The Relationship Between Legal and Social Change

This is the sixth post in our Foundational Questions series. You can learn more about this project and read the other posts here.

Summary

Legal personhood for animals is one of the most exciting goals for the animal protection movement because of its potential far-reaching and long-term impact. To best achieve this goal, it’s unclear whether marginal resources are better spent on direct legal work or creating social change that pushes society in an animal-friendly direction, increasing the speed and likelihood of legal success. In practice, most projects impact both of these factors to some extent, e.g. legal campaigns can create major media attention, social change can inspire more donors to give to direct legal work.

Currently, we are very uncertain about which of these strategies is the most cost-effective use of marginal resources. In 2015, we identified the Nonhuman Rights Project (NhRP) as a Standout Charity for their outstanding work in this area. If you feel legal personhood is one of the most cost-effective goals to work towards in animal protection, the case for donating to the NhRP could be compelling.

Why Legal Personhood Matters

If the animal protection movement realizes its ultimate goal—the ethical treatment of animals—this might involve legal personhood, meaning animals will be given an official status in the legal system that allows, or even requires, human advocates to take legal action on their behalf when they are mistreated or otherwise in need of assistance. This would be similar to the way children and the mentally disabled are protected, often with advocates acting on their behalf.

There are other ways we could reach that ultimate goal, such as a drastic extension of our current animal welfare laws, which forbid humans from doing certain harmful things to animals. We think expanding those laws can help many animals, but the personhood approach is still important because:

• It’s provides flexible protection when there are new situations of animal suffering not covered by existing welfare laws.
• It lends more authority to animal advocates by placing intrinsic value on animal wellbeing, instead of framing it from the human perspective.
• It involves a single structural change in the legal system, and then applying that change to various situations. Extending animal welfare laws one-by-one could be more difficult, as initial efforts probably won’t have as much impact on the ease of future efforts.¹

The ethical treatment of animals could also be achieved without legal change. Either a sufficiently large part of society could take the rights and welfare of animals very seriously and implement this in their day-to-day actions without being legally required to do so, or society could shift towards other goals that coincide with animal wellbeing. For example, society could switch to animal-free foods because of environmental or health considerations, or simply because it’s cheaper and tastier.

If this sort of change occurred, legal personhood would still be beneficial to prevent backsliding and protect animals in new situations where these goals might not align. However, this sort of change would likely also make legal personhood for nonhuman animals easier to achieve than it is currently,² so if it is definitely going to happen, it might make sense to wait to work on legal personhood.

Where to Spend Marginal Resources

The argument for working on social change: When we’ve talked to some animal protection lawyers, they expressed a sense of defeat because they feel judges decide cases before they begin, and look for the best arguments to defend their initial view instead of conducting a sincere investigation of the legal evidence. This makes sense to some extent because judges are still subject to peer pressure, social norms, cognitive biases, and other factors that so heavily influence human decision-making.

From this perspective, it might be less important for animal advocates to put together the best logical arguments, and more important to shape public opinion in a way that creates judges who rule in favor of animal personhood.

If one thinks society’s values are not sufficient to attain animal personhood, one might worry about negative precedent set by groups working for and failing to achieve that goal. This could send a message that animal personhood is not something we want as a society, which could make future progress more difficult.

The argument for working on direct legal change: The more one sees judges and legal institutions as rational decision-makers, the more promising this work is because the quality of the direct legal work, especially the quality of the legal arguments presented, is what would matter to those decision makers. Also, marginal resources for direct legal work can be spent increasing the quantity of cases filed, maximizing the chances of finding one sympathetic judge to rule in the animals’ favor, instead of just improving the legal arguments in existing cases.

Additionally, some believe society’s values are already aligned with animal personhood, which suggests direct legal work is more promising. In particular, if we feel the risk of value-backsliding—society becoming less considerate towards animals than it is now—is particularly high, this further strengthens the case for locking in society’s current values.

Overall, we we think the case for direct legal work, including its ability to create  social change, is compelling enough to justify the Nonhuman Rights Project as a Standout Charity.

Future Research

We would like a better understanding of the historical and contemporary evidence of interactions between legal and social change. Potential research questions include:

• Have there been social movements that succeeded in changing public opinion on an issue, but no legal change was implemented and then public opinion fell backwards?
• Have there been social movements where legal change occurred with limited public opinion change, and then the legal change was reverted? (Prohibition of alcohol consumption in the US might fall in this category.)
• How often does direct legal work end up generating media attention and shifting public opinion?
• If judges are directly influenced by public opinion, rather than just being influenced by the same social forces, we might expect judges to make decisions more aligned with public opinion for cases that receive more public attention. Is this hypothesis correct in the real world?³

1. Extending animal welfare laws could be an easier strategy as well, if legal personhood is just too large of a change for society and the legal system to accept. 

2. If people are no longer using animals for food, they have less of a roadblock to caring about them. If I eat animals, then thinking of them as legal persons might make me very uncomfortable with that practice. This argument has some evidence in academic psychology. 

3. https://www.jstor.org/stable/25766255