1 INTRODUCTION
Over forty years ago, Christopher Stone’s seminal article ‘Should Trees Have Standing?’ posited a novel idea: that natural objects should be recognized as legal persons with standing to pursue their own legal interests, quite separately from the interests of any human being.Footnote 1 Just as legal categories have been progressively expanded to protect the rights and interests of racial minorities, women, foetuses and even corporations, so too, argued Stone, could legal personhood be extended to the natural world.Footnote 2 When first espoused in 1972, Stone’s idea was a radical one, and it remains divisive to this day.Footnote 3 Its controversy lies in its direct challenge to the centrality of the human person within the Anglo-American legal order. Historically, the law has afforded natural objects little value in their own right and legal protection for the environment has generally been available only as a means to address indirect harm to human interests.Footnote 4 The notion of trees, rivers and oceans pursuing claims in their own right challenges this anthropocentrism and forces humans to ‘attend to their self-serving partialities and preferences, enlarge their perspective, and expand their horizons’.Footnote 5
Although Stone expressly limited his discussion in ‘Trees’ to ‘non-animal’ objects, he noted that his analysis could also be relevant to the conferral of rights on other presently ‘rightless’ objects, including non-human animals.Footnote 6 Interestingly, four decades later, it is arguably within the animal advocacy movement that the influence of ‘Trees’ manifests most clearly – in Stone’s 2010 reflections on the legacy of ‘Trees’, the majority of cases he discusses pursued standing for non-human animals rather than natural objects.Footnote 7 Yet, while ‘Trees’ may have inspired such cases, their practical impact in pushing the boundaries of the law has been modest. Stone observes that ‘the sum of cases [brought on behalf of a non-human] is insubstantial and the substance unclear’.Footnote 8 With limited exceptions, no court has recognized the legal personhood of any creature and the categorization of animals as property remains firmly entrenched.Footnote 9 As Naffine notes, ‘a human measure of legal value and legal interests’ persists.Footnote 10
This legal status quo has a profound impact on the well-being of animals: their exclusion from the category of ‘legal person’ significantly limits the availability of legal redress where their interests are harmed. For example, animal advocates in the United States (US) are required to construct highly artificial arguments to demonstrate the harm they personally have suffered as a result of an animal being harmed, for injury to the animal itself is not the primary concern of the law. Similarly, in Germany, public interest claims that do not require the plaintiff organization to demonstrate harm to its own interests are available in only seven states.Footnote 11 Yet, such an anthropocentric approach increasingly jars with growing awareness of animals’ interests and a desire to respect and protect those interests as an end in itself. In this context, animal advocates have turned in recent years to strategic litigation to make a renewed push for the re-examination of the legal categorization of animals.
This article examines some of these cases in the US and Europe, reflecting on the quest to establish standing for non-human animals since the publication of ‘Trees’. It identifies the barriers that have so far undermined this project and offers reflections on its future prospects of success. Section 2 of this article provides an overview of the doctrine of standing (focusing on US federal law but with reference to other jurisdictions) and considers why standing for animals might matter, both in the US and generally. Section 3 examines three case studies that illustrate how standing for animals has recently been pursued in, and received by, different courts and jurisdictions. Section 4 examines the reasons why these cases failed and the barriers that have so far prevented animals from establishing standing. Section 5 then considers the implications of these barriers for the quest for legal personhood for non-human animals. The fundamental question that the article seeks to answer is whether – in light of such limited success to date and the nature of existing barriers – standing for animals should still be pursued as a legal and political project. The article argues that despite their lack of success to date, cases that seek to establish legal personhood for animals should continue to be pursued for two key reasons. Firstly, societal views about the value of animals’ lives are progressively changing such that future cases may be successful. Secondly, even where unsuccessful, these cases help to create a normative environment that is receptive to a fundamental redefinition of the human–animal divide.
2 THE LAW OF STANDING VIS-À-VIS NON-HUMAN ANIMALS
2.1. What is Standing?
The doctrine of standing operates as a gateway to the legal system. Warnock describes it in lay terms as ‘permission to appear as a plaintiff in some public forum, usually a civil court, and face a defendant whom you allege has injured you in some specific way’.Footnote 12 The US Supreme Court defined standing in Sierra Club v. Morton as having ‘a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy’.Footnote 13 However, standing not only places limitations on would-be plaintiffs, but also on the courts themselves. By restricting the types of case a court may accept, standing prevents any encroachment on the legislative function and maintains the separation of powers.Footnote 14
What a plaintiff must prove to establish standing necessarily differs across jurisdictions. The present discussion focuses on the doctrine of standing as it has developed under US federal law, as this provides a clear example of how standing requirements can frustrate attempts to protect animals’ interests through litigation. Indeed, Francione argues that through the US federal doctrine of standing, ‘the legal system has done everything possible to ensure that matters involving animal interests are never brought into the courtroom’.Footnote 15
Standing to sue in a US federal court is circumscribed by Article III of the US Constitution, which limits the jurisdiction of federal courts to ‘cases’ and ‘controversies’.Footnote 16 Case law has given content to this constitutional limitation, requiring a plaintiff to satisfy that: (i) it has suffered an ‘injury in fact’ that is (a) ‘concrete and particularized’ and (b) ‘actual or imminent’; (ii) the injury is ‘fairly traceable’ to the challenged action of the defendant; and (iii) it is likely that the injury will be redressed by a favourable decision.Footnote 17
If these elements are satisfied, ‘constitutional standing’ is established. If not, the case will fail on the ground of lack of subject matter jurisdiction.Footnote 18 In certain cases, a plaintiff may also have to establish ‘prudential standing’.Footnote 19 This includes whether the interest the plaintiff seeks to protect falls within the ‘zone of interests’ protected by the relevant statute and whether the claim is sufficiently individualized, rather than a ‘generalized grievance’ shared by many.Footnote 20 Furthermore, where the plaintiff is an organization, there is yet another layer of standing requirements that must be satisfied, including that the claim is consistent with the organization’s mission.Footnote 21 The particular difficulties posed by these standing requirements for plaintiffs seeking to protect the interests of animals in court are discussed further below.
