BEING A ‘PERSON’: The new global trend that grants legal rights to other animals and nature
It is worth recalling that nonhuman persons have been around for a long time, and it is only in the most recent era that we have begun to assimilate 'person' and 'human being' as synonyms. The term 'persona' in Latin originally signified 'mask' and, by extension, a 'role' one might take on in a theatrical performance. Thus, the dramatis personae, literally the 'masks of the drama,' are simply the roles in a play.
JUSTIN E.H. SMITH: Inbred, feral, and hungry, the “cocaine hippos” of Colombia took to the rainforests after liberation from Pablo Escobar’s menagerie at the time of the drug kingpin’s death in 1993. From an initial population of four, the hippos are now a fast-growing nuisance numbering over 100. Yet they are also the stuff of legend and an obvious favorite in a popular culture ever in search of quirky, new animal mascots.
In part because of their singular fame, a symbolic impediment to treating them as a common invasive pest was introduced in October, when a U.S. judge recognized their status as “interested persons,” which at least (in principle) enables them to exercise their legal right to obtain information in a U.S. legal trial. This ruling is not enforceable in Colombia, but it is a milestone in U.S. law and pushes the idea that the Earth is a political community composed of all sorts of “persons”—only some of whom are human.
Escobar’s hippos are far from unique (at least with respect to their claim to personhood). Building upon his own 2010 article, “Legal Personhood and the Nonhuman Rights Project” (Animal Law 17/1), the philosopher and animal-rights activist Steven Wise has spearheaded a movement for animal freedom that has successfully used the writ of habeas corpus to secure it—a writ that generally presupposes of the entity whose freedom is being sought that it is a “person.” Following Wise’s strategy, in 2018 a group of philosophers wrote a brief in support of two captive chimpanzees, Tommy and Kiko, arguing that they “satisfy the criteria [for personhood] and are entitled to habeas corpus relief.”
As early as 2004, before the Nonhuman Rights Project had begun, a landmark case known as The Cetacean Community vs. George W. Bush asked an American court to decide whether marine mammals have the legal standing necessary to bring a suit in their own name. Again, the presumption is that such legal standing flows from personhood, even if until recent years this did not have to be made explicit, since the kind of persons brought before the court were consistently those we take to be paradigmatic: human beings.
The expansion of the legal category of “person” in this way may look like an opportunistic bit of wordplay, redefining a term in a way that satisfies certain immediate goals but without any real requirement that the new definition wins broad assent—or even that it seems intuitively plausible to anyone. In fact, however, the broadening of personhood to include some nonhuman entities is not so much a recent adaptation of an old legal concept as it is a return to an even older one.
The expansion of the concept of “person” was perhaps always inevitable. Like the creative definitions of gambling in at least some U.S. states—designed to carve out a legal niche for riverboat casinos while prohibiting the same activity on terra firma—legal personhood for nonhumans was an available loophole that someone was always bound to try to jump through. If you are looking to secure protections for certain beings or environmental features that are otherwise at risk of exploitation, winning the status of person for them is a good way to get what you want.
For a long time, the only way under the law to protect an animal from wanton abuse was to characterize the abuse as harm to property, essentially no different from the sort of law that prevents you from smashing your neighbor’s wheelbarrow. As for morality, if it was to enter into question at all, it was indirect incitement to moral depravity brought on by abuse of animals that justified any prohibition on harming them. Thus, philosopher Immanuel Kant insisted it is indeed wrong to harm domestic animals, but this still does not require us to suppose these animals are, as he would say, “ends in themselves.” They can only ever be means to distinctly human ends while a child who grows up torturing these “means” is, at worst, going to be more prone to abusing human beings later in life—animal torture as a gateway to human torture—or, at best, is going to be stunted in his or her overall moral development.
In any case, such indirect protection generally only extends to domestic animals while the vast majority of animals belonging to the category we call “wildlife” cannot be protected as property because, by definition, they do not belong to anyone. Over the course of the 20th century, significant subcategories of wildlife would come to be legally protected as part of large-scale conservationist efforts. But the concern here was at the population level rather than the individual and typically implied no commitment to the irreducible worth, however that may be conceived, of any individual member of a given protected species.
For example, gorillas, it appears to many, are sufficiently like human beings in deserving not to be harmed for the same reasons we deserve not to be harmed: not because we belong to someone else and not because our species is at risk of disappearing (though this is, in fact, also the case for gorillas) but because we are—however one might wish to flesh this out in theoretical, metaphysical, or even religious terms—intrinsically worthy beings. The best way to recognize this apparent truth in law has been to reclassify gorillas—perhaps to “promote” them to the status of person as has been done with varying degrees of success in several European countries, New Zealand, and Argentina.
So far, this is the easy part. Again, the case for gorilla personhood has typically been made on the basis of an evident similitude of internal capacities they share with us. Even hippos have what appear to be big smiling faces and plainly love to eat, so they come across as (in certain salient respects) relatable. But no one, at least no one directly involved in modern states’ law-making institutions, will make a similar argument for rivers and mountains. Rivers, it is generally believed, have no internal capacities at all. They are not subjects. To adapt an expression from philosopher Thomas Nagel, there is nothing that it’s like to be a river.
Yet today, at least some rivers have been reclassified as persons too. To bring such a river harm is to harm a person, a being that ought to be considered an end in itself with inalienable rights and intrinsic worth. In other words, some legal systems are now treating rivers as subject entities nearly universally recognized as lacking any subjective existence at all.
If it sounds as if the law is stretching concepts beyond their natural usefulness, it is worth recalling that nonhuman persons have been around for a long time, and it is only in the most recent era that we have begun to assimilate “person” and “human being” as synonyms. The term “persona” in Latin originally signified “mask” and, by extension, a “role” one might take on in a theatrical performance. Thus, the dramatis personae, literally the “masks of the drama,” are simply the roles in a play.
Nor was it traditionally believed that only human beings could don such masks. Outside of the context of drama, in the Roman Republic, personhood was commonly extended to municipalities and voluntary associations. This entailed, among other things, that such collective bodies had rights and responsibilities independent of their individual members. They were not themselves individual human beings, but they donned a mask, so to speak, by which they presented themselves to the world as singular characters…
We may thus still ask whether the personalization of nature is only a useful fiction enshrined into law. It is useful to recall here the somewhat “animistic” roots of personhood in Western tradition as well. A natural person for Hobbes is someone who speaks for him or herself; an artificial person is someone who speaks for another, whether that be another individual person or any other entity or collection of entities… As environmental protection rapidly takes on a degree of existential urgency, whatever people believe about how the world works, there may indeed be some value in placing the mask of personhood on other entities than those who have been at the center of our attention for the last several centuries: to let rivers speak or to let people attuned to what rivers are speak for them. SOURCE…
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