The Case for Reform

Animals are attracting a high-profile group of sympathizers these days, particularly at America’s law schools, 25 of which now offer courses in animal rights law (up from five in the mid-1990s). The Chimpanzee Collaboratory’s Legal Committee hosted a symposium at Harvard Law School last September that featured such scholars of the law as Professor Alan Dershowitz (who opined that "rights grow out of wrongs"), Cass Sunstein of the University of Chicago (who argued that animals regarded as property can still have rights under the law, and that "our culture is much more interested in protecting animals than our laws are"), David Favre of Michigan State (who said that animals may "cross the river" to legal rights over the "stepping stones" of incremental change), and acclaimed primatologist Jane Goodall (who said that legal rights might prevent the poaching and habitat destruction that is threatening Africa’s great apes with extinction. See the interview with her in this issue).

Another influential voice arguing for legal protection for animals is attorney Steven Wise, a former Harvard animal rights lecturer, a speaker at the chimpanzee symposium and the author of Rattling the Cage: Toward Legal Rights for Animals and Drawing the Line: Science and the Case for Animal Rights. Wise makes what he calls the "liberty" argument. He says that some nonhuman animals, including great apes, have "a kind of autonomy that judges should easily recognize as sufficient for legal rights." He also makes an "equality" argument, pointing out that children born severely retarded and dependent are automatically granted full human rights, and that "the principle of equality requires us to give [the same rights] to a bonobo who has high levels of cognition and a great deal of mental complexity." Wise’s work is in part based on new research that finds, for instance, that some parrots "are probably self-aware, can grasp abstractions, imitate and use a sophisticated proto-language." A report in Science magazine earlier this year offers new evidence that orangutans and other apes exhibit cultural behavior.

Wise believes that the body of common law at the heart of American jurisprudence is flexible and based on fundamental values of liberty and equality. "When judges look at the principles of why humans have basic rights, I think they’ll see that at least some nonhuman animals are entitled to rights for the same reason," Wise said in an interview. "To deny that is to be involved in arbitrary decision-making, which the common law frowns upon."

Wise points out that judges may be conservative, but so are the arguments he’s making. "These values already exist," he says. Wise adds that any judge’s decision in favor of animals having rights is likely to be appealed, and that he’s really aiming to be heard on the appellate and state supreme court levels. His chances to succeed in the high courts, he believes, are enhanced by changes in public values (including a growing awareness of primate intelligence) and new scientific findings.

A major problem in making progress with animal rights law is the question of "standing" in the courts. Animals cannot generally be plantiffs in lawsuits. But Wise argues that the law makes many exceptions already. "Most judges already know that under the law as it stands, membership in any species is not enough by itself to entitle any being to legal personhood," he says. "It is the dignity that derives from the ability to wield what I call a ‘realistic, or practical autonomy’ that is sufficient. Once any one legal right is given to any one nonhuman animal, the legal inquiry for basic rights can begin to shift from the question of ‘are you a human being?’ to ‘do you have the necessary realistic autonomy?’ The best initial candidate species, I believe, are the great apes, particularly chimpanzees and bonobos."

Steve Ann Chambers, president of the Animal Legal Defense Fund (ALDF), points out that ships, municipalities, trusts and, increasingly, multinational corporations (through what Kalle Lasn describes in Culture Jam as "their own global charter of rights and freedoms, the Multinational Agreement on Investment"), have the standing in the courts that is denied to animals. "We need to expand legal rights beyond humans," she says, adding that the law as currently written refuses animals legal standing, but also makes it nearly impossible for human plantiffs to have standing on their behalf. Chambers points to a case in which ALDF sued the U.S. Department of Agriculture (USDA) for three counts of violating the Animal Welfare Act. "The lower court upheld our contention that violations had occurred," she says, "but when the government appealed, assisted by the biomedical industry, the appellate court said that ALDF had no standing."

A similar case involving Barney, a 19-year-old chimpanzee held by the Long Island Game Farm, had a bittersweet resolution. ALDF sued the USDA on behalf of Marc Jurnove, a frequent visitor to Barney who was disturbed by his isolation and neglect (contrary to 1985 provisions of the Animal Welfare Act that call on the agency to protect primates’ "psychological well-being"). U.S. District Judge Charles Richey agreed that Barney had been abused, and he chided the USDA for not creating enforceable statutes for roadside zoos.

The government appealed, and it was during that process, in 1996, that Barney apparently got tired of waiting for justice. He fled his cage when someone forgot to lock it, scaled a seven-foot fence and was promptly dispatched with a shotgun. Three years later, there was finally a ruling in Barney’s case: The appeals court reversed Richey’s order to create new regulations, but it upheld Jurnove’s right to be involved in the case. According to Joyce Tischler, executive director of ALDF, Jurnove won what is called "aesthetic standing," similar to the right people have to sue their local park because they’re upset by the poor conditions of a scenic overlook. "We’re trying to create incremental changes in the law," she says.

For Regan, professor emeritus at North Carolina State University and author of the new book, Empty Cages: The Future of Animal Rights, animals should have the right to bodily integrity, freedom to live their lives according to their own needs and the overall right to life. "Unfortunately," he says, "we haven’t made any real progress in achieving standing for animals in the legal system. We’re still in a situation where you have to argue that something constitutes cruelty, which is very hard to prove. If you look at how the Animal Welfare and Humane Slaughter Acts work and are applied, it’s just a farce. It’s reminiscent of previous decades, when women and blacks couldn’t get court standing."

Paul Waldau, who teaches the Harvard course in animal rights law previously taught by Wise, quotes Will Rogers as saying, "People who love sausage and respect the law should never watch either being made," and he describes the latter as "an ugly process dominated by monied interests." One of the biggest barriers to reform for lab animals is the National Institutes of Health (NIH) which, he says, "is not about to lose its right to use animals like chimpanzees in research. The NIH is opposed to even the most reasonable improvements." Chimpanzee language pioneer Roger Fouts says some arrogant scientists think of apes as "hairy test tubes."

Will overturning centuries of human dominion over animals be difficult? Wise admits it will be, but he notes that slavery was as deeply ingrained in the collective consciousness and that while it took a civil war to dislodge it in the U.S., in England it was overturned not by swords but by well-honed fountain pens, in the courts.

Dominion author Matthew Scully agrees with Wise that the great apes may be the best starting place to establish legal rights for animals. "There’s a certain logic to that," he says from the Bush White House, where he resumed speechwriting duties last December. Scully believes that existing laws already enshrine some protections for pets. "The law has some contradictions in regarding your dog as property, but also allowing that same dog to be the victim of crimes, including felonies," he says. "The law places moral boundaries around that animal, and makes some moral claims around it. That limits your rights of property and defines you as the animal’s guardian." Scully believes that the law may eventually set aside the entire concept of animals as property and replace it with the legal guardian status implied in the anti-cruelty statutes.

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