Submitted By: Chloe Hanna
Question: “Humans are not the only animals entitled to recognition and protection of their fundamental rights.” (Nonhuman Rights Project, United States). With reference to case law, critically discuss attempts by the Nonhuman Rights Project to press for recognition of animal personhood before the courts in the United States.
The law as it stands excludes non-human animals from the scope of legal personhood, instead they are regarded as legal things or property, not capable of having rights. Although animals are often considered ‘unique’ property, in that they have some protections afforded to them under various welfare laws, to have true rights it is essential that they move to be classed as legal persons. The aim of the Non-Human Rights Project (‘NHRP’) is to bring about this change. However, the unsuccessful outcomes of the proceedings brought by the NHRP reflect the judiciary’s reluctance to change their traditional view on what constitutes a legal person. In order to understand why this is likely not the end of the road for the animal rights advocacy movement, it is important to consider the function of common law jurisprudence and the arguments in favour and against recognising animal rights. When all is considered, my contention is that it is beyond doubt that there will eventually be some budge in the judiciary’s position.
Legal rights are theoretical advantages conferred by recognised legal rules, which may only exist within legal persons. As such, slaves, animals or even a rock cannot have legal rights, since they do not constitute a legal person. Despite the acknowledgement of their sentience, animals remain grouped with inanimate objects allowing humans to invoke the same rights over them. As such, the fundamental right of liberty, upon which there is no dispute stands as the supreme right in the Western World, is being deprived from animals.
The Non-Human Rights Project.
The NHRP is an animal rights organisation founded by attorney Steven Wise and based in the United States. Their objective is to secure a status of legal personhood for animals on a global scale, leading to the eventual recognition of animal rights. Since 2013, they have filed five petitions for common law writs of habeas corpus within New York state, on behalf of four chimpanzees and four elephants. Their clients are chosen as there are robust scientific findings that their species has autonomy and self-awareness, providing sufficient evidence that they should have personhood. They see the identification of these species as persons as the starting point for the eventual recognition for all animals.
In the first of these cases; brought on behalf of client Tommy, a chimpanzee; the court unanimously held that he could not be a legal person, using traditional historical notions of what a legal person is. Later, in NHRP on Behalf of Hercules and Leo v Stanley, Jaffe J acknowledged that there is a possibility of recognition of legal personhood and expressed optimism at the prospect. It is these converse judgments that this essay will focus upon, whilst analysing the prospects of granting animal rights.
The Common law.
To understand why the NHRP focus on litigation, common law’s importance and functionality first must be considered. The strength of this approach is that the common law has the ability to decide cases and interpret facts more fluidly than strict legislation, which cannot be so easily amended, and the capacity to evolve with time and context. It is this which makes litigation the most suitable for bringing about an instrumental change in the law.
Wise notes that there is astonishing variability between the different states’ approaches to common law jurisprudence; similarly, each country will have a different approach; a consequence of judicial discretion and the flexibility of the common law. They considered 21 common law countries in which to begin their legislation, finally settling on the US, specifically New York state. NY was chosen for three reasons; firstly, autonomy is valued at the forefront of case law established in NY; secondly, there is a right to appeal; and finally, the principle of res judicata does not apply for petitions of habeas corpus. The UK was one of the countries considered, as common law is extremely important. Since parliamentary sovereignty prevails, it may prevent British judges from ever giving an adequate judgment on an issue such as animal rights; in my opinion they would be inclined to give a ‘non-judgment’ as such, leaving the question to be answered by Parliament. It was therefore important for the litigation to be brought in a jurisdiction where the judges could use their discretion to be activist.
It is understood that there was, at the time of Lavery, no authority in which animals were granted habeas corpus or considered persons and that no other non-human entity had ever been granted habeas corpus, hence there was no precedent to follow. However, as the court in Lavery held, lack of precedent does not end the inquiry as to whether animals can be considered legal persons. Therefore, the first judgment delivered in favour would be the most significant as it would set a binding precedent in NY and would possibly encourage other US states and countries to make the change. 
