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Rattling The Cage
Toward Legal Rights For Animals
Foreword by Jane Goodall
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RATTLING the CAGE
RATTLING the CAGE
Toward Legal Rights for Animals
STEVEN M. WISE
FOREWORD BY JANE GOODALL
Many of the designations used by manufacturers and sellers to distinguish their products are claimed as trademarks. Where those designations appear in this book and Basic Books was aware of a trademark claim, the designations have been printed in initial capital letters.
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ISBN-13: 978-0-7382-0437-6; ISBN-10: 0-7382-0437-4
eBOOK ISBN: 9780786731466
Copyright © 2000 by Steven M. Wise
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a person, not a thing
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.
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.
The Problem with Being a Thing
It is difficult, to handle simply as property, a creature possessing human passions and human feelings . . . while on the other hand, the absolute necessity of dealing with property as a thing, greatly embarrasses a man in any attempt to treat it as a person.
—Frederick Law Olmsted, traveling in the American South before the Civil War1
Jerom died on February 13, 1996, ten days shy of his fourteenth birthday. The teenager was dull, bloated, depressed, sapped, anemic, and plagued by diarrhea. He had not played in fresh air for eleven years. As a thirty-month-old infant, he had been intentionally infected with HIV virus SF2. At the age of four, he had been infected with another HIV strain, LAV-1. A month short of five, he was infected with yet a third strain, NDK. Throughout the IranContra hearings, almost to the brink of the Gulf War, he sat in the small, windowless, cinder-block Infectious Disease Building. Then he was moved a short distance to a large, windowless, gray concrete box, one of eleven bleak steel-and-concrete cells 9 feet by 11 feet by 8.5 feet. Throughout the war and into Bill Clinton’s campaign for a second term as president, he languished in his cell. This was the Chimpanzee Infectious Disease Building. It stood in the Yerkes Regional Primate Research Center near grassy tree-lined Emory University, minutes from the bustle of downtown Atlanta, Georgia.
Entrance to the chimpanzee cell room was through a tiny, cramped, and dirty anteroom bursting with supplies from ceiling to floor. Inside, five cells lined the left wall of the cell room, six lined the right. The front and ceiling of each cell were a checkerboard of steel bars, criss-crossed in three-inch squares. The rear wall was the same gray concrete. A sliding door was set into the eight-inch-thick concrete side walls. Each door was punctured by a one-half-inch hole, through which a chimpanzee could catch glimpses of his neighbors. Each cell was flushed by a red rubber fire hose twice a day and was regularly scrubbed with deck brushes and disinfected with chemicals. Incandescent bulbs hanging from the dropped ceiling provided the only light. Sometimes the cold overstrained the box’s inadequate heating units, and the temperature would sink below 50˚F.
Although Jerom lived alone in his cell for the last four months of his life, others were nearby. Twelve other chimpanzees—Buster, Manuel, Arctica, Betsie, Joye, Sara, Nathan, Marc, Jonah, Roberta, Hallie, and Tika—filled the bleak cells, living in twos and threes, each with access to two of the cells. But none of them had any regular sense of changes in weather or the turn of the seasons. None of them knew whether it was day or night. Each slowly rotted in that humid and sunless gray concrete box. Nearly all had been intentionally infected with HIV. Just five months before Jerom died of AIDS born of an amalgam of two of the three HIV strains injected into his blood, Nathan was injected with 40 ml of Jerom’s HIV-infested blood.2 Nathan’s level of CD4 cells, the white blood cells that HIV destroys, has plummeted. He will probably sicken and die.
SALES TAX FOR LOULIS
The biologist Vincent Sarich has pointed out that from the standpoint of immunology, humans and chimpanzees are as similar as “two subspecies of gophers living on opposite sides of the Colorado River.”3 Rachel Weiss, a young Yerkes “care-tech” who watched Nathan being injected with Jerom’s dirty blood and saw Jerom himself waste away and die, wrote about what she had seen. During the time she cared for the chimpanzees of the Yerkes Chimpanzee Infectious Disease Building, Rachel learned firsthand that chimpanzees possess “passions” and “feelings” that, if not human, are certainly humanlike. It made them no less “difficult to handle simply as property.” She stopped thinking of them as “property” and resigned from Yerkes shortly after Jerom’s death.
Seventeen years before Jerom’s death, the primatologist Roger Fouts encountered Loulis staring at him through the bars of another Yerkes cage. Loulis’s mother was huddled in a corner. Four metal bolts jutted from her head. Fouts doubted that the brain research she had endured allowed her even to know that Loulis was her son. He plucked up the ten-month-old, signed the necessary loan papers, then drove Loulis halfway across the United States to his adopted mother.
Washoe was a signing chimpanzee who lived on an island in a pond at the Institute for Primate Studies in Norman, Oklahoma. Loulis did not want to sleep in Washoe’s arms that first night and curled up instead on a metal bench. At four o’clock in the morning, Washoe suddenly awakened and loudly signed “Come, baby.” The sound jerked Loulis awake, and he jumped into Washoe’s arms.4 Within eight days, he had learned his first sign. Eight weeks later, he was signing to humans and to the other chimpanzees in Washoe’s family. In five months, Loulis, by now an accepted family member, was using combinations of signs. At the end of five years, he was regularly using fifty-one signs; he had initiated thousands of chimpanzee conversations and had participated in thousands more. He had learned everything he knew from the other chimpanzees, for no human ever signed to him.
