Rattling The Cage

FOREWORD

by Jane Goodall

Rattling the Cage is an important book, an exciting book. It will be welcomed by everyone who is concerned about the well-being of animals, by those who are, as I am, kept awake by grim mental images of the abuse inflicted on other animals by humans. I was honoured when Steve Wise asked me to write this introduction, for I believe that Rattling the Cage, thanks to all the long years of research that went into the writing, will make an impact, and leave its mark on the process of law. I see it as a major stepping-stone along a road that is gradually leading to a new legal relationship between humans and other sentient, sapient life forms.

Steve Wise is a law school professor. He is also an accomplished animal-rights legal scholar and one of the world's most prominent animal-rights lawyers. Steve and his wife, Debi, defend a variety of animal species across the United States and advise those who defend animals around the world. In writing Rattling the Cage, Steve has used his experience in both science and law to great advantage, and he has a trial lawyer's knack for telling a good story. He explains, for example, why it matters so much today whether an ox who gored a passerby on a road in the Middle East four thousand years ago was Babylonian or Hebrew. And why, four hundred years ago, an early animal advocate stood up for barleyeating rats in a French courtroom. And, most surprisingly, why John Quincy Adams would thunder on the floor of the U.S. House of Representatives that he would present petitions to the Congress from horses or dogs if they asked him to.

In many ways this book can be seen as the animals' Magna Carta, Declaration of Independence, and Universal Declaration of Rights all in one. And it is timely. Twenty—even ten—years ago, Steve would have been out on a limb, ridiculed by his colleagues and largely ignored by the lay public. But attitudes toward animals have changed. Very few scientists today believe that nonhuman animals are simply mindless machines, collections of stimuli and responses. Of course, it would be convenient to believe that this was true, that there was a basic and fundamental difference between ourselves and the rest of the animal kingdom. Then we could do unpleasant things to them without any feelings of guilt. But this is scarcely an option today, when there have been so many descriptions of incredibly complex social behavior and so many examples of intelligent behavior from so many careful field studies on a whole variety of animal species. Our thirty-nine years with wild chimpanzees at Gombe, for example, has taught us much about these relatives of ours, each with his or her own unique personality. They share so many of our behaviors. They form close affectionate bonds with each other that may persist through a life of sixty or more years; they feel joy and sorrow and despair, mental as well as physical suffering; they show many of the intellectual skills that until recently we believed unique to ourselves; they look into mirrors and see themselves as individuals— they have consciousness of "self." Admittedly, chimpanzees are capable, as are we, of acts of brutality. But they also demonstrate empathy, compassion, altruism, and love. Should not beings of this sort have the same kind of legal rights as those we grant to human infants or the mentally disabled, who also cannot speak for themselves?

This book outlines how legal changes for animals, once thought impossible (and there were very few who even bothered to consider this at all), can actually happen. Then we shall have another way of fighting the injustice that is still perpetuated on animals of all kinds—by science, agribusiness, the pharmaceutical industry, the live-animal traders, and so on. If only such a change in law could have happened in time to save Jojo, Jade, and Dick.

Jojo was the first adult male chimpanzee whom I met in a medical research laboratory—which was, of course, in the basement, with no windows. JoJo was, like the other nine adult males who shared space with him, confined in a five-foot by five-foot cage. There were thick steel bars between JoJo and me. And there were bars on either side of him, and above and below. His view of the world was utterly distorted by thick steel bars. He had one motor tyre in his cell, and a drinking spout. He had been born in the African forest; he had spent more than ten years in the lab. Then there was Jade. For more than seven years she had earned her living by attending up-market birthday parties, and other such social events. When I met her, she was about eight years old and her teeth had been pulled. She was dressed in human clothes. She had been brought, as an "ambassador for her species," to a fund-raising dinner. When we met, I greeted her in chimp style, and after that, from the opposite end of the vary large table, she gave her toothless grin every time I caught her eye. I knew she wanted to come over; I knew she had been disciplined to remain in her place, slurping soft foods. I desperately avoided looking at her, filled with anger that she was thus exploited. At the end of the meal, she was allowed to come and clamp her arms around me and breathe her sadness into my neck. And there was Dick. When I met him he lived in a small zoo cage with a cement floor. He had a female with him, but clearly had little time for her. He sat in the corner endlessly tapping each finger of his left hand in turn with the index finger of his right hand, in time to the rhythmic opening and shutting of his mouth. In the cage next to him, a lone male gorilla endlessly vomited into his hand and reingested the vomit. Dick was the first captive chimpanzee to whom I made a commitment—I would work to try to better his condition, and that of countless other captive apes around the world.

