Beyond animal welfare: legal paths to animal rights #

Priscila Gulič Pirnat¹

Abstract: The paper critically examines the limitations of the prevailing ‘animal welfare’ paradigm in the legal and ethical treatment of non-human animals and explores alternative legal models that aim to recognize animals as rights-bearing entities. Drawing on comparative and interdisciplinary legal analysis, the author contrasts three major approaches: legal personhood for animals, the rights of nature framework, and Eva Bernet Kempers’ gradualist model of legal recognition.

The paper argues for a pluralistic and context-sensitive jurisprudence that acknowledges the diversity of animal life and the complexity of human-animal relationships. Rather than advocating for a single revolutionary shift, the author suggests the concept of ‘differentiated animal jurisprudence,’ envisioning legal reform as a dynamic and layered process rooted in moral inclusion, ecological interdependence, and legal innovation. It is concluded that a post-anthropocentric legal order requires moving beyond binary categories of person/property and developing differentiated paths to justice for nonhuman animals.

Keywords: animal rights, legal personhood, rights of nature, animal welfare law, ecological justice, differentiated animal jurisprudence, post-anthropocentrism, nonhuman legal subjectivity.

AI use disclosure statement: The author declares that OpenAI’s ChatGPT was utilized as a supportive instrument in the preparation of this manuscript. Its use was limited to assistance with phrasing, language refinement, the review of the English text, and the preparation of Table 2 in accordance with the author’s instructions. The intellectual content, analysis, and conclusions contained herein are entirely the work of the author, who assumes full responsibility for the originality, accuracy, and integrity of the article.

Introduction #

The legal conceptualisation of animals has long been rooted in anthropocentric assumptions that reinforce their classification as property, regulate their welfare only instrumentally, and obscure their intrinsic moral status. Traditional legal systems continue to function within a paradigm that grants animals, at best, derivative protection based on human interests while denying them recognition of their legal subjectivity. Against this backdrop, contemporary animal law scholarship has sought to challenge the normative foundations of existing frameworks by advocating for models that recognise animals as rights-bearers. This article critically examines the limitations of the welfare paradigm and explores emerging legal strategies that attempt to move beyond it — most notably the personhood approach, the rights of nature framework, and the development of nuanced models of animal jurisprudence.

Through a comparative and interdisciplinary analysis, this article examines how these approaches redefine the legal status of animals and question the entrenched binary between persons and things. While legal personhood for cognitively complex animals — such as elephants or great apes — has gained traction in some jurisdictions², it remains constrained by cognitive thresholds that reproduce human-centred standards. The rights of nature model, on the other hand, opens up space for ecocentric and collective legal recognition but often subsumes the interests of individual animals under broader ecological goals. To address these tensions, the article introduces the concept of differentiated animal jurisprudence, which argues in favour of a pluralistic legal architecture that takes into account the contextual, species-specific, and relational features of animal life. This vision culminates in an analysis of Eva Bernet Kemper’s gradualist model of animal rights, which dissolves the false binary between property and personhood by proposing a scalable, pragmatic path to legal recognition.

Taken together, these legal innovations reflect a profound reorientation of the way justice is theorised and institutionalised in relation to nonhuman animals. They invite a shift from an anthropocentric abstraction to a legal pluralism based on ecological and moral complexity. By exploring the intersections and limitations of each framework, this article contributes to a more nuanced view of animal law — one that understands legal reform not as a one-off event but as a multi-layered and evolving process of legal inclusion.

