The Nonhuman Rights Project: Examining Today’s Most Prominent Legal Battle for Animal Rights & The Place of Law in Activism

By Hope Holtum
Junior Undergraduate at the University of Redlands Johnston Center for Integrative Studies
Abstract

This paper serves as an analysis of the Nonhuman Rights Project, its objectives, approaches and driving philosophies. These philosophies will be compared to other popular schools of thought in animal rights and analyzed to determine whether the Nonhuman Rights Project (NHRP) is a sustainable, effective approach in the greater quest for rights for all sentient beings. Does representing a limited variety of species further perpetuate speciesism, or is it a stepping-stone that will gradually open up the civil rights sphere to protect all sentient beings? The organization’s choice to begin with the most intellectually complex nonhuman animals is intriguing. Yet, the ultimate goal of the project combined with an awareness of the sluggishness of litigation strategies may prove this approach to be the best way to begin shattering legal barriers. However, when this enforcement of an anthropocentric hierarchy is promoted in social-change-based animal activism, it may end up hindering the social advancement of animal rights. The following examination will attempt to prove that the best approaches for legal change frequently differ from the best ways to invoke cultural shift.

 

Through both public education and litigation, the Nonhuman Rights Project seeks to change the legal status of some animals from “things” to nonhuman persons who would possess all the fundamental rights granted to humans including bodily integrity and bodily liberty. Founded in 2007 by Steven Wise, the project’s webpage claims that they seek “to break through the legal wall that separates humans from nonhumans, thereby gaining legal “personhood” for nonhuman animals, beginning with some of the most cognitively complex animals on earth, including chimpanzees, elephants, dolphins, and whales” (NHRP Website). These species are both sentient and self-aware. While a large number of nonhuman animals are sentient, or able to perceive and feel, only more cognitively complex animals are self aware.. The Project is engaged in a long-term strategic litigation campaign that manifests itself in a series of individual cases representing individual cognitively complex animals. It is worth noting that the animals that the Project highlights are certainly not the only animals who are self aware; additionally, intelligence is measured in very anthropocentric terms. This system excludes the unique impressive cognitive capacities of countless other species. In his book “Are We Smart Enough to Know How Smart Animals Are?, Frans De Waal challenges us to consider intelligence less like a ladder and more “like a bush, with cognition taking different forms that are often incomparable to ours”. In short, the Project not only chose animals who are considered intelligent by anthropocentric standards, but also chose members of species with a generally positive connotation attached to them in mainstream society. Some of these cases will later be highlighted.

In order to understand the significance of the unique efforts of the Nonhuman Rights Project in both the legal and animal rights activism spheres, it is first important to understand the basic legal terms the organization uses and how these terms are used for nonhuman animal legal cases. In a short documentary titled Animals Are Persons Too, Wise is filmed interacting with his most common clients: chimpanzees, as he explains the concept of legal personhood: “In legal terms, a ‘person’ is a subject of legal rights and duties” (NHRP site). The law sees entities as either persons or things; to be a legal person is different from being human. In the United States, corporations are granted the status of legal personhood, which allows them to sue and be sued. In New Zealand, a river was recently given the status of a legal person, giving it certain rights and subsequent protection from being polluted. These instances demonstrate that the rights and status of legal personhood applies uniquely to each situation. A river for example would not be given the right to vote as a legal person, but the status still grants rights that apply and benefit it. Similarly, humans, who all possess the status of legal persons in this country are granted rights that are appropriate to them. People with uteruses have the right to a safe and legal abortion. These same rights do not explicitly apply to people who do not have uteruses simply because there is no need for them to have this right. In the same vein, nonhuman animals who would be granted legal personhood would be granted rights that are relevant to them. In order to obtain legal personhood, it must be proven that the entity has a capacity for at least one legal right. In the case of nonhuman animals, this might be their sentience, which would imply that they “ought” to have a right to bodily liberty and integrity. Once a nonhuman animals’ status is changed from a legal “thing”, which lacks the capacity to hold any rights, to a “person”, the next step is determining exactly what rights they are entitled to. The following writs, formal written orders issued by a court usually to grant extraordinary relief, seek to do this.

