'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.
