I had the pleasure of attending a very interesting lecture at Fordham Law School, entitled “The Law, Science, and Ethics Behind the Nonhuman Rights Project and Its Struggle to Achieve Fundamental Legal Rights for Nonhuman Animals”. The principal presenter was an attorney, the leader of that project, who deeply loves animals. He has brought numerous lawsuits attempting to persuade courts to declare chimpanzees to be legal persons, and thus entitled to rights and protection under the law.
This subject is particularly interesting to me, and I am completely in support of the argument that we have a moral obligation to love and treat animals humanely. I am a vegetarian, and I have very serious moral objections to the way that industrial farming treats animals. Pope Francis, in Laudato Si’, was very firm in insisting on the immorality of animal cruelty and the duty to treat animals humanely.
But even more important to me is the issue of legal personhood. In the law, only those entities that are deemed “persons” possess the ability to assert rights, duties, freedoms and immunities that are legally enforceable. In essence, the law will only recognize you and defend your rights if it considers you to be a “person”.
Under current American law, legal personhood is recognized for human beings (with an important exception I’ll discuss in a second) and entities that are created under the law and called “juridical persons” (e.g., governments, corporations, partnerships, and other associations). No American law has ever recognized legal personhood in non-human animals.
Unfortunately, the two most notorious Supreme Court decisions in history both specifically denied personhood to a class of human beings. The Dred Scott decision held that blacks were not persons under the law and thus “they had no rights which the white man was bound to respect” — so they could be held as chattel slaves. The Roe v. Wade decision similarly held that “the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn” — and thus they could be killed with impunity. An equally appalling New York State Court of Appeals decision, Byrn v. New York City Health and Hospitals Corporation, also specifically denied that unborn human beings are legal persons and thus have no rights that are bound to be respected by those lucky enough to be already born.
That brings us to the lawsuits that seek to have chimps defined as legal “persons”. It would be easy to view these actions as ludicrous, and I imagine that most people would dismiss them as such. As a legal matter, I believe that the cases are meritless. Their theory rests on the inconsistency of the law recognizing some humans as persons, while denying that status to others — which is true, but irrelevant when it comes to animals, which are, by definition, non-human. And it relies heavily on an eighteenth-century English case that decided that slavery was not recognized under English common law. But if you cite the common law as authority, you have to accept it whenever it’s contrary to your position too. And English and American common law — as well as statutory and constitutional law — have never treated animals as persons, and always considered them to be property. Wishful thinking and good intentions can’t make the law into something that it has never been.
But an unconvincing legal theory is not the most dangerous thing about these lawsuits, and the entire effort to have animals recognized as legal persons. The animal personhood effort is premised on the fundamentally flawed idea that there is no relevant moral difference between humans and other animals — a rejection of “human exceptionalism”, which has been an axiom of law and society throughout history. Instead, they seek to define personhood by reference to characteristics such as whether the animal is “autonomous and self-determining”, or whether they “possess the complex cognitive abilities sufficient for personhood” (to quote from the chimp’s court filings).
But these are inherently arbitrary. Who decides what is sufficient, and what is not, and by what standard? Do we draw the line at the “complex cognitive abilities” of chimps, or at dolphins, cats, dogs, chickens, insects, etc.? Who is to say what degree of “autonomous and self-determining” is enough to grant rights, and when it is not? How an anyone tell, without any bright line standard — such as the obvious difference between the human species and an animal species?
Even aside from the legal chaos and arbitrariness that would result, there’s an even greater danger — if that’s the standard for determining personhood for animals, what if the same standard is applied to humans?
We know that the courts have no problem deciding that unborn children aren’t persons. But what about newborn babies, who clearly are not “autonomous and self-determining” yet, and haven’t developed to the point where they “possess complex cognitive abilities”? How about those who are in a permanent vegetative state? Or advanced Alzheimers patients? Will they be defined as non-persons, so that they have no protection under the law — and they can be treated as property to be mined for their organs, or killed if they become too expensive to maintain?
This is not an idle set of questions, or a speculative “slippery slope”. There are people, like the Princeton philosopher Peter Singer, who would gladly exclude from legal personhood those humans who lack sufficient “complex cognitive abilities” to satisfy his personal standards.
When law is made, laudable motives are not sufficient. It’s wonderful that the Nonhuman Rights Project loves animals, and we absolutely need to grant greater legal protection to our fellow creatures. But the unintended consequences of legal changes must also be considered. And the inevitable result of the animal personhood legal theories would be dangerous — and deadly — to humans.