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Historically, animals have been regarded as property under the law. The owner of any domestic or companion animal is the one who has the animal in their possession, while wildlife belongs to the state or federal government, depending on who owns the land on which the animals live.

Anyone harming an animal, therefore, impinges on the rights of the owner of the animal, because they are deprived of their property interest if someone injures or kills their animals. For instance, if a passerby shoots a horse standing in a field, the owner of the horse can no long use the horse for pulling a plow, riding for work or pleasure, or for any other purpose for which they purchased or bred the animal. If a person harms your companion animal, you are deprived of the companionship and perhaps protection of that animal.

With wildlife, there is a system of licensing whereby an individual pays the state for the right to kill a wild animal. But if an individual does not have a hunting or trapping license and they shoot a deer, they can be charged a penalty by the state for taking that animal without permission.

Permission for “nuisance” animals becomes more complicated, but in most cases the state, or a local government authority, gives blanket permission to kill rodents or other animals that they regard as pests. However, some local authorities have regulations that limit who or how even these types of animals can be taken and killed.

In the case of institutional use, such as laboratories or agricultural producers, animals are owned by the institution.

However, ownership does not mean that an individual can do whatever they want with their animals. Since the early 1800s, animal cruelty laws have been adopted by individual states to protect against abuse and serious neglect of animals. Since 2014, all 50 states have had anti-cruelty laws on the books that include the possibility of charging an offender with a felony crime, although which animals are protected varies greatly from state to state.

Advocates for social justice have long used the power of the law to advance their cause, including the need to provide better “protection” for animals, individually and collectively. So far, laws have been passed in several states that allow the appointment of an advocate to represent an animal’s interests in a divorce or custody hearing. But that is just a beginning to acknowledging the animals’ “personhood.”

It is well worth noting that recognition of the sentience of animals (a sentient being is one who is able to perceive or feel things) is almost exclusively used in relation to companion animals. The possibility that this characterization will also be applied to animal subjects in the laboratory or to animals raised for food accounts for a vast majority of opposition to this idea. 

The Power of the Bench

While legislators have not yet made big inroads into changing the status of animals, efforts are being made to persuade the courts to bring about change. Some courts have already acknowledged that animals represent a different kind of property than a piece of furniture or painting. Other courts have referred to animals as “sentient property,” recognizing that animals have awareness and needs that must be met independent of their owners’ whims.

Animal advocates, including NAVS, have explored whether giving animals their own independent rights is the next logical step in the movement toward social justice for all.

Developing a Theory and Launching a Campaign

The theory of legal personhood for animals was pioneered by attorney Steven M. Wise. NAVS helped to support Wise’s early efforts to develop this theory through a series of grants as he worked on what would become his first book, Rattling the Cage, published in 2000. After that, Wise spent several years writing, teaching and conducting research of the best jurisdiction in which to bring a case. After Wise’s founding of the Nonhuman Rights Project (NhRP), chimpanzees were chosen as the first test subjects for this new theory of law, that animals are entitled to a right to bodily liberty, using the mechanism of habeas corpus to achieve this goal.

In December 2013, Wise filed a series of lawsuits on behalf of the NhRP, asking judges to recognize that four chimpanzees being held in captivity in New York State were “legal persons” who had the right not to be imprisoned. Instead, he argued, they should be released to a sanctuary where they can live as close as possible to what their life would be like in the rainforest.

The NhRP submitted affidavits from attorneys, scientists, ethicists and others showing that chimpanzees are self-aware, cognitively complex and autonomous—in other words, that they meet all reasonable standards for having the basic right to bodily liberty. The goal was to establish legal personhood for non-human animals, beginning with these chimpanzees.

The lawsuits were filed in three different New York state courts on behalf of:

• Tommy, who is living at a used trailer lot;
• Kiko, who lives in a cage next to a private home; and
• Hercules and Leo, who were involved in locomotion experiments at Stony Brook University (SUNY).

Each of the three judges denied the petitions to grant a writ of habeas corpus, which is a legal concept that is used to free prisoners or slaves from their confinement. However, even though they denied the petition, two of the judges put into the record their support of this action, even if they were not ready to make a decision on behalf of this kind of revolutionary concept for animals. All of these initial denials were appealed.

