In order to understand the legal status of nonhuman animals it is necessary to understand what is fundamental about how legal systems work. Basically, legal systems around the world are dependent on the idea of legal persons, who are rights holders. There’s a distinction in law between two kinds of entities: persons and nonpersons. The former have rights, and the latter are mere things that can be owned and which don’t have rights. This is the case regardless of the legal system that exists in a country.
There are four types of legal systems around the world:
There are countries that combine elements from different systems. The most widespread legal systems are those based on Civil Law and Common Law. In them, there is a clear distinction made between entities that can sue and entities that cannot sue and can only be the property of others. The entities that belong to the first category are legal persons. Those that belong to the second category are objects. Significant legal protection can only be granted to entities having legal rights, and rights can only really be held by legal persons.
The law may grant some protection to some non-persons, but as long as it doesn’t recognize those entities as rights holders, they will be regarded as things. An example of this is the legal protection that works of art have. We may not be legally allowed to destroy an important artwork even if it’s our property. However, this doesn’t mean that the work of art has rights. It doesn’t, because it’s not a legal person.
Legal personhood entails that one can’t be used by others as a mere object, but rather that one has interests that the law must respect. The protection that works of art receive is not granted to them based on the idea that works of arts are subjects with interests, but rather for other purposes, such as protecting the interests of legal persons or communities of legal persons in the continued existence of that work of art.
Currently, in every country, nonhuman animals are considered in law to be nonpersons. This is a direct consequence of the widespread prevalence of speciesist attitudes. And this has very important implications, since it means that they cannot have any significant protection, and they can be owned as property.1 This is what makes it legally possible for nonhuman animals to be treated as resources in almost any way that humans want, with some regulations limiting that use, but rarely prohibiting it altogether if many people support it.
For this reason, granting significant legal protection to nonhuman animals can only be done in two ways:
(1) Completely changing the legal system by replacing it with a brand new one
(2) Granting nonhuman animals the status of legal rights holders
The first possible task seems extremely difficult to attain. Defenders of the legal protection of nonhuman animals would find it much easier to follow the second course of action. This entails that those who defend that nonhuman animals be protected by law have strong reasons to defend that they be granted legal rights.2 Within the current legal system this is the only real way that their interests can seriously be taken into account. Otherwise, there will be no guarantee that there will be an end to the use of nonhuman animals for any of the purposes that humans want to exploit them for, and animals will continue to be denied protection from most of the harms that they may suffer.
Those who defend the moral consideration of nonhuman animals will want them to be legally protected in a meaningful way. Some approaches in ethics argue that those who are morally considerable have, or should be granted, moral rights (see the section on the defenses of the moral consideration of nonhuman animals from different ethical approaches), while other approaches deny this, because they don’t believe there is such a thing as moral rights and they think they are not useful as a fiction either. However, all of these approaches are compatible with the support of legal rights for nonhuman animals, given the reasons explained above.
Therefore, those who defend nonhuman animals will campaign for the recognition of rights for them. Animal advocates can support legal rights for animals regardless of their approach, which can be rights, egalitarian, virtue or care ethics, utilitarian, suffering-focused or based on some other perspective. The position that animals should have legal rights does not necessarily imply that animals, or humans or anyone else, have moral rights, too. The claim that animals should have legal rights can be defended by anyone who assumes nonhuman animals should be provided significant legal protection.
There are two main types of rights with which the law can protect us. A set of terms that is often used to describe them is that of “negative rights” and “positive rights”. Negative rights are those that entitle rights holders not to be negatively affected in certain ways (for instance, by being killed or assaulted). Positive rights are those that entitle rights holders to be positively affected in certain ways (for instance, to gain access to health care or to be assisted if they suffer an accident).
In most places humans currently enjoy both negative and positive rights. In line with this, achieving legal personhood for nonhuman animals would have important consequences in terms of both negatives and positive rights.3 If nonhuman animals were recognized as legal rights holders, that would mean that their use as resources, which they have to endure today on a massive scale, would no longer be allowed. This would come from the granting of negative rights not to be owned or used as a resource.
Moreover, granting someone negative rights such as the right not to be used as a resource means that their interests should be taken into account. Usually when we take someone’s interests into account, it means we care about their wellbeing, and we care not only about not being the cause of their harm, but also about helping them if they are suffering for some other reason. If there is recognition of humans having positive legal rights (that is, rights to be assisted when in need), then nonhuman animals should be afforded the protection of such rights as well.
This entails that when nonhuman animals are in need, humans should provide them help, even if their situation is not due to exploitation by humans, but to other, natural, causes.4 This happens already in most countries in the case of human beings, and it would be possible for nonhuman animals to have similar protection if they had a different legal status. Giving nonhuman animals the protection they need would mean granting them both negative rights not to be exploited and also positive rights to be aided.
All this doesn’t mean that it’s possible to grant what would be in the best interests of everyone. Often different individuals have competing interests that cannot be satisfied collectively.5 That is, there may be conflicts of interests in which what’s in the interests of one goes against what’s in the interests of another. Despite this, the number of legal rights that can’t be protected could be kept to a minimum, so that the interests of legal rights holders would be protected as much as possible.
