Justice

'What if animals are moral agents?' by Taimie L. Bryant in (2024) 109 Cornell Law Review 1734 comments 

In an essay titled Should Animals Be Able to Sue People?, Professor Sherry Colb considers Justice v. Vercher, a lawsuit brought by Justice, a horse seeking damages for injuries resulting from his previous owner’s gross negligence. Gwendolyn Vercher had already been convicted of animal cruelty and paid the statutorily required restitution, but that restitution was limited to costs incurred for Justice’s care up to the time of the hearing. Justice will need specialized lifelong care. Represented by the Animal Legal Defense Fund, Justice brought suit in his own name for monetary damages sufficient to cover those costs. Vercher responded with a motion to dismiss on the ground that Justice lacked standing to sue her. 

Among other arguments in opposition to the idea of Justice having standing to sue, Colb considers the argument that Justice is not a “legal person” because he lacks the ability to fulfill legal duties, which is frequently viewed by courts as necessary for holding legal rights. As Colb puts it, there is an “idea that only those who can respect others’ rights are entitled to rights of their own.” Colb agrees that Justice does not have a legal obligation to respect the rights of humans or other animals, but she analogizes Justice’s situation to that of infants and cognitively incapacitated humans whose rights are recognized and protected without such a requirement of capacity to respect others’ rights or to bear duties in relation to them. Known as the “argument from marginal cases,” it is a claim that recognizing animals as holders of rights (even if limited) is required as a matter of justice arising from the requirement that like entities be treated alike. For Colb, animals’ likeness to humans lies in their sentience, not in their cognitive capacities or their ability to perform legal duties to others. Thus, they should be included in the moral community, and their membership in that community should be reflected in the law in the form of rights and standing to enforce those rights. 

Colb also argues that Justice is the logical plaintiff because he is the actual victim of wrongdoing. This critical point can be missed during abstract debate about whether or not a horse can or should be recognized as the plaintiff in a lawsuit. No one doubts that Vercher lacked the right as Justice’s owner to starve him, fail to provide shelter for him during severe weather conditions, or allow his skin to deteriorate for lack of cleaning and appropriate medical care. No one doubts that Justice is the intended beneficiary of the anticruelty statutes under which Vercher was convicted. What they doubt is that those statutes confer legal rights or that Justice himself should be able to sue her in his own name. Something gets in the way of accepting that the actual, direct victim of acts explicitly recognized under the law as wrongful should be able to sue in their own name, even if that victim is an animal. Yet, if not Justice, who would have standing to seek the restitution needed to address the harm inflicted on Justice? Legal standing to address harm to animals is notoriously difficult. Animals cannot yet sue in their own names, and humans cannot reliably redress wrongs to animals except in limited situations in which an owner of an injured or killed animal seeks redress for harm to their property. Animals are not yet understood by courts or legislatures as the sort of beings entitled to be “legal persons.” 

Whether an animal can be a legal person was raised also in the case of Happy, an elephant living a solitary life in a grossly insufficient enclosure at the Bronx Zoo. Unlike Justice’s case, Happy’s case was not grounded in tort law. Seeking Happy’s transfer to an appropriate sanctuary, the Nonhuman Rights Project filed a writ of habeas corpus petition on her behalf. Two lower courts rejected the petition on the ground that the writ could not be used for nonhumans because they are not legal persons, basing their decisions on the jurisdiction’s precedent established in a habeas case involving a chimpanzee. The Nonhuman Rights Project filed an appeal in the New York Court of Appeals, seeking to challenge that precedent and to secure for Happy a writ that would allow justice to be done in the form of moving her to a sanctuary where her needs could be met. However, the New York Court of Appeals ultimately adopted the reasoning and outcome of the lower courts. The courts’ reasoning was much the same as in Justice v. Vercher: Animals cannot be legal persons because they are not humans and cannot be holders of legal duties. It is not clear that social contract theory, with its apparently required linkage of rights and duties, is particularly helpful for understanding the recognition of rights and duties of humans, let alone animals. Nevertheless, as it is currently understood, social contract theory forecloses animals from the community of legal rights-holders, even if they are understood to hold moral rights. 

While the matter was pending, Professor Colb, Professor Emeritus Laurence Tribe, and Professor Michael Dorf submitted an amicus brief addressing the contention that Happy could not be a legal person because the ability to bear duties is necessary for having rights. They argued that Happy is a legal person for purposes of New York’s common law writ of habeas corpus, “which has a noble tradition of expanding the ranks of rights-holders,” and that it is a matter of justice that the Court recognize it in this case, as it had in previous habeas corpus cases involving enslaved individuals, women, children, and others not recognized at the time as having any type of autonomous legal status.  On a case-by-case basis, the courts had considered as a matter of justice—not rights—whether to provide relief through the “Great Writ.” The writ is designed to promote justice, not simply to validate or reject the status of a petitioner as a legal person. Whether or not Happy meets some standard of rights and duty-holding, it is unjust, the amicus brief authors wrote, for the court to deny the writ petition of Happy, a sentient, social being with complex cognitive capacities forcibly brought to this country and kept in isolation from others of her species in an enclosure with grossly insufficient space for her needs, simply because she is not a human. Noting that the request for relief was as modest as those that led to historical uses of the writ, the authors pointed out that granting the writ in Happy’s case would not result in a change in her legal status in all conceivable contexts; it would result only in her moving from a harmful environment to a sanctuary where she would suffer less and have greater ability to flourish. Nor would it result in a change of the legal status of other animals; a writ corrects injustice only in the limited ways and contexts spelled out in the writ. 

To animal protectionists, legal recognition of animals like Justice and Happy as legal persons is a matter of social justice, whether or not they have legal rights. The Nonhuman Rights Project’s legal representation of Happy resonates most strongly with that position since the writ of habeas corpus had been used previously to promote justice for those who lacked legal rights. But this just raises questions about the nature of “social justice” and the sort of being that can be the focus of social justice claims. Black’s Law Dictionary defines “social justice” as “[a] fair and proper administration of the laws that conform to the natural law that covers all people regardless of gender, origin, possessions or religion” and further points to the definition of “civil rights.” In short, it is a conception of justice that connects legal structures to “natural law,” with humans as its focus. Animals are not humans, and so animal protectionists must make three arguments to support the claim that animals should be protected as a matter of social justice. First, they must argue that animals are sufficiently like humans such that justice requires treating them alike. Second, they must argue that “like treatment” means bearing legal rights. Third, they must argue that justice also requires legal opportunity to enforce the rights they hold. No animal protectionist has ever argued that comparability to humans should result in the same rights that humans hold. For instance, no one has yet argued that animals should have legal voting rights, although Christopher Stone and Robin Wall Kimmerer have come close. 

As to the first matter (sufficient similarity to humans), animal protectionists have argued that animals are similar enough to humans because of sentience or cognitive capacity. Treating sentience (the capacity to suffer) as the standard of comparison results in the inclusion of the most animals in the moral community but limits the reach of legal rights to preventing the infliction of suffering. This is the standard basis of state anticruelty statutes, although any amount of human-inflicted suffering is allowed under those laws if there is “necessity.” “Necessity” sweeps broadly to include any treatment or use of animals that benefits humans. Thus, anticruelty statutes protect only against purely gratuitous, senseless infliction of severe suffering and death. Moreover, as the Vercher case shows, animals lack standing to use the law even in those situations. 

Advocacy for animals based on their similar cognitive capacity to humans covers fewer types of animals, although the types of animals demonstrated to have such capacity has grown to include animals as diverse as whales, elephants, dogs, and bees. As in the case of sentience as a basis, recognition of the human-like cognitive capacity of some animals has resulted in very few legal benefits specific to that ability. For instance, primates can still be used in experiments without restraints on research design that requires their enduring horrific suffering and elephants can still be kept in cramped enclosures, but their housing must include opportunities for intellectual stimulation. Unfortunately, the animals themselves and those who care about them lack standing to enforce even those limited protections. 

This Article identifies a specific capacity—animals’ capacity to make moral decisions and to act morally—to consider whether recognition of that capacity as similar to humans’ moral capacity justifies inclusion in the community of legal rights-holders with the legal opportunity to enforce those rights. At the heart of the argument that animals must be able to bear legal obligations in order to have rights is an argument about moral agency. As Matthew Kramer has written, “[t]o bear a legal obligation is simply to be placed under it,” and meaningful comprehension of the obligation is a “separate matter.” As it is now, billions of animals are placed under the obligation to serve the interests of humans in research, entertainment, and food production. What is meant by “holding duties” then is actually “voluntarily and knowingly holding duties as morally binding obligations.” Even as to humans, this is not particularly convincing, but where animals are concerned, a deeper problem is that animals are not believed to be capable of holding duties as a moral matter at all because they are not understood to have moral agency. Only humans capable of abstract reasoning about moral behavior and members of the archetypal class of humans (such as infants and cognitively impaired humans) are considered to have moral agency sufficient to hold duties and thus hold rights. 

Animal protectionists often accept the characterization of animals as lacking moral agency and use the argument from marginal cases to defend their view that animals should be protected despite their lack of moral agency, just as many humans (children and those with cognitive incapacity) lack moral agency. However, this view should be reconsidered in light of emerging scholarship revealing that the type of moral decision-making by at least some animals is comparable to that of humans. Instead of focusing narrowly on whether animals canhold obligations and duties towards humans who would bear reciprocal duties towards animals, it could prove fruitful and just to consider whether animals have moral consciousness that leads to morally-based behaviors and, if so, whether their ability to make and act on moral decisions makes our failure to protect them as legal persons unconscionable.

Feathers and Theory

'The superb A Bird’s-Eye View of Animals in the Law' by Visa Kurki in (2024) The Modern Law Review comments 

The article develops an analytic account of nonhuman animals’ current legal status. Animals are often characterised as legal things and property, but this characterisation is both simplistic and, in some cases, incorrect. The article seeks to dispel a number of orthodoxies regarding the legal status of animals and offer a more nuanced and contextual account. The emphasis is on Western law, with a particular focus on European jurisdictions. The article approaches animal legal status in terms of two historical regimes: the Commodity Regime and the More-than-Commodity Regime. While treating animals as commodities has been the rule for millennia, the situation has recently become more multifaceted. For instance, the private law status of companion animals has shifted away from that of commodities. Furthermore, it is argued that some wild animals have stopped being legal things altogether as a result of EU wildlife law. The multifarious arguments are then synthesised in order to produce a bird’s-eye view of animals in the law.

Kurki argues

The legal situation of animals is often summarised as animals are ‘things’, ‘property’ or ‘legal objects’. However, I will claim that there is no meaningful single label – such as ‘thing’ or ‘legal object’– that all animals would fall under. The argument will rely on the methodological premise that the legal status of animals is not best understood by faithfully employing the labels and categories offered by the legislator and judges. Instead of this deferential approach, I will show how a substantive approach – looking at the content of the norms governing animals’ legal situation – will yield a more accurate description. 

The traditional theoretical approach to animals’ legal status is based on two bifurcations: thing/person and protection/rights. First, everything is either a legal thing or a legal person. Things are rightless entities that can be owned, whereas persons have rights. Even though things cannot have rights, they can regardless be protected. Under animal protection, animals are things, protected from unnecessary suffering. If the vision of animal rights is realised, on the other hand, animals are turned into right-holding persons. Hence, the protection/rights bifurcation builds upon the person/thing categorisation. 

