In the modern legal systems around the globe, the legal personality has become
an important topic of discussion. To be a legal person, it is required to be
subject of rights and duties. The most relevant definition of legal personality
is the capacity for legal relations, like rights, duties, suing or being sued
etc. It is a prerequisite for legal capacity, the ability of a person to amend
rights and obligations. But the topic of main discussion of this research paper
is to discuss about the legal personality of animals. In this research paper the
researcher would like to lay an emphasis of the problem of the current status of
the animals, i.e. mere as property, and also would like to discuss whether the
legal personality-hood is only restricted to the human beings or not? Researcher
will also discuss about the legal status of the animals in various countries a
like Germany, Switzerland and others, by discussing various case laws regarding
this. And also recommend two mediums for the development of the legal
personality of animals in a country or a legal system.
1.Issues With Property Status
The property status of the animals has some inherent issues or defects with it.
The first of t which is that the legal characterization of the animals has been
failed to keep up with the advancements in science technology and modern
philosophical knowledge. They, the animals, were recognized as property from the
time when all the leading and most intelligent philosophers had a belief that
humans had been given dominion over all the animals by God himself.It was
also believed that because of the lack of rationality and autonomy they didn’t
had any moral standing.But the change can be seen in the views of modern
philosophers. In the Animal Liberation of Peter Singer, he refuted the
Descartes’ assertion, that animals, because of not being sentient, they have no
rights.There he himself asserted that the both human and animals have
ability to suffer, feel pain and experience enjoyment, so the interest of both
humans and animals should receive equal moral consideration.Since Darwin
impounded his theory of evolution, scientist has also come to accept that humans
have evolved from other animals. And the varying degree of sentience can be
recognized in various species of animals.
The second issue with the status of animals as property is that they are
apparently misplaced in the category of property. They are very distinct from
the various forms of like car, bus, land, etc. unlike inanimate objects they
have the ability of independent action. They also have the capacity of
experience suffering and engage in intellectual suffering, on varying degree.
Law has objectified them when they are placed in this category. Once it is
accepted that they have varying degree of sentience and so, they have morally
relevant interest, it becomes difficult to justify the treatment of such being
As they are categorized as property they cannot become the bearer of rights,
this is because the legal personality is precondition for having and enforcing
legal rights. Without any legal rights even the trivial legal rights of human
can easily manage to outweigh the rights of the animals.
In today’s world the animal welfare rights do exist but instead of prohibiting
the exploitation they are regulating it e.g. the current beef ban in India.
Further, they do not apply equally on all species of animals. For example, in
India one can slay the chicken without any permit and eat it without any legal
penalty, but if one butchers a cow and use its meat for edible reasons without a
proper permit from the government can invite a lot legal penalties to him.
Although the protection which is offered by various legislation is enforced by
charitable organizations e.g. PETA, which are dependent on the donations. So,
the limitation of the animal welfare legislation is that they just provide
‘Band-Aid’ instead of going to the root of the problem.
2. Is Legal Person-Hoodlimited To Humans Only?
The term ‘personality’ generally suggests a human subject, it is worth noting
that the notion of legal person-hood is not necessarily equivalent with, nor
limited to, human beings. According to the formalist view, legal personality is
an artificial construct that is not restricted to humans.It cannot be
justified after this provision that if the fact, the animals biologically fall
into the species of humans so, they can be prevented from being classed as legal
3. Global Developments Regarding The Legal Status of Animals
Over last three decades, many countries like Germany, Switzerland and Austria
have amended their respective Civil Codes for changing the legal status of the
animals, these countries have declared that the animals are not objects and are
not to be the subjects of the laws relating to the objects. Other countries
around the globe are channelizing their efforts to change the legal status of
some specific animals. E.g. in US there are lawsuits seeking to have the
chimpanzees declared as legal person so the writ of habeas corpus can be issued
for his liberty.