However, it would be inaccurate to view standing as purely a matter of procedure comprising only the types of admissibility criteria discussed above. This is because the capacity to bear rights (i.e. legal personhood) is also a necessary precondition for any grant of standing.Footnote 22 In other words, the question of who or what is a candidate for rights is central to determining which claims to rights are justiciable, and therefore to the doctrine of standing. It is thus difficult to draw a clear distinction between standing as a matter of procedural law and the question of having rights (and what those rights might be) as a matter of substantive law. The complex relationship between standing, rights and legal personhood is discussed further in Section 2.3.
2.2. Do Animals Have Standing?
Animals have so far been unsuccessful in establishing standing, with limited exceptions.Footnote 23 For example, US courts have allowed animal species (though not individual animals) to be named as plaintiffs in a number of cases.Footnote 24 In one such case, the Ninth Circuit stated that the palila bird ‘has legal status and wings its way into federal court as a plaintiff in its own right’.Footnote 25 However, such cases are misleading because the question of standing was uncontested and the plaintiff animals were listed jointly with human plaintiffs.Footnote 26 Furthermore, the statements made in Palila were subsequently described in Cetacean Community v. Bush as ‘nonbinding dicta’.Footnote 27 The Court further noted that ‘[i]t is obvious that an animal cannot function as a plaintiff in the same manner as a juridically competent human being’.Footnote 28
Animals’ lack of standing is not unique to the US. For example, animals in Germany do not have standing (Klagebefugnis) to pursue cases in their own name and animal rights groups can only bring a Verbandklage (a public interest claim that does not require the plaintiff to demonstrate that its own rights have been violated) in a limited number of German states.Footnote 29 Animal rights groups are currently seeking to extend the availability of such claims throughout Germany.Footnote 30 In France, animals were accorded a new legal status in 2015 and are now recognized under the Code Civil as ‘living beings’ rather than ‘movable property’.Footnote 31 However, the Code Civil also states that the property regime continues to apply to animals, and therefore what appears to be a significant change in legal categorization may be merely symbolic and of limited practical effect.Footnote 32 In any event, the reform has not resulted in legal personhood or standing for animals.Footnote 33
2.3. Why Might Standing for Animals Matter?
Standing for animals would enable more suits to be brought
Because they do not have standing to pursue matters in their own name, animals – like the environment – rely on the existence of residual human injury before any harm to them can be legally redressed.Footnote 34 An injured human must bring the case and satisfy the relevant standing requirements. This has forced animal advocates and environmental groups to craft highly artificial arguments regarding the ‘injury’ they have suffered, even where the case is clearly motivated solely by harm to the animal or the environment.Footnote 35 Such arguments are often unsuccessful.Footnote 36
A clear example of the difficulty faced by plaintiffs in this regard is the US Supreme Court case of Sierra Club v. Morton.Footnote 37 Sierra Club, an environmental non-governmental organization (NGO), challenged the development by Walt Disney of a ski resort in the Mineral King Valley, which would cause damage to the valley’s ‘aesthetic and ecological balance’.Footnote 38 In one respect, the case represented a victory for environmental organizations because, in considering the question of Sierra Club’s standing, the majority accepted that ‘injury’ should be construed broadly to include ‘aesthetic injury’, stating that ‘[a]esthetic and environmental well-being, like economic well-being, are important ingredients of the quality of life in our society’.Footnote 39 Sierra Club nevertheless failed to establish standing because, although the construction of the resort would affect the forest’s aesthetics, none of Sierra Club’s members used the area or would be personally affected.Footnote 40 Justice Douglas’s famous dissent endorsed the argument made in ‘Trees’ and stated that ‘[t]he critical question of “standing” would be simplified and also put neatly into focus if we … allowed environmental issues to be litigated … in the name of the inanimate object about to be despoiled, defaced, or invaded’.Footnote 41
In contrast, in the case of Animal Legal Defense Fund v. Glickman, human plaintiffs did succeed in establishing standing on the basis of ‘aesthetic injury’: the Court accepted that a member of the organization suffered ‘aesthetic injury’ after visiting primates at an animal park over the course of a year and witnessing their inhumane living conditions.Footnote 42 However, such successes are few and far between and most suffer the same fate as Sierra Club v. Morton.Footnote 43 As Gordon notes, what constitutes an ‘aesthetic injury’ is highly subjective and it is unclear in precisely which circumstances it will be established.Footnote 44
Furthermore, standing requirements may completely frustrate cases in which the animals are not visible to the public.Footnote 45 In Animal Lovers Volunteer Association v. Weinberger, for example, the plaintiff sought to prevent the destruction of a colony of wild goats living on a military enclave that was not publicly accessible.Footnote 46 However, the plaintiff was unable to establish standing because no individual member of the organization could prove that the death of the goats would result in ‘direct sensory impact’ to the member’s physical environment.Footnote 47
