What are the principle arguments advanced by the Non-Human Rights Project (NHRP) for recognition of animal personhood?
30th March 2022
By Domhnall Lynam, Queen’s University Belfast
The Non-Human Rights Project (NHRP) pioneered by the eminent human rights lawyer Steven Wise argues for the recognition of animal personhood; that animals should be granted legal personhood, which is the capacity to exercise legal rights. The principle arguments advocated by the NHRP, which this essay will critically analyse, represent a bio-centric turn in the law as the project seeks to fundamentally change the legal status of animals. The NHRP’s principle arguments are premised on autonomy, bodily liberty, bodily integrity, focus on vertebrates and utilization of the common law through a strategic pragmatic approach. Stone’s notion of expanding legal personhood to the natural world was a radical notion almost fifty years ago and this remains the case today. As a result, the principle arguments advanced by the NHRP have received a plethora of criticism from various quarters which this essay will also critically examine.
Legal personhood is not synonymous with a ‘human being,’ rather it is an emancipatory process through the exercise of legal right. For example, in the USA corporations have been granted legal personhood. Although animal personhood is a revolutionary idea, it has a strong historical underpinning. For example, in the Middle Ages a pig stood trial for eating a human being. Stone’s seminal article in 1972 ‘Should Trees Have Standing?’ led to the re-emergence of the idea that natural objects should be recognized as legal persons. People are now more amenable to the NHRP arguments because of the destruction of the commons and climate change, evidenced by lifestyle trends such as veganism. In recent years animal personhood has gained prominence, for example, in 2014 in India non-human animals were designated as legal persons, in New Zealand a river was granted legal personhood and Ecuador, Colombia and Bolivia have followed a similar direction. This demonstrates increased respect for the commons and the natural world.
Never has there been a more pertinent time to analyse our relationship with non-human animals. In 2021, the world is in the depths of the Anthropocene, an era of dramatic environmental change, as illustrated by Attenborough’s stark warning that ‘one million of the world’s species are under threat.’ Geller argues the advent of the Anthropocene suggests that a novel approach is necessary. Increased legislative protection for animals and the environment is an effective response and the NHRP is at the forefront of this transformation towards respectful co-existence. Attenborough provocatively emphasized that ‘what happens next is up to all of us.’ Raising awareness of the principle arguments of the NHRP and supporting the project’s work through advocacy and donations is a preliminary measure to reverse the dramatic destruction of the commons and their species.
The NHRP’s principle arguments spearheaded by Wise are inspired by the work of Peter Singer, premised upon a voice for the voiceless and defending the defenseless. Their arguments are based on the common law writ of habeas corpus from Somerset v Stewart where a writ was issued on behalf of James Somerset, a slave, by Lord Mansfield. Never had a slave been considered a legal person in a process described by Wise as ‘legal transubstantiation,’ and a landmark case in dismantling human captivity. The NHRP is searching for a 21st century version of Lord Mansfield to eradicate animal captivity through the recognition of animals as legal persons. In 2013, the world’s first common law habeas corpus hearings on behalf of non-human animals were issued. The NHRP have premised their arguments upon the common law values of bodily liberty and integrity, something which judges have used ‘for a millennium to decide cases which turn on general legal principles.’ Autonomous beings are entitled to these rights and proving autonomy before a Court grants animals legal rights which traditionally they have been denied, indeed this has been the ‘single most important obstacle to more humane treatment.’
Autonomy is a ‘powerful starting point’ to initiate their conquest of legal personhood. Their habeas corpus suit in 2013 was about proofing that chimpanzees are autonomous beings. Jane Goodall’s research into chimpanzees demonstrated that they have an extremely high cognitive ability, in a similar way to humans. Over 100 pages of affidavits explained how chimpanzees possess an extremely complex cognitive ability. Habeas corpus claims have also faced criticism; one claim was dismissed by the Court because according to them the animal was being moved from one place of confinement to another: from a cage to an island sanctuary. This undermined the NHRP’s habeas corpus claims. However, Wise dismissed this by arguing that if the species were sent back to their natural habitats immediately, they would not survive there. The NHRP are not seeking absolute freedom for their clients, ‘they will not be driven to Times Square and let out.’ Furthermore, a habeas corpus claim on behalf of Tommy was dismissed on the grounds of community membership because ‘while a chimpanzee is aware and intelligent, they cannot bear duties or responsibilities.’ This is a fundamentally flawed argument because the ‘current legal reality’ is that children and the disabled have rights but lack duties and responsibilities and personhood has already been granted to non-human entities such as rivers. Despite these criticisms the autonomy argument has been vindicated by the Courts. In 2020 Justice Alison Y. Tuitt stated that Happy is an ‘intelligent, autonomous being …who may be entitled to liberty.’ The concept of animal personhood through demonstrating autonomy has become an increasingly popular concept.
