Two chimpanzees, Hercules and Leo, who are being used for biomedical research at Stony Brook University on Long Island, New York, hit the headlines in April this year when Manhattan Supreme Court justice Barbara Jaffe granted them a writ of habeas corpus.

The next day the judge struck out the words “writ of habeas corpus”, and her ruling now reads “order to show cause”.

The judgement still means that Stony Brook University, represented by lawyers from the New York attorney-general’s office, must appear in court and provide a legally sufficient reason for detaining the chimps. The court hearing is scheduled for May 27.

The Manhattan Supreme Court is an intermediate appellate court, and any ruling can be appealed further, to the New York Court of Appeals, which is the highest court in the United States.

Lawyers are meanwhile awaiting the outcome of two other cases, involving two other chimpanzees – Tommy and Kiko. They are waiting to see if their appeals will be heard by the apex court.

Jaffe’s ruling is not yet an acknowledgement that chimps are legally persons, but it is a landmark step along the way.

The driving force behind this legal turning point is lawyer, animal rights campaigner, author, and university professor Steven Wise, who is currently on a speaking tour of Australia.

The tour has been organised by Voiceless, an independent and not-for-profit think-tank that works to alleviate the suffering caused by factory farming and the commercial hunting of kangaroos.

Wise is president of the Nonhuman Rights Project (NhRP), which he set up in 2007.

In a lecture in Brisbane on May 3, Wise said that Jaffe’s ruling was a success in that she had implicitly bought into some of the lawyers’ arguments. “She thought that these chimpanzees just might be persons entitled to be freed pursuant to an order to show cause or a writ of habeas corpus,” he said.

Habeas corpus, Wise explains, protects the most fundamental human interest: that someone cannot arbitrarily take us and keep us essentially as a slave. It is not a welfare statute, he says; it’s a freedom statute.

Since 1980 – after he read Peter Singer’s book “Animal Liberation: A New Ethics For Our Treatment of Animals – Wise has been determined to change the common law status of at least some nonhuman animals from mere “things”, which lack the capacity to possess any legal rights, to “persons”, who possess such fundamental rights as bodily integrity and bodily liberty.

Wise was a student anti-war activist, and became a lawyer because he was interested in social justice. He was horrified by what he read in Singer’s book. “I realised that all of these nonhuman animals out there were being horrendously exploited. They were really naked to our power and there was no one who was helping them. I thought there was no population of living beings that needed me more than they did, and I still feel that way.”

He points out that he is seeking personhood for chimpanzees, not human rights. He’s not suggesting that chimps are people; the rights he is seeking for chimpanzees are chimpanzee rights, and the same applies to elephants, dolphins, whales, orcas, and any other nonhuman animals whose cause he champions.

“The reason we chose chimpanzees is because we think they are our strongest plaintiffs,” he said. “The scientific facts really help us; they clearly are autonomous and self-determining beings. If we can’t win with the chimpanzees, we can’t win with anybody.”

Wise doesn’t call what he practises “animal welfare law” or “animal protection law”; he prefers to refer to it as “animal slave law”. The basis of the legal cases brought by the NhRP is the same as that underpinning cases brought on behalf of slaves in the 18th and 19th centuries.

Personhood

Wise says that, when he began litigating on behalf of nonhuman animals, the cases were always thrown out of court because they lacked “standing”. He began to realise that the fundamental issue was that nonhuman animals lacked personhood. “On one side of the legal wall were legal things, and on the other side were legal persons.”

Currently, Wise says, all humans are legal persons and all nonhuman animals are legal things. “A legal thing does not count in the law. It’s invisible to judges. It has no intrinsic value; only instrumental value to legal persons. It has no rights. It doesn’t have the capacity for rights. It is a slave.”

For many centuries, there were many human beings who were legal things for one, and sometimes all, purposes, Wise says. “Slaves, women, and children were all at some time legal things.”

There are many entities, Wise explains, that are not human, and not even alive, but are considered to be legal persons. They include corporations, ships, and partnerships.
In pre-independence India, a court held that a Hindu idol was a legal person and other things declared to have personhood include a mosque and the holy books of the Sikh religion.

In a treaty signed by indigenous peoples and the Crown in New Zealand in 2012, Whanganui River was declared to be a legal person that owned its own river bed.

“The distinction between being a person and a thing is not biological,” Wise told the audience in Brisbane. “It’s a question of policy; of principal. A legal system has to decide for itself which entities ought to be legal persons and which ones shouldn’t be. And legal persons are not always legal persons for all reasons.”

