The New York Supreme Court is to hear arguments in November on whether an elephant can have legal personality. This may seem odd. But from a legal perspective it is not that strange. Indeed, it may be a practical way of using the law to protect the welfare of animals. To have a legal personality does not mean the court is pretending something is a human being. It means a thing has standing to be represented in court in respect of its interests and has certain rights, the scope of which are defined by law. It does not necessarily mean it has the same legal powers and obligations as a human being. That something other than a human can have legal personality is commonplace.
The most familiar example is a corporation. The clue is in the word: commercial companies and other abstract entities are “incorporated” (that is, given a body), thereby becoming recognised at law. Some corporations have wide legal powers, such as public bodies and commercial companies, and some are limited. They can own property, conduct litigation and even receive criminal penalties, but they do not require a physical existence. And if a thing without a tangible form can be a legal person, then it is no great conceptual leap to also confer legal personality on a thing that does physically exist. This, too, is not a novelty.
Some legal systems have already conferred legal personality on animals. In 2015, an Argentine judge accepted that an orang-utan had legal personality — although she was a non-human person, her rights should be properly protected.
So the issue about conferring legal personality on animals is not whether it can be done. It can. The key question is: is it something that should be done? Which animals should have legal personality? Great apes and elephants? What of other intelligent creatures such as dolphins, crows and octopuses? And who would appoint lawyers on their behalf?
In the New York case, lawyers for their “client” Happy the elephant contend that she is being kept in inappropriate conditions for a social and exceptionally intelligent animal, and are seeking a writ of habeas corpus. Significantly, the Nonhuman Rights Project is not basing its case on welfare grounds, but on those of civil rights.
This is an ambitious approach, but there is something to be said for it. The orthodox approach to animal welfare law is that humans have obligations in respect of the treatment of animals and these must be enforced by a regulator. But leaving it to regulators with limited resources may not be the most effective way of promoting animal welfare.
A court may decide against the animal but would have to take account of its interests as a distinct legal person. If this means that the general level of animal welfare would improve, then there is no objection in legal principle. Ascribing legal personality to animals may be an idea whose time has come. As Jules Winnfield averred in Pulp Fiction, personality goes a long way.
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