Fundamental animal rights must be written down in the Constitution, says a researcher

According to Visa Kurki, constitutional protections do not apply to animals, and current legislation is not taken seriously enough.

Visa Kurki, an Academy of Finland post-doctoral researcher, is proposing that the concept of legal personhood could also apply to animals alongside humans and corporations. Only legal persons can have rights. According to current legislation, animals are property comparable to objects. At the same time, animals can be perceived to have rights on the basis of the same laws.

“It’s high time to consider animals too as legal persons who have legal rights,” Visa Kurki says.

The right to not experience unnecessary suffering

Kurki says that the current Animal Welfare Act in Finland contains a number of pleasant-sounding stipulations. The third section of the Act says that animals must be treated well and that no unnecessary pain and distress may be caused to them. Regardless of these premises, distress is almost always considered ‘necessary’.

“For example, the law allows for castrating piglets and reindeer calves without pain relief. The same applies to the overbreeding of dogs.”

It is also easy to circumvent the current Animal Welfare Act and bans on keeping animals, as well as to pass on to others the responsibility for criminal activity. The system also treats animals differently depending on how much time they spend in sight of humans. Kurki points out that fur animals, for instance, live in cramped cages without the opportunity to live species-specific lives, while individuals of the same species living in zoos in view of humans enjoy much better conditions.

“Constitutional protections don't apply to animals, and if you consider the frequent crimes where animals are the victims, current legislation is not taken seriously enough.”

Kurki is vice-chair of the Finnish Animal Rights Law Society, an association established in 2018. The society has submitted a proposal on fundamental animal rights to be included in the Constitution of Finland. Regular legislation cannot be in contravention of the Constitution, which is why having the fundamental rights of animals written down in it would make violating the Animal Welfare Act more difficult, as you would then also be violating the Constitution. However, Kurki does not consider harder punishments a functional means for promoting animal welfare and compliance with the law.

According to conventional thinking, animal welfare legislation does not result in new rights for animals, but only obligations for humans. Kurki notes that animal rights can be seen to originate already in the current Animal Welfare Act, including the right to good treatment and the right to not experience undue distress.

The question is linked to the broader concept of legal personhood, the topic of Kurki’s doctoral dissertation at the University of Cambridge. The dissertation was awarded two prizes at Cambridge, including the esteemed Yorke Prize awarded by the Faculty of Law. In the late spring of 2019, Oxford University Press published the dissertation as a book entitled A Theory of Legal Personhood.

Legal personhood is an old concept

The concept of legal personhood stems from Roman law, but according to the prevailing Western concept of justice, dating back to German notions formulated in the 18th and 19th century, animals are property, not legal persons. At the same time, Kurki points out that the German legal scholars were mostly interested in questions pertaining to private law, such as contracts and ownership. In fact, animals do not have the right to conclude agreements.

“Animal welfare legislation is about protecting animals, and from this viewpoint animals can already today be perceived as holders of rights.”

In the era of artificial intelligence, the question of legal personhood has elicited widespread interest. Among others, the concept has been significant to the operations of the American Nonhuman Rights Project, an organisation that has attempted to have courts grant certain animals personhood and habeas corpus, the right to individual freedom. Professor Laurence Tribe from Harvard has cited Kurki’s research in a statement submitted in conjunction with legal proceedings related to the matter.

The Nonhuman Rights Project has gained a great deal of publicity, even though the number of wins in the courtrooms so far remains low, with the exception of one specific case: an Argentinian sister-organisation succeeded in convincing a local court to grant habeas corpus rights to a chimpanzee named Cecilia. Based on the court ruling, Cecilia was released from the zoo to a sanctuary.

Rector Jari Niemelä of the University of Helsinki awarded a three-year research grant for the term 2020–2022 to Visa Kurki’s project entitled Animals under a Welfarist Regime: Theory and General Principles of Animal Law. The project examines the current status of animal welfare legislation and strives to understand the concept of ‘necessary suffering’, mentioned above; when is suffering necessary? The grant will be used to recruit a doctoral student and a postdoctoral researcher.