Who is a "person" under United States Law, and can it be an animal?
Definitions, context, and a foundation for future discussions.
The concept of animals in the United States achieving legal personhood is back in the media for a number of reasons. In October of last year, a Federal District Court in Ohio made a decision regarding the personhood of offspring of Pablo Escobar’s “Cocaine Hippos” in Colombia; currently the NonHuman Rights Project is in the news as the oral argument date for their latest habeas corpus petition draws closer. In order to facilitate productive discussion of these events, I first want to share a quick primer on the legal concept of “personhood.” It is a frequently misunderstood concept, especially in the context of animals or other non-human entities. Unfortunately, those misunderstandings tend to lead people to make light of the concept; it turns into some version of “obviously [species] aren’t humans, those silly lawyers,” which is a highly unproductive approach for a complex and increasingly relevant topic.
When someone says they’re advocating for animals to have legal personhood in the United States, what they’re saying is this: they want American law to recognize (some, or all) species of animals as having interests that deserve to be protected by law, and therefore, deserving of rights and the subsequent legal status of “personhood.” But what does that actually mean? Let’s dig into that terminology a bit.
Rights
“Rights” as a concept in American law simply means an interest that is protected by the rule of law. The things considered “fundamental human rights” are things that each society has agreed are interests everyone has just by the basis of existing and that should not be able to be taken away. In the United States, those rights are specifically written into the text of the Constitution - there’s literally a part of it called the Bill of Rights. For example, people in the U.S. are generally familiar with the right to “freedom of expression,” which includes free speech and a free press, and “freedom of religion,” which covers the right to practice any religion or to choose not to do so.
However, fundamental rights are not guaranteed to continue being rights forever. Governments can decide to revoke something as a fundamental right, or identify times when it is acceptable to deprive someone of a right. In the United States, the most well-known example of this is when someone has committed a crime. The U.S. Constitution holds that all humans have a vested interest in having individual personal autonomy, so they have a right to control their life, liberty, and property, and to be free from incarceration. To protect this, it also guarantees a right to “due process of law.” If the government wants to remove someone’s right to bodily liberty by imprisoning them, those people have a protected right to ensure it’s done properly and legally (and people can be released from imprisonment if it’s found that their right to due process has been violated.) Rights are basically parts of the experience of living within a specific society that are currently guaranteed by the legal system.
Personhood
“Personhood” as a concept in American law is kind of an abstract concept. Personhood” defines the “activities and entities that are entitled to constitutional protection.” What that means, in simple language, is that when an interest is protected under federal law in a specific way, it becomes a right; as a result, any entity that has an interest protected or recognized by law gains “personhood” in the eyes of the United States legal system. This does not require the subject to be either a) a member of the species homo sapiens or b) necessarily even an actual living being. Now, this does not mean that an entity in that situation is seen as “equivalent to a human”—it just means that it gains some or all the legal benefits and restrictions that are attributed to the category of “having personhood.”
One component of the personhood concept in American law is that “persons” are generally expected to be able to be legally responsible for their own actions (the formal phrase is “charged with duties”).1 However, there is an ongoing debate about whether the ability to be responsible in that manner is actually a requirement for having personhood: some legal scholars point to the fact that quite a wide range of humans who are not legally capable of bearing duties (e.g. minors, the comatose, severely mentally incapacitated individuals) are still granted personhood. This is part of where arguments in favor of personhood for non-human animals become complicated, because animals are not capable of participating in the human legal system in that way.
What’s most important to understand regarding the proposals of animals having personhood is that, in the United States (and in many other countries), there are different types of “personhood” that each have different types of guaranteed rights. Right now there are two distinct categories of personhood, and legal scholars and philosophers are currently discussing whether another type of personhood also needs to be defined and codified. The type of “personhood” an entity is granted determines what types of protections are afforded and what types of duties (if any) they’re expected to be responsible for.
“Natural personhood” is the type of personhood granted to all human beings in the United States2. The law protects the rights of entities with this type of personhood by virtue of the fact that they exist. This type of personhood can neither be granted nor denied, as it is by definition a condition of being a living human being. The rights that a natural person has are those that the United States has protected under law, and can change as the laws shift. But as currently written, all living human beings within the U.S. should have the same set of protected rights. (The United States also has rights that are protected only for its citizens, but those stack with their other rights; immigrants and visitors to the country are still ostensibly entitled to the rights granted by natural personhood). The types of rights protected for natural persons are things such as bodily autonomy, due process, and free speech.
“Legal” or “judicial” personhood is a constructed category that gives non-living entities the ability to have protected rights or be held responsible for duties3. This is how corporations have “personhood” in the United States; it was developed in order to allow groups of people acting as one (or as a business entity) the ability to still exercise the rights they are individually due. Legal personhood is usually granted to an entity to advance a social or political goal, and the rights and duties ascribed to a legal person must be defined when that type of personhood is granted. Having legal personhood does not inherently confer upon an entity the same rights that a natural person would have: legal persons can have the right to enter into contracts, own property, and pursue lawsuits, but do not normally have rights such as the right to life or the right to freedom from incarceration (because most legal persons are not entities that could be imprisoned or killed).
