Animal Personhood: The Legal Case
Julia Florey
AbstractIn the United States of America, and in much of the world, corporations are afforded a great deal of rights to both protect themselves and others against legal action and mistreatment. To gain these rights, they defended themselves or were defended many times throughout the years in courts under the framework of “legal personhood,” but this same legal personhood is not afforded to most actual living creatures. There is enough similarity in the legal framework afforded to corporations to afford these rights to animals, and more than enough evidence to show that it is increasingly necessary to protect and expand animal rights in this way. The argument is simple: because of their sentience, cognition, and emotional intelligence, animals deserve legal personhood. If we can make the argument that a corporation, which is incapable of these things listed above, should have certain unalienable rights, then it is illogical for us to make the argument that animals should not.
1. Introduction
Legal personhood refers to the treatment of a human or nonhuman legal entity as a person for legal purposes. A legal person attains both the power to participate in legal proceedings—to sue, be sued, enter into contracts, and own property—and, to a lesser extent, some of the rights afforded to natural persons as outlined in the Constitution. Also known as artificial persons, juridical entities, and juristic persons, legal persons straddle the boundary between inanimate object or property and full, natural persons with all the associated rights and privileges thereof, whatever they may be.
In the last fifteen years, the concept of legal personhood has gained significant relevance in the United States with the judicial recognition of corporations as legal persons. Following on the heels of a long line of legal precedent, the decision to afford corporations legal personhood status ushered in a new age of understanding and debate surrounding what it means to be considered a person under the law. In the wake of this discourse, the question presents itself: if corporations are considered people for the sake of delineating their rights, privileges, and responsibilities, should other beings—ones with sentience and cognitive abilities—receive similar treatment?
Under the current system, corporations have a certain amount of legal personhood that affords them specific rights and protections [1]. While legal personhood means corporations can be held responsible for criminal activity, among other forms of liability, it also means such entities have a voice and can speak in their own defense.
With that in mind, a deeper question arises: why does a “nonhuman” company deserve certain unalienable rights while animals are refused that same level of consideration?
To understand the context of this inquiry, this chapter seeks to fully understand the historical context of the legal personhood of corporations, of animal ethics ideologies, the breadth of current animal treatment and ethical campaigns, and ultimately what expanding animal rights might look like.
2. The legal framework of corporate personhood
Few modern legal developments have gained as much attention and sparked as much controversy as the move to recognize corporations as persons under the law. In 2010, a watershed moment in the expansion of corporate rights occurred when the Supreme Court issued its decision in Citizens United v. Federal Election Commissioner. The opinion, decided by a five-four majority of justices, held that corporations could not be prohibited point-blank from exercising independent political expenditures over the course of an election campaign, reasoning that such a prohibition violates First Amendment guarantees to freedom of speech. [2]
Under the mantle of legal personhood, corporations thus gained the right to limited free speech in the campaign expenditure context. This is an example of a nonhuman legal person obtaining not only the right to participation in certain legal proceedings, but also one of the core protections traditionally reserved for natural persons under the Bill of Rights. Despite its transformative effect, the expansion of the rights of corporations has its roots in over two hundred years of history.
2.1 Historical evolution
The basis for legal personhood for corporations dates back at least as far as 1809 when the Supreme Court oversaw the very first corporate rights case in Bank of the United States v. Deveaux (1809). In this case, it was argued that “a corporation, composed of citizens of one state, may sue a citizen of another state, in the federal courts” [3]. The ruling stated that because a corporation is made up of certain individuals who deserve rights, just as a court is made up of individuals who have rights and make decisions as a group, a corporation deserves certain rights as well. This case ruled in favor of the corporation, which laid the groundwork for legal personhood for corporations in future cases.
In 1886, Chief Justice Morrison Waite argued in Santa Clara County v. Southern Pacific Railroad Company (1886) that corporations deserve equal protection under the law as human beings under the Fourteenth Amendment [4]. While this was not the main issue being defended in this case, the statement became a cornerstone argument as the legal basis for arguing for the legal personhood of corporations in future cases, such as First National Bank of Boston v. Belloti (1978), which granted corporations protection under the First Amendment to spend money on political initiatives [5].
