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Legal 'personhood' shifts law, thinking

Two Views • Nonhuman rights is uncharted territory for human law
by: CHRISTOPHER ONSTOTT 95 cats and two dogs rescued from a Damascus home three weeks ago allegedly were malnourished, diseased and living in in a home full of urine and feces. Some animal welfare advocates want to increase the penalties for animal neglect.

A thick legal wall separates all humans from all nonhumans (New law school program unleashes animal rights, Nov. 24). In Western law, every nonhuman animal has long been regarded as a legal 'thing.' We buy, sell, eat, hunt, trap and vivisect them nearly at will. They possess no legal rights.

They don't exist in law for their own sakes. They exist for the sake of legal 'persons,' which we humans are.

A legal person has the capacity to possess legal rights. An American court confronted with a plaintiff's claim to a legal right need only determine that plaintiff's species. If she is human, the answer is, 'It is at least possible she is a legal person and has the right she claims.' If the plaintiff is a nonhuman animal, the answer is, 'Impossible. He is merely a legal thing.'

Many humans were once regarded as 'legal things,' unable to possess legal rights. That began to change in the English-speaking world 240 years ago. In 1769, 20 years after his capture in Africa and sale into slavery, James Somerset was brought to London by his Virginia owner, Charles Steuart. Two years later, 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 in Anglo-American history. Before the ship could sail, Somerset's godparents filed a historic common law writ of habeas corpus in which they demanded that the common law - the law judges make to harmonize with the demands of changing human experience, scientific knowledge and public morality - regard James Somerset as a legal person who possessed the fundamental legal right to own himself.

The story of how Somerset's lawyers persuaded the great Chief Justice of the Court of King's Bench, Lord Mansfield, to transubstantiate (for that is the precise word) James Somerset from thing to person remains relevant for today. Mansfield ruled that human slavery was so odious the common law would not support it, and set James Somerset free.

A similar common law transubstantiation of a nonhuman animal from a legal 'thing' to a legal 'person' is a primary objective of the Nonhuman Rights Project.

During the past four years dozens of volunteers from the disciplines of law, sociology, political science, natural science and mathematics have invested 25,000 hours researching, writing and vigorously debating how best to persuade a high court to extend the status of legal 'person' to even a single nonhuman animal, the way Lord Mansfield transformed James Somerset. We are preparing a series of groundbreaking lawsuits, the first to be filed in 2013. We will argue that it would not only be arbitrary to deny at least some nonhuman animals certain fundamental legal rights, but that to refuse to do so undermines the reasons we humans have fundamental rights.

We will seek a declaration that a specific nonhuman animal is entitled to legal personhood under a state's common law, entitled as well to such fundamental rights as bodily liberty and bodily integrity.

By these suits, the Nonhuman Rights Project will follow the centuries-worn path that English villeins, English and American black slaves, indentured servants and other unfree wore in their successful fights for legal personhood and rights. Our substantive arguments will echo those common law judges commonly encounter today: liberty, equality, habeas corpus, rational decision-making.

In selecting the first nonhuman animal plaintiffs, The Nonhuman Rights Project is focusing on an orca or dolphin, a chimpanzee or other ape, an elephant, or an African Grey Parrot, for scientists have learned that all these species are conscious, likely self-conscious (they know they have minds), may have a theory of mind (they know others have minds), are autonomous, use language or language-like communication, and display other behaviors that require complex cognition.

Once the legal personhood of any nonhuman animal is established, the next legal question can 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 legal rights she claims?'

Steven M. Wise is author of 'Rattling the Cage - Towards Legal Rights for Animals,' teaches Animal Rights Jurisprudence at four law schools, including Lewis and Clark Law School, and directs the Nonhuman Rights Project.