A Memorial Homage to Steven Wise

Steven Wise recently died. He was a pioneering animal rights activist--through his books, his teaching at Harvard, and his activism--as the first president of the Animal Legal Defense Fund and then as the founder of the Nonhuman Rights Project (NhRP). Readers unfamiliar with Steve's life and work could do worse than to read the fine obituary that appeared in the New York Times.

I didn't know Steve well, although I know a lot of people in the movement who did, and I always respected and admired him. To honor his legacy, here I want to recap two ways in which I disagreed with his legal strategy. As I'll explain, over time I came to think that on one of these points, Steve was right and I was wrong. The jury is still out on the second point, but I think it's at least possible that there too, his approach will prove to be more productive than I had previously imagined.

To begin, my disagreements with Steve were only ever about strategy, not goals. The Times obit says that Steve "became a vegetarian and stopped wearing leather." That's a bit misleading. Steve in fact became a vegan and thus (insofar as is possible in a developed country without moving completely off the grid) stopped using all animal products. He was committed in both his personal life and in his activism to ending human exploitation of sentient nonhuman animals.

Despite the caricature of animal rights activists as a collection of disheveled terrorists, most of us find perfectly conventional means of working to end animal exploitation. We open vegan restaurants or create plant-based alternatives to animal-based foods. We make documentary films, write books and essays, and speak out at conferences and on social media. We hand out flyers. And then there's the activism of the NhRP under Steve's leadership, which consisted in no small part in filing lawsuits on behalf of captive chimpanzees and elephants--listed as the petitioners themselves in habeas corpus actions.

I agreed with Steve and the NhRP that the clients they sought to free deserved to be freed, but I was initially skeptical of litigation as a means of achieving that end. As I wrote in a 2002 essay in the California Law Review, rights advance through the courts "only when the ground has been prepared by social and political movements." I worried that the NhRP lawsuits were doomed to fail because even though we animal rights proponents had been working assiduously for years, there still was not sufficient receptivity among the broader public or legal elites. Thus, in 2011, I lamented a lawsuit that PETA brought against SeaWorld alleging that the latter's holding orcas captive to entertain park-goers was enslavement in violation of the Thirteenth Amendment. Although I shared PETA's normative goals, I worried that the lawsuit would "likely offend millions of people and bring ridicule upon the causes PETA claims to champion."

Steve also disapproved of the PETA lawsuit but mostly because he thought his arguments under the common law of habeas corpus were much better than the constitutional argument advanced by PETA. To my mind, that did not go to the heart of the problem--which was that a legal system staffed by people eating animal products three times per day would not be receptive to any claim that nonhuman animals deserve rights. Accordingly, I was almost as skeptical of Steve's litigation strategy as I was of PETA's.

I now recognize that Steve was right and I was wrong--or at least that I was thinking too narrowly about the goals of litigation. I was right in my predictive judgment that PETA's lawsuit and the lawsuits brought thus far by the NhRP would fail to obtain the release of the client animals. After all, they did fail. But I was wrong in thinking that failure to obtain relief from a court meant failure, full stop.

Through some productive research and writing collaborations with my Government Department colleague Sidney Tarrow, I eventually became familiar with the substantial body of literature that understands at least some litigation as a form of social and political movement activism. Lawsuits--even lawsuits that lose--need not depend on other social movement actors preparing the ground for them to succeed. The lawsuits themselves help to shift public opinion and build a movement. I have little doubt that the NhRP litigation strategy has worked in this way to raise public awareness and opposition to at least some of the injustice of what humans do to nonhuman animals.

So that's how I came to see where Steve was right and I was wrong. But I also disagreed with him on another point. The NY Times obituary and the NhRP website identify the animals on whose behalf NhRP litigates. They are the "genius" animals: great apes; elephants; cetaceans (dolphins and whales); and parrots. (The Times obit also refers to honeybees, although I'm not aware of any campaigns by NhRP for honeybees.) In its filings in court, the NhRP papers emphasize the intellectual capacities of these animals that make them just like us. For example, the NhRP website says "it is morally and legally wrong to deprive self-aware, autonomous nonhuman animals of their liberty."

I don't disagree with that statement. But I have long worried that it carries a negative implication--that, conversely, it is morally (and should be legally) permissible to deprive other sentient animals of their liberty if they lack the super-intelligence NhRP equates with self-awareness and autonomy.