In a purely procedural sense, then, standing for animals could enable suits to be brought that may currently be prevented from ever reaching the courts.Footnote 48 Animals would still need to satisfy extant standing requirements, but one of the greatest obstacles currently faced by human plaintiffs in pursuing animal protection cases – proof of human injury – would be circumvented. Furthermore, even where human plaintiffs are able to satisfy standing rules in animal protection cases (as in Glickman), standing for animals would arguably lend greater coherence to the law. As Bryant notes, linking the alleged harm to the primary victim (the animal) and avoiding the need to establish human injury would do less ‘conceptual violence’ to the principle of standing.Footnote 49 It would also enable the law to develop in a more transparent manner by allowing clearer articulation of the interests at stake in animal protection cases and the extent to which courts will protect such interests. As Stone notes, ‘pitching such cases in anthropocentric terms distorts what we are really doing, discouraging the development of a more accurate and noble discourse’.Footnote 50
Standing for animals could establish them as rights holders
The doctrine of standing ostensibly comprises a mere set of procedural requirements. Yet, standing is closely associated with the concept of legal personhood and the capacity to bear rights.Footnote 51 As such, it is possible that standing for animals would not only improve the justiciability of their legal interests but could also transform them into rights holders. Animal advocate and lawyer Steven Wise explains the connection between standing, legal personhood and rights through his ‘animal rights pyramid’.Footnote 52 Wise argues that there are, in fact, four requirements that an animal must satisfy before it can pursue a legal right in its own name.Footnote 53 Firstly, the animal must have the capacity to possess a legal right – if it does, then the animal is a ‘legal person’.Footnote 54 Secondly, the rights to which the animal is entitled must be determined.Footnote 55 Thirdly, the animal must have ‘a private right to assert [a] cause of action’ to vindicate that right (for example, the common law writ of habeas corpus); and, finally, the animal must satisfy standing requirements.Footnote 56 As such, according to Wise, legal personhood is a necessary precondition to standing. Without recognition of an animal’s legal personhood (i.e., its capacity to possess a right), the question of standing never arises – a non-person simply cannot be a candidate for standing.
If one accepts Wise’s analysis, standing for animals would necessarily involve transforming animals into rights holders, even if precisely which rights they possess and whether or when such rights are justiciable would remain unclear.Footnote 57 Some commentators and jurists argue that animals already have rights. In Tilikum v. Sea World, for example, the court denied the orca whales’ claim to the constitutional right to be free from slavery but stated that this ‘is not to say that animals have no legal rights; as there are many state and federal statutes affording redress’.Footnote 58 Similarly, Sunstein has described American animal welfare legislation as constituting an ‘incipient bill of rights’ for animals because ‘[r]ights can include substantive safeguards without independent authority to initiate litigation’.Footnote 59 However, other commentators reject this analysis and argue that it is meaningless to speak of one having a right unless one can enforce it in one’s own name.Footnote 60 Standing for animals could therefore be a revolutionary development, catapulting animals into the rights-bearing community from which they have been historically excluded.
This would be a significant development, not just for legal but also for political reasons. As Peters notes, the ‘justiciability’ of rights is not the only way in which they are powerful: ‘[r]ights may be practical in a hands-on sense; they may be theoretical; or their utility may lie more in the realm of emotions, expression and symbolism’.Footnote 61 As such, regardless of whether standing for animals would result in a greater number of favourable outcomes in court, the very fact that animals could claim rights would have great symbolic power. Rights are empowering, ‘if not judicially then at least politically’.Footnote 62
For those seeking to dismantle the human–animal divide and bring an end to the categorization of animals as property (‘abolitionists’), this would be a positive development.Footnote 63 Conversely, some commentators express concern that granting rights to animals would diminish the rights of humans.Footnote 64 Others wish to improve the lives of animals but argue in favour of strengthening animal welfare laws and the enforcement of such laws (‘welfarists’).Footnote 65 For example, Binder argues that abandoning regulatory reform in favour of rights-based approaches would result in those ‘animals living in the present [being] forgotten for merely purist reasons or utopian visions’.Footnote 66 Radford similarly argues that it would be ‘fanciful’ to expect animal exploitation to end, as this is an ‘inevitable consequence’ of the ‘social interdependence’ between humans and animals.Footnote 67 He argues in favour of welfare laws as a means to regulate ‘the nature of the exploitation’.Footnote 68 However, the failure of animal welfare regulations to protect animals adequately has been widely documented, in both Europe and America, and the value of continuing to pursue welfarist approaches is questionable.Footnote 69 A rights-based approach could offer a promising alternative.
