The Nonhuman Rights Project’s habeas corpus litigation forces courts to confront and determine whether our nonhuman animal clients are legal persons, as opposed to mere legal things. This distinction has profound significance. Legal persons may possess fundamental legal rights, including the right to bodily liberty; legal things, on the other hand, have no rights at all. In addition to presenting courts with centuries of legal precedent in support of our personhood arguments, we also present hundreds of pages of uncontroverted and robust scientific evidence showing that chimpanzees and elephants are autonomous beings.
The NhRP’s first case was on behalf of Tommy, a chimpanzee imprisoned alone in a cage on a used trailer lot in Gloversville, New York. In December of 2014, a New York intermediate appellate court confronted the issue of Tommy’s legal personhood, and ruled that he is not, and could not be, a legal person. That unprecedented decision, People ex rel. Nonhuman Rights Project, Inc. v. Lavery (“Lavery”), was profoundly wrong then and remains so today.
As discussed in this post, nearly five years after Lavery, a crucial error at the heart of the court’s opinion—discovered in 2017 by the NhRP legal team—has finally been corrected. Future courts should find it completely untenable to follow in its footsteps.
The “rights and duties” error
In Lavery, the Third Judicial Department ruled that to be a legal person, an individual must be capable of bearing, not merely legal rights, but both legal rights and legal duties. And the court believed it obvious that no chimpanzees are capable of bearing legal duties. The court concluded:
In our view, it is this incapability to bear any legal responsibilities and societal duties that renders it inappropriate to confer upon chimpanzees the legal rights—such as the fundamental right to liberty protected by the writ of habeas corpus—that have been afforded to human beings.
Lavery marks the first time in Anglo-American history that a court denied a legal right to an individual for lacking the capacity to bear legal duties. Yet many individuals who are incapable of bearing legal duties are unquestionably legal persons. Indeed, last year in a concurring opinion issued by New York’s highest court, Judge Eugene Fahey criticized Lavery on this very ground:
Even if it is correct, however, that nonhuman animals cannot bear duties, the same is true of human infants or comatose human adults, yet no one would suppose that it is improper to seek a writ of habeas corpus on behalf of one’s infant child . . . or a parent suffering from dementia. In short, being a “moral agent” who can freely choose to act as morality requires is not a necessary condition of being a “moral patient” who can be wronged and may have the right to redress wrongs.
Where, then, did Lavery get its strange notion that legal personhood requires the capacity for legal duties? Most significantly, the court relied on the eminent legal treatise Jurisprudence, originally authored by Sir John William Salmond, who was an accomplished lawyer and a judge on the Supreme Court of New Zealand. The court did not cite the treatise directly, but instead another source in which Jurisprudence appears: Black’s Law Dictionary, the most widely cited legal text in the world.
Lavery quoted the following sentence from Jurisprudence as it appears in the 7th edition of Black’s Law Dictionary: “So far as legal theory is concerned, a person is any being whom the law regards as capable of rights and duties.”
But in 2017, the NhRP discovered that the quoted sentence from Jurisprudence—as it actually appears in the treatise—contains a key difference compared to the version that ended up in Lavery. Jurisprudence actually says: “So far as legal theory is concerned, a person is any being whom the law regards as capable of rights or duties.” “Rights or duties”—not, as in Black’s Law Dictionary, “rights and duties.”
This misquotation is not some trivial mistake, but a fundamental error at the heart of the court’s decision. In the very next sentence of Jurisprudence, the treatise makes clear that “[a]ny being that is so capable [of rights or duties] is a person, whether a human being or not,” which is the complete opposite of what Lavery said about legal personhood. It’s also precisely what the NhRP has maintained all along.
Correcting the error
Discovering the error was one thing, but getting it corrected was another. Although Lavery relied on the 7th edition of Black’s Law Dictionary, which was published in 1999, subsequent editions of the legal dictionary also contain the same misquotation of Jurisprudence. Black’s Law Dictionary was in its 10th edition when the error was discovered in 2017, having been published in 2014.
Shortly after the error’s discovery, the NhRP sent Bryan Garner, Esq., the editor-in-chief of Black’s Law Dictionary, a letter urging him to correct it so that the “erroneous definition may not be cited by courts in the future.” To his credit, Mr. Garner promptly responded and said that he would, though did not indicate when the next edition would be released.
Now, after more than two years of waiting, and nearly five years since the Lavery decision, the NhRP is pleased to report that the 11th edition of Black’s Law Dictionary has finally been published—with the decades-old error officially corrected. Quoting Jurisprudence, Black’s Law Dictionary correctly reads: “So far as legal theory is concerned, a person is any being whom the law regards as capable of rights or duties.”
The wrongness of Lavery has only become clearer over time and thus even more legally indefensible. Going forward, Black’s Law Dictionary will no longer be the impediment it has been in the fight to secure fundamental legal rights for nonhuman animals. Instead, in future court filings, we expect it to become a powerful asset that cannot be ignored.