1. Paradigm of animal welfare vs. paradigm of animal rights #

The legal and ethical treatment of non-human animals has traditionally been characterised by two dominant and often contradictory paradigms: the animal welfare paradigm and the animal rights paradigm. These frameworks differ not only in their ethical foundations but also lead to fundamentally different legal implications. As legal scholarship increasingly questions the anthropocentric structures of law, understanding this paradigmatic divide is critical to assessing both the limits and transformative potential of contemporary animal law. The paradigm of animal welfare is based on the notion that animals can be used for the benefit of humans, provided that their suffering is minimised. This utilitarian model has its philosophical roots in thinkers such as Jeremy Bentham, who famously stated in An Introduction to the Principles of Morals and Legislation ([1789], 1823), “The question is not, Can they reason? nor, Can they talk? but, Can they suffer?”³ Bentham’s formulation was groundbreaking because it recognised the moral relevance of sentience rather than cognitive abilities, but it did not call for the abolition of animal exploitation. Rather, it legitimised regulated use. In legal systems influenced by this approach to animal welfare, animals are treated as legal objects or property, and their interests are subordinated to the economic, cultural, or scientific goals of humans. Legislative frameworks — such as the European Union’s Directive 2010/63/EU⁴ on animal experimentation or the U.S. Animal Welfare Act (1966)⁵ — establish minimum standards for housing, feeding, and transportation, but these are often riddled with exemptions, particularly for industries with strong lobbying power (e.g., agriculture and research). As Gary Francione⁶ argues, the animal welfare model serves primarily to familiarise the public with the continued use of animals without questioning the fundamental assumption that animals exist for human purposes. Animal welfare-based legal systems tend to rely on cost-benefit analyses that weigh the suffering of animals against the benefits to humans. This is reflected in the concept of ‘unnecessary suffering,’ which is often interpreted in terms of prevailing human interests rather than the point of view of the animal itself.⁷ Scholars such as David Favre⁸ and Steven Wise⁹ have criticized this structure for allowing systematic harm to animals under the guise of regulation. Ultimately, animal welfare law upholds a speciesist legal system¹⁰, in which non-human animals are only protected to the extent that their welfare coincides with the interests of humans. In contrast, the animal rights paradigm asserts that animals are moral subjects that should not be treated as means to human ends, regardless of how “humanely” they are used. This paradigm emerged in its modern form with the work of Tom Regan, whose The Case for Animal Rights (1983) introduced a deontological framework based on the concept of inherent value. Regan argued that certain animals — the ‘subjects of a life’ — have beliefs, desires, memories, a sense of the future, and emotional complexity and are therefore entitled to moral rights. Building on this view, Gary Francione has developed a legal theory of animal rights that calls for the abolition of institutionalised animal use rather than its regulation. In works such as Animals, Property, and the Law (1995) and, as mentioned above, Rain Without Thunder (1996), Francione criticises animal welfare reforms as morally and legally incoherent. He argues that as long as animals are considered property, their interests will always be overridden by those of their human owners. Legal rights are necessary to provide animals with meaningful protection — not just as passive recipients of human care, but as holders of enforceable claims. Furthermore, the rights paradigm calls into question the anthropocentric foundations of legal personhood. Legal theorists such as Steven Wise and the Nonhuman Rights Project (NhRP) have strategically litigated to obtain legal personhood for cognitively sophisticated animals such as chimpanzees and elephants. In this way, they challenge the assumption that personal rights only apply to humans and emphasise the arbitrariness of denying legal capacity to sentient, autonomous beings. Although the courts have largely resisted these arguments, a growing number of judicial opinions — such as the dissenting opinion in Happy the Elephant — signal a shift in legal consciousness.

While the distinction between welfare and rights is often presented as binary, several scholars propose more nuanced or hybrid models. Martha Nussbaum’s capabilities approach¹¹ for example, offers a third way by suggesting that justice requires that all sentient beings be given the opportunity to flourish according to their species-specific capacities. Nussbaum argues for a constitutional model of justice for animals that does not rely solely on human-like characteristics or property relations but recognises animals as beings with entitlements. In addition, Sue Donaldson and Will Kymlicka’s theory of animal citizenship¹² proposes differentiated rights based on animals’ relationships to human society, offering a path beyond blanket welfare and abstract personhood. They call for sovereignty for wild animals, co-citizenship for domesticated animals, and denizenship for liminal animals. This model recognises the limits of a blanket rights approach and emphasises the importance of political inclusion and relational justice. The tension between the animal welfare and animal rights paradigms is not merely theoretical — it has profound implications for how legal systems conceptualise justice, obligation, and moral community. While animal welfare law may offer incremental improvements, it risks reinforcing the very structures that perpetuate suffering.¹³ The rights paradigm, while more challenging, provides a critical lens through which to question the underlying assumptions of the legal system and imagine a post-anthropocentric jurisprudence.¹⁴ As legal debates move from the question of whether animals should be protected to the question of how and under what conditions, it becomes increasingly important to recognise the paradigmatic choices embedded in legal discourse. The transition from welfare to rights is not only a matter of degree but also a shift in worldview: animals are no longer seen as vulnerable objects of care but as subjects with lives that matter independently of human use.

2. Animal rights approach — legal personhood for animals #

The animal rights approach challenges the longstanding anthropocentric orientation of law¹⁵ by proposing a fundamental shift in how animals are conceived within legal systems. Rather than treating animals as objects of human stewardship or welfare regulation, this approach insists that certain animals should be recognized as legal persons — entities with rights that can be invoked and defended in a court of law. This chapter explores the implications of such recognition, the historical background of animals as property, the ongoing legal debate, and the potential shift this approach signals for the future of animal protection.

