Last week, BBC Radio 4’s legal affairs programme Unreliable Evidence, in its 47th episode, finally got round to the non-human animals. Given the numbers of these animals, vastly greater than the human population, and their vulnerability (a key concept in law) to cruel and fatal interferences by humans, this figure 47 is itself suggestive of the law’s complacent speciesism. However, the presenter, Clive Anderson, conceded at the start that animals “suffer in much the same way as we do”, and he invited four lawyers practising in this area to say whether the law was doing enough to recognize and address this fact.
Two of the lawyers act for organisations that promote field sports, farming, and other varieties of animal-use (the Countryside Alliance and the Country Land and Business Association). Naturally enough, then, they approve of the present law, based as it is on the principle that animals should be protected only from “unnecessary” suffering – that is, suffering which isn’t “proportionate to the purpose” to which humans are lawfully putting them (quotations from the Animal Welfare Act 2006). In such law, animals have no rights of their own; the question is only how absolute the rights of human beings over them shall be. “The idea that animals have a right to liberty”, said Jamie Foster, the lawyer from Countryside Alliance, “is fundamentally absurd”. Besides (he added, straying for his supporting evidence into Buddhist philosophy), “all life is suffering.”
The other two lawyers argued for a radical change in the law’s thinking: it should start conceding, to non-human animals, rights that are founded on their own interests, rather than simply reliefs from the more unreasonably demanding interests of humans. One of these two, Steven Wise, described the desired change for animals as a move from among “the things of the world” into their proper company among “the persons of the world”, and he is even now trying to achieve this change, for chimpanzees, in the courts of the United States. His voice was coming to the programme by telephone from the U.S.A., and it had something of the feel of a voice from the future. In fact when Clive Anderson wound up the discussion by asking him whether we might really be going to see chimpanzees and other animals winning, through the courts, that ‘right to liberty’ which Foster had ridiculed on their behalf, Wise’s voice enthusiastically replied “It’ll come! It’ll come!”
Two of the four chimpanzees which Wise is at present representing in the courts are called Hercules and Leo. They ‘belong’ to the University of Louisiana, but have been on loan (for one does lend “things”) to Stony Brook University for research purposes. The “proportionate” suffering of Hercules and Leo in that institution has consisted, during a period of six years, in repeated operations to insert electrodes into their muscles in pursuit of anatomical knowledge about early human locomotion. More essentially their suffering has involved near-solitary confinement throughout these years, and it’s this imprisonment which Wise has been asking the New York Supreme Court to declare unlawful. (Incidentally, the chimpanzees have recently been moved out of the New York jurisdiction and back to incarceration at the New Iberia Research Center in Louisiana, perhaps with a view to frustrating Wise’s case. His proposed destination for them is the Project Chimps sanctuary in Fannin County, Georgia.)
In statutory law, American or British, such imprisonment for non-humans is of course wholly permissible. They have no presumed right to liberty – rather the reverse, as Mr Foster confirms in the quoted comment. The claim for Hercules and Leo is therefore founded in so-called common law, whose terms of reference are much wider and more liberal. They do not only consist in a body of case-law – decisions and reasonings recorded in previous cases. They consist also in general principles of equity, derived from what the nineteenth-century American judge Lemuel Shaw summarized as “reason, natural justice, and enlightened public policy, modified and adapted to the circumstances of all the particular cases which fall within it.” “Natural justice and enlightened public policy”: animals might well hope that their claims to liberty would not seem “absurd” in such contexts. And the crucial instrument of liberation in the common law is the writ of habeas corpus, by which a person being detained by private or public force, or others acting on his behalf, may petition the courts to declare the detention unlawful. (The phrase habeas corpus means ‘produce the body’ – i.e. the writ directs the captor to bring their prisoner into court, at least figuratively, and show reason for the situation.)
It is with a writ of habeas corpus, then, that Steven Wise is even now before the courts on behalf of Hercules and Leo. And his key supporting reference is the decision made at Westminster in 1772 by Lord Chief Justice Mansfield in the case Somerset versus Stewart. Charles Stewart ‘owned’ a slave, James Somerset, whom he brought with him on a trip to England in 1771. Having made a break for freedom, Somerset was recaptured and chained up ready for return to Jamaica. But a writ of habeas corpus was issued on his behalf by a group of London citizens, and Lord Mansfield determined that Somerset’s slavery was “so odious” that the common law could not countenance it. Effectively he made slavery illegal in Britain on the grounds that it was morally objectionable, the very reason for which you or I might even then (we hope) have deplored it, and for which we certainly ought to do so now.
