habeus corpus on behalf of Tommy and Kiko, two chimpanzees held in captivity.[1]
Although the court denied the application, one of the judges - Justice Fahey, made certain comments that signal an incremental advance towards a recognition of legal personhood for animals. After referring to earlier court decisions that held that chimpanzees are not legal persons because they lack the capacity or ability to bear legal duties or to be held accountable for their actions, Justice Fahey went on to say:
“Even if it is correct, however, that nonhuman animals cannot bear duties, the same is true of human infants or comatose human adults, yet no one would suppose that it is improper to seek a writ of habeas corpus on behalf of one’s infant child. ...
The ... conclusion that a chimpanzee cannot be considered a ‘person’ and is not entitled to habeas relief is in fact based on nothing more than the premise that a chimpanzee is not a member of the human species. ...
The better approach in my view is to ask not whether a chimpanzee fits the definition of a person or whether a chimpanzee has the same rights and duties as a human being, but instead whether he or she has the right to liberty protected by habeas corpus. That question, one of precise moral and legal status, is the one that matters here. ...
To treat a chimpanzee as if he or she had no right to liberty protected by habeas corpus is to regard the chimpanzee as entirely lacking independent worth, as a mere resource for human use, a thing the value of which consists exclusively in its usefulness to others. Instead, we should consider whether a chimpanzee is an individual with inherent value who has the right to be treated with respect. ...
The reliance on a paradigm that determines entitlement to a court decision based on whether the party is considered a ‘person’ or relegated to the category of a ‘thing’ amounts to a refusal to confront a manifest injustice. Whether a being has the right to seek freedom from confinement through the writ of habeas corpus should not be treated as a simple either/or proposition. The evolving nature of life makes clear that chimpanzees and humans exist on a continuum of living beings. Chimpanzees share at least 96% of their DNA with humans. They are autonomous, intelligent creatures. To solve this dilemma, we have to recognize its complexity and confront it.”
Justice Fahey concluded his judgment by saying:
“While it may be arguable that a chimpanzee is not a ‘person’, there is no doubt that it is not merely a thing.”
Although this case ruled that Tommy and Kiko were not legal persons, Justice Fahey’s comments have, no doubt, inspired further litigation on the issue. As The Economist[2] reports, on 14 December 2018, an application for a writ of habeus corpus has been filed in the New York courts on behalf Happy, an Asian elephant held in captivity in the Bronx zoo.
Should animals have legal personhood?
It is clear that a legal person does not have to be a human being. For example, corporations have long been seen as legal persons, capable of suing and being sued. Indeed, in the United States, following the Supreme Court decision in Citizens United v Federal Electoral Commission,[3] corporations are viewed as persons possessed of the right to spend their money to influence elections. The path to this decision is admirably detailed by Adam Winkler in his recent book, We the Corporations.[4]
More recently, in 2017, New Zealand enacted legislation which granted the Whanganui River ‘all the rights, powers, duties, and liabilities of a legal person’.[5]
If corporations and rivers can be seen as legal persons, the question to ask is why not animals? An animal is a sentient being, as has been legislatively recognised in a number of jurisdictions such as New Zealand[6] and the European Union.[7] Unlike a corporation, an animal is living creature, much like a human being. In this context, in the Tommy and Kiko case, Justice Fahey said:
"[C]himpanzees have advanced cognitive abilities, including being able to remember the past and plan for the future, the capacities of self-awareness and self-control, and the ability to communicate through sign language. Chimpanzees make tools to catch insects; they recognize themselves in mirrors, photographs, and television images; they imitate others; they exhibit compassion and depression when a community member dies; they even display a sense of humor. ... [C]himpanzees demonstrate autonomy by self-initiating intentional, adequately informed actions, free of controlling influences".
Pet owners will recognise that much the same can be said of other animals such as dogs and cats. Anyone who has met my daughter’s dog Frankie, would be confronted with vivid testimony that, while it may be arguable that she, like Tommy and Kiko, is not a “person”, there is no doubt that she is not merely a “thing”.
Frankie should be accorded the status of a “legal person”.
Footnotes
[1] In the Matter of Nonhuman Rights Project, Inc, on behalf of Tommy & Kiko v Patrick C Lavery & Carmen Presti, No 2018-268, 8 May 2018, available at <https://law.just’a.com/cases/new-york/court-of-appeals/2018/2018-268.html>.
[2] ‘Animals in Court: Do they Have Rights?’, The Economist, 22 December 2018.
[3] 558 US 310 (2010).
[4] Adam Winkler, We the Corporations: How American Businesses Won Their Civil Rights, Liveright Publishing Corporation, 2018.
[5] Te Awa Tupua (Whanganui River Claims Settlement) Act, 2017 (NZ), section 14(1).
[6] Animal Welfare Act 1999 (NZ).
[7] Lisbon Treaty (EU), Article 13 of Title II.
I am thinking Frankie's status is not merely that of legal person, but a privileged legal person!
The years 5 and 6 primary ethics course in NSW includes a discussion of just this issue. It introduces the Universal Declaration of Human Rights and then invites the kids to consider which should apply to the great apes. Pity you weren’t there to lead the class this year Peter.