A Framework for Nonhuman-Animal-Related Legislation
Noy Lion
Supervisor: Dr. A. (Afsoun) Afsahi Second Reader: Dr. E. (Enzo) Rossi
Submitted: June 2020
Master Thesis Political Science (Political Theory)
Word count (excluding abstract, keywords, table of contents, abbreviations, and appendix): 14,877
Abstract
Varied legislation regulates our treatment of the nonhuman animal by means of prohibiting and/or allowing various practices, their effective outcomes, in many cases, dictating life or death. On which grounds are these decisions made? Can such legislation be said to endow nonhuman animals with or withhold legal rights from them? This work offers a framework for nonhuman-animal-related legislation. By suggesting three distinct levels—(1) moral personhood; (2) legal personhood; (3) theories of rights—this work offers a tool for understanding and analysing such legislation, demonstrating the application of the framework and analysing two court decisions in light of the suggested framework. In doing so, it shows: 1) that the way for nonhuman animal rights is already established and 2) how any claim against their rights cannot be solely a legal one and must also lie on moral grounds.
Keywords: Nonhuman Animal Rights, Moral Personhood, John Locke, Immanuel Kant,
Human Person, John Rawls, Legal Personhood, Theories of Rights, Will Theory, HLA Hart, Interest Theory, Matthew Kramer
Table of Contents
Abbreviations
Introduction
First Section: Moral Personhood
Why Personhood?Three Kinds of Persons
Between Locke’s Metaphysical and Moral Person The Kantian View
Beyond Rationality Rawls’ Human Person
The Implications of Personhood NHAs as Persons
Second Section: Legal Persons, Legal Rights
Part One – Legal Personhood
Who Can Be a Legal Person? A Descriptive Claim Who Should Be a Legal Person? A Normative Debate A Fourth Metaphysical Realist view
The Bundle Theory of Legal Personhood
Part Two – Theories of Rights
Two Competing Theories of Rights A. The Will (or Choice) Theory of Rights B. The Interest (or Benefit) Theory of Rights Completing the Framework
Third Section: A Look at the Courts
Legal Persons, Legal Standing A. Cetacean Community v. BushB. People ex rel. Nonhuman Rights Project, Inc. v Lavery Confronting the Problem
Conclusion
Bibliography
Appendix
Abbreviations
Throughout this paper, these works are abbreviated as follows:
Discourse Descartes, R. (2006). A Discourse on the Method. OUP Oxford.
Correspondence Descartes, R. (2017). Selected correspondence of Descartes. Early Modern Philosophy, Cambridge.
Nature Gray, J. C. (1972). The Nature and the Sources of the Law. Gloucester: Peter Smith.
Elements Hegel, G. (1991). Hegel: Elements of the Philosophy of Right (A. Wood, Ed.; H. Nisbet, Trans.). Cambridge: Cambridge University Press.
Enquiry Hume, D., & Millican, P. F. (2007). An Enquiry Concerning Human Understanding. Oxford: Oxford University Press.
Treatise Hume, D., & Norton, D. F. (2007). David Hume: A Treatise of Human Nature; A Critical Edition. Oxford: Clarendon Press.
Grounding Kant, I. (1993). Grounding for the Metaphysics of Morals. (JW Ellington, Trans.). Indianapolis, IN: Hackett.
Metaphysics Kant, I. (1996). The Metaphysics of Morals. Trans. M. Gregor. Cambridge: Cambridge University Press.
Anthropology Kant, I. (2007). Anthropology, History, and Education. ed. by G. Zöller & R. B. Louden. Cambridge: Cambridge University Press.
GTL Kelsen, H. (2006). General Theory of Law and
State. New Brunswick, N.J: Transaction Publishers.
Essay Locke, J. (1970). An Essay Concerning Human
Understanding. 1690. Menston: Scolar Press.
TJ Rawls, J. (2005). A Theory of Justice. Cambridge,
Mass: Belknap Press.
AL Singer, P. (2002). Animal liberation. New York:
Introduction
“Indeed, under the law almost everything is purified with blood, and without the shedding of blood there is no forgiveness of sins.” (Letter to the Hebrews: 9:22). Ever since the original sin, nonhumans animals (henceforth: NHAs) have been used by human animals (henceforth: humans, human beings) for their own pleasures and needs. It is therefore only symbolic that this was first done to cover their own sin (Genesis: 3:21). As the biblical story tells, God has given humans NHAs for food (Genesis 1:29-30). And indeed, theological explanations are the best suited justifications for our treatment of the nonhuman. But as the age of Enlightenment sought to move away from theological explanations and replace them with reason, Christian anthropology fell out of grace.
“Kant has redefined the concept of person in its relation to morals,” writes Adolf Trendelenburg. “A good part of his ethical doctrine is contained in the sentence, ‘Man is a person.’” (Trendelenburg, 1910: 336). The concept of a person (with the help of such notions as self-consciousness) distinguished humans from NHAs in the ethical essence, thus transferring the idea of human nature into a word—person (ibid: 358). Roman law adopted the usage of word persona to the distinction between things and humans, of which only the latter can have rights. Thus, in legal terminology, the term “person” is used, without distinction, to designate the rights of human beings. The convergence of the grammatical and legal usages of person helped synonymize persona and homo (ibid: 348,351). Though it is often used as a mere synonym for human beings, in moral and legal discourse, a person is distinct from the human, denoting those who have moral status and are endowed with rights and duties. These, however, are only given based on certain capacities (or at least on the theoretical ability to have them) (Taylor, 1985: 97).
With the concept of personhood at its core, this work seeks to offer a framework with which one can understand and analyze NHA-related legislation.1 This is done using three distinct
levels making the suggested framework: (1) moral personhood; (2) legal personhood; (3) theories of rights. Each level consists of different building blocks, which, when assembled together in a certain way, produce a certain outcome: (1) a certain moral person (or moral being/entity); (2) a certain legal person; (3) a potential holder of rights.
Any combination of these outcomes could then be used to determine if a certain law or piece of legislation does in fact accord NHAs legal rights. Other than providing a coherent framework, this work shows how, at each level and with each building block, one is faced with a moral choice. Therefore, as a factor of the level at which one choses to start and of the different notions and theories within each level, one can either arrive at the conclusion that NHAs cannot possess legal rights, can possess legal rights but do not currently possess them, currently already possess several legal rights, or a completely different conclusion. While it is true that after opting for a certain building block, one might be correct in saying that NHAs can or cannot hold legal rights, this must inevitably be said after a morally pregnant choice has already been made, thus maintaining a moral premise on which the statement is made. Taking this into account, although this paper focuses on NHAs, by expanding the suggested framework—in adding new building blocks at certain levels or even wholly new levels—this framework could also be extended to humans, artificial intelligence, plants, and beyond.