Focus on vertebrates
The NHRP seeks to change the ‘common law status of at least some non-human animals from mere things to legal persons,’ a process they hope will eventually lead to the recognition of animal personhood for all non-human animals. The project’s initial clients are vertebrates who demonstrate some degree of autonomy through cognitive capabilities and similar human characteristics such as chimpanzees and bonobos. This has led to criticisms of speciesism and Scala naturae (ladder of nature) ‘reinforcing an existing hierarchy between us and them.’ This is quite ironic considering the foundational argument of the NHRP: eradication of destructive hierarchies which ‘just keeps the old thinking and the old line and simply shifts several species to the other side.’ In addition to this, Wise has stated that if a being is not conscious, it is difficult to decipher what rights would mean for that being and ‘we doubt that cockroaches and flies should have legal rights.’ Echoes of Orwell’s famous line that ‘all animals are equal, some more equal than others,’ overshadow the NHRP’s arguments. A ‘capabilities approach’ would be a ‘more inclusive and respectful’ argument for the NHRP to pursue. Any approach which departs from Scala naturae which has perpetuated toxic practices of racism and misogyny, a cause of societal destabilization, is a welcome development.
However, Wise has stated that autonomy is a ‘sufficient but not a necessary condition’ in the pursuit of legal personhood for non-human animals. The NHRP pragmatically choose vertebrates to demonstrate to judges their cognitive ability, which according to Wise gave the project ‘the best chance of making that breakthrough.’ The aim of the NHRP is that this breakthrough will activate the extension of animal personhood to other animals as well. However, the Animal Charity Evaluators organisation is doubtful as to whether the NHRP work will expand to all animals. The project is firmly aware of the ‘slippery slope’ critiques of their arguments and the idea that granting rights to chimpanzees will gradually lead to a cockroach being granted legal rights. A sensible incremental approach allows the project to bring a wide cross-section of society on a journey with them. However, Justice Barbara Jaffe rejected the slippery slope argument by arguing that ‘social evolution is needed to allow future societies to expand the ambit of rights.’
The NHRP has received much criticism for its failure to utilize sentience as a proposed legal standard, a departure from the notion of animal sentience, promulgated by thinkers such as Singer ‘animals deserve certain rights based on their ability to suffer,’ premised on the work of Mill, Gandhi, and Tolstoy. However, the NHRP have pursued the path of autonomy, something which an abundance of evidence suggests is immensely valued by the judiciary. The project is open to the possibility of exploring further areas such as canine cognition. Their optimum utilization of the common law provides the project with a future trajectory of ‘innate flexibility and openness to new discovery.’ Continued technological advances may exert pressure on the NHRP to define parameters on the extent of legal personhood for different objects. Controversially, the possibility of robots replacing humans in the legal sector and whether these robots should be granted legal rights is an interesting development. Andrews argues that ‘if you have a computer or robot that is self-aware, it would be very hard to say it is not a person.’Naturally, the NHRP would wish to terminate the undermining of the legal profession which could break down the legal system which they have maximized effectively to alter the legal property status quo.
Common law approach
The NHRP have utilized the receptivity of the USA common law to achieve their principle arguments for animal personhood which facilitates ‘litigant activism.’ The common law develops in response to the types of issues brought before the Court and are ‘a barometer of public conscience.’ The NHRP are not solely campaigning for legislative change, instead they are doing it themselves through the Courts. Stalker argues that unsuccessful Court decisions illustrates ‘that society is not yet ready to abandon the human-animal divide.’ This reflects the attitudes of the Anthropocentric age which we are currently living in. Even unsuccessful decisions exacerbate the process of transforming societal views. However, this is an incremental process and judges are ‘reluctant for political and professional reasons to change the law.’ For example, a judge stated, ‘I do not want to be the first to do this.’ The impacts of this prolonged process will be discussed later.