Since I met Dick in 1956, ethical concerns about our treatment of animals are surfacing everywhere; there are, for example, groups of physicians, surgeons, psychologists, veterinarians—and lawyers—who protest abuse of animals and lobby for change. There are more than seven thousand different animal rights/welfare groups in the United States alone, and there are increasing numbers of people speaking out against intensive or factory farming of food animals, against trapping, hunting, exotic animals in circuses, movies and advertising, puppy mills—and on and on. And there is growing concern for animal welfare in all parts of the world, including the developing world.

The trouble is, while those guilty of cruelty may be prosecuted, often successfully—Steve has saved hundreds of animals' lives in the courtrooms—in the legal sense, animals are regarded as "things," as mere objects that can be bought, sold, discarded, or destroyed at an owner's whim. Only when animals can be regarded as "persons" in the eyes of the law will it be possible to give teeth to the often-fuzzy laws protecting animals from abuse. Rattling the Cage explains how legal rights for animals can help to stop so much of the abuse that, today, goes unpunished.

As Steve hints in his last chapter, this book represents a first step toward seeking legal rights for other animal species, rights modified in appropriate ways for different kinds of animals. Chimpanzees along with bonobos are our closest living relatives, differing from us in structure of DNA by only just over 1 percent. This makes these apes "our sibling species"—thus it is fitting that they should be the first to acquire rights, as surely they will—in the eyes of the law. In 1996, Steve and I made a presentation to the Senior Lawyers' Division of the American Bar Association, explaining just why justice demands that we extend fundamental legal rights to chimpanzees. This book makes the same point, in huge detail and in clear language, so that lawyers and judges and law professors—indeed everyone everywhere—will be able to follow the argument. So that in the end the machinery of the law can be changed in favour of the great apes.

It will be too late for JoJo, Jade, and Dick—they are gone. Yet still I think of them, and I feel deep shame; shame that we, with our more sophisticated intellect, with our greater capacity for understanding and compassion, deprived them of freedom, stole from them the dim greens and browns; the soft gray light of that African forest, the peace of afternoon; when the sun flecks through the canopy and small creatures rustle and flit and creep among the leaves. Deprived them of the freedom to choose, each day, how they would spend their time, and where and with whom. Deprived them of the sounds of nature, the gurgling of streams, murmuring wind in the branches, of chimpanzee calls that ring out so clear, and rise up through the tree tops and drift away in the hills. Deprived them of their comforts, the soft leafy floor of the forest, the springy, leafy branches from which sleeping nests can be made. But it is not too late for hundreds of others who are, as this book goes to press, languishing in man-made prisons.

Steve Wise has marshaled the facts and presented them at a crucial point in Western history—at the end of a millennium. Let us hope that as we enter the twenty-first century, the new and more enlightened attitude concerning our own moral relationship with the rest of the animal kingdom will be reflected in appropriate changes in the legal system. Certainly this book Rattling the Cage, will give the process a mighty shove. Thank you, Steve.

ACKNOWLEDGMENTS

Anyone who writes a book that tries to sweep across 4,000 years then burrow deeply into the minds of two species of nonhuman animals requires a lot of help. That is why I owe a debt to the law professors, lawyers, judges, and philosophers who were kind enough to review portions of this book, or earlier articles, or to debate issues that helped me to clarify my thinking: Taimie Bryant, David Favre, Thomas G. Kelch, Sarah Luick, Richard Posner, Stuart Shanker, Peter Singer, Eliot Sober, L.W. Sumner, Paul Waldau, Carl Wellman, and David Wolfson. I warmly thank Daniel Coquil-lette, who put me on speaking terms with legal history almost 25 years ago and gave me a model for how a great teacher teaches while he was doing it.

