Introduction
This essay will address the position of the courts in some recent cases involving an animal’s rights within the law, in particular looking at whether non-humans should be granted basic human rights. The most predominately looked at animals when this question is asked are chimpanzees and dolphins due to their strong mental capacities and traits that have been seen to mirror those of humans. Some recent cases involving chimpanzees in the state of New York have had a particular focus on the human right writ, habeas corpus. Habeas corpus, a parliamentary Act that ensures no person is unlawfully imprisoned, is commonly addressed as courts attempt to determine whether these non-human animals should be awarded this human rights writ. For chimpanzee Kiko, the courts found that he did not require the protection that habeas corpus granted, as basic animal rights in that state would allow for enough protection. However, habeas corpus is not the only reason those involved in the animal rights movement are pushing for human rights to be awarded to non-human animals. Questions are also being raised regarding whether chimpanzees should be protected from being used as resources in experimental testing? Also, if a human was to be viewed as having the same mental capacity as a chimpanzee, due to a mental disability or infant age, should they too be available for experimental testing? Or do our human morals and our idea of who is capable of being a rights-bearing entity cloud our judgment when making these decisions? This essay will attempt to develop a greater understanding of these questions by analysing recent cases on the topic and the opinions of various historic theorists.
Who is considered to be a morally considerate rights-bearing entity? When should they be protected?
In the current legal system the ability of a being, in a conscious state, to be morally self-determining, possess feelings and desires and act rationally in various situations, is what allows them to be considered as a rights-bearing entity. Research is ongoing into whether non-human animals possess all of these attributes listed above and can become right-bearing entity’s, however; currently only humans are seen to adhere to this criteria. In the case of Tommy the chimpanzee, who was being held by Lavery on their property in Gloversville Fulton County, the Nonhuman Rights Project Inc. argued on behalf of Tommy that:
“If human bereft of autonomy, self-determination, sentience, consciousness, even a brain, are entitled to personhood and legal rights, then this court must either recognize Tommy’s just equality claim to bodily liberty or reject equality entirely.”
Lavery I and Lavery II are two of the most recent decisions regarding the debate on whether non-human animals should be granted basic human rights and common law writs, such as habeas corpus. These cases argued that if nonhuman animals had the same abilities as humans according to the standards we have set, yet we do not treat them equally, then perhaps these standards should not be used to determine who is eligible for legal personhood. This is similar to the stance Peter Singer took when we wrote of the three options we have when forming a set of attributes that we think constitute being a human. The first is that we continue to use nonhuman animals as subjects of medical experimentation and not humans. The second is that we do not allow the taking of nonhuman animal’s lives even in cases where it is perceived that their life will be filled with great suffering, just as we do for humans. While the last is that we continue to evolve our behaviour towards nonhuman animals as well as other humans to ensure that both species receive fair and equal treatment. The third option given by Singer is analogous to the argument put forward in the Lavery cases. Although both Lavery cases failed in the courts, they are likely to be the beginning of a long debate over how we treat non-human animals and whether they fulfil the criteria we have set for legal personhood.
The case of Sandra the Argentinian Orangutan in 2014 is the only decided case where the courts have awarded a nonhuman animal basic rights. Sandra was found by the court to have a sufficient level of cognitive ability that meant that she should not be treated as an object, but rather deserves the basic rights of a nonhuman person. As a result of her case, Sandra was removed from her enclosure at the Argentine Zoo that she resided in and was placed in a more open and homely sanctuary, until she could be released. However, as of 2016 Sandra was still being kept in captivity as officials tried to find a way to release her. Even though Sandra has not yet been released this is still a landmark case in the development of animal rights, one which continues to keep the question of whether nonhuman animals should be considered as morally considerate rights-bearing entities at the forefront of the courts minds.