However, not all conceptions of standing and legal personhood would transform animals into rights holders in the way that Wise imagines. Some commentators argue that legal personhood for animals could be pursued in a ‘narrow’, purely procedural sense by granting standing to animals only to enforce existing forms of legislative protection under animal welfare statutes.Footnote 70 While this might improve the historically poor enforcement of these statutes and could also have some symbolic significance, such reforms would not attempt any fundamental overhaul of the extant human–animal divide.Footnote 71 The legal categorization of animals as property – upon which animal welfare statutes are premised – would remain unchallenged.Footnote 72
The following three case studies – common law habeas corpus suits in the state of New York; a constitutional claim under US federal law; and an Austrian civil law case – represent the most ambitious attempts to establish standing for non-human animals. Rather than simply pursuing standing for animals in a ‘narrow’ procedural sense, they start at the bottom of Wise’s pyramid and seek to transform animals into legal persons and therefore rights holders. These cases pursue legal personhood for animals in what Bryant describes as the ‘broad’ sense, claiming that animals’ entitlement to legal personhood is a corollary of their moral personhood, which it is argued stems from certain traits they share with humans, such as intelligence or autonomy.Footnote 73 In so demanding the inclusion of certain animals within the category of personhood, these cases strike at the heart of the anthropocentrism of law and their potential impact extends well beyond the immediate dispute: the precedent they seek to establish could eventually lead to ‘the full recognition of non-human beings as subjects of rights’.Footnote 74
3 CASE STUDIES: THE QUEST FOR LEGAL PERSONHOOD FOR NON-HUMAN ANIMALS
3.1. Habeas Corpus Claims for Chimpanzees
Steven Wise founded the Nonhuman Rights Project (NhRP) in the US in 2007.Footnote 75 The NhRP aims to ‘transform’ certain animals from things to persons via a ‘long-term multi-state strategic litigation campaign’,Footnote 76 a process that Wise likens to the ‘legal transubstantiation’ of slaves.Footnote 77 In 2013, the NhRP filed its first three cases on behalf of four privately owned chimpanzees in the state of New York, seeking to secure their liberty via the common law writ of habeas corpus.Footnote 78 Two of the chimpanzees, Tommy and Kiko, were caged on their respective owners’ private properties, while Hercules and Leo were held at a research centre for use in locomotion experiments.Footnote 79
The writ of habeas corpus, if granted by a court, demands proof that a detainee is being held on lawful grounds.Footnote 80 As the writ is available only to legal persons, the applications necessarily asked the courts to recognize the chimpanzees’ legal personhood. The NhRP argued that ‘genetic, cognitive, physiological, evolutionary and taxonomic evidence’ clearly establishes chimpanzees’ self-awareness and autonomy, and that these traits entitle them to recognition ‘as “legal persons” with certain fundamental rights’, including the right to bodily liberty.Footnote 81 The NhRP therefore requested the court to order that the chimpanzees be removed from their present captivity and delivered to a wildlife sanctuary.
The NhRP cases have been largely unsuccessful, with all three failing at first instance. In December 2014, the New York Supreme Court dismissed Tommy’s appeal.Footnote 82 The Court acknowledged the scientific evidence attesting to Tommy’s cognitive abilities but ultimately declined ‘to enlarge the common law definition of “person” in order to afford legal rights to an animal’.Footnote 83 The Court held that the right to liberty ‘has historically been connected with the imposition of societal obligations and duties’ and further noted that ‘legal personhood has consistently been defined in terms of both rights and duties’.Footnote 84 This was fatal for Tommy’s claim. The Court held that it was chimpanzees’ ‘incapability to bear any legal responsibilities and societal duties that renders it inappropriate to confer upon chimpanzees … legal rights’.Footnote 85
The NhRP refiled Tommy’s case in December 2015, along with 60 pages of supporting evidence ‘from leading chimpanzee cognition experts from around the world’ to demonstrate that chimpanzees do in fact ‘assume duties and responsibilities’.Footnote 86 The case was again dismissed, this time on the basis that the legality of Tommy’s detention had already been determined and no new facts had arisen since then.Footnote 87
Kiko’s appeal also failed, although the Court avoided any consideration of Kiko’s personhood by finding that the writ of habeas corpus applies only where the plaintiff is challenging his or her detention per se, not the conditions of detention (as Kiko would still be detained at the sanctuary to which the application requested he be delivered).Footnote 88 Whether Tommy’s and Kiko’s cases will proceed any further remains unclear.Footnote 89 The third case, relating to Hercules and Leo, also failed, as the judge considered herself bound by the ruling in Tommy’s case.Footnote 90
3.2. The Claim for the Constitutional Right of Orca Whales to Freedom from Slavery
In the US context, an alternative approach to the NhRP’s habeas corpus suits is to seek to establish that animals are protected by relevant constitutional rights.Footnote 91 In 2012, People for the Ethical Treatment of Animals (PETA) filed a claim in the District Court for the Southern District of California on behalf of five orca whales kept in captivity at Sea World, arguing that the orcas were entitled to the protection of the Thirteenth Amendment, which prohibits slavery.Footnote 92 PETA provided evidence that the orcas’ confinement at Sea World negatively impacted on their well-being in numerous ways, including by suppressing their ‘cultural traditions’, depriving them of the ‘environmental enrichment’ they required to flourish and thereby significantly shortening their life expectancies.Footnote 93 PETA argued that such confinement constituted slavery.Footnote 94
PETA accepted that the Thirteenth Amendment applies only to persons but argued that this did not prevent the right from being extended to orcas, given the flexible nature of constitutional principles.Footnote 95 As such, Gordon argues that the case did not directly seek to establish the orcas’ legal personhood.Footnote 96 However, according to Wise’s ‘animal rights pyramid’ discussed above, recognizing an animal’s entitlement to a constitutional right would necessarily involve recognition of the animal as a legal person because legal personhood is a corollary of being a rights bearer.Footnote 97
Standing requirements under US federal law require a plaintiff to demonstrate that the alleged injury is capable of redress by a favourable outcome in court.Footnote 98 The Court held that the orcas’ claim failed this redressability limb because the Thirteenth Amendment applies to humans only.Footnote 99 The Court stated that ‘[a]s “slavery” and “involuntary servitude” are uniquely human activities, as those terms have been historically and contemporaneously applied, there is simply no basis to construe the Thirteenth Amendment as applying to non-humans’.Footnote 100 Standing was therefore denied on procedural grounds on the basis that the action could not lead to any legal redress. However, in so ruling, the Court effectively disposed of the substance of the claim as well.
