Letter #1 from the Front Lines of the Struggle for Nonhuman Rights: the First 50 Months
By NhRP President Steven M. Wise
As much of the work of the Nonhuman Rights Project is litigation, journalists often report our story in a binary way. We “lost.” We “won.” But merely reporting whether we win or lose any particular case, or five, or ten, fails to capture the enormity, complexity, and range of the struggle that the NhRP has begun. Its object is to attain legal personhood and those fundamental legal rights for nonhuman animals to which generally accepted principles of justice entitle them. The decisions of individual courts in the United States and throughout the world along the way merely “can help or hurt, but their power to do so is dwarfed by impersonal forces” that are strong and growing.¹
For more than 2,000 years, Western law has bifurcated all entities either into “persons” with the capacity for legal rights, or “things” that lack that capacity. Nonhuman animals have always been legal “things.” But many people don’t realize that for most of those two millennia millions of human brings were also legal “things” who attained personhood only after protracted struggles both inside and out of courtrooms. The manner in which personhood was finally established in the courtroom is a model for the NhRP’s work.
Edith Hamilton, arguably the premiere classical scholar of the mid-20th century, reminded us of the first turning point in the struggle to abolish human slavery. The words she used to describe the status of human slavery in Ancient Greece resonate within the modern legal rule that excludes all nonhuman animals, even such cognitively complex and autonomous beings as chimpanzees, elephants, and orcas, from eligibility for even the most fundamental legal rights: “When the Greek achievement is considered, what must be remembered is that the Greeks were the first to think about slavery. To think about it was to condemn it and by the end of the second century, two thousand years before our Civil War, the great school of the Stoics, most widely spread of Greek philosophies, was denouncing it as an intolerable wrong.”² The “personhood” of all human beings has now been won; everywhere, human slavery is an international crime. It is now time to turn to another intolerable wrong, the continuing rightlessness of all nonhuman animals.
An initial task of the NhRP is to encourage judges, for the first time, then persistently, to begin to think about the injustice of the legal thinghood of all nonhuman animals, for to think about their thinghood, their rightlessness, is to condemn it as well. For those who have never thought it possible, the required psychological shift must begin with being able to imagine that an entity that has long been considered a legal “thing” can possibly be seen as a legal “person.”
Those of us who work at the NhRP understand what Churchill meant when, after the British finally triumphed over the Nazis at El Alamein, he said that, “It is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning,” for “the end of the beginning” is the initial goal of the work of the Nonhuman Rights Project. For us “the end of the beginning” is helping judges to imagine at least some nonhuman animals not as the legal “things” they have always been, but as the legal “persons” they are becoming, then to persuade those judges to establish their legal personhood. Then the road to fundamental legal rights for at least those nonhuman animals will open and the struggle will shift from the “end of the beginning” to the “beginning of the end” of the automatic legal thinghood of every nonhuman animal and on to the fleshing out of the specific rights to which justice entitles them.
How can we accomplish this “end of the beginning”? The NhRP prepares to litigate its cases by studying the fundamental values and principles, usually including liberty, autonomy, equality, and fairness, along with rational and nonarbitrary decision-making that the courts of a target jurisdiction claim constitute justice. We then gather every relevant scientific fact from the most-respected experts in their fields and fashion our legal arguments in favor of the personhood of our nonhuman animal clients in terms of those fundamental values and principles. Our approach leaves courts with four possible responses.
First, courts can deny that liberty, autonomy, equality, and fairness, along with and rational and nonarbitrary decision-making are actually the fundamental values and principles that constitute justice. This response has the benefit of allowing the NhRP to file new lawsuits that invoke the correct values and principles if it has erred. But no American court has done this.