Throughout legal history, nonhuman animals have been classified as property, a status that continues to dominate contemporary legal systems worldwide. This classification is deeply rooted in Roman law, which distinguished between personae (legal persons) and res (things), with animals firmly placed in the latter category. This legal objectification of animals reflected and reinforced a broader ontological hierarchy, where only humans were seen as capable of rights and duties, and all other beings existed to serve human interests. Legal philosophers such as John Locke¹⁶ and Immanuel Kant¹⁷ contributed to the notion that animals, lacking rationality and moral autonomy, could not be rights holders. Consequently, the suffering or well-being of animals was considered only insofar as it affected human morality or social order. While modern animal welfare laws have introduced limited protections, these do not alter the underlying legal ontology: animals remain objects of ownership, and any harm to them is primarily a violation of human property or regulatory law, not a violation of the animals’ own rights. The animal rights approach calls for recognizing at least some nonhuman animals as legal subjects — entities with the capacity to hold and exercise rights. This recognition is not necessarily tied to granting all the same rights as humans but aims to establish legal standing, inviolability of basic interests, and access to justice. The debate hinges on two interrelated questions: who counts as a legal person, and what criteria justify the attribution of personhood? Traditional legal theory has linked personhood with capacities such as rationality, autonomy, and self-awareness — traits often claimed to be exclusive to humans. However, scientific advances in cognitive ethology have dismantled these assumptions. Many animals, especially primates, elephants, cetaceans, and birds like corvids, exhibit behaviors indicative of self-awareness, empathy, planning, and social complexity.¹⁸ These findings have fueled calls to expand the circle of legal personhood to include at least some nonhuman species. Yet, the move toward legal subjectivity remains controversial. Visa Kurki argues that equating legal personhood with the possession of rights is not the best way to understand the concept but rather confusing.¹⁹ Others caution against a purely cognitive approach, warning it may replicate exclusionary hierarchies by privileging intelligence or autonomy while ignoring relational, emotional, or ecological dimensions of being.²⁰ Feminist and posthumanist scholars emphasize that such frameworks risk reinforcing anthropocentrism, advocating instead for legal models grounded in vulnerability, interdependence, and multispecies justice.²¹

A key advocate of legal personhood for animals was Steven M. Wise, founder of the Nonhuman Rights Project (NhRP). Wise argued that legal personhood is not limited to humans and should be based on morally relevant criteria such as autonomy, self-determination, and the ability to value one’s life. The NhRP has filed strategic litigation seeking habeas corpus relief for chimpanzees and elephants held in captivity, aiming to establish precedent for recognizing nonhuman animals as legal persons. One of the most prominent cases brought by the NhRP involved Happy, an Asian elephant who has lived alone at the Bronx Zoo for over 40 years. The legal team argued that Happy possesses a sense of self, demonstrated through mirror self-recognition tests, and that her continued confinement violated her fundamental right to bodily liberty. The petition sought her transfer to a sanctuary where she could live in social and spatial conditions closer to her natural needs. In 2022, the New York Court of Appeals ruled against the NhRP, holding that while animals are entitled to some legal protections, they do not qualify for habeas corpus relief because they are not “persons” under New York law. The court emphasized that recognizing such rights would be a radical departure from legal precedent and risk destabilizing human-animal relations in law. However, in a notable dissent, Judge Rowan Wilson argued that the law must evolve and that autonomy — not species membership — should be the relevant criterion for legal personhood. He stated: “While it may be unsettling to some, granting Happy a right does not make her a human being. It makes her a nonhuman being with a right.”²² The Happy case illustrates both the barriers and the potential of the legal personhood approach. While the majority decision maintained the status quo, the judicial dissent and the public attention the case attracted reflect a growing unease with the moral and legal assumptions that currently define animals’ status.

Legal personhood for animals remains a contested and evolving concept. Some legal scholars, such as Visa Kurki, suggest that personhood is a flexible legal fiction — a tool used by the law to allocate rights and responsibilities, not a metaphysical truth. From this perspective, there is no principled reason why nonhuman animals could not be recognized as rights bearers, provided the law chooses to do so.²³ Others emphasize the role of dignity, vulnerability, and relationality as bases for legal inclusion, proposing a more pluralistic and context-sensitive model of legal subjectivity.²⁴ The animal rights approach is therefore not just about extending existing human rights to animals but about a new conception of legal subjectivity that reflects the moral status of nonhuman life. This means moving away from anthropocentric legal assumptions and towards a framework that recognises animals as ends in themselves, with interests that are worthy of protection in their own right. The legal personhood approach challenges one of the most entrenched dogmas of Western legal systems: the sharp divide between persons and things. While still in its infancy, the growing body of case law²⁵, scholarly work, and public advocacy suggests that this approach is gaining conceptual and political traction. The animal rights paradigm, grounded in personhood, offers a radical yet coherent challenge to the commodification and subordination of nonhuman life. Although courts remain cautious, and legislative reform is slow, the personhood debate reveals the fragility of legal boundaries once thought immutable. As animals continue to be recognized as sentient, autonomous, and socially embedded beings, the call for their recognition as legal persons or rights bearers may come to be seen not as a legal anomaly but as a necessary evolution in the pursuit of justice beyond the human.