“Habeas corpus” requires that anyone who is holding another in some form of detention must show cause as to why they have the right to do this. If the “jailer” cannot show just cause, then the detained must be released. Often the detainee cannot be present to call for a writ of habeas corpus and therefore someone can bring the writ on behalf of another. In the Nonhuman Rights Project’s cases, habeas corpus would be present in cases that would call upon captors of any of the nonhuman animals being represented to justify their reasons for keeping them captive. If the specific animals in question are now viewed as clients of the Project, some legitimacy may be given to fundamental rights such as bodily integrity. However because these cases are individual-based and not species based, the legitimacy given to one animal’s basic rights will not transfer to all members of that species unless the case becomes class action.

Similar to habeas corpus is the writ “de homine replegiando”. This writ “offers legal ‘things’ the opportunity to challenge their legal ‘thinghood’ and establish their right to bodily liberty” (Mills and Wise, 160). Where habeas corpus has been unsuccessful, “de homine replegiando” may succeed. The two differ in that “de homine replegiando is a writ of right, habeas corpus is not. In other words, “de homine replegiando” places the initial burden on the respondent, or captor to “show cause why he or she should not be compelled to comply with the writ and release the prisoner from detention” (166). Some legal experts predict that this writ may be more successful in the case of nonhuman animals. Yet, this writ has not been invoked in about 140 years in the United States, and some fear that the some states may not accept its legitimacy anymore. The central obstacle is that the “writ was abolished in some Southern states because judges were not enthusiastic about black slaves trying to use it to invoke their freedom” (NHRP site).

Finally, common law equality:

“demands that likes be treated alike and unalike be treated unalike. In other words, I am entitled to a right as a matter of equality because I am sufficiently similar, in a legally relevant way, to someone else who possesses that right. And I’m not entitled to that right if I am not sufficiently similar, in a relevant way, to someone who has it.” (NHRP site).

The Nonhuman Rights Project hopes to invoke the part of this principle that determines which qualities are legitimately alike enough that entities should be treated alike. Common law equality rejects any differences that reflect deeply rooted social stereotypes as well as classifications that are morally irrelevant. For instance, currently chimpanzees are barred from bodily integrity not because the right is irrelevant to their existence (their capacity to feel pain makes it relevant), but because they are not human. Under common law equality, this reasoning for denying them rights should be seen as the result of “deeply rooted social barriers”, and therefore as irrelevant. Because of their proximity to humans and their cognitive complexity, Wise and his team believed that some of their first clients, Tommy, Hercules, Leo, and Kiko, were most likely to succeed in changing their status from things to persons.

The first-ever lawsuit was filed on behalf of captive chimpanzees on December 2, 2013. The four chimpanzees all reside in the New York. Tommy is a 26-year-old chimpanzee who lives in a used trailer lot, isolated in a cage inside a dark shed on the owner’s property. Kiko, also 26, was once used in the entertainment industry and is almost completely deaf due to injuries on set, now resides in a cage by himself inside a residential home in Niagara Falls, NY. Hercules and Leo are younger chimpanzees who are owned by the New Iberia Research Center and used for locomotion research at Stony Brook University.

The chimps’ legal representatives demanded they be granted the basic right to bodily integrity via habeas corpus. The suits, filed in the New York Supreme Court, are based on scientific evidence proving that chimpanzees are self-aware and autonomous, and therefore entitled to be recognized as “legal persons” with certain fundamental legal rights. The case summary asserts, “legal claims made by the Nonhuman Rights Project are rooted in genetic, cognitive, physiological, evolutionary and taxonomic evidence that the plaintiffs are self-aware and autonomous”. Rooting their central basis in scientific claims further highlights the relevant aspects of the nonhuman clients and discredits a species barrier as a legitimate division between who is granted personhood and who is not.