The first NY Supreme Court decision, Lavery, essentially held animals cannot be legal persons. The decision of Lavery demonstrates how precedent can also be problematic. Courts follow the principle of stare decisis set not quieta movere, to adhere to decided cases and not unsettle established things. Hence, the lower courts are now bound by this decision even if they would have decided differently. This is evident in Jaffe J’s conclusion, which in obiter demonstrates her enthusiasm for the prospect animal rights, but finishes by stating she is bound by Lavery’s precedent.
Although there was no direct precedent, it is long established that animals are things to be held as property by humans. This provides a hurdle to the movement; in order to secure a judgment in favour, it would take an activist judge who is willing to ‘unsettle established things’. Jaffe J appears to be one of these judges. She focused on the vast evolution of legal personalities, which once excluded slaves and women; an argument that will be addressed later in detail. However, the judges in the leading authority of Lavery favoured the traditional views; in considering the historical notion of legal personality, Black’s Law Dictionary and social contract theory, the court ruled that to be a legal person, you must be able to bear duties, not simply be capable to possess rights.
The NHRP petition for writs of habeas corpus, which are codified in article 70 of the Civil Practice Laws and Rules. This was deemed an appropriate method since animals cannot bring a case themselves. Wise often uses the seminal case of Somerset v Stewart to demonstrate common law writs of habeas corpus transforming a legal thing, in that case a slave, to a legal person. The case had a profound impact in Britain, arguably leading to the subsequent abolition of slave trading and eventual emancipation of all slaves; Wise anticipates granting habeas corpus for animals will do similar.
In Lavery, the court acknowledged that habeas corpus legislation states a writ is for a ‘person’ who has been illegally imprisoned or retained, and that the statute does not define who or what a ‘person’ is. Citing the authority of Keitt v McMann, the court held that the definition of a person has been determined by the ‘slow process of decisional accretion’. It is therefore accepted that it is open to the court to extend the definition, and as Keitt acknowledges habeas corpus has been increasingly used due to its ‘great flexibility and vague scope’. This was cited in both Stanley and Lavery, however, Lavery made little focus on this compared to Stanley, in which the court seemingly wished to use the great flexibility and vagueness to extend the definition; an approach which allowed Jaffe J to discuss the merits of the case as opposed to drawing a line in the very beginning.
Having established the NHRP’s approach to litigation, it is now important to consider the substance of their arguments and the academic debate surrounding animal rights. In support of their claims, the NHRP provided 160 pages of affidavits to the court from a range of psychologists, primatologists, zoologists and anthropologists. According to these experts, chimpanzees are more closely related to humans, sharing 99% of their DNA, than they are to gorillas. Although legal personhood is not synonymous with being human, the court has considered that there are characteristics that humans possess which are essential for being a legal person.
Chimpanzees have been proven to have similar brain structure and cognitive development to humans; linguistic abilities; self-awareness; and the capability to feel emotions of empathy, compassion and depression. Further, they show co-operative social life and are recognised worldwide as being autonomous and sentient beings. However, this was not deemed to be of importance, as the courts focus in Lavery was not on what chimpanzees share in common with ‘legal persons’, but instead what they do not. The deciding factor was that they do not and cannot bear duties.
Regarding precedent, as discussed above, this ratio would mean that anything that cannot bear duties could not be a legal person. This is therefore not a strong justification for ruling against the NHRP, in that some humans can also not bear duties. Would this mean they too could not have rights? When considering marginal cases, concerning persons with mental incapacity or minors, this would see them at a similar status as animals. The court has noted that this does not affect humans, which suggests that they did not intend to set precedent that persons must bear duties, but instead it was the only somewhat logical justification they could make for not seeing animals as persons, as they were not yet ready to make an instrumental change to the law.
The Civil Rights Movement.
Wise has advanced the argument that society has developed to remove the ideology that there are superior and inferior races; however, animals have been trapped in this ‘obsolete universe’. Wise and Jaffe J find that it is just a waiting game for animals too to have their own rights upheld in a similar fashion.