3.1 Countries That No Longer Classify Animals As Property
The Civil Codes of many European countries has some specific provisions
regarding the legal status of animals. For instance, Article 285 of Austrian
Civil Code, that came into operation in 1988, provides that ‘animals are not
objects; they are protected by special laws’.It also has some provisions
which dictates that some laws relating to objects are not to be applied to
animals, unless there is any contradictory provision.Similar laws also exist
in German and Swiss Civil Codes.
In the beginning, these provisions appear to have amend the legal status of
animals in these countries. Such declarations that animals aren't objects and no
longer subject to the legal status of objects can effortlessly lead one to
construe that the legal status of animals has changed. However, this is
incorrect. While those provisions have changed the degree to which animals are
subjects to the law of objects, they've not gone up to now as to place animals
within the category of ‘people’.
3.2 Other Changing Approaches
In February 2014, an independent MP of named as Remus Cernea introduced a bill,
which was intended to give legal personhood to the dolphins.Article 1 of the
proposed law stated that the all species of dolphins, in the territory of
Romania, enjoys special protection and each individual of this species being
considered to be a “non-human person”. And the article 2 of this proposed law
defines a non-human person it stated that any being that does not belong to the
human species but possess a developed intelligence, i.e. the capacity to form
complex social relations, and is the bearer of some right like right to life,
right to bodily integrity and to be free of any acts of cruelty, right to free
movement in their own natural environment and right to be protected in their own
If the proposed law will be enacted in the future will create serious
implications on the ways how the dolphins are treated by humans. They will be
placed out of the reach for experimenting and use for human entertainment. This
proposed law has potential to set precedents of giving the non-human status to
other animal, especially those who are recognized by science for their
intelligence and capacity to form social relations, e.g. dogs, cats etc.
B. United States
In the year of 2013, an application for passing the writ of habeas corpus was
filed in the New York Court by the Non-Human Rights Project (NhRP), on the
behalf of a chimpanzee named as Tommy, which was being held in
captivity.The writ of habeas corpus is that can be used to free the
unlawfully detained persons.In this case it was necessary to prove
personhood of chimpanzee for issuing the writ. For that purpose, affidavits from
many experts were presented before the court to prove that the chimpanzee
possess some complex cognitive abilities which are the requisites for the
concept of personhood in common law.
The court, however, rejected the NhRP arguments and the writ was denied by the
court.Two other similar petitions were also filed and denied.
In the Tommy’s case, the bench of five judges dismissed the appeal on the
grounds that the right to liberty can’t be available to any entity which is
incapable of assuming duties and upholding responsibilities.The outcomes
shows the reluctance of courts to extend the concept of personhood to animals.
In India, there are no special provisions regarding the legal status of animals
in the country like other European countries. But there is some provision for
the protection of animals or animal welfare in the form of Directive Principles
of State Policy (DPSP) in the Indian constitution itself and there are some case
laws regarding the protection from the cruelty to animals.
Article 48 of the Constitution of India stated the Organisation of agriculture
and animal husbandry: The State shall endeavor to organised agriculture and
animal husbandry on modern and scientific lines and shall, in particular, take
steps for preserving and improving the breeds, and prohibiting the slaughter, of
cows and calves and other milch and draught cattle.
Apart from this there are some case laws namely: -
(i) Nair, N.R. and Ors. Vs. Union of India and Ors
In this case Hon’ble Kerala High Court held that the Bears, monkeys, tigers,
panthers and lions shall not be trained or exhibited as performing animals.
(ii) Animal Welfare Board of India vs. A Nagaraja and Ors.
In this case it was held by Supreme Court that Bulls cannot be performing
animals. Jallikattu and other animal races and fights are prohibited.
(iii) PETA vs. Union of India
A film wishing to use an animal needs to obtain a No Objection Certificate from
the Animal Welfare Board of India as pre-requisite for certification from the
Central Board for Film Certification held by Bombay High Court.
