Moving beyond arbitrariness: the legal personhood and dignity of non-human animals

This article considers the legal personhood and dignity of non-human animals. It first argues that the concept of legal personhood can embrace all those who are capable of having rights or duties. Since the concept includes those who are rights-bearers, without necessarily being duty-bearers, it is necessary to investigate whether it is possible for animals to be rights-bearers within our law. It is argued that the traditional classification of animals as legal objects has already been challenged by the enactment of animal welfare legislation. Certain traditional justifications for such legislation cannot withstand scrutiny and it is shown that such legislation rests upon the recognition that animals have important interests in their own lives and so require legal protections in their own right. This provides the basis for recognising that they have certain rights within the law, and consequently, if we take the argument to its logical conclusion that they are natural persons rather than things. This conclusion can be reached through courts simply drawing out the implications of the existing legal regime in relation to animals. An alternative basis for restricting the category of legal personhood only to those who are members of the human species is often rooted in the notion that human beings have a special ‘worth’ or ‘dignity’ not possessed by other animals. The dignity claim is shown to be capable of two different interpretations: one that asserts the special value of human beings as a category and the other that asserts the special value of certain complex characteristics – such as rational agency – largely found only within the human species. Both interpretations are shown to be flawed and, ultimately, provide no acceptable justification for recognising that only human beings are capable of having rights that must be respected. The notion of dignity, it is argued, can be developed to remove the arbitrary exclusion of non-human animals. The concept, as developed recently by Martha Nussbaum, embraces all those who have the capacity to flourish and can recognise the variable nature of the good for diverse beings. The adoption of the revised conception of dignity paves the way for the recognition of the legal personhood of animals. The final part of this article considers the possibilities for interpreting both the common law and constitutional provisions so as to recognise the dignity and personhood of animals. A key problem that is addressed is whether South African society is ready to embrace the full implications of this recognition. The legal concept of ‘progressive realisation’ of animal rights is proposed as offering the possibility of ensuring greater protections for animals through recognising their dignity and personhood whilst embracing a gradualist approach towards the full realisation of their rights, thus preventing a wholesale disjunction between the law and the attitudes of wider South African society