Second, courts can actually apply their stated fundamental values and principles of justice to the claims brought on behalf of nonhuman animals and recognize their personhood and legal rights. No American court has yet fully done this, either, though one New York trial court came close,³ and it has been accomplished in Argentina⁴ and perhaps India.⁵
Third, courts can narrow some, or all, of their fundamental values and principles of justice by insisting ad hoc that they apply to all, but only, human beings. But this approach undermines “justice” as the courts themselves define it. This may not in the short term have serious consequences for humans though, as we shall see, it may. But because, as Martin Luther King, Jr. noted, “Justice denied anywhere diminishes justice everywhere,” the negative effects of this ad hoc undermining of the rationale for the fundamental rights of nonhuman animals will inevitably severely undermine the rationale for fundamental human rights as well. Ironically it is perhaps only when this occurs that real legal change for nonhuman animals will begin.
American courts have not infrequently passed through periods in which they initially undermined their own fundamental values and principles rather than acknowledge their application to entities long excluded from justice.
They once limited legal personhood and legal rights to white people, and refused to grant them to black people, whom the United States Supreme Court once referred to as “beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit.”⁶ Courts refused to grant rights to Chinese people, with the California Supreme Court calling them “a race of people whom nature has marked as inferior, and who are incapable of progress or intellectual development beyond a certain point, as their history has shown.”⁷ Courts limited certain legal rights to heterosexuals, and refused to grant them to gays, with the United States Supreme Court permitting sodomy to be criminalized.⁸ And courts limited personhood and legal rights to men, and refused to grant them to women.⁹
For example, when Miss Lavinia Goodell tried to become a lawyer in 1886, the Supreme Court of Wisconsin refused her request solely because she was a woman stating that ”(t)he law of nature destines and qualifies the female sex for the bearing and nurture of the children of our race and for the custody of the homes of the world and their maintenance in love and honor. And all life-long callings of women, inconsistent with these radical and sacred duties of their sex, as is the profession of the law, are departures from the order of nature; and when voluntary, treason against it.” That court seemed oblivious to the irony of its footnote that Goodell’s lawyer had told them that it was she who had actually written his appellate argument.¹⁰ It ended its decision by stating that, “(i)f, as counsel threatened, these things are to come, we will take no voluntary part in bringing them about.”¹¹ It didn’t matter. That decision, and others like it, would soon be overwhelmed by the “impersonal forces” pushing for equal rights for women from many directions.
Today some courts are again undermining their own fundamental values and principles of justice by limiting legal personhood and legal rights to humans and refusing to grant them to any nonhuman animals, no matter how complex their cognitive abilities are, and no matter how similar to human cognition their cognitive abilities may be. Faced with the NhRP’s claim that imprisoned autonomous nonhuman animals are entitled to the fundamental right of bodily liberty protected by the common law writ of habeas corpus, courts have dismissed our cases on grounds that would be questionable even if, as had Lavinia Goodell, the nonhuman animals themselves had written our appellate argument.
Perhaps the most unfortunate way in which a court undermines its own fundamental values and principles of justice is when it grounds its decision wholly upon an implicit or explicit bias. As I have written elsewhere:
Present judges have been raised in a culture that pervasively views all nonhuman animals as “things.” As are most of their fellow citizens, most judges are daily and routinely involved in the widespread exploitation of nonhuman animals, eating them, wearing them, hunting them, and engaging in other of the numerous exploitive ways that the culture has long accepted. When thinking about humans, different clusters of neurons are subconsciously triggered depending upon the degree to which one identifies with the subject. Imagine how differently a judge is likely to view even such a close relative to humans as a chimpanzee.
