The first act in favor of animals
In 1679 King Charles II of England issued thehabeas Corpus Act which, after six centuries, gave the force of law to article 15 of the Magna Charter Libertarum. THE'habeas corpus enshrined this legal principle:
no free man shall be arrested, imprisoned, deprived of his possessions, proscribed, exiled, or otherwise punished, nor shall we use force against him, nor command others to do such acts, except by virtue of a lawful judgment of the his peers or in application of the law of the country.
The question we shall discuss early in this century will be that of extending the principle ofhabeas corpus to the animals. Something significant is already happening in the relationship between animals and the law. With the help of a report made by the staff of "The Economist" we want to realize this. It is something that is still in its infancy, but one thing is certain: soon there will be a new legal status of animals which could be the first stone for the construction of a civil code, and subsequently also a penal one, for animals.
Martin's Act (1822), the first legislative provision that protects a group of animals connected to human activity, is now two centuries old. It was encouraged by two well-known English abolitionists and philanthropists of the time, Sir Thomas Buxton and William Wilberforce, promoted by the Irish MP Richard Martin and approved by the English Parliament on 22 July 1822 with the name "Act to Prevent the Cruel and Improper Treatment of Cattle". better known as Martin's Act after the promoter's surname. The animals that the deed was going to protect were: horse, mare, gelding, mule, donkey, ox, cow, heifer, steer and sheep. It read: “Any person who wantonly and cruelly beat, abused, or ill-treated any of these animals, if found guilty by the justice of the peace or by the magistrate having territorial jurisdiction, would be subjected to a fine not exceeding £5 and not less than 10 shillings or, in case of unavailability of the sum due, with imprisonment of up to 3 months.
Elephants and chimpanzees
One of the founding juridical principles to be able to obtain the legal status of "person" is that the subject has self-awareness, that is, he is able to recognize himself in order to be able to give himself a formal identity. For most animals and even human infants, it is a nearly impossible test to pass. Instead, an elephant of Thai origin named Happy, held in captivity in the United States, succeeded.
Happy passed the mirror self-recognition test, which is considered an indicator of self-awareness. The scientists painted a large white cross over the elephant's left eye and placed it in front of a mirror. Facing you, Happy has repeatedly touched her proboscis mark above her eye to show that she recognizes herself in the form reflected in the mirror. You immediately became something of a scientific celebrity and now you are also becoming one from a legal point of view. On December 14, 2018, a New York state court heard a motion to grant Happy the status of habeas corpus. Steven Wise, Happy's attorney, argued that, as an intelligent and self-aware being, Happy is entitled to the full protection of the law. L'habeas corpus, an ancient precept of the common law, protects, as we have seen, from any arbitrary act of limitation of liberty.
So far, in America and Europe, all instances of habeas bodys for animals have been rejected in the courts.
THEhabeas corpus according to Peter Singer
The Australian philosopher, now a professor at Princeton, Peter Singer also spoke on the subject, unanimously recognized as the theorist of animal rights since his first and most famous book, Animal Liberation. Singer intervened on a philosophical level by asking, first of all, what a person is. Let us briefly follow his reasoning:
“What is a person? We can go back to Roman law and show that the term was not limited to human beings. Early Christian theologians debated the doctrine of the Trinity — that God is "three persons in one." If "person" means "human being," that doctrine would clearly be contrary to Christian belief, since Christians claim that only one of those "persons" has ever been a human being.
In more contemporary use, in science fiction films, we have no difficulty in understanding that aliens such as the extraterrestrials in ET or the Na'vi in Avatar are people, even if they do not belong to the Homo Sapiens species”.
This and other brief interventions by Peter Singer are collected in the volume Animal issue and veganism (goWare, 2019).
Reading the work of scientists like Jane Goodall or Dian Fossey, we have no difficulty recognizing that great apes are people. They have close and complex personal relationships with other members of their group. They grieve the loss of loved ones. They are self-aware beings, capable of thinking. Their foresight and vision makes it possible to plan their actions in advance. We can even recognize the rudiments of ethics in the way they respond to other monkeys who don't know how to return a favor.
Contrary to the caricatures made by opponents of this lawsuit, declaring a chimpanzee a person does not mean giving him or her the right to vote, attend school, or sue for defamation. It simply means granting him or her a fundamental right to have a legal position, rather than being regarded as a mere object.