There are countless theories surrounding whether animals can be legally classed as “persons” for the purpose of granting basic human rights and protections. The basis of these theories surrounds the inequality of animals to humans and how their differing traits have led to this inequality. Anthropocentrism regards humankind as a superior species, the only species that requires moral consideration. Welfarism also views humans as superior when it comes to possessing rights over animals, however; it also advocates for the “humane use” of animals within society. Ecocentrists on the other hand believe that nature should be humanised so that it can be protected, meaning that humans should live as a part of a “land-community” that consists of all land, plants and animals being equal, rather than viewing themselves as conquerors. While, the Basic Rights approach regards the rights of non-human animals as equal to those of humans. Although these theories differ, they are all attempting to discover and understand the conditions of the legal relationship between humans and non-human animals.
We as humans have a moral obligation and duty to respect and protect each other regardless of our physical, personal or social differences. As rights-bearing entity’s we are legally entitled to protection from being disadvantaged and physically or mentally abused. In New Zealand our rights and freedoms as legal persons are laid out in the New Zealand Bill Of Rights Act 1990, with the law protecting us should anything or anyone infringe on any of these rights or freedoms. As a result of non-human animals not currently being seen to have the capacity to be right-bearing entity’s, it is the duty of humans to ensure that all animals are treated in a fair and humane manner according to animal rights legislation; which in New Zealand is the Animal Welfare Act 1999. Animals, although they do not qualify for basic human rights, are still entitled to life in a clean and safe environment where their needs are met and they are given protection from injury and experimentation or surgery under certain circumstances.
Who is used for experimental testing- animals, people?
Currently around the world non-human animals are protected by various Animal Rights Acts and legislation, most of which prohibit violence against animals but do not go as far as to prevent experimental testing being performed on them in certain circumstances. The main reason non-human animals are not considered to be equal to humans, and therefore are not granted the same rights, revolves around the idea that non-human animals do not have the capacity to be aware of themselves in such a way that they can acknowledge the value of their lives like humans do. This is a strong point of contention in present cases for those arguing that non-human animals should be granted human rights as they do not believe this is the case. These people argue that in fact the mental capacity of some non-human animals, such as chimpanzees, are equal and at times more advanced than those of humans in a vegetative state, who are still granted basic human rights, regardless of their inability to reason like other human beings. This begs the questions, “Should Chimps be afforded ‘nonhuman’ rights, including a right not to be harmed in medical experimentation?” and “Should humans in a vegetative state be available as subjects for medical experiments?”
When trying to answer this question of whether non-human animals, such as chimps, should be awarded rights to protect them from being harmed in medical experimentation, our judgement is often clouded as we view ourselves as a more superior species. A possible way to approach this question without bias towards our own kind is to adopt the view of contractarian John Rawls, who addresses justice through his “veil of ignorance” theory. In his theory Rawls talks about the decisions we would make if we did not know who we were and what our position in life was when we came out from behind the veil. This leads to the idea that we are likely to make decisions that will benefit the most vulnerable members of society the most, as we do not want to disadvantage ourselves should we emerge from the veil in these positions. Although Rawls did not include the possibility of becoming an animal when we leave the veil, if his theory is used in a hypothetical situation to involve this possibility then it will likely shed light on where we view non-human animals as standing in our legal society. It is likely that if this was the case then we would wish that non-human animals would be treated with the same care and protection as we are, thus; wish that they would too be granted basic human rights to protect them from medical experimentation.
Pythagoras, the first animal rights philosopher, further supports the idea that non-human animals should be protected from medical experimentation through his strong religious insight and discussion on the soul and views on equality. Pythagoras looked at this issue in the sense that should the soul of a human pass into the body of an animal then the two species would become linked and acts such as eating or killing the animal would be seen as cannibalism and murder respectively. He wrote:
As long as man continues to be the ruthless destroyer of lower beings,
he will never know health or peace.
For as long as men massacre animals, they will kill each other.
Indeed, he who sows the seeds of murder and pain cannot reap joy and love.
This shows that Pythagoras believed that the legal system should in fact be recognising non-human animals and humans as equals by comparing the common act of killing animals for food to that of murdering another human. This equating of actions was also shown by Jeremy Bentham who believed that nonhuman animals should not be placed into an experimental position that causes them harm and suffering.
