Can a Legal Person be a Non-Human?

By Joseph Moravec

Traditionally, only people file lawsuits. Seemingly self-evident, it can be odd to even examine so basic a foundation of our legal system. But in the 21st Century, issues have arisen which may require an unconventional approach to the law.  Some jurisdictions have permitted parties to represent “future generations,” bringing suit against environmental polluters on behalf of humans not yet born. Others have considered whether nature itself might be represented.

When we consider issues of standing, we often examine the doctrine simply in the light whether or not a person has a sufficient connection to the action which is being brought. Alternatively, rarely has the issue of who may bring a case been decided on whether or not a party is in fact a person.  In an upcoming issue of the Pace Environmental Law Review, we will focus our attention on that issue.  Particularly in the context of environmental and animal rights concerns, what is a legal person; and apart from human beings, who else might bring litigation?

Consider the case of The Nonhuman Rights Project v. Lavery in New York Supreme Court.[1]  An animal-rights non-profit organization has twice brought an action seeking a writ of habeas corpus on behalf of Tommy, a chimpanzee in the possession of a private person in upstate New York.  Though they have been unsuccessful in securing the chimpanzee’s release, the project has certainly brought to light an issue few ever consider: what is a legal person?

In the pages of the upcoming review, we will examine whether specific species of animals might rise to the level of legal personhood such that they could be personally represented in a court of law.  Such an idea is ridiculous to most, but consider the following: chimpanzee’s share 99% of their DNA with humans, they have been shown to possess high social structures and language capacity, and they have familial traits similar to humans.  If we really aren’t so different at all, how close does an animal have to be to human in order to bring a lawsuit?

In his paper to be published therein, Professor Richard L. Cupp of Pepperdine University School of Law considers the issue and concludes that significant problems arise if we extend the definition of personhood to intelligent animals. He contends that if we base personhood on intelligence and capacity, over time we may eventually disenfranchise the legal personhood of cognitively-impaired humans.  Furthermore, we cannot assign legal rights to animals from whom we cannot expect legal accountability.  For example, once we extend to a chimpanzee the right to be free, we also must demand responsibility for his actions.

Professor Cupp must instead conclude that rights themselves are a human moral construct, as is society itself. What makes us human is our community, the connections we feel with other people. The law was designed by humans and for humans’ benefit, and therefore can and should only apply to humans.

Instead, we should continue to progress toward evolving standards of human responsibility for the treatment of animals, rather than granting animals themselves legal rights. Over the last several years, society has taken significant steps toward protecting animals, including passing increased penalties for animal cruelty and taking a special interest in agriculture and food, demanding higher standards in livestock production.  As we progress toward granting more and more protections and rights to animals, the question remains unanswered: how far can we go?


[1] 998 N.Y.S.2d 248 (3d Dept. 2015).

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