The NhRP is currently preparing for its next case, in which the lawyers will seek habeas corpus on behalf of elephants. Wise said the case would be brought in another US state, but he is not yet revealing further details. “It’s all top secret,” he said.

“We have been working for a long time with the elephant cognition experts of the world. We have already organised for an elephant sanctuary to take them if we can persuade a court to move them.”

Photo credit: AP Photo/Feld Entertainment Inc., Gary Bogdon

The NhRP is starting to work with lawyers from Australia, New Zealand, England, Switzerland, France, and Argentina, providing help so that they can take similar cases.

Used and abused

Wise discovered Tommy in Gloversville, New York State, in 2013. “Tommy was in a large warehouse,” he said. “We saw him in a dark room that had a bank of cages, all of which were empty except Tommy’s, and there was a small portable television set about ten feet away from him that was tuned to Sesame Street.”

The day the investigators found Tommy, the temperature in the warehouse was about 40 degrees below what it would be in his native land.

Kiko was found at Niagara Falls, in a cement storefront, along with 29 monkeys and 19 exotic birds.

Kiko

The NhRP says that Kiko, who is thought to be about 26 years old, suffers deafness as a result of abuse inflicted on him on the set of a Tarzan movie. He has an inner ear condition that requires him to take anti-motion sickness medication, especially during changes in barometric pressure.

Wise says Hercules and Leo have been kept at Stony Brook University so that researchers in the anatomy department can study the evolution of locomotion: how beings went from bent-leg to straight-leg creatures. “That’s why they could imprison chimpanzees in a cage for years after years in order to be able to figure out the answer to that.

“I’m not an anti-science person. I have a chemistry degree and am actually a very scientifically oriented person, but there is such a thing as right and wrong and this in my mind was wrong.”

When the NhRP team began researching captive chimpanzees in New York State, they planned to include three more, but those chimpanzees have since died. Most captive chimpanzees die young, Wise says.

Photo courtesy of Chris Hegedus & D.A. Pennebaker.

Filing the lawsuits

The lawsuit on behalf of Tommy was filed in December 2013 in rural New York. “We went in front of a judge who was fascinated by what we were doing,” Wise said. “We filed a very long writ of habeas corpus. We filed a hundred pages of affidavits.

“We had identified nine of the best working primatologists in the world on the issue of chimpanzee cognition – from Japan, Germany, Sweden, England, Scotland, and the United states. We filed an 85-page memorandum of law.”

The case was then sent before a judge in another county, Wise says. “We demanded Tommy’s fundamental right to bodily liberty and requested that he be released from imprisonment on the used trailer lot and be sent to the Save the Chimps sanctuary in south Florida.”

The judge was extremely sympathetic to the lawyers as he refused to issue the writ of habeas corpus, Wise says. “He wouldn’t do it because he said a chimpanzee is not a person and only persons are entitled to a writ of habeas corpus. But we were excited; we’d actually had a judge give us a hearing. We then drove to Niagara Falls and did it again.”

The judge in Niagara Falls wouldn’t grant a face-to-face hearing, but said he wanted to look at the papers for three or four days. “We held a telephone hearing,” Wise said. “He came right out and said he wasn’t going to be the first one to make this leap of faith; and we understood that this was what we were really up against.”

In the case of Tommy, the judge in the intermediate appellate court said the chimpanzee could not be a person. Even if the lawyers proved that Tommy was autonomous and self-determining, the judge said that, in order to be a person, he would have to bear rights and responsibilities. “This is of course false,” Wise said. “There are plenty of humans who cannot bear rights and responsibilities; those with Alzheimer’s or in a coma, for instance.

“There are millions of people who can’t bear rights and responsibilities, but we don’t eat them and we don’t use them in biomedical research.”

In Kiko’s case, the judge said the lawyers were not using the writ of habeas corpus correctly: that it could only be used to move someone from a place of confinement to absolute freedom.

Wise also challenges this. “There are numerous cases, including many cases involving slave children in the 1840s and 1850s … those kids weren’t sent out into the streets of Boston or New York.” The children were sent from one place of confinement into someone’s care, Wise points out.

In the case of Hercules and Leo, Jaffe was the second appellate court judge to hear the case. The first judge threw out the case, and told the lawyers they had no right to appeal. So the NhRP filed again.

The lawyers are happy with the “order to show cause” as the chimpanzees will not have to be brought to court (they would with a writ of habeas corpus). Wise can’t wait to have his “shoot-out” with the attorney-general. “This is what we’ve been working on for years and years and years. Let’s fight it out right there for the first time. It’s going to be the first, we are hoping, of dozens and dozens and dozens of times.”