The first section of this work is dedicated to the first level of this framework, i.e., moral personhood. The second section discusses the second and third levels accordingly—legal personhood and the theories of legal rights. In third and final section, I examine, in light of the proposed framework, two court cases regarding the rights of NHAs, of which the former’s
legal analyses of the case is in accordance with the framework, whereas the latter confuses the second level for the third one.
First Section: Moral Personhood
All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood (Universal Declaration of Human Rights: §1).
Why Personhood?
When does one acquire moral status? Philosophers, bioethicists, jurists, sociologists, theologists, religious people, anthropocentrism defenders, and laypersons have all tried to answer this question, for having moral status means that one is morally significant and has moral standing. However, for whom does the question of moral status arise is of no less importance. Humans have usually been said to be only ones capable of full (or any) moral status, based on various versions of speciesism2 (e.g., Descartes, Discourse,
Correspondence).3
The animal liberation movement has long sought to challenge this widespread view and has called for the inclusion of NHAs in our societies and moral communities. Nowhere else has the fight for NHA inclusion been more tenacious than in the battle for (and against) NHA personhood. From John Locke to Immanuel Kant and as recently as John Rawls, numerous accounts of the human as a person have helped shape the hallmark of our political thought, all while basing their foundations on an entirely different group than the one actually constituting our society. The common thread of all of these accounts is the attempt to fully distinguish between two kinds of animals—the human and the nonhuman. However, time and
time again, the yearlong attempt of synonymizing humans with persons has failed, as it has been unable to account for all humans, and when it has, it could not account for only humans. Unbothered by such discrepancies (and also unchallenged until relatively recently), the person (in both its moral and legal hat) has become the primary subject of rights. An unsteady foundation, it was later partly replaced with the human as the living subject of international law. However, unwilling to let go of our intellectual heritage, the human person was established. This crossbreed (kil’ayim in Hebrew), was not, as one might think, the manifestation of the common among the two, but rather a way of describing all humans as persons without having to define any of them on their own. However, if we are to use the term “human person” to refer to all human beings, we might as well give up the term “person” completely and call them what they really are: humans.
With the term “person” at its core, this section seeks to analyze the different notions and views of a person, the cultural heritage of personhood, and its implications. As I argue, the exclusion of NHAs from personhood has left them without a claim in their own right, not even such that could be derived from the very laws and statutes that seek to protect them. Therefore, I conclude this section by reviewing alternatives that either amend the status of NHAs as persona non grata or abolish the notion of personhood, thus suggesting my own view.
Three Kinds of Persons
The term personhood is usually said to entail three different notions: (1) the metaphysical notion of an intelligent, conscious, feeling agent; (2) a moral notion of an accountable agent who is an end in itself; and (3) the legal notion, embedded in legal personhood (Dennett, 1976: 176; French, 1979: 207).4 These three concepts are not always used distinctly from one
another, as is evident in the writing of Locke. Locke describes the term “person” as the name of the self. Locke’s self is “a thinking intelligent being that has reason and reflection,” which “it does only by that consciousness which is inseparable from thinking.” Thus, Locke equates personhood with personal identity and the sameness of a rational being (Locke, Essay: Book II, Chapter XXVII, §9,26). Person, according to Locke, is a forensic term, appropriating actions and their merit, and as such, it “belongs only to intelligent agents, capable of a law, and happiness, and misery.” (ibid: §26). As this notion of conscious personhood extends itself beyond present existence and into the past, it “becomes concerned and accountable.” (ibid). Hence, Locke’s person is an accountable agent who is capable of law.5
Between Locke’s Metaphysical and Moral Person
Two schools of thought depict the relationship between the metaphysical and the moral notions of personhood. The first one is the dependence view, which contends that the metaphysical person coincides with the moral person, i.e., to be accountable and to have rights and responsibilities means to be an intelligent or rational agent and vice-versa; the second one—the interdependence view—maintains that the two do not coincide and that accountability alone will not suffice, as it is a necessary but not sufficient condition for moral personhood (i.e., one of its preconditions) (French: 207; Dennett: 176).
In Locke’s view of personhood, only humans may be regarded as persons. As he writes, “consciousness is the perception of what passes in a man’s own mind” and “without consciousness there is no person.” (Locke: Book II, Chapter I, §19; Chapter XXVII, §23). But Locke’s understanding of personhood is even narrower than that. In describing a man of old age who has “blotted out the memory of his past knowledge, and clearly wiped out the ideas his mind was formerly stored with,” deprived of all his senses, which also stops new
knowledge and ideas from entering, he writes that if that man “had passed 60 years in such a state, as it is possible he might […] I wonder what difference there would be, in any intellectual perfections, between him and the lowest degree of animals.” (ibid: Chapter IX, §14). Hence, Locke’s view on the relation between humanhood and personhood can be described as the necessary pre-condition view, whereby being human is a necessary, albeit insufficient, condition for personhood.6
The Kantian View
Kant also adheres to rational capacity as a decisive factor. Every man (or other rational being) “exists as an end in himself and not merely as a means to be arbitrarily used by this or that will.” (Kant, Grounding: 35). For Kant, man has in himself absolute worth, i.e., man is both the author and the subject of Kant’s categorical imperative (ibid; Anderson-Gold, 1985: 13). Thus, in the Kantian view, man is the grounds for determining practical laws of which he is the subject (Kant, Grounding: 35). Rational beings, whose nature marks them as ends in themselves (e.g., humans) are objects of respect and are called persons. This is because as human beings, we have the choice to believe and act in accordance with our perceptions and desires. In this process of decision making we deploy reason, as it helps us endorse the influences of our actions and beliefs. This means that self-consciousness must also be a necessary condition for Kantian personhood, as it is self-consciousness which demands we act for reason, thus allowing us to make normative claims (Korsgaard, 2013: 638). Kant’s argument can be understood as saying that it is only after we demand that an end be treated as having absolute value that we can rationally pursue it. From that we can derive Kant’s sense of moral personhood: “the right to make a law for others so long as those others may reasonably be asked to conform to it.” (ibid: 639). This sort of representation of ourselves as ends in ourselves means that for the things that are good to us, as persons, we effectively
claim the status of absolute goodness(ibid: 640). As this claim is also made for other persons, such a claim, it appears, cannot be made by NHAs, for they are not persons in the Kantian sense. So for the beings whose existence is not dependent upon our will, but rather on nature (e.g., NHAs), if they are non-rational beings, they can only possess relative value—as a mean to the ends of rational beings—and are therefore called things (Kant, Grounding: 35-36).7
The distinction between persons and nonpersons is essential to the Kantian view, as “in the system of nature, a human being (homo phaenomenon, animal rationale) is a being of slight importance and shares with the rest of the animals, as offspring of the earth, an ordinary value (pretium vulgare).” (Kant, Metaphysics: §11). But once a human being is called a person, which Kant defines as the subject of morally practical reasons, it is “exalted above any price; for as a person (homo noumenon) he is not to be valued merely as a means to the ends of others or even to his own ends, but as an end in himself, that is, he possesses a dignity (an absolute inner worth) by which he exacts respect for himself from all other rational beings in the world.” (Kant, Metaphysics: §11).8 NHAs (as nonpersons), therefore, have only ordinary
value in the Kantian view (and in the case of domestic animals even less, as they can be considered to be human products). Unlike human beings, they are regarded as one’s property, a fact that gives humans the right to use, wear out, or kill them (Metaphysics: §55; Kant, Anthropology: §81).
