If Corporations Have Rights Like People, Shouldn't Animals?
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Steven Wise’s path is clear to him, however, and he does not waver. His biggest foe is history — the “this is how it’s always been done” response. “But all of the good arguments are on our side,” he says. When he was starting out, he plugged the names of iconic animal rights philosophers Peter Singer and Tom Regan into a legal search engine. Nothing. Shocked, Wise concluded that writings on animal rights had taken a moral and philosophical approach, not a jurisprudential one, and so he went to work.
After penning law review articles “that not even my mother read,” he wrote more books, honing both his philosophy and legal strategy. His 2005 book, Though The Heavens May Fall, examined the trial in England in 1772 of James Somerset, a black man rescued from a ship en route to the West Indies. The court’s decision was a step forward in the slow move towards the abolition of slavery in Britain. To Wise, that book, “is a metaphor and a blueprint for how it can be done for any legal thing, whether you’re a black slave or a chimpanzee or a dolphin.”
As Wise’s quarter century draws to a close, the interdisciplinary Nonhuman Rights Project is working full tilt. It’s very serious business involving many minds: political scientists, sociologists, psychologists, lawyers, statisticians, cognitive scientists, primatologists, cetacean experts, public policy experts, and computer modelers.
Currently, more than 50 people in six “working groups” are analyzing relevant state laws and legal precedents. They are researching, for example, how proponents of gay marriage chose jurisdictions in which to litigate and how certain high courts deal with non-autonomous humans like the comatose, mentally retarded, embryos, and fetuses. They are trying to pinpoint the most promising causes of action and the friendliest states and jurisdictions in which to file suit.
The plan is to file a landmark case demanding state high courts declare at least one nonhuman animal possesses a legal right — and is therefore a legal “person.” Choosing the optimal venue — perhaps a state whose Supreme Court is weighted with female judges or has overturned an anti-gay marriage statute — is critical.
Then the goal is clear: file a case, win it, and survive the inevitable appeal to the first-ever serious legal challenge to “thinghood.”
“We want to have the most powerful case that we can in front of them,” says Wise, “so maybe they’ll realize that they really can’t defend themselves, that what they’re doing is just kind of blindly imitating what’s been going on for hundreds and hundreds of years.”
He hopes to bring the first lawsuit in 2012. A case, he says, will not be hard to find, although the exact plaintiff — circus elephant, research lab primate? — hasn’t been determined.
(In October, People for the Ethical Treatment of Animals filed a lawsuit against SeaWorld on behalf of five orcas it says are being held in involuntary servitude in contravention of the U.S. Constitution’s 13th Amendment — which only applies to people. Favre, writing to the Associated Press at the time, said he thought this personhood case would not proceed far because the human plaintiffs lacked standing.)
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Favre thinks Wise sees “a worldwide view trial that’s going to crystallize all these things and injustices, and the judges are going to see the light and totally change the system.”
In the mid-1980s, Favre says he “subversively taught animal law as part of a course called Wildlife Law,” because it sounded less radical. Today, he believes that using the law to protect animals from abusive humans is essential. But his paradigm sidesteps “legal personhood” entirely, advocating for an incremental approach to gaining protections and limited legal rights for animals. He favors the concept of “living property,” predicated on some animals already having limited legal rights that other property, like balky computers, don’t possess.
Philosopher Tom Regan has criticized the incremental approach. He says it backfires because it “undermines the eventual goal of abolition by making the terms of bondage less onerous and, therefore, making it less pressing that any action be taken.”
However, Favre believes philosophers don’t grasp to what extent legal rights are “a product of compromise and incremental change and smallness, as opposed to sudden insight and transformation of a legal system.”
He sees the Chimpanzee Health Improvement, Maintenance, and Protection Act of 2000, which says that research animals are entitled to a pleasant retirement, as an example of incremental progress. It’s also further proof to him that although property, research chimpanzees are “morally relevant” beings to whom society has obligations. The same seems true of the National Institutes of Health’s announcement last week that it was rethinking new federal research involving chimpanzees, although it is maintaining its current stable of research animals.
“There’s no rat retirement,” Favre says. “They can kill the rat as soon as the experiment’s over. But they know psychologically you can’t just shoot a chimpanzee after the experiment is over, that there’s a moral duty there.”
He envisions increased protections akin to those afforded infants and the mentally incompetent working well without the need to show that primates are human-like or changing their “property” status. A chimpanzee can be the specifically named beneficiary of a trust — that, too, shows he or she is a legally relevant being whose interests must be protected.
And Favre sees state and district courts as great venues in which to move things along.
“I’m just a little more pragmatic,” he says. “I want to tell the judge, ‘We don’t need a revolution. In fact, guess what? You’re already halfway down the trail. And it’s the normal evolution of how we deal with new concerns and new ideas, and therefore, Judge, I’m just asking you to move the ball along a little, 5 yards or 10 yards.’”
Favre is less concerned with crashing through what Wise sees as a high, thick legal wall separating human and nonhuman animals, and more intent on, “just fording the stream, and we just got to find the right rocks to cross over on.”
“We don’t talk about the interest of cars, right?” he says. “Or any of the other things that are things. Clearly, we as human beings understand, particularly now in this world of really extreme ownership of pets, that a dog has interests. It has desires. It has abilities. It has all sorts of things that are, in fact, almost childlike. And therefore you can say with a straight face before a judge, ‘Judge, you need to make a decision that’s going to best accommodate the interest of this particular animal. What’s in the best interest of the animal?’ It parallels the familiar concept of, ‘What’s in the best interest of a child?’”
In his paper, “Living Property,” Favre argues that not all of animals’ various interests have equal weight, and that the law can balance the interests of humans and of animals, “and decide if one is superior to the other.”
Richard Cupp favors increasing protections for animals over expanding their rights. The very term “animal rights” bothers him because it is so fuzzy. Society tends to view rights as inherently good, he says. “The Civil Rights Movement is the most shining example of where an expansion of discussion of rights has been incredibly good for our society.”
Yet rights come with a cost and responsibility, and animals “are not able to accept responsibilities.” Cupp believes “personhood” would be more harmful than helpful, “because it pretends that animals have the capacity to engage in a social contract when they don’t.”
Animals’ roles in people’s lives have changed dramatically from when cows were for milk and dogs guarded farms — the view on which the property damages paradigm is based. In 2009, there were approximately 171 million “owned” cats and dogs nationwide, and many people now have animals for emotional rather than monetary reasons. “So, it’s an appealing argument to say well, then law should evolve to keep up with society’s evolution,” he says. “My children might be a little bit more open to Wise’s ideas than I am, and their children might be a little more open yet.” Nonetheless, efforts like a proposed ordinance in San Francisco to ban sales of animals as pets have been characterized as “nutty” by mainstream commentators.
Animal rightists worry that animal law taught in a university that houses an animal research facility might take on a pro-research cast. Conversely, Frankie Trull and others in biomedical research believe that animal law courses are primarily taught “from an animal rights perspective” and in support of assigning rights of some kind to animals.
That was the argument of Oregon Health Sciences University’s P. Michael Conn, who has been harassed by animal rights protesters, in a December 2009 opinion piece for The Scientist. He wrote that he welcomed as a “forward step” the use of the law instead of “violence and threats” to advance concepts of animal rights. But, he noted that 41 percent of law schools have connections to medical schools, and 69 percent of the schools teaching animal law are housed in universities that conduct animal research.