Legal personhood

Following Francione’s critics about the fundamental weaknesses in the rights granted to animals under the property regime, ingenious theories of legal personality have been

280 Favre, 2010.

281 Idem.

282 Idem

283 Idem.

elaborated to try to explain what distinguishably makes an entity a legal person under the law, and therefore a holder of rights. By accommodating animals in the category of legal persons, the scope and nature of rights of which they are recipients could be naturally significantly broadened. The paradigmatic understanding of the concept of legal personality is the ability to hold both rights and duties under the law²⁸⁴. In this view, natural persons and corporations are granted legal personality. However, only already born, alive, and sentient human beings can be considered natural persons. Visa Kurki offered a unifying account of personhood that disentangles its notion from the capacity to hold legal rights²⁸⁵. As he argued, the problem with the traditional understanding of personhood relies on the fact that it does not explain many ongoing debates related to the concept of legal personalities, such as the legal status of animals and foetuses, for example²⁸⁶.

More traditional theories understand legal persons as holders of rights. According to Kramer’s ‘interest theory’, rights can be granted to all those that have interests, which accommodates the notion of foetuses and sentient beings as right-holders²⁸⁷. However, although both foetuses and animals have acknowledged legal entitlements in many jurisdictions, they do not necessarily hold legal personalities. Accordingly, analysing this argument I conclude that who (or what) holds the rights are not necessarily whom we consider to be legal persons, which in my view invalidates the interpretations that purely correlate the rights-holding capacity with the concept of legal personhood.

In the People ex rel. Nonhuman Rights Project, Inc. v. Lavery case, the New York Supreme Court resorted to the traditional view of legal personality in the decision that denied the chimpanzee Tommy the writ of habeas corpus pleaded by the Nonhuman Rights Project (NhRP) against the research institute that was keeping the animal²⁸⁸. The

284 Kurki – Pietrzykowski, 2017, p. 69

285 Kurki – Pietrzykowski, 2017.

286 Kurki – Pietrzykowski, 2017, p. 77

287 Kramer, 2001.

288 People ex rel. Nonhuman Rights Project, Inc. v. Lavery, No. 518336, 2014 WL 680276 (NY AppDiv Dec. 4, 2014). Available at: https://www.nonhumanrights.org/content/uploads/Appellate-Decision-in-Tommy-Case-12-4-14.pdf

NhRP has taken various cases before the United States Courts, in which it has litigated on behalf of individual great apes’ personal liberties. Through such lawsuits, the NhRP enhanced the discussion about whether the mental sophistication of these animals is a sufficient condition for them to be granted legal personality under the law, and consequently, to be subjective of more specific rights. The argument used in the occasion referred to the contract theories of rights, in which rights are granted to the extent that social obligations and duties are simultaneously imposed. The judge concluded that because a chimpanzee has no societal responsibilities, it could not be granted a legal personality and the rights attached to it. ²⁸⁹ Nonetheless, the problem within this argument is that neither mentally incapacitated persons nor young children are either expected to have social duties or obligations, although both are indisputably considered legal persons.

Therefore, holding of either a right or a duty is not a sufficient explanatory condition to interpret what makes an entity a legal person under the law. If a company, a river²⁹⁰, and other inanimate things have already been recognized as legal persons by the law, there might be theoretical explanatory reasons for intelligent sensitive beings such as great apes to be comparatively acknowledged legal personalities as well. One interesting alternative interpretation of legal personhood is through what Kurki called the ‘incidents of legal personality’, which are certain legal entitlements and burdens, that encompass the incident of being the subject of legal protection as a potential victim²⁹¹. He proposed that, instead of being the holder of rights and/or duties, incidents of legal personality are what distinguishably characterizes legal persons. In order to be understood as a legal person, an entity should be the holder of one (or a set of) these incident(s)²⁹². In this case, not only great apes but other animals which are subjects of certain legal entitlements protection could possibly be considered legal persons.

289 People ex rel. Nonhuman Rights Project, Inc. v. Lavery, No. 518336, 2014 WL 680276 (NY AppDiv Dec. 4, 2014). Available at: https://www.nonhumanrights.org/content/uploads/Appellate-Decision-in-Tommy-Case-12-4-14.pdf

290 One of the cases in which a river received legal personality took place in New Zealand in 2017. A Maori tribe won a judicial decision that recognized the Whanganui river as a legal person. The Guardian.

Available at https://www.theguardian.com/world/2017/mar/16/new-zealand-river-granted-same-legal-rights-as-human-being.

291 Kurki – Pietrzykowski, 2017, p. 85

292 Kurki – Pietrzykowski, 2017, p. 85

What is relevant about personhood theories under the scope of this thesis is understanding that society has the ability to change who is a legal person over time. Different legal persons might receive different categories of rights, and this is not a static definition. For instance, while women have always been legal persons, until not long ago they could not vote and, in many other forms, were not treated the same as men. Therefore, the legal system is capable of encompassing different legal persons with different sets of rights.²⁹³ Following this assumption, legislatures have the ability to decide that some animals, but not all animals, should possess some rights, but not all possible rights²⁹⁴. This could happen through acknowledging the legal personhood of a specific group of animals or even only by accommodating animals in an entirely new legal status, such as suggested in Favre’s theory of living properties.