The decision in Belloti featured heavily in Citizens United v. Federal Election Commission, the largest legal expansion of corporate rights in the history of the United States. Because there was already so much groundwork working in favor of the legal personhood of corporations from these past court decisions, there was little that could be done in a legal sense to prevent further rights from being granted.
2.2 Implications of corporate personhood
Corporations today can enter contracts, borrow and loan money, sue and be sued, pay taxes, hire employees, own assets, and be held responsible for violations of the criminal law. But the rights and responsibilities of corporations go beyond those required to do business and participate in legal proceedings—the modern American corporation also benefits from constitutional protections such as the right to free speech, freedom of religion, due process, equal protection, property rights, and the right to privacy [6].
If this list sounds familiar, it may be because every American civil rights movement in history has implicated one or more of the above rights, which we consider core pillars of American liberty, equality, and democracy under our political system. What makes legal personhood for corporations unique, however, is that it recognizes the existence of various protections—including core “human rights”—as applied to nonhuman and in fact wholly noncorporeal entities.
3. Animal ethics and the case for rights
The recent attainment of increased protections on behalf of corporations proves that an entity need not be human to assert and benefit from certain rights under the law. In the spirit of this recognition, animal rights advocates have been experimenting with legal rights for animals for centuries.
3.1 Historical context of animal protections
Contrary to the beliefs of many members of certain political and religious ideologies, the animal rights movement is also not a recent development. In fact, some of the earliest official legal protections for animals date back as far as the early 1600s, long before the American Constitution or the American Bill of Rights were ratified.
3.11 Early legal protections
In 1635, the Act Against Plowing by the Tayle, and Pulling the Wooll Off Living Sheep was passed by the Parliament of Ireland [7]. This Act made it a punishable offense to force horses to pull ploughs by their tails, which the act argued was cruel, as well as cruelly pulling the wool off of living sheep, rather than clipping or shearing the wool. In 1641, the colony of Massachusetts passed the Massachusetts Body of Liberties Act, which included rules banning cruelty against animals [8]. The text read:
No man shall sexercise any Tirranny or Crueltie towards any bruite Creature which are usually kept for mans use… If any man shall have occasion to leade or drive Cattel from place to place that is far of, so that they be weary, or hungry, or fall sick, or lambe, It shall be lawful to rest or refresh them, for a competent time…
3.12 Philosophical underpinnings
Early instances of the recognition of animal rights are reflected in philosophical writings as well as legislation. In 1789, for example, philosopher, jurist, and social reformer Jeremy Bentham argued that because animals contain the capacity to suffer, no other justification for affording them rights is required. Bentham wrote, “The question is not, Can they reason? nor, Can they talk? but, Can they suffer? Why should the law refuse its protection to any sensitive being?” [9].
The reverberations of this argument sound throughout modern American jurisprudence, demonstrating the intuitive persuasiveness of Bentham’s reasoning. Even as recently as 2016, American courts ruled in favor of the existence of sentience in animals. As noted by the State Supreme Court of Oregon in the landmark case, State of Oregon v. Newcomb (2016), animals are “sentient beings capable of experiencing pain, stress and fear” [10].
3.2 Sentience and emotion: a scientific lens
For animal rights advocates and ethicists, sentience is perhaps the benchmark against which moral and ethical status is measured. The generally accepted definition involves a being’s capacity for subjective experiences with positive or negative valences; in other words, the ability to experience feelings like joy, pleasure, pain, and fear [11]. Given the stakes of gauging whether and to what extent animals possess meaningful sentience, animal rights advocates have turned to science in the hopes of finding objective evidence that animals feel—that they are capable of experiencing their reality in terms of positive and negative emotions and sensations.
