The Case AGAINST Recognizing Animals as "Persons" for Legal Purposes

The Case AGAINST Animal Rights

Several noted legal scholars have challenged the notion that certain animals should be recognized as “persons” entitled to at least some basic rights. Among the critics and skeptics are Judge Richard A. Posner who worries that listening “too raptly to the siren song of animal rights” might harm the interests not only of humans, but animals as well. [“Animal Rights”, 110 Yale L.J. (2000)]. Richard Epstein sees it as folly to argue other species should ever have legal rights approaching those we grant to humans. As Epstein puts it, “The blunt point is that we have, and will continue to have, different moral obligations to our own conspecifics than we do to chimps or members of any other species.” [Richard A. Epstein, "Animals as Objects, or Subjects, of Rights"(2002)]. Law professor Richard L. Cupp (Are all animal rights opponents named Richard?) argues that granting rights to animals would open the “floodgates” of litigation and that a far better focus for those who care for animals would be to seek more legislative protection against mistreatment of animals. [“Animals as More than ‘Mere Things,’ but Still Property: A Call for Continuing Evolution of the Animal Welfare Paradigm,” 82 Cinn. L. Rev (2016)]. The most compelling arguments AGAINST extending rights to animal are summarized below.

1. Cognitive capacity is neither a necessary nor a sufficient condition for having legally enforceable rights.

Richard Posner observes that cognitive capacity is “a precondition of some rights, such as the right to vote.” But, he argues, we give rights to some humans with extremely little cognitive function. Posner writes: “Most of us would think it downright offensive to give greater rights to monkeys than to retarded people, upon a showing that the monkey has a greater cognitive capacity than a profoundly retarded human being, unless perhaps the human being has no brain function at all above the autonomic level, that is, is in a vegetative state.” (RP, 532)

Why should cognitive capacity be the basis for personhood?—there really is no good reason. Posner points out: “Most people would think it distinctly odd to proportion animal rights to animal intelligence, as Wise wishes to do, implying that dolphins, parrots, and ravens are entitled to more legal protection than horses (or most monkeys), and perhaps that the laws forbidding cruelty to animals should be limited to the most intelligent animals, inviting the crack ‘They don't have syntax, so we can eat them.’” (RP, 532)

Posner also asks, if cognitive capacity is the basis for determining personhood, “What about computers?” Posner points out: “Someday, perhaps soon, there will be computers that have as many ‘neurons’ as chimpanzees, and the ‘neurons’ will be ‘wired’ similarly. Such computers may well be conscious. This will be a problem for Wise, for whom the essence of equality under law is that individuals with similar cognitive capacities should be treated alike regardless of their species.” (RP, 531)

Posner also notes: “Nature is not valued by environmentalists for its mental attributes, and so the environmentalist is unlikely to want to give special protection to chimpanzees, dolphins, and other highly intelligent animals.” (RP, 535-36)

Richard Epstein argues that cognitive capacity has never been the essential basis for granting human rights: “The movement for equal rights of all human beings must take into account the fact that all people do not have anything remotely like the same cognitive abilities.” He notes that lack of cognitive capacity has been a justification for granting extra protection to certain humans, not less: “What fate lies for adult human beings whose mental disabilities in fact preclude them from taking advantage of many of the rights they are afforded? Our standard position is to give them extra protection, not to exterminate them, and to do so because they are human beings, entitled to protection as such. It follows therefore we should resist any effort to bootstrap legal rights for animals on the change in legal rights of women and slaves. There is no next logical step to restore parity between animals on the one hand and women and slaves on the other.” (RE, 17)

Epstein, like Posner, sees no good reason for using cognitive capacity as the measure of rights. He quotes the utilitarian philosopher Jeremy Bentham: “The question is not, Can they reason? Nor, Can they talk? but, Can they suffer?” But Epstein sees legal efforts directed towards reducing animal suffering as fraught with another set of problems: “Our intervention to prevent suffering is, however, usually confined to questions of how human beings ought to interact with animals, and there the problems are difficult enough.” (RE, 36)

