[*PG623]RATTLING THE CAGE DEFENDED
Abstract: In Rattling the Cage: Toward Legal Rights for Animals, the author advocated basic legal rights—specifically common law rights—for chimpanzees, bonobos, and other nonhuman animals. In this Article, the author responds to many of the major criticisms of Rattling the Cage. The author confronts critics of his historical arguments for legal rights for nonhuman animals, tracing those arguments through ancient philosophy and nineteenth century English statutes. The author also expands upon his legal arguments for animal rights, reexamining various theories of rights and justifications for treating animals as property. Finally, borrowing from his upcoming book Drawing the Line: Science and The Case for Animal Rights, the author defends his advocacy of legal rights for nonhuman animals based on the relative autonomy nonhuman animals possess.
“The ‘animal rights’ movement is gathering steam and Steven Wise is one of the pistons.”1 Thus Judge Richard Posner began a Yale Law Journal review of my book, Rattling the Cage: Toward Legal Rights for Animals, published in 2000.2 The animal rights movement—in its technical sense—is gathering steam. In the mid-1980s Pace University School of Law invited attorney Jolene Marion to teach the first animal law class offered at any American law school. In 1990, I began teaching “Animal Rights Law” at Vermont Law School. By 2002, nearly twenty-five American law schools had offered, were offering, or were about to offer a course or seminar in animal rights law, including those at Harvard, Yale, Georgetown, UCLA, Boston College, Duke, [*PG624]Hastings, Northwestern, and the University of Michigan. In Europe, animal law courses are being, or have been, taught at the University of Aberdeen, University of East Anglia, John Moore’s University in Liverpool, Westminster University, the University of Utrecht, and the University of Vienna. In 2001, American television personality and animal rights activist, Bob Barker, established the Bob Barker Endowment Fund for the Study of Animal Rights at Harvard Law School. In 1995, the first legal journal devoted to animal law appeared. Animal Law is published by the students of the Northwestern School of Law of Lewis and Clark College in Oregon—the law school that published the first environmental law journal more than a quarter century ago. In 2002, a second journal, the Journal of Animal Law and Policy, is scheduled to be published jointly by students from Harvard, Yale, Boston College and New York University Law Schools.
If I am a piston, it is because Rattling the Cage is the first book to advocate basic legal—as opposed to moral—specifically common law rights for chimpanzees and bonobos, or for that matter, any nonhuman animal.3 It attracted attention from judges, lawyers, scientists, and environmentalists around the world. The critiques were not uniform. In the Harvard Law Review, philosopher Martha Nussbaum concluded the book “makes an important contribution to progress on one of the most urgent moral issues of our time.”4 Pharmacology and neuroscience professor Robert Speth declared, “No matter how many imaginary scenarios he devises, no matter how defamatory his characterization of biomedical research, no matter how provocative his analogies, no matter how intensely he attacks religion, he cannot reverse the simple, fundamental fact that apes are not humans.”5 In this Article I respond to the most important criticisms.
Judge Posner found history “rather to one side of Wise’s project and might be regarded indeed as little more than padding; it does no work in the book.”6 For reasons set forth by Justice Holmes, I disagree:
[*PG625]The rational study of law is still to a large extent the study of history. History must be a part of the study, because without it we cannot know the precise scope of rules which it is our business to know. It is a part of the rational study, because it is the first step toward an enlightened sceptisism, that is, toward a deliberate reconsideration of the worth of those rules. . . . It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.7
The thrust of Rattling the Cage’s intellectual and legal history is that the rule that every nonhuman animal is a legal thing is an anachronism. Its roots burrow deeply into Roman law and the ancient philosophies and religions from which that law sprung. That is why it is important to reply to Professor Nussbaum’s criticisms of my history as “incomplete,” “unilinear,” and “failing to describe the complexity of ancient philosophical thinking,” including the thinking of Pythagoreans and Neoplatonists.8 “[O]n Wise’s account,” Professor Nussbaum writes,
there is absolutely nothing in our ancient Greek and Roman heritage that might have informed ethical thought in a positive direction with regard to thought about animals. All ancient philosophers, and presumably the lay people influenced by them, were morally obtuse on this matter. Progress had to await our more enlightened era.9
According to Professor Nussbaum, the picture I paint of history is that
[w]e were all obtuse under the influence of bad Aristotle and the Stoics, and then, after a long time, things got much better under the influence of Charles Darwin. Now we are all Darwinians, ready to understand our commonality with animals when it is clearly shown to us by evidence. The most difficult question is how law, that very conservative and [*PG626]precedent-driven discipline, can be made to listen to the new knowledge we have acquired.10
But an American Bar Association Journal review noted that Rattling the Cage was
ambitious in its effort to summarize entire fields of human knowledge. They include: a historical view of man’s concept of his position in the natural order, the worldwide legal history of animals dating from pre-biblical times, the genesis of civil liberties, and the evolution of common law. Wise also includes the modern legal history of . . . the slave, the definition of consciousness, the genetic composition of humans and chimpanzees, and the intricacies of primate behavior.11
The key word in that review is “summarize.” Rattling the Cage, limited to about 250 pages, could not provide a thick, rich, unbroken history of how the West has viewed nonhuman animals from ancient times. That would have taken an entire book, or three. Richard Sorabji, a professor of ancient philosophy, upon whom I relied, took nearly an entire book just to illuminate the competing Greek philosophical theories about nonhuman animal minds and how this affected their moral status in ancient times.12
Rattling the Cage was intended to accomplish something else: follow the main intellectual thread that leads from today’s legal thinghood of nonhuman animals through the maze of legal history to its origins in Greek and Roman philosophy and in Hebrew and Roman law. The stories are complex, with casts of hundreds, and sweep across four thousand years. I could devote only about forty pages to it. In the story of Theseus and the minotaur, the hero makes his way through Daedalus’ maze, from which no one ever escaped, seeking the monster to slay, while playing out the thread necessary to find his way out. If Theseus had been asked how he did it, his questioners would have been most interested in knowing where the thread led and not every blind alley he encountered. Similarly, Rattling the Cage tells the reader [*PG627]where the thread of the legal thinghood of nonhuman animals began and has led.13
Professor Sorabji notes that “the Stoic view of animals, with its stress on their irrationality, became embedded in Western, Latin-speaking Christianity above all through Augustine. Western Christianity concentrated on one-half, the anti-animal half, of the much more evenly balanced ancient debate.”14 Professor Nussbaum concedes that much of ancient philosophical thinking about nonhuman animals was based upon the belief that souls migrated between human and nonhuman animals, but this idea “had little impact on the thinking of philosophers” and no impact on modern law.15 A respected Aristotelian scholar, she is exercised by my allegedly crediting Aristotle “with all the evils of two thousand years of moral obtuseness.”16 She finds, for example, “no evidence that he believed in a universal teleology of nature, such as the ‘Great Chain of Being.’”17 I respectfully disagree.
The Great Chain of Being was, in the words of its foremost scholar, Professor Arthur O. Lovejoy, the “conception of the plan and structure of the world which, through the Middle Ages and down to the late eighteenth century, many philosophers, most men of science, and, indeed, most educated men, were to accept without question.”18 It was “one of the half-dozen most potent and persistent presuppositions in Western thought. It was, in fact, until not much more than a century ago, probably the most widely familiar conception of the general scheme of things, of the constitutive pattern of the universe.”19 Professor Lovejoy said it was Aristotle “who chiefly suggested to naturalists and philosophers of later times the idea of arranging (at least) all animals in a single graded scala naturae according to their degree of ‘perfection.’”20
Those who fought for the first anti-cruelty statutes in England in the early nineteenth century accepted the Great Chain of Being. To [*PG628]what else was Chief Justice Taney referring in the infamous Dred Scott case when he wrote that, at the time of the ratification of the United States Constitution, blacks were seen as “beings of an inferior order” and “so far inferior [to whites], that they had no rights which the white man was bound to respect.”21
What Nussbaum calls “universal teleology,” others, such as the evolutionary biologist, Ernst Mayr, call “cosmic teleology”; both convey the idea that everything in nature has a purpose. Six years ago I wrote:
Some modern students of Aristotle claim that he has long been mischaracterized as a universal or cosmic teleologist. . . . Even those who contend that Aristotle has been traditionally, but badly, misunderstood as a cosmic teleologist . . . concede that, if the traditionalists were led astray, it was Aristotle’s hand that pointed the wrong way. These untraditional interpretations do not detract from the truth that, misunderstood or no, Aristotle was, until recently, nearly uniformly understood to be a cosmic teleologist and that it was these traditional understandings that affected the formation of the law of nonhuman animals.22
Not every Greek thought alike, but they did think in ways that failed to respect nonhuman animals, or so we believe.