3. Animal rights approach — Nature’s rights for animals #

Discourse on animal rights has traditionally focused on the moral and legal status of individual animals, often drawing on concepts such as sentience, autonomy, and dignity. However, a parallel and increasingly influential approach — the rights of nature paradigm — shifts the focus from the rights of individual animals to the recognition of ecosystems, species, and natural communities as rights-bearing entities. In this framework, animals are understood not just as isolated beings but as integral parts of ecological wholes whose protection depends on the maintenance of the ecological relationships in which they exist. This chapter examines how the rights of nature framework reshapes the foundations of legal protection for animals by locating their interests within the integrity of the ecosystem and explores its application in pioneering jurisdictions such as Ecuador and Bolivia.

The rights of nature paradigm recognises that animals do not exist in isolation, but as members of complex ecological systems. Their welfare, survival, and even identity are deeply embedded in the webs of interdependence that make up nature. This view rejects both the Cartesian notion of animals as machines²⁶ and the liberal rights model of individuals with rights abstracted from their environment. Instead, it draws on the ecocentric philosophy of thinkers such as Aldo Leopold (1949), who advocated an “ecological conscience,” arguing that humans should develop an ecological conscience — a moral responsibility toward nature. He believed that actions are right if they help protect the health, balance, and beauty of the natural world. This means valuing ecosystems not just for human use, but as communities that deserve respect in their own right.²⁷ Arne Naess (1989), the founder of deep ecology, similarly argued that living things — including animals — acquire moral and legal relevance through their embeddedness in an ecological whole and not just through cognitive or utilitarian criteria.²⁸ More recently, George Monbiot (2022) has emphasised the legal and ethical need to move from an extractive, human-centered policy to one that respects the systemic integrity of living communities, including wildlife as integral members.²⁹ From this perspective, the protection of animals requires legal systems that go beyond welfare or individual rights and instead protect the integrity of the ecosystems to which they belong. The rights are therefore seen as arising from ecological relationships rather than as properties of single, rational individuals. This shift challenges human-centered categories of rights and opens up the possibility of protecting species, habitats, and ecological functions as legal rights. In contrast to the individualistic orientation of the liberal legal tradition, the rights of nature approach emphasises collective rights — the rights of species, populations, or ecosystems as a whole. Animals are therefore not only protected because of their individual sentience or moral value, but because of their integral ecological role. The legal recognition of the rights of wolves, jaguars, or river dwellers, for example, is based on their contribution to biodiversity, trophic balance, and the resilience of ecosystems.³⁰ This paradigm shift sees animals not as isolated beings with interests, but as participants in complex, interdependent systems whose collective flourishing is legally significant. Uruguayan biologist Eduardo Gudynas argues that this ecocentric and relational framework reflects a post-anthropocentric ontology, where both humans and non-human animals belong to a shared biotic community³¹, and the law must move beyond anthropocentric assumptions to reflect this embeddedness. Such a model draws on Latin American constitutional innovations (e.g., in Ecuador and Bolivia), indigenous jurisprudence, and ecological justice. Importantly, rights of nature frameworks often challenge prevailing legal constructs such as private property and the developmental logic of extractivist economics.³² Rather than providing reactive, individualised protection, these legal models aim to prevent ecological degradation at its root by preserving the systemic conditions necessary for animal life and ecological harmony. The paradigm of the rights of nature has moved from theory to practice, particularly in Ecuador and Bolivia, where the rights of nature are enshrined in the constitution and in law. In Ecuador, the 2008 constitution recognises the Pachamama (Mother Earth) as the bearer of rights. Ch. 7, art. 71 states: “Nature, or Pacha Mama, where life is reproduced and occurs, has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions, and evolutionary processes.”³³ This legal innovation has enabled citizens — and in some cases state actors — to sue on behalf of rivers, forests, and animal populations that have been damaged by development, pollution, or deforestation.³⁴ In the case of the Vilcabamba River, for example, the river was recognised as a legal entity and received compensation when its natural course was disturbed by road construction work.³⁵ Although the Ecuadorian legal framework does not focus exclusively on animals, it does provide a basis for the protection of animal populations as part of nature’s life systems. In 2022, the Ecuadorian Constitutional Court went one step further in the Estrellita case and recognised a right of a woolly monkey kept as a pet.³⁶ The court ruled that wild animals have rights that arise from their natural role within ecosystems. This linked the doctrine of the rights of nature with the protection of individual animals and blurred the boundaries between collective and individualistic approaches.³⁷ In Bolivia, the Law of the Rights of Mother Earth (2010)³⁸ and the Framework Law of Mother Earth and Integral Development for Living Well (2012)³⁹ similarly define nature, including animals, as a collective subject of rights. These laws articulate a vision of Buen Vivir (Living Well), drawn from Indigenous Andean cosmologies, where humans, animals, and nature coexist in reciprocal relations. Rights are attributed to “Mother Earth,” encompassing the right to life, biodiversity, water, clean air, equilibrium, and restoration. Animals are seen as “beings with intrinsic value,” contributing to the harmony of nature. Although enforcement remains uneven, the Bolivian case signals an important decolonial alternative to Western anthropocentric law. The rights of nature approach offers a complementary yet different model to individual animal rights. Rather than focusing on autonomy, sentience, or moral personhood, it anchors animal welfare in the ecological interdependence and moral status of nature as a whole. This provides a more solid legal basis for the protection of animals in the wild — especially those whose role is essential to the stability of the ecosystem but which may not fulfill the criteria for personhood. However, critics warn that the focus on ecosystems can subordinate the interests of individual animals to abstract ecological goals.⁴⁰ For example, some conservation measures based on ecosystem health may justify the killing of invasive species or the reintroduction of predators in a way that harms individual animals. A key challenge is therefore to reconcile the rights of nature with the protection of individual animals, avoiding the pitfalls of both individualism and ecological utilitarianism.

