As long as nonhuman animals are considered legal things, hard-fought victories on their behalf can be reversed with the stroke of a pen.
Below is a lightly edited transcription of my Opening Plenary Talk at the Animal Rights National Conference, which took place Aug. 3-6, 2017 outside Washington, D.C.
It is fitting that at AR 2017, Animal Rights 2017, I announce on behalf of the Nonhuman Rights Project what we see as the beginning of the end of the age of animal welfare and animal protection and the end of the beginning of the age of civil rights, true legal rights, for nonhuman animals.
It is the beginning of the end of activists having to beg and plead and cajole other human beings in an effort to get them to do the right thing for nonhuman animals, to get them to try to respect the fundamental interests of nonhuman animals, whose interests are presently invisible in courtrooms, invisible to civil law. And it’s the end of the beginning of the struggle for personhood and the civil rights of nonhuman animals for whom we demand those fundamental legal rights to which justice and equity and scientific fact entitle them.
Animal welfare, animal protection, has been around in some form since 1641 when the Puritans came up with their Body of Liberties. Number 92 said that “(n)o man shall exercise any Tirranny or crueltie toward any bruite Creatures which are usuallie kept for man’s use.” In 1822, Martin’s Act was passed in England, which was an act for the protection of cattle. Later, England, all of the states of the United States, and other countries followed with anti-cruelty statutes and such statutes as the Twenty-Eight Hour Law and the Animal Welfare Act. The fact is they have all been pathetically ineffective. You just have to look around to see how ineffective animal welfare and animal protections are and have been. The purpose of the Nonhuman Rights Project is to stop all advocacy for nonhuman animals from being focused on welfare issues and moving them in a more effective way towards rights.
One of the major issues even when there are animal welfare or animal protection victories is that we have gotten them by asking somebody to, please, do the right thing. Sometimes they will do it; sometimes they won’t. Even when they do it, someone else may come in and undo it.
President Trump is a great example of that. With the same pen that President Obama used to sign various federal regulations that appeared to protect nonhuman animals and that went into effect after many years of valiant effort, President Trump Xs them out. That’s a problem with animal welfare and animal protection. It is the problem of being a thing versus being a person.
For years I have talked about a great legal wall that exists, and has existed, for 2000 years between things and persons. On the “thing” side of the wall, today, in 2017, are all the nonhuman animals of the world. You have to understand what a legal thing is. A legal thing is an entity that lacks the capacity for any kind of a legal right. It lacks inherent value. It only has instrumental value for legal persons. It is a slave to the master. A legal person is a master to the slave. All of us here are legal persons. We are the owners of things, whether that thing is an elephant or this podium.
Today, all the nonhuman animals of the world are on the legal thing side, all of them; all of them lack the capacity for any kind of legal rights. On the other side are legal persons. Today, in 2017, all human beings are on the “person” side of that wall.
But it’s important to note that being a person and being a human being have never been synonymous, are not synonymous today, and will never be synonymous. Often the Nonhuman Rights Project has to explain this to judges who should already know that. Occasionally we lose cases because judges don’t understand that this has never been true, it is not true now, and it never will be true,. Though they may misunderstand this today, one day they will be corrected.
Even today, in 2017, there are entities who are not human beings who are persons. Courts, for example, in pre-Independence India held that a mosque is a person, that a Hindu idol is a person. In 2000, the Indian Supreme Court held that the holy books of the Sikh religion were a person. More to the point, in the last year, New Zealand had designated a certain river, the Whanganui River, as a person who can sue and be sued and that owns its own bed. Last summer the Government designated a certain national park as a person.
More to the point, in November of 2016, the first nonhuman animal was characterized as a “non-human Person.” This was Cecilia in Mendoza, Argentina. The court ruled that Cecilia was a non-human Person, issued a writ of habeas corpus, and ordered her transferred to a sanctuary.
Last week, in the country of Colombia, their Supreme Court held that a certain bear was a person and issued a writ of habeas corpus. That bear is going to be moved pursuant to the writ of habeas corpus from where he is now, presumably to a sanctuary. We don’t know for sure; it’s a 35-page opinion in Spanish. We are having our translators translate it so we understand exactly where he is going to be moved.
The Nonhuman Rights Project spent years developing these ideas around writs of habeas corpus. Why? We thought that at least an entity who was scientifically proven to be autonomous ought to be entitled to a writ of habeas corpus. A writ of habeas corpus is only granted to legal persons. A thing cannot be released pursuant to habeas corpus. You have to be a person with the right to bodily liberty that is protected by a writ of habeas corpus. We are happy to see that brother and sister organizations and lawyers in other countries are picking up on the kinds of arguments we have been making, so far, in the state of New York and, to some extent, doing better in Argentina and better in Colombia than we have been doing in New York. And we are working not just with them but with lawyers in 13 countries on four continents to help them win personhood for as many nonhuman animals in as many countries as we possibly can.
