This piece first appeared in the National Post on August 19, 2016.
If you’ve heard of American lawyer and author Steven Wise, it’s likely due to the peculiar lawsuits he filed in 2013 in New York State court. What makes these suits eccentric, and their plaintiffs certified media darlings, is that the plaintiffs are not human – but rather chimpanzees. If these legal proceedings are successful, something unprecedented and seemingly against the laws of nature will occur: a chimpanzee will walk into a courtroom as a thing, and walk out as a person.
While it is enormously reductive to speak of complex social change only in terms of historical turning points, every social movement, for better or worse, can be distilled to a series of watershed moments. Today, those who have dedicated their lives to improving the lot of animals on this planet find themselves at a fascinating point in time.
On one hand, historic wins seem to be piling up. In 2013 the Toronto Zoo retired the last of its elephants, Ringling Bros. recently did the same, SeaWorld has stopped breeding orcas, and the United States government has decided to retire the last of its research chimpanzees to sanctuary. We are greeted daily with social media stories of heroic humans toiling on behalf of their nonhuman comrades, and of corporations and governments seeing the light. There is, indeed, a lot of good news out there.
Nonetheless, it’s also been many decades since we’ve experienced a truly galvanizing moment in the non-human animal welfare movement, a watershed event after which nothing will be the same. In 1824, with the founding of the Royal Society for the Prevention of Cruelty to Animals (RSPCA), the world had its first animal welfare charity and a robust model for others to follow. When Jane Goodall reported in the 1960s that chimpanzees in Tanzania were using tools, she revolutionized the way we think about our place in the animal kingdom. And when Peter Singer published Animal Liberation in 1977, he electrified a generation and spurred untold numbers of people to organize and take action.
Perhaps we no longer live in an age when the populace is susceptible to such mass inspiration. Or perhaps our age is defined by an endless susceptibility to such stimuli, with every historical turning point so rapidly overshadowed by the next that we simply lose sight of how far we’ve come. But it nevertheless seems appropriate to ask: When will the next RSPCA come along? Where is our modern-day Jane Goodall, our contemporary Peter Singer (with respect to both, who are still very much alive)?
A new film, opening in theatres across the country this week, provides a convincing answer to these questions. Unlocking the Cage, by legendary filmmakers Chris Hegedus and D.A. Pennebaker, profiles the 30-year struggle by Steven Wise to win legal personhood for nonhuman animals. If he and his colleagues succeed – and the film makes a compelling case that it’s not a question of if, but when – Wise will usher in a near-literal sea change in our relationship with nonhuman animals.
Wise is the founder of the Nonhuman Rights Project, an organization that advocates for legal rights for certain species of nonhuman animals. The NHRP focuses on apes, elephants and cetaceans (whales and dolphins), the most cognitively advanced, emotionally sensitive and socially complex species on earth.
“Right now we have a legal wall,” Wise tells me over the phone from Coral Springs, Florida. “On one side of this wall are the ‘things’ of the world, and on the other side are ‘persons,’ those who possess the capacity for legal rights. We’re trying to breach this wall, to bring a few nonhuman animals from the ‘thing’ side to the ‘person’ side.” It is what Wise refers to as "a legal transubstantiation."
Wise is suing in various courts to win writs of habeas corpus for four captive chimpanzees named Tommy, Kiko, Hercules and Leo. These suits are the sharp edge of a provocative legal strategy that Wise and his colleagues developed over many years – a strategy that opens up an invaluable space in the courtroom for Wise to present the argument that chimpanzees meet the criteria for legal personhood.
Habeas corpus (Latin for “You may have the body”) is enshrined as a method of safeguarding against unlawful imprisonment. When a writ is issued by a judge, the captive “person” must be presented in court and their custodian must justify their incarceration. Fundamental to habeas corpus, and yet usually overlooked as a matter of significance, is this idea of the captive being a “person.” But if Wise can convince a judge that one of the chimpanzees he represents possesses the essential characteristics of personhood, that judge could issue the writ.
Wise’s claim for chimpanzee personhood is buttressed by more than a half-century of scientific findings: that chimps are self-aware, that they dwell on the past and anticipate the future, that they understand that their thoughts and desires are different from those of others, that they grieve for their dead, engage in politics and understand the concepts of fairness, retribution and reconciliation (and perhaps even possess something resembling a spiritual side). The lawsuits are bolstered by extensive affidavits from the world’s leading primatologists.
Should Wise succeed, and should one of these writs be issued, it won’t just free the chimpanzee plaintiff. It will necessitate a wholesale re-examination of the relationship between nonhuman animals and the law – because implicit in the writ will be the chimpanzee’s legal rights.
