To help explain the importance of legal personhood to my classes on “Animal Rights Jurisprudence,” I draw an “Animal Rights Pyramid” with four horizontal lines. It sets out four requirements necessary for any plaintiff to vindicate a legal right. The first and lowest level is literally and figuratively foundational. Does a nonhuman animal or any being have the capacity to possess any legal right at all? This is what the Nonhuman Rights Project is initially focusing on. What arguments might persuade a common law appellate court that a nonhuman animal plaintiff is a legal person, that is, a being with the capacity for possessing any legal right?
Imagine a legal person as an empty “rights container.” The Nonhuman Rights Project is preparing litigation intended to persuade a common law high court that a nonhuman animal, like a human, is a legal person–a “rights container”–an entity with the capacity for legal rights. In a few minutes, I will get to the arguments that support a finding of Level One legal capacity. Once a court agrees with them, we move up to Level Two legal rights.
As Level One asks whether a plaintiff has the capacity to possess any legal right, Level Two asks to what rights is she then entitled? I ask my students to imagine they are holding a pitcher filled with rights, ready to be dripped into the “rights container”– our nonhuman animal plaintiff–and which was determined in Level One. We must justify each right we drip into our “container” to a court.
Once we have dripped in as many rights as a court will agree with, the Third Level asks: does our plaintiff have the private right to assert her cause of action? The cases the Nonhuman Rights Project is considering will assert common law causes of action that do give private rights of action. We reach Level Four, the top of the pyramid. Level Four “standing” requires the defendant to have committed the act that injured the plaintiff and can be redressed by the court. “Standing” is an issue so unusual that lawyers who represent human beings and other legal persons rarely consider it, for it automatically exists.
What are the arguments for Level One legal capacity and Level Two legal rights? ... I had long asked myself: what is it that entitles us humans to legal personhood? Why do we have certain fundamental rights? Where do they come from? I had no preconceptions; I wanted to know. I spent six years pouring through books at the Boston University library. They took me past Hammurabi’s Code, to the Hebrews, Greeks, and Romans, through the dawn of English common law, all the way to now. These were not easy books and few people ever checked them out of the library. I would leave them protruding an inch from the stacks. When I returned in a year or three, they would be still be sticking out that inch. Those books helped me realize that one’s most fundamental rights are intended to protect one’s most fundamental interests and that, in human beings, these were bodily liberty and bodily integrity. Bodily liberty is so important that, if you are a very bad person, you may be punished by having your bodily liberty taken away. Bodily integrity may even be more important. We may not touch other humans without their consent.
Courts recognize that bodily liberty and bodily integrity are fundamental human interests protected by fundamental human rights. What is a sufficient condition for having fundamental rights? Not a necessary condition, a sufficient condition? I kept bumping into the idea of dignity. Dignity has many meanings. But dignity in the sense of being a quality imbued with intrinsic and incomparable value was something courts, legislators, and international treaties embraced. As I tried to understand what courts meant by dignity, I kept encountering the idea of autonomy.
We humans are, to some important extent, autonomous and self-directed. Judges repeatedly emphasize this. If autonomy is sufficient for fundamental human rights–and if it is not, then what is?–it ought to be sufficient for fundamental rights of nonhuman beings who possess it. I wrestled with defining the minimum level of autonomy sufficient for legal personhood and came up with what I called in Drawing the Line, “practical autonomy.”
Practical autonomy has three elements. First, one must be cognitively complex enough to want something. Second, one must be able to act intentionally to achieve one’s desires. Third, one must have a sense of self complex enough so that it matters to whether one’s achieves one’s own goals.
Consciousness is implied in “practical autonomy.” One who is not conscious cannot be autonomous. It is easy for me to realize I am conscious. It is harder to prove someone else is. Indeed I cannot prove that anyone else is conscious. But it should be sufficient to show that the other being, whether mom or mom’s dog, acts as I do when I am conscious. And from an evolutionary point of view, the closer the common ancestry is between any two beings, the more likely it is that their similar behaviors have similar mental causes. I am conscious. I engage in activities that require consciousness. If a chimpanzee acts the same way, I can reasonably conclude she is conscious too. After all, our last common ancestor lived about six million years ago–not long in evolutionary time–and we have remarkably similar brains and genes.
What are the arguments that–for example–a chimpanzee should have Level Two rights? Two broad categories of common law rights exist, noncomparative rights and comparative rights. Noncomparative rights are rights to which one is entitled because of who one is or how one is put together, without comparing her to someone else. A liberty right is a noncomparative right, and liberty rights are what I have been talking about today.