This February, law professor and animal rights attorney Steven M. Wise began teaching the first course on animal rights law at the Harvard Law School. Satya asked Wise about the course, future legal efforts to protect animals, and his latest book Rattling the Cage: Toward Legal Rights for Animals (Perseus Books, 2000).
How did this course come about?
Harvard law students insisted on the course for almost three years. A petition was signed by over 120 law students who said that they wanted the course to be offered and would attend it. An increasing number of law students are going to law school just to be animal rights lawyers, and they are looking for these kinds of classes. There are also an increasing number who might not want to be animal rights lawyers, but consider the area to be very important, who simply want to learn about it.
Is this a growing trend?
Yes. When I began teaching at the Vermont Law School in 1990, there had been one animal law course taught at the Pace University Law School in the mid- to late 1980s, but I don’t believe that it was still being offered then. Now there are perhaps 14 animal law or animal rights law courses being offered at American law schools, and more at law schools in Europe. The numbers are beginning to grow by leaps and bounds.
Is this because of societal pressure or because this is an interesting area of law?
Both. It certainly reflects the increasing consciousness about animal rights and animal issues generally in our society. The fact that top-ranked law schools such as Harvard, Georgetown, and Northwestern are offering these classes is also a signal that movers and shakers within the legal community realize that animal law and animal rights law have substantial intellectual content and that they are important areas of study and not easily dismissed.
What is the difference between animal law and animal rights law?
Animal law concerns the present status of nonhuman animals in our legal system. Law students are taught that nonhuman animals are property and they learn to maneuver in the interests of the nonhuman animals within that very strict legal limitation. Animal rights law concerns whether any nonhuman animals should be entitled to legal rights, why, and if so, which ones and what rights should they have. In my class, we reach back into legal history to investigate how nonhuman animals came to be legal things and how human beings came to be legal persons. We then discuss why this split occurred, how it occurred, and whether it makes sense today to perpetuate it.
What do you mean when you describe animals as property?
In our legal system, every nonhuman animal is considered a thing. Things are property that exist for the use of persons. Persons use nonhuman animals in every conceivable way, often to the nonhuman animals’ extreme detriment. That is why billions of animals are abused and killed on factory farms and in biomedical research laboratories and are used in circuses and zoos. In every way that one can imagine that we might exploit them, we probably do.
How can we change that perception in the law and in society at large?
This is the basic idea of Rattling the Cage. It lays out a roadmap for beginning the necessary legal changes and explains how they can actually be made for chimpanzees and bonobos. There has to be a legal recognition that being a member of the species Homo Sapiens is not necessary for being what the law calls a "natural person." Artificial persons, such as corporations and ships, exist because of their utility to human beings. 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. 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.
Why these two?
For two reasons. The two major values of Western law are equality and liberty. We cannot deprive apes of the legal rights that would flow from applying these values without being arbitrary. If we do, we undermine our own basic rights. Chimpanzees and bonobos are like us in important ways that entitle them to basic rights as a matter of equality. But their extraordinary abilities also entitle them to basic rights as a matter of liberty no matter how closely they might resemble us. In the second book that I am writing now, I begin to deal with the potential personhood of other species, ranging from gorillas to elephants to parrots.
But how do you go about litigating when animals are still considered things?
Everyone who calls himself or herself an animal rights lawyer is really not. Today we are merely attorneys who litigate in the interests of nonhuman animals within a legal system that treats them as things. We lawyers have no choice but to litigate using the statutes and case law that exist in order to help animals as well as we can. At the same time, some of us are trying to lay the intellectual foundation that will compel judges to make that shift from nonhuman animals as things to nonhuman animals as persons. Thinghood and personhood are incommensurable. They are simply not valued on the same scale. No matter how much we try to help animals in our present legal system, we will only be able to go a certain distance, because nonhuman animals are ultimately viewed as legal things.
Is it up to society to force a change in the law? Or will the law change society?