Let me speak for one moment about what the Nonhuman Rights Project has been doing within the state of New York, and within the United States. The Nonhuman Rights Project is about to move outside the state of New York, while continuing to litigate within the state of New York, moving to a second state, and a third state. We will be soon filing a lawsuit on behalf of elephants in a second state, filing a lawsuit on behalf of chimpanzees in a third state. And we have made any secret of that we will be moving against SeaWorld in San Diego who continue to imprison numerous orcas. The SeaWorld campaign is a complex multi-year strategy that involves legislative work, referendum work, and habeas corpus work. It’s going to be very interesting.
When the Nonhuman Rights Project enters a jurisdiction we don’t bring our own ideas about personhood. We look at what values and principles the courts and legislatures have determined are supremely important.
For example, before we began litigating in the state of New York we looked carefully to determine what the judges of the state of New York said they valued. We saw that they valued liberty, they valued autonomy, they valued equality, and so those were the values and principles upon which we based our legal arguments. Specifically, we argued that an entity who is autonomous—and we brought in scientific evidence from around the world to proven their autonomy—an entity who is autonomous should have certain kinds of rights. That meant that the courts (1) had to rule in our favor, (2) had to say that we had chosen the wrong values, or (3) had to say to say that we had identified the correct values then rule against us in an arbitrary way, which is what many of the New York courts have been doing.
We argue that being autonomous is sufficient, though not necessary, for legal personhood and rights under the common law. One New York court had previously said no: in order to have a right you had to be able to bear duties and responsibilities. We argued that you obviously don’t have to be able to able to assume duties and responsibilities to bear rights; don’t they have children? Haven’t they seen that their child can’t assume a duty or responsibility yet has rights?
That court cited a famous legal source called Black’s Law Dictionary to show we were wrong and had relied upon it in ruling against us. We determined the source Black’s had cited by going to the Library of Congress. We immediately realized that Black’s Law Dictionary itself had made a mistake and that the source actually supported our argument. And so we wrote to the editor-in-chief and said, hey, you’re messing up our cases by giving the wrong definition. He immediately wrote back and said, whoops, sorry, we’ll fix it in the next edition. The next time we went to a New York court, we said, don’t rely upon that case, we’d like you to look at the correspondence in which we point out to Black’s that they made a mistake and that Black’s had agreed. But the court said no, we won’t look at your correspondence, then ruled in the exact same wrong way.
That court responded, when we pointed out that millions of human beings lacked the capacity for duties and responsibilities, and I quote, for this is one of our favorite sentences: “this argument ignores the fact that they are human beings.” As if, you know, we hadn’t realized that our clients were not human beings until they pointed that out. That case we have come to see as the Dred Scott for animals. Do you think that the lawyers for Dred Scott himself ignored the fact he was black when they filed the lawsuit? Or that the lawyers for a Native American named Standing Bear, who became the first Native American to seek a writ of habeas corpus—with the United States government replying that a Native American could not be a person because he was a Native American—ignored the fact that he wasn’t white? Or that when Lavinia Goodell in 1879 sought to be a lawyer in the state of Wisconsin and its Supreme Court said a woman could not be a lawyer that her lawyers had ignored the fact that she wasn’t a man?
These problems that the Nonhuman Rights Project encounters are those we fully expect. We understand the history of what has occurred when those who were not persons began trying to become persons, trying to persuade courts to overlook characteristics—you’re a woman, you’re a Native American, you’re black—that were irrelevant to the end they were trying to attain. Some judges continue making these statements today. They were wrong then. They are wrong now. With respect to the judges who are ruling that way now, at some point they, or their children, or their grandchildren are going to be embarrassed by the fact that they said such things in cases involving such extraordinary beings as chimpanzees or orcas or elephants.
The intellectual, the philosophical, the historical bankruptcy of these kinds of statements may explain why, for example, the last appellate court we argued before refused to allow NBC News to bring its cameras into the courtroom to record the oral argument. But it also signals the end—the very bankruptcy of their argument signals the end—of the beginning of the movement for civil rights for nonhuman animals and the beginning of the end of the age of welfare. The arguments against rights are untenable. They cannot stand. And they will not stand.
And so the age of animal activists begging and pleading and cajoling—asking that those extraordinary beings who cannot speak for themselves ought to have some sort of rights, ought to be treated in a certain way—is coming to a close. The Nonhuman Rights Project now, and we hope others in the future, are no longer going to ask. We are going to demand the rights that nonhuman animals are entitled to. The day of animal welfare and animal protection is passing and will soon be over.
The time to demand the just and justified fundamental legal rights of nonhuman animals is here. The time is now. It’s beginning.
To learn more about the Nonhuman Rights Project, visit www.nonhumanrights.org.