My debt is enormous to the many scientists from whom it has been my rare privilege to learn. Despite having never met a lawyer of the species, jus animal, and sometimes suspicious of the entire genus, they quickly realized that I wanted to learn as much as possible about the magnificent apes with whom they share their lives or study with such interest and empathy. Some opened their laboratories, read drafts of chapters on the minds of chimpanzees and bonobos, good-naturedly put up with pestering for the results of their latest research, and welcomed me as friend: Sally Boysen, Roger Fouts, Sue Savage-Rumbaugh and Duane Rumbaugh. Others fortunate enough not to have to endure my visits to their laboratories sent me reprints of their articles, patiently answered my unending questions about the cognition of chimpanzees, bonobos, and human children, and gently pointed out my most egregious errors: Juan Carlos Gómez, Donald R. Griffin, Marc D. Hauser, Michael A. Huffman, Evangeline Lillard, Tetsuro Matsuzawa, David Premack, Daniel Shillito, Michael Tomasello, Frans de Waal, and Richard Wrangham. The master himself, Morris Goodman, enthusiastically gave me a primer on primate taxonomy. Charles Sedgwick, D.V.M. kindly relayed the story of the accidental death of Jamal at the Chimpanzees of Mahale Mountains exhibit at the Los Angeles Zoo, while Deborah Blum, who knows every prima-tologist in the world, graciously reviewed several chapters with her sharp journalist's eye. My friend, Jane Goodall, whose path-breaking work and immunity to jet lag has allowed the wonders of the chimpanzee to be revealed to humankind, penned an overly-generous Foreword. Thanks, Jane, whichever continent you might be on. And a special thanks to Rachel Weiss, who made me understand what it was like for Jerom to wither and perish at the Yerkes Regional Primate Research Center; at least he did not die alone or unloved.

I am fortunate to have Merloyd Lawrence as my friend and editor at Perseus Books. Her personal commitment to attaining rights for chimpanzees and bonobos rivals my own. As an editor, she cuts without wounding. I thank my agent, Charles Everitt, experienced in every possible aspect of book publishing, who thought he saw the potential for a good book then tirelessly doubled as a second editor to try to realize it.

My greatest debt is, of course, to my wife and law partner, Debi Slater-Wise. At work she is the scourge of anyone who dares try harm a nonhuman animal and a merciless editor of her husband's work. At home hers is the hand that guides the family rudder, steering three children, Roma and those twin soldiers of entropy, Siena and Christopher, towards secure, happy, and productive lives. Nunc scio quid sit amor.

Finally, my deepest thanks to Fred Gates, who made everything possible.

Preface

"Rights Group Is Seeking Status of 'Legal Person' for Captive Chimpanzee”

—New York Times

"Wir erkennen Schimpansen nicht als Personen an" ("We do not recognize chimpanzees as persons")

—Süddeutsche Zeitung

"A Chimp's Day in Court: Inside the Historic Demand for Nonhuman Rights”

—Wired

"Grupo pede habeas corpus para chimpanzé nos EUA" ("Group seeks habeas corpus for U.S. chimp")

—Folha de São Paulo

"Lawsuits Could Turn Chimpanzees into Legal Persons"

—Science

"Will chimps soon have human rights?"

—The Guardian

"Group seeks 'personhood' for 4 chimps in NY"

—Wall Street Journal

During the first week of December 2013, these headlines, and hundreds like them, appeared in many languages in popular, scientific, legal, and business publications, as well as in blogs, and on television and radio shows. They announced the fulfillment of the implicit promise made in the final paragraph of the original edition of Rattling the Cage: Toward Legal Rights for Animals fourteen years ago:

"It should now be obvious that the ancient Great Wall that has for so long divided humans from every other animal is biased, irrational, unfair, and unjust. It is time to knock it down. The decision to extend common law personhood to chimpanzees and bonobos will arise from a great common law case. Great common law cases are produced when great common law judges radically restructure existing precedent in ways that reaffirm bedrock principles and policies. All the tools for deciding such a case exist. They await a great common law judge, a Mansfield, a Cardozo, a Holmes, to take them up and set to work.”

