53 Pages Posted: 10 Apr 2012 Last revised: 16 Mar 2013
Date Written: 2012
Are animals the new children regarding legal personhood and rights? Animal law is likely the fastest-growing course offering in United States law schools over the past decade. The core question in this subject is how close law should come to treating animals like humans, with the penultimate issue being whether animals should be granted legal personhood status and some legal rights. Most writers addressing this issue, including prominent scholars such as Cass Sunstein, Lawrence Tribe, Martha Nussbaum and Alan Dershowitz, have supported extending a legal rights paradigm to at least some animals. A thesis that is often called the “argument from marginal cases” is central to many supporters of animal rights. The argument from marginal cases holds that if rights are granted to humans with limited capacity for autonomy, such as young children, they must also be granted to intelligent animals (such as chimpanzees) possessing equal or greater autonomy. This article rejects the argument from marginal cases, with particular emphasis on efforts to apply the argument to children. Focusing on children’s potential for moral autonomy and the relationship between that potential and the social contract, the problem of overstating similarities between human and animal cognition, and the interconnectedness of humanity and legal rights, the article concludes that courts and legislatures should decline using children’s rights as a basis for applying legal rights to animals. Rather than creating new rights for animals, society and its laws should place greater focus on humans’ moral responsibility for our treatment of animals.
Keywords: animal, children, personhood, rights, human, legal rights paradigm, non-human, capacity, autonomy, intelligent, social contract, cognition, humanity, society, moral, treatment, slippery slope, adult
Suggested Citation: Suggested Citation
Cupp, Richard L., Children, Chimps, and Rights Arguments from 'Marginal' Cases (2012). 45 Ariz. St. L.J. 1 (2013); Pepperdine University Legal Studies Research Paper No. 2012/12. Available at SSRN: https://ssrn.com/abstract=2038063