Professor Nussbaum concedes that Aristotle, in his Politics (as I reported), said that all nonhuman animals were created for the sake of humans, but insists this is “counterbalanced by hundreds of statements in his biological writings suggesting that each animal’s goal is its own life and flourishing.”23 I do not know whether Aristotle was actually a cosmic or universal teleologist, or a builder of the Great Chain of Being, or an advocate of the natural inferiority of nonhuman animals (and women and slaves, as he says in his Politics). But until recently, few doubted he was all these things and it was these ideas, combined with the allied ideas of Stoics and the Old Testament, and not the ideas of the Pythagoreans or the Neoplatonists or other [*PG629]comparatively dead-end philosophers, that were incorporated into early Christian thinking about nonhuman animals, aggressively advocated by St. Augustine, absorbed wholesale into Roman law, most notably Gaius’ Institutes, Justinian’s Institutes, Justinian’s Digest, and finally pressed into the common law.24
The classics scholar, Peter Birks, wrote:
Honor� has shown that Gaius brought to his law a mind formed by Aristotelian thought and methods. Aristotle, discussing the acquisition of property, also creates a hierarchy of natural provision which, not very differently from Genesis, comes to an apex in man. Furthermore, his discussion includes one sentence which is almost exactly Gaius’ assertion that, . . .”[i]f then nature makes nothing without a purpose, nothing with no end to serve, it follows by necessity that nature has made all things for man.”25
If Gaius attended an appellate argument in an animal law case today, he would have no trouble following it, for the Anglo-American common law of nonhuman animals remains essentially Roman.26 Professor Nussbaum’s argument catches the same snag as do the arguments of those who argue that Abraham Lincoln or Thomas Jefferson favored slavery. Statements may exist from which one might infer that truth; nonetheless the Emancipation Proclamation, the Thirteenth Amendment to the United States Constitution, and the Declaration of Independence remain.
Professor Nussbaum agrees I was “basically right about the Stoics. . . . As Wise says . . . the Stoics did deny reason to animals, and thence all serious ethical concern.”27 But she complains I ignored Descartes, especially “his notorious remarks about animals as mere [*PG630]automata.”28 I ignored Descartes’ remark because, by the time he made it, the legal thinghood of nonhuman animals had been fixed for centuries. Descartes did not significantly affect the law of nonhuman animals.
Nussbaum also criticizes my alleged leap from Descartes to Darwin, “as if it took the discovery of evolutionary theory to get our moral consciousness going and to prompt legal change.”29 This depends upon what sort of legal change we are discussing. Nussbaum writes that “[b]y the time Darwin published The Origin of Species, an animal rights movement, in both ethics and law, was in full swing in Europe,” and that “[s]ignificant animal rights legislation was passed (in the UK) in 1822.”30 Here, she confuses animal rights with animal welfare and animal cruelty legislation.
There was no “animal rights movement” in law in the eighteenth, nineteenth, and even most of the twentieth centuries. There is a nascent one today, but nonhuman animals lack legal rights today just as they did when Lord Erskine, former Lord Chancellor of England, spoke on the floor of the House of Lords in 1809: “Animals are considered as property only: to destroy or to abuse them, from malice to the proprietor, or with an intention injurious to his interest in them, is criminal; but the animals themselves are without protection; the law regards them not substantively; they have no rights.”31 Under the influence of the Great Chain of Being, Lord Erskine did not seek legal rights for nonhuman animals.32 Instead, he wanted to make it a misdemeanor to wound maliciously or, with wanton cruelty, to beat or otherwise abuse “every animal which comes in contact with man, and whose powers, and qualities, and instincts, are obviously constructed for his use. . . .”33 These animals were, he declared, “created . . . for our use, but not for our abuse.”34 With the statute’s enactment he intended to “consecrate, perhaps, in all nations, and in all ages, that just and eternal principle which binds the whole world in one harmonious chain, under the dominion of enlightened man, the lord and governor of all.”35
[*PG631] The UK legislation of 1822, formally entitled “An Act to prevent the cruel and improper Treatment of Cattle,” known as “Martin’s Act,” gave no rights to nonhuman animals.36 It merely extended some small protection under the criminal law to a handful of domesticated nonhuman animals—cattle, oxen, horses, and sheep—punishable, at worst, by fine.37 Martin’s Act was an anti-cruelty statute, not a rights statute, nor even a welfare statute.38 Professor Mike Radford notes,
To cause an animal to suffer unnecessarily, or to subject it to any other treatment which amounts to an offence of cruelty, is self-evidently detrimental to its welfare. To that extent, there is a degree of affinity between cruelty and welfare, but the two are far from being synonymous: prejudicing an animal’s welfare does not of itself amount in law to cruelty.39
Speaking of Martin’s Act and the entire body of legislation in the area of nonhuman animal welfare over the next century, Professor Radford explains that “while this legislation imposed restrictions on how animals could be treated, none of it—nor, indeed, any enacted subsequently—changed the traditional legal status accorded to animals by the courts.”40 As Lord Erskine noted, that status was property.41
In Rattling the Cage, I argued the ancient Greeks who most influenced the development of modern nonhuman animal law were Aristotle and the Stoics.42 They came close to believing that not even the most cognitively sophisticated nonhuman animals could reason, think, or believe.43 Indeed, the Stoics denied them the abilities to perceive, conceive, remember, and experience, or know anything of the [*PG632]past or future.44 I spent three chapters demonstrating how modern science has illuminated the extraordinarily complex minds of chimpanzees and bonobos.45
Attacks on this description of chimpanzee and bonobo cognition descended from opposite sides: some critics contended that chimpanzees and bonobos lack complex cognition, while others complained that we have known that nonhuman animals are cognitively complex for a very long time. In Commentary, journalist Damon Linker wrote:
I will leave it to others to judge the significance of the fact that a handful of bonobos, after years of intense training by scientists, have apparently managed to “understand” “thousands” of words; to assess whether the “theory of mind” supposedly possessed by chimpanzees really deserves to be described in the same terms we use to talk about the philosophical writings of Descartes and Hegel; and to evaluate the appropriateness of attributing “self-awareness,” “consciousness,” and a “sense of self” to creatures who, lacking language, are utterly incapable of conceiving of such abstractions.46
I wrote “[t]he last redoubt in the fight against animal consciousness is th[e] syllogism: Language is necessary for consciousness; only humans have language; therefore only humans are conscious.”47 But language is obviously unnecessary for consciousness, even for much higher-level cognition, as anyone with a two-year-old can attest, and chimpanzees and bonobos, who demonstrate complex mental abilities, can learn a human proto-language, complete with simple syntax without intensive training.48
Neurologist Antonio Damasio has written that, when young, he was frequently told language produced consciousness.49 “The answer sounded too easy, far too simple for something which I then imagined unconquerably complex, and also quite implausible, given what I saw [*PG633]when I went to the zoo. I never believed it and I am glad I did not.”50 In his extensive work with the neurologically impaired, Damasio has discerned no link between language and at least simpler forms of consciousness.51
The editors of Nature Neuroscience, who oppose legal rights for chimpanzees and bonobos, agree “it is clear that their cognitive capacities exceed those of many humans.”52 Michael Hutchins, Director of Conservation and Science of the American Zoo and Aquarium Association, and no supporter of ape rights, concedes “some nonhuman animals think and have emotions.”53 Judge Posner wrote “obviously animals are conscious in the sense that distinguishes being conscious from being unconscious.”54 Professor Nussbaum is convinced that chimpanzees and bonobos “have a wide range of cognitive and emotional capacities, roughly at the level of a three-year-old child.”55
Linker ignores how Professor Sue Savage-Rumbaugh educates the bonobos with whom she works at Georgia State University. She assembles a learning environment in which the bonobos learn as naturally, and in much the same way, as does a human child.56 More seriously, Linker confuses consciousness, self-awareness, and the sense of self, all of which chimpanzees have, with an ability to conceive what those things mean. Because I cannot explain what James Joyce was saying in Finnegan’s Wake does not mean I cannot read what he wrote.57
Professor Richard Epstein challenges my claim from the opposite direction, writing that ancient law did not ignore the obvious point that animals are capable of having mental states.58 One rule provided that “an animal that left its owner’s home with an intention to return [the so-called animus revertendi] could not be taken by another, while the animal that had regained its freedom in the wild could be so cap[*PG634]tured.”59 Another rule “understood that animals can be provoked or teased, that they are capable of committing deliberate or inadvertent acts.”60 This rule would reduce the liability of an owner for an animal that attacked when provoked.61
But what mental complexity did animae revertendi actually require? The rule speaks primarily in terms of “instinct” and “habit.”62 Gaius’ Institutes, the main classical text on the occupancy of wild nonhuman animals, referred to wild nonhuman animals “habituated to go away and return . . . only the cessation of the instinct of returning is the termination of ownership . . . the instinct of returning is held to be lost when the habit of returning is discontinued.”63 With respect to animae revertendi, Justinian’s Institutes reads, “they are considered yours as long as they have the intention of returning, but if they cease to have this intention, they cease to be yours. . . . These animals are supposed to have lost the intention, when they have lost the habit of returning.”64
Instinctive behavior is generally performed “without conscious design or intentional adaptation of means to ends,” while “habit” is “a settled disposition or tendency to act in a certain way, esp[ecially] one acquired by frequent repetition of the same act until it becomes almost or quite involuntary.”65 Because habitual conduct tends to be “semiautomatic,” it may sometimes be probative of human conduct.66 The habits of nonhuman animals are more generally admissible, pre[*PG635]sumably because nonhuman animals are believed to act more automatically.67
If an owner were entitled to reduction of liability for damage caused by a provoked nonhuman animal, Roman law was clear that the animal could never be guilty of any legal wrongdoing, for Romans believed that every nonhuman animal lacked reason or sense.68 At best, provocation derived from emotion, not intellect. Ulpian, for example, is quoted in Justinian’s Digest discussing an action that lies when “a quadruped does harm because its wildness is stirred.”69 It was accepted that nonhuman animals could act emotionally, they could be provoked or act aggressively or ferociously. But this does not necessarily imply they possessed other mental states, and certainly not reason.