Beyond Rationality
Extending beyond the Kantian boundaries of rationality, in his address from 1967, the poet W.H. Auden expressed his view of personhood, “As persons, we are incomparable, unclassifiable, uncountable, irreplaceable.” (Auden, 1976). According to his method, as a person, each of us is unique, as we are all “called into personal existence” by other persons,
as each of us is “an incarnation of all mankind.” For Auden, “person” is the term referring to the uniqueness of human beings. Individual is primarily a biological term which, as such, can refer to humans, NHAs, or trees; for humans, it may also bear a sociopolitical meaning, may it be nationality, profession, or last name. Unlike persons, individuals “are comparable, classifiable, countable, replaceable.” (ibid). For Auden, the ability to create speech is the ultimate difference between persons and nonpersons: “Only persons can create speech, for only persons desire freely to disclose themselves to each other, to address and be addressed in the first or second person, or by their proper names.” Contrary to persons, NHAs can only use code, and while some social animals like bees can communicate using “extremely complex” code, it nevertheless remains code, and “all codes, however elaborate, are limited to the third person.” Hence, humans are both social individuals and persons, and as such, require both code and speech (Auden).
Auden is not alone in stating the importance of language for personhood.9 In his work
Conditions of Personhood, Daniel Dennett lists six necessary conditions for personhood. Persons have to: (1) be rational beings; (2) be in a state of consciousness to which psychological or mental or intentional predicates are ascribed; (3) be treated as persons, hence, the attitude taken toward it or a stance adopted with respect to it is also constitutive of someone’s being a person; (4) have the ability of reciprocating the stance taken toward them (i.e. to treat others as persons); (5) be capable of verbal communication, a condition that, as Dennett writes, “handily excuses nonhuman animals from full personhood and the attendant moral responsibility, and seems at least implicit in all social contract theories of ethics”; (6) be conscious in some special way, in which no other species is (e.g., self-consciousness) (Dennett: 177-178).10 Dennett adheres to some version of the dependence view, as he argues
necessary but insufficient condition for the fourth condition, which form a necessary but insufficient condition for the fifth condition, which forms the same for the sixth and final condition (ibid: 178-179).
Rawls’ Human Person
A slightly more liberal definition of a person can be found in the writings of John Rawls. In A Theory of Justice, Rawls assumes the persons in the original position to be rational beings, that although their particular ends are to remain unknown to them, are knowledgeable enough to rank between different alternatives (Rawls, TJ: 142-143). A second Rawlsian assumption is that those persons are capable of a sense of justice, which is public knowledge among them. This assumption, however, applies only in the formal sense, hence, in having the rationality not to enter into agreements that they are uncapable of keeping or are capable of only with great difficulty (Rawls, TJ: 145). By doing so, Rawls allows the assumption of the ability for the mutual respect of the assumed agreement (i.e., the social contract), as a means of securing compliance. Rawls achieves this by referring to some sort of non-moral and moral agency, i.e., both the metaphysical and the moral person. Although referring to human attributes, in Justice as Reciprocity, Rawls incorporates “nations, provinces, business firms, churches, teams, and so on” into the group of persons in the original position. However, he adds, “There is, perhaps, a certain logical priority to the case of human individuals,” making a distinction between persons and “artificial persons” whose actions may be analyzed “as logical constructions of the actions of human persons.” (Rawls, 1971: 244-245). Rawls acknowledges that besides “a. continuing persons (family heads, or genetic lines)” and “b. single individuals,” parties in the original position could also be “c. associations (states, churches, or other corporate bodies).”11 As Dennett mentions, Rawls’ interchanging “parties
moral persons are composed of metaphysical persons “who may or may not themselves be moral persons.” (Dennett: 194, n.2). Rawls’ definition excludes, however, NHAs, as they are neither “human persons” nor the logical constructions of their actions. Hence, in Rawls’ view, NHAs can be neither metaphysical nor moral persons.
In describing the basis of equality, which he defines as “the features of human beings in virtue of which they are to be treated in accordance with the principles of justice,” he writes that the constraints of justice are exclusive to our relations with “human persons.” Rawls distinguishes between three levels for the application of the concept of justice (Rawls, TJ: 504-505): The first one is in the administration of institutions as public systems of rules, meaning that justice should be regulated to treat all equally and impartially, hence, equality as the rule of law. The second level of application is the substantive structure of institutions, meaning equal basic rights are to be assigned to all persons. This, as Rawls writes, presumably excludes NHAs, as “they have some protection certainly, but their status is not that of human beings.” (Rawls, TJ: 505). Hence, NHAs are explicitly excluded by him from the group of persons. In the third level, Rawls explains that the guarantees of justice only apply to moral persons, which are distinguished by two features: First, they are capable of having a conception of their good, which is expressed by a rational plan of life; second, they are capable of having a sense of justice upon which they act. Thus, Rawls’ account of personhood is linked directly to the Kantian aspects of his theory, namely the Kantian notion of personhood (Nussbaum: 127-128). These features of agency are similar to the ones Rawls uses to describe the persons in the original position (Rawls, TJ: 142-143), a fact which might, perhaps, mean that Rawls can be said to support the dependence view, according to which, the metaphysical person coincides with the moral person and is not just its precondition. If so,
then in the Rawlsian view, the metaphysical person in the original position must also be a moral person, thus devaluing the importance of accountability for personhood.