In July 2015, the New York Supreme Court, appellate division, rejected the petition for habeas corpus to free Hercules and Leo from their confinement in a laboratory at SUNY. The University agreed, however, to no longer use these chimpanzees for research and to consider sending them to a sanctuary. Unfortunately, New Iberia Primate Research Center was the legal owner of these animals and they refused to enter into negotiations for the permanent retirement of these chimpanzees. In March 2018, four-and-a-half years after the petition was filed, Hercules and Leo were finally transferred to a sanctuary.

In September 2015, the New York State Court of Appeals (the state’s highest court) denied motions to appeal Tommy’s and Kiko’s cases. The cases were joined in 2017, and in May 2018, the New York Court of Appeals once again denied NhRP the right to appeal a lower court’s dismissal of the case. However, Judge Eugene M. Fahey, while concurring with the decision, also wrote, “To treat a chimpanzee as if he or she had no right to liberty protected by habeas corpus is to regard the chimpanzee as entirely lacking independent worth, as a mere resource for human use, a thing the value of which consists exclusively in its usefulness to others. Instead, we should consider whether a chimpanzee is an individual with inherent value who has the right to be treated with respect.”

Elephants (and All Animals) Deserve These Rights

Additional cases have been brought by the NhRP, seeking the release of captive-held elephants, again filing a petition for a common law writ of habeas corpus, alleging that they are being confined in a matter harmful to their persons. A case was brought on behalf of three elephants, Beula, Karen and Minnie, who are used for exhibition, performances and rides at the Commerford Zoo in Connecticut. Commerford has received numerous violations from the U.S. Department of Agriculture for the care of their animals. A petition for habeas corpus is pending in Tolland County, CT and on Sept. 25, 2018, an appeal was filed with the Appellate Court of Connecticut, seeking review of the lower court’s dismissal.

On October 2, 2018, the NhRP filed another petition for a writ of habeas corpus in the New York Supreme Court, Orleans County, seeking recognition of legal personhood and fundamental right to bodily liberty on behalf of Happy, an Asian elephant living in solitary confinement at The Bronx Zoo.

On November 16, 2018, the judge issued an “Order to Show Cause,” in effect granting the writ of habeas corpus, asking the Director of the Bronx Zoo to “show cause” why the court should not free Happy from her imprisonment at the Bronx Zoo and release her to an appropriate sanctuary. The court set a date of December 14 to hear oral arguments on this case.

Oregon Courts Expand an Animal’s Rights, Cautiously

Another effort has been launched on the west coast. In 2014, an Oregon Supreme Court recognized that animals can themselves be victims of animal cruelty, ruling that the plain meaning of the word “victim” in the dictionary includes “living beings” and that animals are certainly “living beings.” In this case, it included counting individual horses and goats in bringing multiple charges against their owner for neglect. A second case by the Oregon Supreme Court that year recognized that animals are “sentient beings.”

In urging Oregon courts to take this one step further, in May 2018, Justice, an 8-year-old horse, filed a civil lawsuit, seeking $100,000 from his previous owner, in order to pay for his lifetime care and the ongoing medical treatment he will need as a direct result of neglect. (While the suit was filed on his behalf by the Animal Legal Defense Fund (ALDF), the plaintiff named in this suit was Justice.) Justice’s former owner already pled guilty to neglect and paid for his treatment from the time he was seized until the settlement of the case. The additional funds sought would go into a trust fund solely benefiting Justice and to be used for his lifetime care.

In dismissing this case, the Oregon Circuit Court said that, “The court finds that a non-human animal such as Justice lacks the legal status or qualifications necessary for the assertion of legal rights and duties in a court of law.” However, the court also found that “The claim is not entirely void of legal or factual support,” and denied the defendant (the owner) a claim for attorney fees, suggesting that it would be punishing the attorneys for the plaintiff, who “had been quite creative in an attempt to surmount this hurdle [of lack of standing for a non-human animal].”

ALDF already file an appealed, on behalf of Justice, with the Oregon Court of Appeals. If this case succeeds, it will expand the legal rights available to animals, but only in Oregon.

The use of the courts to further this social justice campaign is just beginning. If—or when—a state high court does expand the legal status of individual animals to recognize their right to bodily liberty, then animal industries will mobilize their resources to oppose the application of this idea to animals in the laboratory and in the slaughterhouse. As long as these changes remain incremental and apply only to individual animals—such as specific chimpanzees or elephants or to companion animals—the courts safely can chip away at the notion that an animal has no more value than a kitchen chair.