A New Beginning for Dolphins
Part Three of “Dolphins and Us”
A New Beginning for Dolphins
Could Tilikum Also Be Set Free?
Making the Case
Is SeaWorld on the Ropes?
In the World Spotlight
SeaWorld Testifies before Congress
How You Can Help
Interviews & Reports
The Case for Dolphin Rights
When the Watchdog is Just a Guard Dog
Communion in the Wild
How do you make a compelling legal case that certain non-human animals are entitled to certain basic “inalienable rights”?
Steven M. Wise, J.D. has practiced animal protection law for 20 years. Now he’s been putting together a ground-breaking case that would set a precedent in giving specific legal rights to particular animals who can be classified as non-human “persons”.
One of the animals on the list as a possible candidate is Lolita, an orca (killer whale) who was taken from her family more than 30 years ago and is still living at the Miami Seaquarium.
You’ve been working for three years on this project to have a high court declare that a non-human animal has at least one basic right. What’s involved in so much research and preparation?
Steven Wise: We’re doing factual research, trying to figure out what sort of animal is going to be the plaintiff and where those animals might be located. We have a legal group helping us figure out where exactly we’re going to file suit. We’ve generated tens of thousands of pages of case law that we’re analyzing. The sociological group is looking at how judges make decisions. We have Ph.D.’s in psychology, sociology and political science working on that. And we have a super-crunchers group developing algorithms that will help us better understand how judges are ruling on cases and what factors are taken into consideration.
Right now we have 26 researchers scattered around the United States and we’re hoping to file the suit in 2011.
What goes into deciding where you might file the suit?
S.W.: We’re probably looking for a whale or dolphin or a great ape, so we can only file suit in states in which there are cetaceans or great apes in captivity. We’re looking at what the law is across all 50 states, and we’re ranking those states in many ways. And we’re looking at the characters of the judges, and we’ll have to make a call based upon what judges are sitting on what benches at the time. So, everything is really inter-related.
In your book Drawing the Line, you talk about how judges tend to be more sympathetic to legal issues than to moral issues. You say they’re not so interested in the typical philosophical questions like “Can they feel pain?”
S.W.: The arguments that we’re making are definitely legal arguments. But we understand that there are moral values here at stake, and it’s certainly a moral argument that will underpin the legal argument.
So, what is the basic argument for a non-human animal having the legal right not to be held in captivity?
S.W.: We’ll be arguing that if you accept the basic values of equality and liberty, then when you apply them to such non-human animals as, say, cetaceans or great apes in the way that we’ve shown them the facts, then they need to find that they are entitled to some basic rights.
We’re litigating under the common law, not under a statute or a constitution or a treaty. The common law is an inherently flexible tool, and the best judges understand that they can change the law based upon changing views of morality or new experience or new scientific facts being discovered.
So we’re using that as a basis, and then we’ll begin to present new sorts of opinion, new kinds of scientific fact, especially around the cognition of certain non-human animals that show both how similar they are to humans, and also how extraordinary they are in and of themselves.
The case for treating certain animals as “persons”
In Drawing the Line you make the case for certain animals being classified as “persons” – not humans but sharing certain characteristics of “personhood” – that give them a level of legal protection.
S.W.: Yes, I argued that with Class One animals [which include whales and dolphins and primates], you need to stop violating their bodily integrity and bodily liberty immediately. The evidence is really overwhelming that they are the kind of creatures we would recognize should not be treated in this manner. And they should be legal persons, at least to some extent.
With companion animals, judges tend to be sympathetic to cruelty cases where a dog or a cat has been maliciously treated. Why not take that approach?
S.W.: You know, in Britain the House of Commons voted down what became Martin’s Act many times over 20 years before it was finally passed in 1822. It feels second nature to think that cruelty is despicable, but it was not that way at the turn of the 19th century.
I think that cruelty and rights issues are qualitatively different and that the problem with cruelty is that it’s not associated with personhood. I think it’s an intermediate step – a first step, and I certainly support it very much. I think it helps to build public opinion in the right direction. But I do think that if you’re going to have the word cruelty in the statute, it’s going to be qualitatively different than a judicial decision or a statute that gives rights.
And I suppose cruelty cases tend to become a matter of opinion?
S.W.: And there are more and more exceptions to the cruelty statutes, so that only a relatively small percent of domesticated animals are even covered by them. On the one hand, we’re coming to the point where, if you do something bad to Spot or Fluffy, they’re going to throw you in jail and throw away the key. But at the same time you can do whatever you want to a pig and it won’t be wrong.
And people even have pigs as pets.
S.W.: That’s one of the reasons why many years ago, when I began this, I made the fundamental decision that I was going to try to push for change through common law courts. The arguments that I make are really arguments for justice, which may be irrelevant to a legislator, but they should not be irrelevant to a judge.
If a court rules in your favor, to what extent can this then be applied in other countries?
S.W.: Well, the principles that we’re arguing from are fundamental principles of liberty and equality that are accepted all over the world and serve as the foundations of many modern constitutions and much modern domestic law, as well as international treaties. It’s just that they always talk about them in terms of human beings. I think that, to the degree that these kinds of court decisions are founded on such broad, almost universally accepted fundamental principles as liberty and equality, then they should be able to be applied from one jurisdiction to another.
How would that apply in the case of the dolphin hunts in Japan and other situations where you’ve got animals in international waters where nobody’s necessarily under any obligation to follow these principles?
S.W.: Well, it’s a major headache as to how international law applies anywhere. International law is looser; it’s not as easily enforceable outside national borders.
“If it’s going to take 170 years, let’s start now!”
Are you pleased, just generally, with how far animal law has come along, or are you frustrated?
S.W.: Well, overall I’m not happy at all with the speed at which things are progressing. But along the way, I became an historian of human slavery, which led to my book Though the Heavens May Fall. I’m very aware of how long human slavery took to be abolished. I don’t have any illusions that non-human slavery is going to be that much easier. It could be a lot harder. So I understand how hard it is to change people’s attitudes at such a fundamental basis. Things are going slow, but not unexpectedly slow. [They may be] actually going faster than I would have thought.
When I started writing law review articles and then books, there was really nothing out there with respect to animal law. This will be the 20th summer that I’ve taught animal rights jurisprudence at the Vermont Law School, and when I began there may have be one other law school course being offered at the law school level that concerned animals at all. Now there are more than 120. There were no law journals about animals; now there are six of them. There was nobody practicing it, now there are hundreds and hundreds of lawyers around the country doing it. There were no chapters of the Animal Legal Defense Fund, now there are 150 of them.
The Germantown Quakers were coming out against slavery in the 1690s, and it wasn’t to end for another 170 years. If it’s going to take 170 years, then let’s start now. Like Moses, we won’t see the Promised Land, but somebody will, and they’ll see it because we started it.
Our purpose is to either win those cases or to lose them in a way in which we can understand how to win the next one. And if we lose that one, then we’ll understand how to win the next one, and then the next one.
Eventually we shall win.
Professor Wise teaches at the Harvard Law School, Vermont Law School, John Marshall Law School and in the Masters Program in Animals and Public Policy at Tufts University School of Veterinary Medicine. He is the former president of the Animal Legal Defense Fund, founder and president of the Center for the Expansion of Fundamental Rights, and the author of several books including “Drawing the Line – Science and the Case for Animal Rights.”