non-human entities
Soon the New York State Supreme Court will hear a case to give or not an elephant legal personality. It may seem like a strange case. But this is not the case from a legal point of view. Justice can be a concrete way to improve animal welfare.
Having a legal personality does not mean having recognized the status of a human being.
More simply and more modestly, it means recognizing that a non-human entity has its own interests and rights, ie areas whose perimeter is defined by law.
It does not necessarily mean that a legal personality has the same legal powers and obligations as a human being.
Abstract entities
That something other than a human being can have legal personality is a fairly common occurrence. The simplest example is that of commercial companies. In Anglo-Saxon law, the clue is already found in the very name of a company (inc.).
Commercial companies and other abstract entities are "incorporated" (i.e. endowed with a body) so that they can be recognized by law. Some companies have broad legal powers, such as public bodies, while others are limited in their responsibilities (srl).
Corporations can own property, conduct lawsuits, and even receive criminal penalties. To have a legal personality it is not necessary to have a physical entity.
physical entities
If an abstraction without tangible form can be a legal person, then it is not a great conceptual leap to give legal personality even to a thing that physically exists.
This is also nothing new. Prior to 1873 the British admiralty courts gave vessels legal personality.
In New Zealand, rivers have legal personality.
Even the fact that a natural or legal person cannot appear in court, or give instructions to their lawyers, is not an obstacle. Infants and those who are mentally or physically incapable of
communicate, are routinely assisted in their interests by a public defender or other person appointed by the State or by a court.
Pets
Some legal systems have already given legal personality to animals. In 2015 an Argentine judge ruled the legal personality of an orangutan. The judge ruled that the animal, although not a human being, must have adequately protected its rights as a person.
The issue of conferring legal personality on animals does not concern whether to do so or not to do so. It can be done and that's it. The key question is another. This: Is this something you should already be doing?
A complex issue
Here the matter becomes more complex. It makes no sense to confer legal personality without also providing the legal person with the rights recognized by a court. And this raises the question of which rights should be recognized and the possible conflict with the rights of others.
Then, which animals should have legal personality? The great apes and elephants? What about other intelligent creatures like dolphins, crows and octopuses? And who would appoint legal representatives on their behalf?
In the New York case, the attorneys argue that their "client," the elephant Happy, is being kept in conditions inadequate for an exceptionally intelligent, social animal and seek habeas corpus recognition. It is significant in this respect that the Nonhuman Rights Project does not base its argument on the welfare of the animal, but on its civil rights.
A new approach, the legal one
This is a new and ambitious approach, but there is something to be said for it. The orthodox approach to animal welfare legislation is that humans have obligations regarding the treatment of animals. Obligations that must be enforced by a regulator. But leaving the initiative to regulators with limited resources may not be the most effective way to promote animal welfare.
Instead, it is much more effective to present an animal's rights issue directly to a court of law, as an actual legal case. Animal rights activists may not always prevail, but at least their voice would be heard and taken into consideration.
A court may decide against the animal, but should take into account the interests of the animal as a legal person.
If these actions lead to an improvement in the general level of animal welfare, then there is no legal objection in principle.
Giving legal personality to animals may be an idea whose time has come.
As Jules Winnfield asserted in Pulp Fiction, the question of personality is something else.
Taken from: Should animals have legal personality? by David Allen Green, “The Financial Times”, October 35, 2020.
David Allen Green is a lawyer and journalist. He writes about law and politics from a liberal and critical perspective. He is a consultant to the law firm Preiskel & Co LLP at Temple, London.