Regarding the so-called “marginal cases” of personhood (e.g., the mentally disabled and all those who are temporally or permanently deprived of those conditions that deem one a person), Rawls contends that we should suppose that the capacity for a sense of justice is always satisfied within humankind, for the risk to just institutions would otherwise be too great. Therefore, we should regard those lacking this potential as a defect or deprivation, for this, Rawls tells us, may only be the case with individuals of the human race (Rawls, TJ: 506). With regards to those who have not yet had the chance to realize their capacity (e.g., infants and children), they should be given equal justice as well, on the grounds that those are “fortuitous circumstances.” Much the same, “Those who have lost their realized capacity temporarily through misfortune, accident, or mental stress can be regarded in a similar way.” Rawls does recognize the problematic nature of his theory for those permanently deprived of moral personhood, as they are unable to meet the reciprocal principle of “those who can give justice are owed justice,” yet, he does not proceed to discuss it and is sufficed by the assumption that his account of equality is not significantly affected (Rawls, TJ: 509-511).12
According to the Rawlsian reciprocal principle, we, therefore, do not owe NHAs the guarantees of justice, as his theory does not give an account of the proper conduct toward NHAs and the rest of nature (i.e., all that is nonhuman). Hence, as Rawls does not think that nonhumans can be persons, it is clear that NHAs are not parties in the original position, and that while the parties behind the veil of ignorance do not possess any knowledge of their future natural fortune or social circumstances, they do know at least one thing: In the original position, behind the veil of ignorance, there are all humans and only humans.13
In Political Liberalism, Rawls does discuss “what is owed” to animals and the natural world, casting doubt on the possibility to answer this question “within the scope of justice as fairness as a political conception,” and acknowledging that it might even fail there (Rawls, 1996: 21).14 Rawls is not sure there is a good solution to the problem and does not treat the problem
as one of basic justice, i.e., a problem to be solved “when society’s basic principles are designed.” (Nussbaum, 2009: 120). As these issues are said to be outside the scope of his theory of justice, what follows is that NHAs are not granted natural rights (the rights that are meant first and foremost for moral persons), as those are the rights identified by his theory of justice (Rawls, TJ: 505-506 n.30).15 Rawls’ awareness of the wrongness of cruelty toward
NHAs and the evil of the destruction of whole species does prompt him to say that NHA capacity for pleasure and pain “imposes duties of compassion and humanity” (Rawls, TJ: 505,512), but, with no natural rights to protect them, it is left unclear if the protection Rawls says they certainly have is in the form of voluntary duties imposed by compassion and humanity or those within the enforceable sphere.16
But this is just a mere symptom of a larger problem. The only possible human person is not the Rawlsian one (which is simply a synonym for human), but a crossbreed, neither human nor person, it is their lowest common denominator, consisting only of what they have in common (which may or may not be of moral significant). As such, the human person is unable to capture the essence of either of them and only presents us with an account of why it is the human person and not all humans or all persons who should be given justice.17
The Implications of Personhood
Thus, what some of our greatest thinkers have left behind is a legacy of a culture of exclusion, which is ruled by the myth of human mastery: a hierarchy in which the human
being sits on top. What was set out in the writings of Locke and Kant and later substantiated by thinkers such as Rawls—offering anthropocentric ideology disguised as objective theories that argue we should only grant justice to those who can reciprocate it—is a system that relieves us of all binding duties toward NHAs (Steiner: 178-180; Rawls, TJ: 509-511,505-506 n.30). But the question of personhood is about more than mere theoretical importance and has crucial practical implications. Rawls makes it very clear that “justice as fairness has the characteristic marks of a natural rights theory,” thus, by denying NHA personhood (e.g., by requiring a capacity for “a sense of justice,” some sort of rationality, a capability for verbal communication or any other sort of condition they are unlikely to fulfill), we are effectively asking to deny NHAs any kind of rights (Rawls, TJ: 505-506 n.30; Steiner: 186; Dennett: 177-178). It is therefore of little surprise that many consider it to be common sense that the term “person” can only apply to human beings and that NHAs, as they are uncapable of grasping the abstract concepts of rights and duties, are therefore also unable to have them (Steiner: 182-183,186-187).
NHAs, however, are not the only ones who fail to meet this Traditional View of personhood. Alongside NHAs are also human nonpersons. Such human beings pose a crucial problem to those invested in the notion of personhood. Numerous thinkers have attempted to address this: Charles Taylor, for example, refers to the Kantian notion of dignity as universal human potential, which he sees as a capacity shared by all humankind and which “ensures that each person deserves respect.” (Taylor, 1995: 41). In fact, Taylor views this potentiality with such importance that it “reaches so far that we extend this protection even to people who through some circumstance that has befallen them are incapable of realizing their potential in the normal way—handicapped people, or those in a coma, for instance.” (ibid :41-42).18
But as Sue Donaldson and Will Kymlicka (2011) argue, such attempts that merely call certain humans “marginal cases” (or treat them as such) and accord them full moral status nevertheless suppose “normal” humans who are therefore moral persons, followed by a few “marginal case” humans who do not met all of the set conditions.19 They contend, instead,
that our capacity for moral agency is fragile and of varying degrees depending on our point in life: “None of us possesses it when we are very young, and we all face periods of shorter or longer duration when it is temporarily or permanently threatened by illness, disability, and aging, or by lack of adequate socialization and education and other forms of social support and nurturance.” (Donaldson & Kymlicka: 27). Much in line with their argument, Peter Singer’s principle of equal consideration of interests and later that of best interests asks us to replace the notion of dignity because, while it is unclear which cognitive capacities are required for a being to have dignity, and therefore how this being could possess dignity, we can better know what someone’s best interests are and could therefore better defend our treatment of that being as just (Singer, AL: 6-7; 2009: 578).20 Thus, if we define personhood
as the capacity to undertake or participate in some rational or intellectual activity or exchange, then personhood does not only vary among species, rational beings, and human beings but also across time within a life (Donaldson & Kymlicka: 27; Steiner: 191).21
Now is perhaps the time to pose the question: What is the purpose of identifying persons, endowing them with rights, and calling this whole endeavor just? What is it that we wish to achieve? What, I think, it is we ought to achieve, is granting protection by means of securing certain legal rights, i.e., protective, fundamental rights to the vulnerable, independent of their congenital, verbal, motor, or intellectual abilities, including in periods of life when these capacities might become more limited. And to make those rights only available to persons
would defeat this purpose, as it would render NHAs insecure, thus leaving the most vulnerable without a legal or moral claim (Donaldson & Kymlicka: 27).22
NHAs as Persons
Acknowledging the constitutive nature of personhood, several attempts have been made in an effort to combat the NHAs’ disenfranchisement as persona non grata. Gery Francione helps shed a light on what he calls our “moral schizophrenia about animals,” which leads us to love some animals and treat them as members of our family without doubting their personhood, while simultaneously having other NHAs—which “are indistinguishable in any relevant sense” from our NHA family members—as our main course, a fact that has him—in light of human reason regarding NHAs—question if rationality really does tells us apart from NHAs (Francione, 2000: 166). Francione argues that there are no characteristics that can serve as basis for NHAs’ discrimination, and the ones we usually rely upon are not shared among all humans. In reality, he writes, the only thing telling us apart is our species, and speciesism is just another form of racism (Francione, 2008: 61). In Francione’s view, much like in the case of slavery, while we do recognize that we do, in fact, have direct obligations toward NHAs, their status is that of things. Simply put, to say that a being is a person is to say that the being is not thing. Hence, it is their status as things that prevents us from realizing their personhood, for as things, they do not have morally significant interests.23
Thus, Francione calls to extend the right not to be property to NHAs by applying the principle of equal consideration. This, he argues, will change their status from that of things to moral persons (Francione, 2000: 100-101; Francione, 2008: 61). For Francione, the cognitive ability of a being is irrelevant to its moral status, as the only condition for its
“membership in the moral community” is the being’s sentience (and therefore its not being a thing) (Francione, 2008: 138; Francione, 2000; Steiner: 185).24
Alternatives to Personhood
Some thinkers have shifted away from opposing the traditional notion of a person as the moral agent and suggested alternatives in search of new pathways for NHA inclusion. One of the first attempts at rethinking personhood is Tom Regan’s (2003). Observing that not even all humans are persons in the Kantian view, Regan identifies the problem as a “lexical gap.” In his method, moral philosophy employs three similar but different concepts: humans, animals, and persons, of which none coincides perfectly with the other two. Regan’s proposal is to the fill this lexical gap using the term subject-of-a-life, which he defines as a certain kind of autonomy; hence, including all who “are the experiencing center of their lives, individuals who have lives that fare experientially better or worse for themselves, logically independently of whether they are valued by others.” Regan’s definition is said to include all that we view as human, animal, and person; as such, it can account for mammals and birds but not for ecosystems or plants (Regan, 2003: 92-94; Cohen & Regan, 2001: 209).25
In response to Regan, Mary Anne Warren calls for a personhood plus view, as she views the subject-of-a-life as neither a necessary nor sufficient condition for full moral status. Instead, the personhood plus view allows us to extend full moral status to certain entities who may not be regarded as a subject-of-a-life, and to deny it to some who may. Because no law of reason compels us to deny moral status to those entities who are not moral agents, while their subjecthood is relevant to what we owe them, the question of if we owe them (moral status), is answered by various factors, e.g., the entities’ roles in their social and biological communities (Warren, 2000: 119-121).
