Moving Beyond Arbitrariness: The Legal Personhood And Dignity Of Non-Human Animals

Abstract

This article considers the legal personhood and dignity of non-human animals. It first argues that the concept of legal personhood can embrace all those who are capable of having rights or duties. Since the concept includes those who are rights-bearers, without necessarily being duty-bearers, it is necessary to investigate whether it is possible for animals to be rightsbearers within our law. It is argued that the traditional classification of animals as legal objects has already been challenged by the enactment of animal welfare legislation. Certain traditional justifications for such legislation cannot withstand scrutiny and it is shown that such legislation rests upon the recognition that animals have important interests in their own lives and so require legal protections in their own right. This provides the basis for recognising that they have certain rights within the law, and consequently, if we take the argument to its logical conclusion that they are natural persons rather than things. This conclusion can be reached through courts simply drawing out the implications of the existing legal regime in relation to animals. An alternative basis for restricting the category of legal personhood only to those who are members of the human species is often rooted in the notion that human beings have a special 'worth' or 'dignity' not possessed by other animals. The dignity claim is shown to be capable of two different interpretations: one that asserts the special value of human beings as a category and the other that asserts the special value of certain complex characteristics -such as rational agency -largely found only within the human species. both interpretations are shown to be flawed and, ultimately, provide no acceptable justification for recognising that only human beings are capable of having rights that must be respected. The notion of dignity, it is argued, can be developed to remove the arbitrary exclusion of nonhuman animals. The concept, as developed recently by Martha Nussbaum, embraces all those who have the capacity to flourish and can recognise the variable nature of the good for diverse beings. The adoption of the revised conception of dignity paves the way for the recognition of the legal personhood of animals. The final part of this article considers the possibilities for interpreting both the common law and constitutional provisions so as to recognise the dignity and personhood of animals. A key problem that is addressed is whether South African society is ready to embrace the full implications of this recognition. The legal concept of 'progressive realisation' of animal rights is proposed as offering the possibility of ensuring greater protections for animals through recognising their dignity and personhood whilst embracing a gradualist approach towards the full realisation of their rights, thus preventing a wholesale disjunction between the law and the attitudes of wider South African society.

Animals and African Ethics

“…(See also Horsthemke 2012. ) In two provocative papers (Bilchitz 2009a;Bilchitz 2009b), David Bilchitz argues that, since the South African Constitution fails to protect animals ( qua group 'unable to assent to its terms'), 'it is in some sense illegitimate'. In order to remedy this omission, and to establish the Constitution's legitimacy in this regard, he suggests the provision of protection 'through drawing out the implied meaning of the provisions that already exist', even though 'a constitutional amendment would be the most desirable route in expressly protecting animals' (Bilchitz 2009b).…”

Human rights without human supremacism

“…While there are compelling accounts of how we routinely violate the dignity of animals (Cataldi 2002; Gruen 2014; Humphreys 2016; Loder 2016), they tend to focus on specific contexts of public/visible degradation (such as circuses and zoos), 19 rather than the often invisible structures of exploitation on farms or labs that are the heart of animal oppression in our society. While some defenders of animal rights argue that dignity can operate as the general grounding for animal rights (Bilchitz 2009), others argue that it is not a helpful register for grounding basic animal rights (Zuolo 2016), if only because dignity talk is saturated with the idea that dignity involves not being treated as an animal. In any event, dignity is not the natural language of AR theory.…”

Traditional Conceptions of the Legal Person and Nonhuman Animals

“…Third, even though sentient animals have far more in common with humans than with nonsentient beings [ 77 ] (p. 68), the category of subjects of rights could include animals, and other nonsentient beings that also hold legal rights, such as nature and its elements, such as rivers, mangroves, and forests, which have been recognized as subjects of rights in different countries from India, Bangladesh, and New Zealand to Colombia and Ecuador. This category could also include other nonsentient beings such as idols or ships [ 78 ] (p. 138), which are not legally protected due to their vulnerability like humans and animals but due to other reasons such as worship or business.…”