Rattling the cage:
Towards legal rights for animals
Reviewed by Roger Banks
By Roger Banks
Steven M. Wise's Rattling the cage: Towards legal rights for animals has arrived in stores at a time when the idea of animal rights is slithering its way almost imperceptibly from various fringe groups into a respectable faction. Contributing to the momentum of support is wide-spread confusion about what it would mean for animals to have legal rights. In particular, many who support the movement do not distinguish between the notion of "animal rights," on the one hand, and laws enacted to prevent abuse and cruelty on the other. Some who recognize this distinction have interposed only impassive resistance: having grasped the deep flaws in the case for animal rights, they find it hard to take seriously.
Among the latter class is columnist Jeffrey Hart, whose generally critical review of Rattling the Cage is nonetheless interspersed with comments that sound almost like endorsements. The reviewer wrote, for example, that "Mr. Wise's recommendation of 'legal personhood' for animals is intellectually interesting and worth the extended discussion he provides"; and that the subject is "well worth exploring in an academic setting."
Such comments may leave the impression that the book is little more than the academic musings of a dreamy professor, safely removed from application in the world. In fact, the author is a veteran practitioner, actively working to change the law; and, as the forward explains, his book is intended as a lawyer's manifesto to make legal rights for animals "actually happen." Notably, Mr. Wise teaches the subject at Harvard Law School, which is much less of "an academic setting" than a vocational training ground for future lawyers, judges and politicians of influence.
Rattling the Cage is, naturally, required reading in Mr. Wise's class. Like a growing number of such courses offered at law schools around the country, it is designed to unleash a new breed of lawyers, trained to advance the animal agenda with the same zeal and technical skill used on behalf of human clients. It is only a matter of time, the proponents hope, before their dogma will be adopted by courts and legislatures, and thus radically transform society. In short, however farcical it may seem to the rational mind, the animal rights movement ought to be taken seriously.
So, what is wrong with legal rights for animals? The difficulty goes beyond the prospect of ambulance-chasing lawyers giving up their respected trade in favor of pursuing the dog catcher, sad as that may be. To understand the larger problems it is helpful to begin with an understanding of what animal rights are not. In particular, they are not the result of legislation enacted to prevent cruelty to animals. The latter are the proper restraints that a humane, democratic society agrees to place on itself. But those who advocate "rights" for animals seek to bypass the legislative process -- and the rule of the majority -- to have judges endow animals with constitutionally enforceable rights.
To establish animal rights, Mr. Wise explains, courts would have to adopt a "legal fiction" that the animal is "autonomous" and, therefore, a "person" in the eyes of the law. In practice, this means courts would be charged with resolving animal conflicts by determining what the animal would wish if it were capable of speaking for itself. Mr. Wise further explains that the legal rights being sought for animals would be enforceable "against every person in the whole world." [p. 56].
A dilemma. If an animal's rights arise from a judicial determination that the animal itself is a legal person, and such rights are enforceable against all persons, then it follows that the animal's rights could be asserted against another animal (i.e. person). The conclusion is inescapable. To argue otherwise would be to negate the very premise of "personhood" on which the animal's rights were to be founded.
The goals of animal rights activists lead to the same conclusion. They are ostensibly motivated by the desire to protect animals from harm. It should not matter, therefore, whether the harm comes from human beings or from another animal. If the offending animal, like the animal victim, is also a legal "person," no action can be taken against it without due process of law. Again, the conclusion is unavoidable. It is also catastrophic.
Following a judicial determination in say, Chimp v. Zoo, that chimpanzees are persons under the law, a fledgling animal rights lawyer could soon stand before the court in another action on behalf of a plaintiff animal -- the case of Chimp v. Chimp -- in which the defendant is also an animal. Having already declared in Chimp v. Zoo that chimps are persons, the court would be hard-pressed to deny the right to sue. Of course, the defendant chimp, as a legal person, would also have the right to "hire" counsel.
The precedent of Chimp v. Chimp, could only spawn increasingly exotic cases. As any viewer of the televised National Geographic can attest, animals perpetrate horrific, daily abuses against one another. The harpy eagle, for example, spends its days terrorizing monkeys and sloths, which comprise the bird's principal diet. Rattling the Cage presents ravens and parrots as prime candidates for the status of legal "persons"; surely Mr. Wise would not wish to discriminate against eagles by denying their due process rights. Hence, the case of Monkey v. Harpy is not at all beyond the realm of possibility.
A judge inclined to buy into Mr. Wise's argument, perhaps thinking to allow such cases as Rat v. Cosmetic Company, or Chicken v. Rendering Farm, may end up with more than he bargained for -- cases like Gazelles v. Lion (class action seeking permanent injunction); Mouse v. Spotted Owl (survivor sues for wrongful death); Canary v. Neighbor's Cat (intentional infliction of emotional distress). Indeed, Mr. Wise's brave new world would give new meaning to the term "kangaroo court."
If a menagerie of litigants stampeding through our courtrooms seems far-fetched, that is only a reflection of the irrational basis of the claim that animals should have rights in the first place. In fact, Rattling the Cage contains numerous logical and legal fallacies, and at times devolves into an emotional diatribe against some of the most important thinkers in Western history, when their views on animals do not square with author's (as they universally do not).
Mr. Wise bases his rights theory on an attempted analogy between animals and legally incompetent humans, such as the severely retarded, and people in vegetative states. He argues that the same legal fiction of "autonomy" applied to incompetents should be applied to animals. The basis for this assertion is that chimpanzees and other animals apparently have cognitive skills equal to or greater than those of some incompetent humans.
The reasoning is dubious at best. As the author acknowledges, the legal rights of human beings, incompetent or otherwise, do not depend on their cognitive abilities. [p. 244]. To argue that animals should have rights based on a demonstration of cognitive skills is thus a classic non sequitur. There is also an element of circular reasoning in the purported analogy between animals and humans. The premise implied in the analogy is that a comparison of human cognitive skills with those of animals is relevant to legal rights to begin with. But the relevance of such comparisons is precisely the conclusion Mr. Wise must prove, and the book does not come close to doing so.
Instead, Mr. Wise ridicules as "imbecilic" the belief that human beings are superior to other animals and charged with dominion over them. Yet he fails to recognize that "dominion" is not synonymous with abuse or cruelty. Nor does he acknowledge that human dominion is ultimately the best hope for the proper treatment of animals. Indeed, even Mr. Wise's regime of animal "rights" would be possible only through an exercise of human jurisdiction --i.e., dominion -- over animals. Animals would be better served if those who claim to care about them, instead of fostering a discordant rebellion against human supremacy, worked within the order of things to promote a humane exercise of our responsibility towards other creatures.
© 2000 Roger Bryant Banks. All Rights Reserved.
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