The elements of self-awareness and autonomy are unique to cognitively complex species. Nonhuman clients that are closer to humans are more likely to be granted personhood because common law equality will have far less “unalikes” to point out as relevant factors to deny nonhumans personhood. If another species were represented, the basis for their right to legal personhood would be sentience rather than self-awareness. In theory, this too should hold up in court as a legitimate basis for a nonhuman animal’s right to bodily integrity because they can feel physical and often emotional distress; yet the inevitable bias of judges and juries requires the gradualism that NHRP invokes: start with animals closest to humans shattering the barrier, then work from there. The case description for Hercules, Leo, Tommy and Kiko brought significant public attention to NHRP for the first time; in their statements to the public about the case, NHRP asserted that, “Our goal is to breach the legal wall that separates all humans from all nonhuman animals.”

The Nonhuman Rights Project’s messages of “liberty, equality, and justice” were initially not taken seriously. As the arguments put forth by the project became known to the public, some groups felt that their own movements were threatened by NHRP’s rhetoric. The Discovery Institute’s Center on Human Exceptionalism condemns NHRP; Wesley Smith, the Institute’s leader, accuses them of comparing chimpanzees to black people. An anti-abortion group has also attacked the organization, saying that they assert autonomy and self-determination as requirements for basic rights, rather than sufficient conditions. Both of these groups mistake the legal rhetoric the organization puts forth for social or philosophical rhetoric. NHRP draws legal analogies on how habeas corpus can be used for nonhuman animals in the same way slaves used it to obtain their freedom. It is comparisons such as this that have served as mechanisms of division between movements. Marjorie Spiegel’s book The Dreaded Comparison interrogates the practice of slavery by comparing the enslavement of animals to the enslavement of African Americans. Needless to say, the comparison was met with controversy and a slew of mixed feelings by civil rights activists, along with animal rights activists who sought to maintain separation between their movement and that of racial justice. While legal rhetoric is often misinterpreted as exclusive of prejudice when it appears in a social sphere, racism in the animal rights movement is certainly a legitimate claim regardless of whether NHRP as an organization perpetuates it. There are surely loud voices in the animal rights movement who are unengaged in human rights discourse or even trivialize it. These voices remind us of the separation between movements that have the potential to intersect and consequently become stronger. Moreover, it is also the central reason that legal endeavors to protect and empower marginalized groups often look very different from social endeavors. For the purposes of this paper, the “social sphere” refers to any sector, rhetoric or situation that illustrates social norms and beliefs. The central discrepancy between NHRP’s legal efforts to obtain animal rights and the modern animal rights movement is the presence of a species hierarchy in NHRP’s strategies, which directly contradicts routine rejections of anthropocentrism in the philosophical realm.

In addition to the reinforcement of speciesism within and outside of the animal rights movement, NHRP’s decision also appears to perpetuate ableist ideas, discrimination against those with physical and cognitive abilities that are different from the hegemonic majority, regarding who is eligible to receive certain rights and who is not. This proves problematic for both animal and human rights activists because it inadvertently implies that one should have certain rights not because they are fundamentally entitled to them, but because they are capable of a specific function (e.g. self awareness). In her 2009 work The Personal is Philosophical is Political, Eva Kittay’s ethical analysis brings to light that one can also reasonably foresee obstacles that this rhetoric will pose in affirming differently abled humans’ eligibility to the same rights as their able-bodied human counterparts.

The discrepancy described above can also be illustrated in different terms. In Todd Gitlin’s Letters to a Young Activist, he describes two distinct groups that take very different, but equally necessary approaches to social change:

“Successful protest movements require two types of activists working in tandem. There are outsiders, usually young, moralistic, committed to confronting the powers that be with evidence of errors, sins, and crimes. […] Insiders, by contrast are usually professionals, academics, and lawyers. They are older, more accomplished, lovers of order who tend not to raise their voices. They are familiar with the ways of bureaucracy.” (Gitlin, 94).

“Inside activists” are essential because they are practical and can incite the concrete change that often eludes “outside activists”, who are more focused on ideologies. By the same token, outside activists help a movement maintain a clear vision of the future without having to compromise their ideals in the face of bureaucracy. Needless to say, the Nonhuman Rights Project is operating under countless litigation frameworks that impede the rate of progress severely. NHRP is equipped with the education and an understanding of how these frameworks function and can suppose approaches most likely to be successful. The necessity of these two approaches is further confirmed when past social justice movements are examined.

Activists also often craft their strategies of outreach by leaning toward either methods of incremental change (eat less meat, become vegetarian first, then vegan) or by encouraging a more immediate drastic change with the ultimate intent of immediate abolitionism for animals. Activist Christoph Swatosch reminds us that both approaches share the common goal of abolishing all use of animals by humans. They differ in what they think the most effective method is to achieve this. Like most dichotomies, when played out in the real world, they appear more as a spectrum rather than a binary. The Nonhuman Rights project embodies an appropriately complicated combination of the two approaches as well, clearly leaning more toward instrumentalism. While they believe that ultimately all animals should be granted personhood, they begin with those our society deems closest to humans.

In Tammie Bryant’s article on Similarity or Difference as a Basis for Justice, she remains critical of the similarity arguments that many animal advocates pose when trying to obtain rights for nonhuman animals. As mentioned above regarding common law equality, “The similarity argument, in the context of advocacy for animals, claims that animals are like humans in the capacities that are relevant to legal entitlements” (211). She fears that it the requirement of likes being treated alike “creates a hierarchy of worthiness” (Bryant, 215). In the current efforts of the Nonhuman Rights Project, the attempt to draw similarity is on the basis of cognitive ability. Multiple animal rights philosophers have pointed out the anthropocentric attitude that comes with distributing value to a species based on their cognitive abilities. In The Feminist Care Tradition in Animal Ethics, Josephine Donovan suggests that proximity to humans should not be a component in gauging the value of a being. She posits an alternative feminism-inspired justification for rights and respect for all species that is rooted in interconnectedness and “recognizes the varieties and differences among the species but does not quantify or rank them hierarchically in a Great Chain of Being and… understands that they and we exist in the same unified field continuum” (Donovan, 74). Though Bryant echoes Donovan’s testaments about the hypocrisy and toxicity of the similarity approach, she then concedes the necessity of this approach within the current framework: “The history of social justice activism in the United States suggests that use of the similarity argument during the initial stages of reform may be inevitable” (Bryant 226). By looking to past movements that have fought for the rights of marginalized groups, it is clear that it is not uncommon for underlying ideologies to become warped, hidden or substituted with more legally palatable rhetoric in order to gain traction. She admits this by claiming,  “Civil rights activists, feminists, gay rights activists, and the disability rights community have all used the argument that a just society would provide entitlements to the groups they represent (and the individuals within them) because of those groups’ similarity to the legally protected groups” (226). Bryant is honest about her awareness of both the necessity and the danger of invoking compromised ideals into bureaucratic structures.

Under common law equality, invoking a similarity argument as a starting point for courts to acknowledge the legal personhood of nonhuman animals proves to be especially necessary since the term itself requires that “likes be treated alike”. Applying a more ideal anti-discriminatory approach rather than a similarity approach would require changing a cornerstone element of the current legal system: certainly a worthy long-term aspiration. But long-term goals must not hinder more practical short-term goals, even if they are less “ideologically pure”. It is necessary to never lose sight of the underlying ideologies that may not yet be apparent in the legal sphere; that would be where “outside activists” come in, maintaining a pure vision throughout the logistical battles.

It is the endurance of these ideologies that come in, once a movement gains traction. Bryant calls the quest for rights that does not require sameness, the anti-discrimination approach. She goes on to specify: “The anti-discrimination approach […] is based on the idea that a just society would prevent harm or exclusion that is based on superficial or irrelevant differences among people. Such a society would protect and amplify diversity and inclusion” (210). She cites the feminist movement as a pertinent example of a movement’s shift from the similarity approach to anti-discrimination. She recalls, “In the 1960s and 70s, it was important to women’s advocates to emphasize similarities between women and men so that women could gain more equitable access to the workforce and the workplace” (229). Once women finally began to become assimilated in the workforce, it became apparent that when women wanted to become pregnant but keep their job afterward, there were no accommodations because they were expected to perform their duties in the exact same way men have. Feminists then began advocating with a different goal, one that would involve “restructuring the workplace so that people of varying capacities at any given time in their careers could work in an environment that fully anticipated such variations” (231). This time instead of denying differences between men and women, feminists acknowledged them, claiming that true equality required a structure that accommodated all who were entitled to participate in it. The concept of true equality is often viewed next to “formal equality”, which is simply the passing of a law that grants protections and acknowledgements of one’s rights. Bryant argues that equality does not stop here; it is only the beginning. After formal equality, or a minimal acknowledgement of a group’s rights, there must be a demand to restructure the systems that the group is now allowed to be a part of so that they can also participate in it and have an equal opportunity to succeed.

The Nonhuman Rights Project represents the beginning of a movement: the foundation of formal equality. Their place in animal rights represents the start of something grander. Just as the integration of women in the workforce was one of the first steps toward gender equality, so too for animals is the acknowledgement of some species’ legal personhood. But, pursuit of justice cannot stop after the Nonhuman Rights Project succeeds. Their goal is to create traction, and the inside and outside activists that follow must build on that traction to create something more dynamic. Hopefully, once our society can begin to imagine civil rights including animal rights, the movement can shift toward the anti-discrimination approach, just as feminists did with their movement. What does an anti-discriminatory approach look like for animals? The basis for a being having legal personhood may not be their cognitive proximity to humans, but their existence as diverse, distinct species which are part of a web of interdependent life; that alone is a sufficient reason to protect them from human exploitation. Our culture is far away from this goal, but the vision must stay alive as groups like the Nonhuman Rights Project drudge through logistical obstacles. In the meantime, outside activists can fight on, relentlessly deconstructing harmful social norms that oppress all animals, an oppression that, as long as they are in existence, will inevitably circle back to our own species.

Works Cited

Bryant, Taimie L.. “Similarity or Difference as a Basis for Justice: Must Animals Be Like Humans to Be Legally Protected from Humans?”. Law and Contemporary  Problems 70.1 (2007): 207–254.

Donovan, Josephine, and Carol J. Adams. The Feminist Care Tradition in Animal Ethics: A Reader. New York: Columbia UP, 2007.

Frey, R. G.. “Animal Rights”. Analysis 37.4 (1977): 186–189.

Mills, Blake and Steven M. Wise,“The Writ De Homine Replegiando: A Common Law     Path to Nonhuman Animal Rights,” 25 Geo. Mason U. C.R. L.J. 159 (2015).

Pocar, Valerio. “Animal Rights: A Socio-legal Perspective”. Journal of Law and Society   19.2 (1992): 214–230.

Regan, Tom. The Case for Animal Rights. Berkeley: U of California, 1983.

Spiegel, Marjorie. The Dreaded Comparison: Human and Animal Slavery. New York, NY: Mirror, 1996. Print.

“The Nonhuman Rights Project.” Web. 25 Mar. 2016.

Waal, F. B. M. De. Are We Smart Enough to Know How Smart Animals Are? New York: W.W. Norton, 2016. Print.

Welty, Jeff. “Foreword: Animal Law: Thinking About the Future”. Law and Contemporary Problems 70.1 (2007): 1–8.

Wise, Steven. “The Capacity of Non-human Animals for Legal Personhood and Legal  Rights.” The Politics of Species Reshaping Our Relationships with Other Animals: 241-5.

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