Air Date: Week of March 3, 2000

The debate over animal law is moving from the streets to the nation’s courts and law schools. The law currently protects animals from cruelty and abuse, but otherwise treats them as property. But some scholars say intelligent animal species deserve the kind of constitutional rights taken for granted by most Americans. Kim Motylewski reports.

Transcript

CURWOOD: It's Living on Earth. I'm Steve Curwood. Life, liberty, and the pursuit of happiness. The call for inalienable rights in the Declaration of Independence propelled the American Revolution more than 200 years ago, and today another revolution is taking up these rights as a battle cry, both here in the U.S. and around the world. But this time, these rights are being sought on behalf of animals, and the debate over animal rights is now moving from the barricades of protest into the nation's courts and law schools. Kim Motylewski has our report.

(A door slams. Background suspense music)

BAILIFF: The animal court is now in session. The Honorable Joseph A. Wapner, judge, presiding.

MOTYLEWSKI: For most of us, animal law is the kind of thing we see on television programs like this one. Bad dog eats good dog, neighbor sues neighbor.

WAPNER: You claim that the defendant's dog injured your dog?

WOMAN: Yes.

WAPNER: What kind of dog is this?

WOMAN: He's a Maltese, cut real short.

WAPNER: Did you take your dog to the vet?

WOMAN: Yes. He took 51 stitches across his neck, plus his ear was taken off and he lost a tooth. I have pictures.

WAPNER: Was the ear put back on, though?

WOMAN: Yes, he did a wonderful job.

MOTYLEWSKI: In fact, animal cases in real courtrooms aren't much different. The law regards critters as people's property. But some folks would like to change that.

WISE: They have no legal rights. They have no recourse against us. We can treat them as we will. They are in the same legal category as a car or a chair.

MOTYLEWSKI: That's attorney Steven Wise. In his 20 years as a lawyer, he's handled plenty of animal cases: disputes over property damage, veterinary malpractice, apartment rules forbidding pets. And he's rescued more than a few hounds from doggie death row. But his larger ambition is to knock a hole through the legal wall that divides people from the rest of the animal kingdom.

WISE: Once we've done that, the question is not what species are you, but what other sort of characteristic or quality do you have that, then, should or should not entitle you to legal rights? I argue that it's the quality of mind. Certain kinds of minds should automatically be entitled to legal rights.

MOTYLEWSKI: Minds which are self-aware. In his new book called Rattling the Cage, Mr. Wise argues that human rights are built on this foundation: an individual's ability to think for himself. He says science has shown that some primates, for example, can think for themselves, so they, too, should be given basic legal rights.

WISE: When you see that non-human animals like chimpanzees and bonobos actually understand their own beliefs, their own desires, their own intentions, and actually can divine what the beliefs or desires or intentions are of another chimpanzee or bonobo or of another human being, you realize you are working with incredibly sophisticated non-human animals. That has to cause you to sit back and take notice.

MOTYLEWSKI: There are laws to protect animals from cruelty and abuse, but the rights Steven Wise speaks of are the inalienable kind, which can't be legislated away -- the ones most Americans take for granted -- life and liberty.

WISE: Chimpanzees and bonobos should have two basic rights: the right to bodily integrity -- you can't experiment on them, you can't torture them -- and the right to bodily liberty -- you can't shut them up in cages in ways that harm them.

MOTYLEWSKI: These rights would provide a kind of protective wall for chimps and their cousins the bonobos, and later perhaps other animals as science dictates. Mr. Wise leaves open the possibility of other rights, which would actually entitle animals to something -- call it the pursuit of happiness -- perhaps habitat protection, or even education. The problem, he says, is getting from here to there.

(Footfalls; animal calls)

MOTYLEWSKI: An important part of that legal journey might be unfolding in this barnyard in Ware, Massachusetts. Turkeys, goats, and sheep gobble and graze here within sight of a modest house. The place used to be home to Snowball, Patchwork, Old Man, Nay Nay, and three other sheep. Anne Krasnecky says she treated them like family.

KRASNECKY: They'd go to Dunkin Donuts, we'd, you know, get Munchkins for them. I'd make cookies or muffins, you know. If we ever went away we used to come back from the restaurants with rolls from the tables. We'd always ask for extras. (Laughs)

MOTYLEWSKI: Several years ago, two local dogs killed the sheep, launching a lawsuit between the Krasneckys and their neighbors. A judge says the couple is entitled to economic damages for the market value of their livestock. But along with their lawyer, Steven Wise, the Krasneckys want something more.

KRASNECKY: Well, we're mostly just looking for some justice. These were members of our family to us, and you can't give a dollar amount of what that one animal meant to you. I mean, it's priceless. We watched a lamb grow up without a mother, and we had to try to attach her to another mom, but we lost that with our animals because they're, like, skittish. I mean, a dog came in our yard one day and they just, like, panicked. I mean, it's like they live with this fear.

