'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.