Emerging hybrid frameworks attempt to bridge the traditional divide between individualistic animal rights and ecocentric environmental ethics. Sue Donaldson and Will Kymlicka have developed a political theory of animal rights in which wild animals are seen as members of sovereign communities. While their work is not ecological in the biocentric sense, it converges with ecological insights by insisting that wild animal communities should be respected as self-determining political entities with a right to territorial integrity and freedom from human domination. Their zoopolis model articulates differentiated forms of justice: citizenship for domesticated animals, denizenship for frontier animals, and sovereignty for wild animals, with legal status grounded in the relational and political roles that animals occupy in human and non-human societies.⁴¹ They offer a more nuanced and sophisticated legal framework that addresses species-specific needs and ecological contexts without turning animals into abstract rights holders or passive elements of nature. The rights of nature paradigm offers a profound shift in legal reasoning that goes beyond anthropocentric, property-based, or individualistic models of animal welfare. It places animals in a broader ecological and cosmological framework and emphasises their intrinsic value and systemic importance. The constitutional and legal recognition of the rights of nature in countries such as Ecuador and Bolivia is a pioneering step toward this new legal ontology. For animal law, this approach does not negate the value of individual rights or legal personhood but rather complements them with a deeper understanding of animals as members of living ecosystems. In view of the worsening climate crisis and the loss of biodiversity, the integration of the principles of the rights of nature into legal systems may not only be ethically desirable but also ecologically imperative.

4. Which rights for wild animals? #

The question of which rights should be granted to wild animals lies at the interface of moral philosophy, ecological science, and legal theory. While the approaches of animal welfare and legal personhood focus on preventing harm and recognising the intrinsic value of animals, they often fail to do justice to the complex heterogeneity of wild animal life. Wild animals live in different habitats and have a wide range of cognitive, emotional, and social abilities. Consequently, their protection requires a more differentiated legal framework that is tailored not only to their species-specific characteristics but also to the ecological contexts in which they live. This chapter explores how legal systems might differentiate the rights of wild animals — by combining legal personhood (or fundamental rights) for cognitively advanced species with ecological or collective protection for less complex species, and how the protection of individual animals can be reconciled with the requirements of ecological integrity. In contrast to domesticated or captive animals, wild animals live autonomously, outside of direct human care, but increasingly within ecosystems that are influenced by humans. Therefore, legal protection for wild animals must take into account their independent lives and the ecological functions they fulfill. A blanket approach — whether based on sentience, autonomy, or species membership — is insufficient. What is needed is a differentiated model of animal jurisprudence that respects both the moral relevance of individual capacities and the broader ecological dynamics in which animals are implicated. While sovereignty may be appropriate for many wild species, certain animals — such as apes, elephants, whales, and some birds — exhibit highly developed cognitive and emotional capacities that make them candidates for legal personhood or at least some rights, according to Visa Kurki’s bundle theory.⁴² These animals have self-awareness, complex social structures, memory, and even forms of moral behaviour.⁴³ Personhood rights for such animals would not only protect them from captivity and exploitation but also recognise them as ‘subjects of a life’ deserving of freedom and respect. However, the concept of personhood remains a narrow and selective tool that is exclusively applicable to human species and does not meet the needs of most wild animals but does meet the needs of some. For the vast majority of wild animals — those that do not meet the cognitive or emotional thresholds for the status of a person⁴⁴ — alternative legal frameworks are needed. A promising approach to animal welfare is the formulation of species-specific rights that are based on ethological and ecological knowledge and take into account the natural behavior, habitats, and needs of different species. These rights aim to tailor legal protection to the biological and ecological circumstances of animals rather than applying blanket standards. For example, legal frameworks could safeguard migration corridors for Alpine ibex, wetlands for storks, or landscape connectivity for lynx populations in the Carpathians — all of which are essential for the long-term survival and ecological functioning of these species.⁴⁵ Such initiatives are consistent with the ecological rights developed in the Rights of Nature movement, which view animals not just as sentient individuals but as integral ecological actors. These rights are relational and collective, recognising that animals play a key role in maintaining biodiversity, seed dispersal, nutrient cycling, and shaping landscapes.⁴⁶ A notable European example is Slovenia’s legal protection of corridors for large carnivores, which reflects an understanding of animals as regulators of ecosystem processes. By preserving the functional connectivity of habitats, Slovenia promotes not only the survival of species but also the resilience of the ecosystems they help to maintain. This approach shifts the focus of legislation from the welfare of the individual to the integrity of the ecosystem and promotes a more preventative, systemic, and ecologically sound model of animal welfare. However, this ecologically based approach is not without its contradictions. In Slovenia, while corridors for large carnivores are protected to maintain habitat connectivity, the state also authorises the annual culling of brown bears, citing population control and human safety. In 2022, for example, the Slovenian Ministry of Environment approved the killing of 222 brown bears, a decision that was upheld by the Administrative Court despite appeals from environmental organisations.⁴⁷ This highlights an ongoing tension in the management of wildlife: Even within progressive legal frameworks, animals are often managed according to a utilitarian logic that prioritises human interests over ecological integrity. The challenge, then, is to reconcile species-specific and ecological rights with management practices that may undermine the very systems these rights are intended to protect. Future legal systems may need to adopt hybrid models in which legal personality, sovereignty, species-specific protection, and ecological rights interact rather than compete with each other. Such systems would enable both the recognition of wildlife as rights holders and adaptive legal governance capable of responding to ecological complexity and moral pluralism.