3.21 Evidence of sentience in dogs
Gregory Berns, an American neuroscientist, sought answers to the animal sentience question by deciding to map the brain activity of dogs. In his 2013 study, Berns trained dogs to be able to receive MRI scans so that researchers could accurately study their resting brain activity. During the study, researchers gave these dogs all the rights that human children would receive in such a study, including legal approval from the human guardians of the dogs and the ability of any dog that panicked or decided they did not want to continue participating once in the MRI machine to leave the study completely.
What they discovered is undeniable evidence of animal sentience and the ability of animals to exhibit emotion, including striking similarities between the minds of dogs and those of children. Berns (2013) wrote, “The ability to experience positive emotions, like love and attachment, would mean that dogs have a level of sentience comparable to that of a human child” [12].
3.22 The moral and ethical implications of animal sentience
Such scientific findings prompt further analysis along moral and ethical dimensions, including calls to reexamine previous frameworks for understanding humanity that falter in light of new evidence:
The word “animal” has become problematic for many in the contemporary period because, among other things, it glosses over the great diversity of life in the service of differentiating that which stands ostensibly outside it: the human. It is often used in such a way as to point unquestionably to a condition from which humanity is categorically exempt and, it is argued, thereby permits us to think about and act toward real, live animals in ways that would be unethical if directed toward humans. It is now commonly argued, on many fronts—from evolutionary biology to moral philosophy—that the human/animal demarcation has no ontological basis and should be discarded and superseded by a less anthropocentric classification [13].
4. Legal personhood for animals: ethical considerations and challenges
Just as a working definition of sentience is necessary in order to evaluate claims that animals belong to a category of sentient beings—a category which potentially confers upon them increased rights and legal responsibilities—so too must we agree on the meaning of “personhood” before applying it or arguing against its application in a given case.
Pierce (2011) wrote:
Various capacities are said to signify personhood: minimum intelligence, self-awareness, self-control, a sense of time, a sense of futurity, the capacity to relate to others, “personality” (as a collection of attributes). The problems with this kind of list-whether we require all of these capacities for personhood, or just one or another-are threefold: at least some animals fulfill all of these criteria, certain humans clearly fail in at least some categories, and traits like “ability to relate to others” or “futurity” are dangerously imprecise and open to interpretation. Nevertheless, personhood remains a potent concept in bioethics. And the concept is routinely misused to exclude animals from the class of beings with moral worth [14].
There is little logical argument against the sentience of animals, and it is clear they have the ability to feel complex emotions, including immense pain and suffering. While sentience may not be sufficient grounds for recognition of personhood (as mere sentience does not grant personhood to other living things), it is worth asking whether sentience shouldn’t be considered the foundational spark of legal personhood that ignites corresponding reform.
4.1 The legal status of animals
Currently, animals have the same legal status as most land, plants, and inorganic materials—they are considered property under the law. As such, animals have little or no legal rights of their own. The movement to recognize animals as legal persons—less deserving of full legal rights than natural persons but more in need of them than, say, a piece of furniture—would take animals out of the category of legal property devoid of inherent rights and into new territory.
4.11 Animals as property: limitations and consequences
It is difficult to imagine significant progress being made in the fight for animal rights when many courts refuse to accept animals as anything more than property, but this is also where many opinions, and thereby court cases, split. Most people can agree that animals are more than “property,” but those same people struggle to accept the full extent to which animals truly deserve rights.
Still, there are far more issues that need to be addressed, and more and more seem to be popping up all the time. As the Animal Legal Defense Fund (2020) noted:
Despite the groundbreaking leaps forward in our understanding of the intelligence and rich emotional and social lives of nonhuman animals, animals are still defined within the United States legal system as property – more akin to inanimate objects than living beings. This status significantly limits their legal protections from cruelty and neglect [15].
Because they are legally viewed as property and not as having any sort of sentience or legal personhood, it makes it nearly impossible to bring forth any major legal cases to defend their rights. Examples of this include the viral stories of animal cruelty within the airline industry, as headlines told numerous stories of animals dying while in the care of airlines, including a twelve-week-old terrier that was found dead after Delta Airlines transported him from a breeder to a new family across the country [16]. The stories that followed revealed the depths to which animals are treated as cargo rather than living beings, but despite these stories, airlines have made little change their policies to protect animals or make it easier for them to travel.