Much depends on the grounds of any ruling, Wise says, but if a chimpanzee in one jurisdiction is granted a writ of habeas corpus, it would be likely that other chimps in the same jurisdiction would also be beneficiaries. Other jurisdictions might then be influenced by a judgement in favour of a nonhuman animal.

A lengthy battle

One of the reasons he waited 30 years, Wise says, is because “in 1985 or 1995 or even 2005, no matter what I said, no one was going to issue a writ of habeas corpus for a nonhuman animal; they just weren’t”.

Soon after reading Singer’s book, Wise became president of what became the Animal Legal Defence Fund in California. At that stage, he says, “none of us had any idea what we were doing”.

By 1985, Wise was persuaded that it would be very difficult to accomplish anything significant using the legal system as it was. “We had to begin to make a fundamental change to it.”

In 1985, Wise says, there were no law schools teaching anything about animal rights. There was no legal theory, and no books or law review articles on the subject. “People thought that anyone who cared about animal rights or animal protection was kind of odd.”

A chimpanzee with an eye-tracking system on her head, and a picture from the outward-facing camera on her headset.

Rattling the cage

Wise began to write law review articles about animal rights jurisprudence, then books. In 1990, he began to teach the subject, and others followed. Wise’s first book “Rattling the Cage – Toward Legal Rights for Animals”, in which he argues for the legal personhood and the fundamental rights of bodily liberty and bodily integrity for chimpanzees and bonobo, was published in 2000.

By the time Wise was asked to teach animal rights law at Harvard in 2000, there were more than ten law schools with the subject on their curriculum.

“Then ‘Rattling the Cage’ came out,” he said, “and, at that point, it really began to skyrocket. Now, in the United States, there are perhaps 140 law schools that offer some variant of an animal law or animal rights class.”

The NhRP lawyers decided, in 2013, that, for the first time in history, it was reasonably possible that they could win. This year they plan to file as many cases as they can cover financially.

The lawyers chose to base their legal challenges on common law rather than statutory or constitutional law because, Wise says, they were trying to persuade judges to do something that had never been done before. “We wanted it to be law that judges had made.”

Before making their decision to file cases in the state of New York, the lawyers examined the jurisdictions throughout all the US states and in twenty Commonwealth countries, including Australia. “We had to make more than 3,000 separate decisions in order to figure out which jurisdiction might be either the most favourable or at least not unfavourable to us.”

On Easter Sunday, 2013, the lawyers chose New York. The state had a clear common law writ of habeas corpus, Wise says, and if the judge refused to issue the writ, they could appeal. They could also refile for the writ an infinite number of times. The state also had common law equality and liberty.

“We didn’t want to change the law,” Wise said. “We didn’t want to ask the courts to apply new principles, but to ask them to apply equitably the principals that they already held dear. The two most fundamental were liberty and equality.

“At the core of the liberty arguments we were going to make, and are making, is the argument that an autonomous and self-determining being has a fundamental right to habeas corpus to protect their fundamental right to bodily liberty, and New York was great on this.”

Somerset versus Steuart

In “Rattling the Cage”, Wise talks about the case of Somerset versus Steuart. “It was a very important case,” he said, “which showed that someone could move from being a thing to a person through the judicial system, without having a civil war.”

In 1769, 20 years after he was captured in Africa and sold into slavery in Virginia, James Somerset was brought to London by his owner, Charles Steuart. Two years later, Somerset escaped, then eluded slave-catchers for two months before being imprisoned on the ship Ann and Mary, bound for the Jamaican slave markets.

Before the ship could sail, Somerset’s godparents sought a common law writ of habeas corpus, in which they demanded his freedom.

On June 22, 1772, the then Chief Justice of the Court of King’s Bench, Lord Mansfield, said slavery was so odious that common law would not support it and he ordered James Somerset to be freed.

Wise wrote a book about the case called “Though the Heavens May Fall – The Landmark Trial That Led to the End of Human Slavery”, which was published in 2005. He intended it to be a blueprint for his legal challenges on behalf of nonhuman animals.

A change in the zeitgeist

Until 2011, everyone in the NhRP was a volunteer. “By 2011,” Wise said, “I had hired a full-time executive director and I was supervising 70 people all over the United States, not only law students, law professors, and lawyers, but also natural scientists, sociologists, mathematicians, and social media people.

