Kurki (2021) on Legal Personhood for Animals

 Visa Kurki, “Legal Personhood and Animal Rights.” Journal of Animal Ethics 11(1): 47-62, Spring 2021.

• The Nonhuman Rights Project (along with others) seeks to have animals in the US “given” legal rights; this approach has not yet succeeded in the US. (There has been a significant victory in Argentina, however.)

• The goal of having a court declare animals to be legal persons via writs for habeas corpus means that such cases hold high stakes for the judges involved.

• The high judicial stakes might pose a problem for improving the conditions under which animals live. Judges are generally not all that willing to go well beyond existing precedents, especially if the departure could imply sweeping changes, such as forbidding the keeping of companion animals like dogs and cats. A better framing for those seeking to improve the conditions under which animals are confined might be: animals already possess rights, and the question is whether in some cases those rights should encompass habeas corpus.

• Kurki pushes back against the view that a focus on improved animal welfare is in opposition to the provision of rights to animals, in part because of ambiguities in the use of the term "rights.". [Our blog has done something similar.] 

• Kurki also pushes back against the notion that only legal persons possess rights. Though not currently considered to be legal persons, animals already possess some “incidents” of the bundle of rights that typically come with personhood (pages 52-53). That is, Kurki supports (both here and in his open access 2019 book) a "bundle" theory of legal personhood, in which there are many potential sticks of rights, but that in any specific instance, only a subset of those sticks might be provided. Anti-cruelty laws indicate that animals already possess some sticks in the rights bundle.

• The notion that a being can only possess legal rights if that being is capable of bearing legal duties is misguided, as the case of human infants indicates, but a version of that reasoning has been adopted by a court in arguing against legal personhood for the chimpanzee Tommy (page 54).

• Animals can be granted habeas corpus rights without there being some uncontrolled revolution that would force people to stop having pets, for instance. Kurki endorses making this case to courts, instead of asking them to undo millennia of perceived precedents with far-reaching consequences: "What if the stakes in the habeas corpus trials are not whether animals should be included in the community of legal right-holders, but rather whether certain animals should receive the right to personal freedom, protected by habeas corpus [page 55]?"

• Kurki's approach is paralleled by the well-known concurring opinion (pdf here) by Judge Fahey in the Tommy (the chimpanzee) case.