MOTYLEWSKI: The Krasneckys are fighting for emotional damages and loss of companionship, just as if a child had been killed. If this reasoning comes before a jury, the case could set a powerful precedent, helping to transform animals from possessions into legal persons with rights.

(A sheep bleats)

MOTYLEWSKI: Of course, the case could unleash a pack of tough new questions. Are pet sheep more precious than sheep regarded as livestock? Is there a value difference between domesticated animals and wild ones? Should one receive more protection than the other? These kinds of issues cause plenty of people to reject the very idea of legal rights for animals.

NIEMI: Every living thing relies on other living things for its survival. Herbivores need to eat living plants to survive. Carnivores need to eat living animals.

MOTYLEWSKI: Steve Niemi is a lab animal veterinarian and a board member of the Massachusetts Society for Medical Research. He says science doesn't rely only on the law of the jungle, but also on a logic of the heart. He calls the legal rights idea excessive, and points to laws and regulations at every level of government which protect lab animals and minimize their suffering. He says experimentation has always been a hard question, and it should be. But in the end, human self-interest rules.

NIEMI: Immediate survival may not require biomedical research, but certainly prolonged survival and improved quality of life does. There are many cases where, even with the best of data that are generated by cell culture and computer models and many other non-animal systems, we still don't know enough.

MOTYLEWSKI: Even those sympathetic to the animal cause disagree over the notion of legal rights. Bonnie Steinbock teaches bioethics at the State University of New York at Albany. She agrees there are biological similarities between people and other animals, but sees an important moral difference.

STEINBOCK: For whatever reason, human beings do have a capacity for interactions with one another, for being motivated by moral reasons that no non-human animals, at least so far as we know, have. And I'm not recommending that if a chimpanzee, you know, takes a banana, that we indict him for a misdemeanor, or that we hold chimps morally responsible. I think that remains something that is unique to human beings.

MOTYLEWSKI: So legal personhood doesn't make sense to her. Even putting aside moral capacities, Professor Steinbock wonders how we'd decide which animals deserve rights. She rejects the idea of letting intelligence guide us. IQ tests for animals would be impractical, she says, and unfair.

STEINBOCK: In my view, what's much more important is the ability to suffer, or the ability to experience pain. That if a being feels pain, then there's no excuse for not taking that pain into consideration.

(Applause)

WISE: Thank you all for coming on this cold February night.

MOTYLEWSKI: The debate over animal rights has been simmering for years among activists and academics. But now it's catching on among the public.

WISE: My job tonight is to make you an offer that you can understand.

MOTYLEWSKI: Steven Wise's new book is drawing heavy media attention and lively audiences to public forums. In Boston's Faneuil Hall, Mr. Wise hashes over the issue with Harvard law professor Lawrence Tribe. Mr. Tribe says it's unjust to treat animals as things, but he sharply criticizes Steve Wise's reasoning on rights. He says the idea of tying animal rights to self-awareness and smarts could backfire, endangering human rights.

TRIBE: We end up having to say it's okay to award basic legal rights as a kind of privilege or favor or gift to human beings who lack all of those qualifying traits, like infants, or the severely mentally retarded, or the profoundly comatose. But the line of reasoning he's following also says it would be okay not to award those basic legal protections to such beings.

MOTYLEWSKI: Larry Tribe warns this is a very slippery slope.

TRIBE: I needn't spell it all out. The possibilities are genocidal and horrific, and reminiscent of slavery and of the Holocaust.

MOTYLEWSKI: That, of course, is the worst-case scenario. A new generation of lawyers, though, is discussing if there's any practical middle-ground. The discourse over rights, wrongs, and responsibilities has arrived at law schools across the country.

BOCK: I'm just really excited that we have this class. I think it's going to be a great opportunity, and I'm so proud of Harvard to be one of the first schools to have it.

MOTYLEWSKI: Sashi Bock is a third-year student at Harvard Law School. Ms. Bock and her classmate Jody Alexander persuaded the administration to offer a course on animal law.

ALEXANDER: Quite a few students were interested. I mean, we sent petitions around. A tremendous number of students signed the petition, saying they'd be interested in having an animal law course offered at the law school.

BOCK: We had over 100 signatures.

(A cash register tape runs)

MOTYLEWSKI: Today the women buy their books for the course, taught by Steven Wise. Ten years ago, at Vermont Law School, his was the only animal law course in the country. Now Harvard joins more than a dozen law schools which offer one. The first animal law casebook has also just been published; there's now a scholarly journal; and several states have strengthened their laws to make animal cruelty a felony. Steven Wise points to all of this and claims the tide of public opinion is beginning to turn. For Living on Earth, I'm Kim Motylewski in Boston.