“Now, we are getting more donations coming in, we are hiring more staff lawyers, and more cases are going on. There’s clearly a change in the zeitgeist. Something is happening.”

There have been few detractors so far, Wise says. There may well be a bigger push-back, he says, “once people realise we aren’t crazy”. But the NhRP won’t baulk at criticism. “The more the merrier,” Wise said. “We want to catalyse a serious public discussion. Judges pay attention to what the public believes, and the public pays attention to what the judges say.

“We aren’t going to win unless the judges think that that is what society wants them to do – at least a substantial chunk of it … If people want to attack us, that’s just fine because that raises the volume of the conversation.”

The battle so far has been a very narrow one, with a specific goal, and there is a lengthy and complex struggle ahead, Wise says, but a start has been made.

“We may be successful in three weeks, and it may be three years, or thirty years, but once that first thing finally happens, lawyers around the world will be weighing in.”

This is also something Wise would welcome. “The situation now is completely unjust and intolerable. There is no way that it can get worse; it can only get better.”

Steven Wise in the forthcoming documentary “Unlocking the Cage” by Chris Hegedus & D.A. Pennebaker.

Australian animal rights lawyer, Ruth Hatten (pictured left), told the Brisbane audience that there was potential for habeas corpus to be used in Australia for nonhuman animals, but there was a lesser chance of success than in the US. “Australia does not have a rights culture like the US does,” she said.

This was not to say that the argument would be impossible to win in Australia, Hatten said, but it would be easier to win if Wise managed to get legal personhood granted to Hercules and Leo.

Speaking about animals in captivity, Hatten said it was not just an issue of animals in laboratories. “So many billions of animals are in captivity. It is not just the research or the circus animals; it is the billions of animals enslaved for the production of food. All of these animals are enslaved for human purposes. Maybe habeas corpus could be used for those animals as well.”

Hatten also called for more scientific research into the cognitive abilities of animals.

The concept of legal personhood for animals was not a foreign concept in Australia, Hatten said. It had been discussed in academic circles and in the media for quite some time.

Most commonly, she said, the concept was ridiculed on a misconception that legal personhood for animals would mean cats suing dogs and birds suing cats. “It has also been ridiculed in comparison to the lack of adequate recognition of the rights of indigenous peoples.”

Hatten, who is a law and policy adviser for the Barristers Animal Welfare Panel, says that those who reject the argument for legal personhood for animals are “too tied up in the notion that to categorise an animal as a person implies that they are human”.

Recognising animals as legal persons is not about making animals humans, Hatten points out. “It is purely to gain recognition of and protection for animals under law by means of granting animals rights. It is about the recognition of an animal’s entitlement to rights specific to their species, for example bodily integrity and bodily liberty.”

Hatten told the Brisbane audience about legal decisions taken abroad on the rights of animals and the environment.

• In 2008, the Spanish parliament’s environmental committee approved a resolution urging compliance with the Great Ape Project’s recognition that nonhuman hominoids like chimpanzees, gorillas, orangutans, and bonobos should enjoy the right to life and freedom and the right not to be tortured.
  The resolution also called for the Spanish government to promote a similar declaration throughout the European Union. “It was expected that the resolution would be drafted into law by June 2009,” Hatten said, “but unfortunately it hasn’t.”
• In September 2008, Ecuador’s constitution was amended to recognise the rights of nature: its right to exist, persist, maintain and regenerate its vital cycles, structures, functions, and its processes and evolution. “The passage of the amendment was hailed as a major step forward in recognising the intrinsic rights of the natural world to exist, and not be subject to solely economic purposes for humans,” Hatten said.
• In December 2010, Bolivia’s legislative assembly passed an extremely comprehensive law on the rights of Mother Earth. The legislation recognised that Mother Earth was “a dynamic living system comprising an indivisible community of all living systems and living organisms”, Hatten said. The law said that those systems and organisms were interrelated, interdependent, and complementary, and shared a common destiny. Mother Earth was considered sacred, and living systems were defined as “complex and dynamic communities of plants, animals, micro-organisms, and other beings and their environment”. The rights of Mother Earth were identified as the right to life, to the diversity of life, to water, to clean air, to equilibrium, to restoration, and to pollution-free living.
• In 2012, in India, a campaign commenced for the implementation of a National Ganga (Ganges) Rights Act to recognise the rights of the Ganga River basin. “It is intended that the legislation should establish the basin’s right to exist, thrive, regenerate, and evolve,” Hatten said.

The Nonhuman Rights Project