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Steven Wise: If Chimpanzees Can Feel And Think, Should They Also Have Legal Rights?

Oct 12, 2018
Originally published on October 15, 2018 8:14 am

Part 2 of the TED Radio Hour episode Hacking The Law.

About Steven Wise's TED Talk

Animals like chimpanzees are autonomous beings with rich emotional lives, says animal rights lawyer Steven Wise. He's working to get courts to recognize them as "legal persons" and grant them rights.

About Steven Wise

Animal rights lawyer Steven Wise is the founder and president of the Nonhuman Rights Project, an initiative that works to secure legal rights for nonhuman animals like great apes, elephants, dolphins, and whales.

He has worked for nearly 40 years to help build the legal basis to grant legal rights for animals, including writing several books on animal rights and the fight to extend legal rights to all humans. His books include Rattling the Cage – Toward Legal Rights for Animals, Drawing the Line – Science and the Case for Animal Rights, and Though the Heavens May Fall – The Landmark Trial That Led to the End of Human Slavery.

His career was portrayed in the 2016 documentary, Unlocking The Cage.

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It's the TED Radio Hour from NPR. I'm Guy Raz. And on the show today, ideas about hacking the law to better serve everyone. And for animal rights lawyer Steven Wise, that means changing laws to better serve non-human animals, like apes.

Here's Steven Wise on the TED stage.


STEVEN WISE: I'd like to have you look at this pencil. It's a thing. It's a legal thing. And so are books you might have or the cars you own. They're all legal things. The great apes that you'll see behind me, they too are legal things.

Now, I can - I can do that to a legal thing. I can do whatever I want to my book or my car. These great apes you'll see - the photographs were taken by a man named James Mollison, who wrote a book called "James & Other Apes." And he tells in his book how almost every one of them is an orphan - saw his mother, father died before his eyes. They are legal things.


RAZ: So what's actually the difference between a legal thing and, like, a legal person?

WISE: Well, since Roman times, a thing has been an entity who lacks the capacity for legal rights. It can be a pencil. It can be a computer. It can be a human being at the time of slavery. But a person is an entity who has the capacity for one or more legal rights. At one time, it was defined in a very narrow way.

RAZ: You mean like men.

WISE: Or actually freemen or persons. But slaves were not. Sometimes women were not. Sometimes children were not. Now all human beings are considered to be persons.

RAZ: So a thing does not have legal rights, right? And a person does. And basically, now, all humans are legal persons. But I guess it's more complicated than that - right? - because, like, in the U.S., corporations are considered to be legal persons.

WISE: They are, indeed.

RAZ: So can you explain how that works?

WISE: So a person and thing are both terms of art. And that's up to legislatures in courts as to what or who those entities are. So, for example, in the last few years, the New Zealand Parliament has designated a river as a person who has a real legal rights. A national park has real legal rights. The Colombia Supreme Court has said that the Amazon rainforest in the country of Colombia is a person who has real legal rights.

RAZ: And Steven Wise sees these recent changes as positive steps toward broadening the definition of legal persons to include animals. And it's a cause he's been dedicated to for nearly 40 years, ever since he read the book "Animal Liberation" by Peter Singer.


WISE: Now, I read Peter Singer's book in 1980, when I had a full head of lush, brown hair. And indeed, I was moved by it because I had become a lawyer because I wanted to speak for the voiceless, defend the defenseless. And I'd never realized how voiceless and defenseless the billions of non-human animals are. And I began to work as an animal protection lawyer.

And by 1985, I realized that I was trying to accomplish something that was literally impossible. The reason being that all of my clients, all the animals whose interest I was trying to defend, were legal things. They were invisible. It was not going to work. So I decided that the only thing that was going to work was they had - at least some of them had also become legal persons. Now, at that time, there was very little known about or spoken about truly animal rights about the idea of having a legal person or legal rights for a non-human animal. And I knew it was going to take a long time.


RAZ: So your objective at that time was to essentially change the designation of non-human animals from legal things to legal persons? That was your goal. That would be your victory.

WISE: That was my goal. And in 1985, I decided that it would likely be 30 years of preparation, about 2015, before I'd be ready to file the first lawsuits that would have a reasonable chance of success, that so much had to be done. And as I began to try to understand what the legal history was of slavery and freedom and rights, that the one critical legal move is the transformation of an entity from a thing to a person. Nothing else matters.

RAZ: So back in the 1990s, when Steven Wise was just beginning to lay the groundwork for granting legal rights to animals, he came across an interesting case. It's called Somerset v. Stewart. And it took place 250 years ago in London.


WISE: James Somerset was an 8-year-old boy when he was kidnapped from West Africa. He survived the middle passage. And he was sold to a Scottish businessman named Charles Stewart in Virginia. Now 20 years later, Stewart brought James Somerset to London. And after he got there, James decided he was going to escape. One of the first things he did was to get himself baptized because he wanted to get a set of godparents because to an 18th century slave, one of the major responsibilities of godfathers was to help you escape. And so in the fall of 1771, James Somerset had a confrontation with Charles Stewart. Then James dropped out of sight.

