What is a person? Seems like an easy enough question, until you try to answer it. A person is a human being, of course — an individual with a free will, a sound mind and the rights to use them. But has that always been the case? Not remotely.
In Colonial America, the value of an African slave was measured in oxen, pigs and chicken. A slave was not a person, but a "thing." The law said slaves could be owned, hunted, captured, and sold.
Today, we find slavery repulsive and its legal standing inconceivable. Our definition of "person" includes all races, as well as people of different mental and physical capacities. What's clear, though, is that definitions change. What was once a widespread assumption — African slaves are "things" — is now abhorrent.
A hundred years from now, will our great-grandchildren find it abhorrent that we kept chimpanzees in cages for research, confined orcas and dolphins to sterile swimming pools or paraded elephants on their hind legs around circus rings for our amusement? Is the forced confinement of highly intelligent, self-conscious animals much different than slavery?
In other words, is it time to recognize nonhuman animals as people, too?
Steven Wise thinks so. For 30 years, Wise has led a dogged legal crusade to win legal "personhood" for animals. His organization, the Nonhuman Rights Project, doesn't settle for the attention-grabbing public awareness campaigns of PETA and other "animal rights" organizations, a term that Wise, who's practiced animal protection law for 30 years, avoids.
"We are a civil rights organization," Wise explains. "Any organization that is working to help improve the welfare of nonhuman animals is referred to as an 'animal rights' organization, but they're not really involved in rights. We'll leave it up to PETA to claim that a monkey in Indonesia can take selfies. It's not serious stuff."
To prove he's serious about animal "personhood," Wise and the Nonhuman Rights Project have filed legal motions in courts across New York to win freedom for chimps currently confined in university research facilities. His argument is unconventional — "wild," you could say. His grounds for release are not that the facilities are unsanitary or that the researchers are cruel, but that the chimps themselves are autonomous legal "persons" with the right to "bodily liberty."
"Person doesn't mean human," explained Lori Marino, the Nonhuman Rights Project's science adviser, in a National Geographic profile. "Human is the biological term that describes us as a species. Person, though, is about the kind of beings we are: sentient and conscious. That applies to most animals too. They are persons or should be legally."
Such a bold proposition goes against centuries of legal precedent, not to mention core cultural and religious beliefs about the place of animals in society, namely as the rightful inheritance and property of man.
Same as a Toaster?
"All domestic animals are considered property in the U.S., which means they have the same legal status as a couch or a toaster," says David Grimm, a science journalist and recent author of "Citizen Canine: Our Evolving Relationship with Cats and Dogs." "But there's been a fuzzing of the line. You can leave money to your animal, but not your toaster. Animal cruelty is considered a felony in all 50 states. There have been recent court cases where dogs have been given lawyers. Even though animals are technically property, in practice they are being treated as something else."
Not only is the legal line between humans and nonhuman animals fuzzy, so is the scientific divide. The more we learn about other creatures — particularly great apes, cetaceans (dolphins and whales) and elephants — the fewer traits and behavioral characteristics we can identify as uniquely "human."
"Every time we try to draw a line in the sand, we always find exceptions," Grimm explains. "People used to say only humans can use tools. Then they started finding examples of birds and chimps using tools. Well, only humans have language. But there's some suggestion that some types of birdsong and other animal communication can qualify as something like language. Or only humans have culture. But they've found evidence in chimpanzees that certain behaviors can be learned and passed down from generation to generation."
Wise at the Nonhuman Rights Project has chosen to focus his initial legal strategy on chimps, cetaceans and elephants because of the overwhelming scientific evidence that chimps "have extraordinarily complex cognitive abilities that resemble ours," says Wise. "We can understand and empathize with them more easily than other nonhuman animals."
Jane Goodall, the renowned primatologist, is on the board of the Nonhuman Rights Project. In response to a New York judge's denial of "personhood" to a chimp in captivity named Kiko on the grounds that animals cannot exhibit the "duties and responsibilities" of a person, Goodall submitted a 27-page affidavit detailing the extensive "duties and responsibilities" she observed in Tanzania's Gombe Stream National Park for more than 50 years. Chimp mothers, brothers and sisters regularly risk their lives to aid family members. Young chimps will adopt infant siblings when their mother dies, and Goodall has even seen such altruistic behavior extended to nonrelatives.
Lori Marino, the Nonhuman Rights Projects science adviser, has conducted extensive research on dolphin intelligence. Dolphin brains are larger (when compared to total mass) than any nonhuman animal, and they have an extremely complex neocortex, the portion of the human brain responsible for problem-solving, emotions and self-awareness.
"Laboratory studies of bottlenose dolphins have documented various dimensions of their intellectual abilities," Marino wrote in a 2007 paper titled "Cetaceans Have Complex Brains for Complex Cognition." "These include an understanding of symbolic representations of things and events (declarative knowledge); an understanding of how things work or how to manipulate them (procedural knowledge); an understanding of the activities, identities, and behaviors of others, (social knowledge); and an understanding of one's own image, behavior, and body parts (self knowledge)."
Indeed, dolphins, chimps and elephants are the only nonhuman animals who can recognize themselves in a mirror, and even manipulate the mirror to see different parts of themselves. In one experiment, a dolphin used a mirror to spot a symbol written on its tail, and then executed the specific action assigned to that symbol. Try getting your 3-year-old to do that.