3.3. The Claim for a Chimpanzee’s Legal Personhood under Austrian Law
In 2007, the Association Against Animal Factories (the Association)Footnote 101 commenced proceedings in the Mödling District Court in Austria, seeking the appointment of a legal guardian for Matthew ‘Hiasl’ Pan, a chimpanzee.Footnote 102 For a guardian to be appointed, the Court would have to recognize Hiasl as a legal person. Hiasl had been illegally captured in Sierra Leone and brought to Vienna, where he was seized at the airport and eventually placed in an animal sanctuary.Footnote 103 The sanctuary subsequently faced closure as a result of bankruptcy and Hiasl’s future became uncertain.Footnote 104 As a ‘thing’, Hiasl would count as one of the sanctuary’s assets and could be sold to researchers.Footnote 105 However, if he was recognized as a legal person, a guardian could be appointed and he could receive donations and claim damages to fund the ongoing costs of his care.Footnote 106
Hiasl’s case relied heavily on ‘rational argument and scientific facts’.Footnote 107 The Association argued that because of the genetic similarity between humans and chimpanzees, both belong to the same biological family (the ‘family of great apes’) and chimpanzees should therefore be considered ‘human’ under Austrian law.Footnote 108 The Association describes the legal argument as follows:
Section §16 of the civil law code [Allegemeines Bürgerliches Gesetzbuch (ABGB)] declares all humans to be persons: ‘Every human is born … with rights and therefore has to be considered a person’. What, however, is meant with the term ‘human’? The definition of ‘human’ in §16 ABGB has to be interpreted biologically.Footnote 109
The Association also examined the philosophical underpinnings of the ABGB. It argued that because the ABGB has its genesis in enlightenment ideals, ‘the ability to reason ... must be isolated as the defining factor for personhood’.Footnote 110 Submitting evidence that chimpanzees have a ‘theory of mind’, the Association argued that Hiasl (and chimpanzees generally) also qualified for personhood on this basis.Footnote 111
The Court rejected Hiasl’s case on technical grounds and avoided a substantive ruling on the question of Hiasl’s personhood.Footnote 112 It held that Hiasl did not satisfy the threshold requirements under Austrian law for the appointment of a guardian, as he neither had a mental handicap, nor did he face an imminent threat.Footnote 113 Attempts to appeal against the decision were unsuccessful.Footnote 114 The Association subsequently filed a claim with the European Court of Human Rights (ECtHR), arguing that because the Austrian courts had refused to determine the substantive matters in the case, Hiasl had been denied a fair trial.Footnote 115 The ECtHR declined to hear the matter on the ground of lack of subject matter jurisdiction.Footnote 116
4 REFLECTIONS ON THE CASE STUDIES
The case studies demonstrate the variety of ways in which animal advocates have attempted – largely unsuccessfully – to push the boundaries of the law to break down the ‘high, thick legal wall [that] separates all humans from all nonhumans’ and pursue Stone’s vision in ‘Trees’.Footnote 117 While each case played out in a unique jurisdictional and constitutional context, certain commonalities between them can be observed, both in terms of how the legal arguments were framed and how the courts received those arguments.
4.1. How the Legal Arguments Were Framed
Two key observations can be made about how the cases were argued. Firstly, the cases relied heavily on scientific evidence and placed great faith in the ability of such evidence to convince the courts that legal boundaries should be shifted. The genetic similarity between chimpanzees and humans was central to Hiasl’s claim – the plaintiffs argued that this evidence proved that Hiasl was a human for the purposes of the law.Footnote 118 In the NhRP cases, the chimpanzees’ asserted right to bodily liberty was similarly grounded in evidence of their cognitive abilities. When Tommy’s case failed on appeal, further evidence was gathered to counter the judge’s ruling that chimpanzees do not assume responsibilities and duties. Similarly, in Tilikum v. Sea World, PETA relied on evidence regarding the detrimental impact of captivity on the orcas’ well-being to argue that such captivity amounted to slavery.
Secondly, the plaintiffs all sought to rely on the abstract, ‘ecumenical’ nature of legal categories such as ‘legal person’ or ‘rights holder’ and argued that there was no legal obstacle to expanding such categories to include animals.Footnote 119 The cases all emphasized that there are no ‘logical or formal limits’ to the concept of legal personhood which preclude any entity from being declared a rights holder.Footnote 120 This point was also central to Stone’s thesis in ‘Trees’: he noted that ‘[t]he world of the lawyer is peopled with inanimate right-holders: trusts, corporations, joint ventures, municipalities …’ and argued that therefore no legal impediment existed to extending rights to the natural world.Footnote 121
4.2. How the Courts Received the Arguments
In all three case studies, relying on scientific evidence and emphasizing the neutral nature of relevant legal categories failed to achieve a favourable outcome. The cases all asked the courts to consider a fundamental question: ‘who are the living beings that can be considered subjects of rights, and why?’Footnote 122 The courts responded to this question in two ways. In some instances, they avoided any engagement with the substantive issue and dismissed the claim on procedural or technical grounds. This was most evident in Hiasl’s case, where the Court held that regardless of whether Hiasl was a person, he simply did not meet the threshold requirements for the appointment of a guardian. Rather than engaging with the Association’s scientific evidence and its relevance to the question of Hiasl’s personhood, ‘[t]he Austrian courts … (re)located the discussion onto a strictly legal terrain, thus making it more and more difficult for the applicants to return to the biologizing rhetoric of the initial petition’.Footnote 123 In this sense, Bevilaqua argues that the Court effectively ‘decided not to decide’.Footnote 124 This also occurred in Kiko’s case, where the Court dismissed the appeal on technical grounds, holding that the writ of habeas corpus is available only where the applicant challenges detention per se.