An enraged Charles Stewart then hired slave catchers to canvass the city of London, find him, bring him to a ship, the Ann and Mary, that was to set sail for Jamaica where James was to be sold in the slave markets. Well, now James' godparents swung into action. They approached the most powerful judge, Lord Mansfield, who was chief judge of the Court of King's Bench. And they demanded that he issue a common law writ of habeas corpus on behalf of James Somerset. And a writ of habeas corpus is meant to protect any of us who are detained against our will. The detainer's required to bring the detainee in and give a legally sufficient reason for depriving him of his bodily liberty. Well, Lord Mansfield had to make a decision right off the bat because if James Somerset was a legal thing, he was not eligible for a writ of habeas corpus - only if he could be a legal person.

So Lord Mansfield decided that he would assume, without deciding that James Somerset was indeed a legal person, and he issued the writ of habeas corpus. And James' body was brought in by the captain of the ship. There were a series of hearings over the next six months. On June 22, 1772, Lord Mansfield said that slavery was so odious that the common law would not support it. And he ordered James free. At that moment, James Somerset underwent a legal transubstantiation. The free man who walked out of the court room looked exactly like the slave who had walked in. But as far as the law was concerned, they had nothing whatsoever in common.


RAZ: So inspired by this case, you realized you needed to find your James Somerset, of course, a nonhuman version of James Somerset.

WISE: I started to look for my James Somerset. I started to look for my Lord Mansfield.

RAZ: So how did you find your James Somerset?

WISE: We began with those nonhuman animals who we believed are cognitively complex, extraordinarily so, and that we can prove that. So the non-human animals who we had begun suing on behalf of so far are chimpanzees and elephants. And the reason we started with chimpanzees is because of all the hundreds and hundreds and hundreds of articles that detail legal studies about the cognition of chimpanzees that we can gather in one place and bring to the attention of the court to make it clear that they are autonomous beings and that they are conscious, that they are self-conscious, that they can use symbols, that they have language-like abilities. It goes on and on.

We filed 160 pages of affidavits. And we say, altogether, it shows that these are extraordinarily cognitively complex beings to the point of being autonomous. And, Judge, to allow an autonomous being to be enslaved is something that grinds against every idea of justice. And you have to step in and stop this.

RAZ: So how did you identify the chimpanzees you wanted to represent and then where to even file a lawsuit?

WISE: What we did is we spent seven years looking at the law of all 50 states and 20 English-speaking countries, trying to understand what jurisdiction the law would be reasonably on our side. So we chose the state of New York. Once we understood that, we decided to simultaneously file suits on behalf of all five chimpanzees who we could identify, who were being held captive in the state of New York.

RAZ: And where were they being held captive?

WISE: Well, Hercules and Leo were being held captive at Stony Brook University. At the age of 2, professors had taken them from their mothers and were keeping them in a cage in the basement of the computer building. And they were being used in experiments to determine why humans walk with a straight leg and chimpanzees walk with a bent leg. But that required that they undergo general anesthesia, that they have wires...

RAZ: Wow.

WISE: ...Thrust into their muscles. Anyway, it was an ugly situation. That's where Hercules and Leo were. Tommy was being held in a cage in a warehouse in central New York in a small town on a used trailer lot. And then Kiko was being held in a cement storefront on a residential street in Niagara Falls.

RAZ: All right. So far, you haven't found your Lord Mansfield. But you still - you are still fighting this battle. I mean, you are convinced this can be done. Do you think in - I don't know - in a hundred years from now or 200 years, we're going to look back on this in the same way we look back on the original Somerset-Mansfield case now and say, how could that even have been a case? That's insane.

WISE: Yes, and it's not going to take a hundred or 200 years. And we have come close twice. One of them, Justice Barbara Jaffe, in 2015, became the first judge in legal history to actually issue a writ of habeas corpus on behalf of a nonhuman animal, on behalf of Hercules and Leo. So we actually had a hearing very similar to the hearing that James Somerset had. And Justice Jaffe, actually, was quite similar to Lord Mansfield. She, in a long decision, made it clear that she was quite sympathetic to our arguments, but ultimately felt that she was bound by the decision of a higher court in another part of the state of New York. But I believe if she had not felt that way, she would likely have ruled in our favor.

RAZ: You are trying to change the law in a big way. This is a big, uphill battle. Like, you may not see the end of this battle.

WISE: Well, just like a human rights lawyer's not going to see the end of the human rights battle, the battle for human rights will continue as long as there are humans who want to exploit each other. But what I'm already living to see is the beginning of the battle. There really isn't a battle when one side's a thing and the other side's a person. There isn't a battle. The battle begins when both sides are persons and their rights begin to conflict. That's the battle that I'm already beginning to see. And that's the one that I was hoping to live to see and to bring about. And it's happening.


RAZ: That's Steven Wise. He's the founder of the Nonhuman Rights Project. You can watch his entire talk at Transcript provided by NPR, Copyright NPR.