At this juncture, the NHRP arguments in relation to their compatibility towards the UK legal system merits some consideration. The doctrine of Parliamentary Sovereignty in the UK means that Parliament is supreme and can quash decisions of the domestic courts, precluding the growth of judicial creativity. However, its relevance in the 21st century context is subject to debate. It is questionable as to whether the common law approach of the NHRP adopted in the United States, would be effective and enable change in the more traditional UK system. Furthermore, the composition of the UK’s judiciary, white middle-class males making political decisions, leads to a questioning of the credibility of any potential UK court decisions in relation to animals. Schneider states that the NHRP approach ‘will differ significantly from country to country.’ Certainly, in the UK sphere a context specific approach will be needed if the principle arguments of the NHRP are to have any success.
Strategic pragmatic approach
The NHRP have achieved their principle arguments thus far through ‘a long-term, strategic, open-ended campaign.’ From the outset they choose chimpanzees for their first writ of habeas corpus due to their large abundance, low economic value and not integral to the functioning of any industry. Their strategic approach was visibly evident in their decision not to advance PETA’s complaint of enslaving its orcas who was captive in violation of the 13th Amendment. Wise knew that simply this endeavor would not win, consistent with the NHRP’s approach of ‘win big, lose small.’ Wise is acutely aware of the longevity and incremental nature of this ambitious project, he repeatedly makes reference to breaking down a legal wall that has existed for over two thousand years with animals on one side as legal things and human beings on the other side as legal persons highlighted by the fact that it took over twenty-eight years for him to file his first law suit to ensure a ‘reasonable chance of winning.’
The NHRP have achieved tremendous change in a relatively short space of time. As recently as 2016 all animals were on the metaphorical legal ‘thing’ side of the wall. Now many have moved from the darkness of ‘thinghood’ into the light of legal personhood. The NHRP litigation model premised upon their principle arguments have been extended successfully to various jurisdictions outside of the USA, for example, in Argentina a judge recognised a chimpanzee, as a legal person meaning that Cecilia was transferred to an animal sanctuary. Despite this, it appears to be slow and geographically limited to certain areas with large amounts of time, expense and resources utilized for often minimal outcomes. Attenborough urges people that we have approximately ten years to change our ways, and at the forefront of this is the human relationship with non-human animals. This is an incredibly short time frame and beyond the NHRP’s current rate of successful litigation cases, perhaps greater NHRP’s resources need to be channeled towards legislative change. Even a groundbreaking Court decision ‘could not have a transformative effect without well-coordinated political actions.’ The project had begun to utilize the legislator at Capitol Hill more extensively, but Covid-19 has stagnated this. The pandemic will undoubtedly dictate the course of government business for the foreseeable future in a process of rebuilding after the hardship of the pandemic. Despite this, it is imperative that the principle arguments of the NHRP are channeled simultaneously via litigation and legislation, there is not enough time to ‘invest energy into the wrong solutions.’
The NHRP’s principle arguments are a transformative bio-centric evolution in legal jurisprudence, and therefore have faced a myriad of criticism. Wise’s assertion that animal personhood is ‘hardly a revolutionary idea,’ simply an extension of the process of bestowing rights to groups traditionally excluded such as Indigenous people. However, on a superficial level it is a radical proposal, that is why the NHRP’s litigation model is such an onerous process. NHRP has concentrated upon animal rights as opposed to animal welfare. Welfarists such as Cupp argue that animal welfare legislation offers sufficient protection to protect the welfare of animals. The template of welfare law is well-established and perhaps the logical approach is to ameliorate existing welfare provisions. Furthermore, Radford argues that animal welfare laws ‘regulate the exploitation of animals’ which will not be terminated in the short term because of the ‘social interdependence’ between humans and animals. Indeed, this interdependence is further evidence of the strategic advantages of litigation as opposed to legislative action because politicians will be reluctant to interfere with industries which profiteer from exploiting animals for pragmatic vote winning reasons.