Professor Epstein also takes me to task for claiming that historically nonhuman animals
were treated as property, as mere things. But that assertion massively oversimplifies a difficult area of law, and is no more accurate than the common proposition that slaves were treated as things. . . . [F]rom the earliest times slaves were governed by a set of rules that treated them as legal hybrids, part property and part human beings,70
while animals, for their part, were treated both as living organisms and private property.
Professor Epstein is correct that the assertion that nonhuman animals were treated as property is no more accurate than the common proposition that slaves were treated as things. Nonhuman animals were treated as property. Slaves were treated as things. It is no more contradictory to be considered part property and part human being than it is to be considered both part Italian and part human being. As the institution of slavery evinces, one can be both human and property. Similarly, it is no contradiction for a nonhuman animal [*PG636]to be considered a living organism and private property. One can be both a living organism and private property.
“Things either fall within the sphere of private ownership or they do not.”71 In civil law, nonhuman animals have generally been treated as things, with enormous consequences. I began Rattling the Cage by recalling the brutish life and lingering death of Jerom, a chimpanzee whom biomedical researchers imprisoned for life inside a small, dim, often chilly cell that lay within a large windowless grey concrete box at the Yerkes Regional Primate Research Center in Atlanta, Georgia.72 As a toddler he was repeatedly infected with various strains of HIV.73 After a hellish decade, he died.74 In a February, 2000 speech in Boston’s Faneuil Hall, professor Laurence Tribe said, “Clearly, Jerom was enslaved.”75
Enslaved beings of every species are generally treated as legal things. The first definition of “slave” in the Oxford English Dictionary is “[o]ne who is the property of, and entirely subject to, another person, whether by capture, purchase, or birth; a servant completely divested of freedom and personal rights.”76 International law has, for most of a century, defined slavery as “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.”77 According to Professor Robert Shaw, “[u]nder Roman law, slaves were treated clearly as things, possessing no rights whatsoever.”78 Wrote Professor Thomas Collett Sanders, “a slave had no rights.”79 “[E]ven before the XVIIIth Dynasty in Egypt,” Professor David Brion Davis wrote, “the slave was legally defined as a thing; and the same conception prevailed in Babylonia, Assyria, Greece, Rome, India, China, and parts of medieval Europe.”80
[*PG637] Scholars often compare the rightlessness of human slaves to that of nonhuman animals under ancient law. “The truly striking fact” about slavery, Professor Davis wrote,
is the antiquity and almost universal acceptance of the concept of the slave as a human being who is legally owned, used, sold, or otherwise disposed of as if he or she were a domestic animal. This parallel persisted in the similarity of naming, branding, and even pricing slaves according to their equivalent in cows, horses, camels, pigs, and chickens.81
According to Professor Patrick Mac Chombaich de Colquhoun, in Roman law, “[c]orporeal things are either moveables or immoveables. Res mobiles are of two kinds,—those capable of innate motion, res sese moventes, as animals or slaves . . . .”82 Dean Roscoe Pound noted that, in Rome a slave “was a thing, and as such, like animals, could be the object of rights of property.”83 Professor Barry Nicholas wrote that, in Roman law, “the slave was a thing. Being endowed with reason and often indeed well-educated, he was inevitably a peculiar thing and could, for example, acquire rights for his master. But he himself had no rights: he was merely an object of rights, like an animal.”84 According to Professor Nicholas, Rome’s initial regulation of the treatment of slaves “took the same form as our legislation for the protection of animals. The master might be punished criminally for abuse of his powers, but the slave could not himself invoke the protection of the law.”85 Professor Peter Birks said that in Rome, “unless and until they were manumitted the same law applied to them as to the ox and the ass.”86
Judge Posner speculates that:
[I]f pressed, Wise would admit that the only right of most, maybe all, species would be the right not to be gratuitously tortured, wounded, or killed—and as it happens, those were, [*PG638]at least nominally (an important qualification), the rights of Negro slaves in the antebellum South. And yet we think the essence of slavery is to be without rights. To be told now that slaves had rights is an example of how the movement for animal rights can depreciate human rights.87
As described above, most scholars routinely deny that human slaves had any legal rights.88 The essence of slavery is rightlessness. A stray scholar may argue to the contrary. Professor Robert Shaw wrote that in the antebellum South, “[w]hile it came to be accepted, for most purposes and in most jurisdictions, that the slave was a person, entitled to the protection of the law and against whom crimes could be committed, it was commonplace that vicious assaults upon slaves, or even murder, were treated as trespasses only, offenses against the owners, with remedies to be sought only by civil suits.”89 But these statements cannot be taken literally, for they almost always mean that criminal statutes, akin to the anti-cruelty laws enacted to protect nonhuman animals, merely protected human slaves from the arbitrary or unnecessary infliction of excessive force.90
I would not admit “the only right of most, maybe all, species would be the right not to be gratuitously tortured, wounded, or killed.”91 That would contradict the central claim of Rattling the Cage, which is that at least chimpanzees and bonobos are entitled to the ba[*PG639]sic rights of bodily integrity and bodily liberty.92 By bodily integrity, I mean a general immunity from unconsented-to touchings, akin to what the United States Supreme Court has referred to as “the right of every individual to the possession and control of his own person, free from all restraint or interference by others, unless by clear and unquestionable authority of law . . . ‘[t]he right . . . to be let alone.’”93 The gratuitousness of the violation would be as relevant for nonhumans as it is for humans. By bodily liberty, I mean the freedom to move about unless one is a danger to oneself or others, which would certainly be the case for chimpanzees or bonobos in the United States, but would certainly not be the case, say, for Atlantic bottlenosed dolphins living along America’s East and Gulf Coasts. Even chimpanzees and bonobos in America could be placed in sanctuaries in which they would have some reasonable degree of bodily liberty.
In Rattling the Cage, I also said “I never meant to imply that these two dignity-rights are the only legal rights to which [chimpanzees and bonobos] might be entitled. Should they, for example, have the legal rights to reproduce, to keep their offspring, or to have sufficient and proper habitat?”94 I wrote that philosopher Isaiah Berlin said that
The question of whether humans should have fundamental rights must be answered . . . by invoking the myriad, multi-faceted, and complex ways in which we “determine good and evil, that is to say, on our moral, religious, intellectual, economic, and aesthetic values.” What rights should we have is “bound up with our conception of man, and of the basic demands of his nature.” The question of whether animals should have fundamental legal rights should be answered in a similar way, similarly bound up with our conceptions of who they are, the demands of their natures, and how we determine good and evil.95
We must recognize that the natures of other animals may be radically different from ours and that the greater our evolutionary distance, the greater may be our differences, and the greater may also be our difficulty in understanding the demands of their natures.
Several commentators complained that, while I criticize the common law for drawing an arbitrary line that excludes every nonhuman animal from eligibility for legal rights, I ignore serious line-drawing problems of my own. If one breaks through the legal wall that separates humans from every other animal, the argument goes, there can be no reasonable stopping place, either with respect to the nonhuman animals who would be entitled to rights or the rights to which they would be entitled.
The science journal, Nature Neuroscience, for example, editorialized that “the major weakness” in my argument is that
boundaries must be drawn somewhere. It would seem absurd to make no distinctions between species, but if it is wrong to discriminate between humans and chimpanzees, then what about macaques, cats or mice? Any sensible solution would seem to require criteria for evaluating different animals’ mental capacities and for weighing them against the benefits of experimentation, but Wise offers little guidance on how this might be achieved.96
In the Military Law Review, Lt. Commander R.A. Conrad wrote:
Wise leaves open the extension of legal personhood beyond chimpanzees and bonobos. Except for establishing the criteria that other animals granted such status should have “minds,” he provides no guidelines for making such future extensions. He also concedes that not all animals have “minds,” and thus not all animals have a right to legal personhood. Yet, in this concession, he is guilty of discrimination and hypocrisy that highlight the primary fallacy of his argument: where to draw the line. In effect he is stating that some animals really are animals and deserve to be treated as animals, with no rights, while other animals are essentially human, or at least deserving of human-like status.97
A similar concern motivates Judge Posner’s complaint that
[*PG641]Wise wants judges, in good common-law fashion, to move step by step, and for the first step simply to declare that chimpanzees have legal rights. But judges asked to step onto a new path of doctrinal growth want to have some idea of where the path leads, even if it would be unreasonable to insist that the destination be clearly seen. Wise gives them no idea.98
Finally, Professor Epstein writes:
If that higher status [of legal persons] is offered to chimps and bonobos, then what about orangutans and gorillas? Or horses, dogs, and cows? All of these animals have a substantial level of cognitive capacity, and wide range of emotions, even if they do not have the same advanced cognitive skills of the chimps and bonobos.99
Judge Posner thinks Rattling the Cage “is not an intellectually exciting book. I do not say this in criticism. Remember who Wise is: a practicing lawyer who wants to persuade the legal profession that courts should do much more to protect animals.”100 Attorney Henry Cohen finds it “essentially a conservative book.”101 Professor Nussbaum notes the book “develops no ambitious theories,” which concerns her, as the title of her review, “Animal Rights: The Need for a Theoretical Basis,” suggests.102 Professor Robert Verchick finds the work “both radical and conservative at the same time,” while noting my failure “ultimately . . . to offer any new principle that is itself immune from bias.”103
Turning to bias, Professor Epstein claims, “It is not, nor has ever been, immoral for human beings, as a species, to prefer their own kind. What lion would deny it?”104 Lions may indeed prefer their own [*PG642]kind. But it is both immoral and unlawful for judges to bias their decisions. There are also difficulties in seeking moral guidance from nonhuman animals such as lions, who probably lack moral capacity. Humans preferring their “kind,” whether their kind is the same race, sex, religion, nationality, or some other kind, has long infected human activity and caused enormous suffering and unfairness. The morality of a lion is nothing for a human to aspire to.