The legal recognition of wild animals must reflect their different moral status, cognitive abilities, and ecological role. For cognitively advanced species, legal personhood may be an appropriate and overdue recognition of their subjectivity. For other species, rights based on ecology or species-specific behaviours provide a more appropriate and ecologically sensitive model. In all cases, the aim is not to impose human legal norms on animals but to create a pluralistic legal architecture that recognises their way of life, values their autonomy, and preserves the environment on which they depend. By adapting rights for wildlife — rather than applying anthropocentric or one-dimensional models — legal systems can begin to dismantle legal speciesism and create a fairer, more inclusive, and ecologically coherent jurisprudence. This requires rethinking not only the subjects of rights but also the language, principles, and goals of legal protection itself.

5. The structure of rights — a gradual path to animal legal personhood #

Eva Bernet Kempers in Transition rather than revolution: The gradual road towards animal legal personhood through the legislature (2022) questions the prevailing assumption in animal law that legal personhood is a prerequisite for granting animals meaningful legal rights. Influenced by thinkers such as Gary Francione and Steven Wise, many scholars and activists argue that animals must be recognised as legal persons rather than property in order to be adequately protected by the law. This view often assumes a kind of legal “revolution” — a dramatic, judicially declared transition from thinghood to personhood. Kempers, however, proposes a gradual, legislative path towards legal personhood, rather than an abrupt judicial transformation. Following Visa Kurki’s bundle theory of legal personhood⁴⁸ and Saskia Stucki’s distinction between simple and fundamental rights⁴⁹, she claims that animals already have various simple rights under current law. These rights can be progressively extended and strengthened so that they become more similar to the rights of humans, even without a formal declaration of personhood. To conceptualise this, Kempers presents an “alternative animal rights pyramid” and contrasts it with the traditional pyramid, which places legal personhood as the necessary basis for rights at its base. In her model, animals can gradually “climb the pyramid” through legal reforms that make their rights more robust and functional. This process does not rely on a single criterion (such as autonomy or sentience) to determine legal status, nor does it depend on habeas corpus proceedings, which are limited in many civil law countries.⁵⁰

In Kempers’ model, animals climb toward legal personhood gradually, while Steven Wise’s model⁵¹ assumes they must start from personhood to get rights.