Among the more recent additions to the discussion is Donaldson and Kymlicka’s (2011), who maintain that the motivation behind personhood is to exclude NHAs and deny them inviolable rights. Believing that discussing personhood only serves to obscure our moral reasoning, they ask us to abandon the term “personhood” and replace it with a term best suited for protecting the vulnerable and the innocent, that of selfhood, which they define by the following question: Is there “someone home?,” thereby implying a “vulnerable self, a being with subjective experience whose life can go better or worse as experienced from the inside.” (Donaldson & Kymlicka: 30).26
Several less radical attempts, not directly aimed at NHAs, have also been made; such an example can be found in Barbara Arneil’s response to Taylor’s notion of universal human potential (Taylor, 1995: 41-42) and its implication for the disabled. Arneil suggests the principle of interdependency, which she believes is better at breaking the binary between the (liberal/republican) human dignity of rational agents and the justice of the original position, and their opposite, the “disabled,” who are excluded or governed under the principle of “charity.” Arneil contends that interdependence replaces the old binary with a gradient scale, on which we are all both dependent on others and independent, as a function of different factors (e.g., stage in life, the world structure) (Arneil, 2009: 234). This can be compared to James Rachels’ view (1990), as he poses the question of why being a rational agent makes a difference, proposing instead the following principle of equality: “In so far as a human and a member of another species are similar, they should be treated similarly, while to the extent that they are different they should be treated differently.” (Rachels, 1990: 186,194; see also Garner, 2013: 88). Arneil and Rachels’ views can be compared to Eva Feder Kittay’s, as she argues that it is not the human capacity for rational practical reasoning that is the source of
dignity, but a moral capacity to care. Dignity, she writes, is in our moral capacity to care for each other and our being cared for by someone who is herself worthy of care. Even if caring is not identical with acting, it is just as much a human moral capacity as the exercise of rational moral autonomy (Kittay, 2005: 111). In this view, respecting the dignity of NHAs means respecting the distinctiveness of that life form, which is not of a lesser or greater degree than that of humans (ibid: 112).
Among those attempts, perhaps best known is Martha C. Nussbaum’s (2009) critique of the Kantian division between personhood and animality, on the grounds that human dignity is that of a “certain sort of animal.” She therefore argues to replace the Kantian social contract with a capabilities approach,27 which she believes is “capable of recognizing a wide range of
types of animal dignity, and of corresponding needs for flourishing, and because it is attentive to the variety of activities and goals that creatures of many types pursue,” ultimately making it capable of yielding norms of interspecies justice (Nussbaum: 132,327).28
I agree with Nussbaum’s claim that we, as human animals, possess the animal kind of dignity. This dignity, I believe, is shared among all animals, both human and nonhuman. While it is still possible that a certain species of animal has its distinct dignity, this must be due to its unique features and characteristics. As such, I reject the argument that our moral capacity to care is distinct from that of any other animal. In the case of another kind of animal, the human, and more specifically Homo sapiens, there still might be an argument for human dignity, but this must be based on that which is shared among all and only members of the species. Rational capacity, the ability to reason, self-consciousness, and their likes are not necessarily distinctive to humans and are definitely not shared equally among all of them.29 As such, they can only constitute, if they constitute anything at all, the dignity of
persons (in the Traditional View of personhood), those existing and those to be (e.g., leaving the door open for the dignity of artificial intelligence as well). Thus, the dignity on which we ought to base our society’s most fundamental rights should be that of the kind that is shared by both human and nonhuman animals as one, i.e., of the animalistic kind.
Each such case for or alternative to NHA personhood, which seeks to change or amend our view and treatment of NHAs on moral grounds, contains a great promise for our NHA companions on this planet. Building off this discussion, the next section introduces the second and third levels of the framework, while also identifying an additional view of legal personhood, which is closely connected to Rawls’ notion of the human person.
Second Section: Legal Persons, Legal Rights
Everyone has the right to recognition everywhere as a person before the law (Universal Declaration of Human Rights: §6).
Part One – Legal Personhood
Who Can Be a Legal Person? A Descriptive Claim
“In books of the Law, as in other books, and in common speech, ‘person’ is often used as meaning a human being, but the technical legal meaning of a ‘person’ is a subject of legal rights and duties.” (Gray, Nature: 27). It is with this paragraph that John Chipman Gray opens his discussion of legal personhood in his work The Nature and Sources of the Law from 1909. The term “legal person” was first coined by Gustav Hugo in 1798 as the juristische Person (Hugo, 1819: 522-523). Hugo, however, did not intend it to have any other meaning than that of the hitherto moral person (Kern, 1998: 71; Schwarz, 1934: 196). Georg Arnold Heise was the first to ascribe the term with its own meaning when he defined it:
“Legal person is everything except individual humans, which is recognized as a distinct subject of rights in the state.” (Flume, 1983: 1). The term, initially intended to denote the legal existence of corporations and foundations (Stiftungen), was later introduced into English by John Austin (Kurki, 2019: 45 n.74).
