Growing scientific evidence shows that vast numbers of nonhuman animals are feeling, sentient beings, and ethicists have argued that this means they have moral value. However, law’s integration of individual animals as subjects with greater protection has been slow, despite the terrible threats that animals face today from human drivers like anthropogenic climate change and industrial exploitation. Personhood has been heralded by some as a new legal status to protect animals, but the concept of “legal personhood” has been misunderstood. Most recently, New York’s highest court decided in a case of first impression that an elephant named Happy is not a legal person and does not have a right to liberty—over two powerful dissents. This Article offers a new synthesis of views regarding the moral status of animals, their “basic rights,” and the relationship between basic rights and legal personhood. I argue that sentient animals have moral status that implies recognition of certain legal rights based on considerations of justice, which may lead to animal legal personhood over the long term. First, I argue that at least sentient animals have moral status and are subjects of justice who require greater legal protections. Then, I assess a new “bundle theory” of legal personhood that shows that personhood is a cluster concept composed of multiple “incidents.” I argue that there are good reasons for American law to begin to integrate basic rights to bodily integrity, liberty, and probably life for sentient animals, while correcting a mistaken view that personhood is the simple ability to hold rights. However, basic rights are only one incident of legal personhood, although recognizing them may lead to personhood in time. To inform litigation, I also show how the bundle theory helps to explain the important disagreement between the judges in Happy’s case. Finally, I suggest that both legislatures and judges can work to enhance animal legal protections, and perhaps eventually legal personhood, in the United States.
To read this Article, please click here: Animal Rights Before Legal Personhood.
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