However, these traditional bifurcations are problematic in many regards. They overemphasise the role of private law and neglect the perspectives of other areas of law. There are already plenty of examples of how the practice of animal law has advanced in ways that traditional theories have trouble explaining. For instance, the declarations of some European countries that animals are ‘not things’ – but not persons either – are not straightforwardly explainable under the traditional person/thing bifurcation. Another example is the developing legislation and case law in some parts of Brazil according to which certain animals are ‘non-personal subjects of rights’. A new explanation of animals’ legal status is needed. 

A more holistic approach will show,first,that though most animals are still legal things, they are legally more than merely things – their legal status can- not be exhaustively described by merely making reference to thinghood; and second, the legal thinghood of animals is of a special kind. Furthermore,I will argue that the legal status of animals is not necessarily determined by top-down categorisations by legislators or judges. Rather, the property status of animals may be ‘crowded out’ by increasing legal protections, which may in some cases entail that classifying animals as property is no longer appropriate. This will yield the conclusion that some animals – primarily certain protected wild animals – are not legal things. 

Not all of these conclusions apply to every Western legal system. This article is an exercise in particular jurisprudence: the theoretical analysis of certain elements of modern Western legal thought and legal systems.I will seek to distil certain unifying features of Western legal systems,and present them as ideal-types.The presented analysis and framework will provide a better theoretical understanding of animals’ legal status but may not correspond in detail to every legal system. 

A word on terminology. The phrase ‘legal status’ is highly ambiguous. I use ‘legal status’ in a broad sense, to refer to the overall body of legal norms applying to some entity. I also occasionally use ‘legal situation’ as a synonym for ‘legal status’. By ‘legal thing’, I mean an entity that can be owned. Not all things are necessarily property: in the civil law tradition, wild animals have traditionally been categorised as res nullius,‘things belonging to no-one’. A central distinction is that between commodities and other types of things. A commodity is a thing that the law treats as readily replaceable by another. What I mean by ‘replaceability’ will become clear over the course of the article. One of my central arguments is that while treating animals as commodities has been the rule for millennia, the private law status of especially companion animals has shifted away from that of commodities. 

Especially in the civil law tradition,‘legal object’ has been understood synonymously with ‘legal thing’. However, after the legislative declarations that animals are not things, some scholars now think that animals are legal objects but not legal things. ‘Object’ and ‘thing’ are thereby not synonyms anymore. I consider this understanding of ‘object’ not to be a particularly useful category; I will return to this issue over the course of this article. 

The article is structured as follows. In the following section, I will discuss two ‘inventories of the universe’,ie high-level categorisations of how the law makes sense of the world. I will first present the ‘Orthodox Inventory’ of the universe: an understanding of the world as exhaustively divided into persons and things. I will, however, argue – partly based on my earlier work – that what I term the ‘Substantive Inventory’ offers a better account of the universe according to the law. This inventory will provide the basis for a new way of understanding the legal status of animals as well: even though most animals are still things, their status is more multifaceted than that. The following sections will provide a more multifaceted account of animals. The third and fourth sections will analyse the legal status of animals through two co-existing historical legal regimes – what I call the ‘Commodity Regime’ and the ‘More-than-Commodity Regime’. 

Finally, in the penultimate section I will offer a synthesis of the multifaceted current legal status of animals.The final section will conclude.

Animal Personhoods

'Evolving Conceptions of Legal Personhood: What Might Recent Legal Developments Herald for Non-Human Animals in Australia' by Jane Kotzmann, Morgan Stonebridge and Paulien Christiansen in (2023) 46(2) UNSW Law Journal 347 comments 

 Legal personhood has traditionally been associated with human persons and their representatives, for example, corporations. Recent years, however, have seen the binary conception of legal personhood challenged and reconceived, and the circle of legal persons expanded in numerous jurisdictions. In particular, the utter failure of environmental laws to protect the environment has led to the recognition of nature bodies as legal persons. Within this context, this article considers whether these developments might lead to recognition of animals as legal persons in Australia. The parallel deficiencies of environmental and animal laws, together with the willingness of some Australian legislatures to entertain legal personhood for nature, may suggest that the concept of legal personhood for animals in Australia is not completely far-fetched.  ... 

Maitland ... described a legal ‘person’ as ‘a right-and-duty-bearing unit’. Implicit in that description ... is the traditional, essentially functional, understanding of legal ‘personality’ as lying in the existence of legally conferred or legally recognised capacity to have or to form legal relations. Implicit also is the traditional understanding of legal personality as unitary. 

The legal landscape appears to be shifting from the traditional view of legal personhood described by the High Court in the above quote. This traditional view sees legal personhood as being based on individual autonomy and rationality: a legal person should be able to independently exercise their legal rights and carry out legal duties. The traditional approach has, however, been subject to significant criticism. It has been attacked on the basis that it fails to protect the interests of vulnerable individuals that lack the capacity to exercise legal rights, including animals, and that it ignores the interdependence of individual persons, animals and the environment. Further, it has been argued that the concept itself is inexorably tied to ‘a colonial and otherwise exclusionary logic’.Accordingly, scholars have sought to reformulate personhood – for example, as ‘relational personhood’ – or have rejected the concept and advocated for adoption of an alternative legal model that better recognises vulnerability and interconnectedness. 

In tandem with these conceptual developments, the circle of legal persons has been expanding. Outside of human persons, the law has long recognised their representatives – for example, corporations or churches – as legal persons. Laws in some jurisdictions have also recognised deities, or gods, as legal persons. More radically, and largely as a response to the overwhelming failures of environmental law to protect the environment, legislatures and courts have been engaging in ‘legal experimentation’ in recognising bodies of nature as legal persons. For example, the Whanganui River in New Zealand, all rivers in Bangladesh9 and the Mar Menor lagoon in Spain have all been declared legal persons. A small number of jurisdictions have gone even further and recognised animals as legal persons. 

In the context of sustained advocacy for legal personhood for animals and research indicating very high levels of public concern for animals in Australia, this article investigates whether these developments in relation to legal personhood are likely to have any implications for non-human animals in Australia. In this respect, the article seeks to ascertain whether there is any reasonable prospect of animal legal personhood in Australia but remains largely neutral in terms of whether advocates should seek the attribution of personhood (perhaps with a view of progressing to an improved legal model in the future) or of some alternative legal model. It assumes that an improved legal status for animals is necessary and desirable, but does not analyse the various merits of legal personhood and its proposed replacements. 

The willingness of some Australian legislatures to adapt legal personhood models for nature bodies may suggest that the concept of animals as legal persons is not as far-fetched as it might seem. While existing research has considered the potential for animal legal personhood in Australia,  this article analyses the conceptual challenges to legal personhood and recent legislative changes to determine the practicability of arguing for legal personhood for animals in Australia. Further, in the event of legal personhood recognition for animals, this article draws on the experience of nature rights to identify considerations that should influence personhood construction for animals. 

This article contends that the evolution of the concept of legal personhood over recent decades, public concern for animals, legal recognition of animal sentience and legal experimentation in relation to nature rights in Australia, suggests that personhood may be a realistic path to greater legal protection for animals in the medium to long-term future in Australia. The article focuses on Australia because a thorough discussion of the potential for global personhood developments would require a lengthier analysis, beyond the word limitations of a typical journal article. Australia also presents a strong case study given that it has a comparatively high rate of meat consumption and is not considered a leader in matters of animal protection. As such, the potential for change found in Australia is likely also applicable to other jurisdictions and would potentially meet less resistance. In terms of implementation, however, thought should be given to how legal personhood would best be framed for animals. In this respect, attention should be paid to who should be enabled to speak on behalf of animals and what powers they should be given. While legal personhood for animals would constitute a profound legal achievement, it would nevertheless be insufficient to challenge the broader economic and political frameworks that rely on animal exploitation. As Benjamin J Richardson and Nina Hamaski identify in relation to nature rights, ‘[p]roperty tenure, markets, business corporations, economic growth policies and other drivers of environmental upheaval remain intact’. The same critique may be made in relation to potential legal personhood for animals. Nevertheless, along with other legal developments, legal personhood may assist in shifting society forward to a point where challenges directed at political and economic frameworks can be made. 

The next Part of this article explores the meaning and significance of legal personhood. This includes analysis of why the concept is important in the context of protecting individual interests, how it has traditionally been conceived, challenges to those traditional conceptions and the connection between legal personhood and rights. This discussion serves to highlight both the importance of legal personhood as well as its current fluid state. Part III outlines the ways in which the circle of legal persons has been expanding in recent years as part of pressing ‘legal experimentation’.  Part IV then addresses some common criticisms of advocacy for animal legal personhood.

Rights

'The Rebugnant Conclusion: Utilitarianism, Insects, Microbes, and AI Systems' by Jeff Sebo in (2023) Ethics, Policy and Environment comments 

This paper considers questions that small animals and AI systems raise for utilitarianism. Specifically, if these beings have more welfare than humans and other large animals, then utilitarianism implies that we should prioritize them, all else equal. This could lead to a ‘rebugnant conclusion’, according to which we should, say, create large populations of small animals rather than small populations of large animals. It could also lead to a ‘Pascal’s bugging’, according to which we should, say, prioritize large populations of small animals even if they have a low chance of being sentient. I suggest that utilitarians should accept these implications in theory but might be able to avoid some of them in practice. ...  

We are currently in the midst of rapid moral circle expansion. Animal advocates have made significant progress over the past fifty years by promoting the idea that we have moral duties to domesticated animals. We are now in the early stages of promoting the idea that we have moral duties to wild animals. Some of us accept that we have such duties because we think that we should help others when we can. Others of us accept that we have such duties because we think that we are harming many of these animals, and that we should reduce and repair these harms when we can. Regardless, the idea that we have duties to many nonhuman animals is fast gaining acceptance. 

This moral circle expansion raises many difficult questions about our moral priorities. For instance, humans are currently harming and killing tens of billions of domesticated animals per year and hundreds of billions of wild animals per year. At least in terms of scale and neglectedness, then, our duties to current and near future nonhuman animals would seem to take priority over our duties to current and near future humans, all else equal. Granted, we might think that we should prioritize humans for other reasons, including reasons involving tractability and indirect effects, as we will see. Still, we are slowly coming to terms with the idea that nonhumans matter much more than we previously thought. 

But as substantial as this moral circle expansion has been, it is not nearly complete. For instance, our discussion of duties to captive and domesticated animals tends to focus on animals such as cats, dogs, cows, pigs, and chickens. And our discussion of duties to free and wild animals tends to focus on animals such as chimpanzees, elephants, koalas, dolphins, and polar bears. While there is no single category that includes all these animals, in general we seem to focus more on large animals than on small animals, on vertebrates than on invertebrates, and on land animals than on aquatic animals. The result is a moral community that is many times larger than it was before, but still many times smaller than, I believe, it should be. 

When we take seriously the possibility of a moral community that includes all sentient beings – large and small, vertebrate and invertebrate, terrestrial and aquatic – we realize that this next expansion might, if anything, be even more transformative than the last one. The world is full of conflicting interests and needs, and it is also full of very different kinds of populations. For instance, if we have to choose between improving the lives of a small number of large animals and improving the lives of a large number of small animals, then which should we choose and why? This kind of case requires us to think not only about what we owe each kind of animal but also about how to compare these duties when they conflict. 

