Lawyer Steven Wise was first introduced to the ideas of animal rights and animal personhood by reading philosophy books. He soon realized, however, that philosophers and lawyers mean different things when they talk about rights and personhood. While he agrees with the moral arguments for animal rights based on sentience, his goal is to make a legal case for animal rights, and judges aren’t interested in moral philosophy.

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Wise is the founder of The Nonhuman Rights Project, which describes itself in the following way.

The Nonhuman Rights Project is the only civil rights organization in the United States working to achieve actual LEGAL rights for members of species other than our own.

Our mission is to change the legal status of appropriate nonhuman animals from mere “things,” which lack the capacity to possess any legal right, to “persons,” who possess such fundamental rights as bodily integrity and bodily liberty.

By bodily liberty, they mean the right not to be imprisoned or enslaved, and by bodily integrity, they mean the right not to be physically harmed by anyone.

The clients of the Nonhuman Rights Project are nonhumans kept in cages and exploited by humans. Their current goal is to get at least one judge in a common law court to recognize one nonhuman animal as a legal person rather than a legal thing.

The Common Law Approach

In common law countries, more law is made by judges in courtrooms than by legislatures, though legislative law can override common law. Common law is not meant to be static and as the world changes and the views of people change, laws change. In cases where there is no legal precedent (past decision by a court on a similar issue), judges can create new law based on the legal principles and values that they are already guided by.

The Nonhuman Rights Project didn’t want to argue in federal courts because the job of federal courts is to interpret existing law, not make it. They tend to look at the intentions of the people who made laws. Wise points out that they’ll ask something like, “Was the intention that chimpanzees should be considered persons?” and they’ll find that it clearly was not. Similarly, the Project doesn’t want states to be interpreting state constitutions or statutes.

In the USA, there are 50 sovereign states that each have their own court systems. 49 states and the District of Columbia use common law. Louisiana uses some common law but their law system is derived more from Spanish and French law. Since common law courts make law, lawyers can keep pushing on common law judges until they get the intended result.

Steven Wise gives the example of an activist lawyer in England in the 18th century who kept bringing cases before the same judge, Judge Mansfield, to try to get him to rule against human slavery. In the case of James Somerset, a slave from the United States tried to claim his freedom under English common law. He was going to be sent to Jamaica to be worked to death within a few years. Judge Mansfield was sympathetic but was reluctant to decide the case. He wanted the parties to settle, but both sides wanted him to make a ruling that would set a precedent. He found the case, and slavery in general, to be so odious that he ruled that the common law would not support it. He realized there would be a huge backlash and enormous economic consequences, and he famously said, “Let justice be done, though the heavens may fall,” and in 1772 he ordered Somerset set free, which created a legal precedent for freeing other slaves in Great Britain.

Though there is the danger of past rulings against them serving as legal precedents that hurt their future cases, they can also lose a case overall but win on certain legal points that can help their future cases.

How Does Common Law Work?

Although common law is less static than legislative law, it’s commonly believed that judges are bound by legal precedent – past decisions made by judges in similar cases. Some judges do view their role that way and strictly enforce legal precedents. If they encounter a truly unique case, then they can themselves set precedents. Some judges are more reluctant to set precedents than others, especially in lower courts.

However, Steven Wise points out that not all judges are so conservative in their interpretation of their role. Some judges take a broader view of the law and see their role as more actively ruling based on general principles and the prevailing values of the time. Moral views change and develop over time, and the law can and does reflect that.

Before the mid-19th Century American Civil War, Lemuel Shaw, one of America’s greatest common law judges, thought it consisted “of a few broad and comprehensive principles, founded on reason, natural justice, and enlightened public policy, modified and adapted to the circumstances of all the particular cases which fall within it.”

Once enough common law exists on a new issue, legislative law can follow and extend it further. It can also create laws the override the rulings of the courts.

Habeas Corpus

The Nonhuman Rights Project is seeking writs of habeas corpus for chimpanzees who are caged in zoos and research facilities. A writ of habeas corpus requests that a judge order a hearing to establish whether someone is unlawfully imprisoned.

The “corpus” in habeas corpus refers to a body and a writ of habeas corpus obligates the person who is imprisoning or detaining someone to produce “the body” in court and give a sufficient legal reason for their imprisonment. The writ of habeas corpus is considered one of the fundamental safeguards of a person’s liberty.