Figure 1: Comparison Wise/Kempers #

At the base is level 1: Simple rights. These are the basic legal duties to which animals are entitled under applicable law, such as the duty not to cause them unnecessary suffering. Even though such rights are rarely formulated as “real” rights by courts or legislators, they imply that animals are the intended beneficiaries of the legal duties. Kempers draws here on the work of Saskia Stucki, who clarifies that these duties — although limited and often weak — represent the first legal recognition of animals as more than mere objects. These rights are widespread in European jurisprudence and mark the beginning of animals’ journey towards visibility in law. At level 2 of the pyramid, fundamental rights are introduced. Here, legal protection becomes more robust: rights protect essential interests (such as the right not to be killed or exploited for certain purposes) and have greater normative weight. Examples of this are the ban on fur farming or the legal ban on the killing of certain wild animal species such as wolves under EU nature conservation law. Although these rights are still not formulated in terms of legal personhood, they are more similar to the rights that humans have. Kempers notes that while such rights are rare, they are growing in number and could eventually be enshrined in international conventions or constitutional provisions. Level 3: Incidents of legal personhood is where Kempers’ model departs most clearly from the traditional binary. Drawing on Visa Kurki’s bundle theory, she argues that legal personhood is not an all-or-nothing status, but a collection of attributes or “incidences” — such as the ability to sue, to be owed a duty, or to own property — that can be granted in varying degrees. Animals can acquire these incidents without being fully recognised as legal persons. She points to developments in France and Belgium, where animal protection organizations are allowed to represent animals in court and receive compensation on their behalf.⁵² Although animals are still technically property, their interests are recognised and enforced through procedural innovations. In Kurki’s words, animals can simultaneously be property and carry important legal incidents normally associated with persons. The final level 4: Independent legal status or legal personhood — represents the stage at which animals could be fully recognised as legal entities, either through a traditional personhood framework or through alternative models. Kempers remains open to various possibilities here: some legal theorists have proposed statuses such as ’non-human natural personhood’ (Declaration of Toulon)⁵³, ’legal animalhood’ (Pérez Castelló)⁵⁴ or ’legal beingness’ (Deckha)⁵⁵ to reflect the uniqueness of animals’ lives without forcing them into anthropocentric legal moulds. Importantly, Kempers emphasises that not all animals need to reach this level to enjoy strong legal protection. Depending on the legal culture and political context, some already enjoy meaningful rights and procedural rights at levels 2 or 3. This gradualist model is particularly suited to civil law systems where judges tend to be reluctant to act and the legislature plays a central role. In such systems, habeas corpus strategies are not readily transferable, and legal innovation is more likely to come through carefully crafted legislation than through judicial activism. Kempers therefore offers an alternative to the “personhood-first” strategy that is more pragmatic and flexible and takes into account the heterogeneity of animal lives and legal contexts. Moreover, this approach avoids the problematic emphasis on cognitive similarity to humans that prevails in the traditional view. Basing legal status on characteristics such as intelligence or autonomy favours certain animals (e.g., apes or elephants) while marginalising others (e.g., chickens or fish) and may inadvertently reinforce human hierarchies that exclude cognitively impaired humans. In contrast, Kempers’ legalistic and pluralistic model emphasises political choice and the legal function over ontological similarity.

To better understand how Eva Bernet Kemper’s theory of gradual legal recognition could work in practice, we have created the following table to visually represent the dynamic evolution of animals through the four levels she outlines in her alternative animal rights pyramid. Rather than assigning animals a fixed status, the table is intended to illustrate the potential for legal mobility — how animals might rise through the stages of legal recognition based on evolving ethical norms, scientific knowledge (such as sentience or cognitive ability), and policy decisions. By translating Kemper’s conceptual framework into a comparative table, this visual exercise serves to illustrate how different species might be located within current legal systems while emphasising the flexibility and pragmatism of her pluralistic approach.