Professor Epstein argues, “We should not undermine, as would surely be the case, the liberty and dignity of human beings by treating animals as their moral equals and legal peers.”105 Nature writer Kenan Malik writes, “The real impact of the campaign for rights for apes is to diminish rights for humans.”106 They imply legal rights are a zero sum game. Technically they may be correct. The rights of one person may necessarily decrease with an increase in the rights of another, for the master’s right over his slave becomes sharply curtailed when the slave sheds his thinghood. If Professor Epstein is correct on either count—humans may legitimately prefer their own kind or granting rights to nonhuman animals may reduce the rights of human beings—every human judge should be disqualified from determining whether nonhuman animals have legal rights on the ground of bias, but then no one would be left to judge.
This problem is typically solved in the United States by invoking the “Rule of Necessity”: if all judges are disqualified from deciding a case, none are.107 But this Rule does not give judges license to indulge their biases. To the contrary, judges ruling from necessity must exert every ounce of moral strength, every particle of objectivity they possess, to rule as fairly as they can, always keeping in mind they are prone to decide in their own favor and that long-standing inequities have, in Professor Tribe’s words, only “survived this long because they have become [so] ingrained in our modes of thought; the [U.S.] Supreme Court recognized a century ago that ‘habitual’ discriminations are the hardest to eradicate.”108
Judge Posner and Professor Verchick are correct: Rattling the Cage was never intended to be an intellectually exciting book; nor was it intended to create intellectually ambitious theories nor develop novel legal principles. “Animal rights” may demand a firmer theoretical ba[*PG643]sis, as Professor Nussbaum argues. Yet, isn’t it asking too much to demand the theoretical bases of “animal rights” be firmer than those of “human rights”? Professor Nussbaum agrees that even “human rights is by no means a crystal-clear idea. Rights have been understood in many different ways, and difficult theoretical questions are frequently obscured by the use of rights language, which can give the illusion of agreement where there is deep philosophical disagreement” about the basis, origin, function, and process of rights.109
At least some nonlawyer critics of Rattling the Cage draw from legal positivism in arguing that basic rights derive “from the state.”110 I use “legal nonpositivism” to refer to rights claimed to derive from some source other than the state; these include natural rights, human rights, fundamental rights, and indeed, foundationalism in general.111 Foundationalism’s most serious problem is that there is no agreement about which of the many possible sources of human rights is the true or legitimate source. Legal positivism, however, is not without its flaws. As Professor Mary Ann Glendon writes:
Prior to World War II, legal positivism . . . flourished in the United States and Europe and was dogma in the Soviet Union. But legally sanctioned atrocities committed in Nazi Germany . . . caused many people to reevaluate the proposition that there is no higher law by which the laws of nation-states can be judged.112
Judge Posner embraces a pragmatism that rejects the use of first principles to determine how to treat nonhuman animals because we cannot agree on what these first principles are.113 On the other hand, Professor Tribe thinks that to search for a “non-intuitive, non-spiritual wholly objective and supposedly scientifically-based formula . . . [for] legal rights is to tilt at windmills” and that “to argue that a chimpanzee is entitled to rights because of what goes on in his mind is to commit the Naturalistic Fallacy, illegitimately moving from ‘is’ to ‘ought.’”114
[*PG644] This conflict, often stated as a conflict between natural law and legal positivism, has been resolved in favor of natural law. Not only the international law of fundamental rights, but foreign law and United States law at every level is saturated in legal nonpositivism.115 The Universal Declaration of Human Rights, writes Professor Glendon, “implicitly rejected the positivist position by stating that fundamental rights are recognized, rather than conferred,” therefore “trac[ing] [the Declaration’s] legitimacy to [the] fundamental characteristics of human nature.”116 She relates that UNESCO set up a philosophers committee to help determine what rights might be legitimately claimed to be universal.
The UNESCO group concluded that it was possible to achieve agreement across cultures concerning certain rights that “may be seen as implicit in man’s nature as an individual and as a member of society and to follow from the fundamental right to live.” But they harbored no illusions about how deep the agreement they had discovered went. [French philosopher Jacques] Maritain liked to tell the story of how a visitor at one meeting expressed astonishment that champions of violently opposed ideologies had been able to agree on a list of fundamental rights. The man was told: “Yes, we agree about the rights but on condition that no one asks us why.”117
Over the last half-century, “a universally valid core of nonderogable human rights” have been agreed upon and recognized in at least four classes of international instruments that do not demand agreement on why.118 In the first are treaties, agreements, declarations, and [*PG645]resolutions that emphasize inalienable negative rights and immunities and declare that humans have “inherent dignity” or possess “fundamental freedoms” or “inalienable rights,” phrases that descend from such natural rights documents as the American Declaration of Independence and the French Declaration of the Rights of Man.119 Many, like the Universal Declaration, recognize that human rights derive from the characteristics or qualities of human personality and society.120 A second class designates certain rights “nonderogable,” even in cases of public emergency involving the life of the nation, while a third class acknowledges that certain obligations are created erga omnes (“flowing to all”). A fourth concerns jus cogens (“compelling law”), those international preemptory norms that restrict the ability of states to contract in violation of these norms and voids treaties and other instruments that violate them.121 Why should chimpanzees and bonobos, and perhaps other nonhuman animals, not be beneficiaries of a similarly valid core of nonderogable rights?
Professor Nussbaum notes the problem with Stoic views about nonhuman animals is the “sharp discontinuity in nature,” resting on “the idea that moral capacity belongs to all and only humans and that this capacity is what raises us above ‘the beasts.’”123
Indeed, Professor Nussbaum goes on to assert:
It is not that Wise is wrong to find the Stoic views about discontinuity inadequate. The problem is, what do we do without them? How, if not in the Stoics’ way, do we ground the moral conviction that each human being is inviolable and all human beings are of equal dignity? Once we recognize that nature is a continuum and that capacities of chimpanzees overlap with those of humans, what is to prevent us from recognizing a continuum within the human species, and saying (as people are always keen to do) that some humans are more capable than others, that some are worth more than others? Against that kind of thinking, the idea that every human has something precious that is found nowhere else in nature is quite a valuable resource.
Think about people living in extreme poverty, such as the women with whom I work in India . . . These Indian women are not considered important. . . . It is very important to them, and to the activists and political thinkers who try to improve their lot, to say that every human life is precious and that all are of boundless worth.124
And, Nussbaum continues, what if there are not enough food and resources for both human and nonhuman animals?
Poor people do not like forest preserves in which they cannot forage for food, for example. The romanticism of nature that such people find in many American and European visitors scares them. They want to say, we are special. We need to live. I want to say that too. So there is a problem: if we do not [*PG647]cling to some form of the Stoic dichotomy, how are we to say that?125
Judge Posner expressed a related argument claiming that “if we fail to maintain a bright line between animals and human beings, we may end up by treating human beings as badly as we treat animals . . . . [T]here may be a social value in a rhetoric of human specialty.”126
There are at least three arguments here. One is that, if we allow ourselves to recognize a continuum among species, we may feel more free to recognize a continuum within the human species. Professor Paul Waldau notes:
The two obvious principal ideas of speciesism are the contrasting inclusion of all members of the human species and exclusion of all members of all other species from certain privileged considerations. Merely asserting the dignity of each and every human, without any related exclusion of nonhumans’ interests, value, or moral considerability, would in no way be speciesist. An element of pervasive exclusion is a critical addition . . . a working definition is given. . . . Speciesism is the inclusion of all human animals within, and the exclusion of all other animals from, the moral circle.127
There is no logical reason why we must ground a conviction that a human being is inviolable and all human beings are of equal dignity on the exclusion of other beings. The foremost advocate of a continuum among species, Charles Darwin, hated black chattel slavery.128 Louis Agassiz hated Darwinism, rejected evolution, and thought blacks a different species from, and inferior to, whites.129 If we open our moral umbrella a bit to shelter apes or primates or mammals or vertebrates, and believe every one of them inviolable and equal in dignity, why would we no longer believe the same of all humans, who would be a subset of those whom we believe to be inviolable and of [*PG648]equal dignity? Just as with poor Indian women, there are nonhuman animals whose cognitive abilities allow them to think their life is important to them, a matter important as well to the activists and political thinkers trying to improve their lot.130
A second argument is that if we do not cling to the Stoic dichotomy, how can we justify always siding with humans whenever their vital interests conflict with the interests of nonhuman animals? Why should we automatically side with every human when an important interest conflicts with the vital interest of any nonhuman? This prejudges the ultimate question as to whether any nonhuman animal, even bonobos and chimpanzees, should be entitled to basic rights that might trump human interests.
