The traditional view of animal legal personhood assumes that the status of animals needs to change to that of persons before they can possess legal rights. An alternative approach construes the road towards it as a gradual transition rather than a revolution, where animals become increasingly visible in law when their existing simple rights are shaped to function more like the rights of humans.
EVA BERNET KEMPERS: Much of animal law scholarship has been concerned with questions such as (i) which animals should be granted legal personhood; (ii) which characteristic (for instance, autonomy or sentience) should guide this determination; and (iii) once legal personhood has been established, which rights should animals be able to claim. In a growing number of jurisdictions petitions of habeas corpus are being filed on behalf of animals, supported by a wide range of scholars via amicus curiae briefs, with the objective of gaining judicial recognition of animals as legal persons. However, judges seem particularly reluctant to provide conclusive answers to questions of legal personhood for animals. The main aim of this article is to propose an alternative non-judicial route to animal legal personhood…
The traditional view of animal legal personhood assumes that the status of animals needs to change to that of persons before they can possess legal rights. However, this view, which is defended by organizations such as the Nonhuman Rights Project, has certain shortcomings: it represents a binary conceptualization of the legal sphere, is potentially relevant for only a small group of animals, and arguably can be effectively implemented only in a limited number of jurisdictions. This article has proposed an alternative approach, which regards the road to animal legal personhood as a gradual transition through the legislature. According to this approach, animal legal personhood is regarded not as a condition for holding rights, but as the possible consequence of it.
This approach starts by recognizing that many animals already have simple animal rights as a matter of positive law, and suggests that it is possible to strengthen these rights in such a way that they might one day be regarded as fundamental rights, establishing those incidents of legal personhood necessary to ensure their efficient function. In place of the traditional Animal Rights Pyramid, I have proposed an Alternative Animal Rights Pyramid through which this alternative approach can be visualized. In this Alternative Pyramid, legal personhood is located not at the first level – the capacity to bear rights – but at the very top. Perceived as such, legal personhood would no longer be a first necessity. Rather, different animals might need just those incidents of personhood that are appropriate for them, depending on their relationship with humans.
A basic structure to establish incidents of personhood is already present in some jurisdictions, especially with regard to access to courts for organizations and the possibility of obtaining damages. Moreover, we have seen that animals increasingly are distinguished explicitly from other property in civil codes and in case law. Instead of dismissing these developments as merely symbolic as long as they do not explicitly endorse the traditional animal rights perspective, I propose to see them as important catalysts that might raise animals to higher levels of the pyramid, towards a status that approaches that of the human person…
While the Alternative Pyramid may seem less ‘revolutionary’ than the traditional version… it has several advantages. Conceptualizing the status of animals through the proposed lens would mean a pluralization of the legal realm, moving away from emphasis on the person (as legal persons are no longer the only valuable entities with rights) and questioning the assumption that we can decide on ‘rights’ of ‘the animal’ in a general manner (as there is a need to specify the animals in question, in order to determine which rights and incidents of personhood are appropriate for them).
A practical advantage that the alternative approach offers is that there is no longer a need firstly to reach consensus about those ‘hard’ questions that often obscure the quest for animal legal personhood, such as the question of which animals would be included and which would not. Instead, the focus shifts to determining those positive and negative obligations (from which rights would arise gradually) that ensure the flourishing of humans and other animals in the Anthropocene condition. SOURCE…
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