Are You a Legal Person or a Legal Thing

For a long time, a thick legal wall has separated all humans from all nonhumans.

In Western law, every nonhuman animal has always been regarded as a legal “thing”. We can 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 are.

“Things” are invisible to civil judges. They possess no legal rights and no hope of having them.

A court confronted with a plaintiff’s claim to possess any legal right need only determine 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.”

Not long ago, many humans were treated as “things.” In 1769, 20 years after he had been captured in Africa and sold into slavery in Virginia, James Somerset was brought to England by his owner, Charles Steuart. Two years after he reached London, Somerset escaped and eluded professional slave-catchers for two months before being recaptured and imprisoned on the “Ann and Mary,” bound for the Jamaican slave markets.

Somerset’s recapture led to one of the most important trials of Anglo-American history. Before the ship could set sail for Jamaica, Somerset’s godparents filed a 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 thing to person remains a landmark. Mansfield ruled that human slavery was so odious that the common law would not support it. He set James Somerset free.

The common law transformation of a nonhuman animal from “legal thing” to “legal person” is a primary objective of the Nonhuman Rights Project.

Its main purpose is, through litigation and education, to persuade an American state high court to transform a nonhuman animal the way Lord Mansfield transformed James Somerset: by declaring that she is a legal person capable of possessing legal rights.

Once a court recognizes this possibility, the 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?”

Next: Why We Work Through the Common Law

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