Is there any relationship between the disposition of some humans to empathize with and respond to the interests of nonhuman animals, and the criteria we ought to use for determining who becomes a legal person? This brief essay argues that there is, by employing a thick conception of legal personhood, and suggests that criteria be used to determine who constitutes our legality in the future.Dillard comments that
In the movie Blade Runner, the earth is occupied by both humans and by artificial humans created to serve. The artificial humans do not enjoy the same legal rights as the humans—they are not full legal persons. They are, however, almost physically indistinguishable from humans, and can only be identified though psychological evaluations in which they are closely monitored for physiological responses to the questions asked of them. In a famous scene, a subject is carefully questioned about how he would respond to seeing a turtle that is lying trapped on its back in the desert, baking in the hot sun.3 Only true humans are expected to react to the image with empathy, and to feel a strong and physiologically detectable impulse to save the creature. In this scene, the subject being questioned feels nothing and is therefore not human.
This is an odd way of thinking about things, considering the constancy with which humans willingly inflict suffering and death upon animals in factory farms, laboratories, hunting preserves, and abusive and neglectful homes. Presuming that those willing to inflict suffering and death upon animals also display less empathy - which at least one recent study might suggest - a good portion of humans alive today would be relegated to lesser status under Blade Runner’s test.
Yet, consider that being a legal person is a matter of degree rather than an all or nothing standard. The degree reflects which particular bundle of legal rights and duties one has (e.g., minors have different bundles than parolees, temporary residents, or corporations) such that each is to some lesser or greater degree a legal person. Persons convicted of animal cruelty - and especially those incarcerated for the crime - may lose many of their rights and much of their legal personhood, in part because they lacked empathy, or at least failed to respond and act upon it. They are indeed relegated to lesser status and, in some cases, excluded from society entirely.
Cruelty and the lack of empathy it entails are grounds not only for removing persons from full participation in the legal system, but also for preventing admission to the legal system by serving as a bar to immigration into the United States (U.S.). To the extent children are not full legal persons, not fully “admitted” to the system of full rights and duties that most adults enjoy, they too are first taught to empathize with animals, through our prevalent and mandatory humane education laws. Though compliance with the teaching is hardly a bar to admission, the intent is clear.
Whether it is empathy or some other concept we wish to assign as the placeholder, there appears to be some relationship between being other-regarding—that is, the empirically measurable capacity and disposition or tendency to place one’s self in another’s position (even or perhaps especially in the very different position of an animal) and alter one’s behavior in response—and the concept of legal personhood. This Introduction will touch upon that relationship, asking:
(1) whether a thick conception of legal personhood explains the link and whether, when we value legal personhood, we are really valuing empathy;
(2) whether legal systems (or “legalities”), which are presumably made up of legal persons, ought to then be made up of persons actually disposed, to some minimum degree, to empathize with others in their day to day lives; and
(3) what the foregoing would entail for basic constitutional principles in such a legal system.
The question addressed in this Introduction is not the commonly addressed question of whether animals are or should be legal persons, though by now it is well known that they display something similar to the empathy that humans display. The question addressed here is whether, to be consistent when applying the rationale we use to exclude animals from being legal persons, we must also limit legal personhood to certain humans in ways very different from the way we do now. While those interested in animal law may find an exploration of human personhood beside the point, rigorous thinking about humans’ role in the nonhuman world demands thinking about who we are as a species - and, more importantly - who we ought to be.