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The Difference between Common Law and Civil Law

By Steven Wise


It was recently reported that an Argentinian organization called The Organization of Professional Attorneys for the Rights of Animals was rebuffed by a judge in its attempt to free an orangutan named Sandra, who is imprisoned in a Buenos Aires zoo. As the Nonhuman Rights Project has publicly stated it is working with legal organizations in several countries, including Argentina, to attain legal personhood for such nonhuman animals as Sandra, we have received numerous inquiries as to whether we are working with this group.

We are not. We applaud the humane motivation that obviously lies beyond such suits. But we are not working with Argentinian lawyers to achieve legal personhood for any nonhuman animal held captive in Argentina through litigation. That might seem odd, as the NhRP is so vigorously litigating multiple habeas corpus lawsuits in the United States.

The reason is that there are important differences between our litigation in the United States and the Argentinian litigation on behalf of Sandra. The first difference is that the habeas corpus lawsuits the NhRP has filed in the State of New York were preceded by more than 25 years of laying the necessary groundwork. Law review articles were written. Books were published. Dozens of law school classes on nonhuman animal personhood were taught at some of the best law school in the United States. The NhRP’s habeas corpus lawsuits are merely the tip of a very large legal iceberg.

It is the job of common law courts, in appropriate circumstances, to make both law and public policy, just as the legislature does.Second, the NhRP is filing its lawsuits in state common law jurisdictions. Argentina is a civil law jurisdiction. The difference is critical.

A common law court ‚Äď at least a good one ‚Äď considers itself equal to the legislature in those matters in which the legislature has not definitively spoken, which are many, and generally include the writ of habeas corpus. It is the job of common law courts, in appropriate circumstances, to make both law and public policy, just as the legislature does.

Some states, such as New York, where the NhRP has brought its first three cases demanding that a court issue a writ of habeas corpus on behalf of a chimpanzee, even characterize the writ of habeas corpus as a common law writ that is not even subject to interference by the legislature.

In contrast, in a civil law jurisdiction such as Argentina, the legislature is paramount in law-making and policy-making. The job of a civil law judge is generally not to make law or public policy, but to enforce the law and public policy that the legislature enacts.

A writ of habeas corpus is generally available only to a ‚Äúperson‚ÄĚ in both common law and those civil law jurisdictions that recognize the writ. In a common law jurisdiction, such as New York, the courts are free to interpret ‚Äúperson‚ÄĚ to include those entities that the court believes justice and good public policy require to be recognized as ‚Äúpersons.‚ÄĚ They may choose not to do so; but it is their choice. In contrast, a civil law court is virtually required to adhere to the definition of ‚Äúperson” the legislature has mandated. And the legislature will almost certainly not have intended the word ‚Äúperson‚ÄĚ to have included a nonhuman animal.

This is why the NhRP is working with lawyers in such civil law jurisdictions as Argentina, Switzerland, Spain, and Portugal to achieve legal personhood for at least some nonhuman animals not through litigation, but through legislation, or in at least one country, referendums.

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