Legal personhood for non-human animals: Part II — Dr Linda Roland Danil

1 June 2018 by Guest Contributor

The second part of this guest contribution argues that it is time to consider seriously the case for granting legal personhood to certain classes of sentient animals. Part I can be found here.

Introduction

On December 26, 2017, the Connecticut Superior Court dismissed a petition for a writ of habeas corpus filed by the Non-Human Rights Project (NhRP) – which I introduced in an earlier post – on behalf of three elephants that the NhRP argued are illegally confined in Goshen, Connecticut. The issue, similarly to previous cases involving four chimpanzees, was whether the court should grant the petition for a writ of habeas corpus because the elephants are ‘persons’ entitled to liberty and equality. The court dismissed the argument and held that the ‘petition is wholly frivolous on its face.’

Discussion

One of the things that is implied in the refusal to grant personhood to non-human animals, in my view, is the strong aversion to the notion that one day a human being may find his or her rights trumped by those of a non-human animal.

In my earlier post, I argued that we are also animals, but different – and by this I further elaborated that we are different insofar as we have disavowed our animal nature in order to properly construct and enter the socio-symbolic order and human culture – through what, for example, Freud called a process of ‘organic repression’ in Civilization and Its Discontents, or what Joanne Faulkner has described as ‘an abandonment of the animal within.’

By no means is this meant to be construed as a bad thing – it is who we are – but being different does not necessarily always mean better. To argue that human beings are better would be to ignore the ways in which other animals are unique in their own way.

Therefore, an inversion of thinking needs to occur, and the courts need to be reminded that we, as human beings, are still animals. So why should non-human animals – or at least highly intelligent non-human animals such as whales and dolphins, great apes and elephants – not be considered persons in relation to bodily liberty and bodily integrity? The fact that they cannot participate in human society should not be decisive, since neither can those who are temporarily or permanently mentally incapacitated, and we (rightfully) do not deny that they are persons under the law.

Practical consequences

As argued in an earlier post, and as the NhRP has made clear a number of times, their quest for legal personhood is, at present, limited to individual animals from certain animal species, and strictly relates to habeas corpus. It further needs to be noted that these rights should only apply vis-à-vis humans, and not lead to unnecessary interference by human beings with nature to adjudicate rights between non-human animals in the wild, for example.

On a practical level, an incremental approach needs to be taken so that decisions can be made on an individual, case-by-case basis by interested parties that initiate proceedings on behalf of specific, individual animals – and this is precisely what the NhRP is doing.

This diminishes the worry of the slippery slope argument – because the courts, as well as society more broadly, will have the time to reflect upon what decisions to make and the consequences.  As Taimie L. Bryant argues, it unquestionably is the case that ‘An unavoidable feature of incrementalism is that all of the perspectives and solutions cannot be known in advance’ – but that is no reason to not act at all. As Steven Wise has argued in relation to an argument made by New York State Supreme Court Justice Barbara Jaffe, what matters is that if the litigant in front of a judge is entitled to relief, then the litigant should get it – and where that may lead is up to another judge to take on.

What, therefore, would this mean for successful applicants? If the release of a great ape, dolphin, whale, or elephant presently in captivity is ordered, then they will be moved to sanctuaries, or have sanctuaries purposely built for them. Releasing them into the wild would most likely not be a viable option if the individual animals in question have been in captivity all their lives (though if this is a viable option it should be considered). There may be expense involved if a sanctuary must be built specifically, but my answer would be that we created the problem, so it is up to us to fix it in a manner that is ethically and morally correct.

It is possible, therefore, that this will mean that individual animals presently being kept in zoos — and most prominently in zoos in which they are not adequately cared for – will be moved to sanctuaries. I extend my sympathies to those that enjoy trips to the zoo to view these animals, but my wager is that the correct thing to do is not expect these animals to fulfil the purpose of being a spectacle for us.

What of the argument that, for example, David Pannick QC recently made in The Times on 24^th May, that:

If a chimpanzee could claim habeas corpus, what about a chicken due to be slaughtered for food, or my dog, Bubbles, who has never agreed to the restrictions imposed on him?

My answer is that such an argument is jumping the gun. At present, what is being discussed is individual great apes, dolphins and whales, and elephants – not chickens, and not companion animals such as dogs.

An incremental approach may very well eventually mean that companion animals and animals that are consumed as food will be treated separately under the law. Perhaps companion animals, rather than being classified as property, will move towards a legal categorization that sees them as family members. This might well be a truer reflection of how owners see their animals. Or their legal categorization may not change at all, or may not change until a long way into the future.

Conclusion

As scientific advancements mean that we increasingly understand different animal species better, it may very well be that different animal species will begin to be treated differently under the law in accordance to their species specific needs.

However, the present paralysis in this area of law means that all animals suffering in captivity end up being unfairly boxed under the categorization of ‘property’ – a violent simplification that is borne of the fact that there are a number of animal species, idiosyncratic in their own way, and who serve human beings in different ways, if at all. That is to say, they are all boxed in the same category as ‘property’ because it is just easier that way – and they all continue to suffer because we are too lazy or it is ‘too hard’ to try and change things.

I am not denying that it is going to get complex – but that is no good reason to continue allowing individuals animals such as great apes, dolphins and whales, and elephants in captivity to suffer and not have adequate recourse to protect their fundamental rights to bodily liberty and bodily integrity.

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