4.3 Approaches to change the legal status of animals
Generally, there are two mediums or approaches that are taken by several
countries to change the legal status of animals in their territories. Austria,
Germany Switzerland and Romania are those countries which taken the approach of
legislation to change the legal status of animals or at least to remove them out
of the category of mere objects. But this method is subjected to the political
and public support. To enact such legislations, some significant amount of
political and public support will necessarily be required, if that support will
be garnered, it can easily, effectively and quickly have brought fair changes in
the personhood of the animals.
But countries like USA and India, to some extent, has taken up the method of
litigation to achieve some sort of personhood to animals. Advocates in these
countries are using strategic litigation instead of waiting for the governments
to enacts the laws regarding the animals. However, it also has a limitation that
litigation including the making claims in the lower courts to the making appeals
in the higher court, a lot of time and resources, mostly monetary, will be
spent. The result of this strategic litigation seems to be late and slow but the
result, if a court declares a particular animal to be a common law legal person,
will set precedents for getting personhood for others animals of the same
cognitive abilities and the capability of making social relations.
In common law legal system, courts do have a role of law making. While the lower
courts are bound to follow the precedents set by the higher courts, higher
courts usually have a room of developing by updating old or existing outdated
common law principles. In the landmark case of Vishakha
vs. State of Rajasthan and Ors
. Supreme Court took the law making role for
the immediate need arise out an incident of sexual harassment at work place with
women, and issued guidelines regarding that having the status of law.
Nevertheless, the importance of the litigation method should not be undermined
because the even the unsuccessful litigation will help in changing the societal
view and could gather public support and awareness over the particular matter.
And this can pave a way for a legislation, a more progressive one.
Since we know, legal personality means to possess some legal rights like right
to sue or to be sued, which means a legal person is the one who can sue on
behalf on himself and can be sued by some other legal person. But nowadays the
granting of these legal rights or recognizing any thing as a legal person got a
wide horizon to cover. Granting the person-hood to non-humans became a topic of
debate, like giving the person-hood to animals for the sake of their protection
from cruelty. But if the person-hood would be given to all animals, this could
create serious issues to those humans who are non-vegetarian regarding their
food habits. This would be the violations of their right to life, i.e. in
whatever the way, anyone wants to live their life they can. The researcher
recommends some basic legal rights against the cruelty against animals should be
given but not the full person-hood.
John Locke, ‘Second Treatise’ in Peter Laslett (ed),Two Treatises of
Government (Cambridge University Press, 1988) 265, 288–289; William
Blackstone,Commentaries on the Laws of England (A Strahan and W Woodfall, 12th
ed, 1794) Vol 2, 2.
Immanuel Kant,Lectures on Ethics(Louis Infield, trans, Harper Torchbooks,
Peter Singer,Animal Liberation(Harper Collins, revised ed, 2002), 10–15.
Ngaire Naffine, ‘Who Are Law’s Persons? From Cheshire Cats to Responsible
Subjects’ (2003) 66Modern Law Review347.
Austrian Civil Code, art 285.
Austrian Civil Code, art 285.
German Civil Code, § 90a; Swiss Civil Code, art 641a.
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accessed on April 22,2018
The Nonhuman Rights Project Inc, on behalf of Tommy v Patrick C Lavery(NY
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David Clark and Gerard McCoy,Habeas Corpus(Federation Press, 2000).
The Nonhuman Rights Project Inc, on behalf of Tommy v Patrick C Lavery(NY
Sup Ct, 2 December 2013).
Michael Mountain,New York Cases – Judges’ Decisions and Next Steps(10
The People of the State of New York ex rel. The Nonhuman Rights Project
Inc, on behalf of Tommy v Patrick C Lavery(NY Sup Ct, 518336, 4 December 2014)
Constitution of India, 1950, art. 48
AIR 2000 Ker 340
Civil Appeal No. 5387 of 2014
W.P(C) No. 23480/2005
(1997) 6 SCC 241, AIR 1997 SC 3011, (1998) BHRC 261, (1997) 3 LRC 361,
(1997) 2 CHRLD 202