Suppose that we determine that large animals like humans have more welfare on average but that small animals like insects have more welfare in total. What follows for ethics and politics? Which populations should we prioritize within each generation, all else equal? And which populations should we prioritize across generations, all else equal? Suppose further that we determine that many beings, including microscopic organisms and current and near future AI systems, are at least possibly sentient, and that the size of these populations relative to insects rivals the size of insect populations relative to humans. How, if at all, should that possibility affect our moral priorities within and across generations? 

My aim in this paper is to survey these questions from a utilitarian perspective, building on work from Horta, Ng, Tomasik, and others. I will show that utilitarianism implies that insects can take priority over humans and that microbes or AI systems can likewise take priority over insects. Granted, we might still have reason to prioritize humans at present and in the near future, since our duties regarding the distant future outweigh our duties regarding the present and near future, and since improving human lives at present and in the near future is key to improving the distant future. But in this case, what saves utilitarians from one surprising conclusion might be another surprising conclusion. 

To be clear, while I focus on utilitarianism here for the sake of simplicity, I think that other moral theories face versions of these questions as well. Any theory that involves a duty of beneficence or a duty of non-maleficence will have to deal with questions about, say, how to set priorities between small populations of large animals and large populations of small animals, since there might be many cases where we have the power to help or avoid harming either the former populations or the latter populations but not both at the same time. So while my discussion here might focus on how one moral theory might navigate this strange future, we should keep in mind that this strange future awaits us all.

'A novel way of being together? On the depoliticising effects of attributing rights to nature' by Agnese Bellina in (2023) Environmental Politics comments 

The recent trend of attributing rights to nature arguably introduces a novel way of ordering the relationship between humans and nonhumans. But to what extent does it challenge the political, legal, and economic categories of modernity? By analysing the processes that led to the inclusion of the rights of Mother Earth in the Bolivian legal system, I explore whether and how rights of nature express a distinct form of relating to the environment. Using the lenses of juridical symmetry and political conflict, I argue that attempts to ascribe rights to ecosystems can be read as examples of hyperpoliticisation which ultimately result in depoliticisation. I contend that rights of nature bring together the neutralisation of political conflict by extending the logic of juridical symmetry to nonhuman entities. Thus, far from constituting a renewed way of being together, these processes reiterate the aporia of the modern Western conceptual horizon. ... 

In September 2008, Ecuador became the first country to attribute legal rights to nature by incorporating the Derechos de la Pacha Mama (Rights of Nature) into the new constitution (Tanasescu 2013). In January 2009, the Bolivian Constituent Assembly adopted the Political Constitution of the Plurinational State of Bolivia, therein constitutionalising the protection of Mother Earth. These initiatives soon gave rise to flourishing global movements, which resulted in a broader attribution of rights to ecosystems around the world. In 2010, the Global Alliance for the Rights of Nature was established to coordinate grassroots initiatives working towards the implementation of rights of nature. In 2014, the New Zealand Parliament passed the Te Urewera Act recognizing the Te Urewera National Park as a legal entity with all the rights, power, and obligations of a legal person (Sanders 2018). In 2017, the Whanganui River in New Zealand and the Indian Ganges, with the Yamuna as its main tributary, became legal and living entities (Kothari et al. 2017). More recently, in April 2020, the municipality of Curridabat in Costa Rica attributed citizenship to pollinators, trees, and native plants (Greenfield 2020). In July 2020, the Spanish municipality of Los Alcazares recognized the Mar Menor lagoon as a subject of rights (Alvarez 2020). 

This trend of attributing rights and legal personhood to ecosystems raises a series of theoretical and empirical questions regarding the stakes of such attempts. The inclusion of a diverse array of nonhuman entities within the modern legal rights framework requires a critical analysis of modern conceptual categories. Existing literature often assumes that ascribing legal rights to the ecosystem expresses a novel way of ordering the relationship between humans and nonhuman entities. Recent debates on the attribution of legal rights to nature have focussed either on the normative foundations and procedural implications of rights of nature (hereafter, RoN) within the legal framework of environmental law (Calzadilla and Kotzé 2018, Kauffman and Martin 2018, Bétaille 2019, Kinkaid 2019), or they have examined the philosophical premises and consequences of the ontological extension which allows nature to be conceived as a bearer of rights. These latter contributions have positioned themselves as partaking in the ontological turn and in the formation of post-humanist, new materialist, object-oriented ontological approaches in contemporary philosophy and social theory. 

They are enthusiastic about attempts to ascribe rights to nature, which is portrayed as a revolutionary means to positively reorient interaction between humans and nonhumans (Burdon 2011, Maloney and Burdon 2014, Demos 2015, Boyd 2017, Puig de la Bellacasa 2017). Some have specifically argued for extending the legal right to own property to wildlife as a way to halt its destruction (Bradshaw 2020, Davies et al. 2021), while others have focussed on the potential of extending agency to nonhuman entities and using RoN as a tool to enhance political change (Winter 2021). However, as I will demonstrate, the above-mentioned streams of literature fall short when it comes to critically analysing the intrinsic aporetic dimension of rights-based claims and their consequent legal recognition. In other words, the literature on attributing rights to nature fails to analyse the extent to which RoN challenge the political, legal, and economic categories of modernity, such as the state’s monopoly of power, individual rights, and private property. 

More recently, increased attention has been directed at the need to problematise the implications of RoN, especially concerning the Eurocentric assumptions and exclusions entailed in such a paradigm. Some scholars within this stream of literature have addressed the overstated identification of RoN with Indigenous knowledge systems and the consequent risk of both depriving them of, and flattening out, their radical political potential (Todd 2016, Rawson and Mansfield 2018, Tanasescu 2020, Celermajer et al. 2021, Fitz-Henry 2021). Others have focussed critically on the political context in which RoN have flourished, raising concerns over the triumphalism often inherent in RoN narratives (Marshall 2020, Reeves and Peters 2021, Tanasescu 2021). This article builds on this latter stream of literature and contributes to the growing chorus of concern about the political implications of RoN. It does so by exploring the (un)intentional consequences of RoN, namely the implicit assumption of modern Western conceptual categories and the levelling of conflictual asymmetries through the positive affirmation of a flat juridical symmetry. When referring to juridical symmetry, I mean a characteristically modern mechanism through which formal juridical equality between equally free subjects is established by the state’s coercive power to found a lasting order (Chignola and Duso 2008, Hobbes 2018). Such a mechanism, which nowadays is extended to nonhuman entities, operates through the progressive neutralisation, and hence depoliticisation, of conflict and the consequent accumulation of a monopoly of power in the hands of the modern nation state (Benjamin 2021). 

My contribution further problematises the conversation about RoN in environmental politics, by exposing the shortcomings of a paradigm that has increasingly been mobilised as a novel way of being together, that is a more equal and just way to engage with and regulate the relationship between humans and nonhumans. I will critically explore a specific case of attributing rights to the ecosystem – the broad processes which led to the inclusion of the rights of Mother Earth in the Bolivian legal system – and consider whether these forms of relating disrupt the dominant socio-ecological arrangements built on individual rights, the state’s monopoly of power, and a proprietary regime of ownership. I scrutinise different gradients of juridical (a)symmetry and political conflict with the aim of tracing their inversely proportional relationship. I argue that attempts of ascribing rights to the ecosystem can be read as instances of hyperpoliticisation (i.e. a monopolisation of the political by the state) which ultimately result in depoliticisation (i.e. the foreclosure of the political). As such, far from constituting a way of challenging the modern logic of individual rights, private property, and the absolutisation of the state’s power, these processes reiterate the aporia of these specific modern Western conceptual categories. 

I conceive ‘the political’ as the conflictual dimension constitutive of social relationships where a given order is rendered visible and contested by those who are excluded from it (Lefort 1988, p. 11, Mouffe 2005 −9; Rancière 1999, p. 11). Conceived as such, the political brings forth the problematisation and disruption of an established configuration of power, and introduces the possibility of radical change in the form of conflicting alternatives. My use of ‘depoliticisation’ refers instead to the attempted neutralisation and foreclosure of conflict by means of displacing it from the field of public dissensus to that of techno-managerial manageable consensus (Rancière 2004, Swyngedouw 2011). By removing the space of contestation and debate, depoliticisation obliterates the possibility of change and thus reduces the political to an administrative instrument devoid of transformative potential (Zizek 2006). These notions of ‘the political’ and the process of depoliticisation guide the analysis of the cases presented here. The rationale for choosing the Bolivian case is that it offers an opportunity to trace the problematic dynamic underpinning the mobilisation of RoN by showcasing both the theoretical and practical implications inherent in such paradigm. I do not mean to universalise the Bolivian example by focussing on one particular case. Rather, I aim to show how a close reading of the legal and political processes through which legal rights have been attributed to nature can be a productive approach for advancing a critique of RoN. Although I can only offer a close reading of one case, this approach may well resonate with similar cases elsewhere. 

Section two of the paper provides an overview of the process that led to the adoption of the two laws that have operationalised the rights of Mother Earth in Bolivia. Section three offers a critical analysis of the text of these two laws and the Draft Law, with the aim of outlining the progressive depoliticisation of the most radical political claims contained within these texts. Section four turns to the TIPNIS conflict as a means to bring to the fore yet another dimension of the weakening of the political linked to a rights-based legal framework. Section five delves deeper into the aporetic implications of attributing rights to nature through the analysis of the homogenising effects of juridical symmetry applied to the cases presented. The paper ends with a discussion of the implications of these arguments for environmental politics.

'A Wrong Turn with the Rights of Nature Movement' by Noah Sachs in Georgetown Environmental Law Review (Forthcoming) comments - 

Environmentalists have long dreamed of granting enforceable legal rights to nature, and their vision has recently become reality. Governments in the United States and abroad are enacting Rights of Nature laws, and many scholars have championed this burgeoning movement as one of the best hopes for preserving the environment. 

Legal rights for nature seem visionary, but policymakers and scholars are overlooking considerable problems with this approach. This Article spotlights these problems, including the vague and incoherent content of nature’s rights, the difficulty of defining the boundaries of natural entities, the absence of limiting principles for the rights, and the legislation’s lack of guidance for humans. Because the Rights of Nature movement relies on ad hoc litigation to enforce nebulous rights in court, it will likely lead to arbitrary and oppressive outcomes for humans while under-protecting nature. For these reasons, Rights of Nature is a wrong turn in environmental law and policy. 

While showing why the Rights of Nature project is likely to be ineffective and even unjust, this Article also examines possible reforms to make it palatable. I conclude that none of the reforms are workable. Rights of Nature offers a resonant battle cry for activists, but it is the wrong approach for addressing the global environmental crisis – and it could take us backward to a more polluted, degraded environment.