Gray provides us with an overview of the different kinds of persons that are recognized within various legal systems: (1) normal human beings (henceforth: adults of sound mind); (2) abnormal human beings (by which he refers to humans of unsound mind—either temporary or permanently); (3) supernatural beings (nonhuman intelligent beings); (4) NHAs; (5) inanimate objects; (6) juristic persons (artificial persons such as corporations and foundations) (Gray: 27-28).
Definitions of legal personhood have often been bound to the actual or conceptual capacity to hold legal rights or bear legal duties (hence the Orthodox View of legal personhood);30 Hans
Kelsen, for example, argued that the legal person is not a human being, but rather a concept of jurisprudence that exists only insofar as it is the subject of rights and duties. Therefore, “Only those actions and forbearances of a human being which are qualified as duties or rights in the legal order are thus relevant to the concept of the legal person.” (Kelsen GTL: 94).31
More plainly put, other than for human beings, this human-agent-centred approach can only support legal personhood for artificial persons that are constructions of human actions such as corporations, which is also the basis of Rawls’ justification of them (Rawls, 1971: 244-245; Kelsen, GTL: 96-97).32 Thus, if the question of who is a moral person is largely dependent on
the definition of personhood one begins with, the same is true for legal personhood.
Owing to the number of candidates for the legal person role and their different philosophical justifications, the nature of the legal person has become extremely elusive and unstable. Each time a judge or legal scholar approaches the term, she is faced with a vast selection of meanings for the term “person” (Naffine, 9-10). Ngaire Naffine distinguishes between two main approaches of the legal person in scholarly writing (Naffine, 2009: 19-24; Kurki, 2019: 19-20). The first view is the Legalist View of legal personhood; as the name hints, this group—which is usually made of lawyers that, as such, do not seek to engage with metaphysical, ontological, or existential disputes and determinations—takes the Orthodox, technical approach to legal personhood. This view can be summarized in the following way: “Law’s business is the regulation and practical organization of human affairs and the resolution of human differences which are highly variable and often have nothing to do with these basic existential matters.” (Naffine: 21).33 Hence, in legalists’ eyes, the legal person is
independent of the metaphysical and moral person, as it is nothing more than the construct of law, and, as such, any legal person can be the subject of rights and duties, depending on the legal purpose (ibid: 21-22). Therefore, legal personhood would not be defined as a function of philosophy (moral agent), religion (sacred human), or biology (natural being), but rather from within the confines of law, for law is responsible for the construction of its subject (ibid: 22). This effectively means that NHAs are not legal persons because no law or statute recognizes them as such. However, this also means that all it would take for them to become legal persons is for the legislator or the court to declare them as such (Sunstein, 2000: 1335).
On the other hand, there is the group Naffine describes as the Metaphysical Realists. This group can be characterized by its belief that “the legal person is an expression of some important defining attribute of human nature and therefore it is important to go beyond law to work out what that nature is.” (Naffine: 22). The working of law is therefore to go beyond its
own confines in search of its subject. Naffine delineates three sub-groups of Metaphysical Realists based on the set of beliefs or disciplines they derive their legal person from: Rationalists, Religionists, and Naturalists. A simplified version of Naffine’s conceptualization can be presented in the following way (Kurki: 20; Naffine: 22-24):
– Rationalists: (only) rational beings can or should be legal persons (as only they are capable of law);34
– Religionists: (only) beings with sanctity or dignity can or should be legal persons (and these beings are generally thought to be only humans);35
– Naturalists: sentient beings, both human and nonhuman, can or should be legal persons.36
A Fourth Metaphysical Realist View
The three Metaphysical Realist legal persons largely correspond with the debate of the moral person in section one. However, as none of the three groups of the Metaphysical Realists is able to account for the human person as it exists in law (as including both humans and moral persons), I identify a fourth Metaphysical Realist View:
– “Reciprocalists”: (only) beings who are able (or can be supposed to be able) to give justice can or should be legal persons, as only they are capable (or can be supposed to be capable) of having a conception of their good and a sense of justice upon which they act.
This view can also be called the Human Person View of legal personhood. The Reciprocalist View, which starts closer to the Rationalist View, ends up with a similar group of legal persons to that of the Religionist View. Yet, it does not do so through the religious/Kantian
notion of sanctity/dignity, but rather through expanding the Rationalist group to all human beings, and only to them. This is achieved by regarding those who cannot reciprocate justice as not yet being able to fulfill the potential (e.g., infants and children) or having “fortuitous circumstances” that prevent them from what otherwise would be their supposed capacity for a sense of justice (Rawls, TJ: 506,508-511).
This fact means that other than in the NHA rights debate, the Reciprocalist View also usually coincides with the Religionist one, as is evident in the abortion rights debate.37 The Life at
Conception Act of 2019, for example, sought to amend the 14th Amendment to the
Constitution of the United States by “implement[ing] equal protection for the right to life of each born and preborn human person.” (§2).38
The Bundle Theory of Legal Personhood
As for the purposes of this framework, it is more important to establish who the legal person can be as opposed to who it should be, and so the topic will not be further discussed here. Pertinent for the proposed framework is the fact that the identity of the legal person is still contested, and that no choice for a certain legal person (not even for the Legalist View, as ignoring moral matters also bears a moral significance) can be made free of moral judgment. Much scholarly work has been devoted to the subject in recent years, thus continuing an ongoing debate about the nature and the identity of the subject of law.39 Notable in the field is
Visa A.J. Kurki’s recent, impressive attempt to create a new, comprehensive theory of legal personhood, which accommodates all conflicting views. Kurki calls his view the Bundle Theory of legal personhood, which is based on two main tenets (Kurki: 5):
are separate but interconnected.
2. These incidents involve primarily the endowment of X with particular types of claim-rights, responsibilities, and/or competences.
Thus, without indulging in the debate over the substance and the most suited candidate for legal personhood any further, I continue with Kurki’s theory of legal personhood, according to which the holding of a legal right or the bearing of a legal duty is not synonymous with being a legal person. This means that even if NHAs already hold certain legal rights, they still might not be considered legal persons (thus establishing the second level independently of the third one) (Kurki: 5,71,86).40 For now, it is sufficient to say that although NHAs are largely
not considered to be legal persons, they are indeed eligible for at least some sort of legal personhood (as we have seen, certain views of the legal person do include NHAs), invalidating the claim that NHAs are ineligible for legal personhood.41 With that being said,
the discussion that follows revolves around the assumption that “every legal relationship consists in the relation of one person to another” (Savigny, 1840: §60),42 calling it into
question in light of specific legislation that seeks to protect NHAs. Accordingly, the conclusion of this work should hold true for both Legalists and Realists.
