Rights and the non-human animal

By Joanna Kyriakakis

In news that recently made the rounds on social media, an Argentine court reportedly held that an Orangutan named Sandra was a non-human person with the right to freedom from arbitrary detention. Media reports, examples of which can be found here and here, indicated the successful use of habeas corpus to have Sandra moved from a zoo to a sanctuary. Habeas corpus is an ancient common law writ that allows a person to challenge the lawfulness of their detention. The novelty is in arguing that a non-human person could utilise the right.

Sumatran Orangutan (Pongo abelii) ~ Indonesia 2010. Balifornian Tours
Picture Credit: Mikaku

If the reports were accurate, then the Argentine decision would indeed be significant. Similar claims have been made in US courts, and none have to date been successful. For example, a New York court recently held that the writ was not available to a chimpanzee named Tommy being held in private captivity. They concluded this on the basis that it is a right limited to persons, which, in their view, is a category that excludes animals on the basis that animals are unable to bear legal duties.

Putting aside problems with the reasoning in the New York case, some of which are reflected in this blog on the nature of legal personality, the Argentine case seemed to reflect a very different view that may therefore have broad ramifications.

However, it seems that the news reports about the Sandra case may not be entirely accurate. The Nonhuman Rights Project has commissioned a translation of the very brief decision.  It is too early to say what the implications of the ruling are. But it is by no means clear that the court granted any habeas corpus relief, nor any order against the zoo. Steven Wise reports that it is possible the case evokes more conventional animal mistreatment laws. However, as he cautions, it is always difficult to appreciate the full implications of a foreign legal judgment given laws and legal cultures can differ significantly from country to country.

Although the outcome and implications of the case are not yet clear, it is exciting to see a court saying that non-human beings (animals) are rights holders (presuming the translation provided by the Nonhuman Rights Project is accurate).

In any event, let’s presume that the Court has directly found that Sandra is a non-human legal person subject to certain rights. Propositions that animals are legal persons can give rise to concerns that to follow this path is to erode something of the moral significance of humanness.

For example, many were deeply concerned when the US Supreme Court decided that corporations were protected against governments limiting their spending on election related communications under Constitutional freedom of speech rights. While the decision was not based on the principle of corporate personality, it was this concept that framed public discourse around the case and that led to calls in the US to abolish corporate personhood.

There is a lot of confusion about the idea of legal personhood. It is often believed that when an entity is considered a legal person for one purpose that a range of other things necessarily flow from that (for example, as was put to me recently, that all zoos are slavery, or a poacher could be tried for murder, etc). While understandable, this kind of reasoning fails to appreciate that you can be a legal person for a very specific and limited purpose. It does not imply that you are therefore a person for all, or even necessarily any, other purposes in law.

So for example, while an infant is a person for certain legal purposes (say if they are wilfully killed it would constitute murder); they are not a legal person for the purposes of settling or enforcing a contract or being held criminally liable for their acts.

Indeed, in my view this is one of the fundamental flaws in the reasoning of the New York Tommy decision. It treats personhood in law as a concept the content of which is constant across the many contexts in which it arises.

Having said that, a ruling of animal legal personhood in one area of law may lead to similar arguments being raised in other legal contexts, and a finding in one area may serve to start shifting or influencing other areas of law.

This fact probably best explains why some people express concern when courts or legislatures recognise a non-human entity as a person before the law. That in doing so, we incrementally undermine the moral uniqueness of the human person in our laws. Increasing legal recognition of non-human entities as persons even for limited purposes generally reflects an underlying acceptance that they share in common certain qualities typically associated with the human person and pertinent to the right or duty in question. Recognition of such similarities has particular implications for human rights theory. It invites more and better reflection on the unique nature of human dignity that justifies the field’s limited concern with human beings.

Ultimately, whatever the legal implications of the Sandra case, it is likely that law makers will be increasingly faced with questions regarding the legal recognition of animals and their personal interests. Science is improving our appreciation of the sentience and intelligence of different animal species and this is influencing moral attitudes. Animal law (being the study and practice of law relating to the treatment and status of non-human animals) is a rapidly growing area. Some have argued that the effort to emancipate animals from their social conditions is the next great social revolution. While I am not sure this is quite true, I have no doubt that we are at the beginning of a trend that will demand deep reappraisals of the ways in which we live.

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Joanna Kyriakakis

Joanna is a Senior Lecturer at the Monash Faculty of Law and a Deputy Director of the Castan Centre for Human Rights. Her research interests lie at the intersection of corporate accountability, international criminal law, animal law, human rights, transitional justice, and legal theory.


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