The law both leads and follows society. The legal system changes through the decision of judges or by legislatures enacting statutes. You saw this, for example, in the anti-slavery amendments to the U.S. Constitution in the 19th century and the numerous civil rights statutes of the 20th century. But the way the law changes and the way society changes are connected. People who try to change the law also depend upon changes in societal values, as well as upon scientific discoveries. In recognition of this, Rattling the Cage is crammed with reports about scientific discoveries on the nature of the cognition of chimpanzees and bonobos of the last 20 or 30 years. These discoveries form the springboard from which I can argue for their rights and personhood.
How do you think our view of animals will develop in the next 20 years?
It is going to develop in a complex way. First, a hierarchy of nonhuman animals will continue. Though nonhuman animals are considered legal things today, society does not view all nonhuman animals in the same way. Some we clearly value more than others. Even though chimpanzees don’t have any legal rights, we no longer euthanize them after they are no longer useful in medical experiments, as we do, say, to white mice. This fact both results from and drives the coming legal personhood of Great Apes. We’re beginning to see this not only in the U.S., but throughout the West. Westerners are also increasingly valuing their companion animals and I see increasing protection for them. The animals whom we thoughtlessly consume for food are being subjected to worse and worse conditions in the U.S. But an opposite trend is rising in [parts of] Europe. I think we will see the European trend expand even as factory farming in the U.S. increases. However, within the next 10 years, the American factory farming industry is going to learn how it has greatly overstepped and miscalculated just how much abuse of nonhuman animals used for food people are willing to accept. Stir in the environmental degradation that is its inevitable consort and there is going to be a backlash that will drive factory farming in the U.S. in the direction that Europe has taken and will, perhaps, drive at least some of it out of business.
What about the use of animals in xenotransplantation and transgenic animals?
There are going to be inevitable legal challenges to the status of nonhuman animals produced with human genes. The final nail in the coffin of the idea of allocating legal rights based upon species membership will be driven as judges struggle to decide the impossible question of determining what biologically constitutes a human being. The species of animals that will probably be used, at least initially, for these kinds of genetic manipulation will be farm animals. Scientists believe that because pigs, for example, are already used for food, people won’t care about them. Here they may get caught in the coming backlash against factory farming.
How do you persuade society to change their feelings about farm animals?
Because of the urbanization, or at least deruralization of our society, consumers don’t understand much about factory farming. In my experience, when people understand how severely the nonhuman animals are abused, they are appalled. I teach about the recent McLibel case in England. In that case McDonald’s sued two people for libel who handed out leaflets that claimed that McDonald’s was cruel to the animals whose bodies comprise most of what McDonald’s sells. The courts backed many of the crucial claims as being true and ruled that McDonald’s was responsible for much cruelty.
Law students who eat meat have come to me after class to say that, while they would continue to eat meat, they would never again eat at McDonald’s. The key is to educate people and bring home to them how that piece of meat arrived on their plates in a way to which they can relate. Nothing need be embellished. The facts are terrible enough. When one succeeds, a backlash quickly develops. Often it may not be easy to realize that pressure is building. But when it reaches a certain point, the whole thing blows: and that is what I think is going to happen around factory farming.
What do you hope to achieve with Rattling the Cage?
There has been a cascade of books over the last 20 years by philosophers and a few by lawyers. None has gone farther than rightly complaining about how nonhuman animals are treated as things. Some even claim that the problem of the legal thinghood of nonhuman animals cannot be solved within our legal system and that we require a legal revolution before nonhuman animals will be able to achieve legal personhood or be treated in any reasonable way. Rattling the Cage shows how we can achieve change through our present common law system. It provides a blueprint for breaking through the legal wall between human and nonhuman animals and shows how the basic legal rights of apes such as chimpanzees and bonobos can be achieved, and soon.
Steven M. Wise is Lecturer on Law at Harvard Law School, and Adjunct Professor at the Vermont Law School and the John Marshall Law School. He is also president of the Center for the Expansion of Fundamental Rights. His book, Rattling the Cage: Toward Legal Rights for Animals, is being published by Perseus Books and will be available in January. He can be contacted by email at firstname.lastname@example.org.