The analogy to the civil rights movement is heavily criticised both in academia and the courts. It is asserted that human’s position at the top of the ‘evolutionary ladder’ means humans have the right to exploit animals, who fall lower down. It is noted that previously men were considered by nature to be superior to women and slaves to have lived for the sake of their master, however the civil rights movement analogy can be viewed as flawed when this is considered. Where the civil rights movement sought to see humans, who are already regarded as persons, be treated as equal; the animal rights movement is to see animals be treated as persons, not property. Hence, Wise’s argument is not overly persuasive and was rejected by the court.
Although a direct comparison cannot be sensibly drawn between the two movements, the reaction to the animal rights movement across the world does have some resonation with the civil rights movement. Whenever a great change comes about in the law, especially if it involves conferring rights that never existed before, it can, in the words of Professor Stone, ‘sound odd or frightening or laughable’. It is completely plausible that new rights can be afforded, as Kennedy J stated in Obergefell v Hodges ‘if rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied’. When we look back upon the law pre-civil rights movement, it is equally odd, frightening and laughable that the law was once that way; possibly future generations will look back upon the animal rights movement in a similar light. Although the courts clearly disagreed with the civil rights argument and the lack of persuasiveness, it does not in my opinion, invalidate the overall argument that animals should have rights.
Our ‘need’ to use animals.
A predominant argument against recognising animal rights is that we would have to stop our use of them. It is asserted that we have a ‘need’ to use animals, for food and agriculture, and that the law provides protection so that animals do not suffer in the process. Another line of thought on this debate is that animal welfare laws actually provide some rights to animals, notably the right of protection against harm. However, these laws cannot be seen as entirely adequate.
When considering UK law, where use is regulated so that suffering is limited to only ‘such pain as is reasonably necessary’.Prima facie, this appears to prevent unnecessary suffering, however when Coleridge’s two-stage test is applied;
1. There must be an ‘adequate and reasonable’ reason for the use, and;
2. There must be ‘proportion between means and object’;
the result is not always one that prevents suffering. The case of Roberts v Ruggiero involved commercial rearing of calves in a manner that most people would not consider humane. There were alternative practices available that imposed less suffering than the methods being used, but the second part of the test does not take this into consideration, as long as the method used was an established practice, alternatives were not questioned. Francione finds that once an activity is deemed legitimate, any killing or suffering that occurs is acceptable and this case clearly demonstrates that point.
Further, one of the main justifications for our use of animals is for food. However, meat is unnecessary for diets, hence why there is a growing trend in ‘going vegan’ across the world. Continuing use of animals for food will also impose a burden on food security since animals consume more than they produce. Our justification for our continued use of animals is that we enjoy the taste of their flesh, which is not based on morals or logic.
Animal Welfare v Animal Rights.
One of the contentious areas throughout the litigation and in academic debate, is whether we should be improving animal welfare law instead of creating an extension of legal personhood. Property law should be malleable enough that it can be stretched to allow improvements in animal wellbeing. It may be that improved welfare is a ‘stepping stone’ as such to eventual rights for animals, but it must be noted that, as it is highlighted by Francione and Charlton, improved welfare law can in fact further enshrine the principle of animals as commodities. They may be better-treated property but remain property nonetheless.
Recent developments throughout the world may indeed suggest that there has been improvement in the legal and social treatment of animals, without a requirement to change from property to legal persons, but when considered at a deeper level the law does not appear so adequate. Germany, Switzerland and Australia, in which the use of the word ‘object’ in association with animals has been removed from their civil codes, illustrate the view that welfare law is adequate for giving animals rights is merely prima facie. In each case animals did not gain any new right, but instead special legislation was enacted, which only see animals as a more protected type of property as Francione and Charlton suggested. Closer to home to the NHRP, in NY the Estates, Powers & Trusts Law was initiated. Animals, specifically pets, seemingly have the ability to hold their own property, a right which is typically human-specific. However, much like the German, Swiss and Australian changes, it is a prima facie position that this supports the argument that animals are indeed not property. As Wise highlighted, the law is created for men’s sake, and this law is no different. If anything, it only gives human’s greater right to bequeath property as they wish, and hence the courts are recognising the connections humans may have with their pets. This can also be seen in the UK, where one of the three exceptions to the beneficiary principle is animals. There is nothing to suggest that these laws provide anything in the way of personhood or rights for animals. Further, when comparing to the aforementioned UK animal welfare law, it is clear that law serves to benefit man, taking into consideration the animal’s use to humankind in the background.