STEVEN WISE'S RESPONSE: We humans don't like to be in prison. Imprisonment destroys your liberty, autonomy, and self-determination, your ability to go where you want to go and do what we want to do and with whom. These are basic human attributes. If you lack legal rights there is nothing you can do when someone else deprives you of your liberty. You become their slave. Thus judges and legislators value your right to autonomy and self-determination; they value your liberty so much and have for so long that they developed something called "habeas corpus," which is Latin for "you have the body." Habeas corpus is so important that it has long been referred to as "The Great Writ." Its single purpose is to test the legality of a "person's" imprisonment. By "person" the law does not mean "human being," but any entity that has the capacity for any legal right. That can be a human being. But it can be many other entities, too. The important thing is that if you are not a "person" you are just a "thing," unable to have any legal rights. Personhood is not connected to biology. In some countries, rivers, national parks, a religious idol, a religion's holy books, even the Amazon rainforest have been designated as "persons" with certain legal rights. On the other hand, at times humans  such as fetuses, slaves, and women were not allowed to use habeas corpus because the courts believed they weren't "persons." Until recently all nonhuman animals were automatically seen as the "things" they have been for two thousand years. There was nothing they could do when a human deprived them of their liberty or other things they cared about. That is finally changing.  The first nonhuman animals are starting to be recognized as "persons" in some countries. Some US states have enacted Pet Trust Statutes by which some or all nonhuman animals are given the legal rights of trust beneficiaries. The Nonhuman Rights Project began showing one way to establish the personhood and right to liberty of at least those nonhuman animals who are autonomous and self-determining when it started filing test cases in 2013 demanding that their nonhuman animal clients - so far chimpanzees and elephants - be given the right to bodily liberty. The NhRP brings in the world's greatest experts to explain to the judge how extraordinarily cognitive complex and autonomous its clients actually are. It never argues that autonomy and self-determination are required for legal personhood, just that those qualities should qualify their holders for the right to bodily liberty that is protected by habeas corpus, whoever they might be.

Judge Richard A. Posner

2. There is no principled way to draw a line between animals that should be recognized as “persons” (at least for habeas corpus purposes) and those that should not be given such recognition—and judges need to draw lines.

Animal rights advocates such as Steven Wise argue that chimpanzees (and bonobos and other primates) should be recognized as “persons” entitled to their freedom. He would say the same thing about elephants and whales and dolphins. And, no doubt, he believes that petitions for habeas corpus should be available to an intelligent bird species such as the African Grey Parrot. The octopus is a highly intelligent (albeit possessed with an almost alien sort of intelligence) creature—maybe an octopus should be a person? And then what about border collies or pigs?

You see the problem. No judge would order a border collie freed from its owner and no judge would liberate all pigs on an Iowa hog farm. Nor would many, if any, judges be ready to order parrots freed from their owners and sent to an aviary, no matter how wonderful that change might be for the parrot.

Richard Posner puts the problem this way: “Wise wants judges, in good common-law fashion, to move step by step, and for the first step simply to declare that chimpanzees have legal rights. But judges asked to step onto a new path of doctrinal growth want to have some idea of where the path leads, even if it would be unreasonable to insist that the destination be clearly seen. Wise gives them no idea.” (RP, 532)

Epstein makes essentially the same point: “[If] the line between humans and chimps is no longer decisive, then some other line has to be. Perhaps it is the line between chimps and great apes, or between both and horses and cows, or between horses and cows and snails and fish. Which of these lines are decisive and why?” (RE, 22)

Richard Cupp worries that the lack of an obvious place to draw a line will lead to excessive litigation: “If the legal wall between animals and humans is broken through, [that will open] a floodgate of expansive litigation without a meaningful standard for determining how many of the billions of animals in the world are intelligent enough to merit personhood.” (Cupp brief, 22)

Of course, even if there might be disagreement precisely where the line should be drawn, we instinctively understand that some animals deserve more legal protections than others. Epstein acknowledges that fact: “The more animals look and act like human beings, the greater the level of protection that we as humans are willing to afford them. Rights of bodily integrity do not have much of a future for mosquitoes. Second, the higher the species ranks on own tree of life, the stronger the justifications that must be advanced in order to harm members of that species. Cost aside, we would be wholly inappropriate to think that we should capture or breed chimpanzees for food, whatever our views on their use for medical experimentation.” (RE, 26)