Part Two – Theories of Rights
Two Competing Theories of RightsSo far, I have discussed the question of who is (and should be) a moral person and who the nature of the legal person allows for it to be; such questions, which are sometimes discussed interchangeably, are of major significance especially when discussed distinctively, for, even if we acknowledge an entity or a being as a moral person, we still might have reasons not to opt for the view that regards it as a legal person (and the other way around). Additionally,
even if we do opt for the corresponding view of legal personhood, if we are then met by a theory of rights that does not consider this entity or being an eligible bearer of rights, we might end up with contradictions that we are unable to resolve, thus forcing us to operate in a legal reality perforated by discrepancies. To put it differently, even if the protection of moral persons is the purpose of law, which means that such persons should be recognized as legal persons,43 and even if, as Naffine argues, the law is always responsible for its subject
(Naffine: 13), this does not mean that, from the theories of rights’ perspective, all moral and legal persons (taking into account all the possible moral and legal persons) are able to hold them. As the next section shows, such a potential clash between the first, second, and third levels has far reaching implications for the normative status of NHA-related legislation.
What is the basis on which rights are granted? What are rights meant to protect? Based on the preceding discussion, the answer might seem to be persons. However, rights theories are not that easily persuaded and instead offer their own answer to the question; one that at times aligns with the answers that Legalists, Realists and various philosophers have already put forward, but at other times deviates from them. Two notable theories of rights dominate the field—the Will (or Choice) and the Interest (or Benefit) Theories of legal rights. While both theories suggest an answer to the questions above, they do so based on different and often conflicting grounds.44
A. The Will (or Choice) Theory of Rights
The Will Theory of rights has been, in the legal realm, largely identified with the writings of H.L.A. Hart. Hart, resisting utilitarian justifications as grounding rights, writes (Hart, 1982: 183):
The idea is that of one individual being given by the law exclusive control, more or less extensive, over another person’s duty so that in the area of conduct covered by that duty the individual who has the right is a small-scale sovereign to whom the duty is owed.
Hence, for Will Theorists, the essence of a right is in the opportunity of its holder to make, on her own, normatively significant choices that relate to the behavior of other persons (Kramer, 2001: 28). The measure of control given to the individual is comprised of three distinguishable elements, with the fullest measure given when all elements occur (Hart, 1982: 184):
Element 1: the right-holder may waive or extinguish the duty or leave it in existence;
Element 2: after a breach or threatened breach of a duty he may leave it “unenforced” or may “enforce” it by suing for compensation or, in certain cases, for an injunction or mandatory order to restrain the continued or further breach of duty; and
Element 3: he may waive or extinguish the obligation to pay compensation to which the breach gives rise.
As the basic idea of the Will Theory is “that every right is a vehicle for some aspect of an individual’s self-determination or initiative” (Kramer, 2002: 62), it places its emphasis on the enforcement/waiver dichotomy, for all versions of the Will Theory perceive the enforcement powers as inherent to a right. Hence, the sovereignty of the right-holder empowers her to enforce her wills through her rights. This means that rights cannot be vindicated on the sole ground of their recognition, for without the powers of enforcement, Will Theorists will not recognize the existence of a right (Frydrych, 2018: 569). This is made clear by another Will Theorist, Gray, who argues, “To give effect to a man’s right, an exercise of free will on his
part is necessary.” (Gray: 23). Gray, who believes that the object of creating rights is not, as attributed to Hegel,45 the protection of the freedom of the will, but rather the restraining of the
freedom of the will.46 Therefore, he emphasizes the principle of the enforcement by the
sovereign right-holder (Gray: 19):
The legal rights of a man are the rights which are exercisable on his motion. A man has, therefore, no legal right as to those interests in the realizing of which he is protected only by other people exercising their rights.
Therefore, if the only tool at X’s disposal for preventing a burglar from breaking into its house is the fact that the state could sentence the burglar, but without allowing the home owner X to apply force or to appeal to the courts, X cannot be said to have a legal right not to have its house entered, regardless of the right the state might have. Instead, this situation depicts a protected interest, which is, according to the Will Theory, not a legal right (Gray: 19-22). The implications are vast: NHAs, infants, comatose people, senile people, dead people, and anyone who is not an adult of sound mind (hence, not a person in the Traditional View) cannot possess legal rights.47 Thus, NHAs, as part of a larger group, lack the ability to
express their will at the necessary level of precision the Will Theory demands. Mentally, they are unable to apprehend the full applications of the enforcement of a right or the waiving of a duty, and in any case, they lack the capacity to communicate their decisions in the most basic manner (Kramer, 2001: 29). Thus, the Will Theory grants control over another’s duty and also denies rights on the basis of agency (i.e., the (in)capability of exercising will/choice) (Harel, 2005: 194). Setting agency as a precondition for right-bearing largely resembles Locke’s view of personhood, namely, of an accountable agent who is capable of law (Locke: Book II, Chapter XXVII, §26).
These unsuccessful candidates for the Will Theory, which are not suitable for the entitlements referred to as legal rights, must suffice with legally protected interests. Although such protection is largely viewed as just among Will Theorists, they nevertheless insist that those protected interests and safeguards are not legal rights, or at least not such that are held by NHAs (Kramer, 2001: 29-30). Certain implications of the Will Theory for NHA-related legislation (and for human rights) are further discussed in the next section.
B. The Interest (or Benefit) Theory of Rights
The dominant Pandectist48 view of the Will Theory, according to which a right is one of the
legal system’s (Rechtsordnung) permissibility of will (Wollenfdürfen) (Windscheid, 1879: §37), was eventually challenged by the German jurist Rudolf von Jhering (1877). Jhering developed an early version of the Interest Theory of rights, in which he defines rights as protected interests. Among contemporary proponents of the Interest Theory is Matthew Kramer, who describes its underlying idea the following way: “Every right protects some aspect of a person’s welfare, which may or may not include some aspect of the person’s freedom.” (Kramer, 2002: 61). Two theses are at the foundation of the Interest Theory (ibid: 62):
1) Necessary but insufficient for the actual holding of a right by X is that the right, when actual, protects one or more of X’s interests.
2) The mere fact that X is competent and authorized to demand or waive the enforcement of a right will be neither sufficient nor necessary for X’s holding of that right.
Unlike the Will Theory, the Interest Theory consists in the normative protection of the right-holder’s well-being (Kramer, 2001: 28).49 The focus on one’s well-being rather than one’s
ability to express one’s wish or exercise one’s choice puts the Interest Theory in the position of being able to ascribe legal rights to those unsuccessful candidates for the Will Theory (e.g., NHAs, infants, the mentally disabled, etc.), at least at the conceptual level (ibid: 30). However, in ascribing rights based on interest, the Interest Theory opens up the possibility for interpreting various statutes as granting their subjects legal rights (e.g., “Keep Off the Grass” orders as generating lawn’s rights, buildings’ preservation laws as granting buildings rights; one could think of many more examples that would help make this theory the object of ridicule). But such a possibility is only true at the conceptual level, as the conceptual “warrantedness” is not a sufficient condition for ascribing rights. An additional factor given is that the moral status of the being to whom the right is ascribed must also be (implicitly or explicitly) taken into account (Kramer, 2001: 32-33).