In considering the wide academic debate, the case law and the NHRP approach to litigation, I submit that it is those arguments in favour of extending rights which are more persuasive. The court in Lavery failed to weigh the arguments put forth by the NHRP with their due merit, instead focusing in on what a ‘person’ has traditionally been and how animals cannot meet that definition. As Wise considered in his earlier literature, timing is very important when aiming for an instrumental change in the law,  and it may not have been the right time for this change. A move towards animal rights has already begun in other countries, with a chimpanzee being declared by the Argentinian courts a ‘non-human legal person’ who had inherent rights in 2016, and public opinions moving in the correct direction, with animal rights becoming more mainstream every year. This would suggest the courts will follow suit.
Although litigation to date has been unsuccessful, this does not mean defeat for animal rights. In fact, the outcomes of the cases were expected; Wise noted he did not expect a judge to appreciate the arguments and merits in granting animals rights the first time the case comes to trial, nor the fifth time. It will take many attempts before an appellate judge will seize the lead and grant a judgment that sees a change in status for animals. In the end, there are three possible outcomes: first, all animals will be recognised as legal persons and afforded rights; secondly, no animals will be afforded rights; or thirdly, only some animals may be given rights. It is the latter outcome that appears to be the most likely in the foreseeable future, however, the uncertainty as to which species are deserving of rights will eventually lead to all animals receiving rights. It therefore seems logical, on the arguments in favour of animal rights, that someday the Great Legal Wall between humans with rights and animals without, will be broken down and animals will be legal persons. Even if this is not the case, it is clear that it may be arguable that animals are not ‘persons’, but there is no doubt that they are not merely things.
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Belkin, Animal Right Gains Foothold as Law Career: Harvard hosts court competition for 50 students (Boston Globe 2005).
Bevilaqua, Chimpanzees in Court: What Difference Does it Make? (Routledge 2013).
Cotter, The Somerset Case and the Abolition of Slavery in England (Blackwell Publishers 1994).
Defender Radio, ‘The non-human rights project’ (20th March 2017).
Dumbo, dir. by T. Burton (Walt Disney Studios Motion Pictures, 2019).
Favre, ‘A New Property Status for Animals: Equitable Self Ownership’ in Sunstein and Nussbaum (eds.), Animal Rights: Current Debates and New Directions (OUP 2004).
Francione & Charlton, Animal Advocacy in the 21st Century: The Abolition of the Property Status of Nonhumans (Thompson West 2008).
Francione, Rain without Thunder: The ideology of the Animal Rights Movement (Philadelphia: Temple University Press 2007).
Kelch, Toward a Non-Property Status for Animals (6 NYU Envtl 1997-1998)
Martin, A System of Rights (OUP 1993).
Patterson, Freedom: Freedom in the Making of Western Culture (Basic Books 19991).
Stone, Should Trees Have Standing? (William Kaufman Inc 1974).
Sunstein, ‘The Rights of Animals’ (2003), 70 University of Chicago Law Review 387.
Sunstein, ‘Introduction: What are Animal Rights?’ in Sunstein and Nussbaum (eds.), Animal Rights: Current Debates and New Directions (OUP 2004).
Wagman & Liebman, A Worldview of Animal Law (Carolina Academic Press 2011).
Wise, Rattling The Cage: Toward Legal Rights for Animals (Perseus Books 2000).
Unlocking the Cage, dir. By Pennebaker (Sundance, 2016).
<https://www.nonhumanrights.org/who-we-are/> accessed 4th April 2019.
<https://www.vegansociety.com/news/media/statistics> accessed 24th April 2019.
Ford v Wiley (1889) 23 QB 203.
Keitt v McMann 18 NY 2d 257.
NHRP on Behalf of Tommy v Lavery NY Sup Ct App Div, No 518336, 9th December 2014.
NHRP on Behalf of Hercules and Leo v Stanley NY Sup Ct, No 152736, 29th July 2015.
NHRP on behalf of Tommy and others v Lavery and others Motion No. 2018-268.
Obergefell v Hodges 576 US (2015).