Legislative law can undo common law, so even if a case is won in a common law court, a state legislature can override it with a statute. However, they can’t interfere with a writ of habeas corpus. And once a writ of habeas corpus is issued, it implicitly acknowledges the imprisoned entity as a person.

So there are three reasons why this a such a powerful strategy:

It concerns liberty, which is a fundamental right that doesn’t require any responsibilities.
A writ of habeas corpus doesn’t guarantee someone’s freedom, but it effectively acknowledges them as a legal person, though technically a judge can order a writ of habeas corpus without the prior establishment of personhood.
A state legislature cannot interfere with writs of habeas corpus.

The Nonhuman Rights Project Goals

Win at Least One Right for at Least One Nonhuman Animal

The primary goal of the Nonhuman Rights Project currently is to win at least one right for one nonhuman animal. Steven Wise points out that a legal person is not even necessarily a rights holder but a “rights container” even if they have no rights yet. So the first goal is to establish a nonhuman animal as a person, and then to show that as persons they should at the very least have the rights to bodily liberty and bodily integrity (the right not to be assaulted and battered). Basically, these rights protect persons against being enslaved or imprisoned without just cause and against being tortured.

Where Do Rights Come From?

In order to find the best strategy to win rights for nonhuman animals, Wise spent years reading and researching to try to figure out where rights really come from. He looked at the arguments that others have made, and adopted the Somerset case as a blueprint because it shows that a person does not necessarily mean a human. It was only after Judge Mansfield’s historic ruling that slaves were considered persons and not property, and it wasn’t until the 19th century that Black people and Native Americans were recognized as persons in the United States. Women and children weren’t always considered legal persons, either.

The Somerset case doesn’t just have similarities to the case for nonhuman animal rights. The common law of England was adopted by the US in 1776 and that includes the Somerset case, so it’s a precedent as well of a writ of habeas corpus being issued for someone who had property status.

In looking through more recent common law in the USA, Wise looked for the fundamental principles and values that judges already hold. He believes he can make a strong argument that if they are going to be consistent, judges have to consider what it is that makes someone a person rather than simply saying only humans can be persons. It wasn’t always assumed that all humans were persons. That had to be established by law. And there are other entities that are legal persons, like corporations.

As he researched for years, liberty and equality were the two things that kept showing up in state constitutions and legal decisions. Liberty rights are based simply on who someone is or what qualities they have, and are not comparative, like equality rights.

Equality rights are based on showing that someone is similar in relevant ways to someone else who has a particular right. Wise believes that once he gets liberty rights established for apes, it will be possible to win equality rights for other animals by showing that they have the same relevant qualities as apes.

Autonomy is Sufficient but Not Necessary for Fundamental Rights

One quality used by courts to establish personhood is autonomy. A human does not have to be autonomous to be considered a person, but autonomy is sufficient to establish that someone is a person.

In a talk he gave in 2014 (see below), Steven Wise talks about how courts consider autonomy as a condition for personhood, yet clearly non-autonomous humans are legal persons, like children and people who are cognitively disabled. He describes the way courts use legal fictions to consider non-autonomous humans as legal persons. They simply pretend they are autonomous and then bring in a legal guardian to make decisions for them. Wise points out that the courts “tie themselves up in knots” by appointing a guardian to decide what the non-autonomous person would want if they were autonomous and understood their own non-autonomous state.

Wise explains that courts don’t say human beings have rights but that it is based on certain characteristics. He questions judges, “Tell me what is it about a human being, and I’ll tell you a chimpanzee has it too… the only difference is that chimpanzees are not human beings,” and in fact there are chimpanzees who have those qualities to a greater degree than some humans.

Chimpanzees have been shown to understand the past, plan for the future, and carry out plans that will help them in the future. He gives the example of a chimpanzee in a Swiss zoo who hates being gawked at, so every morning he gathers stones and hides them, and later in the day when people come and stare at him, he throws rocks at them. Wise points out the implications for the ability of apes to suffer: “they can imagine the future and it looks terrible.”

Wise emphasizes that autonomy is a sufficient but not necessary condition for establishing personhood, since plenty of non-autonomous humans are legal persons. He says that the courts may stop with autonomous beings, but could go further into the animal kingdom if he can establish equality rights.