Where the courts did engage with the substantive arguments, they consistently demonstrated a stubborn unwillingness to expand legal categories and relied on unconvincing legal arguments to mask the fact that they simply did not want to recognize the legal rights and personhood of animals. In Tilikum v. Sea World, the Court declared that it would not recognize the Thirteenth Amendment as applicable to orcas because ‘“slavery” and “involuntary servitude” are uniquely human activities’.Footnote 125 Yet, as Maddux observes, ‘Courts have long recognized the malleability of constitutional application’ and there was no legal obstacle to the Court extending constitutional protection to the orcas if it had been inclined to do so.Footnote 126
Similarly, in Tommy’s case, the Court’s reasoning was unconvincing. It found that there must be symmetry between rights and duties, yet, as Peters notes, this ‘misses the current legal reality’ by ignoring the fact that children and mentally incapacitated individuals are afforded rights while owing no (or limited) legal responsibilities.Footnote 127 In a footnote, the Court acknowledged that certain humans were ‘less able to bear legal duties’ but simply stated that this did not alter the Court’s analysis.Footnote 128 Without explaining why, the Court simply deemed it ‘undeniable that, collectively, human beings possess the unique ability to bear legal responsibility’.Footnote 129
What accounts for the judicial reluctance in these cases to recognize animals’ rights and legal personhood even in the face of strong scientific evidence and no clear legal impediment? Naffine suggests that the reliance by animal advocates on scientific evidence and the abstract nature of legal categories may be misguided because such an approach wrongly assumes that animals’ ‘inherent nature … necessarily dictates to law and its conception of the person’.Footnote 130 In fact, the law ‘plays a critical and creative role’ in making legal persons and will expand the category of personhood only to the extent that this reflects societal understandings of ‘who is of value and why’.Footnote 131 Regarding Hiasl’s case, the Association claims it ‘only argue[d] that [Hiasl] is a person and not a thing according to today’s Austrian civil law. This is not a political decision’.Footnote 132 Yet, it would seem that the Association is mistaken here: in reality, the declaration of legal personhood is a deeply political matter.Footnote 133 As Boyle notes, although legal personhood is an ‘artificial and juridical construct’, it nevertheless furthers a ‘larger collective and political goal’.Footnote 134
Justice Jaffe’s statements in Hercules’ and Leo’s unsuccessful appeal appear to acknowledge this. Although the judge dismissed the appeal, she acknowledged that legal personhood is ‘not necessarily synonymous with being human’ and stated:
The parameters of legal personhood have been and will continue to be discussed and debated by legal theorists, commentators and courts, and will not be focused on semantics or biology, or even philosophy, but on the proper allocation of rights under the law, asking, in effect, who counts under our law.Footnote 135
As such, the unsuccessful outcomes in the above cases are likely to be attributable to the simple fact that society is not yet ready to abandon the human–animal divide. Commentators have offered various theories as to why this is the case. Some attribute the unwillingness to recognize animals as legal persons to the human desire to protect their vested interests in selling and consuming animals and animal products.Footnote 136 As Francione notes, recognizing animals as persons would not mean that their interests would always trump human interests but it would imply that we would be morally obliged to no longer use them for food, experiments, clothing or entertainment.Footnote 137 Others argue that humans define themselves in opposition to animals and that surrendering the human–animal divide would therefore threaten human identity.Footnote 138 As Spiegel notes, comparing the suffering of animals with that of humans can be ‘insulting’ because historically humans have defended their own rights and worth by placing animals beneath them in a hierarchy of species.Footnote 139 Stone suggests a less sinister explanation: a ‘general [disconnect] between the ideas that we hold and the things that we do’Footnote 140 – the ‘historically familiar lag between the idea and the action’.Footnote 141 In any event, what is clear is that the reluctance to recognize animals as legal persons ‘run[s] much deeper than linguistic or legal technicalities’.Footnote 142 What does this then mean for the pursuit of standing for animals? Are the barriers to achieving it (currently) insurmountable, such that the quest for legal personhood for animals should be abandoned, at least for now?
