Bring­ing Jus­tice

In a world where an­i­mals continue to be tor­tured, ter­ror­ized and con­trolled for hu­man pur­poses, a move­ment emerges to ad­vo­cate for their le­gal rights.

Southasia - - Special feature - By Joyce Tischler

In a 1972 essay, Amer­i­can law pro­fes­sor, Christo­pher Stone wrote, “Throughout le­gal his­tory, each suc­ces­sive ex­ten­sion of rights to some new en­tity has been, thereto­fore, a bit un­think­able. We are in­clined to sup­pose the right­less­ness of right­less ‘things’ to be a de­cree of Na­ture, not a le­gal con­ven­tion act­ing in sup­port of some sta­tus quo.” Most peo­ple con­sider it “un­think­able,” that non­hu­man an­i­mals should be ac­corded le­gal rights. I have spent my ca­reer as a lawyer prac­tic­ing what we now call an­i­mal law, and for me, the ex­ten­sion of le­gal rights to non­hu­man an­i­mals is both a ra­tio­nal le­gal goal and a moral im­per­a­tive.

For 2,000 years, an­i­mals have been cat­e­go­rized as “things” un­der the law. Early sci­en­tists be­lieved that an­i­mals were noth­ing more than un­think­ing, un­feel­ing ma­chines. Early philoso­phers and reli­gious schol­ars were at­tempt­ing to el­e­vate hu­mankind and there­fore felt the need to dis­tin­guish be­tween hu­mans and what they called “the lower beasts.” Le­gal sys­tems are gen­er­ally a re­flec­tion of the so­ci­ety in which they op­er­ate, thus law­mak­ers cre­ated clear bound­aries be­tween those who had le­gal rights and those who did not. Hu­man be­ings were wor­thy of con­sid­er­a­tion and the law termed them “per­sons” and “rights hold­ers.” On the other hand, ev­ery other species on the planet was la­beled “things,”

“chat­tel” and “prop­erty.” These liv­ing “things” could be used to sat­isfy even the most triv­ial in­ter­ests of the rights hold­ers, and their pain, their needs, and their most fun­da­men­tal in­ter­ests could be and were ig­nored.

A le­gal right can be viewed as a right (as op­posed to a priv­i­lege) to seek pro­tec­tion un­der the law and be di­rectly com­pen­sated for harms done, and if the right holder is in­ca­pac­i­tated, his or her in­ter­ests can be rep­re­sented by a guardian or other le­gal rep­re­sen­ta­tive.

If we ex­am­ine the rea­sons of­fered for lim­it­ing le­gal rights to hu­man be­ings, we find that they don’t hold up un­der scru­tiny. For ex­am­ple, it is ar­gued that non­hu­man an­i­mals don’t de­serve rights be­cause they have lower in­tel­li­gence. In the U.S., pos­sess­ing le­gal rights does not de­pend upon one’s level of in­tel­li­gence. If it were oth­er­wise, more in­tel­li­gent hu­mans would de­mand greater rights than less in­tel­li­gent hu­mans. While the av­er­age in­tel­li­gence of hu­mans is higher than that of other an­i­mals, some in­di­vid­ual hu­mans, such as those who are se­verely brain dam­aged, may func­tion at lower lev­els than dogs, cats or other non­hu­man an­i­mals. Still, those hu­mans have ba­sic le­gal rights such as the right to life, the right to bod­ily in­tegrity, and au­ton­omy.

An­other ar­gu­ment for deny­ing le­gal rights to an­i­mals is that they do not look like hu­mans. Yet, phys­i­cal form does not de­ter­mine the thresh­old ques­tion of le­gal rights. How close to hu­man form must one be to have le­gal rights? If a hu­man is born with se­vere phys­i­cal de­for­mi­ties, that in­di­vid­ual still re­tains his/her le­gal rights.

An ar­gu­ment aris­ing from some reli­gious sources is that an­i­mals do not pos­sess im­mor­tal souls. This claim has been the sub­ject of heated de­bates within the Chris­tian re­li­gion. On the other hand, Hin­dus and Jains be­lieve that an­i­mals do have souls. Let us as­sume for the sake of ar­gu­ment that non­hu­man an­i­mals do not pos­sess souls. The fol­low-up ques­tion is then, what does the pos­ses­sion or lack of a soul have to do with le­gal rights? In my coun­try, with its Con­sti­tu­tional sep­a­ra­tion of church and state, the ques­tion of the pos­ses­sion of a soul is deemed ir­rel­e­vant to de­ter­min­ing the le­gal rights of the in­di­vid­ual.

Fi­nally, it is ar­gued that, as a prac­ti­cal mat­ter, we must rely on the use of an­i­mals for food, cloth­ing, med­i­cal re­search, and en­ter­tain­ment. In most cases, this is the real rea­son for the le­gal dis­tinc­tion be­tween hu­mans and other an­i­mals. It is to the ad­van­tage of most hu­man be­ings, ei­ther for eco­nomic or other rea­sons, to main­tain the sta­tus quo. In­deed, all of the above rea­sons have been used at var­i­ous times in his­tory to ar­gue that cer­tain hu­mans, such as slaves, women, and chil­dren should be de­nied le­gal rights.

Hu­man be­ings have le­gal rights be­cause we rec­og­nize that we have sim­i­lar ba­sic in­ter­ests. Le­gal rights arise from the so­cial con­tract hu­mans make with other hu­mans, so that we can pro­tect our lives, our fam­i­lies, and our prop­erty. How­ever, we rec- og­nize that not all hu­man in­ter­ests carry equal weight and it is the role of our lead­ers and law­mak­ers to de­cide which in­ter­ests de­serve pro­tec­tion as le­gal rights and to strike a bal­ance among com­pet­ing in­ter­ests.

In the last 150 years, sci­en­tists have doc­u­mented a great deal about the in­tel­lec­tual and emo­tional lives of an­i­mals. We now know that other an­i­mals have cen­tral ner­vous sys­tems like our own, that they com­mu­ni­cate, and that they de­velop close so­cial and fa­mil­ial re­la­tion­ships. A re­port ti­tled, “The Cam­bridge Dec­la­ra­tion on Con­scious­ness,” pub­lished re­cently by a dis­tin­guished in­ter­na­tional group of sci­en­tists, pro­claims that non­hu­man an­i­mals have hu­man-like lev­els of con­scious­ness.

In other words, an­i­mals also have in­ter­ests. There­fore, those in­ter­ests should be pro­tected within the le­gal sys­tem. I’m not sug­gest­ing that non­hu­man an­i­mals should have all the same rights as hu­mans; a dog has no use for the right to vote. But, an­i­mals are sim­i­lar to hu­mans in ways that are morally and legally sig­nif­i­cant. In our cur­rent laws, there re­mains a core dis­con­nect be­tween what sci­ence tells us about the ca­pac­i­ties and in­ter­ests of an­i­mals and the le­gal pro­tec­tions that we pro­vide to them.

An­i­mals are not “things” or mind­less ma­chines, and a le­gal sys­tem which treats them as such is sorely flawed. Those of us at the heart of the an­i­mal law move­ment are work­ing to­wards a world in which the lives and in­ter­ests of all sen­tient be­ings are re­spected within the le­gal sys­tem. In that hoped-for world, non­hu­man an­i­mals will not be ex­ploited, ter­ror­ized, tor­tured or con­trolled to serve hu­man pur­poses.

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