There was no precedent in law for Lord Mansfield’s decision; there was, indeed, a strong presumption against it, urgently represented to him by Stewart’s counsel in court. But as Steven Wise said to the Supreme Court of New York last year, speaking of Lord Mansfield and hoping to instil in the court something of that man’s independence and courage, “one of the reasons he’s such a great judge is that he understood that there’s a first time for everything.”
The writ of habeas corpus is the best hope for the unjustly imprisoned, and therefore pre-eminently for the slave. It must also then be the best hope for the non-human animal, because, so Wise re-iterated during the radio discussion, our relation to other animals at present is exactly a master-slave relation. Jamie Foster objected to this “constant use of the word slavery”, on the curiously pre-Darwinian grounds that “it’s offensive to anyone who comes from any population that ever was enslaved to suggest it’s simply another version of the same thing.” He thereby illustrated the advocate’s maxim that you should never put a point to a witness which you don’t already know his or her answer to. Wise’s reply came back from America, “My people were enslaved by Pharaoh a long time ago, and I understand it.”
It is a part of Steven Wise’s case in the American courts to show, through the testimony of experts in chimpanzee mind and culture, that Hercules, Leo, and the others have what he calls ‘autonomy’, and it is upon this autonomy that he bases their title to legal personhood: “They are self-conscious,” he told the New York court; “they have a theory of mind. They can understand what others are thinking. They understand that they are individuals, that they existed yesterday, that they are going to exist tomorrow, that their lives mean something to them. They plan what their life is going to be like.” But this sort of autonomy is not, of course, something that can be claimed for all other species of animal, although it very likely can be said of the elephants, orcas, and African parrots, who are next on Wise’s list of proposed clients. Therefore it’s true what his fellow animal-rights lawyer on the programme, David Thomas, pointed out: the Nonhuman Rights Project (NhRP) which Wise has founded to promote and staff the legal campaign seems likely to help only a few animal species, if perhaps many individuals.
However, Steven Wise argued that although ‘autonomy’ was a sufficient condition for personhood in law of the sort he was seeking to establish, it was not a necessary condition: “We don’t know what other sufficient conditions may exist.” He hoped and expected the common law to proceed case by case, conceding rights to such fundamental interests as could be shown by science and reason to exist in any other species. On the NhRP web-site he again quotes Lord Mansfield: “The common law is a step-by-step process that, in Mansfield’s words, ceaselessly ‘works itself pure’. It rights the most egregious wrongs first. Then it turns to the harder questions.” Besides, once the breach in legal personhood is made, and lets in even one non-human species, or a single non-human animal, our collective assumptions about the human relation to other animals must be transformed. It’s indeed this fact which must explain the angry hostility and near-irrational alarm which the NhRP seems to evoke, in the courts and in such airings as the BBC discussion. We are seeing, in fact, a most interesting reprise of the sort of indignation which Charles Darwin’s science encountered about a century and a half ago. And that, I suppose, is because we’re at last beginning to appreciate what that science implies, morally and socially, and to act upon it.
But isn’t all this court-bothering “a very long-winded way of going about it?” asked the fourth of the lawyers, essentially putting that familiar objection ‘why not start somewhere else?’ (i.e. ‘Why not go away?’) And he added helpfully, “there are other ways of making things better for animals.” Good; then let’s get on with those other ways too, and meanwhile celebrate Steven Wise and his fellow-workers at the Nonhuman Rights Project for their heroic attempt upon the antiquated and ignorant human-freemasonry of the law. Certainly there’s a very long story ahead, but as Wise says in the documentary film Unlocking the Cage, “It’s time to begin.”
[References: The episode of Unreliable Evidence can be heard again at http://www.bbc.co.uk/programmes/b07qbcbq. The quotation from Judge Shaw is from Steven Wise, Rattling the Cage, Profile Books 2000 (p.90), published in the U.S.A. by Perseus Books (1999). The Nonhuman Rights Project web-site is at http://www.nonhumanrightsproject.org/ , where you can find the transcript of the case recently heard in the New York Supreme Court, and other details of past and pending cases. The film Unlocking the Cage was released earlier this year. A trailer and other details for it can be viewed at http://www.unlockingthecagethefilm.com/ .The photograph of caged mother and child is by Brian Gunn, copyright IAAPFA. The still of Steve Wise with Teko, and the poster for the film, are by courtesy of Pennebaker Hegedus Films.]