The lawsuits discussed in the headlines were the first ever to demand "legal personhood" for a nonhuman animal and they had just been filed in three New York trial courts.

As the twenty-first century began, courts considered all human beings "legal persons," on one side of that Great Legal Wall. The rest of creation is composed of "legal things," on the other side. The distinction is critical, as only "legal persons" count in a court. Nonhuman animals have always been legal things.

To have a legal right, one must be recognized as a legal person with the capacity to have a legal right, to be seen as a "rights container" into which legal rights can be poured. Rattling the Cage was one lawyer's blueprint for turning at least some nonhuman animals into rights containers and changing their legal status from "thing" to "person" by using the common law, which is that law made by English-speaking judges in the process of deciding cases in areas where the legislature has not spoken.

Before Rattling the Cage was published in the year 2000, no one had contemplated challenging the legal thinghood of a nonhuman animal. To begin and carry out a nationwide strategic litigation campaign to change the legal status of such nonhuman animals as chimpanzees and bonobos was going to require a large and stable organization. By 2013, the blueprint had evolved into the Nonhuman Rights Project, and involved several hundred lawyers, law students, law professors, political science professors, sociologists, natural scientists, mathematicians, communications and social media experts, and others. The purpose of the Nonhuman Rights Project is to demonstrate the capacity of such nonhuman animals as chimpanzees and bonobos to hold such fundamental legal rights as bodily liberty and bodily integrity.

Much of Rattling the Cage is devoted to legal personhood. "Legal person" is not a synonym for "human being." The Nonhuman Rights Project's memoranda to the three New York trial courts mention a case from pre-independence India in which a Hindu idol was recognized as a legal person. The Supreme Court of India held in 2000 that Sikh holy books are legal persons. A Pakistani court has recognized the personhood of a mosque, while New Zealand's Crown and its indigenous peoples signed a treaty in 2012 that designates a certain river as a legal person. In the United States, the long struggles over the legal status of fetuses, slaves, Native Americans, women, and corporations have never been over whether they are human, but whether justice demands that they should be considered legal persons and therefore count in law.

Half of Rattling the Cage discusses how the legal thinghood of all nonhuman animals came about. It then formulates arguments designed to persuade fair-minded common law judges that justice demands that such nonhuman animals as chimpanzees and bonobos be characterized as legal persons, at least to the extent of protecting their fundamental interests in bodily liberty (not being imprisoned) and bodily integrity (not being beaten, tortured, or experimented upon). It argues that the possession of autonomy is sufficient under the common law to establish legal personhood, and that every autonomous being, regardless of her species, should be recognized as a legal person with the capacity to possess one or more legal rights.

To demonstrate this autonomy in nonhuman animals, the book focuses on two species of great apes: chimpanzees and bonobos. Both these species have been studied thoroughly for half a century. They are our evolutionary first cousins and their extraordinary often human-like cognitive abilities and autonomy have been clearly demonstrated. Talented and creative scientists have been struggling for decades, and are struggling now, to understand chimpanzee and bonobo cognition and peer into their complicated minds; among the most prominent of these scientists are Sue Savage-Rumbaugh, Tetsuro Matsuzawa, William McGrew, and Christophe Boesch.

During the first week of December 2013, aiming to begin the strategic litigation campaign outlined in Rattling the Cage, Nonhuman Rights Project lawyers traveled from one end of New York State to the other, filing three common law habeas corpus suits onbehalf of four imprisoned chimpanzees. Common law habeas corpus is the procedure I discuss in Chapter 5, and describe more fully in my book Though the Heavens May Fall, in which I recounted how, in 1772, the slave James Somerset used it in London's Court of King's Bench to transform his status from a legally invisible "legal thing" to "legal person" who counted in law.

