Reason magazine has a very good article on this subject.
The introductory portion notes that, while in the United States, both state and federal courts have routinely rejected this item, it's gotten at least some degree of traction elsewhere.
Then, after noting the snarker or worse here:
Critics scoff that this amounts to little more than absurdist lawfare and that legal recognition of animal personhood would almost certainly empower busybody environmentalists—and might not even improve conditions for the animals. There are also public pressure campaigns and existing legal avenues that could improve animal welfare without attempting to shift one of the bedrock principles of Western law.
It indeed has been absurdist in the hands of the Nonhuman Rights Project mentioned near the top of the piece. I wrote about their chimpanzee push at the time it happened, with an updated edit near the end about the elephant personhood issue.
That said, it doesn't have to be that way, and they and the even more odious PETA aren't the only players on the one side of this legal issue.
It ends this first section by noting it's a real issue.
But the question at the heart of these cases—whether a nonhuman entity can have a cognizable liberty interest—has surprisingly deep implications, not just for animals but for human freedom and flourishing. Research into artificial intelligence (AI) may eventually run into similar ethical considerations.
"There's a lot of tension because I think that the law just hasn't really caught up with our own sensibilities," says Christopher Berry, executive director of the Nonhuman Rights Project. "Primarily courts are trying to police a boundary between humans and animals and not recognizing that things don't always fall into a neat dichotomy."
And then, we move forward.
We revisit the demarcation problem mentioned above in more detail, while Reason also notes the possible influence of changing mores:
Francis of Assisi, the Catholic saint said to have preached to birds and tamed a wolf, may have considered all of Animalia his brothers and sisters, but U.S. courts have strenuously rejected that proposition.
In legal philosophy, everything is either a person or a thing. A horse isn't a person, so it's a thing. Even if a horse could talk, even if it could do advanced algebra in front of a judge, it would be a thing, and the most protection a thing can have under the law is as a piece of property.
This was widely accepted back when animals were commonly understood to be commodities. But changing social mores have left many Americans feeling troubled by some of the implications.
Berry cites a 2013 case where the Texas Supreme Court ruled that an owner suing over the negligent death of his pet dog was entitled only to the fair market value of the dog and that pet owners could never recoup damages for emotional or noneconomic losses.
"What the Texas Supreme Court ended up admitting actually was that if you had a taxidermied dog that was a family heirloom, you could receive sentimental damages for that, but you could not receive anything beyond the market value for a family dog who was alive and was killed," Berry says.
A beloved family pet is also property under the Fourth Amendment, protecting them from unreasonable government "seizures" (read: killings). This allows owners to sue when a police officer shoots their dog, but it turns an ugly experience into a bloodless abstraction.
Well put.
Or so it seems.
In U.S. jurisprudence, would certain discipline for pets fall under cruel and unusual punishment? What about an apartment dog, kept inside all day, and not even taken for a walk every day? I've written about the non-personhood of pets, more in the psychological than legal sense of non-personhood as they're treated by their owners.
Speaking of? The piece later notes that here in the U.S., state laws on animal cruelty are a patchwork and are also often loosely enforced. It says that granting animals at least a moderate liberty interest might rectify that.
The article next counters the one obvious rejoinder:
The obvious problem with extending legal personhood to animals is that an orca can't file a lawsuit. It requires an interested party to do so on its own behalf. Opponents of legal personhood say it's obvious who will end up filing these suits: environmentalists.
Animal rights groups counter that plenty of human beings need legal advocates as well. Children, people with mental disabilities, and senior citizens regularly require legal guardians to advocate for their best interests. (Unfortunately, there have been plenty of cases of corrupt guardians acting in their self-interest.)
And, it then notes that there are degrees to current personhood:
The [Animal Legal Defense Fund's] Flint also says there are degrees of legal personhood, and that personhood doesn't mean that animals would suddenly have the right to vote or that every zoo would be emptied. He says the U.S. court granting hippos status as "interested persons" is an example of the sort of "procedural personhood" that the ALDF supports.
That part, tis true. For leftists, and some libertarians, who bitch about corporate personhood, for example? It's much more limited than personhood for actual people, and arguably is better than no corporate personhood. With leftists, or more, leftish environmentalists like the Green Party, I have addressed these wrongful claims in detail.
Because it's Reason, it goes on to talk about the Property and Environment Research Center, a libertarian environmental org for whom "the free market" is the answer for this as for everything. That said, not everything they say is wrong, and that that said, what they say that's good doesn't preclude legal answers as well.
And, the last-graf closing is good, overall:
The point of the animal personhood cases isn't to play it safe, though. It may be a niche and largely unsuccessful legal movement, but it also asks tough questions about animals, autonomy, and our relationship to the natural world that will only grow more acute as we learn more about the creatures with which we share the Earth. The law reflects human values, and the consideration we give to other creatures ultimately says more about us than them.
Indeed, and because of the demarcation problem, this doesn't have easy answers.
But, we're not done.
There's additional demarcation problems.
For example, the author seems to accord octopi much more intelligence than I do.
She doesn't address issues like James Harrod claiming chimps are religious; tying even a limited liberty interest to that might next lead somebody to invoke First Amendment issues.
And, she doesn't address the New Age nutters claming plants are intelligent and conscious.