However, the NHRP argues that animal welfare laws are insufficient and do not radically alter the binary subordination of animals as ‘mere things’ and legal property. However, the NHRP are not dismissive of the work of animal welfare groups, a realization exists of its central importance until the utopian position of animal personhood is conquered. There is a wealth of evidence unequivocally demonstrating that welfare laws are insufficient in protecting non-human animals. Media coverage, even in the NI context, demonstrates grave injustices and mistreatment of animals increasingly prevalent during the Covid-19 lockdown. Welfare laws, since the first anti-cruelty laws, such as the British Cruelty to Animals Act , were enacted and are not achieving their intended purpose, exacerbated by a departure from EU animal welfare standards. Persisting on this futile trajectory would not fundamentally change the status of animals to ensure their survival. Animal welfare laws will no longer be needed once legal personhood is established because it means that animals are not irreducible to the cruelty of humans.
In addition to this, it is debatable as to whether the NHRP’s argument for animal personhood is sufficient to dramatically improve the lives of animals and to arrest the cataclysmic destruction of ecosystems. Legal personhood is an effective preliminary step in the altercation of societal values, but new ideas, customs and lifestyles need to emanate from this statutory reversal of an ancient legal framework. Zimmermann analyses ways humans exploit animal species indirectly through our western lifestyle and choices. For example, products and medicines developed using animal testing. Francione argues that domesticating animals as household pets restricts their freedom; it is ponderable how many of us are prepared to surrender this luxury. Ironically, he displays elements of his own concept of moral schizophrenia by his continuation of the practice of domesticating animals as household pets. Even minor changes require large-scale changes to human behaviour, for example, eating habits. Giving animals legal rights would mean that the Nazi Holocaust is ‘comparable to the speciesism inherent in eating meat or using animal by-products.’ Wider society is not yet ready to embrace these changes; the NHRP is playing a pivotal part in leading this change but a ‘paradigm shift’ is needed with engagement from various social and political actors.
A more radical and dismissive criticism against the principle arguments advanced by the NRHP have been the claims of ‘insanity’ against the project. However, historically, Black people, women, as well as other subordinate groups were once treated as objects rather than living beings. Wise makes the analogy between the mistreatment of animals and slaves historically which today is considered ‘morally heinous.’ Max Weber reminds us that ‘man would not have attained the possible unless…. he had reached out for the impossible.’ Where legal rights are concerned, it is imperative to highlight these injustices and implement radical measures to eliminate them. Martin Luther King’s words ‘the day you fail to speak the truth is the day you begin to die,’ serves as a powerful reminder to all of us to speak up for the voiceless.
The principle arguments advanced by the NHRP, demonstrated in this essay for the recognition of animal personhood, are an effective means to arrest cruelty towards animals and the destruction of our ecosystem. Growing up on a farm in rural Fermanagh I am aware of the intrinsic connection between human and animal species. During this era of the Anthropocene the imbalance is tilted towards humans who have exploited animals. Radical change through the recognition of animal personhood is needed to address the challenges of the Anthropocene. The Covid-19 pandemic which has destabilized civilizations across the world has demonstrated the fragility of our civilizations and human existence. As a result, there is an increased awareness of the need to protect our animals and the environment. Indeed, radical changes are needed because another pandemic which will have a much higher fatality rate is approaching according to Mike Ryan. In the future we will know whether Covid-19 has radically transformed our lives positively to the extent whereby humans and non-human animals are in natural equilibrium.
This paper critically examined the principle arguments advanced by the NHRP for recognition of animal personhood. When the project first mooted their arguments in 2007, animal personhood was a utopian notion, but it is now ‘a social reality and a necessity,’ in jurisdictions across the world, as a result of the groundbreaking litigation model pioneered by the NHRP. Legal systems across the world are on a trajectory towards recognition of animal personhood. Their pragmatic common law approach has optimized their success. However, some of the arguments advanced by the NHRP may need revised such as the overtones of speciesism and Scala naturae associated with their exclusively autonomy focused approach. The NHRP principle arguments have catalyzed the elimination of the binary legal status between things and persons, evidenced by more organisations fighting for legal personhood, increased media coverage and a societal impetus towards radically changing our relationship with non-human animals. There will ‘soon be a generation of animals roaming the Earth who are the first of their species to have legal rights,’ a testimony to the success and credibility of the NHRP’s principle arguments for the recognition of animal personhood.