Legal Personhood: New Directions
Last time we examined the prevailing theory of legal personhood, according to which one is a legal person precisely when one possesses rights or duties. When combined with either the interest or the will theory of rights, we saw that this theory generates false positives and false negatives, respectively, and thereby fails as a theory of legal personhood.
In light of this, we looked at Visa Kurki's alternative account of legal personhood as a cluster concept composed of distinctively human rights and duties. However, satisfied as we might be with this account, we still might object to the existing legal bifurcation of entities into persons and property. After all, if we think that animals have some rights—but not a sufficient number of distinctively human rights to be classified as legal persons—they will be considered property, putting sentient beings with rights in the same group as mere things. How can this be right?
Stakes
Before looking to alternatives, it is worth asking just how much rides on our chosen classification scheme. Cass Sunstein describes the stakes of subsuming animals under the category of property as "a mixture of substance and rhetorical" (Sunstein 1999, p. 33). If animals being deemed property entails that they are subject to human domination and control, then this is a substantive issue. But Sunstein points out that ownership need not amount to domination and control since "we can imagine a situation...in which the right of ownership does not include rights to inflict suffering" (Id. at 34). Nonetheless, Sunstein points out an important rhetorical aspect: classifying animals as property may undermine their status as beings for whom things can be good or bad, beings who possess rights of their own. Indeed, this rhetorical effect may play a large role in the lack of enforcement of existing animal protections.
Tomasz Pietrzykowski (2017) maintains that the existing legal taxonomy reflects an attitude of juridical humanism, according to which law is created by and for human beings alone. This worldview fits nicely with a clean distinction between persons and property. But despite its historical prevalence, Pietrzykowski argues that this framework cannot accommodate two important trends: growing awareness of animals' moral status and upcoming developments in technology. Here we will just focus on the former. To avoid the status of a mere thing, animal advocates often push for the legal personhood of animals. But our foregoing discussion about legal personhood as a cluster of distinctively human rights and duties illustrates that this approach is wrongheaded.
So it seems that two options remain:
- We could adopt a new bifurcation while rejecting the category of legal persons, instead dividing the legal world into legal beings and property.
- We could reject a bifurcation altogether, maintaining the category of legal persons while introducing a third category of non-personal subjects.
From Legal Persons to Legal Beings
Kurki emphasizes the notion of distinctively human rights within his account of legal personhood. But even though humans must have at least some rights that (at least most) animals do not, we might reject the legitimacy of a privileged category just for humans.
Although he does not explicitly discuss legal personhood, political theorist Alasdair Cochrane's views are relevant here. Cochrane (2013) argues that human rights should be reconceptualized as a particular instance of universal sentient rights because there is no qualitative difference between human and animal rights. The basic argument is that human rights function to protect and advance interests necessary for humans to live a minimally decent life. But animals, too, can have rights grounded in their fundamental interests. So—on pain of anthropocentrism—there is no principled reason for us to place human rights in a special category.
This is not to say that all sentient beings should have the same rights. Indeed, not even all humans have the same rights. For instance, women but not men have the right to basic healthcare in pregnancy. Since needs and capacities will vary both across and even within species, so too will rights. The point is just that there is no principled reason to treat human rights as disconnected from sentient rights in general.
Similarly, one might argue that the category of legal persons is unjustified, since many non-persons may also have rights for the same fundamental reason: the protection and advancement of interests. Thus the category of legal persons ought to be replaced with the more general category of legal beings.
I think there is something to this idea. It emphasizes the fundamental differences between sentient beings and mere things, highlights the continuity between humans and animals, and yet still allows for distinctively human rights. But old habits die hard, and it is hard to imagine how such a radical transformation could occur anytime soon. In light of this apparent infeasibility, one might abandon the idea of replacing the category of legal persons, instead opting to add a new category in between persons and property.
Non-personal Subjects of Law
Pietrzykowski (2017) notes that since one need not be a legal person to have rights, there is conceptual room for an intermediate category between persons and property. We could resolve the issues with our existing legal ontology by introducing the category of non-personal subjects. Non-personal subjects would have the sole right to have one's interests taken into account. Unlike the account inspired by Cochrane, this taxonomy seems to endorse the idea of qualitative differences between human and animal legal rights. It suggests that legal persons have rights that cannot be reduced to the general right to have one's interests taken into account. However, it's worth noting that Cochrane's original argument about continuity between rights might hold only for moral rights. We might agree with Cochrane that there is no principled difference between human rights and the rights of other sentient beings within the context of morality, yet disagree about this total continuity within the context of the law. For instance, legal systems might provide legal persons some rights for purely logistical reasons, not only grounded in the protection and advancement of interests. Moreover, this tripartite classification points out that only legal persons can have duties. (Although, of course, not all legal persons do have duties, since newborns and the mentally disabled are included within the category of legal persons.) But even if we reject this tripartite taxonomy in principle, it might be the best way forward in practice.
Of course, the right to have one's interests taken into account seems horribly vague. How much weight are animal interests supposed to be given? How are we supposed to resolve conflicts between rights? Would this taxonomy imply anything different for animals in today's world? Pietrzykowski argues that this vagueness is actually a virtue of his theory. He maintains that legal theory can only provide the foundations necessary for societal progress to be reflected in law. More ambitious proposals will be met with backlash and ultimately fail.
Although I agree with Cochrane that a trifurcation between persons, non-personal subjects, and property might be on theoretically weak grounds, Pietrzykowski's proposal appears promising given the politics of the real world. While introducing a new legal category for non-personal subjects might not foster any immediate reform for animals, it might provide the necessary framework for change to take place. Moreover, it seems to help foster change by making explicit the status of animals as beings for whom things can be good or bad, beings who possess rights of their own.
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