Nonhuman Animals, Extraterrestrials and AI

'Harm to Nonhuman Animals from AI: a Systematic Account and Framework' by Simon Coghlan and Christine Parker in (2023) 36(25) Philosophy & Technology comments 

This paper provides a systematic account of how artificial intelligence (AI) technologies could harm nonhuman animals and explains why animal harms, often neglected in AI ethics, should be better recognised. After giving reasons for caring about animals and outlining the nature of animal harm, interests, and wellbeing, the paper develops a comprehensive ‘harms framework’ which draws on scientist David Fraser’s influential mapping of human activities that impact on sentient animals. The harms framework is fleshed out with examples inspired by both scholarly literature and media reports. This systematic account and framework should help inform ethical analyses of AI’s impact on animals and serve as a comprehensive and clear basis for the development and regulation of AI technologies to prevent and mitigate harm to nonhumans. 

... This paper provides a systematic account and a ‘harms framework’ for understanding how artificial intelligence (AI) technologies could damage the interests of nonhuman animals (hereafter ‘animals’). Technology has sometimes greatly benefitted animals, such as via modern veterinary medicine or agricultural machines that relieved ‘beasts of burden’ (Linzey & Linzey, 2016). Yet, technology has also profoundly harmed nonhumans. Construction of the Chicago stockyards and its assembly-line systems in the 1800s, for example, enabled the mass slaughter and processing of animals (Blanchette, 2020; Sinclair, 2002). Around the 1950s, specialised factory-farming technologies like sow stalls, battery cages, and automated sheds further amplified intentional harm to farmed individuals. The Chicago stockyards also soon led to Henry Ford’s assembly-line automobiles, the modern ancestors of which unintentionally kill and injure millions of animals annually (Ree et al., 2015). 

Today, in the twenty-first century, AI has significant potential to harm animals. AI refers to digital technologies that perform tasks associated with intelligent beings like classifying, predicting, and inferring (Copeland, 2022). AI’s growing power owes much to increasing data from, for example, the digital economy, online life, and manifold and integrated sensors in the environment and on or in human and animal bodies (e.g. as wearables)—the so-called Internet of Things or IoT. Its power also stems from modern machine learning (ML), including machine vision, natural language processing, and speech recognition. 

In ML, a system is trained on data from which it learns to make new classifications and inferences beyond its explicit programming. We shall in this paper side-step human-level or general AI (and AI that is arguably sentient), concentrating instead on narrow (and non-sentient) AI that is developed and used for specific purposes (Russell, 2019),Footnote 1 which is arguably of more pressing moral concern than the emergence of very human-like AI. 

Some existing technologies used to manage animals, such as automation in chicken sheds and dairies, may be augmented by AI. Moreover, some robots, drones, and vehicles incorporate AI in ways that may benefit or harm animals. Often the intention in developing and using AI is to positively benefit animals. For example, smart home applications for animal companions (Bhatia et al., 2020) and smart agriculture (Makinde et al., 2019; Neethirajan, 2021b) are often marketed as boons for animal welfare through better monitoring and control of the conditions in which they are kept. Another use that might benefit animals is AI image recognition to help detect illegal wildlife trafficking (O’Brien & Pirotta, 2022). Yet, as we show in some detail, AI can also act—both independently and with existing technologies—to create and amplify harms to animals (Sparrow & Howard, 2021; Tuyttens et al., 2022). 

A tendency exists to see advances in AI as inevitably bringing ‘improvements across every aspect of life’ (Santow, 2020). For example, autonomous machine intelligence can seem more objective and less prejudiced than human intelligence. Nonetheless, society is increasingly recognising AI’s potential for ill (Pasquale, 2020; Tasioulas, 2022; Yeung, 2022). Despite this, the burgeoning scholarship in AI ethics (Bender et al., 2021; Buolamwini & Gebru, 2018; Eubanks, 2018; O’Neil, 2016), while vital and sometimes courageous in critiquing Big Tech power and algorithmic injustice, has largely ignored animals. While some ethicists, including Peter Singer (Singer & Tse, 2022), have recently begun to correct this oversight (see also, e.g.Bendel, 2016, 2018; Bossert & Hagendorff, 2021a; Hagendorff, 2022; Owe & Baum, 2021; Ziesche, 2021), dedicated work on AI and animals is relatively rare. 

This paper’s systematic account of animal harm helps address that gap by setting out the breadth of contexts and plurality of ways in which animals may be harmed by AI. Drawing on the work of animal scientist David Fraser (Fraser, 2012), we develop a harms framework that includes intentional, unintentional, proximate, and more distant impacts of AI. While we do not propose specific ethical or legal responses, the framework provides a comprehensive and clear basis for crafting design, regulatory, and policy responses for animals. 

The paper runs as follows. Section 2 outlines why concern for animal harms is warranted despite a general neglect of animals in AI ethics scholarship, explains the plural range of harms animals can arguably experience, and introduces a practical five-part harms framework or typology that recognises different types and causes of harm to animals from AI. The framework includes intentional harms that are legal or condemned, direct and indirect unintentional harm, and foregone benefits. Section 3 then uses the framework to identify and illustrate actual and possible AI harms to animals in each of the five categories, based on a narrative review of literature. Section 4 concludes by considering implications of our framework and suggesting directions for further research.

'Restating Copyright Law’s Originality Requirement' by Justin Hughes in (2021) 44 Columbia Journal of Law & Arts 383 notes 

The Comments and Reporters’ Notes to § 6 devote an unusual amount of space to human authorship. The draft Restatement takes the view that “[t]o qualify for copyright protection, a work of authorship must be authored by a human being,” and “not, for example . . . works created by nonhuman animals.” The limited case law in this area is sufficiently nuanced as to make one wonder if the Reporters are trying to eliminate preemptively the possibility of “authorship” by artificial intelligence, but this is apparently not their intent. Recognizing that “[a] computer program might someday produce an output so divorced from the original human creator,” the “Restatement does not take a position on” authorship by artificial minds. 

The case law on nonhuman authorship is basically of two sorts. First, there are the cases in which the literary work in question was allegedly authored by sentient beings of a divine, celestial, or spiritual nature; I will call these the “spiritual being cases.” Second, there is one case—the 2018 Naruto v. Slater decision—in which the visual works in question (photos) were arguably authored by a nonhuman primate. The Naruto decision was a fairly singular exercise. People for the Ethical Treatment of Animals (PETA) attempted to bring suit on behalf of Naruto, a crested macaque monkey, against the publisher (and copyright claimant) of a book called Monkey Selfies. 

Both the district court and Ninth Circuit panel concluded that animals do not have standing under Title 17 using “a simple rule of statutory interpretation” previously crafted by the Ninth Circuit: “[I]f an Act of Congress plainly states that animals have statutory standing, then animals have statutory standing. If the statute does not so plainly state, then animals do not have statutory standing.”  This does not really strike me as a principle of copyright law. It was a ruling that nonhuman animals do not have standing under federal law when the law is silent on that issue, not a holding that, as the draft Restatement represents, “[t]he photographs taken by [nonhuman animals] do not qualify for copyright protection because they were not authored by a human being.” Moreover, the connection between the Naruto fact pattern and the spiritual being cases was only made by the Naruto trial court, not the Ninth Circuit. 

It is true that the spiritual being cases have pondered the question of whether a work “claimed to embody the words of celestial beings rather than human beings[] is copyrightable at all.” But we are adrift in terms of direct answers that are holdings and not dicta. Instead, when originality can be attributed to combined activities of humans and sentient nonhumans, courts will conclude that the human participant(s) added enough original expression to support a copyright. For example, in the Ninth Circuit’s 1997 Urantia Foundation v. Maaherra decision, the panel found that humans “pos[ing] specific questions to the spiritual beings,” then selecting and arranging the spiritual beings’ answers was sufficiently creative to confer a copyright. 

Similarly, in the 2000 Penguin Books v. New Christian Church of Full Endeavor decision, a judge in the Southern District of New York considered a “defense of lack of originality” based on the human originator of a book—Helen Schucman— testifying that “she began to hear a ‘Voice’ that would speak to her whenever she was prepared to listen”; that the Voice told her to take notes; and that, for seven years, “she filled nearly thirty stenographic notebooks with words she believed were dictated to her by the Voice". 

But she also made revisions with a (human) collaborator, William Thetford. In addition, “at least some of the editing and shaping of the manuscript was initiated by Schucman; the manuscript went through two additional drafts, one edited by Schucman, one edited by Schucman in collaboration with Thetford; and during this process sections were “rewritten so that the test would flow smoothly and communicate clearly its intended message.” Another colleague, Kenneth Wapnick, later made additional editorial suggestions. 

Concluding that the arrangement of the materials had been determined by the human contributors, that the text “reflect[ed] many of Schucman’s personal interests and tastes,” and that all the editorial changes “were initiated by Schucman, Thetford, or Wapnick,” the court found that there was enough creativity to support human authorship (regardless of whether there was divine joint authorship). But the Penguin Books court went further, offering the alternative reasoning that the work was, plain and simple, “a literary work authored by Schucman” and that, “[as] a matter of law, dictation from a non-human source should not be a bar to a copyright. 

Perhaps the only other spiritual beings case of note is a 1941 district court decision, Oliver v St Germain Foundation, in which the copyright owner Frederick Spencer Oliver, describes himself as the amanuensis to whom “letters” were dictated by Phylos the Thibetan, a spirit.  But the court does not directly hold that the work is uncopyrightable because of the spiritual being source of the expression. Instead, the court treats the spiritual being’s words as “facts” being reported by Frederick Spencer Oliver, analogous to an author of a series of interviews (with humans), who would not have copyright over the words of the interviewees.  The Oliver court also reasons that the defendant copied neither prose nor style and arrangement of the plaintiff’s work,  intimating that those might be protected as original expression from the human contributor to the project. 

Does any of this belong in a Restatement of Copyright? I doubt it. The Copyright Office Compendium says that the office will not register works by nonhumans, but we do not need an ALI Restatement to regurgitate an agency regulation that is not binding on courts. The day sentient refugees from some intergalactic war arrive on Earth and are granted asylum in Iceland, copyright law will be the least of our problems. But I am confident that once those sentient aliens are “nationals” in a Berne country, nothing in Naruto, Urania, Penguin Books, or Oliver will keep them from being treated as “authors” under American copyright law. 

Similarly, once some AI is sentient enough to demand its own civil rights and protection under the Thirteenth Amendment, my guess is that “person” in copyright law will not be limited to homo sapiens. (Since the Reporters apparently agreed todefer to the future on the question of AI authorship, some bits and pieces of the 2020 draft—like Illustration 6 to § 6—should probably be dropped.). Same for the day when a chimeric half human/half horse is proven to be sentient; “person” in copyright law will include them. These issues are fun conjecture for academics, but such issues are so rarefied as to wonder why the draft Restatement discusses them at all

Personality

In 'Rawls and Animal Moral Personality' by Guy Baldwin in (2023) 13(7) Animals Baldwin comments 

“Moral personality” is required in order to be entitled to justice in John Rawls’s theory of justice, a famous and influential theory in political philosophy. The concept of moral personality involves the possession of two “moral powers”. One moral power is a capacity for a conception of the good, being a conception of what is regarded as worthwhile in life, while the other is a capacity for a sense of justice. Rawls claims that non-human animals (hereafter, “animals”) do not possess these moral powers, and accordingly he omits them altogether from his theory of justice. In this article, I raise doubts about this omission, outlining how at least some animals may indeed possess the moral powers, albeit to a lesser extent than most humans. In this regard, the distinction between humans and animals can be seen as one of degree rather than kind. A proper acknowledgement of animal abilities suggests that Rawls’s theory requires alteration to accommodate the position of animals. 

