According to the courts and recent rulings, only humans capable of abstract reasoning about moral behavior can be considered to have sufficient moral agency to hold rights. Some animal protectionists argue that animals should have these rights and be protected despite their lack of cognitive abilities to act as moral agents, just as many humans (e.g., children and those with cognitive impairments). For some others, animals’ likeness to humans lies in their sentience, not in their cognitive capacities, in order to be included in the moral community and reflected in the law in the form of rights. All these views should be reconsidered in light of emerging scholarship revealing that the type of moral decision-making exhibited by many animals is comparable to that of humans (see Frans de Waal). Thus, in making a case for legal rights and protection, it may be more fruitful to consider whether animals have moral consciousness that leads to morally based behaviors. If they do, their ability to make and act on moral decisions may render our failure to protect them as legal persons unconscionable.
TAIMIE L. BRYANT: In an essay titled Should Animals Be Able to Sue People?, Professor Sherry Colb considers Justice v. Vercher, a lawsuit brought by Justice, a horse seeking damages for injuries resulting from his previous owner’s gross negligence. Gwendolyn Vercher had already been convicted of animal cruelty and paid the statutorily required restitution, but that restitution was limited to costs incurred for Justice’s care up to the time of the hearing. Justice will need specialized lifelong care. Represented by the Animal Legal Defense Fund, Justice brought suit in his own name for monetary damages sufficient to cover those costs. Vercher responded with a motion to dismiss on the ground that Justice lacked standing to sue her.
Among other arguments in opposition to the idea of Justice having standing to sue, Colb considers the argument that Justice is not a “legal person” because he lacks the ability to fulfill legal duties, which is frequently viewed by courts as necessary for holding legal rights… Rather, for Colb, animals’ likeness to humans lies in their sentience, not in their cognitive capacities or their ability to perform legal duties to others. Thus, they should be included in the moral community, and their membership in that community should be reflected in the law in the form of rights and standing to enforce those rights…
Whether an animal can be a legal person was raised also in the case of Happy, an elephant living a solitary life in a grossly insufficient enclosure at the Bronx Zoo. Unlike Justice’s case, Happy’s case was not grounded in tort law. Seeking Happy’s transfer to an appropriate sanctuary, the Nonhuman Rights Project filed a writ of habeas corpus petition on her behalf. Two lower courts rejected the petition on the ground that the writ could not be used for nonhumans because they are not legal persons, basing their decisions on the jurisdiction’s precedent established in a habeas case involving a chimpanzee. The Nonhuman Rights Project filed an appeal in the New York Court of Appeals, seeking to challenge that precedent and to secure for Happy a writ that would allow justice to be done in the form of moving her to a sanctuary where her needs could be met. However, the New York Court of Appeals ultimately adopted the reasoning and outcome of the lower courts…
To animal protectionists, legal recognition of animals like Justice and Happy as legal persons is a matter of social justice, whether or not they have legal rights. The Nonhuman Rights Project’s legal representation of Happy resonates most strongly with that position since the writ of habeas corpus had been used previously to promote justice for those who lacked legal rights.
It is a conception of justice that connects legal structures to “natural law,” with humans as its focus. Animals are not humans, and so animal protectionists must make three arguments to support the claim that animals should be protected as a matter of social justice. First, they must argue that animals are sufficiently like humans such that justice requires treating them alike. Second, they must argue that “like treatment” means bearing legal rights. Third, they must argue that justice also requires legal opportunity to enforce the rights they hold. No animal protectionist has ever argued that comparability to humans should result in the same rights that humans hold. For instance, no one has yet argued that animals should have legal voting rights, although Christopher Stone and Robin Wall Kimmerer have come close.
As to the first matter—sufficient similarity to humans—animal protectionists have argued that animals are similar enough to humans because of sentience or cognitive capacity. Treating sentience (the capacity to suffer) as the standard of comparison results in the inclusion of the most animals in the moral community but limits the reach of legal rights to preventing the infliction of suffering. This is the standard basis of state anticruelty statutes, although any amount of human-inflicted suffering is allowed under those laws if there is “necessity.” “Necessity” sweeps broadly to include any treatment or use of animals that benefits humans. Thus, anticruelty statutes protect only against purely gratuitous, senseless infliction of severe suffering and death. Moreover, as the Vercher case shows, animals lack standing to use the law even in those situations.
Advocacy for animals based on their similar cognitive capacity to humans covers fewer types of animals, although the types of animals demonstrated to have such capacity have grown to include species as diverse as whales, elephants, dogs, and bees. As in the case of sentience as a basis, recognition of the human-like cognitive capacity of some animals has resulted in very few legal benefits specific to that ability. For instance, primates can still be used in experiments without restraints on research design that requires their enduring horrific suffering, and elephants can still be kept in cramped enclosures, but their housing must include opportunities for intellectual stimulation. Unfortunately, the animals themselves and those who care about them lack standing to enforce even those limited protections…
At the heart of the argument that animals must be able to bear legal obligations in order to have rights is an argument about moral agency. As Matthew Kramer has written, “[t]o bear a legal obligation is simply to be placed under it,” and meaningful comprehension of the obligation is a “separate matter.” As it stands, billions of animals are placed under the obligation to serve the interests of humans in research, entertainment, and food production. What is meant by “holding duties” in this context is actually “voluntarily and knowingly holding duties as morally binding obligations.” Even for humans, this is not particularly convincing, but where animals are concerned, a deeper problem arises: animals are not believed to be capable of holding duties as a moral matter at all because they are not understood to have moral agency. Only humans capable of abstract reasoning about moral behavior, along with members of the archetypal class of humans (such as infants and cognitively impaired individuals), are considered to have sufficient moral agency to hold duties and, thus, to hold rights.
Animal protectionists often accept the characterization of animals as lacking moral agency and use the argument from marginal cases to defend their view that animals should be protected despite their lack of moral agency, just as many humans — such as children and those with cognitive impairments — lack moral agency. However, this view should be reconsidered in light of emerging scholarship revealing that the type of moral decision-making exhibited by at least some animals is comparable to that of humans. Instead of focusing narrowly on whether animals can hold obligations and duties toward humans, who would, in turn, bear reciprocal duties toward animals, it may be more fruitful and just to consider whether animals have moral consciousness that leads to morally based behaviors. If they do, their ability to make and act on moral decisions may render our failure to protect them as legal persons unconscionable. SOURCE…
RELATED VIDEOS: