A new relationship with animals, nature and each other.

Of Humans and Persons

personhood-041713Are all humans “persons” as far as the law is concerned? Are all “persons” humans? People manage to get quite confused about this, and it’s a topic that’s increasingly in the news. Later this year, it will be even more in the news.

That’s because the Nonhuman Rights Project will be going to court with the first-ever nonhuman plaintiff, seeking to have a judge recognize that he or she has all the cognitive abilities necessary to be recognized as a “legal person” with the capacity for fundamental rights relevant to her species.

It’s ironic that there are more “animal rights” organizations than ever before, and that people talk all the time about “animal rights”. The trouble is that “animal rights” is a contradiction in terms. Very simply, no nonhuman animal has any rights at all. None.

No nonhuman animal has any rights at all. None. Zero.

In order to be recognized as having rights, you have to have the capacity to possess common law rights. And only a “person” has the capacity for legal rights. Your DVD player has no rights. Nor your stereo. Nor your pet cat. Nor the chimpanzee in a laboratory or the elephant in a circus.

So, while it may be illegal for someone to steal your DVD player, the DVD player itself does not have the right not to be stolen.

Equally, it may be illegal (and only in some circumstances) to abuse a circus elephant, but the elephant herself does not have the right not to be abused.

When, for example, a team of attorneys went to court in Los Angeles last year, seeking to have three elephants, Billy, Tina and Jewel, released on the grounds that they were being mistreated, the judge wrote a stunning indictment of the zoo and directed a series of remedies.

But he also explained that his hands were tied in terms of setting Billy and his pals free because the elephants are the legal property of a zoo and cannot be taken away from their owners except in truly dire circumstances of cruelty.

That’s exactly the kind of situation that the Nonhuman Rights Project (NhRP) is setting out to change. If those elephants had been recognized as legal persons, then the whole situation begins to change. As Steve Wise, President of the NhRP, explains it:

In Western law, every nonhuman animal has always been regarded as a legal “thing”. We can buy, sell, eat, hunt, ride, trap, vivisect, and kill them almost at whim. The reason is that legal things don’t exist in law for their own sakes. They exist for the sakes of legal “persons,” which we humans are.

“Things” are invisible to civil judges. They possess no legal rights and no hope of having them.

A court confronted with a plaintiff’s claim to possess any legal right need only determine the plaintiff’s species. If the plaintiff is human, the answer is “It is possible. She is a legal person.” If the plaintiff is a nonhuman animal, the answer is “Impossible. He is a legal thing.”

mansfield-041713Not long ago, whole classes of humans were treated as things – as pieces of property that were owned by persons. In 1769, one such “thing” – the American slave James Somerset – was taken to England by his owner, Charles Steuart. Somerset escaped but was recaptured and chained on a ship bound for the sugar plantations of Jamaica. But before the ship could set sail, some anti-slavery attorneys filed a historic common law writ of habeas corpus in which they demanded his freedom.

Chief Justice Lord Mansfield ruled that Somerset was indeed a legal person who could not be owned and that he had to be set free.This led to similar suits being filed all up and down the newly-born United States. Some judges ruled that slaves were persons; others that they were not. And eventually this led to civil war.

Today, there are still issues being fought in court over whether, for example, unborn humans are persons with legal rights, or whether a human who is cognitively disabled is a person in the full legal sense of the term.

Is a 45-year-old chimpanzee who is self-aware and capable of conversing with humans a person?

But what about a 45-year-old chimpanzee who is self-aware and capable of conversing with humans using complex sign language or a computer? Isn’t she a person, too?

And what about an elephant or a dolphin who demonstrates a high level of intelligence, self-awareness and emotional complexity, and who is being forced to entertain humans for profit at a circus?

Are these animals pieces of property? Are they basically no different, in the eyes of the law, from a DVD player? Or is it time to recognize them as persons who have the capacity for certain fundamental legal rights?

As attorney Wise explains the Nonhuman Rights Project:

Our purpose is to persuade an American state high court to transform a nonhuman animal the way Lord Mansfield transformed James Somerset: by declaring that she is a legal person capable of possessing legal rights.

Once a court recognizes this possibility, the next legal question will shift from the irrational, biased, and overly simplistic question, “What species is the plaintiff?”, to the rational, nuanced, value-laden, and policy-enriched question, “What qualities does the plaintiff possess that are relevant to the issue of whether she is entitled to the legal right she claims?”

And then, for the first time, the term “animal rights” will have real meaning.

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