STEVEN WISE'S RESPONSE: The English poet, Alexander Pope, wrote in his 1734 “An Essay On Man” that “Whatever is, is right.” Law professor Christopher Stone noted in his 1972 book, “Should Trees Have Standing” that “(t)he fact is that each time there is a movement to confer rights onto some new 'entity,' the proposal is bound to sound odd or frightening, or laughable,” while Justice Anthony Kennedy of the United States Supreme Court reminded us in 2003 that “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.” Not long ago in Western law, only white people had rights., not blacks or indigenous peoples. Only men had rights, not women. Only adults had rights, not children. The claim that those lines needed to be redrawn, that blacks should have rights or women or children, sounded “odd or frightening or laughable” to many. Each claim was stoutly resisted for decades, sometimes centuries, by those blind to the true meaning of such fundamental values that we nearly all agree with as liberty and equality by their times. Today many, including Posner, Epstein, and Cupp, are similarly blind to the claim that a nonhuman can have any rights by their times. Our times. The irony is they argue that any new line must be shown to be decisive, oblivious that the ancient line that exists between humans and the rest of the universe was based upon outdated and disproven biology and superseded moral values that long ago rendered it arbitrary and unjust.

3. Once we recognize some rights for animals, courts will be drawn into endless cases turning on whether animals should be given some other right—and some rights, almost everyone agrees, should be rights for humans only.

Epstein makes this argument: “The natural cognitive and emotional limitations of animals, even the higher animals, preclude any creation of full parity [with humans]. What animal can be given the right to contract? To testify in court? To vote? To participate in political deliberation? To worship?” (RE, 18)

Epstein also argues that granting rights to animals will raise questions as to whether we have a legal obligation to intervene in nature to protect them. As he puts it: “Do we train the lion to lie down with the lamb, or do we let the lion consume the lamb in order to maintain his traditional folkways? Do we ask chimpanzees to forgo eating monkeys. It is odd to intervene in nature to forestall some deadly encounters, especially if our enforced nonaggression could lead to extermination of predator species. But, if animals have rights, then how do we avoid making these second-tier judgments?” (RE, 19)

Posner also argues that starting down the path towards animal rights will lead to a judicial quagmire, thicket, or worse: “But what is meant by liberating animals and giving them the rights of human beings of the same cognitive capacity? Does an animal's right to life place a duty on human beings to protect animals from being killed by other animals? Is capacity to feel pain sufficient cognitive capacity to entitle an animal to at least the most elementary human rights? What kinds of habitats must we create and maintain for all the rights-bearing animals in the United States? Does human convenience have any weight in deciding what rights an animal has? Can common-law courts actually work out a satisfactory regime of animal rights without the aid of legislatures? When human rights and animal rights collide, do human rights have priority, and if so, why? And what is to be done when animal rights collide with each other, as they do with laws that by protecting wolves endanger sheep? Must entire species of animals be ‘segregated’ from each other and from human beings, and, if so, what does ‘separate but equal’ mean in this context? May we ‘discriminate’ against animals, and if so, how much? Do species have "rights," or just individual animals, and if the latter, does this mean that according special legal protection for endangered species is a denial of equal protection? Is domestication a form of enslavement? Wise does not try to answer any of these questions. He is asking judges to set sail on an uncharted sea without a compass.” (RP, 533)

STEVEN WISE'S RESPONSE: These are all “straw man” arguments in that no one actually makes them or is likely to make them. Yet they are raised to prevent nonhuman animals from possessing legal rights against those humans who actually harm them. No one asks whether human fetuses should have any rights – they certainly have many rights now - because the law would then have to grapple with whether they should testify in court or have the right to vote or the right to contract or participate in political deliberation or have the right to worship. No one asks whether children should have any rights and for the same reasons. Humans have no legal rights to be protected from being attacked by nonhuman animals or hit by lightning or hurricanes or having trees fall on them. The rights of nonhuman animals, like the rights of humans, are rights against other humans and no one claims differently. Moreover the claim that, as judges would have to grapple with new legal claims, an entity should have no rights at all, is unprecedented. And every time lawyers advocate for a new human right those who will be unable to exploit other humans try to block it. Who believes that humans should not take steps toward preventing climate change or environmental damages just because later steps might have more serious economic impacts on those who are causing climate change or ruining the environment or which involve more complex questions? Finally, the only job judges have is to decide. Their compass, as always, is the fundamental values that have long guided judges in deciding cases involving humans.