The relationship between animal rights and contractarian theories of justice such as that of Rawls has long been vexed. In this article, I contribute to the debate over the possibility of inclusion of animals in Rawls’s theory of justice by critiquing the rationale he gives for their omission: that they do not possess moral personality. Contrary to Rawls’s assumptions, it appears that some animals may possess the moral powers that comprise moral personality, albeit to a lesser extent than most humans. Some animals can act in pursuit of preferences and desires (and communicate them non-verbally), which might be taken as implicitly selecting a conception of the good; further, scientific research demonstrating inequity aversion and social play behaviors suggests that some animals can have a sense of justice relating to their own social groups. I conclude that Rawls’s theory needs to acknowledge any animals that can be considered to meet the threshold of moral personality, while the concept of moral personality as a range property may also require reconsideration. 

A limitation of John Rawls’s theory of justice is that the position of non-human animals (hereafter, “animals”) is treated as outside the scope of the theory. Although Rawls considered cruelty towards animals and the destruction of an entire species to be wrong, animals are said not to be entitled to justice [1] (pp. 441–442, 448–449). The reason offered for this exclusion is that animals are not “moral persons”. Moral personality involves two moral powers—the capacity for a conception of the good and the capacity for a sense of justice—that are claimed to be uniquely human attributes. Rawls’s position seems to mean that, as Martha Nussbaum puts it, “[e]ven … the twentieth century’s greatest philosopher of justice … held that it was virtuous to treat animals with compassion, but that they could not be treated justly or unjustly” [2] (pp. 8–9). The relationship between animal rights and contractarian theories of justice such as that of Rawls has long been vexed; a key difficulty is how to include animals in such theories if they are unable to participate effectively in the making of a social contract [3]. Mark Rowlands argues that “there is nothing in contractarianism per se that requires the contract be restricted to rational agents”; even if the framers of the contract have to be rational agents, its recipients do not (p. 236). Meanwhile, Robert Garner claims that Rawls’s approach cannot adequately explain the position of “those humans who are less endowed with rationality or autonomy”, invoking the well-known argument from so-called “marginal cases” [4] (p. 7), though he has also critiqued this argument [5]. The contribution of this article is to consider a different, under-explored issue: the merits of Rawls’s claim that animals do not have moral personality, which underpins their exclusion from his theory of justice. 

In ascribing moral personality only to humans, Rawls treats humans and animals as qualitatively different. Rawls’s concept of moral personality is widely assumed to “clearly preclude animals” [6] (pp. 2–3). However, as Rowlands says, “the all or nothing manner in which discussions of non-human rationality tend to be discussed is eminently questionable, on both theoretical and methodological grounds” (p. 236). Indeed, I argue that some animals might be better viewed as possessing moral personality, though to a more limited extent than most humans. The difference between humans and animals in this regard may be thought of as one of degree rather than kind, to adopt Charles Darwin’s words [7] (p. 179). Nonetheless, acknowledgment of the lesser degree of moral personality possessed by some animals is likely to require significant alterations to Rawls’s theory. Although I seek to establish some problems with Rawls’s account, modifying the theory to accommodate the possibility of animal moral personality is not attempted here. Further, I do not suggest that possession of some measure of moral personality means that animals (or, for that matter, humans) cannot or do not perform acts that inflict suffering on others. xx The article proceeds in three parts. First, I address Rawls’s analysis of the position of animals in his theory. As will be shown, Rawls’s theory is already consistent with the view that animals are owed moral concern. Nothing prevents legislators from protecting animal welfare or rights. However, Rawls considers that due to their claimed absence of moral personality, animals are not owed justice, and this may mean that animal protection is of lower priority than the principles of justice. Second, I question Rawls’s approach by analyzing the position of animals in respect of each of the moral powers. I suggest that Rawls’s conclusion that animals do not have moral personality is too simple; there is reason to consider that at least some animals can potentially possess the moral powers, albeit to a lesser degree than humans. Third, I conclude with a short reflection on the possible implications of this analysis for Rawls’s theory.

Personhood and Zoocentrism

'AI inventors: deference for legal personality without respect for innovation?' by Ernest Kenneth-Southworth and Yahong Li in (2023) 18(1) Journal of Intellectual Property Law & Practice 58–69  comments 

 Thirty years ago, Lawrence B. Solum wrote a visionary article concerning the debate on the legal personhood of artificial intelligence (AI) and posed the following question:

Could an artificial intelligence become a legal person? As of today, this question is only theoretical.

Thirty years later, in the area of patent law, recent cases from the UK, the USA and Australia have resoundingly answered: ‘no’ to intellectual property rights (IPRs) for AI systems. While academic commentators have perhaps helped sensationalize the concept of an ‘AI inventor’, national patent offices and court judgments have taken a sober approach in opining that AI systems cannot possess or be subject to IPRs in patent law. This article argues that recent decisions, which have declined to grant IPRs to AI systems, are correct and pay deference to the requirement of legal personality, which is the foundation of law. Granting legal personhood to AI systems or machines, at least within the area of intellectual property, seems implausible. However, the article further argues that the deference given to legal personality in AI inventor cases raises the question of what impact this has on innovation. An approach that outcasts AI systems from patents may well respect the current order of legal personhood within the boundaries of most legal systems, but it may negatively impact the existing incentives for innovation provided by the IPR system. The article advocates for a reform of intellectual property laws to take into account the role of human creativity in enabling the creativity of AI systems

'Animal Rights in Colombia: A Critique from an Environmental Perspective' by Carlos Lozano in (2023) 54 Revista Derecho del Estado 345-380 comments 

Animal Rights are commonly understood as an expression of the Rights of Nature. However, one and the other are in open contradiction, due to the complex interactions of ecosystems and the place of fauna in them, poorly understood by the generators of animal law rules, since animal suffering is inherent in nature. Animal Rights in Colombia are not an expression of the Rights of Nature; on the contrary, they undermine them, and hinder the consolidation of an Environmental Law aligned with social justice that places the survival of ecosystems at the center. This is because animal law illegalizes critical ecological processes, gentrifies Environmental Law, fosters an artificial binarism between fauna and flora, contradicts certain forms of climate action, hinders conservation, stigmatizes cultural diversity, discriminates by class, impedes the control of invasive species, generates a protection deficit for other kingdoms of life, such as plants and fungi, and promotes a transition from anthropocentrism to a kind of zoocentrism. 

NonHuman Animal Personhood

'(Feminist) Animal rights without animal personhood?' by Maneesha Deckha in Feminist Animal Studies (Routledge, 2022) comments 

This chapter takes up the pressing question of whether rights are compatible with animals’ status as legal beings. In Animals as Legal Beings in 2021, Deckha theorises a new animal-friendly legal subjectivity, which she calls “beingness”, as a better replacement for property, animals’ present abysmal legal status. Drawing upon feminist and other critical theory, the book argues that beingness can provide the protective shield against instrumental treatment that legal personhood is meant to provide, but unlike personhood, beingness does not demand that animals conform to paradigmatic human benchmarks to qualify for such protection. For many animal law scholars, the form that protection should take is rights. But it is not immediately clear to many how rights can exist without personhood. Given feminist arguments against recuperating personhood, a concept too anthropocentric in origin and design, this chapter asks whether the same fate must befall the concept of rights. Are they also unsalvageable as a liberatory tool for animals? The chapter reviews the hard-hitting critiques that feminist animal theorists have lodged against rights, but ultimately argues that rights as a legal tool may be retained and recuperated as part of a feminist revisioning of law for animals. ... This is not to say that rights are the ideal type of protection for animals, but simply that they are not foundationally limiting for animals as I have argued person- hood is. Part I of this chapter summarises my argument against personhood, which I developed in Animals as Legal Beings, as the replacement for property as animals’ legal status. It begins by considering an existing neo-Kantian account of why rights for animals are fine but personhood is not, to help differentiate the critical theory- informed reasons for why I say personhood is problematic. This background is necessary to understand why I say that personhood must be dispensed with but not rights, despite the limitations of rights, which I consider in the remainder of the analysis. Part II of the chapter reviews the critiques that feminist animal theorists have lodged against rights models given their liberal humanist tradition and replies to them.This part suggests that rights can be oriented away from this tradition, pointing to critical feminist and postcolonial scholarship that has advanced this position, in a way that personhood cannot be cementing the argument that rights and beingness are compatible. Part III then moves to consider whether rights are not only compatible with beingness, but actually might be productive in actualising this new legal outcome for animals.

Deckha's Animals as Legal Beings: Contesting Anthropocentric Legal Orders (University of Toronto Press, 2021) 

critically examines how Canadian law and, by extension, other legal orders around the world, participate in the social construction of the human-animal divide and the abject rendering of animals as property. Through a rigorous but cogent analysis, Deckha calls for replacing the exploitative property classification for animals with a new transformative legal status or subjectivity called "beingness." In developing a new legal subjectivity for animals, one oriented toward respecting animals for who they are rather than their proximity to idealized versions of humanness, [it] seeks to bring critical animal theorizations and animal law closer together. Throughout, Deckha draws upon the feminist animal care tradition, as well as feminist theories of embodiment and relationality, postcolonial theory, and critical animal studies. Her argument is critical of the liberal legal view of animals and directed at a legal subjectivity for animals attentive to their embodied vulnerability, and desirous of an animal-friendly cultural shift in the core foundations of anthropocentric legal systems.

Canine Sovereignty

In James v District Court at Whanganui [2022] NZHC 2196 the New Zealand High Court has unsurprisingly been underwhelmed by the contention that dogs - however cute - are sovereign citizens. 

The Court states 

 [1] This is an application for judicial review of a decision by the District Court at Whanganui [Jones v Whanganui District Council [2021] NZDC 3864] in relation to a prosecution taken by the second respondent, the Whanganui District Council, against the applicant under the Dog Control Act 1996. 

[2] Under s 42 of the Dog Control Act 1996, dog owners must register their dogs with the local authority each registration year. 

[3] The applicant owns a dog – a Hungarian Vizsla named “Connor”. 

[4] In March 2020, the Council sent an invoice to the applicant for $50, due on 20 March 2020, being the registration fee for Connor for the period 1 July 2020 to 30 June 2021. The applicant did not pay the invoice. As a result, on 6 May 2020 the Council issued an infringement notice of $300 for failure to register the dog pursuant to s 42 of the Dog Control Act 1996 (the infringement notice). A summary of rights was attached to the infringement notice, including the ability to request a hearing. 

[5] The applicant wrote to the Council, responding to the infringement notice, on 18 May 2020. The effect of the letter was the applicant declined to pay the infringement fee and denied the jurisdiction of the District Court to proceed with “summary judgement”. The applicant did not request a hearing.  

[6] On 6 June 2020 the Council issued a Reminder Notice to the applicant in respect of the infringement notice. The infringement notice remained unpaid and on 28 July 2020 the Council lodged the infringement notice with the Court. 

[7] Once filed, the infringement notice was deemed to constitute a Court order that the applicant pay a fine equal to the amount of the infringement fee then remaining unpaid for the offence, together with costs of the prescribed amount.3 [8] On 29 July 2020, pursuant to s 21(3D) of the Act, a Notice of Fine was issued by the Court against the applicant for $330, for failure to register the dog Connor (Notice of Fine). 

[9] On 6 August 2020 the applicant applied to the Court under s 78B of the Act to correct irregularities in proceedings for an infringement notice. Although the nature of that document is somewhat unclear, the applicant appears to suggest that the irregularity relied on was “mistaken identity”, the dog Connor was a legal person and accordingly did not have to be registered. It said in part:

The Person prosecuted is dead/a Legal Fiction and cannot contract with the Prosecuting Authority without the express written consent of the Man James – Consent has been denied the Prosecuting Authority to proceed with Summary Judgement.  By the same mechanism that the Whanganui River was made a Person, so too the “Dog” is a Legal Person, entitled to all the Protection and Privileges afforded a Person under Statute. A Person does not have to Register with a Local Authority or wear a collar or be restrained by a leash.

[10] On 14 August 2020 the Registrar of the Court advised the applicant that his application under s 78B of the Act was declined (the Registrar’s Decision). On 18 September 2020 the applicant filed an application for review of the Registrar’s Decision. The Council applied for orders striking out the applicant’s causes of action and dismissing the application for review in its entirety, on the grounds that the application was made out of time and the application was untenable with the causes of action not reasonably arguable. 

[11] On 4 March 2021, Judge Crayton in the District Court granted the Council’s application to strike out and dismiss the application for a review. Costs were granted. 

Preliminary matters 

[12] There are a number of issues raised in the applicant’s statement of claim and considered in the District Court judgment which James confirmed do not form part of his argument before me. However, these matters coloured both the applicant’s written and oral submissions so, for completeness, I record them here. There is a degree of overlap between these issues. 

[13] Two themes underlie the applicant’s statement of claim and submissions. They are: (a) The notion that he is a “sovereign” person and therefore (by implication) beyond the jurisdiction of the Court. (b) Linked to that, a submission that the District Court relies on consent for legitimacy and he has not given consent to its processes. 

Identity of the applicant 

[14] As to the first of these overarching points, the applicant asserts that he is a “Sovereign Man under Common Law” and therefore beyond the jurisdiction of the New Zealand judicial system. 

[15] In his statement of claim the applicant pleaded that the Court “addressed the Artificial Person James Jones, the Deceased Estate JAMES JONES and the Vessel Mr James Jones, thus causing confusion and failing to establish true identity and any possibility of jurisdiction”. This was one of the grounds on the basis of which James asked this Court to declare the District Court judgment null and void. 

[16] While the applicant said he did not wish me to consider this issue, I note that the Courts have observed in similar proceedings that “incomprehensible statements about birth right and being a natural person not susceptible to the laws of this country are regularly and properly rejected by the Courts”.  Such assertions are “legally unsound”. 

Joinder of second respondent/non-appearance of first respondent 

[17] The applicant argues in his written submissions that joinder of the Whanganui District Council as second respondent was wrong, because the applicant did not consent to it. 

[18] The applicant’s consent to joinder is not necessary. On 7 July 2021 Cull J directed that the applicant serve the proceedings on the Whanganui District Council. On 1 September 2021 Grice J noted in a minute that the second respondent is entitled to be named as a respondent to this application as it relates to a decision made in proceedings to which it, the Council, was a party.   In this Court the applicant asked to be addressed as James. 

[19] Subsequently, on 11 February 2022 Churchman J recorded that counsel for the first respondent had notified the Court the first respondent would abide the decision of the Court. The Court granted leave to counsel to withdraw. 

“Claim of right”/identity of the dog 

[21] On 27 June 2020 James published a “Public – Proclamation” in the local Whanganui newspaper which said:

PUBLIC – PROCLAMATION Take Notice all affected and Interested Parties. I James, a Sovereign Man, have created a new Person. A Vizsla Dog, date of Birth 1 December 2019 being the Private Property of James and is known as and answers to Connor, is by this Public Proclamation declared a Person and subject to all the privileges and protection of a Person. The name of the new Person is Connor James. This Proclamation is the Common Law Right of James. An Estoppel is hereby created against any affected or interested Party who does not respond within Ten [10] Days from the first appearance of this Public Proclamation to the electronic address jim@Jamessonofjames.com and cannot subsequently claim Colour of Right or Protection of Law.

[22] Connor is the dog at the heart of this proceeding. Judge Drayton in the District Court addressed the legal submission arising from the “Public Proclamation”. The applicant says the Proclamation is a “claim of right” and provides “lawful excuse”  The effect, he says, is that Connor should be treated as a legal person and therefore not subject to the Dog Control Act 1996. 

[23] Again, the applicant did not wish me to focus on this aspect of his claim. 

Application 

[24] The applicant has applied for judicial review (“under Common Law jurisdiction”) of a decision of the District Court at Whanganui (Court) to issue a Notice of Court Fine under the Summary Proceedings Act 1957 (the Act). The statement of claim seeks to challenge both the Registrar’s Decision (the initial decision of the Court to issue the Notice) and the subsequent District Court judgment. The statement of claim sets out two causes of action – first that the Registrar failed to observe due process and, second, the Court (Judge Drayton) failed to observe due process. 

The Registrar failed to observe due process 

[25] The gist of this claim appears to be that, in issuing the Notice of Fine, the Court Registrar failed to observe due process of law because the applicant was not aware that the Notice of Fine would be issued and was not given the opportunity to be heard and to consent, prior to it being issued. The applicant says this amounted to a failure to observe natural justice, due process and procedural fairness. The applicant further alleges that in issuing the notice of fine without the applicant’s consent, the Registrar acted unlawfully/ultra vires. ... 

[29] The second respondent also submits that, even if the Registrar or Court had abused its process and there was jurisdiction for a judicial review application, the Court’s discretion should not be exercised in this matter because the applicant has not identified any statutory defence which would have been available to him to successfully defend the infringement offence. The applicant appears to acknowledge that he owns a dog and that the dog is not registered with the Council. 

Discussion 

[30] As I have noted, the applicant’s case proceeds on the basis of his submission that his consent was required to the process he now challenges. This submission seems to incorporate both the broad proposition that the District Court processes require the consent of the participants, and the more specific argument that a consent requirement must be read into s 21 of the Act. 

District Court as “de facto” court; consent required 

[31] As to the general proposition, I understand the applicant’s argument to be that the District Court is a “for-profit trading entity”. As a creature of statute it has no inherent jurisdiction and is a “de facto” court. It relies on contract and consent to “do business” with those who come before it. 

[32] The only part of this submission that is legally correct is that the District Court does not have inherent jurisdiction. The High Court is the only New Zealand Court that has an inherent jurisdiction.  The District Court’s jurisdiction is determined entirely by statute. That jurisdiction is partly set out in Part 4 of the District Court Act 2016, but there are many other statutes conferring civil jurisdiction on the court. The District Court does not require consent to act within its statutory jurisdiction. 

Consent under s 21 Summary Proceedings Act 1957 

[33] Section 21 of the Act sets out in a comprehensive fashion the process to be followed in issuing infringement notices. At the point when the Council filed a copy of the Reminder Notice in the Court, provided the particulars of the Notice were verified by the Court, the Court was deemed to have made an order, as if on the determination of a charge in respect of the offence, that the defendant pay a fine equal to the amount of the infringement fee then remaining unpaid for the offence (in this case, $300), together with costs of the prescribed amount. 

[34] Section 21 imposes an automatic process which the Court must follow. It does not require the applicant’s consent and neither can the applicant “deny jurisdiction” in order to effectively stay the process. ... 

[38] I conclude that, although the s 21 process offered opportunities for the applicant to object and be heard, it does not require the applicant’s consent to the process proceeding.

Privacy

In Farm Transparency International Ltd & Anor v State of New South Wales [2022] HCA 23 the High Court has addressed whether ss 11 and 12 of the Surveillance Devices Act 2007 (NSW) ("the SD Act") impermissibly burdened the freedom of political communication implied by the Constitution and were thus invalid. Part 2 of the Act regulates installation, use and maintenance of surveillance devices. Section 8 prohibits the knowing installation, use and maintenance of optical surveillance devices on or within premises to record visually or to observe the carrying on of an activity if the installation, use or maintenance of the device involves trespass to the premises. Sections 11 and 12 prohibit the communication or publication of a record or report, and the possession of a record, of the carrying on of an activity obtained as a direct or indirect result of, relevantly, the use of an optical surveillance device in contravention of s 8. 

 Farm Transparency International, a not-for-profit charity, had advocated political and legal changes to animal agricultural practices and animal welfare standards regarding farming and slaughtering practices. In an echo of Lenah Game Meats it had published photographs, videos and audio-visual recordings of animal agricultural practices in New South Wales. The second plaintiff, a director of the Farm Transparency International, had obtained recordings of the farming or slaughter of animals through purported acts of trespass contrary to s 8 of the SD Act. 

 The plaintiffs argued that ss 11 and 12 of the Act impermissibly burdened their ability to publish information that showed animal cruelty practices. The special case was presented on the basis that the activities recorded, albeit cruel, were not established to be unlawful. 

 The High Court has held that ss 11 and 12 of the Act did not impermissibly burden the implied freedom in relation to communication or publication by a person of a record or report, or the possession by a person of a record, of the carrying on of a lawful activity, at least where the person was complicit in the record or report being obtained exclusively by breach of s 8. 

 The Court stated it was otherwise unnecessary to determine whether ss 11 and 12 burdened the implied freedom in other applications. With reference to the restraints which the common law, equity and statute law already impose on the liberty of political communication, ss 11 and 12 imposed an incremental burden on a person's ability to publish records of lawful activities obtained surreptitiously and by conduct which amounted to trespass. The provisions had a legitimate purpose of the protection of privacy. The statutory schemes of other Australian jurisdictions were not obvious and compelling alternatives, as they did not pursue the same purpose and were broader in application. Sections 11 and 12 achieved an adequate balance between the benefit they sought to achieve and the adverse effect on the implied freedom.

Edelman J states

What this case is not about

193 A concerned member of the public, while present at a political event on private premises without invitation, overhears a conversation between senior members of the Government. The senior members of the Government are discussing their participation in an unlawful enterprise involving wiretapping of Opposition premises, and using the Australian Taxation Office and the Australian Secret Intelligence Service to target political opponents. The concerned member of the public uses a smartphone to make an audio visual recording of the conversation and provides the recording to a journalist at a national newspaper. The journalist and the editor of the newspaper are aware that the conversation was unlawfully recorded but they want to publish the details to inform the public of these matters of enormous political importance. Even if they cannot publish the information, they want to communicate it to the Australian Federal Police. 

194 In these hypothetical circumstances, s 11 of the Surveillance Devices Act 2007 (NSW), read with s 8, prohibits the journalist or editor from publishing or communicating the information, with penalties of up to $11,000 and five years' imprisonment . Section 12 prohibits the journalist or editor from even possessing the recording. Would the application of ss 11 or 12 of the Surveillance Devices Act to such circumstances demonstrate that those provisions contravene the implied freedom of political communication? Would it make a difference if the recording also exposed the identities of Australian intelligence operatives whose lives would be threatened by any communication or publication of the information? 

195 On the one hand, in these hypothetical circumstances the Surveillance Devices Act could suppress communication in this country of issues that, in other countries, have been fundamental to government or political matters. On the other hand, an unrestrained freedom may promote an approach that asks: "Why send a reporter to put a foot in the front door when the publisher can be confident that a trespasser with an axe to grind or a profit to be made will be only too willing to break and enter through a back window?" 