Unfortunately, the New York court in June of 2017 in a clear vote, 5 to 0, denied the motion to transfer the chimpaze Tommy to a Florida sanctuary because chimpanzees are not legal entities and, in some way, recognized his incompetence to decide on this subject, because - according to the judges - it is up to the legislators to define what the rights of animals are. This line was also held on appeal, when the court did not accept the animal rights appeal, recognizing "the inadequacy of the law as a vehicle for addressing the difficult ethical dilemmas inherent in the matter".
One of the judges, however, stated that he believed the main argument used to deny the status of was wrong habeas corpus to the primate. The main argument for denying it is precisely that chimpanzees do not have the ability to carry out acts with legal value and therefore to be considered owners of their shares. As the dissenting judge pointed out:
“The same principle is true for comatose human children and comatose human adults, but no one would suppose that it would be improper to seek a writ of habeas corpus on behalf of your comatose child or loved one.”
Although Tommy did not benefit from this ruling, animal rights activists have seen it as a big step forward for their cause.
The case of Tommy and the elephant Happy will probably continue for a long time, but once the case is solved in favor of thehabeas corpuswould radically change the way some animals, especially great apes, are now legally configured and treated.
Many steps forward
In recent decades, the science of animal cognition has changed the way people look at other species that populate the planet. Researchers have found that many animals have emotions, are intelligent, and have cognitive behaviors once considered unique to humans. But the law has been slowly changing, and in some ways, barely touched by these scientific discoveries. Most legal systems treat matters of law in terms of people or property. There is no third category. Legal entities possess legal protections. The property doesn't. Since pets are economic assets, the law has always treated animals as property.
Lawyers and animal rights advocates say it is time to change that argument against them, arguing it is justified by science and the growing public consensus on animal welfare. Opponents respond that giving rights to animals would not only be an unprecedented step but, by erasing the distinctions between them and people, it would undermine the entire legal basis of the law that regulates social life on Earth.
For years, animal rights activists have sponsored animal welfare laws. In November 2018, California voters approved a popular initiative (a referendum) calling for larger minimum spaces for battery-raised animals. Over the past decade, after the European Union, India, Colombia, Taiwan, seven Brazilian states and California all banned cosmetic testing on animals. New York and Illinois have banned elephants in the circus, while Florida voters have banned greyhound racing.
Recently, animal rights activists have been trying to roll out existing animal welfare laws into new regions. In Iowa, the Animal Legal Defense Fund is suing a private zoo for breaking the law that protects endangered species and wild animals. He won, and the United States Department of Agriculture revoked the zoo's license. The same organization, seeing that Oregon law allows victims of violence to file a lawsuit for compensation, has filed a lawsuit for damages caused to an eight-year-old racehorse that was found frozen and malnourished and whose owner he had already been convicted of negligence. The compensation suit was dismissed, but is now under appeal.
At least eight nations, including the EU (in one of its key documents, the Lisbon Treaty) and New Zealand have written into their legal body that animals are sentient beings. These "sentient laws" have had very little impact, however. No cases have been brought before a court in New Zealand, whose parliament amended the animal welfare law in 2017 to state that animals are sentient. But there have been three US states that have passed animal custody laws that give the principle of sentience a practical meaning. These laws say that if a couple divorces and there is no agreement on the terms of the separation, the interest and feelings of any animal in the family must be taken into consideration in defining the subject of the agreement. With this legal principle, animals are treated more like children than furnishings.
For some animal advocates, improving existing welfare laws, or writing new ones, isn't enough. They say such laws do not protect animals from captivity and exploitation and that some highly intelligent species, such as great apes and elephants, should not be treated as property but as beings with rights.
Animals in court
There is a notable story where animals have appeared in a court of law as defendants. In Clermont Ferrand, France, a pig was tried and convicted of killing and eating the daughter of Jehan and Gillon Lenfant on Easter Day 1494. He was sentenced to capital punishment and put to death by strangulation. In Autun, in the early XNUMXth century, Bartolomeo Chassenée defended rats against charges of destroying the barley crop. He was able to convince the ecclesiastical judges that the mice could legally ignore the summons because it would be dangerous for them to make the journey to go to court. What has changed today compared to the past is that animals are the plaintiffs rather than the defendants, and the lawyers rather than being the defenders are the prosecutors who seek recognition of the status of person for these non-human beings.