Present judges are therefore likely, automatically and unconsciously, to be biased against the personhood arguments the NhRP presents — just as they are likely to be biased about race, gender, sexuality, religion, weight, age, and ethnicity — because “our minds have been shaped by the culture around us. In fact they have been invaded by it.” We therefore expected to encounter puzzling and diverse judicial reactions to our early cases. We were not disappointed.¹²
One New York appellate court dismissed the NhRP’s habeas corpus case on behalf of a captive chimpanzee named Tommy on the ground that personhood could be bestowed only upon one who has the capacity to shoulder not just rights, but also duties. The NhRP argued that a “person” was an entity able to possess rights OR duties, not rights AND duties. But the Court claimed that the principle of “social contract” poses an impassable barrier to rights for nonhuman animals. Why? Because it requires “(r)eciprocity between rights and responsibilities” and that “society extends rights in exchange for an express or implied agreement from its members to submit to social responsibilities.”¹³
But the United States Supreme Court has noted that the social contract is “one of the great juristic myths of history.”¹⁴ And humans who are expressly excluded from any “social contract,” if such a thing exists, such as black people two centuries ago, and aliens, including those imprisoned at Guantanamo, have received the right to habeas corpus.¹⁵ Most seriously, the court waved away the obvious problem that millions of New Yorkers, infants, children, the severely cognitively disabled, and others cannot actually bear duties, yet have legal rights. It wrote, “(t)o be sure, some humans are less able to bear legal duties or responsibilities than others. These differences do not alter our analysis, as it is undeniable that, collectively, human beings possess the unique ability to bear legal responsibility. Accordingly, nothing in this decision should be read as limiting the rights of human beings in the context of habeas corpus proceedings or otherwise.”¹⁶
The court further relied upon an obviously incorrect definition of “person” found in Black’s Law Dictionary that stated that persons had to be able to bear rights AND duties.¹⁷ When the NhRP brought this error to the attention of the Editor-in-Chief of Black’s Law Dictionary, he immediately acknowledged it and informed us that the next edition of Black’s Law Dictionary would carry the correct definition, which is that a “person” is an entity with the capacity to possess rights OR duties.¹⁸ In other words, one need NOT have the capacity to bear duties in order to be the beneficiary of rights. But perhaps of greatest concern is that the court never said why the ability to bear legal responsibilities should have anything whatsoever to do with whether an autonomous being, such as a chimpanzee, should have the fundamental right to bodily liberty that habeas corpus was created to protect.
When the NhRP filed a motion imploring the next New York appellate court it faced merely to read the correspondence between the NhRP and the Editor-in-Chief of Black’s Law Dictionary so it would not make the same mistake, it denied the motion, refused to read the correspondence, and made the same mistake.¹⁹ This required the court to ignore the unrebutted evidence the NhRP presented that chimpanzees are autonomous beings who also routinely demonstrate their capacity to bear duties both in chimpanzee communities and in chimpanzee-human communities, though we argued that this was unnecessary for habeas corpus personhood. When we pointed out, again, that millions of New Yorkers lack the capacity to bear duties, but still possess fundamental rights the court replied that “(t)his argument ignores the fact that these are still human beings,” again without offering a clue as to why that fact must necessarily lead to the conclusion that chimpanzees may not possess the fundamental right to bodily liberty protected by a common law writ of habeas corpus.²⁰
Similarly, a Connecticut trial court ignored the mass of unrebutted evidence the NhRP presented that elephants are autonomous beings and dismissed our habeas corpus claim that they were entitled to the fundamental right to bodily liberty because our argument was “rel(ying) on basic human rights of freedom and equality” without further explanation as to why that could possibly be significant.²¹
These sorts of “distinctions without differences” ignore the fact that the demands for personhood and legal rights of black people, Chinese, and other marginalized and exploited humans who courts may view as non-white necessarily relied upon the pre-existing basic rights of white humans, that the demands of women for personhood and legal rights necessarily relied upon the pre-existing basic rights of men, and the demands of gays necessarily relied upon the pre-existing basic rights of heterosexuals. Similarly, the demands of nonhuman animals for personhood and legal rights must necessarily rely upon the pre-existing basic rights of human animals.
Courts however sometimes see that being required to endure the incessant frustration of their most fundamental interests causes nonhuman animals to suffer terribly. Judicial consciences may seek to be eased by accepting arguments sometimes made by respondents and amicus curiae that the existing patchwork of anti-cruelty statutes and unenforceable welfare regulations are adequate to protect nonhuman animals’ fundamental interests or can somehow be made adequate. That Connecticut trial court pointed to that state’s cruelty to animals statutes “as a potential alternative method of ensuring the well-being of any animal.”²² A New York appellate court noted that “(o)ur rejection of a rights paradigm for animals does not, however, leave them defenseless” for existing statutes state they can’t be tortured, unjustifiably killed, abandoned in a public place, or transported in cruel or inhumane ways.”²³
But these kinds of statutes and regulations are plainly inadequate and their inadequacy can never be remedied, for they were enacted not to protect the well-being of nonhuman animals, but rather to regulate the manner in which we humans exploit them. All history demonstrates that even the most fundamental interests of humans can never be adequately protected without legal rights. It is no different for nonhuman animals.