Writ of Habeas Corpus
Even if the intelligence and social complexity of certain animals is scientifically undeniable, Wise knows that it's still a stretch to extend legal "personhood" to a nonhuman. That's why he has spent decades patiently building his case and honing his legal strategy. The key to winning personhood for nonhuman animals, he believes, lies in the same legal tactic that first won freedom for British slaves in the 1700s: the writ of habeas corpus.
In English common law, a person who is detained or held in custody could file a petition for a writ of habeas corpus (Latin for "that you have the body") to be brought in front of a judge to determine if he or she is being held unjustly.
By definition, only a legal "person" can petition for a writ of habeas corpus. In 1772, when Lord Mansfield, chief justice of the English Court of King's Bench, heard the landmark anti-slavery case Somerset v. Stewart, slaves were not "persons"; they were still "things." When Mansfield granted habeas corpus to the slave James Somerset, he set a remarkable legal precedent that led to the recognition of all British slaves as legal persons deserving the right of "bodily liberty" — or freedom.
Keenly aware of the revolutionary import of his decision, Mansfield granted Somerset his freedom with the Latin declaration, "Fiat justitia, ruat caelum," which translates as "Let justice be done, though the heavens may fall." Wise is a scholar of the so-called "Mansfield Judgment," which he detailed in a 2006 book "Though the Heavens May Fall: The Landmark Trial that Led to the End of Human Slavery." Note the inclusion of the word "human" — that's not an accident.
"A person is an entity that has the capacity for one or more legal rights. With very few exceptions, you're either a person or you're a thing," Wise says. "If you're a person, you have the capacity for legal rights; if you're a thing, you don't. All nonhuman animals have been things for centuries. In order to protect their most fundamental interests, they have to move out of a category of things."
Which brings us back to habeas corpus. In the U.S. judicial system, state courts are considered common law courts. Using the same legal standard set by the Mansfield Judgment, Wise has filed a series of petitions in New York courts for a writ of habeas corpus on behalf of chimpanzees caged in research facilities.
"Judges have generally not known what to do with us," Wise admits. At first, they refused to even hear the cases. But that's starting to change. You'll remember that one judge agreed to do so, but denied Wise's petition based on the grounds that nonhuman animals can't exhibit the "duties and responsibilities" of a person. Since then, another judge has ignored the "duties and responsibilities" ruling, but refused to release a detainee from "one place of confinement to another place of confinement." (Wise wants the animals to be placed in a chimp sanctuary in Florida.)
In 2015, there was a breakthrough. New York County Supreme Court Justice Barbara Jaffe made legal history by issuing an "Order to Show Cause" to Stony Brook University to defend its detainment of two chimps named Hercules and Leo. Three previous Supreme Court Justices had refused to take that step. Ultimately, Jaffe ruled in favor of Stony Brook, but only because she felt she was legally bound by the earlier "duties and responsibilities" decision (which Wise is appealing).
In her ruling, though, Justice Jaffe left the door open for further legal consideration of this previously wild idea. "(T)he parameters of legal personhood have long been and will continue to be discussed and debated by legal theorists, commentators, and courts," she wrote, "and will not be focused on semantics or biology, or even philosophy, but on the proper allocation of rights under the law, asking, in effect, who counts under our law."
Chimp Court in Session
Despite this small success, Wise is not substantially closer to winning legal personhood for animals. And his crusade is not without its critics, chief among them Richard Epstein, the Laurence A. Tisch Professor of Law at the New York University School of Law. Epstein is unreserved in his opposition to the work of the Nonhuman Rights Project.
"I'm not afraid of being called a speciest," Epstein says. "I've always been in favor of animal protection of of one kind or another. I think cruelty is beyond the pale. I think that justifications for even 'non-cruel' uses of animals have to be broader. But if you want to find ways to make their lives less miserable, don't read Steven Wise. Read Temple Grandin."
Epstein not only questions the legitimacy of Wise's habeas corpus strategy — "It's a joke!" — but also Wise's commitment to the broader animal kingdom. "Steven does not care about animals," says Epstein. "He mostly cares about chimpanzees, which are the animals most like us. He's not a big fan of the iguana or the newt or anything else."
If a chimpanzee were granted legal personhood, one might ask, would it be held criminally liable for its actions if it, say, killed and ate a smaller monkey? "He'd have to be tried in chimp court, I assume, before a jury of his peers," says Epstein. "The whole thing starts to unravel."
David Grimm, the science journalist, brings up similar concerns when imagining a world with universal animal personhood.
"If your cat or dog were suddenly a person ... it imposes all of these crazy things on owners," Grimm says. "What happens if you don't walk your dog twice a day? Is someone going to throw you in jail for neglect? Can you sell dogs and cats anymore if they're people? Can you spay or neuter them, because it violates their 'bodily liberty'?"
Wise admits that he doesn't have the answers to these questions. For now, he doesn't worry about the long-term implications of animal personhood. "All we're trying to do is to get the ball rolling," he says. "Where it rolls is a very complicated issue."
"There's millions of species of animals — a beetle and a chimp are very different kinds of things. You can't paint them all with the same brush. We'll have to consider them species by species, genus by genus. For now, all we want people to realize is that it's immoral and unjust to treat all nonhuman animals as things and our slaves. At least some need to be brought in as persons, and we need to begin looking more closely at who those animals are."
Will we witness animal personhood in our lifetime? It's not out of the question. In her ruling against the Nonhuman Rights Project, Justice Jaffe quoted the landmark 2015 U.S. Supreme Court decision in the case of Obergefell v. Hodges that legalized same-sex marriage in all 50 states:
"If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied."