We often read in newspapers about terrible cases where animals have been mistreated. The general outcome is that the person who abused the animal will be fined or in extremely rare cases they might be sent to prison.
I am of the view that at some point in the not too distant future, an abused animal will be able to sue its owner for the equivalent of a barring order. This may sound ridiculous and one of the reasons it may sound foolish is because an animal does not have legal personality and an animal cannot issue proceedings in its own name. That is the standard legal thinking.
We have an amount of animal welfare law and there are numerous endangered species statutes but the fundamental legal status of non-humans has remained unchanged. The philosopher Jeremy Bentham said that the only arbiter of how we treat animals is not “can they reason” nor “can they talk” but “can they suffer”.
There is a famous English case called Somerset v. Stewart, which was decided in 1772 when the English High Court decided that a slave could bring a set of proceedings even though that slave at the time had the legal status of an animal i.e. he was a non-person. The argument is often made that animals cannot bring legal proceedings because they cannot personally appear in court and cannot explain themselves. Children however or persons on their behalf can bring proceedings. Mentally incapacitated adults can bring proceedings. There are any number of cases where non-humans have been held to be legal persons like ships, limited companies, partnerships and even states.
A legal person does not have to be exactly the same thing as a human being.
We hear of certain children who are born without complete brains. They can breathe and digest but they have no consciousness and no sentience. They have no feeling, no awareness whatsoever. Could you abuse that child and get away with it? Could you eat that child and get away with it? Of course not, but is having a human form the only sufficient condition for rights? Why is a human individual with no cognitive abilities whatsoever a legal person with rights, whereas cognitively complex beings such as chimpanzees or dolphins or whales have no rights at all?
In my view when we are regarded as distant ancestors, people in the future will look back in horror at the manner in which we treated animals, even advanced animals with intelligence and the ability to feel pain and other sensory experiences. Animals deserve protection and they will only have legal protection when they are granted legal rights.
Kevin Brophy,
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