It is notable that the animals slaughtered by humans by the billions--cows, pigs, chickens, and even greater numbers of fish--are not represented by NhRP. Many of those animals in fact are self-aware (as measured, for example, by the mirror test) and would be autonomous if they were not denied their autonomy, but these characteristics should not be prerequisites for basic rights. As Jeremy Bentham long ago remarked: "The question is not, Can they reason?, nor Can they talk? but, Can they suffer?."

Meanwhile, by  representing charismatic genius animals who are deemed honorary humans, NhRP's legal strategy seemed designed to give judges leery of outlawing animal agriculture an off-ramp. Here's how I put the worry in an essay in 2014:

the NhRP court filings . . . emphasize human-like characteristics of chimpanzees such as "autobiographical self, episodic memory, self-determination, self-consciousness, self-knowing, self-agency, referential and intentional communication, language planning, mental time travel, numerosity, sequential learning, meditational learning, mental state modeling, visual perspective-taking . . . symbolic culture, cross-modal perception, tool-use, tool-making, [and understanding] cause-and-effect." To be sure, the NhRP filings are careful to argue that these characteristics are sufficient to confer legal personhood on chimps, rather than necessary, but in emphasizing the fact that chimps are almost human, the case essentially asks the court to redraw the legal line between persons and things somewhat more generously, but in a place that still leaves sentient beings like cows, chickens, and rats on the "thing" side of the line. I know that Wise et al hope that the proposed expansion of the person category is only a first step that will eventually lead to a greater expansion, but it is also possible that his approach could end up reinforcing a line between the sentient beings who count and those who don't.

As I said above, the jury is out on whether lawsuits on behalf of chimps, elephants, and orcas end up moving the line towards sentience or merely create a firmer distinction between humans and nearly all other animals. However, I want to conclude by offering a reason to hope that the one-step-at-a-time dynamic will prevail and the NhRP litigation strategy will end up working for all sentient animals.

My suggestion is that the claim that only a few genius animals are self-aware and autonomous could come to be seen as a flimsy rationalization. I make that suggestion based on my own decade-long journey from omnivore (up until 1996) to vegan (not until 2006).

First I gave up eating mammals, then birds, then fish, then dairy and eggs, and then (again insofar as practicable without becoming a hermit) all animal products for other purposes as well. At each step along that path I adopted some self-serving rationalization that was inconsistent with the actual facts.

I have seen others do the same thing. For example, someone I know claimed they wouldn't eat any animal "with an attentive mother" although they never articulated why this criterion had moral force. Another person said they wouldn't eat any animal "with a face," which somehow allowed them to eat fish and, like the attentive-mother line, made no sense as a moral principle. Eventually, they each became vegans.

To be sure, not everyone who rationalizes eventually comes to see their rationalizations for what they are. Some people who won't go to SeaWorld or patronize zoos that hold captive elephants still eat what they always ate. And people can be stubborn in holding on to their circular rationalizations. People who sincerely claim to be animal lovers--and who genuinely love their dogs and cats--will respond to the question of what makes a dog morally different from a pig by saying that a pig "is a food animal," as though that were a reason rather than a restatement of the problem.

So there is no guarantee that NhRP's consciousness-raising litigation around genius animals will succeed even for its clients, much less that it will cause a cascade of change for the billions of other animals humans exploit and kill. But there's at least a possibility that it could. And for that I'm grateful for Steven Wise's tireless and creative activism.


Postscript: My most recent Verdict column uses the Alabama Supreme Court decision in the IVF case as an occasion to ask whether rights are always zero sum (given that rights for embryos erode rights for prospective parents seeking to use IVF to launch a pregnancy). In the course of that column, I discuss NhRP's litigation on behalf of Happy the elephant as an instance of win-win rights. Given all of the ways in which human exploitation of nonhuman animals ends up harming humans, I say that "rights for elephants and other animals would necessarily restrict the freedom of humans, but they would enhance human wellbeing." I would add here that despite my earlier worries about the NhRP, I was very pleased that I played some role (an amicus brief in the New York Court of Appeals on behalf of Laurence Tribe, Sherry Colb, and me) in supporting Steve's litigation on behalf of Happy.