Animals in Court: Does Personhood Matter?

In 1386, a female pig was put on trial in France for causing the death of a child by tearing his face and arms.  Trials such as this were not uncommon in medieval Europe. As E.P. Evans describes in The Criminal Prosecution and Capital Punishment of Animals, the same procedural rules applied to human and animal defendants, and the defense counsel for animals often raised complex legal arguments on their behalf.  In this case, the sow was found guilty, and under the law of “eye-for-an-eye,” the tribunal ordered that she be maimed in the head and upper limbs and hanged in the public square.

Animals today hold a very different place in our law.   As the subject of extensive legal protections and the beneficiaries of private trusts, they are no longer defendants in our courts, but rather aspiring plaintiffs.

Earlier this week, a series of habeas corpus petitions were filed on behalf of chimpanzees being held in confinement for various purposes in the state of New York.  (Court documents available here). The petitions, filed on behalf of the chimpanzees by the Nonhuman Rights Project, ask the court to recognize that the chimpanzees are legal persons with a right to bodily liberty, and to order that they be moved into the care of the North American Primate Sanctuary Alliance.  This is the first time that a habeas petition has been filed on behalf of an animal in the United States.

Of the many important and interesting issues raised by these petitions, I will in this post focus the significance of granting legal personhood to animals.

While courts in the US have not previously been asked to recognize an animal as a person with a common law right of liberty, they have been confronted with a remarkable number of cases in which animal species are listed as lead plaintiffs—most often in suits brought to enforce provisions of the Animal Welfare Act (AWA) and Endangered Species Act (ESA).  In one such case, the Ninth Circuit ruled that the endangered bird species at issue was a party with “legal status and wings its way into federal court as a plaintiff in its own right.”

However, human plaintiffs were also involved in that case, and when courts have confronted suits with animals listed as the sole plaintiffs, they have dismissed them for lack of standing.   Statutes such as the AWA and ESA only authorize “persons” to bring enforcement suits, and courts have determined that animals do not fall into these statutes’ definitions of “person.”  While not surprising, this conclusion is not tautological.  One need not be a human to be a legal person: corporations, ships, and cities, for example, can be legal persons.  But so far, the only animals that are legal persons are humans.   That is, at least, the common understanding of our status.

Yet one of the important arguments made in these habeas petitions is that New York has already recognized the legal personhood of all animals—in its trust law.   Historically, trusts created for animals were void because a trust cannot exist without a beneficiary, and animals could not be legal beneficiaries.  However, New York and many others states (including all those that have adopted the Uniform Trust Act of 2000) now allow animals to be the legal beneficiaries of trusts.  Drawing on this feature of the law, the Nonhuman Rights Project created trusts for the chimpanzees at issue in its petitions, turning them into legal beneficiaries—and thereby, it argues, legal persons—under New York law.

Setting aside the question of the validity of this clever argument (which seems right based on a quick skimming of the sources cited), what I want to highlight here is that it is illustrative of the fact that legal personhood is far less important than is often thought.   For a large number of states have—without much impact on our legal system or the world in which we live—recognized the legal personhood of all types of animals.  What this highlights is that personhood is not granted categorically, but rather with respect to specific rights, which can impose significant or insignificant duties on others.   It is the underlying substantive rights that are most important.

The weight given to talk of personhood seems to derive from the idea that legal personhood is a foundational status—something onto which a substantive right, and the power to enforce it, can be added.  But insofar as it is uncontested that a state’s constitutional law allows it to grant rights to animals (or other non-human entities), there is no question about whether they are legal persons in this sense.

While there are some who argue that it makes no sense to say that someone has a legal right to something if he does not possess standing to assert that right, this line of argument is ultimately unconvincing.   I agree that if a law is in principle unenforceable, it makes little sense to say that it confers a right.  But it is hard to see how a fact about the law’s enforcer, rather than its enforceability, should matter in our evaluation of whether it confers rights.  There are, after all, many statutes that create duties to persons that are enforceable only by public officials, and it seems clear that the public gained new rights through their passage.

Thus, what is at stake in this litigation is not the broad question of whether chimpanzees are legal persons with rights.  That has already been decided.  Chimpanzees have rights in the Hohfeldian sense that humans have duties to them (e.g., under a wide range of animal protection laws), and they are legal persons in that claims can be brought on their behalf (e.g., under trust law).  Rather, what is at stake in this litigation is the far more meaningful and specific question of whether a chimpanzee possesses the common law right of bodily liberty that is protected by the writ of habeas corpus.

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