The New York Times Magazine has just published an interesting piece on the Nonhuman Rights Project and Steven Wise, whose mission is to change the common law status of at least some nonhuman animals from “mere things” to “legal persons.” (I have previously written on their work here). It is widely agreed, among both advocates and opponents of Wise’s work, that granting legal personhood to animals would be revolutionary. I think that this view is mistaken. To understand why, it is helpful to clarify and differentiate between three possible conceptions of what it might mean to be a “legal person”—a term that is often used in imprecise ways. Doing so reveals that animals are already legal persons, and that personhood does not itself count for very much.
The first possibility of what we might mean by “legal personhood” is that an entity has the capacity to be granted rights. If this is what we mean, however, recognizing legal personhood for animals should not be seen as controversial. Insofar as the constitutions of states clearly allow them to grant rights to animals and other non-human entities, animals are already legal persons in this sense.
The second possibility is that a legal person is an entity that has been granted some rights—rights that might, but need not, include the power to enforce them. But again, if this is what is meant by personhood, there is nothing radical about granting it to animals. Animals have long held rights in the Hohfeldian sense that humans have had duties to not harm them under various animal protections laws.
The third possibility is that a legal person is an entity that has been granted rights that include the right to either enforce these rights or have them enforced on the entity’s behalf. While granting animals personhood in this sense might seem revolutionary at first glance, many states have recently passed statutes that permit an animal to be the legal beneficiary of a trust and allow suit to be brought on the animal’s behalf to enforce its rights under that trust.
In short, under all three conceptions of what it might mean to be a legal person, proposals to grant legal personhood to animals should not be seen as controversial, as we have already done so. Further, we have granted animals personhood without much impact on the world in which we live. Most people have failed to notice.
The reason for this is that personhood does not, as it is often thought, consist of very much. A legal person can be unownable (as in the case of a human being) or property (as in the case of corporation). The rights of a legal person can impose substantial burdens on us (such as the duty to provide for the well-being of a child) or minor ones (such as the duty to not torture an animal). In short, personhood is not granted categorically, but rather with respect to specific rights and capacities. It is the specifics not the status that matters.
Thus, the controversial question at issue here is not whether there are any animals that are legal persons (the answer to that is simple: there are), but rather whether there are any animals that have rights of bodily liberty and autonomy under the common law writ of habeas corpus. That is the revolutionary issue presented to the courts by Steven Wise.