Richard Epstein

4. Many animals benefit from being treated as property and might actually fare less well if treated as “persons” entitled to their freedom.

Another way of framing this argument is to ask: “Who’s to say animals want to be liberated?” Organizations like the Nonhuman Rights Project might say that they speak for the animals, but obviously there are some difficulties when it comes to determining the precise wishes of an animal. It is easy to imagine that in some cases freeing an animal from what appears to be a sub-optimal situation might lead to an even worse situation.

Richard Epstein puts the argument this way: “Animals that are left to their own devices may have no masters; nor do they have any peace. Life in the wild leaves them exposed to the elements; to attacks by other animals; to the inability to find food or shelter; to accidental injury; and to disease. The expected life of animals in the wild need not be solitary, poor, nasty, brutish and short. But it is often rugged, and rarely placid and untroubled. . . . Because they use and value animals, owners will spend resources for their protection. Veterinary medicine may not be at the level of human medicine, but it is only a generation or so behind. When it comes to medical care, it’s better to be a sick cat in a middle-class United States household than a sick peasant in a third-world country. Private ownership of many pets gives them access to food and shelter (and sometimes clothing) which creates long lives of ease and comfort.” (RE, 10)

STEVEN WISE'S RESPONSE: Humans often need to persuade themselves and others that the entities we enslave for our selfish purposes actually benefit from their enslavement. In one 18^th century debate in the English House of Lords, one Lord claimed that slaves in the Caribbean lived in a state of humble happiness. Another said slaves appeared so happy to that he often wished to be a slave himself. In the 19^th century United States Vice-President John C. Calhoun said “(n)ever before has the black races of Central Africa, from the dawn of civilization to the present day attained a condition so civilized and so improved, not only physically, but morally and intellectually.” After hearing evidence in a 2012 case alleging that elephants in the Los Angeles Zoo were being treated badly, a Los Angeles judge noted that the senior elephant keeper engaged in an “anthropomorphic fantasy that the elephants are happy to see her and live their lives in captivity” and observed that “(c)aptivity is a terrible existence for any intelligent self-aware species, which the undisputed evidence shows elephants are. To believe otherwise, as some high-ranking employees appear to believe, is delusional.”

5. If we don’t limit personhood to human beings, but grant personhood to other species based on their cognitive capacities, the net result might be that the law will give less respect to human rights and human dignity.

Richard Posner makes this argument: “It is that if we fail to maintain a bright line between animals and human beings, we may end up by treating human beings as badly as we treat animals, rather than treating animals as well as we treat (or aspire to treat) human beings. Equation is a reflexive relation. If chimpanzees equal human infants, human infants equal chimpanzees.” (RP, 535)

Richard Cupp makes this argument a central part of his amicus brief against extending rights to animals: “The pervasive view that all humans have distinctive and intrinsic human dignity regardless of their capabilities may have cultural, religious, or even instinctual foundations. Morally autonomous humans have unique natural bonds with other humans who have cognitive impairments, and thus denying rights to them also harms the interests of society—we are all in a community together. Infants’ primary identities are as humans, and adults with severe cognitive impairments’ primary identities are as humans who are other humans’ parents, siblings, children or spouse. However, good intentions sometimes create disastrous results. There should be deep concern that over a long horizon, allowing animal legal personhood based on cognitive abilities could unintentionally lead to gradual erosion of protections for these especially vulnerable humans. The sky would not immediately fall if courts started treating chimpanzees as persons. . . .But, over time, both the courts and society might be tempted not only to view the most intelligent animals more like we now view humans but also to view the least intelligent humans more like we now view animals. (Cupp brief, 14-18).