5 THE FUTURE OF STANDING FOR ANIMALS
Ostensibly, the cases discussed above have achieved little and their lack of success might suggest that animals are still quite some distance from achieving legal personhood.Footnote 143 The value in pursuing such cases any further, at least for now, may seem questionable. This is certainly the view expressed by some commentators. Lovvorn doubts that Stone’s vision ‘will be the future for animal law’,Footnote 144 while O’Sullivan argues that because the notion of human exceptionality is so firmly entrenched, alternative approaches should be pursued which address unequal treatment within species rather than between species.Footnote 145 Bryant is more tempered in her reservations. She acknowledges that cases pursuing legal personhood for animals can ‘slowly and laboriously shift the contours of the relations between humans and animals’, but argues this is the case only where ‘there is already sufficient sociocultural “space” in the conceptual boundary between humans and animals’.Footnote 146 Where there is no such ‘space’ – as these cases suggest – pursuing standing for animals is futile because such initiatives will not of themselves influence the normative environment regarding animal rights.Footnote 147
However, such views overlook the subtler contributions that these cases make to the animal advocacy movement and the fact that societal views about the value of animals’ lives are continually changing. Indeed, there are two key reasons why cases that seek to establish legal personhood for animals should continue to be pursued notwithstanding their lack of success to date. Firstly, there is clear evidence that the ‘sociocultural space’ identified by Bryant as necessary for the success of these cases is slowly developing and expanding such that future cases might soon succeed. Secondly, contrary to Bryant’s view, even when unsuccessful, these cases help to reshape societal views regarding animal rights and welfare, paving the way for future cases and strengthening the animal advocacy movement more generally.
5.1. Changing Societal Views
Examples abound of national and international legal developments that indicate increasing concern and respect for animals. The Preamble to the United Nations World Charter for Nature states that ‘[e]very form of life is unique, warranting respect regardless of its worth to man’;Footnote 148 forms of protection for animals are included in the respective constitutions of Germany and Switzerland;Footnote 149 and there has been a recent proliferation of animal parties in national politics.Footnote 150 It is clear that the categorization of animals as property is becoming increasingly unpalatable to modern-day conceptions of morality.Footnote 151 As Sunstein notes, ‘a growing public commitment to animal welfare is an unmistakable part of modern public law’.Footnote 152
The definite language used by the courts to date – ‘there is simply no basis to construe the Thirteenth Amendment as applying to non-humans’Footnote 153 – should not be discouraging; similarly strong and unyielding statements were made by courts during the quest to secure fundamental rights for other oppressed groups. Stone, for example, reminds us that in 1854 California’s highest court categorically described Chinese people as ‘a race of people whom nature has marked as inferior, and who are incapable of progress or intellectual development beyond a certain point’.Footnote 154
5.2. Pursuing Legal Personhood for Animals Can Reshape Societal Views
Even where unsuccessful, cases that pursue legal personhood for animals can contribute to creating the ‘sociocultural space’ that is necessary for any shift in the human–animal divide to occur. These cases, therefore, may lay the foundations for future successful cases and strengthen the animal advocacy movement more broadly. This can occur in three key ways. Firstly and most obviously, these cases publicize the animal rights cause. For example, Boyle notes that the Tilikum v. Sea World case may have ‘garner[ed] increased attention and concern for the whales’.Footnote 155 Secondly, encouraging comments made by courts, even when dismissing a case, may also lend legitimacy to the movement. In Tilikum v. Sea World, the Court described PETA’s efforts to assist the orcas as ‘laudable’.Footnote 156 Thirdly, the simple act of initiating a case that seeks to establish legal personhood for animals can be powerful. It forces the legal system to engage with the matter, if not substantively, then at the very least administratively or procedurally, via the standard machinery of court processes.
This can have both legitimizing and humanizing effects. Bevilaqua identifies a number of ways in which the passage of Hiasl’s case through the legal system had such effects, lending credence to the cause while also humanizing Hiasl and chimpanzees generally. Firstly, Bevilaqua notes that even the simple act of naming an animal as a plaintiff can be humanizing.Footnote 157 Secondly, she describes how, at the hearing, the judge’s first step ‘was to demand legal proof of [Hiasl’s] identity’, just as would have occurred had the guardianship application been made on behalf of a human.Footnote 158 Thirdly, the Court applied the same threshold criteria for guardianship to Hiasl that are applied to human applicants – i.e. the Court considered whether Hiasl was handicapped and whether he faced imminent threat – and no mention was made of the fact that he was a chimpanzee and unable to have a guardian appointed for that reason.Footnote 159 Finally, although the ECtHR refused to hear Hiasl’s claim, it nevertheless acknowledged the application, thereby indirectly lending it legitimacy.Footnote 160
Engagement with the justice system similarly gave legitimacy to the chimpanzees’ plight in the NhRP cases, irrespective of the fact that all three cases failed. For example, when at one stage Tommy’s owner threatened to remove him from the state of New York, thereby frustrating his case, the Court granted an injunction to prevent his removal.Footnote 161 As the NhRP noted, this process suggested that the Court was ‘open to deciding the case on the merits of the personhood issues that are involved’, regardless of the ultimate outcome.Footnote 162 The legitimizing effect of legal processes will, of course, be stronger still where the courts actually engage with the substantive arguments. Boyle suggests that in Tilikum v. Sea World, simply by considering whether or not the Thirteenth Amendment applied to orcas, the Court may have ‘implicitly acknowledged … underlying legal personhood’.Footnote 163 While these legitimizing and humanizing effects are subtle and indirect, they are nevertheless powerful.
