Wise, Steven M --- "The Basic Rights of Some Non-Human Animals Under the Common Law" [2007] ALRCRefJl 3; (2007) 91 Australian Law Reform Commission Reform Journal 11

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The basic rights of some non-human animals under the common law

By Steven M Wise*

I once wrote a book about an invisible man who sued to be seen. This ghost’s name was James Somerset and he was a slave in 1771 London. He wasn’t literally invisible, but legally invisible. Because English slaves were property, judges could not perceive them. Then, as today, only legal persons counted in courtrooms, for only they existed in law for their own benefits.

Legal things existed for the benefit of persons. In 1772 this invisible man achieved judicial perceptibility through a lawsuit in England’s Court of King's Bench. Slavery, said that court’s Chief, Lord Mansfield, was 'so odious' that the common law would not suffer it. Because of Mansfield's judgment, James Somerset shed his legal thinghood and became legally visible, and that was the beginning of the end of human slavery.

Two hundred years later, one respected United States Circuit Court Judge, John T. Noonan, would write that '(a) major function of Anglo-American law for three hundred years (was) the creation and maintenance of a system in which human beings were regularly sold, bred, and distributed like beasts.' This comprehensive system was fatally wounded by the Somerset decision, though decades would pass before it expired. Today, human slavery is everywhere a terrible crime.

But there has been an overall increase in slavery. The creation and maintenance of a system in which it is the brutes who are brutalized has been a major function of Anglo-American law since before the Norman Conquest. Nearly two thousand years ago, a Roman jurist wrote 'Hominum causa omne jus constitum' ('All law was established for men's' sake'), echoed today in the pages of a modern jurisprudence treatise: '(h)ominum causa omne jus constitum. The law is made for men and allows no fellowship or bonds of obligation between them and the lower animals.' The major consequence of this archaic legal thinking has been that nonhuman animals are categorized as things and not persons and therefore lack all legal rights.

We first need to understand what rights are. During World War I, Yale law Professor Wesley Hohfeld gave an explanation that most embrace. A right, and there are four of them, is an advantage conferred by legal rules upon one legal person against another who bears the corresponding legal detriment. A liberty allows us to do as we please, but there is no right to have one’s liberty respected. A claim demands respect by placing a duty upon another to act, or not act, in some way towards a claimant. A power affects the legal rights of another who is liable to be affected (the power to sue is perhaps the most important power).

Finally, an immunity legally disables one person from interfering with another. In short, liberties and powers tell us what we may do, claims say what we must or must not do, and immunities tell us we cannot do. Thus you cannot enslave me, because human slavery is prohibited; humans are immune from enslavement. Such immunities as freedom from slavery and torture are the most basic kind of human legal rights. It's just these rights to which at least some nonhuman animals are most strongly entitled, at least under the common law, at least as most judges understand it.

Common law judges may differ in their legal values. 'Formal' judges decide cases the way judges have already decided them, just because judges decided them that way. The most formal of these judges—I call them Precedent (Rules) Judges' – prefer certain law to law that is correct. Valuing stability, certainty and predictability, they understand law as a system of narrow and consistent rules from which they can glean rules that can be mechanically applied. 'Precedent (Principles) Judges' also look backwards, but to a past that produced not narrow rules, but broad principles.

On the other hand, 'substantive' judges weigh social considerations, moral, economic, and political, present and future. They want law to express a community's present sense of justice and believe that judges must keep law consonant with contemporary public values, prevailing understandings of justice, morality, and new scientific discoveries. They don't want issues just settled, but settled right. Substantive Judges who predict the future effect of their rulings are 'Policy Judges.' They think law should achieve important social goals, such as economic growth, national unity, or the health or welfare of a community. 'Principle Judges' supremely value principles and moral rightness and may borrow those principles from anywhere, religion, ethics, economics, politics, even literature.

The argument for basic legal rights, humans and nonhumans, is most firmly grounded on principle. In arguing for the fundamental rights of a nonhuman animal, I rely upon those first principles of Western law, liberty and equality. Liberty entitles one to be treated a certain way because of what one is, especially one's mental abilities. Some irreducible degree of bodily liberty and bodily integrity are everywhere considered sacrosanct, and if we trespass upon those right, we inflict the graves injustice of treating persons as things. We may not enslave or torture. Yet these sacred places are the front line in the battle for the rights of nonhuman animals. Equality demands that likes be treated alike. Equality rights depend upon how one rightless being compares to another being with rights. An animal might be entitled to basic equality rights, even if she isn't entitled to liberty rights, because she is similar to someone with basic liberty rights.