The third argument is that, without the Stoic dichotomy, we might end up treating some humans as badly as we treat nonhuman animals. For “animals and human beings,” substitute “blacks and whites,” “Moslems and Christians,” or “Catholics and Protestants” in Judge Posner’s worry that “if we fail to maintain a bright line between animals and human beings, we may end up treating animals as badly as we treat human beings . . . . [T]here may be a social value in a rhetoric of human specialty.”131 The sentence remains as true for one as for any of the others. There is no reason specifically linked to the rights of nonhuman animals to believe that we may ever treat humans as badly as we do nonhuman animals.
Professor Nussbaum is genuinely concerned with the poor.132 William Windham, Member of Parliament for Norwich, was not when he appealed to the freedom of the poor to engage in their traditional “enjoyments” of bull-baiting to defeat the first attempt at legislating anti-cruelty statutes in the UK in 1800 and 1802.133 At nearly the same time, abolitionists were fighting arguments in Parliament that destruction of the slave trade would ruin Britain and her colonies and throw thousands of sailors out of work.134 Liverpool’s sailmakers, bak[*PG649]ers, and gunmakers petitioned Parliament to keep the slavers sailing.135 To whom would they sell their sails, biscuits, and guns?136
If “discrimination” is defined as “‘an act based on prejudice,’ and its essential elements [include] . . . a decision based on invidious rather than rational grounds,” it is hard to make Lt. Commander Conrad’s charge of discrimination stick.137 What is necessary for basic human rights remains controversial after centuries. I do not intend to try to resolve this controversy. Neither do I intend to burden the argument for the basic rights of chimpanzees and bonobos with a demand for certainties greater than those demanded by the arguments for basic human rights.
I have argued that the basic legal rights of nonhuman animals should be derived from the same legal sources as the basic rights of humans, and for the same reasons.138 That is why Rattling the Cage may rightly be described as conservative. It so happens there is no agreement as to what those sources are. But, rightly or wrongly, fundamental human rights are often derived from liberty and equality. These are therefore the well from which the fundamental rights of nonhuman animals may be drawn.
Liberty entitles one to be treated a certain way because of how one is put together. How others are treated is irrelevant. One’s liberty rights turn on one’s qualities. Since World War II, nations agree the liberty to act as one pleases stops somewhere, though they do not agree where.139 Yet some absolute and irreducible minimum degree of bodily liberty and bodily integrity are everywhere sacrosanct. If we trespass upon them we inflict the gravest injustice, for we treat others as slaves and things.140
Of what he sees as my willingness “to accept the possibility that [my] theory would sacrifice rabbits and mice in exchange for stronger and more individualized liberties for ‘brainier’ species,” Professor Verchick insightfully observes that “[h]aving chosen to base [my] design on classical rights themes, the Greek ideal of reason is one [I am] [*PG650]fated to embrace.”141 Herein lies an important truth: judges and the common law have long embraced, if not the Greek ideal of reason, then autonomy or self-determination both as an important aspect of liberty and one that is, I argue, sufficient, though not necessary, for basic legal rights.142 An animal’s species is irrelevant to her entitlement to rights; any who possesses a “realistic autonomy” has what is sufficient for the basic rights to bodily integrity and bodily liberty both as a matter of liberty and equality.143
I emphasize “sufficient.” Professor Nussbaum believes I argue that autonomy is necessary, not just sufficient, for basic legal rights,144 as does Professor Tribe.145 Alas, I make the argument that realistic or practical autonomy is sufficient, not necessary, for basic legal rights most clearly in the index of Rattling the Cage, much more so in an earlier law review article.146 Professor Tribe understands I argue that being human is neither a sufficient nor a necessary condition for entitlement to legal rights.147 That evidently concerns him:
If your theory is that simply being human cannot entitle you to basic rights, although it might be nice if they were given to you, I think you are on an awfully steep and slippery slope that we would do well to avoid. Once we have said that infants and very old people . . . have no rights unless we choose to grant them, we must decide about people who are three-quarters of the way to such a condition. I needn’t spell it all out, but the possibilities are genocidal and horrific and reminiscent of slavery and of the holocaust.148
First, I argue that a realistic or practical autonomy is a sufficient, not a necessary, condition for legal rights. Other grounds for entitlement to basic rights may exist. Second, Professor Tribe assumes that all human beings deserve basic rights.149 While “the thesis that humans should be ascribed rights simply for being human has received [*PG651]practically no support from philosophers,”150 it has received a little. In the view of Professor Lloyd Weinreb,
The starting point [for legal rights] is a categorical distinction between persons and things . . . inclusion in one category or the other is ordinarily settled by a single, uniform rule that the category of persons is coextensive with the class of human beings: All human beings are persons, and all persons are human beings.151
But to Professor L.W. Sumner, “it is quite inconceivable that the extension of any right should coincide exactly with the boundaries of our species. It is thus quite inconceivable that we have any rights simply because we are human.”152 I argued in Rattling the Cage that, because Professor Weinreb’s categorical distinction conflicts with overarching Western values and principles of fairness, liberty, equality, and reasoned judicial decision-making, Professor Sumner is correct. It “is inconceivable, in the sense that it is irrational or incredible” that rights should be granted to humans simply because they are humans.153 Of what inherent value could mere species membership possibly be? What interests could mere species membership possibly protect, unless these interests are connected to empirical qualities? Species is merely a taxonomic classification of a population of genetically similar individuals able naturally to interbreed.154 It is not an empirical quality as autonomy, self-determination, cognition, and sentience are.155
I imagined the discovery of a stout band of Neanderthals or Homo erectus, both possessed of highly complex minds, who managed to survive the millenia in some remote redoubt in Spanish Andulusia or Java.156 Neither are Homo sapiens, yet, could we,
without hesitation capture and exhibit them, breed and eat them, and force them into biomedical research? If their [*PG652]minds make us hesitate and in that moment, if we open up our minds to the possibility that they might be eligible for dignity-rights, shouldn’t the minds of chimpanzees and bonobos make us hesitate as well?157
A liberty right grounded in autonomy demands a mind. “If you think,” I wrote, “that nonhuman animals are never, ever conscious, then they are mindless, feelingless, thoughtless brutes that deserve no more legal rights than a toaster.”158 Isaiah Berlin wrote, “if the essence of men is that they are autonomous beings . . . then nothing is worse than to treat them as if they were not autonomous, but natural objects, played on by causal influences, creatures at the mercy of external stimuli.”159 This should hold for any autonomous being; species should be irrelevant.
According to Professor C.K. Allen:
The essential difference between person and thing seems to lie in the quality of volition. Animate creatures clearly possess some kind of motive-power which corresponds with the human will; it may be a very strong force indeed—thus if we wish to attribute to a man a particularly obstinate will, we compare him to a mule. But it is not a kind of will which is recognized by law; it cannot, in modern societies, involve the creature which exercises it in any consequences of right or liability. Nor do we attribute to the creatures what is closely akin to this volitional capacity, that is, the power of reason. Hence a thing has been defined [as having a] “volitionless Nature.”160
Things do not act autonomously. Persons do. Things cannot self-determine. Persons can. Things lack volition. Persons do not. Persons have will.161 Professor Allen implies a mule’s will is unrecognized in law because, though purposeful, it comes from instinct, which is the antithesis of volition. The mule has a will, he just cannot control it. Whether we call it self-determination, autonomy, or volition, if a being has it, she is entitled to basic liberty rights.
[*PG653] Philosophers often understand autonomy, which includes self-determination and volition, the way Kant did two centuries ago. I call his “full autonomy.” This demands that, in determining what I ought to do in any situation I analyze what others can and ought to do, and rationally analyze whether it would be right to act in one way or another, keeping in mind that I should act only as I would want others to act.162 Kant believed nonhuman animals, and probably children, act from desire.163 Fully autonomous beings act completely rationally and their ability to do that demands they be treated as persons.164
Kant was not the only philosopher to try to knit hyper-rationality into the fabric of liberty.165 The most honest concede what philosopher Carl Wellman calls a “monstrous conclusion:” a great many human beings do not make the cut.166 Most normal adults lack full autonomy and, indeed, infants, children, the severely mentally retarded or autistic, the senile, and the persistently vegetative never come close.167 Were judges to accept full autonomy as a prerequisite for personhood, they would have to exclude most humans.
Judges decisively reject Kant’s full autonomy. Events on February 29, 2000, in the United States show how wrong Kant was. A six-year old Michigan first-grader smuggled a handgun into school and shot a classmate to death.168 The County Prosecutor issued a statement that “[t]here is a presumption in law that a child . . . is not criminally responsible and can’t form an intent to kill. Obviously, he has done a very terrible thing today, but legally he can’t be held criminally responsible.”169 The child couldn’t successfully be sued civilly, either.