196 The point of these hypothetical examples is to illustrate the vast, unexplored breadth of the plaintiffs' challenge in this special case, extending to circumstances far removed from the factual substratum of this case. The plaintiffs' challenge to ss 11 and 12 of the Surveillance Devices Act, on the basis that those sections contravene the implied freedom of political communication in the Constitution, involved no submissions on such hypothetical scenarios or anything like them. Legal issues and factual nuances related to any such hypothetical scenarios were not explored. This Court should be very wary before adjudicating on a broad basis that extends over all such hypothetical cases. 

What this case is about 

197 I gratefully adopt the description of the circumstances of this special case set out in the reasons of Kiefel CJ and Keane J. It is important to emphasise three features of the special case to demonstrate the issues that properly arise for decision. 

198 First, the facts of the special case are concerned only with the operation of ss 11 and 12 of the Surveillance Devices Act based upon a contravention of s 8. The facts of the special case do not raise any issue concerning the operation of ss 11 and 12 based upon a contravention of ss 7, 9 or 10, which prohibit the installation, use and maintenance of a listening device, a tracking device, or a data surveillance device. 

199 The second feature of the facts of the special case is that they concern only the communication or publication of unlawfully obtained information by trespassers and those complicit in the trespass under s 8 of the Surveillance Devices Act. The facts do not concern third party recipients of information such as journalists or editors, or any other third parties who receive the information with or without knowledge of the unlawful manner in which it was obtained. In that respect, the circumstances of this case are very different from those in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd , where it was not alleged that the appellant broadcaster "was implicated in or privy to the trespasses upon the premises" or "knowing[ly] participat[ed] ... in what is alleged to have been the relevant wrongdoing" . 

200 The goals of the first plaintiff, Farm Transparency International Ltd, and the second plaintiff, Mr Delforce, as a director of the first plaintiff, include educating the public about cruelty to non human animals and advocating for law reform, including by providing evidence and reporting on farming practices. Mr Delforce has dedicated his life to "working towards alleviating the suffering of animals through public education and efforts to change the law". He has been a director of Farm Transparency since its incorporation and an officer of its predecessor corporation since 2014. 

201 Mr Delforce gives numerous examples of circumstances in which Farm Transparency or its predecessor corporation of which he was an officer have published audio visual footage of animal suffering. He speaks about images and footage from 21 piggeries, a turkey farm, a duck farm, a turkey abattoir, a cage egg facility, two "farm" eggs facilities, and two "pet food" facilities. In every instance, Mr Delforce was the person who took the footage or was complicit in, or aware of, the process of taking the footage or the installing of cameras on the premises. 

202 On each of the numerous occasions when Mr Delforce published his recordings of non human animal cruelty to which he refers in his affidavit, Mr Delforce used Farm Transparency or its predecessor corporation, and their websites, as a vehicle to publish the photographs and audio visual footage of non human animal cruelty. Farm Transparency wishes to continue to publish information, including video recordings, that show non human animal cruelty practices without the burden imposed by the Surveillance Devices Act. 

203 To the extent that the special case discloses any trespasses by Mr Delforce in contravention of s 8 of the Surveillance Devices Act, the natural inference is that those trespasses occurred as part of a common design, or sharing a common purpose, with Farm Transparency, of which he has always been a director, in order to obtain recordings of cruelty to non human animals for publication by Farm Transparency. Even if Mr Delforce's actions were not, and will not be, undertaken as an agent of Farm Transparency or able to give rise to joint liability based on a common purpose , a possible inference from the material in the special case is that Farm Transparency is, or will likely be, an accessory before the fact and potentially liable for an offence under s 8. At the least, in the circumstances of past contraventions described by Mr Delforce, Farm Transparency or its predecessor corporation would be, to use the language of Gleeson CJ, "complicit" in any trespass under s 8 . 

204 The third feature of the facts of the special case is that there has been no finding of any court, nor was there any submission either in writing or orally, that established the unlawfulness of any activity depicted in a record that was obtained or that might be obtained. No law was identified in submissions by the plaintiffs that might potentially have made such activities unlawful and the State of New South Wales thus had no opportunity to address the nature or scope of any unlawful activity on private property that might be disclosed by the plaintiffs. 

205 Mr Delforce has been involved in many incidents of covert recording of farming activities involving considerable suffering of non human animals. Some images from such recordings were exhibited to the affidavit of Mr Delforce, which was part of the special case. They reveal shocking cruelty to non human animals. They may very well have been unlawful as well as immoral. But even apart from the lack of submissions about the basis for any illegality, the special case does not assert that any of the recorded activities had been found to be unlawful. 

206 Many of the recordings made by Mr Delforce were not referred to the police or to the Royal Society for the Prevention of Cruelty to Animals (RSPCA) because he considered that the practices, whilst cruel, were not illegal. On the occasions that Mr Delforce did refer recordings to the police or to the RSPCA, there was no successful prosecution. Therefore, on the facts stated and in light of the manner in which the argument developed, this special case was presented on the basis that the activities, albeit undeniably cruel, were not established to be unlawful. 

207 The circumstances of the special case therefore raise the question of whether the implied freedom of political communication is contravened by the operation of ss 8, 11 and 12 of the Surveillance Devices Act in prohibiting trespassers and those complicit in a trespass from publishing or communicating information exclusively obtained from that trespass and which does not reveal unlawful conduct. The answer is that ss 8, 11 and 12 of the Surveillance Devices Act are not invalid in their application to such general circumstances

Edelman J subsequently states

Extending breach of confidence? 

233 In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd , this Court considered whether principles concerning breach of confidence extended to the publication of a film showing cruelty to possums which had been obtained "by unlawful entry and secret surveillance" although the activities recorded were not "secret", and nor was a relationship of confidence "imposed upon people who might see the operations". The different reasons given by members of this Court, Callinan J dissenting, for allowing the appeal and refusing relief illustrate the different views concerning the boundaries of the action for breach of confidence. 

234 The most restrictive approach, at least in relation to individuals, was taken by Gleeson CJ, who considered that the protection afforded by the law concerning breach of confidence did not extend to every activity done on private property. His Honour said that the activities had been conducted on private property, but had not been shown to be private in any other sense . Gleeson CJ said that the foundation of much of the privacy protection afforded by the action for breach of confidence is "human dignity" . Although Gleeson CJ did not express a final conclusion, he nevertheless suggested that the action for breach of confidence might, in some circumstances, protect the privacy of a corporation . 

235 A potentially broader approach to breach of confidence was taken by Gummow and Hayne JJ, with whom Gaudron J relevantly agreed , although their approach was narrower in respect of the persons entitled to rely on a breach of confidence. Their Honours referred to circumstances of breach of confidence as potentially including "the disclosure of private facts and unreasonable intrusion upon seclusion" but denied the respondent the ability to rely upon those circumstances because it was a corporation rather than a natural person . 

236 Kirby J took an even less restrictive approach than Gummow and Hayne JJ (Gaudron J agreeing), considering that the disclosure of information could be restrained simply on the basis that it was obtained "illegally, tortiously, surreptitiously or otherwise improperly" . His Honour only allowed the appeal on the basis that an injunction should have been refused as a matter of discretion . Callinan J took the least restrictive approach and would have upheld the restraint and dismissed the appeal . 

237 At its narrowest, the present state of the law concerning the third category of breach of confidence is, therefore, that it can extend to all private information where human dignity is concerned. In that category, it cannot be conclusively said that it extends to corporations or that human dignity would be compromised by the communication of any private information. 

238 There are other boundaries of the law concerning the obligation of confidence that are also unsettled. For instance, there remains dispute about the extent to which the obligation is imposed upon persons who are not primarily liable for a breach of confidence and do not know that the information is confidential. Some cases suggest that the obligation extends to a recipient who could reasonably have known that the information was confidential and potentially even to "innocent" third parties , arguably creating a duty in both cases to consider whether information is confidential before communicating or publishing it. Other decisions appear to deny this, other than in circumstances of wilful blindness or where a person has been told that information is in fact confidential . And others have expressly, and carefully, avoided the controversy of "the extent to which actual knowledge is necessary" beyond circumstances of wilful blindness . The answer to this question may also depend upon the category of breach of confidence that is involved, particularly because an objective assumption of responsibility creates duties independently of subjective knowledge . 

239 The boundaries of the public interest defence to breach of confidence are also not yet settled. One aspect of that defence is sometimes said to be the principle that a person cannot be made "the confidant of a crime or a fraud" . As Gibbs CJ observed in A v Hayden , that defence has been expanded in England to include misconduct generally. However, his Honour did not decide whether that expansion should be embraced in Australia. It has thus been said that the extent to which the defence applies in Australia "is not clear" . To the extent that the defence operates, it may be doubted whether it permits disclosure to the world at large, or to a narrower audience – for example, relevant law enforcement authorities . Even the foundations of the defence, based upon a case that has been reported in significantly different terms , have been questioned . 

240 It is unnecessary to resolve these issues in this case because the application of the implied freedom of political communication in relation to the Surveillance Devices Act can be resolved on the basis of the existing boundaries of the equitable obligations of confidence. The equitable doctrine must develop consistently with the implied constitutional freedom of political communication . But its present boundaries are entirely consistent with that constitutional freedom. In particular, representative democracy does not provide a licence to disregard express or implied undertakings of confidence or to reveal trade or other secrets. Indeed, representative democracy can be enhanced by the insistence upon undertakings of confidence on matters that relate to the core of political decision making such as rules concerning the secrecy of recent Cabinet discussion. 

241 It is no more necessary for representative democracy to require, in the name of political communication, a liberty to impair a person's dignity by the communication of private and personal information concerning lawful activities that might be characterised in the broad sense as political, than it is for the law to provide a liberty to assault a person or to trespass on a person's property in order to communicate about matters that could broadly be described as political.

 Gageler J in dissent states 

66 Having noted those features of the legislative scheme at the outset, I am able to come immediately to the constitutional issue at the heart of the matter. The issue is whether it is compatible with the maintenance of the constitutionally prescribed system of government, for the purpose of protecting the privacy of activities on private property, to impose blanket prohibitions on the possession and communication of a visual record known to have been created as a result of a trespass to private property and not otherwise in the public domain. 

67 Implicit in that framing of the issue is rejection of any notion that the purpose of disincentivising contravention of a criminal prohibition can alone be a purpose capable of justifying a law that imposes a burden on freedom of political communication . To accept such a notion would be to conflate the purpose of a law – the "public interest sought to be protected and enhanced" by the law – with the means adopted by the law to achieve that purpose. The consequence would be to allow a legislative scheme to be designed to bootstrap itself into constitutional validity. 

68 The criminal prohibitions in ss 11 and 12 on communication and possession of a visual record, and the criminal prohibition in s 8 of the means of creation of a visual record, are complementary components of a single legislative scheme. By that legislative scheme, the privacy of activities on private property is sought to be protected. To the extent that the legislative scheme prohibits communication or possession of an extant visual record of the carrying on of an activity that is of governmental or political concern, it burdens freedom of political communication. That burden falls to be justified, if at all, by reference to the underlying legislative purpose of protecting the privacy of activities on private property. 