One important aspect of liberty is autonomy or self-determination. Things don't act autonomously. Persons do. Philosophers often understand autonomy as Kant did two centuries ago. I call Kant's a 'full autonomy,' where fully autonomous beings act completely rationally and should therefore be treated as legal persons. Most moral and legal philosophers, and nearly every common law judge, however recognize that lesser autonomies exist and that a being can be autonomous if she has preferences and the ability to act to satisfy them, if she can cope with changed circumstances, make choices, even ones she can't evaluate well, or has desires and beliefs and can make appropriate inferences from them.

These lesser autonomies I call 'realistic' or 'practical.' 'Practical autonomy' is not just what most humans have, but is what most judges think is sufficient for basic liberty rights. I claim that a being has practical autonomy and is entitled to personhood and basic liberty rights if she can desire, can intentionally act to try to fulfill her desire, and possesses a sense of self sufficient to allow her to understand, even dimly, that is she who wants something and is trying to get it. Consciousness, but not necessarily self-conscious, and sentience are implicit.

How do we know that a being has practical autonomy? The more exactly the behavior of any nonhuman animal resembles ours and the taxonomically closer we are, the more confident we can be that she possesses practical autonomy. Chimpanzees, for example, are conscious, probably self-aware, possess have some or all the elements of a theory of mind (they know what others see or know), understand symbols, use a sophisticated language or language-like communication system, and may deceive, pretend, imitate, or solve complex problems that require mental representation. We can be confident that they possess practical autonomy sufficient for basic liberty rights.

Other animals may lack self-consciousness and every element of a theory of mind. But they may possess some simpler consciousness, be able mentally to represent and act insightfully, use symbols, think, use a simple communication system, have a primitive, but sufficient, sense of self, and not be too evolutionarily distant from humans. The stronger and more complex these abilities are, the more confident we can be that a being possesses practical autonomy.

Equality rights require a comparison. Since likes should be treated alike, something can only be equal to something or someone else. The strongest argument for equality rights is simple: even very young or severely cognitively-impaired humans possess basic legal right to bodily integrity, though they lack autonomy, because they are legal persons. We have seen that such animals as chimpanzees possess very complex minds, yet lack all rights, as they are things. This offends equality.

Now we arrive at a paradox. How does a legally invisible being present her case for personhood to a judge who doesn’t see her? And so we return to where we began, with the case of James Somerset, for one answer is: by the common law writ of habeas corpus. By the end of the seventeenth century, the common law writ of habeas corpus had evolved into the usual procedure by which a legal person, or an entity claiming to be one, could test the legality of her detention by any private or public entity, in any place, under any circumstances. Extremely broad and impervious to technicalities, the writ of habeas corpus, in both its statutory and common law forms, continues to remain available to remedy every illegal restraint. The common law writ of habeas corpus was never limited to legal persons. To the contrary, it was used by petitioners who were understood to be legal things, but who alleged that the writ ought to apply to them. Most prominently, the writ was wielded by black slaves who were themselves legal things. James Somerset used it and so did other black slaves, both in England and in America, especially in the North. Southern judges, alas, continued to refuse to see the slaves who stood before them pleading to invoke the Great Writ.

One court started down this path. On April 10, 2005, Environmental Department prosecutors and others sought a writ of habeas corpus from a court in Bahia, Brazil on behalf of a chimpanzee named Suica, who was caged at a zoo.The petitioners claimed that 'in a free society, committed to ensuring freedom and equality, laws evolve according to people's thinking and behavior, and when public attitudes change, so does the law, and several authors believe that the Judiciary can be a powerful social change agent.' Before the case could be finally adjudicated, Suica died. Accordingly, on September 28, 2005, the judge dismissed the case. He explained, however, that he had taken the case.

'the theme is deserving of discussion as this is a highly complex issue, requiring an in-depth examination of 'pros and cons’.

... One could, from the very topic of the petition, have enough grounds to dismiss it, from the very outset, arguing the legal impossibility of the request, or absolute inapplicability of the legal instrument sought by the petitioners, that is, a Habeas Corpus to transfer an animal from the environment in which it lives, to another. However, in order to incite debate of this issue ... I decided to admit the argument ... (and that) (a)mong the factors that influenced my accepting this matter for discussion is the fact that among the petitioners are persons with presumed broad legal knowledge, such as Prosecutors and Law professors ... (the) Law is not static, rather subject to constant changes, and new decisions have to adapt to new times.

* Professor Steven M. Wise is an internationally acclaimed animal protection advocate, author and lecturer on animal law