By Christian Viveros-Fauné
By Miriam Felton-Dansky
By Tom Sellar
By Tom Sellar
By Jessica Dawson
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By R. C. Baker
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When Marc Jurnove first visited the Long Island Game Farm Park and Zoo in the spring of 1995, he found Barney, a chimpanzee, living in bleak isolation, with only a swing to distract him and no other chimps in sight. Concerned, Jurnove sought legal action. However, the case that followed, Animal Legal Defense Fund v. Glickman (1998), did not focus on Barney's psychological well-being, oddly enough, but that of his human observer. As one of the deciding judges wrote, "Mr. Jurnove's affidavit is an uncontested statement of the injuries that he has suffered to his aesthetic interest in observing animals living under humane conditions."
Of course, none of the interested parties in this case were actually convinced that animal welfare is merely a matter of taste. But the notion of "aesthetic injury" is just one means of circumventing a hard legal fact: Property can't sue, thus neither can animals, nor can a guardian ad litem bring criminal or civil action on their behalf. Some animal rights advocates are hoping that will soon change. In Rattling the Cage: Toward Legal Rights for Animals (2000) and the recently published Drawing the Line: Science and the Case for Animal Rights (both Perseus), attorney Steven M. Wise proposes "legal personhood" for certain highly intelligent nonhuman species, beginning with our evolutionary next-door neighbors: chimpanzees and bonobos, who are endangered in the wild. Wise's idea is a major point of contention in the far-flung animal rights debate, tangled in ageless questions of justice, philosophy, biology, even the very definition of being human.
Protections, if not rights, for animals have been on the books for decades. But though the Animal Welfare Act requires the U.S. Department of Agriculture to set minimum standards of nutrition and shelter for captive animals, they're difficult to enforce (especially against elusive traveling zoos, who are among the worst offenders), the fines are token, and the rules are skimpythe Game Farm hadn't even broken any of them. Though Jurnove had standing to sue for once-removed distress, Barney himself had no judicial recourse.
Legal personhood for animals, Wise explained in an interview with the Voice, "means the right to bodily liberty and bodily integrity, which are the fundamental rights that we humans have. If you wanted to do something to violate [animals'] rights, at the very least they should have a guardian appointed to represent their interests, the way a human child or any severely impaired human being would."
"Ironically, ships, corporations, partnerships, and other inanimate entities and objects are considered 'persons' under the law with the ability to sue and be sued, and have been for generations," says Pamela Frasch, director of the anti-cruelty division of the Animal Legal Defense Fund. "Judges and legislatures need the courage to take the next logical step and enhance the status of sentient nonhuman animals as well." Any species equipped with these new rights could no longer be used as zoo attractions or biomedical research subjects, but as Wise writes in Rattling the Cage, "Without legal personhood, one is invisible to civil law. One has no civil rights. One might as well be dead."
Animal law, however, is alive and kickingthis fledgling division of legal theory is now taught in 21 law schools around the country, up from 12 just two years ago, and will be the subject of a symposium next month at Harvard. (The all-star roster of scheduled speakers includes Jane Goodall, Alan Dershowitz, and Laurence Tribe.) In the past few years, pets have become increasingly common subjects of custody battles, veterinary malpractice suits, and emotional-distress claims. Outside the U.S., rights and protections for animals are expanding by steady increments. The last laboratory in the European Union to use chimpanzees in experiments, the Biomedical Primate Research Centre in the Netherlands, will stop in December by order of the Dutch government. And this past May, Germany's lower house of parliament voted 543-19 to add animals to the dignity-rights clause of their constitution, though, as one lawmaker hastened to add, "People remain the most important."
With that general consensus in mind, Wise has prioritized seeking rights for the most people-like of nature's kingdom. "I don't think that 'animals should have rights,'" Wise says. "I think that specific kinds of animals should have specific kinds of rights. Because we share genetic and evolutionary status, it's easier for a human to understand and empathize with why a chimpanzee or bonobo should have similar basic rights. Their lives mean a lot to them in the way our lives mean a lot to us; we're just able to direct our lives in a much more complex way."
The eligibility requirement for legal personhood is what Wise calls "practical autonomy," a constellation of capacities observable to varying degrees in all species of the Great Ape family (which comprises chimps, bonobos, orangutans, gorillas, and yup, Homo sapiens). These include self-consciousness, imitation, empathy, insight, tool use and production, spatial representation, and understanding of symbolsincluding the building blocks of language. The famous signing gorilla, Koko, has scored as high as 95 on standardized IQ tests for human children; she boasts a signing vocabulary of 500 words and has given Internet chats.