[*PG654] Isaiah Berlin explained that, for Kant, “[f]reedom is not freedom to do what is irrational, or stupid, or wrong.”170 But in courtrooms liberty rights mean freedom to do the irrational, stupid, even the wrong. That is why judges generally honor nonrational, even irrational, choices that may even cut against a decision-maker’s best interests.171 Self-determination may even trump human life.172 The determination of Jehovah’s Witnesses to die rather than accept blood transfusions is nonrational. Yet judges accept them. The mentally ill are not usually confined, against their wishes, unless they are dangerous to themselves or others.173
Judges who deny personhood to every nonhuman animal act arbitrarily. They don’t admit they do. Instead they use legal fictions, transparent lies they insist we believe, that allow them to attribute personhood to humans lacking consciousness, even brains, to ships, trusts, corporations, even religious idols.174 They pretend these have autonomy. Legal scholar John Chipman Gray couldn’t see any difference between pretending will-less humans have one and doing the same for nonhuman animals.175 Because legal fictions may cloak abuses of judicial power, Jeremy Bentham characterized them as a “syphilis . . . [that] carries into every part of the system the principle of rottenness.”176
A fair and rational alternative exists, and it is this: most moral and legal philosophers, and nearly every common law judge, recognize that less complex autonomies exist and that a being can be autonomous if she has preferences and the ability to act to satisfy them, or if she can cope with changed circumstances, or if she can make choices, even if she can’t evaluate their merits very well, or if [*PG655]she has desires and beliefs and can make at least some sound and appropriate inferences from them.177 In Rattling the Cage, I describe these autonomies as “realistic.”178 I now think “practical” better describes them.179 Beings have practical autonomy, and are therefore entitled to personhood and basic liberty rights, if they:
1.can desire;
2.intentionally try to fulfill their desire; and
3.possess a sense of self-sufficiency to allow them to understand, even dimly, that they want something and are trying to get it.
Consciousness, though not necessarily self-consciousness, and sentience are implicit in practical autonomy.
The core of equality is that like beings should be treated alike. Thus an animal might be entitled to basic rights, as a matter of equality, even if he or she lacks practical autonomy, so long as the sole point of reference is not some quality that all human, but no nonhuman animals possess.180
Perhaps unsurprisingly, for he is neither a philosopher nor a lawyer, conservationist Michael Hutchins incorrectly understands my equality claim to be the following:
Individual humans may differ in their mental and physical capacities, but are none the less treated equally under the law and granted certain basic rights. . . . Some nonhuman animals, such as chimpanzees and bonobos, share many characteristics with humans and, in fact, are considered by some to be in the same genus. . . . Therefore, those nonhumans should be granted similar legal rights.181
[*PG656]The claim is not that bonobos and chimpanzees are entitled to rights because they share many characteristics with humans or just any characteristic, for every being is both infinitely similar and infinitely different from every other. It is that they share relevant mental characteristics: whatever humans have that entitles them to basic legal rights, chimpanzees and bonobos have as well.
Hutchins’s legal and moral arguments are broadly typical of many made by scientists untrained in law or moral philosophy. A recent book reviewer in Nature makes a similar point about the use of nonhuman animals in biomedical research:
The scientists writing . . . believe that humans matter more than animals do, but their moral arguments are often superficial. Placing emphasis on the benefits we would lose if we gave up animal research does not prove that animals have no moral rights, or that their interests are inherently less valuable than our own. Neither our superior cognitive abilities nor the fact that animals treat each other badly settles the question of our duties toward them. And one reads with embarrassment two evolutionary biologists decrying animal rights as a “maladaptive philosophy” because it fails to promote the interests of our species.182
Hutchins, for example, doesn’t value equality: “[U]nlike [Wise,] I have learned to live with paradox, rather than seeking fairness and consistency in all things. Nature is far from even handed.”183 His disdain for consistency or fairness is clearly illustrated by his statement, “I believe that animal populations must sometimes be reduced through killing to prevent overpopulation. I believe that the world’s human population is also too large, and for this reason I have chosen to adopt rather than reproducing myself.”184 Despite his concession that some nonhuman animals have emotions and think, Hutchins writes, “my teeth are designed for an omnivorous diet, and I view the ingestion of animal as well as vegetable protein as part of my evolutionary history.”185 On reading this, however, anthropologist Barbara [*PG657]King noted, “If he’s going to argue consistently from the point of view of his evolutionary past, he’s leaving himself open to some very interesting lifestyle changes, in his diet and otherwise.”186 Primatologist Rob Shumaker wrote “the old ‘my teeth are designed to eat meat’ argument should be put on life-support. If this is true, why don’t gorillas eat meat?”187
Every civil rights advocate for human or nonhuman animals believes in individual rights. But “[t]he primary goal of the environmental/conservation ethic,” Hutchins writes, “is to preserve naturally occurring biological diversity.”188 It has nothing to do with individual rights, indeed, it does not value the individual, but the species and ecosystems.189 Hutchins understands this, but mistakenly believes animal rights advocates do not. They think they possess, he believes, a “pro-conservation” philosophy, when “in many cases, the goal of conserving species and ecosystems is in direct conflict with the goal of individual animal rights.”190 “If nonhuman animals are granted ‘legal personhood,’” he says, “then many endangered species could suffer.”191 This potential conflict is well-known within the animal rights movement and has been a staple of my “Animal Rights Law” classes since 1990.192 Animal rights advocates do not automatically value an individual of an endangered species more than any other individual in the same way that human rights advocates do not value an individual member of a minority over a member of a majority race, religion, or nationality.
The irony of Hutchins’s argument with respect to highly endangered chimpanzees and bonobos is that their legal thinghood exposes them to the predations of legal persons. That is why they are being driven to extinction by an African bushmeat trade, in which wild apes are killed for food. If legal personhood and legal rights are as important as I argue they are, granting these to chimpanzees and bonobos [*PG658]would go far toward protecting them. Ironically, Hutchins opposes this proposal.193
Instead, Hutchins claims, I am being “biologically naive.”194 But his argument illustrates the position philosopher Robert Nozick set forth more than twenty-five years ago: “utilitarianism for animals, Kantianism for people.”195 In other words, what is morally right for nonhuman animals is utilitarianism, the greatest good for the greatest number of nonhuman animals, with the individual of no inherent value, but every human being is an end in him or herself.196 When a nonhuman species overpopulates, kill the “excess”; when humans overpopulate, Hutchins decides to solve the problem by adopting a child. Who is being “biologically naive?”
Hutchins’s argument is not an appeal to justice, but to speciesism, arbitrariness, and bias. Hutchins does not even commit the “Naturalistic Fallacy,” confusing what is with what is right. Hutchins does not care what is right. He draws his moral and legal lessons from an amoral nature populated by amoral creatures. Nature is neither even-handed nor fair. But I do not use the behavior of amoral beings, past and present, as a model for justice or as a platform from which to argue for justice for chimpanzees and bonobos. And, unlike Hutchins, I accept that equality is, and has long been, a major value of American and international law, and understand that fundamental nonhuman rights can be derived from it in the same way that fundamental human rights can be.197 Hutchins concedes that the animal rights “focus on individual animals, as opposed to populations, species, and ecosystems . . . may itself be based on the cultural biases of its progenitors. Western cultures do tend to place more emphasis on the rights of the individual, as opposed to the welfare of society as a whole.”198 That is why my arguments lie within the mainstream of Western justice and Hutchins’s do not. No modern judge is likely to accept that paradox or evolutionary history is more acceptable than equality, fairness and consistency in judicial decision-making.
Damon Linker argued:
[T]he evidence adduced by Steven Wise to suggest that primates [sic] are capable of forming rudimentary plans and [*PG659]expectations fails to demonstrate they are equal to human beings in any significant sense. Men and women use their “autonomy” in a world defined not by the simple imperatives of survival but by ideas of virtue and vice, beauty and ugliness, right and wrong.199
Linker mixes the arguments from liberty and equality. Read most generously, he claims the relevant “like” is the ability to use one’s autonomy in a complex world of ideas and ideals, which resembles Kantian “full autonomy.” We know many humans live in that world, but many do not, and it is unclear why the ability to use autonomy in a complex world of ideas and ideals should be necessary for the basic immunity of bodily integrity.
