This week, the Nonhuman Rights Project goes to court to argue before a judge that Hercules and Leo, two chimpanzees being held captive for locomotion experiments at a research lab at the State University of New York at Stony Brook, have the legal right not to be imprisoned and that they should be set free and sent to a sanctuary.
New York’s Attorney General will be defending the right of the university to keep them imprisoned. The A.G.’s office calls the suit a “radical attempt” that could lead to the undermining of the factory farm industry in that it “could set a precedent for the release of other animals … housed at a zoo, in an educational institution, on a farm, or owned as a domesticated pet, and enmesh New York courts in continuing litigation.”
The Nonhuman Rights Project has no plans, in fact, to go to court on behalf of pigs, cows, chickens or fish. Its lawsuits are specifically on behalf of animals for whom there is clear, indisputable, scientific evidence of complex cognition and autonomy. And at least for the foreseeable future, that evidence exists only for great apes, some species of dolphins and whales, and elephants.
The state’s case focuses on how inconvenient it will be if any nonhuman animals are recognized as having the capacity for legal rights.But the case being put forth by the Attorney General’s office is of particular interest in that it focuses not on the validity of the NhRP’s arguments but rather on how inconvenient it will be if any nonhuman animals are recognized as having the capacity for legal rights.
That’s essentially the same argument as was used centuries ago by slave owners. In the famous 1772 Somerset v. Steuart case, lawyers representing Virginia slave owner Charles Steuart, who had brought his slave James Somerset to London, didn’t try to claim that Somerset, who had tried to escape, was a subhuman lacking in complex cognition and autonomy. They argued that if Chief Justice of the King’s Bench Lord Mansfield recognized Somerset as a “legal person”, he would be setting a precedent that would lead to the collapse of the European economy.
Lord Mansfield was not cowed by the implicit threat. He stated in his ruling:
The state of slavery is of such a nature that it is incapable of being introduced on any reasons, moral or political, but only by positive law [statute], which preserves its force long after the reasons, occasions, and time itself from whence it was created, is erased from memory. It is so odious, that nothing can be suffered to support it, but positive law.
Whatever inconveniences, therefore, may follow from the decision, I cannot say this case is allowed or approved by the law of England; and therefore the black must be discharged.
The economy did not collapse when slavery was abolished in the Western world. And civilization will not be destroyed as a result of certain nonhuman animals being recognized as having the capacity for the fundamental legal right to “bodily liberty”.
The NhRP lawsuit on behalf of Hercules and Leo is one of three cases currently working their way through New York State’s legal system. Last week, in the case of Tommy, noted legal scholar Laurence H. Tribe submitted an amicus curiae brief arguing that “the lower court fundamentally misunderstood the purpose of the common law writ of habeas corpus” and “reached its conclusion on the basis of a fundamentally flawed definition of legal personhood.” Habeas corpus scholar Justin Marceau also filed a brief with the Court of Appeals saying that “the lower court’s resolution of the matter is in fundamental tension with core tenets of the historical writ of habeas corpus.” Animal welfare laws never challenge the fundamental notion that the wellbeing of nonhuman animals must take second place to the interests of humans.
The Attorney General’s office argues that the wellbeing of chimpanzees can be addressed through animal welfare laws. But while it’s true that such laws have made some difference to some animals, the basic flaw in them is that they never challenge the fundamental notion that the wellbeing of nonhuman animals must take second place to the interests of humans.
According to a new Gallup poll, almost a third of Americans (32 percent) agree that “animals deserve the exact same rights as people to be free from harm and exploitation.” It’s hard to know exactly what these people are saying. According to the Vegetarian Times, only 0.5 percent of us are vegan, and 3.2 percent are vegetarian, meaning they still patronize the cruel dairy and egg industries. All the same, the poll indicates a strong and growing sentiment that our fellow animals have the right to be free from harm and exploitation at the hand of humans.
But while there are plenty of organizations that talk about “animal rights”, and now even a large and growing segment of the American public agreeing that “animals deserve the exact same rights as people to be free from harm and exploitation,” the fact is that the only animal that has any legal rights at all is the human animal.
It’s time for that to change.