A Civil Rights Issue, Not a Property Issue

The success of the cases depend on establishing them as civil rights issues, not property issues, which would only allow the lawyers to bring cruelty charges but still leave the chimpanzees as property that their owners could use for their own purposes.

It’s clear that legal person is not synonymous with human beings, and Wise says his arguments are differences in degree and not in kind than ones that have already been used in court, and are based on principles and arguments that are already accepted and used by judges. He considers his approach fairly conservative.

Since apes possess the characteristics that are used to determine autonomy in humans (and the Project has stacks of affidavits from primate experts to prove it), not recognizing apes as persons is simply discrimination because they are not humans.

Species is an irrelevant characteristic just as skin color, gender, religion, and sexual orientation are. This is not only a moral argument but a legal one that can be backed up by case law.

The Cases

There are 50 sovereign states in the USA, and the Nonhuman Rights Project analyzed thousands of decisions in the 50 states, including how habeas corpus was handled, to try to find the most favorable states. They also had a team of sociologists put together profiles of what sorts of judges would be most likely to be sympathetic. They chose New York because it was one of the most favorable states and it had numerous apes in captivity.

They also considered cetaceans and elephants, animals held in captivity that have also been extensively studied and found to be similarly cognitively complex to apes. However, they figured that since apes have the kind of intelligence most similar to that of humans, they would likely evoke more sympathy.

They simultaneously filed writs of habeas corpus for three cases of chimpanzees imprisoned in zoos or research facilities. They expected to lose the cases, but planned to appeal and hoped that appellate courts might be more favorable than lower courts. But to get to the appeals courts they first had to bring cases in the lower courts.

The Responses of Judges

In all cases, they lost immediately. One judge refused to even hear the case, and the other two said they were not going to issue the writ because chimpanzees are not persons.

One of the judges in Niagara Falls who allowed a hearing was impressed by the arguments and evidence, and he was sympathetic but said he was not going to be the first person to do it. He felt that was something he should be told by a higher court. He said he loved animals, and helped them make their appeal to a higher court as strong as possible.

The writ that was unwrit

In April of 2015, Judge Barbara Jaffe made headline news when she issued a writ of habeas corpus for Hercules and Leo, two chimpanzees held captive at a university research facility. It was considered a huge step forward, since it effectively acknowledged them as legal persons. A few days later, she backtracked and struck out the word “habeas corpus” from her ruling, but she did make an important ruling in finding that the lawyers had legal standing to bring the case on behalf of the chimpanzees and demand that their captors provide sufficient legal justification for keeping Hercules and Leo captive.

In her final decision, Jaffe said she accepted what the attorney general’s office told her, that she was bound by the decision of a New York appeals court in the case of Tommy, another chimpanzee represented by the Nonhuman Rights Project, in which it was ruled that chimpanzees could not be considered persons under the law. However, in her ruling she showed strong support for the case, and wrote,

that “persons” are not restricted to human beings, and that who is a “person” is not a question of biology, but of public policy and principle. “(T)he parameters of legal personhood have long been and will continue to be discussed and debated by legal theorists, commentators, and courts,” she wrote, ”and will not be focused on semantics or biology, or even philosophy, but on the proper allocation of rights under the law, asking, in effect, who counts under our law.”

She acknowledged that common law should evolve and that rights should not be determined based on who has held them in the past, but wrote that the courts were slow to make change and she was bound by the decisions of higher courts.

This year, a decision was made to send Hercules and Leo and hundreds of other chimpanzees to a sanctuary. It’s a positive move that his will help protect their bodily liberty and bodily integrity, though it does not change their legal status.

Breaking the Species Barrier

About a third of people in the USA believe that animals should have the same rights as humans according to a 2015 Gallup poll, but that isn’t even what The Nonhuman Rights Project is seeking. They are seeking animal rights – the rights for each species that are appropriate for members of that species. Those rights include some of the basic rights humans have, like the rights to bodily liberty and bodily integrity, but no one is arguing that nonhuman animals should have “human” rights, or all the same rights as humans.

The Nonhuman Rights Project believes that breaking the species barrier – winning even one right for one nonhuman animal – will pave the way for more rights for more species.

Animals as Persons: An Introduction to Animal Rights

Animals as Persons:What’s Sentience Got to Do With It?