The Nonhuman Rights Project seeks to persuade judges that a nonhuman animal has the capacity to possess common law rights: what does capacity mean?
There’s a story that, near the end of the American Civil War, Abraham Lincoln met with South Carolina Peace Commissioners who wished to discuss ending the war. They didn’t get far with the President. Lincoln told them, “As President, I have no eyes but constitutional eyes: I cannot see you.” As far as Lincoln was concerned, it had been unconstitutional for South Carolina even to have tried to secede from the Union. South Carolina claimed to have done so. As far as Lincoln was concerned, they had accomplished nothing.
Because nonhuman animals lack the capacity to possess any legal right, they are invisible to civil judges in the way South Carolina’s Peace Commissioners were invisible to Lincoln. Nonhuman animals are not legal persons; they’re legal things. If legal personhood is the grand-slam home run of civil law, legal thinghood is the failure even to make the team. Things have no hope of taking a turn at bat and this is the problem the Nonhuman Rights Project is working hard to fix.
Until we succeed, we can’t hope to argue successfully that a chimpanzee has a right to bodily integrity, so she can’t be the subject of biomedical research. Until we fix it, we can’t hope to persuade a court that a dolphin has the right to bodily liberty, so she can’t be captured from the Gulf of Mexico and imprisoned in a tank to amuse our fellow citizens. Until judges see at least some nonhuman animals as entities capable of possessing any legal right at all, there’s no arguing they have any right at all.
The passage from thing to person constitutes a legal transubstantiation. On the outside a legal person appears unchanged from the time she was a legal thing. But she has been transformed and brought to legal life.
Next: What exactly is a legal right?