Pettingall v Pettingall  11 LJ Ch 176.
Re Astor’s Settlement Trusts  Ch 534.
Roberts v Ruggerio (QB, 1985).
Somerset v Stewart (1772) 98 ER 499.
NY Estates, Powers & Trusts (2015).
Lisbon Treaty 2009.
 Martin, A System of Rights (OUP 1993), 31.  Wise, Rattling The Cage: Toward Legal Rights for Animals (Perseus Books 2000), 54.  Ibid, 80; Patterson, Freedom: Freedom in the Making of Western Culture (Basic Books 1991).  <https://www.nonhumanrights.org/who-we-are/> accessed 4th April 2019.  Ibid.  NHRP on behalf of Tommy v Lavery NY Sup Ct App Div, No 518336, 9th December 2014.  NY Sup Ct, No 152736, 29th July 2015.  Wise, ‘Animal Thing to Animal Person: Thoughts on Time, Place, and Theories’  5 Animal L. 61, 63.  Defender Radio, ‘The Non-Human Rights Project’ (20th March 2017) <https://open.spotify.com/episode/1KttlQNimqYed2eiZJsnr4?si=N02_JhfLTXOYRcHhgW8zKw>.  Lavery (n 6).  Bevilaqua, Chimpanzees in Court: What Difference Does it Make? (Routledge 2013), 75.  Lavery (n 6).  Stanley (n 7).  Ibid.  Lavery (n 6).  (1772) 98 ER 499.  Cotter, The Somerset Case and the Abolition of Slavery in England (Blackwell Publishers 1994).  18 NY 2d 257.  Ibid.  Defender Radio (n 9).  Stanley (n 7); Byrn v New York City Health & Hosp. corp 31 NY 2d 194.  <https://www.theguardian.com/uk-news/2019/feb/10/chimps-use-branch-as-ladder-to-escape-belfast-zoo-enclosure> accessed 29th March 2019.  Lisbon Treaty 2009 article 5b.  Stanley (n 7).  Kelch, Toward a Non-Property Status for Animals (6 NYU Envtl 1997-1998), 535.  Aristotle, ‘2nd Complete Works of Aristotle 1990-1991: Politics’ in Johnathon Barnes (ed), Princeton / Bollingen Series (Princeton University Press 1984).  Francione & Charlton, Animal Advocacy in the 21st Century: The Abolition of the Property Status of Nonhumans (Thompson West 2008), 23.  Unlocking the Cage, dir. By Pennebaker (Sundance, 2016).  Stone, Should Trees Have Standing? (William Kaufman Inc 1974), 8.  576 US (2015), 18.  Unlocking the Cage (n 28).  Wagman & Liebman, A Worldview of Animal Law (Carolina Academic Press 2011), 20; Sunstein, ‘The Rights of Animals’ (2003), 70 University of Chicago Law Review 387, 389.  Ford v Wiley (1889) 23 QB 203 (Lord Coleridge).  (QB, 1985).  Francione, Rain without Thunder: The ideology of the Animal Rights Movement (Philadelphia: Temple University Press 2007), 135.  <https://www.vegansociety.com/news/media/statistics> accessed 24th April 2019.  Sunstein, ‘Introduction: What are Animal Rights?’, 11 and Favre, ‘A New Property Status for Animals: Equitable Self Ownership’ in Sunstein and Nussbaum (eds.), Animal Rights: Current Debates and New Directions (OUP 2004), 234.  Francione & Charlton (n 27), 7.  Wagman & Liebman (n 32), 26.  2015, article 7 part 8 Honorary Trusts for Pets.  Belkin, Animal Right Gains Foothold as Law Career: Harvard hosts court competition for 50 students (Boston Globe 2005).  Wise (n 2), 24.  Re Astor’s Settlement Trusts  Ch 534, 547.  Pettingall v Pettingall  11 LJ Ch 176.  Wise (n 8), 66.  Dumbo, dir. by T. Burton (Walt Disney Studios Motion Pictures, 2019).  Wise (n 8), 66.  Wise (n 8), 61.  NHRP on behalf of Tommy and others v Lavery and others Motion No. 2018-268 (Fahey J).