What Is the Most Effective Way to Advocate Legally for Nonhuman Animals?

This post is a conversation between guest legal experts Steven Wise, Anna Pippus, and Maneesha Deckha on the question, “What is the most effective way to advocate legally for nonhuman animals?”

Steven Wise: More than one million species of animals inhabit the Earth. The kingdom Animalia includes chimpanzees and fireflies, whales and cockroaches, elephants and beetles—and displays a staggering range of cognitive abilities and capacities to feel pain and to suffer. We routinely exploit them all because we can, for we have characterized them all as legal “things.”

Entities have long been classified as “things” or “persons,” though “person” is not now (and never has been) synonymous with “human.” Millions of human slaves were once considered things, while numerous entities—ranging from corporations to ships to a river and an idol—have been considered persons. The critical distinction is this: persons possess the capacity for legal rights; things don’t. Things are slaves to persons, persons are the masters of things.

Legal history demonstrates that the only way a human’s most fundamental interests can be properly protected is through personhood and fundamental legal rights. That is why much of the civil rights work over the last few centuries were attempts to transform every human “thing” into a human “person.” It is why Article 6 of the Universal Declaration of Human Rights provides that “(e)veryone has the right to recognition everywhere as a person before the law.”

Legal human slavery has ended. However, the battle to transform nonhuman animal “things” into “persons” only began when in December 2013, the Nonhuman Rights Project brought three cases in the trial courts of New York State. Each suit demanded that the court issue a common law writ of habeas corpus on behalf of a chimpanzee as required by two fundamental values and principles of Western law: liberty and equality.

The legal struggle to recognize the fundamental rights of humans was stubborn and arduous and the struggle to recognize the fundamental rights of nonhuman animals will be the same, for many humans benefit from their merciless exploitation of nonhuman animals. Moreover, many of the less cognitively complex nonhuman animals may never be protected by legal rights. While the rights struggle swells and rages, vast numbers of nonhuman animals will continue to suffer terribly. Something must be done in the short and medium terms to ameliorate their suffering.

That something is the creation and enforcement of as stringent legal protections as can be wrung from legislatures and courts for those nonhuman animal things who have fundamental interests, while keeping in mind that, for many cognitively complex nonhuman animal species, these protections will always be insufficient and unjust. Welfare and rights—for humans and nonhuman animals alike—historically derive from different sources, and have different histories and goals. Welfare is not some proto-right; rights and welfare are something different altogether. The modern nonhuman animal abolitionist movement is the child of the human abolitionist movement of the 18^th and 19^th centuries, while the antecedents of the modern animal protection movement lie with England’s 1822 Cruel Treatment of Cattle (or Martin’s) Act. No amount of welfare ever equals legal rights and no amount of welfare ever protects as much, or as invariably, as legal rights. But welfare is necessary until rights begin to ascend.

Anna Pippus: We in the animal rights movement have a rhetoric problem. We conflate the concept of personhood with the rights to life and liberty. But these aren’t the same: personhood is much broader. The rights to life and liberty are two of a virtually infinite number of potential rights that could be available to a legal person.

Being property and having personhood aren’t mutually exclusive. Indeed, corporations are both legal persons and the property of shareholders. Personhood is possessing legal rights of any kind along with the ability to enforce them.

A right is simply a legal entitlement to do, have, or be free from something. Rights are versatile, calibrated to the needs of the legal entity and society. Corporations, as persons, have some rights (to sue and be sued) but not others (they’re not protected from being used instrumentally or destroyed; they can’t vote). On the flip side, even our human rights have limits (we have the right to free speech, but not hate speech).

Existing animal welfare laws mostly aren’t rights for the simple reason that animals have no real means by which to enforce them. This principle—ubi jus ibi remedium, or for every wrong the law provides a remedy—has been recognized by the highest courts in the United States, the United Kingdom, and Canada. By securing legal standing for animals, we would transform our welfare laws into rights, and animals would be legal persons.

Recognizing these concepts (welfare and rights, and personhood and property) as existing on spectra, rather than as strict binaries, helps us to see that our legal advocacy efforts are all inching us toward our shared end goal. We are working towards animal liberation even when our immediate request isn’t for the ultimate rights (the rights to life and liberty).

Maneesha Deckha: Campaigns to secure legal recognition of animals’ equality, dignity and/or autonomy interests hope to transform animals’ lives by having the law recognize them as legal “persons” rather than property. Personhood shields entities from being treated as mere things owned and controlled by others. If animals were recognized as legal persons, the industries that confine and kill them would have to stop.

For those frustrated by the call for more “humane” regulation of industries that use animals, these “personhood” campaigns are a breath of fresh air. Although admirable, it is questionable whether personhood campaigns are an effective form of animal advocacy. My reasons for saying this do not relate to such campaigns’ chances of success in courtrooms or legislators (although this is an important evaluation criterion for advocates to consider). Instead, it is the exclusionary implications of personhood campaigns that motivate my concerns.