It should be noted, however, that cases seeking to establish legal personhood for animals can also have negative effects. Failed cases may establish legal precedents that entrench the status quo and ‘undermine organizing momentum’.Footnote 164 Furthermore, in light of prevailing tensions between the welfarist and rights-based approaches, these cases could be criticized for ‘atomiz[ing] struggles, dividing and separating rather than uniting those who desire social change’.Footnote 165 However, a study of animal rights cases in the US revealed that overall such cases do have ‘educational effects’ and help in advancing reform goals.Footnote 166 The study also revealed that lawyers involved in the cases were aware of the limitations of litigation and that even a successful case could not have a transformative effect without ‘well-coordinated political actions’.Footnote 167
5.3. Consciously Pursuing Legal Personhood for Non-Human Animals
For the above two reasons, cases seeking to establish legal personhood for non-human animals should continue to be pursued. However, it is necessary to pursue such cases consciously, locating a litigation strategy within a broader political project and acknowledging any criticism associated with such a project. Abolitionists who seek to dismantle the property status of animals may view these cases as consistent with their political project and would therefore support them.Footnote 168 However, as discussed above, not all commentators support the quest for legal personhood for animals, as envisioned by these cases. Some fear that the pursuit of rights for animals could undermine human rights, while others argue that welfarist approaches are more likely to improve the lives of animals in the short term. Even if critiques such as these are ultimately rejected and a rights-based approach is favoured, the concerns and arguments raised by these commentators should be considered and addressed.
Furthermore, although the cases discussed above purportedly seek to break down the human–animal divide, pursuing legal personhood only for certain animals may conflict with this goal. In fact, this approach could reinforce the existing hierarchy between ‘us’ and ‘them’ by inviting certain animals across the divide and excluding those who do not possess relevant human traits.Footnote 169 As Bevilaqua notes, ‘transposing [chimpanzees] from one extreme to the other of the traditional legal dualism … does not affect the person/thing overarching scheme’.Footnote 170 It simply transports some animals across the divide while leaving that divide very much intact. In so doing, it ‘reassert[s] the “real” human person as the exemplary model of the legal subject’.Footnote 171
In addition, Bryant argues that pursing personhood only for certain animals disregards ‘the “web of life”’ within which all species are situated’.Footnote 172 Similarly, Steiner challenges the criteria for personhood that these cases establish and argues that capacity for subjective awareness should not be what qualifies one for the endowment of legal rights.Footnote 173 He discusses the ‘purposive’ nature of bees and how they also struggle to survive, noting that ‘[t]hey can fare well or ill, regardless of whether they are “subjectively aware” of their fortunes, and regardless of how much their awareness (if they have any) resembles our own’.Footnote 174 Steiner therefore proposes a ‘biocentric kinship’ model as an alternative approach, which would recognize ‘all beings that struggle for life and well-being’.Footnote 175
However, while this criticism is valid, it may be necessary for strategic purposes initially to pursue legal personhood for a limited number of species only. The lack of success to date suggests that a more ambitious project would be unrealistic and may risk alienating the animal advocacy movement. An incremental approach, initially focused on securing personhood for certain species, may be more viable, both legally and politically.Footnote 176 As Maher notes, if these cases ‘succeed in even a limited redrawing of the line, such a victory will no doubt raise consciousness concerning speciesism among jurists and [the] public alike, opening the door to legal challenges by other species’.Footnote 177
Ultimately, litigation is ‘another cog in the campaign engine’ – it does not provide all the answers, nor does it have the capacity to effect a utopian vision for all human/animal relations.Footnote 178 Francione argues that full recognition of animal rights will ultimately require a ‘paradigm shift’ that can be driven only via a political and social movement.Footnote 179 Nevertheless, this does not mean that the law, and attempts to develop the law in a manner favourable to animals, have no role to play. We should continue to pursue these cases, being ever mindful of their limitations.
6 CONCLUSION
Since the publication of ‘Trees’, the pursuit of standing for non-human animals has become a key strategy for animal advocates seeking to strengthen animal protection under the law.Footnote 180 For advocates favouring a rights-based approach, the pursuit of standing has encompassed the broader aim of establishing animals as legal persons and rights bearers, in an attempt to break down extant barriers between humans and animals and fundamentally redefine our relationship with other living beings. However, attempts to establish standing for animals have so far been unsuccessful, even in a ‘narrow’, purely procedural sense. As the case studies demonstrate, there remains ‘profound legal resistance to the idea that law is for (non-human) animals and that animals should be rights holders and therefore legal persons’.Footnote 181 This resistance reflects the fact that the question of standing for animals extends far beyond matters of science or legal technicality and touches upon fundamental, and ultimately political, questions regarding human identity and who counts in the eyes of society, and therefore the law.
The lack of success to date might suggest that further attempts to establish animals’ legal personhood in a ‘broad’ sense would be futile. However, this article has argued that cases seeking to establish the legal personhood of non-human animals should continue to be pursued. The courts are a barometer of public consciousness and, so far, they have indicated that society is not yet ready to recognize animals as legal persons. However, there are clear signs that societal views are shifting and that concern for the lives of animals is becoming a key feature of contemporary notions of morality. Furthermore, even where unsuccessful, cases seeking to establish legal personhood for animals help to create a normative environment that allows for a fundamental redefinition of our relationship with animals to occur. Stone noted in ‘Trees’ that ‘there will be resistance to giving the thing “rights” until it can be seen and valued for itself; yet, it is hard to see it and value it for itself until we can bring ourselves to give it “rights”’.Footnote 182 Ultimately, cases that seek to establish legal personhood for animals ask the courts to declare whether we are yet ready to ‘bring ourselves’ to recognize the rights of animals. The answer so far has been ‘no’, but it is important to keep asking the question. The courts’ responses to date are not the final word and the very act of asking can be transformative.