Even great apes “should not be granted the same legal rights as humans,” says Michael Hutchins.200 I never claimed they should, as Professor Nussbaum recognized:
Giving apes legal rights does not mean giving them the same rights as adult humans. As with mentally disabled humans, a right may be qualified in certain ways in keeping with the creature’s level of understanding. Apes may have fewer rights in certain areas, and the rights they have may be more narrowly conceived. Finally, they may be given only certain elements of a complex right.201
Critics fear that, if one breaks through the legal wall that separates humans from every other animal, there is no reasonable stopping place, either with respect to which nonhuman animals should be entitled to rights or the rights to which they would be entitled.Judge Posner acknowledges, for example, that I seek judges,
in good common-law fashion, to move step-by-step, and for the first step simply to declare that chimpanzees have legal rights. But judges asked to step onto a new path of doctrinal growth want to have some idea of where the path leads, even if it would be unreasonable to insist that the destination be clearly seen.202
[*PG660]The argument that beings should be lifted from thinghood, with no rights, straight to full and equal status, as Judge Posner and Michael Hutchins imply, is more likely to be made by one who opposes lifting them from thinghood in the first place.203
In 1858, Abraham Lincoln and Stephen A. Douglas locked in a monumental series of debates across the Illinois prairie to decide a seat in the United States Senate.204 Douglas tarred Lincoln an abolitionist, committed to perfect equality between whites and blacks.205 In pre-Civil War Illinois, this was like Joseph McCarthy happening to mention in 1952 that you were a Communist.206 The American government, Douglas insisted, had been “made by white men for the benefit of white men and their posterity forever.”207 By his day’s standards, Lincoln was a moderately-enlightened thinker about black chattel slavery. He always opposed it, even if he did not always support social and political equality for blacks.208 But he made it the central issue of his Senate campaign, accentuating “the difference between those who think it wrong and those who do not think it wrong,” and squarely traced it to the assertion of the Declaration of Independence that “all men are created equal.”209 That was fine with Douglas, for it allowed him to press the attack.210 Lincoln, he exclaimed, was a radical, committed not just to freedom for the slave, but to the complete social and political equality of white and black.211 Lincoln correctly [*PG661]sensed that, if Douglas succeeded, he was lost, and edged toward the center.212
Lincoln called for slavery’s end, while attempting to dodge the stones of “perfect equality” that Douglas kept hurling.213 During their fourth debate at Charleston, Lincoln argued against the view that,
[B]ecause the white man is to have the superior position that the negro should be denied everything. I do not perceive because I do not court a negro woman for a [slave] that I must necessarily want her for a wife. My understanding is that I can just leave her alone.214
In the sixth debate at Quincy, he was even more explicit:
I have no purpose to introduce political and social equality between the white and the black races . . . but . . . there is no reason in the world why the negro is not entitled to all the natural rights enumerated in the Declaration of Independence—the right to life, liberty, and the pursuit of happiness.215
Historians have made clear what Lincoln was trying to do.216 Professor David Zarefsky argues Lincoln avoided “the slippery slope by which freedom led to racial equality” by declaring freedom an economic right that did not necessarily carry social and political equality with it.217 Professor David Potter labeled Lincoln’s the “minimum anti-slavery position,” while Professor Garry Wills said Lincoln’s “nub, the realizable minimum,” was that “[a]t the very least, it was wrong to treat human beings as property.”218 Lincoln was a famously practical lawyer, president, and commander-in-chief, known in the courtroom, political arena, and war room for affably conceding one nonessential point after another, often lulling his opponent into believing he had [*PG662]conceded them all, while never allowing an essential point to slip away.
Professor Nussbaum agrees that “the basic idea (of animal rights) is to undo the regime of ‘slavery’ in which . . . animals now live, by the simple recognition that they are persons and that their lives are their own.”219 Obtaining any legal rights for nonhuman animals in the present legal system will require fighting from Lincoln’s realizable minimum. Lincoln believed the physical, historical, legal, religious, economic, political, and psychological realities of the 1850s meant that taking more than one step at a time for black slaves would keep them enslaved. Today it means that advocating for too many rights for too many nonhuman animals too soon will keep every nonhuman animal enslaved.
Because I rely on the overarching values of Western jurisprudence, liberty and equality, and model the path toward basic legal rights for nonhuman animals on that trodden by humans in their struggle for civil rights, Judge Posner finds me just “another deer frozen in the headlights of Brown v. Board of Education.”220 This demonstrates, in Posner’s view, “a sad poverty of imagination,” one
that reflects the blinkered approach of the traditional lawyer, afraid to acknowledge novelty and therefore unable to think clearly about the reasons pro or con [for] a departure from the legal status quo. It reflects also the extent to which liberal lawyers remain in thrall to the constitutional jurisprudence of the Warren court and insensitive to the “liberating” potential of commodification. One way to protect animals is to make them property, because people tend to protect what they own.221
As was clear from Rattling the Cage, if frozen at all, it is in the headlights of its companion case, Bolling v. Sharpe, not in Brown itself.222 Not only did Bolling overrule Plessy v. Ferguson’s “separate but equal” rule, but, in my opinion, it “exemplifie[d] how a sure grasp of princi[*PG663]ple, history, scientific fact, and the evolution of public morality can lead judges to a volte-face from a disgraceful series of rulings that conflict with a more principled tradition.”223 That tradition was not human chattel slavery, Jim Crow laws, and “separate but equal,” but the grander, more fundamental tradition of equality.
Appeal to fundamental principles at a high level of generality can transcend constitutional jurisprudence; it is how the common law operates. Lemuel Shaw, mid-nineteenth century Chief Justice of the Supreme Judicial Court of Massachusetts, and probably the most respected American state judge of his time, wrote the common law “consists of a few broad and comprehensive principles, founded on reason, natural justice, and enlightened public policy, modified and adapted to all the circumstances of the particular cases that fall within it.”224 Certainly that was what Lord Mansfield, perhaps the most respected common law judge who ever lived, appealed to in Somerset v. Stewart, his famous eighteenth century decision to free the slave, James Somerset: “[t]he state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political; but only [by] positive law. . . . It’s so odious, that nothing can be suffered to support it but positive law.”225
In Rattling the Cage, I bisected common law judges into those with a Formal, and those with a Substantive, vision of law.226 All Formal judges rely heavily on precedent, valuing past judicial decisions simply for having been decided.227 I further divided Formal judges into three categories.228 Precedent (Rules) Judges follow narrow legal rules because they value legal stability and certainty.229 Precedent (Principles) Judges also value stability and certainty, but believe that precedents set forth broad principles, and it is these principles, and not the narrow rules etched by particular applications, that they should follow.230 [*PG664]Precedent (Policy) Judges adhere to policies contained in precedents.231
On the other hand, Substantive Judges look not to the past, but to the present or future.232 Judges who value “goal reasons” and try to predict the future effect of their decisions on society, I call Policy Judges.233 Judges who value “rightness reasons” and find them embedded not just in precedents, but in religion, ethics, economics, politics, almost anywhere, I call Principle Judges.234
The differences between Formal and Substantive Judges was well-illustrated in the New York Times obituary of Lord Denning, one of the purest Substantive Judges of the twentieth century.235 One Substantive lawyer admiringly noted that Denning had “steered the law towards the administration of justice rather than the administration of the letter of the law,” while a Formal Lord Chancellor groused that “[t]he trouble with Tom Denning is that he’s always remaking the law, and we never know where we are.”236
Judge Posner disapproves of my argument that Formal Judges grant basic legal rights to chimpanzees and bonobos as a matter of precedent, because I rely upon argument from analogy.237 Judge Posner is no Formal Judge. But arguing from analogy is how Formal Judges decide cases. Today, most common law judges invoke principles, not rules, when fundamental rights are at stake. Because liberty and equality are embedded in the common law (in the law of constitutions and international instruments as well), Precedent (Principles) Judges, arguing from analogy at a high level of generality, measure the justice and moral rightness of their re-examination of the justice of ancient legal rules, whether they involve legal thinghood of human slaves or nonhuman animals, and construct new and more just legal rules, and not just in the old ways. Because they almost always believe in the moral rightness of liberty and equality, and believe that most others believe it too, modern Principles Judges almost always ground their decisions in these two basic principles.
[*PG665] That is how it should be. Legal personhood should never turn on the mechanical operation of a narrow legal rule. No being should be denied legal personhood because others like him or her were denied them before or have always been denied them. This blindly perpetuates the most pernicious and invidious biases of which we humans are capable. Turning legal personhood on policy is as bad as linking it to narrow rules of precedent. Fundamental rights are intended precisely to protect a rights-holder from others who might think that harming him or her is either good for them or good for society. For example, there are many reasons to support the argument that a woman should have the legal right to an abortion. But when judges of the New York Court of Appeals asserted in 1972 that the legal personhood of fetuses was a policy question, they were wrong.238 As one dissenter rightly complained, “[t]his argument was . . . made by Nazi lawyers and Judges at Nuremberg.”239 Connecting fundamental rights to policy betrays the right, betrays the supplicant, and finally undermines the rights of the betrayer.
A judge might hold that any being—a human adult, infant, or fetus, a chimpanzee or a dog—should be a common law thing. But such a momentous decision should be made only after a careful weighing of the highest principles, for never does what is right more clearly trump what is good or what has been than when legal personhood, from which every legal right flows, is itself at stake.
In arguing that principle should determine legal personhood, I make no claim to objective truth. The evidence that judicial decisions are saturated with a judge’s values is overwhelming and the more contentious the issue, the more influential those values will be. My argument—and I freely admit it is based on a value judgment—is this: those judges who, like me, supremely value liberty, equality, and reasoned judgment, and who despise slavery and genocide, should be prepared to analyze every claim for personhood, above all others, through the prisms of fundamental principles. Judges who do not share these values may analyze claims of basic rights in other ways.