Habeas corpus petitions are litigated quickly and simply, free of technicalities. The four petitioners were the only chimpanzees the Nonhuman Rights Project could identify as living in New York State. Originally, the project's legal team was planning to file a single habeas corpus petition on behalf of Merlin and Reba, two chimpanzees we found imprisoned in a roadside zoo in central New York. When I visited the zoo a few weeks after we discovered them, only a depressed Merlin was there. Reba had died a few weeks before. I whispered to Merlin that he needed to hold on; I would come back for him. But he couldn't hold on. When Natalie Prosin, the Nonhuman Rights Project's executive director, visited Merlin in September, his enclosure was vacant. Merlin had died the previous day.

Shocked at the deaths of Merlin and Reba, the Nonhuman Rights Project decided to seek writs of habeas corpus on behalf of every chimpanzee we could locate in New York State. We identified five. Two chimpanzees, Charlie and Kiko, were imprisoned in a singlestory, cement Niagara Falls storefront. Kiko was deaf. Charlie was featured on a website called "The Karate Chimp," which claimed he possessed a Karate Chimpanzee Black Belt and an Honorary Black Belt in Tang Soo Do, and was certified in American Karate. When I met the site's owner, I learned that Charlie and Kiko were in cages in the back of the building. He said he had trained Charlie in karate, and had made a business decision to purchase Kiko when he needed a second chimpanzee for a film. Before we could act, Charlie died. That left the "Chimpanzee Four.”

Almost five hundred miles away, on the north shore of Long Island, about sixty miles northeast of New York City, Leo and Hercules, two young males, were being used in a long-term, multi - million-dollar biomedical locomotion research project by the Stony Brook University anatomy department. Or so we believed based on news reports and research proposals. But the scientists involved, the Stony Brook public relations department, and the president's office either denied that Leo and Hercules were at Stony Brook or refused to communicate with us altogether. We were eventually assured by a reliable source that both chimpanzees were indeed imprisoned at Stony Brook, and filed suit.

Other sources led us to a chimpanzee who was being held on land used for selling trailers and keeping a herd of reindeer in the hamlet of Gloversville, halfway between Niagara Falls and Long Island. I found Tommy there, alone, in a small cage amidst a bank of empty cages built into a small room tucked into a corner of a cavernous building.

Rattling the Cage was not just a work of history, science, or philosophy; it was a plan for legal action. Lawyers have to persuade judges that both the law and the facts favor them. The Nonhuman Rights Project's first legal hurdle was to establish that chimpanzees have the capacity for any legal rights at all. We could not successfully sue for the liberty of the Chimpanzee Four unless we persuaded judges that they were legal persons rather than things. We attacked that problem from two directions.

Our first task was to persuade the judges that chimpanzees are autonomous. Half of Rattling the Cage sets out the facts that scientists have been gathering about chimpanzee autonomy, selfdetermination, and other complex cognitive abilities ever since Jane Goodall (a director of the Nonhuman Rights Project from its founding) began studying them in Tanzania's Gombe Stream National Park in 1960.

This evidence was strong when Rattling the Cage appeared. By 2013 it had become compelling. Some of the world's most prominent and experienced primatologists stepped forward to assist us, including three whose work is described in Rattling the Cage: Sue Savage-Rumbaugh, a specialist in chimpanzee and bonobo language learning and now director emeritus at the Iowa Primate Learning Sanctuary; Tetsuro Matsuzawa of Kyoto University; and William McGrew of Cambridge University. In addition to these experts, we were also assisted by Christophe Boesch, director of the Department of Primatology at the Max Planck Institute for Evolutionary Anthropology in Leipzig, Germany; Mary Lee Jensvold, a specialist in the chimpanzee use of American Sign Language, a professor at Central Washington University, and the director of its Chimpanzee and Human Communication Institute; Mathias Osvath, a cognitive zoologist at Sweden's Lund University; James E. King, a specialist in the personality structure and psychological well-being of great apes and a professor emeritus at the University of Arizona; James Anderson, a specialist in nonhuman primate behavior at Scotland's University of Stirling; and Jennifer Fugate, a specialist in human and nonhuman social cognition and a lecturer at the University of Massachusetts Dartmouth.