This happens already today in most countries in the case of the rights of human beings. Similarly, some nonhuman animals also have conflicting interests, which in many situations cannot all be protected (as often happens in the wild when interests in survival are in conflict). But if nonhuman animals had the status of legal persons, their interests could be protected as much as possible as we have seen happens, ideally at least, in the case of humans.
Cavalieri, P. & Singer, P. (eds.) (1993) The ‘Great Ape’ Project: Equality beyond humanity, London: Fourth Estate.
Cavalieri, P. (2001) The animal question: Why nonhuman animals deserve human rights, New York: Oxford University Press.
Dunayer, J. (2004) Speciesism, Derwood: Ryce.
Dworkin, R. M. (1978 ) Taking rights seriously, rev. ed., London: Duckworth.
Dworkin, R. M. (1986) Law’s empire, London: Fontana.
Edmundson, W. A. (2004) An introduction to rights, New York: Cambridge University Press.
Fasel, R.; Blattner, C.; Mannino, A. & Baumann, T. (2016) Fundamental rights for primates. Policy paper by Sentience Politics, Sentience Politics [accessed on 21 January 2017].
Favre, D. (2000) “Equitable self-ownership for animals”, Duke Law Journal, 50, pp. 473-502.
Francione, G. L. (2008) Animals as persons: Essays on the abolition of animal exploitation, New York: Columbia University Press.
Garner, R. (2002) “Political ideology and the legal status of animals”, Animal Law Review, 8, pp. 77-91.
Halpin, A. (1997) Rights and law: Analysis and theory, Oxford: Hart.
Hart, H. L. A. (1994) The concept of law, Oxford: Clarendon.
Kelsen, H. (1946) General theory of law and state, Cambridge: Harvard University Press.
Korsgaard, C. M. (2013) “Personhood, animals, and the law”, Think, 12 (34), pp. 25-32.
Michel, M. & Kayasseh, E. S. (2011) “The legal situation of animals in Switzerland: Two steps forward, one step back – many steps to go”, Journal of Animal Law, 7, pp. 1-42 [accessed on 19 April 2016].
Sharpe, R. J. & McMahon, P. I. (2008) The Persons case: The origins and legacy of the fight for legal personhood, Toronto: University of Toronto Press.
Steiner, H. (1994) An essay on rights, Oxford: Blackwell.
Sumner, L. W. (1987) The moral foundation of rights, Oxford: Clarendon.
Sunstein, C. R. (2003) “The rights of animals”, The University of Chicago Law Review, 70, pp. 387-401 [accessed on 19 February 2017].
Wellman, C. (1985) A theory of rights, Totowa: Rowman & Allanheld.
White, A. R. (1984) Rights, Oxford: Basil Blackwell.
Wise, S. M. (2000) Rattling the cage: Toward legal rights for animals, London: Profile.
Wise, Steven M. (2002) Unlocking the cage: Science and the case for animal rights, Oxford: Perseus.
1 See for instance Tannenbaum, J. (1995) “Animals and the law: Property, cruelty, rights”, Social Research, 62, pp. 539-607; Francione, G. L. (1995) Animals, property and the Law, Philadelphia: Temple University Press; McCartney-Smith, E. (1998) “Can nonhuman animals find tort protection in a human-centered common law”, Animal Law Review, 4, pp. 173-210; Bryant, T. L. (2008) “Sacrificing the sacrifice of animals: Legal personhood for animals, the status of animals as property, and the presumed primacy of humans”, Rutgers Law Journal, 39, pp. 247-330 [accessed on 11 November 2013]; Maddux, E. A. (2012) “Time to stand: Exploring the past, present, and future of nonhuman animal standing”, Wake Forest Law Review, 47, pp. 1243-1267.
2 Feinberg, J. (1974) “The rights of animals and future generations”, in Blackstone W. (ed.) Philosophy and environmental risis, Athens: University of Georgia Press, pp. 43-78. Finsen, S. (1997) “Obstacles to legal rights for animals: Can we get there from here?”, Animal Law Review, 3, pp. i-vi. Teubner, G. (2006) “Rights of non-humans? Electronic agents and animals as new actors in politics and law”, Journal of Law and Society, 33, pp. 497-521.
3 Shue, H. (1996) Basic rights: Subsistence, affluence, and U.S. foreign policy, Princeton: Princeton University Press. Wenar, L. (2011 ) “Rights”, in Zalta, E. N. (ed.) The Stanford encyclopedia of philosophy, fall 2015 ed., Stanford: Metaphysics Research Lab, Stanford University [accessed on 12 November 2016].
4 Kirkwood, J. K. & Sainsbury, A. W. (1996) “Ethics of interventions for the welfare of free-living wild animals”, Animal Welfare, 5, pp. 235-243. Nussbaum, M. C. (2006) Frontiers of justice: Disability, nationality, species membership, Cambridge: Harvard University Press. Faria, C. & Paez, E. (2015) “Animals in need: The problem of wild animal suffering and intervention in nature”, Relations: Beyond Anthropocentrism, 3, pp. 7-13. Faria, C. (2016) Animal ethics goes wild: The problem of wild animal suffering and intervention in nature, Barcelona: Universitat Pompeu Fabra.
5 See about this Sapontzis, S. F. (1987) Morals, reason, and animals, Philadelphia: Temple University Press.