This request is not as far-fetched as it might seem. A juridical person may not even be human. Commercial companies have long been legal entities, able to act in court in their own right. In 2017, New Zealand gave the Whanganui River legal status to strengthen the power of the Maoris to protect it. In the same year, the High Court of the Indian state of Uttarakhand gave legal personality to the rivers Ganges and Yamuna which flow through its territory, although this ruling was later overturned by the Supreme Court of India.
Activists have also sought to give legal protection to animals through ordinary laws, not just animal welfare laws. Activists from the Ethical Treatment of Animals (PETA), a very active group, are suing a photographer, David Slater. While he was doing a photo shoot on macaques he gave his camera to one of them who managed to take a selfie of which Slater started selling the reproduction rights. PETA is taking the photographer to court on charges of infringing on the intellectual property of the macaque portrayed in the photo. The lawsuit was rejected by the junta for incompetence. He said: “We are not the people to turn to. This is a problem for Congress and for the president."
The selfie taken by the Indonesian macaque of Tangkoko National Park by the Canon 5D mounted on the tripod by wildlife photographer David Slater. PETA claimed copyright to the primate shot that Slater was using heavily.
Other cases have gone further. In 2013, India's environment minister said cetaceans (an order of aquatic mammals that includes dolphins and whales) were "non-human people" with "their own specific rights," requiring state governors to reject any such requests. to use these animals for entertainment purposes.
The following year, the Supreme Court of India ruled that the Constitution recognizes the right to life for all animals, although they may still be considered property. The case at issue involved the use of a practice called jallikattu, whereby men could tame young bulls through mutilation. Instead, the Supreme Court ruled that “every species has the right to life and security [and] – that life – means something more than mere survival … or mere instrumental value for human beings”. However, the court affirmed the principle that it is up to the parliament to enact laws that safeguard these rights. However, the ruling did not change the animals' status as property.
The boldest legal challenge is to seek habeas corpus rights for animals. In Brazil, in 2005, animal rights organizations filed for habeas corpus protection for Suiça, a chimpanzee kept in a zoo. Unfortunately, the animal was found dead in its cage before sentencing, thus relieving the judges of a difficult decision. In 2007, Austrian activists applied for legal custody of Hiasl, a chimpanzee released from a pharmaceutical laboratory. The case ended with the European Court of Human Rights rejecting the request.
In any case, there have also been favorable decisions for the status of habeas corpus. In 2015 a New York court recognized it for two chimpanzees, Hercules and Leone. The following day, however, the judge changed the reasoning of the sentence by deleting any reference to habeas corpus. Another New York court rejected similar requests for Tommy and Kiko, two other chimpanzees.
A happy ending story?
In recent years, however, animal rights lawyers have started to win cases. In 2014 an Argentine court ruled that Sandra, an orangutan in the Buenos Aires Zoo, was a non-human person. But since that court was hearing an animal cruelty case, that was an animal welfare decision, not habeas corpus. The biggest victory came in 2016, when a judge in Mendoza, Argentina, ruled that Cecilia, a chimpanzee, was a non-human person who had been arbitrarily deprived of her liberty by being held in the city's zoo. The court ordered the animal taken to a sanctuary in Brazil, where she remains to this day. It was the first ruling of its kind. In 2017, another very important sentence arrived. The Supreme Court of Colombia has ruled that Chucho, a spectacled bear, is a non-human person and ordered him to be taken to the Barranquilla nature reserve.
But so far, except in South America, the rejection of legal animal rights has been the order of the day. The issue is that it is not clear which species should be protected by law and which rights should be recognised. For example, giving rights to great apes could hamper medical research; giving some animals limited rights could open the door to giving farm animals the right not to be slaughtered. Furthermore, if consciousness and cognition give rise to legal rights, then these should also apply to artificially intelligent machines.
As a result, "the law is a mosaic," said Kristen Stilt, who teaches animal law at Harvard Law School. Animals still lack rights, but the clear line separating them from people has been blurred by sentient laws and rulings in India, Argentina and Colombia. As the judge said in Tommy's case, "Eventually the question central to the law will have to be addressed: is an animal a person or property, i.e. a thing?" Meanwhile, Happy awaits the court ruling in solitary confinement, an unnatural state for an elephant. She is, in the end, still someone's property, that is, a thing.