Completing the Framework
It is at this point that the connection between the three levels consisting the framework—the different notions of the moral person, the various views of legal personhood, and the theory of rights debate—is revealed as morally significant. Although often discussed as such, various notions of (and alternatives to) moral personhood and different conceptualizations of legal persons and legal rights do not exist in a vacuum; instead, they are all interconnected to one another in one or more ways and exist in the presence of the other.
To put it differently, if one’s wish was to end up with the result that NHAs do not have any legal rights, and moreover that nothing is owed to them, such a way exists and awaits. Alternatively, if one’s motivation is to assert that NHAs have legal rights, he would find
varied ways to do so. To argue that NHAs cannot or should not possess any legal rights, is, at its core, a moral argument about why NHAs ought not to have any legal rights, and not a legal one.50 The fact that one can build a legal argument around the result one aims to achieve
is more telling of the arguer’s own moral views and less of an indication of what the legal system allows for or commends.
Having completed the framework, we are now ready to take a closer look at some of the NHA-related legislation. Along with the discussion of moral personhood in section one, the next section, using the views and theories reviewed and suggested thus far, applies the suggested framework in an effort to understand the social and legal status of NHAs, as it is set out in the legislation that regulates human behavior towards them.
Third Section: A Look at the Courts
Everyone has the right to life, liberty and the security of person (Universal Declaration of Human Rights: §3).
In the case of cattle, calves, horses, mules, sheep, swine, and other livestock, all animals are rendered insensible to pain by a single blow or gunshot or an electrical, chemical or other means that is rapid and effective, before being shackled, hoisted, thrown, cast, or cut (7 U.S.C. §1902(a)).
Legal Persons, Legal Standing
The final section of this work is dedicated to the importance of the suggested framework for the question of standing, as well as to showing how a certain view of legal personhood can be
mistaken for (and therefore replace) the discussion of the theories of rights. This is done using two (relatively) recent cases from the United States Court of Appeals for the Ninth Circuit and the Supreme Court of the State of New York. While the first case exhibits a correct application of the framework, the second one demonstrates an erroneous discussion, thus highlining the false outcome courts can reach when disregarding the third level or conflating it for another. In doing so, the following discussion manifests, in my view, the pivotal role of legal personhood in the court’s deliberation of NHA rights.
A. Cetacean Community v. Bush
In the 2004 Ninth Circuit’s case of Cetacean Community v. Bush (henceforth: Cetacean Community) the plaintiff, representing the world’s whales, porpoises, and dolphins challenged the U.S. Navy’s practice of using Surveillance Towed Array Sensor System Low Frequency Active Sonar during threat and wartime conditions. The sonar, which assists in detecting submarines, causes the cetaceans serious injuries, such as tissue damage and a disruption to biologically important behaviors, including feeding and mating. Thus, the plaintiff alleged that with these practices, the Navy has violated or will violate the Endangered Species Act (ESA), the Marine Mammal Protection Act (MMPA), and the National Environmental Protection Act (NEPA) (Cetacean Community: §2,3).
The court, in a conclusion largely based on Cass R. Sunstein (2000), asserted, “Animals have many legal rights, protected under both federal and state laws.” The assertion was owed to the fact the “criminal statutes punish those who violate statutory duties that protect animals,” listing a few examples of such statutes, including the U.S. Animal Welfare Act (AWA) (Cetacean Community: §19).51 Such a claim, of course, can only be made based on the
instances, humans whose interests are affected by the existence or welfare of animals are granted standing to bring civil suits to enforce statutory duties that protect these animals. The ESA and the MMPA are good examples of such statutes.” (ibid). Thus, in the court’s view, the duties that arise from the ESA and MMPA, although there to protect NHAs, are owed to the human interest in NHA existence or welfare.
The decision in the case revolved around the question of whether the world’s cetaceans have legal standing under these statutes or the Administrative Procedure Act (APA) to bring their legal suit in their own name. Two hurdles face any plaintiff looking to sue under a certain statute. First is the requirement of Article 3 of the U.S. constitution (found in Article III, Section 2, Clause 1) that the matter must be a “case or controversy.” After asserting that Article 3 of the constitution “does not prevent Congress from granting standing to an animal by statutorily authorizing a suit in its name” (this was not done by recognizing NHAs as persons under the Constitution, but rather because the relevant clause in the Constitution does not refer to persons and is nevertheless used to authorize suits of artificial persons such as corporations, ships, and even cities) (Cetacean Community: §20-21),52 and that some
NHA-related legislation, such as the AWA, constitutes NHA legal rights, the court moved to examine the second hurdle: whether any of the NHA protection statutes in the case give NHAs statutory standing.53
In order to do so, the court examined the statutes together with section 10(a) (Right of Review) of the APA, which asserts: “Any person suffering legal wrong because of any agency action, or adversely affected or aggrieved by such action within the meaning of any relevant statute, shall be entitled to judicial review thereof.” (5 U.S. Code §702). The question is, therefore, whether NHAs can be granted statutory standing where legal rights do
not exist, i.e., under the ESA, MMPA, and NEPA, either on their own or through the gloss of the Section 10(a) of the APA (ibid: §21). In doing so, the court, rightfully, applied the second level of analysis independently of the third level.
The court’s analysis reached three conclusions:54
1. According to the ESA, NHAs are the protected rather than the protectors and nothing in the definition of “person” in the law hints that the person authorized to bring the suit can be an endangered or a threatened NHA (ibid: §38).55
2. The MMPA, unlike the ESA, “contains no explicit provision granting standing to enforce its duties.” As the MMPA grants permission to any “party” to seek judicial review, but does not refer to the would-be party of the affected NHA (16 U.S.C. §1374(d)(6)), the term “person” is to be interpreted in light of Section 10(a) of the APA, which does not define NHAs as persons. The fact that no court has ever held that any NHA has standing to sue in its own name to require that a party seek a permit or letter of authorization under the MMPA, together with the fact that Congress does not explicitly say so in either the MMPA or the APA, means that “animals do not have standing to enforce the permit requirement of the MMPA (Cetacean Community: §40,41).
3. Neither the NEPA nor the APA would permit to maintain that just because NHAs are a part of the environment, they have standing to bring a suit on their own behalf (Cetacean Community: §42).
Let us now break down the court’s main conclusions: (1) The court distinguishes between two kinds of NHA statutes; (a) those creating statutory duties for the protection of NHAs that are also owed to their interests, thus granting NHA legal rights; (b) statutes protecting the