“Moral personhood” is a category of personhood that does not yet exist under American law, but it is something of debate by legal scholars and philosophers. Originally developed as part of the ethical considerations around artificial intelligence, it centers on the question of at what point does a non-human entity gain enough “human-like” characteristics (such as the ability to desire or deserve protected rights, or to be held responsible for their actions) to be considered a moral actor in its own right. Many of the considerations that are discussed with regard to artificial intelligence are also relevant to the discussion of potential personhood for non-human animals. The main four characteristics generally identified as relevant to potential moral personhood are intelligence, the capacity for autonomy, communication, and self-awareness.
Personhood Debates in Practice
The “animal personhood” problem stems from the fact that United States law recognizes two discrete categories: persons, with rights; and things, which rights are enacted upon. There’s simply no good third category established in the American legal system for entities like animals who potentially have interests that should be recognized and protected as rights, but don’t fit into the traditional legal standing of personhood (by virtue of neither being human or composed of humans acting as a group, as is the case with corporations).
As a result, advocates who support animal personhood say that it is imperative that animals no longer be considered “things” without any rights, even if that means forcing the United States to reconsider the entire legal concept of personhood. They’re aware that that would require a lot of changes to how personhood exists within American law, and are comfortable with that as a goal. As currently written, most of the laws relevant to the rights and duties of personhood are human-specific, because the law was originally written such that personhood as a category only included humanity as possible persons. Exceptions, such as the judicial personhood of corporations, are fairly recent and have been somewhat shoehorned into a legal structure that was never designed to include them.
Groups advocating for animal personhood appear to be working to expand the category of entities that are entitled under United States law to natural personhood, rather than creating a new type of judicial personhood specifically to encompass non-human animals. (The latter solution has been utilized recently in multiple South American countries to give rights to individual chimpanzees and orangutans). Judicial personhood would allow judges and/or lawmakers to determine what species- or taxa-specific rights they feel animals should have protected: these could be anything from a reframing of the “Five Freedoms” to the right to access appropriate habitat or the right to a humane death. In contrast, United States advocacy efforts appear to request that animals be granted most, if not all, of the same rights that natural human persons are entitled to. The most prominent rights that they argue for are the right to bodily liberty and the right to bodily autonomy, but advocates have also referred to other less well-defined rights they’d like to see their client animals granted, such as the freedom to choose their social partners or freedom to access adequate space and movement.
To this purpose, it is argued that animals should be considered moral persons, and therefore be granted some form of legally recognized personhood. The majority of animals currently advocated for in this capacity in the United States are great apes and elephants, and the arguments presented center on their cognitive capacities, social cultures, and potential self-awareness. These efforts also focus on the belief that these taxa have many of the same capacities and experiences as human people. The purpose of this argument is clear: personhood, whether natural or judicial, is more likely to be attributed to entities that resemble a human being in their capacities.
While being a human isn’t an explicitly stated requirement for natural personhood, the understanding most Americans have regarding what types of entities can care about having rights or fulfilling duties is limited to adult human beings. This means that the more successfully that advocates can draw an analogy between animals and the capacities and internal experience of an adult human, the easier it becomes for judges and the public to also reasonably attribute to those animals the capacity to exercise rights. Since humans care intensely about the right to bodily liberty and free choice, it is argued that similarly sentient and self-aware animals also have a vested interest in those same philosophical concepts. This framing focuses arguments for animal personhood on aspects of law that the United States legal system heavily emphasizes and the general public is heavily invested in protecting, such as protecting the rights of “persons” to bodily liberty and due process.
The probability of animals in the United States being given personhood - and what type of personhood they might get - is a complete unknown. Rights and/or personhood for animals is a hot topic around the world in recent years, and the decisions made by single countries can have major impacts on subsequent decisions in other nations. At the moment, there’s no easy answer or “correct” perspective: the question of if, when, and how is constantly evolving, and the discussion exists at a complicated intersection of constitutional law and a field of active philosophical debate.
This piece provides a simplified introduction to the concept of animal personhood, why the discussion matters, and to additional define the terminology that’s generally relevant. In the future, this newsletter will build on the concepts introduced in this piece to discuss important or interesting developments on the topic.
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Black’s Law Dictionary defines a person as “A man considered according to the rank he holds in society, with all the rights to which the place he holds entitles him, and the duties which it imposes. (…) A human being considered as capable of having rights and of being charged with duties; while a “thing” is the object over which rights may be exercised.”
Black’s Law Dictionary defines a natural person as “A human being, naturally born, versus a legally generated judicial person.”
Black’s Law Dictionary defines a juridical (legal) person as an entity “Entity, as a firm, that is not a single natural person, as a human being, authorized by law with duties and rights, recognized as a legal authority having a distinct identity, a legal personality. Also known as artificial person, juridical entity, juristic person, or legal person.”
The same dictionary also defines an artificial person as “A nonhuman entity that is created by law and is legally different owning its own rights and duties.”
The biggest advocates for animal personhood are lawyers who stand to earn a tremendous windfall with an exponential expansion of new "clients" on whose behalf to sue (and to destroy people and institutions).
Serious AW specialists (people who actually know and care for animals) regard "five freedoms" as an archaic model, junked years ago in favor of "five domains" which has room for positive indicators.
Finally, governments should not be regarded or regard themselves as givers of human rights. Their role is to protect rights that come from a higher authority. That framing is important and that it has been so corrupted is no accident.
Thank you, Rachel!