Have you ever wondered what informs human rights? Steven Wise, founder of the Nonhuman Rights Project, has explored that question and many others through historical, philosophical, scientific, and legal lenses.
On last Thursday, April, 26th, Steven Wise, acclaimed animal lawyer and professor, brought insight, engagement and humor to the Pace Law School’s Dyson Lecture Series, delivering a riveting presentation on The Nonhuman Rights Project’s Struggle for Nonhuman Personhood. Founded in 1982 by alumni, Charles H. Dyson, the series aims to encourage and make possible the engagement of scholarly legal studies to both the students, faculty and staff of Pace Law School and the public at large. Wise’s presentation on nonhuman personhood and rights did just that.
Wise’s research on what affords humans as opposed to nonhuman animals “noncomparative” rights, such as liberty and dignity, is significant. He began his presentation by discounting the seemingly largest problem with affording nonhuman animals rights, namely their lack of standing. Instead, Wise demonstrated through a pyramid diagram how standing is actually the last and least of all obstructions. Rather, the core problem is the question of capacity, which opens (or closes) the gate in affording nonhuman animals rights. Capacity for rights would ultimately establish that any nonhuman animal is a legal person and thus is entitled to legal rights. Once capacity is achieved the next hurdle involves defining which rights in particular are attributable to nonhuman animals. The third tier questions private rights and last is the pyramid point, encompassing the notion of standing.
For Wise, the most difficult problem to solve involves the first level, capacity, and the ability to convince an appellate court that at least some nonhuman animals are entitled to the status of personhood. In order to overcome this hurdle, Wise and his team of sociologists and analysts meticulously assess the potential verdicts from appellate judges who may be hearing their case. Wise described the typical four categories of judges: precedent rules judges, who tend to look strictly at the rule and holdings of precedent cases; precedent principle judges, who identify justice as stability in the law, but tend to disregard the greater picture; substantive principle judges, who incorporate changes in technology, science, and society as a method of formulating what is right; and lastly, substantive policy judges, who base justice on what is good. Ideally, the substantive-type judges are those that tend to be more open to the ideas of nonhuman personhood and rights.
Once the judges are assessed and the task of convincing those judges that at least certain nonhuman species hold the capacity for rights, the next step is asserting which rights may be granted. Wise asked his audience to imagine a legal container symbolizing personhood. Slowly, a pitcher of rights is poured into that container. While there are many potential types of rights, it is the fundamental rights, which Wise finds as a sufficient condition for legal personhood. Fundamental interests are those that society greatly values, including bodily integrity and bodily liberty, specifically, dignity and autonomy.
Finding that it is predominantly autonomy and dignity, which ought to be adequate to attribute rights to any being, Wise offered a practical way to distinguish which nonhuman animals ought to hold the capacity for rights. The basis of this method is practical autonomy, which is threefold. An animal who is practically autonomous must first be cognitively complicated enough that it desires. Secondly, the animal must be able to act intentionally in achieving those desires. Lastly, the animal must have a sense of self that is complicated enough to recognize when those goals and desires are achieved. Wise emphasized that an important component entrenched within the capacity to desire is consciousness. For Wise, an animal must be conscious in order to have practical autonomy. What’s more, consciousness from nonhuman animals can be proven by characteristics and responses, which mirror human consciousness. A practical display of consciousness can often be demonstrated through the mirror test. As Wise described, this is when a red dot is marked on the animal’s face while she is unconscious. When the animal awakes, she is presented with a mirror. If the animal is self-aware, she will attempt to remove the red dot from herself by touching and rubbing it. However, an attempt to remove the dot from the animal in the mirror or a lack of attempt demonstrates a lack of self-awareness. Although the mirror test has proved beneficial, Wise admits it is not failsafe, since it cannot be applied to animals who would not react in the same way a human would with a red dot on his face.
Wise and his team created the scale of practical autonomy, which consists of four classes of animals, all dependent on the types of rights they ought to be given. Class one animals fall between the range .9 and 1.0, and directly below 1.0 where humans, who demonstrate full autonomy, fall. Class one animals should immediately be seen as legal persons based on comparative rights. In an equal and relevant way to humans, these animals demonstrate self-consciousness. These animals encompass what Wise calls, a theory of mind; they understand that they have a mind and that other entities have a mind. As a result, the four species of great apes as well as bottlenose dolphins among others are the types of nonhuman animals that should be categorized as Class one nonhuman animals and thus be granted the fundamental rights of bodily liberty and integrity.
Class two species fall between .51 and .89 on the practical autonomy scale. These animals have fundamental rights, but it is unclear as to their sense of self. This is precisely where the mirror test fails. Marking an African Grey Parrot with a red dot and then presenting her with a mirror, would most likely fail the mirror test simply because African Greys do not demonstrate recognition of a mark in the same way as great apes and humans do, namely by touching it on themselves. Class three and four animals fall below .50 and are those animals who, demonstrate little to no self consciousness. In fact, Wise mentioned that when his son was born he was a 0 on the practical autonomy scale, but after six years of growth, he now falls at 1.0, where all autonomous humans do. As a result, Wise’s scale of practical autonomy raises several questions as to the ability to grow into autonomy and thus gain greater rights. As one ages and becomes more autonomous a creature, he must then gain greater rights. And so, there are some humans who must be lower on the scale of practical autonomy, those who are not conscious and self-aware. Furthermore, Wise’s method of determining rights based on consciousness and autonomy implies that an animal, human or not, is born without rights since they are neither self-aware nor autonomous at birth. Wise answers these and other inquires pertaining to nonhuman rights and personhood in his books, including: Rattling the Cage: Toward Legal Rights for Animals and Drawing the Line: Science and the Case for Animal Rights.
Wise’s novel ideas and witty presentation combined with his welcoming demeanor gave rise to a many questions from students and faculty alike. Among the questions posed, was the role of empathy in affording rights to certain creatures; also, the role of sentience. Acknowledging the validity and applicability of empathy and sentience, Wise still finds from his research that a basis of autonomy works best when making legal arguments. Others criticized that Wise’s arguments seemed a bit circular. And yet, more skeptics feared that the slippery slope effect from attributing rights to nonhuman species and its resulting adverse effects on economy and lifestyle, such as the banning of meat-eating and animal testing, rendered Wise’s endeavor ultimately impractical. Nevertheless, the overall consensus was that Wise brought a great amount of knowledge and specialty pertaining to the potential of rights for nonhuman animals, and what’s more he brought a practical path for not only hope, but also necessary change for our future.