An even larger argument could be made in reference to the treatment of animals in experimentation, not only in the name of science, but also in terms of cosmetic testing and other non-essential, indescribably cruel types of experimentation. Innumerable publications have been written describing the cruelty and, at times, unnecessary testing of living animals, but just as the dogs mentioned above, there is no federal legal protection for most animals in these situations, despite the best efforts of animal rights groups.
In a general sense, the public usually views the ethics of animal experimentation as “in the benefit of human beings” because it is used to “improve life for their own species” [17]. In a social sense, entities that engage in these practices may undergo losses or public scrutiny if examples such as the ones mentioned here go viral, but this often does very little to protect animals in the long run and is quite often not much more successful than “cancel culture.”
4.12 Recent legal cases and their implications for animal rights
There is legal groundwork for protecting animals from pain and cruel treatment, but that does not necessarily mean that a majority of the civilized world is on board with their protection, let alone their legal personhood. As Zelman (2012) asserted, the controversial group People for the Ethical Treatment of Animals filed a case against SeaWorld in 2012, claiming that keeping orcas and forcing them to work was equivalent to slavery, and therefore violated the Thirteenth Amendment. The judge vehemently denied this notion, writing “the only reasonable interpretation of the Thirteenth Amendment’s plain language is that it applies to persons, and not to non-persons such as orcas” [18]. Furthermore, even studies such as Berns’ MRI experiments on dogs are quickly brushed aside. Greenwood (2017) argued that there is still so much discussion arguing against a more humane treatment of animals. Critics of Berns’ experiments say they don’t tell us anything new about the brains of dogs. One critic stated, “We already knew that dogs were special” and noted that they are able to:
Track all sorts of things that we find emotionally salient. But none of that means that we should protect dogs because they’re persons. I think that we shouldn’t make dogs’ lives miserable, and that we shouldn’t cause them pain or abandon them… but that’s because they are dogs [19].
This argument is where many opinions split. A majority of the human population in the modern world will say that they believe animal cruelty is wrong, but they believe that only insomuch as they believe that animals feel pain, but do not follow that belief that animals deserve legal personhood or any greater protection of rights. For example, in 2020 California stepped up efforts to crack down on puppy mills because of cruelty and mistreatment concerns [20], and Florida voters made history in 2018 when they voted to ban dog racing, ending decades of greyhound racing in the state that has long been considered a cruel industry [21].
4.2 The philosophical, ethical, and moral landscape
The substantive contents of the protections, rights, and to a lesser extent responsibilities of animals depend largely on the theoretical underpinnings of such measures. Is the justification—or obligation—for affording legal protections to animals religious? Ethical? Charitable? Practical? Does it arise out of a natural rights theory of “common dignity,” perhaps? Is it politically mandated in order to uphold the guarantees preserved in documents such as the Constitution or Universal Declaration of Human rights? The answers to these questions will ultimately define the contours of whatever new world emerges out of the ever-shifting legal landscape.
4.21 The distinction between animal welfare laws and inherent rights
In cases regarding the personhood of animals, the question that continues to return to the courts is how we can overcome the current place that animals hold in society? How do we jump from their consideration as nothing more than property to achieving legal personhood? The National Anti-Vivisection Society (2018), a UK-based animal rights non-profit, posed the question:
Are animals better served through animal welfare efforts, or is their protection a matter requiring animals to have rights? You may ask, “What is the difference?” Historically, animals have been protected through animal welfare laws. This position recognizes the basic principle that animals are property and that someone—or something in the case of the government (wildlife) or an institution (animals used for research or food)—owns these animals. A theory that relies on welfare laws believes that animals can be well protected by the passage of laws that prevent or minimize their suffering. This includes the passage of strong laws barring abuse, torture and neglect, as well as laws to prevent suffering inherent in the use of animals for research and food production. An alternative theory is that animals should be granted inherent rights, that they should have a basic right to be free from unjust confinement and bodily harm. This right would allow animals, through human advocates, to bring a suit on their own behalf to obtain a better quality of life, though not necessarily freedom. In 2018, the issue of inherent rights is one that has achieved greater prominence and is currently vexing courts across the country with efforts to expand the traditional designation of animals as “property” to something much more. The Oregon Supreme Court has already recognized that animals are “sentient property” (a sentient being is one who is able to perceive or feel things), as have other jurisdictions in the United States. But is this recognition enough, or is it necessary to eliminate the designation of “property” altogether in order to best protect animals from harm [22]?
