October 1, 2002
A Courtroom Champion for 4-Legged Creatures
By CLAUDIA DREIFUS
CAMBRIDGE, Mass. - Among the high-flying lawyers who roam the halls of Harvard Law School, Steven M. Wise, 51, is an oddity. Instead of devoting himself to the fine points of torts or contracts, he teaches the school's first ever course in animal rights law.
Moreover, Mr. Wise, who runs a small law firm that litigates for the interests of animals, has written two well-reviewed books on the subject, "Rattling the Cage: Toward Legal Rights for Animals" and the recently released "Drawing the Line: Science and the Case for Animal Rights."
Mr. Wise spends much of his time trying to develop legal theories to advance his cause. "Almost all my work is directed toward breaching the legal wall that separates humans from nonhumans," he said over coffee at the Charles Hotel. "I'm interested in getting the first nonhuman animals their rights because I think once that happens the paradigm will shift. I'm very practical about this. It's going to take a while."
Q. How did this issue, legal rights for animals, begin for you?
A. I had been practicing law in the late 1970's, doing criminal defense and personal injury work, and I read Peter Singer's book "Animal Liberation." I thought, "Gee, I hadn't realized that animals were mistreated in all these ways." That was the beginning. I immediately began spending whatever legal talent and time I had working in the interests of nonhuman animals.
Q. To commit your professional life to animal legal rights must have been difficult. Did some of your colleagues think you'd gone mad?
A. Oh, yeah. In the early 1980's, I'd walk into a courtroom and people would just laugh at me. I'm talking about judges, clerks, other lawyers. I had a partner at the time who always spoke about how embarrassing it was to be my law partner. It took years for people to accept that I had serious arguments to put forward.
Q. Would you give us the outlines of arguments you've pioneered?
A. I've been trying to apply those traditional sources of our most basic rights - liberty and equality - to nonhuman animals. I've argued that some of them are entitled to basic legal rights for the same reasons humansare.
The first, the liberty argument, is that some nonhuman animals - great
apes, African gray parrots - have a kind of autonomy that judges should easily recognize as sufficient for legal rights.
The second is an equality argument. It goes: Because some individuals have rights, others who are like them must be allowed rights too. A human infant who is born without a brain has all kinds of liberties, even though she isn't autonomous. You can't kill her, enslave her or perform experiments
on her. If you can give her rights, the principle of equality requires us to give them to a bonobo who has high levels of cognition, a great deal of mental complexity and who probably has a
Q. How much of your argument is based on new scientific research about animals' mental abilities?
A. A great deal of it is. I rely upon the work of people like Dr. Irene Pepperberg, who has been observing Alex, an African gray parrot, for 25 years, and who has found that he can grasp abstractions, understand
symbols, is probably self-aware, imitates and uses a sophisticated
protolanguage. The work of language researchers like Sue Savage-Rumbaugh, Lyn Miles and Penny
Patterson has been crucial because they are showing that great apes are clearly self-aware and can use complex communications systems that begin to approach human language. Field researchers like elephant observer Cynthia Moss, orangutan observer Anne Russon and chimpanzee observer Richard
Wrangham have taught us all a huge amount about what animals are capable of.
Q. If I hear you correctly, you argue that some animals should be granted rights because they are smart and conscious: they have what you call practical autonomy. But aren't you limiting your case with that argument?
A. Well, I want to win where it might be possible to win - create some legal basis for animal rights.
As to your question, you are correct: the number of animals we know enough about to make a determination as to whether or not they have practical autonomy is relatively small. What really opened my eyes to this odd fact is dogs. When I was looking at the literature to see if dogs were entitled to rights as a result of practical autonomy, I found that there were virtually no cognitive studies of dogs before the 1990's.
Even now, there are only a dozen or so scientists working on that. This surprised me in light of the tens of millions of companion animals existing in the United States alone.
Q. In addition to your writing, you sometimes represent animals in court. Is that difficult?
A. It is. Because you are litigating in a system that sees animals as things, and you have to figure out how you can protect their interests as best you can in a system that does that.
In the late 1980's, I sued to try to stop the U.S. Patent Office from patenting genetically engineered and other nonhuman animals. I lost that case on the grounds of "standing," which is something that animal rights lawyers frequently lose on. In most cases, it's the animal being hurt and not the human, so the judge says, "I'm throwing this case out on thegrounds of standing because there is no plaintiff before me who's been injured."
The cases I can win are those when a person comes in and says, "The vet killed my cat," or "The condominium is going to throw me out because of my animal."
Q. What were some of your wins?
A. Well, to be honest, the cases I really think more about are those I've lost. But I win most often in cases where dogs have been sentenced todeath because they are said to have a vicious disposition. I treat it as I would a capital case. I'll hire experts to do a psychological evaluation of the dog and the family. Often I'll ask, "Tell me from the dog's point of view what was going on."
For example, children are sometimes bitten in the face by dogs. It turns out that children are at a dog's teeth level and dogs tend to warn away other dogs by nipping them on the muzzle. When they do that to a child who's been bothering them, they're warning them away.
Q. What about dogs who've been made vicious by their owners? Would you represent them? For instance, would you represent those two Presa Canarios who killed the woman in San Francisco?
A. That would be the hardest thing. There's hardly ever a bad dog. Often, there are bad owners.
Q. How will the rights of animals change as our definition of what is an animal changes because of gene manipulations, hybridizations and xenografting?
A. That's a big question. At the moment, only humans bear rights, but soon we'll be wondering, What is a human? I've often speculated on what we would do legally if we suddenly found a holdout band of Neanderthals who'd survived in some hidden part of Andalusia. Would we consider them Homo sapiens and thus rights-bearers or would we define them as animals and, therefore, things? Would we do tothem what we do to chimpanzees - eat them, perform tests on them, put them in zoos?
Q. Tell us, how do you live your beliefs in your everyday life?
A. I try to respect nonhuman animals. I don't eat them. I don't wear them. I try to avoid being involved in the abuse of them. But you do grow up with certain things. Sometimes, I'll be walking on a street and I'll smell roast beef, I'll simultaneously feel attraction and repulsion.
Q. After two successful books, are there still people in the legal world who still consider you a nut case?
A. Yes, but the good news is that there are a diminishing number of them. There's a foundation for these ideas being laid with law courses, symposia and books. There's now a debate in the legal community. It takes time for ideas to filter through to the point where you might have a state supreme
court somewhere rule in favor of animal rights. But it will happen.