Judge Posner is a famous Principles Judge, whose most basic principles are economic.240 Broadly, he argues “that the common law [*PG666]does and should seek to maximize society’s wealth.”241 He agrees that wealth maximization, like its first cousin, utilitarianism, or nationalism, Social Darwinism, or racialism,
treats people as if they were the cells of a single organism; the welfare of the cell is important only insofar as it promotes the welfare of the organism. Wealth maximization implies that if the prosperity of the society can be promoted by enslaving its least productive citizens, the sacrifice of their freedom is worthwhile.242
Perhaps related is his discussion of “humanocentric concerns . . . one which assigns no intrinsic value to animal welfare, but seeks reasons strictly of human welfare for according or denying rights to animals. . . . It focuses on the consequences for us of recognizing animal rights.”243
Judge Posner agrees that his touchstone principle, wealth maximization, “is contrary to the unshakable moral intuitions of Americans,” and stresses that “conformity to intuition is the ultimate test of a moral (indeed of any) theory.”244 “[A]t least in the present relatively comfortable conditions of our society,” he concedes, “the regard for individual freedom appears to transcend instrumental considerations; freedom appears to be valued for itself rather than just for its contribution to prosperity.”245 He makes the point that “a system of rights . . . may well be required by a realistic conception of utilitarianism, that is, one that understands that given the realities of human nature a society dedicated to utilitarianism requires rules and institutions that place checks on utility-maximizing behavior in particular cases.”246 It appears, therefore, that in the realm of basic human rights, Judge Posner allows that wealth maximization principle is trumped by liberty and equality, even if he believes this should not be the case.247
How can this be squared with Judge Posner’s claim that, when it comes to the enslavement of chimpanzees and bonobos, I have “over[*PG667]looked the possibilities of commodification.”248 It cannot. “One way,” he claims, “to protect animals is to make them property, because people tend to protect what they own.”249 But “[w]e speak of slavery as degrading to persons because in slavery, individuals are valued as mere commodities . . . rather than as persons, worthy of the higher valuation of respect.”250 A major lesson of our long experience with human slavery is that, at the level of basic rights, there is no liberating potential in commodification whatsoever and that humans are more likely to exploit what they own than they are to protect it, especially if they can obtain more of the commodity once they have used it up. We continue to learn this hard lesson in the area of the environment.
In the United States, the commodification of nonhuman animals leads to almost ten billion slaughtered annually for food, most of them dying after living a terrible, painful life on a factory farm.251 Each was owned and killed either by, or with the permission of, the animal’s owner. Tens of millions of nonhuman animals are consumed annually in biomedical research in the United States. Each was owned at the time of death and was also killed either by, or with the permission of, his owner. The benefits to them of commodification are therefore hard to discern. Judge Posner’s argument merely reiterates Nozick’s “utilitarianism for animals, Kantianism for people.”252
Even companion animals would not benefit from commodification, for their value to their owners is noneconomic and nonutilitarian. Otherwise, they would not be companion animals. Companion animals are not fungible, as are nonhuman animals killed in agriculture or biomedical research. At best, they have an incidental economic or utilitarian value, for they are essentially family, quasi-[*PG668]children.253 They may even be metaphorical extensions of the human companions themselves.254
Thus, one reason I appear insensitive to the “liberating” potential of commodification of nonhuman animals is that it does not exist. Another reason is that a main purpose of Rattling the Cage was to demonstrate that the argument for the basic legal rights of at least some nonhuman animals lies squarely in the mainstream of the most important traditional common law values and principles. This is untrue at the level of specific legal rules. Here Judge Posner is correct: I am asking judges to step onto a new path of doctrinal growth—giving nonhuman animals basic legal rights.
Precedent (Rules) Judges will be unimpressed. But viewed at a higher level of generality, I am not asking judges to do anything they have not been routinely doing for centuries and which they consider to be important work, protecting bodily integrity and bodily liberty by applying fundamental principles of liberty and equality. As I stated in Rattling the Cage:
The decision to extend common law personhood to chimpanzees and bonobos will arise from a great common law case. Great common law cases are produced when great common law judges radically restructure existing precedent in ways that reaffirm bedrock principles and policies. All the tools for deciding such a case exist. They await a great common law judge, a Mansfield, a Cardozo, a Holmes, to take them up and set to work.255
What nonlawyers think of as one legal right is usually a bundle. Professor Wesley Hohfeld untied these bundles a century ago.256 I [*PG669]classify legal rights the way Hohfeld did. Although moral and legal philosophers have sought to classify legal rights in numerous ways, Hohfeld’s system:
remains both the lingua franca of much scholarly rights talk and the “standard model” of legal rights with which other scholars tinker. In whole or in part, it was adopted by various Restatements of the Law, as well as by Black’s Law Dictionary. Most importantly, Hohfeld’s sense of a right as something that confers legal advantage expressly or implicitly dominates the working world of even those lawyers and judges who have never heard of Hohfeld.257
Hohfeld thought every jural relationship was binary, existing between two legal persons concerning one thing.258 A right is an advantage conferred by legal rules upon a legal person with one legal person having the legal advantage (the right) and the other legal person bearing the correlative legal disadvantage.259 Like low and high pressure systems on a weather map, neither exists alone and Hohfeld defined them in relation to each other.260
Hohfeld set out four kinds of legal rights, each defined in terms of its correlative.261 The “liberty” (which correlates with “no right”) allows us do what we please, but has little practical value because no one need respect the right.262 The second is the “claim” (which correlates with the duty).263 It commands respect and can constrain liberty because one person has a duty to act or not in certain ways towards another person with a claim.264 Many hostile to the idea of “animal rights”—even those within the scientific community who know how smart and cultured apes are—assert apes cannot have legal rights because they are unable to shoulder responsibilities or, even more strin[*PG670]gently, live within a moral community.265 I discussed this in Rattling the Cage.
Must a person be able to physically make a claim in order to have one? The answer depends upon whether one emphasizes the “claim” part or the “duty” part of the claim-duty pairing. One school of legal scholars (we’ll call them the Benefit/Interest School) emphasizes “duty.” Any being with interests—an adult woman, a profoundly retarded man, an infant, a chimpanzee, or a dolphin—could, if allowed to be a legal person, have a claim that correlates to another person’s duty. The opposing school (the Control/Choice School) accents “claims.” These scholars argue that a person must actually have the mental wherewithal to be able to choose to make a claim and to control how it is made.266 Profoundly retarded men and infants, who lack these mental abilities, cannot then have claims. An even stricter branch of the Control/Choice School . . . says that claims and duties can only exist between members of a “moral community.” Unless one has the capacity not just to choose but to act morally, one can have no claims.
If required to meet the more stringent requirements of the Strict Control/Choicers, none but the most extraordinary nonhuman animal could ever have a claim. But here’s the rub: Millions of human beings would also be ineligible—and not just the profoundly retarded, but the insane, the permanently vegetative, and the very young. Many more human adults and older children, and perhaps even apes, whales, and parrots, might have claims if the Control/ Choice School prevailed. But vast numbers of human beings would still be ineligible, as would most other animals. However, if the Benefit/Interest School triumphs, aside from the permanently vegetative, virtually every human being would [*PG671]be entitled to claims; but so would a large number of other animals.267
Advocates of the Control/Choice and Strict Control/Choice Schools are kin to Kantians who demand full autonomy for liberty rights. Benefit/Interest advocates are much closer to the realistic or practical autonomy that I argue is sufficient for basic legal rights. However, to be conservative in Rattling the Cage, I did not argue that nonhuman animals are entitled to claims.
In Hohfeld’s third class of legal rights, a person can use a “power” (which correlates with the “liability”) to affect another’s legal rights, with the power to sue perhaps the most important.268 It is not clear whether someone has to be smart enough to assert a power in order to have it. They probably do not. Again, to be conservative, I did not argue that nonhuman animals are entitled to powers.269 Last, an “immunity” (which correlates with the disability) legally disables another person from interfering with the rights-holder.270 Claims dictate what we should not legally do, immunities dictate what we cannot legally do.271 I may kidnap you, but I cannot enslave you because human bondage is “impossible” under domestic and international law. Persons are immune from enslavement.272
I did not argue that chimpanzees and bonobos necessarily have claims against humans for violation of duties toward them or the power to sue, though I implied they should.273 But rational arguments cannot be made that someone must be smart enough to assert an immunity, or be able to choose, control, or shoulder responsibilities to have an immunity, as immunities do not need to be asserted, claimed, or controlled; nor do they correlate with responsibilities or duties.274 Immunities as freedom from slavery and torture are the most basic kind of rights and it is these to which chimpanzees and bonobos, like human beings, are most clearly entitled.275 The nature [*PG672]of immunities insulates them from the struggle between Control/Choice Theory and Benefit/Interest Theory that characterizes claim-rights and power-rights. Even prominent Control/Choice Theorists concede that immunity-rights shield “certain freedoms and benefits now regarded as essentials of human well-being” and are “essential for the maintenance of the life, the security, the development, and the dignity of the individual.”276 Critics who argue that legal rights require responsibilities, duties, or the abilities to choose or control fail to grasp the essence of an immunity-right or explain how the millions of humans—children, infants, the very retarded, the profoundly senile—who lack these advanced cognitive skills can have immunity rights. And though the occasional commentator admits what Professor Carl Wellman calls that “monstrous conclusion”—those who lack the ability to choose or control are not entitled to legal rights—most do not.277
“Why does the law provide protection for children—and for the mentally disabled, who also might not be rational and autonomous—but not for apes?,” asked journalist Kenan Malik in Nature. His answer:
[b]ecause children normally grow up to be full members of the moral community. . . . As for mentally disabled people, we provide them protections because they once possessed the potential to be a moral being. Children and the mentally handicapped are of the same kind as adult, autonomous humans: the kind whose normal instance is a moral being. Apes are not.