“…the question is not, Can they reason? nor, Can they talk? but, Can they suffer? Why should the law refuse its protection to any sensitive being?… The time will come when humanity will extend its mantle over everything which breathes…”
Bentham believed that even though animals could not talk or reason like humans, they still had the capacity to suffer and so their suffering should be acknowledged and prevented in the same way we would prevent another human from being faced with suffering.
On the other hand, Utilitarian’s such as Peter Singer and Tom Regan support experimental testing on non-human animals for medical purposes as their view is that the testing that is being performed, although it can negatively affect the animals involved, could save the lives of many. These theorists do not however support cosmetic or other forms of testing on non-human animals that lead to the costs of the testing outweighing the benefits of the research it generates. Animals in their opinion should not be used as resources, as this violates their non-human animal rights, but instead should only be used in testing when there is a valid reason for doing so that brings about the greatest good for society.
This use of non-human animals for medical experimentation stems from the idea that these beings do not share the same mental capacities as us as humans, so the effects of any testing is not as great as what it would be on a human in their position. The question then becomes, do non-human animals always have mental capacities less superior than our own, or are their instances when comparing them to the intellectually disabled that they are in fact superior? Should in these instances humans in vegetative states too become available as subjects for medical experimentation? The problem with answering this question is that humanism often shadows our judgment and prevents us from forming an unbiased opinion.
The rights view looks at the inherent value of humans and non-human animals when faced with such a question. Inherent value is held by any, thing or person that is experiencing life, whether it be an animal, human or vegetation. Some people view that animals have inherent value, just not to the same degree as humans, however; the rights view states that “All who have inherent value have it equally, whether they be human animals or not.” Experimental testing of any kind shows a disregard for the subjects inherent value and so the rights view would conclude that neither animals nor a human in a vegetative state should be used in medical experimentation as their impaired mental capacity does not diminish their inherent value.
The rights view is often regarded as the most morally grounded view when looking at this question as it looks at the true value of a living being’s life rather than favouring a certain species. Some other theories mentioned earlier such as; Anthropocentrism and Welfarism, where humans are viewed as the superior species, would also reject the idea of human beings being used as subjects in medical experimentation. This is because doing so would inflict on the protections they receive from being a superior right-bearing entity. It is unlikely that humans will change their perspective and vote in favour of other humans becoming subjects for medical experimentations due to the moral standards society has set around anti-discriminatory actions, however; a similar situation can be viewed in the medical world today. Currently, human patients can voluntarily join into clinical trials for new drugs for various illnesses and diseases such as cancer, on the basis that they meet the criteria for the trial. Although this is not medical experimentation as such, it does show that we as a species may perhaps be willing to volunteer ourselves as ‘guinea pigs’ in medical trials if we think that the trial has the potential of helping improve our situation and that of others.
Conclusion
To conclude, it is obvious that throughout history different theorists have had different answers to the questions; “Should Chimps be afforded ‘nonhuman’ rights, including a right not to be harmed in medical experimentation?” and “Should humans in a vegetative state be available as subjects for medical experiments?” However, even though some theorists believe that nonhuman animals should be treated as equals to humans, and others believe humans are a superior species, one thing that they have all come to agreement on is that nonhuman animals should be treated humanely and not viewed as mere objects. As humans we have a moral duty to ensure that we value the lives of ourselves and others. Although it is not clear whether we should legally extend this same human curtesy to animals, there are some circumstances where animal rights law is enforced to protect animals from harm and abuse.
My analysis has led me to conclude that, although the case of Sandra the Orangutan in 2014 found that she in fact should be granted the rights of a nonhuman person, I do not believe that this should be the case. Personally, I tend to agree with the idea that instead of granting nonhuman animals the basic rights of a human person, we should instead be developing our animal rights legislation to better address the abilities and attributes of various animals. In society, although the law is the same for all humans, we can see that those whom are intellectually challenged generally receive a greater level of support and care. This idea should extend into the way that we treat animal, in that we should not treat them as if they are all of the same mental capacity, as this could result in a single human act having a greater or lesser effect on an animal with a higher mental capacity than that of another in the same situation. It’s important that into the future Acts like the Animal Welfare Act 1999 are amended in such a way that ensures all animals live in clean and safe environments where their needs are met and they are given protection from injury and certain experimentation.