The United States Supreme Court has sometimes sought to assuage its conscience in social justice cases where their rulings preserved an unjust status quo. Holding that a state could separate the races on railway cars, the Court stated that “(a) statute which implies merely a legal distinction between the white and colored races — a distinction which is founded in the color of the two races, and which must always exist so long as white men are distinguished from the other race by color — has no tendency to destroy the legal equality of the two races” and that “the underlying fallacy of the plaintiff’s argument … consisted in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.”²⁴
It would take another fifty-eight years of injustice before that same court would made clear what everyone always knew was true, separate is inherently unequal and the problem is not that black people consider themselves inferior.²⁵
Fourth, some courts don’t want to think about the thinghood of all nonhuman animals at all and accordingly dismiss our cases without assessing the merits of our claims, or hearing our arguments, to the point of ignoring their own rules in their determination to refuse personhood to nonhuman animals.
That Connecticut trial court said the NhRP lacked standing to bring its case on behalf of three elephants forced to work in a traveling circus because it had failed to explicitly allege that they had no “significant relationship” with any individual who could file their habeas corpus case against their jailers, as if that fact was not obvious.²⁶ In an extraordinary observation, the court also noted that “it is the respondents who are more akin to parents of Beulah, Minnie, and Karen.”²⁷ The respondents, of course, are the elephants’ masters who purchased them decades ago and have economically exploited them ever since.
In New York the issue of avoiding reaching the merits of our claims has primarily taken the form of attempting to interfere with our right to appeal. When one New York trial court illegally refused to rule on a motion necessary to allow us to appeal, we sought an unusual “writ of mandamus,” which asks a court to order a public official to do his public duty, and demanded that the appellate court order the lower court to rule on our motion.²⁸ Within a week that appellate court set a hearing date on our mandamus request and we appeared as the cover story in that week’s Sunday New York Times Magazine. Suddenly the lower court allowed our appeal to proceed.
Another New York appellate court dismissed our appeal almost as soon as we had filed it, without seeking briefing or hearing, on the erroneous ground that we had no right to appeal.²⁹ We decided not to appeal, but to refile that claim elsewhere. But when a second appellate court refused our appeal as of right, we filed a motion demanding that it grant us the right to appeal to which we were entitled. After our motion was denied by a single justice, we sought a rehearing. When that was unanimously denied by a five-judge panel, we brought another writ of mandamus, this time not in a higher court but in that same appellate court, demanding that it order itself to do its duty and hear our appeal as a matter of right. Only then did the court concede to the NhRP the right to appeal it had always had.³⁰
More than half of all trial courts in the jurisdictions in which the NhRP has filed suit have refused even to grant us a hearing. The Connecticut trial court said our case was frivolous, and therefore did not merit a hearing, simply because no one had ever brought such a case before.³¹ A New York appellate court dismissed our case saying our chimpanzee client could not properly invoke the writ of habeas corpus because his remedy would merely be removal from one place of confinement (living alone in a cage in a Niagara Falls storefront) to another place of confinement (living on a five-acre island in South Florida with two dozen other chimpanzees), as if the court would have ruled in our favor had we petitioned to have him be released into Times Square.³² When this issue arose during oral argument, I rattled off one case after another in which humans had been moved from one place of confinement to another pursuant to a common law writ of habeas corpus, until the questioning judge said, “Okay, okay we get it!” But they didn’t get it and in not getting it they narrowed the availability of habeas corpus so as to exclude those humans wrongly detained in one place of confinement who should be living in some other, less confining, place.