Cupp concludes: “Deciding chimpanzees are legal persons based on the cognitive abilities we have seen in them may open a door that swings in both directions regarding rights for humans as well as for animals, and later generations may well wish we had kept it closed." (Cupp brief, 21)

STEVEN WISE'S RESPONSE: Enormous concern is expressed that granting any legal rights to any nonhuman animal “may”, “could,” or “might” cause us humans to treat other humans as badly as we treat nonhuman animals, though no reasons are given for why that could happen, other than another “may” and a “sometimes,” with some pop psychology thrown in, and no claim is made that such a thing has ever happened. That is because it never has happened. When the question arose as to whether women should have the vote no one argued that if they got the vote some men might end up losing their right to vote vote. When the abolition of black chattel slavery arose no one claimed that some white people could end up being enslaved. And nowhere in this thicket of great unlikelihoods can one locate any concern about changing the admittedly bad way we humans actually treat nonhuman animals. And that’s a certainty.

Richard Cupp

6. When push comes to shove, we have to favor our own species and cannot give anything like equal rights to another species. Our first moral obligation is to our own species.

Richard Epstein raises the issue thusly: “Suppose that we manufacture limited supplies of a new pill that is a cure for some disease that is ravaging both human and chimpanzee populations. There is not enough to go around for both man and beast. Is there some kind of affirmative duty to assist chimps to the same extent that we assist other human beings? I should be stunned if any real world scenario would ever produce any result other than humans first, chimps second.” Epstein concludes: “The blunt point is that we have, and will continue to have, different moral obligations to our own conspecifics than we do to chimps or members of any other species.” (RE, 23)

Gary Francione asks whether “we cannot prefer human over animals in situations of true emergencies or conflicts.” In his book, Your Child or the Dog? Francione asks how an individual should choose between saving the life of his or her child or his or her dog if both are trapped inside a burning house. Epstein argues the right answer is obvious: “The child, darn it, even if the child is unrelated and the dog is one’s own.” (RE, 23)

Epstein agrees that line-drawing is uncomfortable, even though necessary: “The root of our discontent is that in the end we have to separate ourselves from (the rest of) nature from which we evolved. Unhappily but insistently, the ‘collective’ we is prepared to do just that. Such is our lot, and perhaps our desire, as human beings.” (RE, 27)

Richard Posner believes that the special status humans accord themselves is not based on empirical evidence or logic. Rather, he says, it is based on “a moral intuition deeper than any reason that could be given for it and impervious to any reason that you or anyone could give against it.” (Posner debate with Peter Singer, 2001).

STEVEN WISE'S RESPONSE: This sort of line-drawing by which powerful line-drawers accord themselves a special status that carries with it the entitlement to enslave others has been made many times throughout history, Egyptians of Hebrews, Greeks of barbarians, Romans of Greeks, Christians of indigenous peoples and Muslims, Muslims of Christians, and whites of blacks, the last exemplified perhaps most famously, and execrably, in Chief Justice Taney’s opinion in the Dred Scott case. The slave-holding Taney, referring both to the legal status of black people in the 1780s and in the present, wrote that blacks “had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit … This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion … a perpetual and impassable barrier was intended to be erected between the white race and the one which they had reduced to slavery, and governed as subjects with absolute and despotic power, and which they then looked upon as so far below them in the scale of created beings …” Don E. Fehrenbacher noted in his Pulitzer Prize winning book, The Dred Scott Case,  “Taney’s statement was to place Negroes … on the same level, legally, as domestic animals.” (p. 349). It is time that nonhuman animals themselves are no longer placed on the same level as nonhuman animals.

7. The concept of rights is essentially human and can have force and applicability only in the human moral world.

The philosopher Carl Cohen puts the argument this way: “Animals cannot be the bearers of rights because the concept of right is essentially human; it is rooted in the human moral world and has force and applicability only within that world.” (Carl Cohen & Tom Regan, The Animal Rights Debate. 2001, p. 30).

