Are You a Legal ‘Person’ or a Legal ‘Thing’?
For a very long time, a thick legal wall has separated humans from all the other animals.
In Western law, every nonhuman animal has always been regarded as a legal “thing.” We buy, sell, eat, hunt, ride, trap, vivisect, and kill them almost at whim. The reason is that legal “things” don’t exist in law for their own sakes. They exist for the sakes of legal “persons,” which we humans all are.
Legal “things” are invisible to civil law judges. They possess no legal rights and have no hope of ever having them.
A court confronted by a claim to any legal right need begin by determining the plaintiff’s species. If the plaintiff is human, the answer is “It is possible. She is a legal person.” If the plaintiff is a nonhuman animal, the answer is “Impossible. He is a legal thing.”
In Western law, every nonhuman animal has always been regarded as a legal “thing.”Not long ago, many humans were treated as legal “things.” In 1769, 20 years after he was captured in Africa and sold into slavery in Virginia, James Somerset was brought to London by his owner, Charles Steuart. Two years later, Somerset escaped then eluded professional slave-catchers for two months before being imprisoned on the ship Ann and Mary, bound for the Jamaican slave markets.
Somerset’s recapture led to one of the most important trials in Anglo-American history. Before the ship could sail, Somerset’s godparents sought an historic common law writ of habeas corpus in which they demanded his freedom.
The manner in which Somerset’s lawyers persuaded the great Chief Justice of the Court of King’s Bench, Lord Mansfield, to use the common law to achieve the legal transubstantiation that marked Somerset’s passage from legal “thing” to legal “person” remains a landmark. Finally, Mansfield ruled that slavery was so odious the common law would not support it and set James Somerset free.
A similar common law transformation of a nonhuman animal from legal “thing” to legal “person” is a primary objective of the Nonhuman Rights Project which seeks, through litigation and education, to persuade American state high courts to transform a nonhuman animal plaintiff the way Lord Mansfield transformed James Somerset: by declaring she is a legal “person” capable of possessing legal rights.
Once a court recognizes this, its next legal question will appropriately shift from the irrational, biased and overly simplistic question, “What species is the plaintiff?”, to the rational, nuanced, value-laden and policy-enriched question, “What qualities does the plaintiff possess that are relevant to the issue of whether she is entitled to the legal right she claims?”