For one, personhood campaigns typically adopt anthropocentric values. Personhood campaigns challenge law’s exclusion of animals altogether, but endorse a hierarchy among animals, privileging the fraction that are “honorary humans.” They argue that these animals deserve to be persons because they are so human-like and/or exhibit the same traits we value in humans. Denying these animals personhood is an arbitrary speciesist distinction that should not be sustained in a legal system where likes are supposed to be treated alike. This strategy endorses sameness and humanizing logic to question law’s speciesist premises. In addition to the anthropocentrism that drives this approach, it is problematic because those animals who don’t register as sufficiently human will not qualify as persons.

But what if personhood campaigns for animals could avoid sameness logic and the insistence that animals comport to human benchmarks in order to matter? Would they be effective, then? It’s doubtful.

Discriminatory foundations haunt personhood as a concept in Western legal systems. There was a stark disconnect between law’s theoretical assertions about universal human equality, dignity and autonomy and the actual adverse material conditions of many people’s lives produced by systemic gender, race, class, ability, and other inequalities. Personhood reflected these biases: it was a legal status that originally applied only to white, middle-class, able-bodied and propertied men. Although it formally extends to all humans now, its exclusionary and elitist origins are not easily eliminated. Indeed, we see the legacy of these origins in the not-so-subtle exaltation in law of the “paradigmatic” person—the rational, individualistic, self-determining, contractual actor. Despite personhood’s pretensions to benefit all humans equally no matter their capacities or identities, the law’s paradigmatic/implicit person is never someone who is nursing, a primary caregiver, cognitively impaired, homeless, etc.

If personhood marginalizes human Others through its narrow vision of who is the ideal person, why would it work for animals? And why would we want to endorse it? We are already facing an uphill battle to secure personhood even for those animals seen as “special,” i.e. sufficiently like us. Why work with a concept destined to exclude some animals at the expense of others? Let’s try a different tack toward liberation. Or, even if we stick with personhood, let’s avoid sameness logic and anthropocentric benchmarks in pursuing it.

Anna Pippus: An entity in law can simultaneously have personhood and be the instrumental property of another, as is the case with corporations. Legal activists must recognize and exploit this as an opportunity. Even while non-human animals are still property, we must develop their personhood so that they can enforce, through their advocates, whatever legal protections are available to them.

I share the concern that advancing rights to non-humans on the basis of their sameness to humans is imperfect, for pragmatic reasons: what will this do for the chickens and fishes, who may be less like us, and who are suffering in enormous quantities? Their exploitation and suffering is important, independent of their similarity to humans. They, too, need legal standing to enforce legislated protections. I say this with the caveat that in the U.S., standing rules are fairly stringent, and animal lawyers struggle to even get into the courtroom. But this isn’t an equivalent barrier in every jurisdiction.

We have opportunities to utilize existing systems for reform without compromising the integrity of our shared message: that we humans do not have the right to dominate over other animals for our trivial purposes and that all animals desire and deserve their lives and freedom.

Maintaining the integrity of our message has strategic value, as well. A judgment that recognizes non-human animal personhood explicitly on the basis of their similarity to humans has less precedential value than animal judgments with more progressive language and principles. (Easier said than done, of course!)

Steven Wise: Nonhuman Rights Project lawyers long ago decided that legal reform was beyond their capabilities; instead they would obtain a deep understanding of the legal systems of the jurisdictions in which they litigate, then appeal to judges in the language of the values and principles the judges publicly claim to embrace in order to persuade them to recognize the personhood of nonhuman animals. The stakes are huge, for the benefits of personhood are dramatic. Personhood allows for the protection of those fundamental interests without which no being can flourish. Humans are not legally killed, enslaved, or routinely exploited as nonhuman animals are for a single reason: they are “persons.”

The NhRP is careful not to take any legal position that will necessarily lead to a hierarchy of nonhuman animals. For example, the NhRP has been arguing in New York state courts for two and a half years that, as autonomous beings, chimpanzees are entitled, as a matter of liberty and equality, to the bodily liberty protected by the common law writ of habeas corpus. However, the NhRP only argues that the characteristic of “autonomy” is a sufficient, not a necessary, condition for this legal right. There are other sufficient conditions that will be litigated in time.

The common law proceeds step-by step, allows for evaluation, and continues on. We believe the courts will need to evaluate, and adjust to, each advance in the legal rights of nonhuman animals and that the legal transubstantiation of nonhuman animals from “thing” to “person ” will catalyze a judicial, and eventually legislative, re-evaluation of the legal relationship between humans and nonhuman animals.

Anna Pippus: Animal-use industries are doing virtually whatever they want to animals, and if there is the veneer of a socially acceptable purpose, law enforcement tends to stay away. As a result, unconscionable animal suffering is the norm in self-policing animal-use industries. Even setting aside the rampant abuse that is found wherever animals are objectified and used for profit, industries openly admit to—and the public can see for themselves—the brutality of standard practices.