Even when demands for legal change are based upon scientific discovery, evolution in morality, and good public policy, as are the NhRP’s demands, they inevitably encounter strong headwinds at the beginning, for no legal exploitation that has existed for two millennia is going to be dissolved without a titanic struggle. The long and painful struggle for the personhood and legal rights of human slaves, women, children, gay people, and other traditionally disenfranchised human groups demonstrate that catalyzing a gestalt shift from “thing” to “person” will demand a clear and unshakeable long-term strategy, smart and flexible tactics, effective networking, a broad political base, and perhaps most importantly, sheer persistence in the face of multiple rejections.
The work of the NhRP today then is to persist in catalyzing judicial imaginations by bringing scientific discovery to their attention, and in giving the courts opportunities to vindicate their own proud ideals of justice by recognizing that at least some nonhuman animals — certainly those the NhRP’s experts can prove are autonomous — should be legal persons entitled to such basic fundamental rights as bodily liberty and bodily integrity.
In its struggle for nonhuman rights, which remains in its early years, the NhRP’s real stories will not be, did we ”win,” or did we ”lose” any case or series of cases. Instead its stories will mirror those that tell how humans so long excluded from justice found champions determined to fight on their behalf and how they harnessed the impersonal forces of their time and won. The NhRP’s stories, like theirs, will be tales of fights to win the battles and of the numerous skirmishes that rage within every social justice lawsuit that are not so easily apparent, but often determine outcomes, of victories to savor and lessons to learn from defeats, but most of all, of persistence. From such is history made.
Steven M. Wise began his mission to gain rights for nonhuman animals in 1985. He holds a J.D. from Boston University Law School and a B.S. in chemistry from the College of William and Mary. He has practiced animal protection law for four decades and is admitted to the Massachusetts Bar. Professor Wise taught the first class in “Animal Rights Law” at the Harvard Law School and has taught “Animal Rights Jurisprudence” at the Stanford Law School, as well as the University of Miami, St. Thomas, and John Marshall Law Schools, and is currently teaching “Animal Rights Jurisprudence” at the Lewis and Clark Law School and Vermont Law School. He is the author of four books: Rattling the Cage — Toward Legal Rights for Animals; Drawing the Line — Science and the Case for Animal Rights; Though the Heavens May Fall — The Landmark Trial That Led to the End of Human Slavery; and An American Trilogy — Death, Slavery, and Dominion Along the Banks of the Cape Fear River. His TED TALK from the TED2015 Conference in Vancouver, Canada was released in May of 2015, and has over one million views.
[1] Rivka Galchen, “Pickering called,” London Review of Books 27 (October 5, 2017) used this phrase to refer to the power of both a friend and a foe to affect the ability of qualified women to become astronomers in the late 19th Century.
[2] Edith Hamilton, The Echo of Greece 24 (1964).
[3] In the Matter of a Proceeding Under Article 70 of the CPLR for a Writ of Habeas Corpus, The Nonhuman Rights Project, Inc. ex rel. Hercules and Leo v. Stanley, 16 N.Y.S. 3d 898 (Supr. Ct. 2015).
[4]In re Cecilia, Third Court of Guarantees, Mendoza, Argentina, File No. P-72.254/15. English translation available at: https://www.nonhumanrights.org/content/uploads/2016/12/Chimpanzee-Cecilia_translation- FINAL-for-website.pdf.
[5] See Vishrut Kansal, “The curious case of Nagaraja in India: Are animals still regarded as ‘property’ with no claim rights?”, 19(3) J. of Inter. Wildlife L. & Policy 256 (2016); https://doi.org/10.1080/13880292.2016.1204885, commenting upon Animal Welfare Board of India vs. Nagaraja., Civil Appeal №5387 of 2014.
[6] Dred Scott v. Sandford, 60 U.S. 393, 407 (1857).
[7] People v. Hall, 4 Cal. 399, 404 (1854).
[8] Bowers v. Hardwick, 478 U.S. 186 (1985).
[9] In re Goodell, 39 Wis. 232, 246 (1875).
[10] Id. at 233.
[11] Id. at 232.
[12] Steven M. Wise, “Introduction to Animal Law Book,” 67(1) Syracuse L. Rev. 7, 13–14 (2017) and footnotes 37–41). See generally Mahzarin R. Banaji & Anthony G. Greenwald, Blindspot (2014) and Project Implicit, https://implicit.harvard.edu/implicit/ (last viewed on January 14, 2018).
