by Joyce Tischler
With the development of society, human beings started to be considered and the law termed them “persons” and “rights holders.” On the other hand, every other species on the planet was labelled “things,” “chattel” and “property.”
Animals thus continued to be tortured, terrorized and controlled for human purposes.
It is only recently that a movement is emerging to advocate for the legal rights of animals.
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 non-human animals should be accorded legal rights.
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 recognize 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.
Joyce Tischler is founder of Animal Legal Defense Fund.