By Justin Gregg
Like furniture, animals are considered property in the eyes of the law; things that can be bought, sold, or disposed of when no longer wanted. Unlike a human (or a corporation), an animal is not recognized as a person under US law, and could never serve as a plaintiff in a court case.
This longstanding precedent, however, might be about to change.
The battle to establish animals as legal persons is being spearheaded by the Nonhuman Rights Project, under the leadership of Steven Wise. Wise is an attorney who teaches animal rights law at Harvard Law School, and is the author of four books on the subject. He has spent decades honing his arguments and assembling a team of influential legal and scientific minds to join his cause, including Jane Goodall (who sits on the board of directors of the Nonhuman Rights Project).
Wise and his team made history on 2 December 2013 by filing a writ of habeas corpus in Fulton County Court, NY on behalf of Tommy — a chimpanzee being held in tiny cement cage in the back of a used trailer lot in Gloversville, NY. In the event that someone is being held against their will, habeas corpus obliges that person’s captors to justify their actions in front of a judge. New York State permitted the writ of habeas corpus to be filed on behalf of slaves in the eighteenth century, allowing them to argue that they should be considered persons and not things, and should not be held against their will. Wise and his team will use the same approach, but this time arguing on behalf of Tommy.
But how are Wise and his team aiming to upset centuries’ worth of legal (and social) thinking that considers animals to be non-persons?
According to Wise, some animals possess psychological characteristics that indicate that they are much more than just things. Animals like Tommy satisfy Wise’s criteria for practical autonomy — a measure of how sophisticated an animal’s cognitive abilities are in terms possessing a form of consciousness that allows them to act intentionally in order to fulfill their desires. Wise argues that species like chimpanzees, which are “cognitively similar to humans,” often display “sufficient practical autonomy to qualify them for basic liberty rights.”
In order to gain a foothold for this argument in the US legal system, Wise and his team have spent years researching which US states and jurisdictions would be most receptive to this kind of argument. The plan is to avoid the courts at the Federal level, and instead focus on common-law state courts, where a judge is not limited to interpreting statutes, but is free to make a ruling that is based on their personal interpretation of what is moral. In the event that a judge denies the petition, Wise and his team will be appeal the decision, which could land them in the New York State Court of Appeals. A ruling in favor of chimpanzee personhood in New York’s highest court would be the ideal outcome for Wise’s team.
Wise has been criticized by some in the animal rights and animal welfare communities for focusing on complex cognitive traits as the basis for rights. Critics point out that the ability to suffer — a product of a kind of sentience that is likely widespread in the animal kingdom — should be sufficient for granting animals freedom from bodily harm. Wise is clearly sympathetic to this argument, but adopts a pragmatic approach in suggesting that “the capacity to suffer appears irrelevant to common-law judges in their consideration of who is entitled to basic rights.”
The legal team’s filing is accompanied by affidavits from their scientific advisors highlighting the human-like cognitive abilities of chimpanzees as the basis for Tommy’s standing as a legal person. If the writ is granted and Wise and his team get their day in court, it will be the science of chimpanzee minds that will take center stage. Will Wise’s arguments for practical autonomy based on chimpanzee cognitive complexity sway the judge?
If Wise’s team is lucky enough to get the ruling they’ve fought so hard for, it might unleash a torrent of similar cases, and open a Pandora’s Box of legal and ethical questions.
How will subsequent judges deal with the assignment of personhood to a non-human animal by another court? Will it be a forgotten anomaly, or will it be the first drop in a flood of animal personhood rulings? How might the legal argument for practical autonomy change over time given the shifting sands of the science of animal minds? How will the various animal rights and animal welfare movements react to the ruling? What will the future look like for chimpanzees in the bio-medical, display, or entertainment industries if they become legal persons and not property?
These are unchartered waters.
Based on the legal and scholarly firepower at Wise’s disposal, the animal rights movement has never been as close to a victory as they are right now. Depending on the outcome of this upcoming case, this might well be the dawn of a new era for the animal rights movement.
Justin Gregg is the author of Are Dolphins Really Smart? The Mammal Behind the Myth, and is a research associate with the Dolphin Communication Project. He is also Co-Editor of the academic journal Aquatic Mammals. He received his doctorate from Trinity College Dublin in 2008, having studied social cognition and the echolocation behavior of wild Indo-Pacific bottlenose dolphins. With an undergraduate background in linguistics, Justin is particularly interested in the study of dolphin communication as it pertains to comparisons of human (natural) language and animal communication systems. Read his previous blog posts.