69 For reasons to be developed, I consider that the burden on freedom of political communication imposed by the blanket criminal prohibitions in ss 11 and 12, in their application to a visual record that has resulted from the use of an optical surveillance device in contravention of s 8, is unjustified. The result is that I consider each of the prohibitions, in that application, to infringe the constitutional guarantee of freedom of political communication. 

The significance of Lange 

70 The interest of an owner or occupier in the privacy of activities that occur on private property has long been an interest which the law has afforded a measure of protection . 

71 Pursuit of the protection of that interest is doubtless compatible with the constitutionally prescribed system of government which the constitutional guarantee of freedom of political communication exists to protect. But even where it can be accepted without question that a law burdening freedom of political communication does so in pursuit of a purpose that is compatible with the constitutionally prescribed system of government, it cannot simply be accepted without question that the same law pursues that purpose in a manner that is compatible with the constitutionally prescribed system. 

72 To the contrary, as I have explained in the past :

"The implied constitutional freedom is a constraint on legislative design. It limits legislative options. The consequence of the implied constitutional freedom is that there are some legitimate ends which cannot be pursued by some means, the result of which in some circumstances is that some ends will not be able to be pursued to the same extent as they might have been pursued absent the implied constitutional freedom. Means which come at too great a cost to the system of representative and responsible government established by the Constitution must be abandoned or refined. Means which are overbroad may need to be narrowed." 

73 Appreciating the impact of the implied constitutional freedom on the measure of protection that can be afforded by law to the privacy of activities that occur on private property is assisted by examining what Lange v Australian Broadcasting Corporation held to be the impact of the implied constitutional freedom on the measure of protection that can be afforded by law to personal reputation. For the application of constitutional principle to be consistent, the impacts must be coherent. 

74 In Lange, the implied constitutional freedom was held to necessitate adjustment of the balance until then struck in the law of defamation between protection of personal reputation and freedom of speech. The adjustment involved extending the common law defence of qualified privilege to recognise that "each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia" . 

75 The precept of Lange is that freedom of communication to and between electors, and between electors and elected legislative and executive representatives, on matters of government and politics is an "indispensable incident" of the system of representative and responsible government prescribed by the Constitution . Within the scope of the freedom is communication of disagreeable or objectionable information from few to many by way of "agitation" for legislative and political change . Explained in the language of Kirby J : "The form of government created by the Constitution is not confined to debates about popular or congenial topics, reflecting majority or party wisdom. Experience teaches that such topics change over time. In part, they do so because of general discussion in the mass media." 

76 Lange's insight, first elucidated in Australian Capital Television Pty Ltd v The Commonwealth and Nationwide News Pty Ltd v Wills , is that the majoritarian principle, upon which our system of representative and responsible government relies for its outworking, carries an inherent risk of legislative or executive impairment of "the capacity of, or opportunity for, the Australian people to form the political judgments required for the exercise of their constitutional functions" . An aspect of that systemic risk is that "political communications unhelpful or inconvenient or uninteresting to a current majority might be unduly impeded" . 

77 The implied freedom of political communication is a structural implication serving to safeguard the efficacy of the system against realisation of that systemic risk . Lange's demand for legislative justification, and correlative judicial scrutiny, of a legislative or executive burden on freedom of political communication is attuned to its mitigation. 

78 Lange postulates, and Brown v Tasmania illustrates, that the balancing of the freedom to communicate on matters of government and politics against the protection of other legitimate societal interests is a matter for legislatures to "determine" but for courts to "supervise" . Under our system of representative and responsible government, as under some other similar systems, "the degree of legislative time, consultation and effort cannot act as a justificatory shield to guard against constitutional scrutiny": "[w]hat is of utmost relevance is the resulting legislative choice" . Legislative judgment about how a particular balance ought to be struck must be accorded respect. "But, in the ultimate analysis, it is for the [c]ourt to determine whether the constitutional guarantee has been infringed" . 

The prohibitions infringe the constitutional guarantee 

79 It may well be legitimate to seek to dry up an illegal market for stolen goods by prohibiting the possession and sale of goods known to have been obtained by burglary. However, the market sought to be dried up by the prohibitions in this case is a constitutionally protected "marketplace of ideas" . That marketplace is foundational to a "society organised under and controlled by law" . Within the marketplace of ideas, factual information bearing on matters of political and governmental concern known to its possessor and potential communicator to be true is all too often in short supply. 

80 The prohibitions on communication and possession in question remove one source of that supply of true factual information having the potential to bear on matters of political and governmental concern. The source removed – visual imagery – is of its nature not only factual but peculiarly communicative. In Levy v Victoria, McHugh J adopted the submission of counsel that "[t]he impact of television depiction of the actual perpetration of cruelty, whether to humans or to other living creatures, has a dramatic impact that is totally different [from] saying, 'This is not a good idea'" . The internet and the smartphone have only reinforced the persuasive power of visual imagery. 

81 Not only do the blanket prohibitions on possession and communication of a visual record known to have been created as a result of a trespass to private property remove a source of peculiarly communicative true factual information capable of bearing on matters of political and governmental concern. They do so indiscriminately – regardless of the gravity of the information and of the extent to which electors, their elected representatives and executive officers may have an interest in receiving it. 

82 Having regard to those considerations, I am of the opinion that the prohibitions impose a greater burden on political communication than can in all circumstances be justified as appropriate and adapted to the protection of the privacy of activities on private property. The prohibitions are too blunt; their price is too high; the cost they impose on the communication and receipt of information about matters of political and governmental concern is more than could be warranted for every activity which might be shown by a visual record to have occurred on private property. Expressed in terminology extolled in and since McCloy v New South Wales, the prohibitions are not "adequate in [their] balance" . 

83 That the qualitative extent of the burden on communication and receipt of information about matters of political and governmental concern is more than can be justified for the purpose of protecting the privacy of activities on private property is sufficiently illustrated by Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd . There the recorded facts were as follows : "Lenah Game Meats Pty Ltd conducted the business of processing game meat, including possum meat which it sold for export. It killed and processed Tasmanian brush tail possums at licensed abattoirs. An unidentified person or persons broke and entered the abattoirs and, by boring holes in the roof, installed hidden video cameras. Those cameras recorded the possum-killing operations without the consent or knowledge of Lenah Game Meats. The cameras and video recording were retrieved by an unidentified person or persons and the recording was supplied to Animal Liberation Ltd (Animal Liberation), which, in turn, supplied the recording or part of it, to the Australian Broadcasting Corporation (the ABC) for television broadcasting." 

84 The position of the ABC was described by Gleeson CJ : "The [ABC] is in the business of broadcasting. ... [I]ts position is not materially different from a commercial broadcaster with whom it competes. In the ordinary course of its business it publishes information obtained from many sources, thereby contributing to the flow of information available to the public. The sources from which that information may come, directly or indirectly, cover a wide range of behaviour; some of it impeccable, some of it reprehensible, and all intermediate degrees. If the [ABC], without itself being complicit in impropriety or illegality, obtains information which it regards as newsworthy, informative, or entertaining, why should it not publish?" 

85 The question was rhetorical. The holding in Lenah Game Meats was that there existed no basis in law upon which the ABC could be enjoined from publishing the information it had received in the form of the video recording. That was so notwithstanding that the ABC "probably realised, when it received the [video recording], that it had been made in a clandestine manner" and "certainly knew that by the time the application for an injunction was heard" . 

86 The ABC in fact incorporated segments of the video recording into a story which it broadcast on the "7.30 Report" on 4 May 1999. As described in the narrative statement of facts in the appellant's submissions in Lenah Game Meats, that story was concerned with: . the harvesting, slaughter and export of Australia's wildlife; . the adequacy and possible reform of the Tasmanian Animal Welfare Code of Practice for Processing Brush Tail Possum which covered the capture, handling, transport and slaughter of possums in that State; . the concerns of animal liberation groups about the treatment of possums, the holding and slaughtering process of such animals, the adequacy of the Tasmanian Animal Welfare Code of Practice for Processing Brush Tail Possum and the health and safety of possum meat for consumption; . inspections by State and Commonwealth authorities of the possum slaughtering process at Lenah Game Meats' abattoirs; . the role of the Tasmanian Department of Agriculture and Fisheries and Department of Health in regulating the export of wildlife; and . the views of the Tasmanian Department of Primary Industry and the Animal Welfare Advisory Committee concerning Lenah Game Meats' activities. 

87 The slaughter of animals for export is within the scope of the legislative power of the Commonwealth Parliament . The subject-matter was regulated under Commonwealth legislation at the time of the "7.30 Report" broadcast sought unsuccessfully to be enjoined in Lenah Game Meats, had been so regulated since at least 1935 , and remains so regulated . 

88 By force of the prohibitions now in question, the ABC or any other broadcaster, as well as Farm Transparency or any other publisher of video content, would now be prohibited from publishing or even possessing a similar video recording supplied to it in similar circumstances if it knew, whether by inference from the subject-matter of the recording or other information, that the recording was created as a result of trespass to an abattoir in New South Wales. That would be so irrespective of the significance of the subject-matter of the recording to government and political matters. Therein can be seen "the incremental effect of [the prohibitions] on the real-world ability of a person or persons to make or to receive communications which are capable of bearing on electoral choice" . 

89 The special case alludes to other instances in recent history of video recordings – apparently showing animal cruelty and apparently created as a result of a trespass to private property – having come into the possession of a broadcaster, having been published by the broadcaster, and having stimulated national debate leading to executive inquiry and legislative change. There is no need to set out the details of those instances. They are notorious. 

90 This is not an occasion for prognostication about how the common law rules and equitable principles examined in Lenah Game Meats and found not to impede publication of the video recording in that case might develop in the future in Australia. Clear from Lange , emphasised by Gleeson CJ in Lenah Game Meats itself , and recognised in contemporary academic writings on the potential development of a tort of privacy in Australia , is that any development would need itself to follow a path consistent with the constitutional guarantee of freedom of political communication. That is so for development of the substantive law demarcating those activities that will and those that will not be afforded some measure of protection against public scrutiny at common law or in equity . That must also be so for development of the adjectival law identifying considerations that are appropriate to be weighed in determining whether or not publication or possession will be the subject of discretionary relief . What is inconceivable is that any rule of common law or principle of equity would ever develop to the extent of prescribing and enforcing a blanket prohibition on communication or possession of any visual record known to have been created as a result of a trespass to private property irrespective of the nature of the activities revealed and irrespective of the systemic importance of electors, legislators and officers of the executive becoming aware of those activities. 

91 The point is not that conformity with the constitutional guarantee of freedom of political communication means that political communication must always trump privacy. The point is that conformity with the constitutional guarantee means that privacy cannot always trump political communication. 

92 Tellingly, legislative regimes which impose prohibitions on publication of visual records in order to protect the privacy of activities on private property in Victoria , Western Australia and the Northern Territory all contain exceptions for publications judicially determined to be in the public interest. The case-by-case judicial determination of the public interest imported into those broadly comparable State and Territory legislative regimes by those exceptions operates relevantly to ensure that the public interest in protecting privacy does not prevail in circumstances where protection by prohibiting publication of an extant record of activities that occurred on private property would be disproportionate to the public interest in electors and their elected representatives becoming aware of those activities .