As years passed, Fouts realized that Yerkes could call in its loan and put Loulis to the knife, as his mother had been. When Loulis was seventeen years old, Fouts sought to buy him outright. Yerkes agreed to sell for $10,000, which Fouts didn’t have. After strenuous efforts, he raised that amount. But at the last second, a hitch developed. Ten thousand dollars was Loulis’s purchase price. As if Yerkes were selling Fouts a desk or chair, Fouts was charged another 7.5 percent in Georgia sales tax.5
The scientists who injected Jerom and Nathan kept the baker’s dozen chimps imprisoned in a dungeon, and invaded the brain of Loulis’s mother and the administrators who collected sales tax for Loulis believed that chimpanzees are things. But they didn’t know why. Rachel Weiss and Roger Fouts show that we can come to believe— as they do—that chimpanzees are persons and not just things.
DEMOLISHING A WALL
For four thousand years, a thick and impenetrable legal wall has separated all human from all nonhuman animals. On one side, even the most trivial interests of a single species—ours—are jealously guarded. We have assigned ourselves, alone among the million animal species, the status of “legal persons.” On the other side of that wall lies the legal refuse of an entire kingdom, not just chimpanzees and bonobos but also gorillas, orangutans, and monkeys, dogs, elephants, and dolphins. They are “legal things.” Their most basic and fundamental interests—their pains, their lives, their freedoms—are intentionally ignored, often maliciously trampled, and routinely abused. Ancient philosophers claimed that all nonhuman animals had been designed and placed on this earth just for human beings. Ancient jurists declared that law had been created just for human beings. Although philosophy and science have long since recanted, the law has not.
This book demands legal personhood for chimpanzees and bonobos. Legal personhood establishes one’s legal right to be “recognized as a potential bearer of legal rights.”6 That is why the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the American Convention on Human Rights nearly identically state that “[e]veryone has the right to recognition everywhere as a person before the law.”7 Intended to prevent a recurrence of one of the worst excesses of Nazi law, this guarantee is “often deemed to be rather trivial and self-evident”8 because no state today denies legal personhood to human beings. But its importance cannot be overemphasized. Without legal personhood, one is invisible to civil law. One has no civil rights. One might as well be dead.
Throngs of Romans scoot past the gaping Coliseum every day without giving it a glance. Athenians rarely squint up at their Parthenon perched high on its Acropolis. In the same way, when we encounter this legal wall, it is so tall, its stones are so thick, and it has been standing for so long that we do not see it. Even after litigating for many years on behalf of nonhuman animals, I did not see it. I saved a handful from death or misery, but for most, there was nothing I could do. I was powerless to represent them directly. They were things, not persons, ignored by judges. But I was butting into something. Finally I saw that wall.
In Chapters 2 through 4, we will see how it was built by the Babylonians four thousand years ago, then strengthened by the Israelites, Greeks, and Romans, and buttressed again by early Christians and medieval Europeans. As one might expect, its mortar is now cracked and stones are missing. It may appear firm and sturdy, but its intellectual foundations are so unprincipled and arbitrary, so unfair and unjust, that it is crumbling. It has some years left, but it is so weak that one good book could topple it. This is meant to be that book.
In Chapters 5, 6, and 7, I hope to convince you that equality and liberty, the two most powerful legal principles and values of which Western law can boast, demand the destruction of that wall. But there are about 1 million species of animals. Many of them, say, beetles and ants, should never have these rights. So the wall must be rebuilt. But how? In Chapter 8, I will show you that the hallmark of the common law, which is the judge-made law of English-speaking peoples, is flexibility. It abhors thick high legal walls, except when they bulwark such fundamental interests as bodily integrity and bodily liberty, and prefers sturdy dividers that can be dismantled and re-erected as new discoveries, morality, and public policy dictate.
WHY CHIMPANZEES AND BONOBOS?
Chimpanzees and bonobos (sometimes referred to as “pygmy chimpanzees”) are kidnapped for use as biomedical research subjects or as pets or in entertainment. They are massacred for their meat to feed “the growing fad for ‘bush meat’ on the tables of the elite in Cameroon, Gabon, the Congo, the Central African Republic, and other countries,” so that their hands, feet, and skulls can be displayed as trophies, and for their babies.9 Thousands are jailed around the world in biomedical research institutions like Yerkes or are imprisoned in decrepit roadside zoos or chained alone and lonely in private dwellings. When the last century turned, there were 5 million wild chimpanzees in Africa.10 We don’t know the number of bonobos because they weren’t then considered a species separate from chimpanzees. But it was probably about half a million. By 1998, only 200,000 chimpanzees remained, perhaps as few as 120,000, and maybe 20,000 bonobos.11 One of the world’s most prominent bonobo experts, Takayoshi Kano, believes that less than 10,000 bonobos may have survived.12 Thousands of chimpanzees and bonobos are slaughtered every year. They are nearing annihilation.13
In Chapters 9 and 10, you will get a close look at the kinds of creatures these apes are and how similar their genes and brain structures are to ours. You will learn about the scientific revolt that has broken out as an increasing number of scientists demand they be tucked into the genus Homo
- On Sale
- Jan 11, 2001
- Page Count
- 384 pages
- Da Capo Press