4.21 Natural rights: the Universal Declaration of Human Rights and international Earth Charter
The Universal Declaration of Human Rights, a milestone document adopted by the United Nations in 1948, emphasizes the importance of dignity. Chapple (2017) asserted that the Declaration allows all humans equal dignity and rights and that because they are “endowed with reason and conscience,” they should act towards one “in a spirit of brotherhood.” Chapple noted that Article 3 of the Declaration includes the right of all human beings to “life, liberty and the security of person,” Article 4 declares that no human being “shall be held in slavery or servitude,” and Article 5 declares that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”
Chapple went on to say that “although nonhuman animals are not mentioned in the Declaration, research about animal cognition has revealed that, in their own fashion, nonhuman animals deserve to be treated with dignity and without cruelty.” Chapple made special mention of the international Earth Charter, which uses the Declaration of Human Rights as a basis to argue for the protection of life in any form.
In Section 15 of the Charter, it makes three crucial arguments for the protection of animals: (a) prevent cruelty to animals kept in human societies and protect them from suffering; (b) protect wild animals from methods of hunting, trapping, and fishing that cause extreme, prolonged, or avoidable suffering; and (c) avoid or eliminate to the full extent possible the taking or destruction of non-targeted species. Chapple also argued that many world religions hold animals in even higher regard than humans, and that some species of animals are considered holy and worthy of worship [23].
5. Moving toward legal recognition of animal personhood
If it can be assumed that animals have sentience and individual cognitive abilities, then animals deserve, the argument goes, at least the same level of rights as corporations. Corporations, after all, have no sentience, no capacity to experience suffering, and technically “exist” only in a legal sense. If animals are sentient, cognitive beings that can process emotion, feel pain, and have the capacity for memory, then we must consider whether they deserve legal personhood in some form. In a legal sense, it is hard to argue that corporations do not deserve these rights because the precedent was indelibly established. With these formulations having long been established, it is difficult to contradict, vary, or add to the conception of the corporation as person. However, looking at the nature of how these corporations gained personhood gives us a better understanding of why, if corporations deserve rights as living beings, there is a basis of argumentation for the rights of animals as living beings in a legal sense as well.
5.1 The argument for legal personhood
It is clear that, in a legal sense, the American government and much of the world views corporations as deserving of more rights than animals. The argument has been made over and over that corporations have legal personhood because they are made up of humans, but it cannot be argued that corporations can feel pain or have any form of sentience. Even if humans undergo pain or a loss of rights by way of a corporation or harm brought against a corporation, it is not the corporation that feels the pain; it is the humans that make up the corporation. Because of existing legal frameworks, the legal personhood of corporations cannot be removed.
However, there is more than enough framework to argue that animals deserve, at the very least, consideration of their own version of legal personhood that would allow them protections from these cruel and unusual treatments, such as those outlined above. Unlike corporations, they do feel pain, they do carry within them an undeniable sentience, but they are often mistreated and abused to a far greater extent than corporations are even capable of experiencing. In this sense and for this very reason, nonhumans deserve legal personhood status and nothing short of expansion of their rights.
5.2 Proposal of legal framework and reforms
The time is ripe for an extensive reimagining of the rights and protections of animals under the law. Below is just one example of the many reforms that would be possible if legal personhood for animals can be achieved.
