by Michael Dorf
Amidst the furor over dentist Walter Palmer's killing of Cecil the Lion, on Wednesday a New York trial court judge ruled against the Nonhuman Rights Project's habeas corpus action on behalf of two chimpanzees--Hercules and Leo--being held as research subjects by Stony Brook University. In this post I shall discuss two possible readings of the events as seen from the perspective of someone (i.e., me) who thinks that just about all human exploitation of nonhuman animals is unjustified: One possibility is that in extending compassion to a (particular) lion and chimps, people move towards seeing other sentient nonhumans as deserving of similar respect; the other is that particular characteristics of lions, chimps, and certain other animals end up reinforcing the distinctions that people draw between the animals that may be used and those that should be treated better.
I assume that most readers have been following the Cecil story closely enough that I don't need to recap it, so let me begin with a short summary of the Hercules/Leo case. The Nonhuman Rights Project (NhRP) and its president, Steven Wise, have filed a number of habeas corpus actions in New York State on behalf of captive chimpanzees. Thus far, all of these cases have been rejected, although there remains the possibility of further appeals. Wednesday's decision by Judge Barbara Jaffe was a mixed bag for NhRP.
On the positive side, Judge Jaffe recognized the legal standing of NhRP to seek relief for the chimps; by contrast, federal courts have denied third-party standing claims (leading case here) on behalf of nonhuman animals under federal law. In addition, Judge Jaffe described NhRP's claims sympathetically, even quoting Justice Kennedy's language in Lawrence v. Texas 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." She nonetheless rejected NhRP's claim that chimps should be treated as persons for purposes of habeas corpus on two grounds: first, that she was bound as a matter of precedent by a ruling (which I criticized here) from an intermediate appellate court in another NhRP case on behalf of chimps; and second, that the dramatic change in the law sought by NhRP should come, if at all, from either the NY legislature or NY's highest court.
I have previously expressed misgivings about NhRP's strategy (here and here), partly on the ground that I thought the cases premature, even as I acknowledged that lawsuits that fail in the courts can succeed in the court of public opinion. I am cautiously optimistic that something like that may be happening with respect to Hercules and Leo. Apparently in response to the adverse publicity brought by the NhRP lawsuit, Stony Brook has announced that it no longer intends to experiment on them.
I have also worried that, by framing its claims for relief for chimps based on their strong similarity to humans, NhRP's legal strategy could be self-limiting. Judge Jaffe's opinion expressly compares chimps to beloved family pets, which is arguably a step in the right direction. Yet recategorizing chimps as animals we love rather than animals we exploit in experimentation does little to challenge animal exploitation itself. Human beings have long shown that they can think of some animals (e.g., dogs and cats) as family members even while they think of other animals with no relevantly different capacities as sources of food (cows, chickens, pigs, goats, fish) or clothing (cows, sheep), or as appropriate research subjects (rats, mice, monkeys). They can even turn on or off their classification schema based on whether a particular animal is in fact someone's pet or something else. Think of the woman selling rabbits as "pets or meat" in Michael Moore's Roger & Me or the fact that some dogs and rats are pets, while others are experimental subjects.
As I noted when first raising this subject, I understand that NhRP argues that the advanced intellectual abilities of chimps are offered as a sufficient condition for legal personhood, not as a necessary condition. And I was pleased to hear Wise reiterate that point in response to a question from Mariann Sullivan during an interview on The Animal Law Podcast. (The interview was conducted before Judge Jaffe's ruling. A follow-up interview was released yesterday, after the ruling.) Nevertheless, even if Wise and NhRP only choose to emphasize the human-like capacity for autonomy of chimps because it fits the NY case law well--as he told Sullivan--lawyers do not control the impact of their legal strategy. NhRP may hope to use a ruling that chimps are persons, if they obtain one, as the first step in arguing that other animals are persons, but winning the right to personhood based on human-like-ness could stand as an obstacle to recognition for less human-like animals. It remains an open question.
Although I might reach different conclusions about how best to advance the cause of animal rights than Wise and NhRP do, I acknowledge that they have given a great deal of thought to the question. By contrast, most people who are outraged over Cecil are not animal rights activists of any sort. Their outrage is prima facie puzzling, given that the vast majority of them consume the products of animals no less deserving of life than Cecil. Many are probably hunters of deer and other animals, and even those who are not hunters do not, so far as I can tell, condemn all hunting.
In response to a Facebook post along the foregoing lines by a friend of mine, one of his FB friends responded that, at least for him, Cecil's case underscored the need to protect endangered species. Deer and farmed animals are not endangered, he noted, so there is no inconsistency in wanting to protect lions and other endangered species but not these other non-endangered animals. I have no doubt that the person who wrote that (whom I don't know IRL, as the kids say) was sincerely expressing his own motivation, but I don't think it stands up as a general explanation of the Cecil phenomenon.
Last Fall, the U.S. Fish & Wildlife Service proposed listing the African lion as an endangered species. Yet the pro-lion activism did not erupt until the killing of a particular beloved lion. To me, that suggests that most of the concern for Cecil is a concern for Cecil, not for lions in general. As Professor Colb explained last year in an insightful Verdict column about a Danish zoo's killing of the 18-month-old giraffe Marius, concern to preserve a species, while certainly legitimate, treats each individual member of that species as a mere "container of DNA." The outrage over the killings of Marius and Cecil focuses on each of them qua individuals, not as exemplars of their respective species.
Furthermore, anyone concerned about the loss of species diversity ought to be concerned about animal agriculture--which is the largest driver of habitat destruction on our planet. Land converted from its natural state to pasture is land that is unavailable as habitat for the animals who formerly lived there. So is land converted to growing crops for animal feed--and given the inefficiency of converting sixteen calories of plants into one calorie of beef (with similar ratios for other animal products), that's A LOT more land than we would have under cultivation if people stopped consuming animal products. So, my friend's FB friend was wrong even on his own terms. Just as it is odd to care about Cecil but not the animals whose products one eats when one takes the perspective of each individual animal's interests, it is odd to focus on hunting as a threat to endangered species while one ignores the (greater) impact on endangered species that arises out of the demand for animal products.
Despite all of this, I am cautiously optimistic about the public sympathy for the likes of Cecil, Hercules, and Leo. I recognize that most people allow themselves to sympathize with these animals because they do not eat lions or chimps at all, much less three times per day. But to me, this shows that, at an emotional and intellectual level, people understand the case for animal rights. They reject it when it comes to their own personal lives because they cannot imagine that they could live, much less thrive, as vegans. Yet for the vast majority of humans on the planet, that is simply false.
Lawsuits like those brought by NhRP might or might not advance the cause of animal rights. I hope they do, but if I were czar of the animal rights movement, I would direct most of our efforts to showing people how they can live fulfilling, economical, healthy lives as vegans. I'll do my part by noting that there is lots of delicious vegan food out there, much (but not all) of it very healthy.