A new relationship with animals, nature and each other.

The ‘Animal Rights’ Paradox

How’s the animal rights movement doing? If you rate it by the simple question “How many animals have rights?” you’d have to say “Not very well.” Call it the animal rights paradox.

That’s because the only animal with any legal rights whatever is the human animal. To this day, no other animal has any rights at all.

Certainly there have been some advances in animal welfare (i.e. reducing the amount of suffering they’re subjected to). So, if you’re a homeless dog or cat, you have a better chance of being adopted, rather than killed, than you had 25 years ago. And if you’re a hen laying eggs at a factory farm, you may get a few more inches of space in the cage where you spend your entire life.
The only animal with any legal rights whatever is the human animal.
But while there are certainly many “animal rights” organizations, there are still no animal rights. Whether you’re an elephant at the zoo, a pig at a factory farm, a mouse or a chimpanzee at a laboratory or even Fido and Fluffy in a good home, you are viewed by the legal system as a piece of property with no more rights than a car or a chair or a DVD player.

So, for example, when a team of attorneys went to court in Los Angeles in 2012 to try to have three elephants released on the grounds that they were being mistreated, the judge wrote a stunning indictment of the zoo, but he explained that he could not set Billy and his pals free to be sent to sanctuaries because the elephants were the legal property of a zoo and could not be taken from their owners except in truly dire circumstances of cruelty.

That’s exactly the kind of situation that the Nonhuman Rights Project (NhRP) is setting out to change. As Steve Wise, President of the NhRP, explains it:

In Western law, every nonhuman animal has always been regarded as a legal “thing”. We can buy, sell, eat, hunt, ride, trap, vivisect and kill them almost at whim. The reason is that legal things don’t exist in law for their own sakes. They exist for the sakes of legal “persons,” which we humans are.

“Things” are invisible to civil judges. They possess no legal rights and no hope of having them.

A court confronted with a plaintiff’s claim to possess any legal right need only determine the plaintiff’s species. If the plaintiff is human, the answer is “It is possible. She is a legal person.” If the plaintiff is a nonhuman animal, the answer is “Impossible. He is a legal thing.”

Not long ago, whole classes of humans were treated as pieces of property. In 1769, the American slave James Somerset was taken to England by his owner, Charles Steuart. Somerset escaped but was recaptured and chained on a ship bound for the sugar plantations of Jamaica. Just before the ship set sail, however, a team of anti-slavery attorneys filed a historic common law writ of habeas corpus in which they demanded his freedom.

Chief Justice Lord Mansfield, who heard the case, ruled that Somerset was indeed a legal person who could not be owned and had to be set free. This led to similar suits being filed all up and down the newly-born United States. In some cases, judges ruled that slaves were legal persons; in others that they were just things. As we all know, it finally took a civil war to settle the matter, but it all began with a single plaintiff in a single courtroom. Are these animals pieces of property? Or is it time to recognize them as ‘legal persons’ who have the capacity for certain fundamental legal rights?

Today, in many parts of the world, women and children are still viewed as property. And there are still questions being argued in court over what are the legal rights of unborn babies, and what rights a cognitively disabled human has. But those individuals still have many more rights than a 45-year-old chimpanzee, elephant or dolphin who is self-aware, emotionally complex, autonomous and capable of conversing with humans using complex sign language or a computer, and who is nonetheless being forced to entertain humans for profit at a circus.

So, are these animals pieces of property? Or is it time to recognize them as persons who have the capacity for certain fundamental legal rights?

That’s the question the Nonhuman Rights Project is addressing in a series of lawsuits now working their way through the courts. As Attorney Wise explains:

Our purpose is to persuade an American state high court to transform a nonhuman animal the way Lord Mansfield transformed James Somerset: by declaring that she is a legal person capable of possessing legal rights.

Once a court recognizes this possibility, the next legal question will shift from the irrational, biased, and overly simplistic question, “What species is the plaintiff?”, to the rational, nuanced, value-laden, and policy-enriched question, “What qualities does the plaintiff possess that are relevant to the issue of whether she is entitled to the legal right she claims?”

And only when that happens will the term “animal rights” begin to have real meaning.

Meanwhile, as long as the legal system sees no essential difference between an elephant and a DVD player, our society will continue to treat those animals as things that exist primarily for our personal benefit, just as it was equally difficult, not long ago, for people to imagine women, children and slaves as anything but the personal property of their owners.