5.21 The Animal Bill of Rights: key provisions and objectives
One challenge that arises in opposition to conferring independent and inherent rights on the animal population is the same argument that has arisen throughout time: animals are not people. Animal rights advocates argue that the only way to change this ideology is to continue the work of animal rights activists to increase those rights and move towards that desired legal personhood. One such movement is the Animal Legal Defense Fund’s Animal Bill of Rights, which would grant animals an established legal framework for their future defense, including:
The right of animals to be free from exploitation, cruelty, neglect, and abuse.
The right of farmed animals to an environment that satisfies their basic physical and psychological needs.
The right of animals to have their interests represented in court and safeguarded by the law of the land.
The right of animals used in laboratories not to be used in cruel or unnecessary experiments.
The right of wildlife to a natural habitat, ecologically sufficient to a normal existence and self-sustaining species population.
The right of companion animals to a healthy diet, protective shelter, and adequate medical care [24].
While this would still allow room for animal mistreatment and abuse, it could lay the vital groundwork for future expansion of animal rights, just as the Constitutional Bill of Rights did for humans and for the legal personhood of corporations.
5.22 Legal reform: objections and potential challenges
Without the unifying requirement of natural personhood to delineate the consistent application of constitutional protections, legal scholars must eventually come up with a replacement framework for clearly establishing the boundaries of constitutional rights. Corporations were the first nonhuman entities to benefit from expanded applications of legal rights but will surely not be the last. From Artificial Intelligence (AI) and Machine Learning to quasi-sentient organisms like fungi, questions will continue to arise in response to every new group considered for increased protection in the form of legal personhood. For this reason, it is all the more important that legislators, policymakers, legal scholars, and rights activists take the time to ask the difficult questions—beginning with the obvious logical next step in the legal personhood inquiry.
Reformers and decisionmakers alike may be resistant to expanding the categories of entities eligible for legal personhood in fear of going too far or producing absurd results. For those unwilling to entertain claims to personhood by, for example, AI programs, legal personhood for animals may still present a realistic and narrow option for legal reform. This is because, unlike any movement for AI personhood or similar that might emerge in the future, the fight for animal rights has deeper historical roots and is arguably less radical in its implications than awarding legal personhood to corporations.
After all, corporations themselves have only existed in America since the 1790s and have significantly less in common with humanity than do animals, from which we originally evolved. To “expand” the concept of legal personhood in order to confer limited legal protections on animals, therefore, would be less of a revolutionary leap forward and more of a course-correction intended to go back and retrieve those entities originally and illogically left out of efforts to expand legal personhood. Thus, fears that including animals among those worthy of legal protections will set a dangerous precedent are largely unfounded, for the comparatively extreme precedent has already taken hold.
6. Conclusion
Corporations have gained legal personhood through a long chain of narrow judicial decisions, building off of previous legal precedents that have evolved over time to create the legal personhood that corporations now enjoy today. If we as a society can logically conclude that corporations deserve certain undeniable rights, then at the very least, a similar consideration and legal treatment must be given to animals. If animals are sentient, feeling, thinking beings that are capable of thought and emotion, then they deserve certain unalienable rights in the form of legal personhood. If we can make a logical argument that corporations have a basis for legal personhood, then it is illogical, even irresponsible, for us not to seriously make the same inquiry with respect to animals.
Animal rights activists and those in service of animal ethics understand that animals will likely never be viewed as people. While some in that community yearn for this kind of legal consideration, many simply desire greater consideration to be shown to animals in terms of protecting them from cruel treatment. If it was possible to widely and efficiently expand the rights of animals, then it could pave the way for improved animal treatment across the globe. If corporations can be protected as individuals, then it makes sense that animals deserve the simple considerations listed above. If we could, in a legal sense, simply begin observing certain unalienable rights for those who have proven to possess sentience, cognitive prowess, and the capacity for memory—the very things that make us human—then the world would be a much better and safer place for us all.
References
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Posted Apr 29, 2024
Drawing from Professor Jason Kight's source material and arguments, I drafted the following chapter for submission in Animal Welfare, an IntechOpen textbook.
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