Richard Cupp argues that because chimps should not be legally accountable, they also should not be given legal rights: “The pertinent question is not whether chimpanzees possess anything that could be characterized as a sense of responsibility, but rather whether they possess a sufficient level of moral agency to be justly held legally accountable as well as to possess legal rights under our human legal system. When, in 2012, an adult chimpanzee at the Los Angeles Zoo beat a three-month-old baby chimpanzee in the head until the baby died, doubtless no authorities seriously contemplated charging the perpetrator in criminal court." (Cupp brief, 5--6)

STEVEN WISE'S RESPONSE: In 2018 New York Court of Appeals Judge Eugene Fahey, the only high court judge in the United States who has opined to date on whether nonhuman animals should have any legal rights, wrote in a habeas corpus case brought on behalf of a chimpanzee, that the lower appellate court had “reasoned that chimpanzees are not persons because they lack ‘the capacity or ability ... to bear legal duties, or to be held legally accountable for their actions. (The Nonhuman Rights Project and) law professors Laurence H. Tribe, Justin Marceau, and Samuel Wiseman question this assumption. Even if it is correct, however, that nonhuman animals cannot bear duties, the same is true of human infants or comatose human adults, yet no one would suppose that it is improper to seek a writ of habeas corpus on behalf of one’s infant child or a parent suffering from dementia. In short, being a ‘moral agent’ who can freely choose to act as morality requires is not a necessary condition of being a ‘moral patient’ who can be wronged and may have the right to redress wrongs.

The (lower appellate court’s) conclusion that a chimpanzee cannot be considered a ‘person’ and is not entitled to habeas relief is in fact based on nothing more than the premise that a chimpanzee is not a member of the human species …

The better approach … is to ask not whether a chimpanzee fits the definition of a person or whether a chimpanzee has the same rights and duties as a human being, but instead whether he or she has the right to liberty … Moreover, the answer to that question will depend on our assessment of the intrinsic nature of chimpanzees as a species. The record before us … contains unrebutted evidence, in the form of affidavits from eminent primatologists, that chimpanzees have advanced cognitive abilities and demonstrate autonomy by self–Initiating intentional, adequately informed actions, free of controlling influences.”

8. Most all of what animal rights proponents seek to accomplish can be accomplished better by seeking additional legislative protection against animal cruelty.

Posner argues that seeking legislative protection is “more conservative, methodologically as well as politically, but possibly more efficacious, than rights-mongering.” He contends we should “extend, and move vigorously to enforce, laws designed to prevent gratuitous cruelty to animals. We should be able to agree without help from philosophers and constitutional theorists that gratuitous cruelty is bad.” (RP, 539)

Posner writes: “Wise is another deer frozen in the headlights of Brown v. Board of Education.” Wise overlooks better approaches to securing animal welfare through legislative action or redefining property rights. Posner suggests we should simply “forbid treating chimpanzees, or any other animals with whom we sympathize, cruelly.” Animal rights, as Posner sees it, is “just an impediment to clear thought as well as a provocation in some legal and philosophical quarters.” (RP, 540)

Richard Cupp agrees that the focus should be on legislative change to protect animal welfare. He approves of the language of New York’s Third Department, which refused to extend personhood to Tommy in the Lavery appeal: “Our rejection of a rights paradigm for animals does not, however, leave them defenseless,” noting that advocates for animals remained "free to importune the Legislature to extend further legal protections to chimpanzees.” (Cupp brief, 25).

STEVEN WISE'S RESPONSE: Centuries of legal history have demonstrated that the only way in which a human’s most fundamental interests can be protected is through fundamental legal rights. That is why such international human rights documents as the Universal Declaration of Human Rights and the International Convention on Civil and Political Rights require that every individual be deemed a “person.” I invite any humans who claim that it would better for nonhuman animals to forgo all legal rights and be protected solely by welfare statutes to give up all their legal rights. That way even your most fundamental interests will be protected solely by human welfare statutes. As with animal welfare statutes, you too will be unable to enforce the statutes, their enforcement will be left to the complete discretion of a public prosecutor, and any prosecution will lead at best to the violator being convicted of a crime, with no remedy coming to you.. If you are unhappy you can always “importune the legislature for further legal protections” that don’t amount to legal rights. Not interested? I thought not.