[13] People ex rel. Nonhuman Rights Project, Inc. v. Lavery, 124 A.D.3d 148, 151 (3d Dept. 2014), leave to appeal den., 26 N.Y.3d 902 (2015).
[14] Federal Power Commission v. Natural Gas Pipeline Co. of America, 315 U.S. 575, 605 note 6 (1942).
[15] Jackson v. Bulloch, 12 Conn. 38, 42–43 (1837); Rasul v. Bush, 542 U.S. 466, 481, 482, and note 11.
[16] People ex rel. Nonhuman Rights Project, Inc. v. Lavery, 124 A.D.3d at 152 note 3. See Steven M. Wise, “A New York Appellate Court Takes a First Swing at Chimpanzee Personhood. And Misses,” 95(1) Denver L. Rev. 265 (2017).
[17] People ex rel. Nonhuman Rights Project, Inc. v. Lavery, 124 A.D.3d at 153.
[18]https://www.nonhumanrights.org/media-center/04-11-17-media-release-blacks-law/
[19] Nonhuman Rights Project ex rel Tommy v. Lavery, 152 A.D. 3d 73 (N.Y. 1st D2017).
[20] Id. at 78.
[21] Nonhuman Rights Project ex rel. Beulah, Minnie, & Karen v. R.W. Commerford and Sons, Inc. 12, (Docket No. LLI-CV-17–5009822-S December 26, 2017)(the emphasis is the court’s).
[22] Nonhuman Rights Project ex rel. Beulah, Minnie, & Karen v. R.W. Commerford and Sons, Inc. 12 (Docket No. LLI-CV-17–5009822-S December 26, 2017).
[23] People ex rel. Nonhuman Rights Project, Inc. v. Lavery, 124 A.D.3d 148, 152–153 (3d Dept. 2014), leave to appeal den., 26 N.Y.3d 902 (2015).
[24] Plessy v. Ferguson, 163 U.S. 537, 543, 551 (1896)
[25] Brown v. Board of Education, 347 U.S 483, 495 (1954).
[26] Nonhuman Rights Project ex rel. Beulah, Minnie, & Karen v. R.W. Commerford and Sons, Inc. 12 (Docket No. LLI-CV-17–5009822-S December 26, 2017).
[27] Nonhuman Rights Project ex rel. Beulah, Minnie, & Karen v. R.W. Commerford and Sons, Inc. 6 (Docket No. LLI-CV-17–5009822-S December 26, 2017)(emphbasis by the court).
[28] Verified Petition, Nonhuman Rights Project, Inc. ex rel. Kiko v. Boniello, Nos. OP 14–00791, 151725/2013 (N.Y. App. Div. 4th Dep’t Apr. 24, 2014).
[29]Nonhuman Rights Project, Inc. ex rel. Hercules v. Stanley, Nos. 2014–01825, 32098/2013, 2014 WL 1318081, at *1 (N.Y. App. Div. 2d Dep’t Apr. 3, 2014).
[30] Motion Decision, Kiko, Nos. M-4175A, 150149/16 (N.Y. App. Div. 1st Dep’t Nov. 10, 2016). The mandamus petition was withdrawn as moot following the decision of the First Department on Nov. 10, 2016. For the full text of the mandamus petition see: http://www.nonhumanrightsproject.org/2016/11/01/new-petition-filed-on-behalf-of-kiko-in-new-york/.
[31] Nonhuman Rights Project ex rel. Beulah, Minnie, & Karen v. R.W. Commerford and Sons, Inc. 12, (Docket No. LLI-CV-17–5009822-S December 26, 2017).
[32] Nonhuman Rights Project, Inc., ex rel. Kiko v Presti, 124 A.D.3d 1334 (4th Dept. 2015), leave to appeal den., 126 A.D. 3d 1430 (4th Dept. 2015), leave to appeal den., 2015 WL 5125507 (N.Y. Sept. 1, 2015).