Figure 2: The gradual legal recognition of animals: A dynamic framework #

The restructured table should not be understood as a fixed classification system for assigning the legal status of animals but rather as a developmental framework that reflects the transformative potential of animal law. Kempers’ model recognises that animals may progressively move “up” the pyramid as scientific knowledge, societal ethics, and legal institutions develop. Movement through the tiers is not necessarily linear or uniform — some animals may ascend because of their cognitive abilities, others because of their emotional connection to humans, their ecological relevance, or public concern for their welfare. Importantly, the model departs from the binary logic of traditional theories of animal personhood, which either recognise personhood based on similarity to humans or deny legal subjectivity altogether. Instead, it favours a pluralistic and pragmatic legal strategy. Rights and legal recognition are not granted solely on the basis of ontological similarity to humans (e.g., rationality or autonomy) but can be assigned through deliberate legislative and policy decisions aimed at expanding justice and legal visibility. Moreover, the model allows for different routes to recognition: a wolf may ascend⁵⁶ through conservation law (level 2), a dog through family law (level 3), and a chimpanzee through litigation (level 4). This flexibility allows the framework to take into account the diversity of animal life and human-animal relationships while keeping the legal instruments open and adaptable. In this way, Kempers provides a normatively open and legally grounded structure for thinking about how animals might gradually emerge from the margins of legal systems — not through revolution but through cumulative reform. This approach offers several key advantages. First, it frees law reform from the need to justify rights on the basis of cognitive equality with humans, thus avoiding the speciesist and exclusionary tendencies inherent in the traditional model. Second, it recognises the reality of legal pluralism by allowing different kinds of animals — wild, domesticated, companion, and border animals — to follow different paths to recognition based on their relationships with humans, their ecological role, or their moral status. Third, it is better suited to civil law traditions where judicial reinterpretation is limited and statutory amendments are the main vehicle for legal innovation. Unlike rigid taxonomies, this table is not intended to categorise species once and for all. Rather, it is a heuristic tool for thinking about legal evolution: a way to see how animals might ascend to broader legal protection based on changing legal, ethical, and scientific knowledge. For example, animals may initially receive simple welfare as passive beneficiaries (stage 1), but as public opinion, legislative ambition, or scientific recognition of sentience increases, they may gain stronger rights (stage 2) and procedural visibility (stage 3) or eventually be seen as full legal subjects (stage 4). This transformative potential is central to Kempers’ approach: legal personhood is not the starting point — it is a possible outcome of cumulative moral and legal progress. Her model enables a contextual, relational, and strategic vision for reform. It accepts that legal systems may remain inconsistent or fragmented for some time. However, it argues that progress is possible through persistent, incremental legal reforms that strengthen rights and expand legal visibility step by step. The implications of this theory go beyond animal law in the narrow sense. They invite us to rethink the architecture of legal subjectivity, to resist anthropocentric forms of law, and to strive for a more comprehensive and just legal order. Thus, the chapter concludes not with a definitive map of the legal status of animals but with a framework for future movements — both descriptive and aspirational.

Conclusion #

This article has analysed the inadequacy of the animal welfare paradigm and the urgent need for legal models that go beyond its anthropocentric boundaries. By comparing the personhood model, the rights of nature approach, and new pluralist theories, it argues that animal law needs to adopt a more nuanced and comprehensive architecture. The legal personhood model offers a strong critique of the property paradigm but remains limited by its reliance on cognitive thresholds and an often binary logic. The rights of nature paradigm, on the other hand, expands the legal imagination towards a systemic, ecological recognition but struggles to articulate protection for individual animals within a framework of collective ecological goals. These tensions point to the need for a more flexible, context-aware framework.

The concept of differentiated animal jurisprudence responds to this need by recognising the heterogeneity of animal life — biological, social, and political. It rejects the assumption that legal recognition must follow a uniform path and instead argues in favour of relational, species-sensitive, and ecologically based forms of legal protection. This approach is further elaborated by Eva Bernet Kempers’ pyramid model, which understands animal rights not as a sudden legal revolution but as a gradual, accumulative process. Kempers’ model allows for legal mobility by recognising animals as subjects whose rights evolve according to their moral status, scientific knowledge, political will, and legal culture. Crucially, it avoids the pitfalls of cognitive reductionism and recognises legal pluralism as both a descriptive reality and a normative strategy.

In view of the ecological crises, the loss of biodiversity, and the continuing moral exclusion of animals from legal personhood, a rethinking of the foundations of animal law is not only desirable but imperative. A post-anthropocentric legal order must be able to take into account the lived reality of animals not as abstract Others but as beings embedded in complex moral and ecological relationships. This article seeks to contribute to such a reconceptualisation — a reconceptualisation that displaces humans from the centre of legal thinking and opens a way to see animals not just as recipients of compassion but as rightful participants in legal and moral communities.

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Больше, чем благополучие: законные пути к правам животных #

Присцила Гулич Пирнат

Аннотация: Настоящая статья критически осмысливает ограничения парадигмы благополучия животных, исследуя альтернативные правовые подходы, направленные на признание животных в качестве носителей прав. На основе междисциплинарного и сравнительно-правового анализа автор сопоставляет три ключевых направления: концепцию правосубъектности животных, парадигму прав природы и градуалистскую модель Эвы Бернет Кемперс.

Статья отстаивает необходимость плюралистической и контекстуально-чувствительной юриспруденции, способной учесть биологическое, социальное и политическое многообразие животных и сложность отношений между ними и человеком. В качестве альтернативы одномоментной и резкой, «революционной» смене парадигмы автор предлагает концепцию «дифференцированной юриспруденции» для животных, обеспечивающей постепенное, многоуровневое развитие законодательства на основе признания моральной ценности животных, их экологической включённости и необходимости правовых инноваций. В заключение делается вывод о невозможности постантропоцентрического правопорядка без преодоления дихотомии «лицо/вещь» и без создания дифференцированных путей к правосудию для нечеловеческих животных.

Ключевые слова: права животных, правосубъектность животных, права природы, правое регулирование благополучия животных, экологическая справедливость, дифференцированная юриспруденция, пост-антропоцентризм, нечеловеческая правосубъектность.

DOI: 10.55167/06ae6e7c6af9