In December, 2013, attorney Wise appeared before Justice Joseph Sise in a Fulton County, NY, courtroom seeking a writ of habeas corpus on behalf of Tommy, a chimpanzee who is being held captive in a cage in a dark shed at a used trailer lot. Wise argued that Tommy is a cognitively complex, autonomous being with the capacity for the legal right to bodily liberty. His argument was supported by affidavits from scientists around the world, testifying to the cognitive abilities of chimpanzees like Tommy.

Judge Sise ruled that although he could not issue the writ, he supported the effort:

“Your impassioned representations to the Court are quite impressive. The Court will not entertain the application, will not recognize a chimpanzee as a human or as a person who can seek a writ of habeas corpus under Article 70 [a procedural statute]. I will be available as the judge for any other lawsuit to right any wrongs that are done to this chimpanzee because I understand what you’re saying. You make a very strong argument. However, I do not agree with the argument only insofar as Article 70 applies to chimpanzees.

“Good luck with your venture. I’m sorry I can’t sign the order, but I hope you continue. As an animal lover, I appreciate your work.

Sise later discussed the case with journalist Charles Siebert for a cover story in the New York Times magazine:

“I thought they should have an opportunity to make their argument as to why Article 70 should be enlarged to include nonhumans,” Sise said. “Ultimately, I felt that they had the right to make a record so that they could appeal. I thought, Here’s this group of lawyers, living and dying this, they deserve due process, and they deserve to be told just how impressed at least I was by the effort they’re making on behalf of animals.”

Soon after, a judge in Niagara County also denied a writ of habeas corpus, in this case on behalf of Kiko, a chimpanzee being kept as a pet, stating that he, too, did not want to be the first “to make that leap of faith,” while leaving the door open for a higher court to make the call.

A year later, in a Manhattan court, Justice Barbara Jaffe (right) went a big step further when she ordered the Attorney General of New York to appear in court and provide a legally sufficient reason for Hercules and Leo, two chimpanzees at Stony Brook University, to continue to be held for laboratory experiments.

In requiring the A.G. to show cause, the judge was implicitly affirming that your right to have your day in court does not depend on what species you are, any more than it depends on your skin color or your gender. Rather, it depends on the degree of autonomy and self-determination you exhibit. The judge was implicitly affirming that your right to have your day in court does not depend on your species.

Fearing the damage of the judge setting a major precedent, Stony Brook University decided to shut down the experiments with Hercules and Leo and send them back to their owner, the New Iberia Research Center in Louisiana, which is now reportedly seeking to send them to a sanctuary voluntarily.

In her ruling, Justice Jaffe wrote that while societal views are clearly changing as to whether nonhuman animals can be recognized as “legal persons” with the capacity for certain rights, such a groundbreaking legal decision had to be made be a higher court:

“Legal personhood is not necessarily synonymous with being human … Rather, the parameters of legal personhood have been and will continue to be discussed and debated by legal theorists, commentators, and courts and will not be focused on semantics or biology, even philosophy, but on the proper allocation of rights under the law, asking, in effect, who counts under our law.”

So the process has begun, the legal ball is in play, and sooner or later there will be change.

All of this raises big questions about our treatment of nonhuman animals as resources, food sources and profit centers. Could the time be coming when a cow or a chicken on a farm, or a killer whale or an elephant at a circus, be recognized as having the right not to be enslaved for life by their “owners”?

The Nonhuman Rights Project is currently (February, 2016) preparing a lawsuit on behalf of one or more elephants, to be brought later this year. And Steven Wise acknowledges that once the first victory has come, it will be the beginning of major change in our relationship to nonhuman animals:

There’s never been a nonhuman animal who’s been seen by a court to be a legal person – that is with the capacity for a legal right. And we are pushing and pushing as hard as we can to persuade a state high court that our nonhuman animal plaintiff – likely an ape, a cetacean, or an elephant – is indeed a legal person with a certain kind of fundamental right, probably the right to bodily liberty that is protected by a writ of habeas corpus.

Once any court recognizes that any nonhuman animal is a legal person and has the capacity for some kind of legal right, then we are going to try to persuade many courts to begin looking at many sorts of petitioners and asking the question not “What is their species?” but “What kind of a being are they? What kind of capacities do they have? Are they the kind of being who ought to be a legal person? And if so, what kind of rights should they have?”

And once we win our first case, I think legislatures are going to be jumping in, courts are going to be jumping in, and it’s going to spin out of our control almost immediately!”