It’s hard to reconcile these industry-approved practices with existing laws that prohibit harming animals, particularly when public sentiment is against them, and in fact the legislature has never deemed them permissible. Financially and politically powerful industries have simply been harming animals in commercially desirable ways while law enforcement responds to complaints of cat and dog cruelty, virtually ignoring most species and most uses of animals.

Yet, typically, provincial law prohibits causing distress to animals, and only makes exceptions for “reasonable and generally accepted practices.” The word “reasonable,” which so far has been given almost no judicial interpretation, is a signal from lawmakers that no matter how generally accepted a practice might be, it also must be reasonable. I’ve already argued that rodeo is illegal and urged law enforcement to shut it down, but the same could be said for any number of unreasonable institutional practices: intensively confining farmed animals just because it’s cheaper and easier, deliberately harming animals for unnecessary research, coercing animals through pain and fear to perform tricks.

Our task is to be proactive in using the legal system in creative ways, not only by reporting animal cruelty and imploring law enforcement to act against even accepted practices, but by directly bringing animals’ interests before the courts ourselves so that the vague and virtually uninterpreted laws that purport to protect animals can be adjudicated and developed.

PETA and Zoocheck did this beautifully a few years ago when they sought a judicial declaration that the City of Edmonton was in violation of provincial animal welfare laws for keeping a lone elephant in a municipal zoo in abominable conditions. Although the case was dismissed before the merits were heard, the Chief Justice of the Alberta Court of Appeal observed in dissent that “it arguably remains an open question whether the common law has now evolved to the point where, depending on the circumstances, an animal might be able to sue through its litigation representatives to protect itself.”

In other words, a top judge in a top Canadian court has acknowledged that animals may be entitled to legal standing to litigate for protection. And why not? We designed the legal system, and we can and do adapt it in novel ways to suit our needs, such as by allowing corporations and other non-human entities to sue and by appointing litigation guardians to those with diminished mental capacity.

(Since that case was heard, our public interest standing laws have been even further liberalized, providing a further avenue for getting animals’ interests before the courts).

Ultimately, commercializing animals causes them to suffer, and they deserve to live free from exploitation and harm. To achieve their liberation, animals need us to translate public concern for animals into political and legal action, including by bringing their interests before courts to ensure existing laws are democratically and equitably enforced. Even while animals are still property, we can and must do this for them.

Steven Wise: Animal exploitation industries do what they please to nonhuman animals because they can, for all nonhuman animals are “things,” and always have been; they lack the capacity for any legal rights. All legal history reminds us that “personhood,” the capacity for legal rights, is the only sure way to protect the fundamental interests of any being. That is why Article 6 of the Universal Declaration of Human Rights provides that “Everyone has the right to recognition everywhere as a person before the law.”

The Edmonton suit by PETA and Zoocheck is an example of one attempt to obtain personhood, not standing, for an elephant being kept in a zoo in abominable conditions. As I have written elsewhere, there is no serious problem of nonhuman animal “standing,” for no “thing” ever has standing, while an injured nonhuman animal “person” automatically has it.

The Chief Justice of the Alberta Court of Appeal’s observation that the common law may have evolved to the point that a nonhuman animal might be able to sue through its human representatives to protect itself describes the bestowal of personhood upon that nonhuman animal, for personhood means that the “person” has the capacity for one or more legal rights. In the elephant’s case, that would mean she possessed some legal right, such as the right to bodily integrity or bodily liberty, that could be vindicated by her legal representatives in the manner of a human incompetent.

Maneesha Deckha: Initially, I argued that we should rethink abolitionist pursuits that stake their claims for animals on human similarity and cognitive capacity. Such claims validate human superiority and rely on discriminatory premises. Moreover, “humanizing” strategies will not help the legions of animals in intensive agriculture and research who are feminized and animalized instead of humanized.

The most common type of welfarist law—anti-cruelty statutes—takes sentience as a base point. Sentience is certainly less humanizing than cognition. Pushing the boundaries of welfarist laws through creative advocacy, then, might seem to avoid the exclusionary pitfalls of abolitionist claims that emphasize animals’ cognition.

But we know that gross exceptions abound in anti-cruelty statutes. Violent industry practices are normalized in these laws whose purposes correlate with anthropocentric outlooks. Welfarist laws, in never questioning mainstream animal uses, also implicitly favour the norms of dominant groups. Legal findings of “cruelty” will thus more easily apply to animal practices of non-dominant cultural, racial and class communities. In both cases, welfarist laws operate on a hierarchical “logic of exception.”

In trying to creatively marshall welfarist laws to procure judicial interpretations that challenge industry practices, it will be tempting for advocates to humanize animals or target non-mainstream practices to work within this built-in “logic of exception.” Any strategy of riding public opinion to effect a change must be vigilant in avoiding human or cultural, racial or class claims to superiority to make animals matter. Otherwise, we risk excluding non-humanized animals and attracting charges of racism and classism, respectively, neither of which is effective.