In other words, the wall between us would finally be breached.
Like many progressives of his generation, Steven Wise experienced his own political awakening in college during the Vietnam War. He became a lawyer to, in his words, “be on the side of social justice,” but he found his true calling in 1979 when a friend handed him a copy of Animal Liberation.
Wise was struck by two things: the unimaginable scale of injustice being perpetuated on animals, and the fact that they seemed to have nobody to stand up for them.
“So I just thought, ‘That will be me. I’ll do it,’” says Wise. “I had this feeling that I could not un-ring the bell. Once I knew about it all, I felt morally obligated to follow through.”
In 1981, Wise co-founded Attorneys for Animal Rights, a national organization committed to pursuing legal recourse for exploited non-human animals. He worked on cases involving veterinarian malpractice, endangered species and more than 100 dog execution orders – what he calls “doggy death cases” – in which Wise argued on behalf of seemingly doomed domestic animals.
In the film, a still photo from those days shows Wise in his modest office, a poster for the Animal Legal Defence Fund behind him trumpeting the phrase: “We may be the only lawyers on Earth whose clients are all innocent.”
Although he was usually successful in saving those dogs, by 1985 Wise realized that his efforts were hamstrung by the fundamental nature of the law – by the essential “thingness” of all nonhuman animals in the eyes of the court. “So I decided that they needed to become persons,” he says, almost nonchalantly. “They needed to have their own rights that could be legally enforced.”
Of course, the culture of 1985 was rather hostile to such an idea. Wise was routinely laughed at in person and ridiculed on television. People would bark at him when he would enter a courtroom. Much of this treatment stemmed from boorish human exceptionalism, it’s true, but some of it arose from a basic misunderstanding of what Wise was asking for – a misunderstanding that persists.
“Things are essentially the slaves of persons,” says Wise. These words are designed not only to provoke a response, but also to evoke history: Wise’s habeas corpus argument is based on the famed Somerset vs. Stewart case of 1772 in Great Britain, which ultimately found human slavery to be unsupported by the English common law. Somerset vs. Stewart is considered a legal milestone of the abolitionist movement.
But here’s the distinction: Wise is not arguing for Tommy, Kiko, Hercules and Leo to be granted human rights. He is simply saying that chimpanzees deserve legal status in court, where their interests may be placed on the record and advocated for, not unlike the status currently enjoyed by corporations in America.
“We knew there was an enormous amount of work to do,” says Wise. “We were going to have to write books, law review articles, teach classes on animal law, and wait for all the other organizations in the world to raise the consciousness of people to the point where they would be prepared to listen to the kind of arguments we were hoping to make.”
In 2000, Wise published his first book, Rattling the Cage, which quickly became a seminal text in the movement. That same year, Harvard invited him to teach the institution’s first class on animal rights law. By 2011, the Nonhuman Rights Project had more than 70 volunteers and enough donations to hire an Executive Director.
“We’re not a chimp rescue organization,” says Wise. “We’re a civil rights organization that focuses on nonhuman animals. We view our suits on behalf of chimpanzees as the tip of the legal spear.”
To continue the military metaphor, few social justice advocates could ever dream of adding two of the world’s most esteemed filmmakers to their arsenal, but when Wise sat down with Hegedus and Pennebaker – the pioneering documentarians behind such classics as Don’t Look Back, Monterey Pop, The War Room and Startup.Com – his work struck a thematic chord.
“I felt it was something that was emerging and that I needed to know more about,” says Hegedus, who directed Unlocking the Cage. “I’ve had the same feeling in other films that we’ve done, that they are a history of the times, in a way. This moment with Steve is the beginning of some kind of cultural shift. It’s like the world was waiting for him – or somebody – to step up and do what he did.”
Documentary filmmaking is experiencing its own watershed moment right now. Not only has technology democratized the process of telling true stories, but recent films like The Cove and Blackfish have provoked new and much-needed conversations around nonhuman animals. Unlocking the Cage fits very well into this trend.
“Al Franken always said that comedy crosses political boundaries,” says Hegedus. “But animals do too. Animals are not just the domain of liberals. Whether people buy into Steven’s argument [or not], there are deep feelings about animals on both sides.”
In keeping with her reputation for deep immersion in her subject matter, Hegedus found herself changed by three years of shooting on the front-line of the animal rights movement. She and Pennebaker hardly ever eat meat anymore. “I have had a huge shift in my thinking,” says Hegedus. “Mostly because I hadn’t really evolved; I hadn’t spent the time to think about it deeply.”
So, is deep thought really all that is required to evolve our thinking with respect to animals? Maybe for some. But it also seems that the more deeply we think about our relationship with the natural world, the more perplexing and intractable it all becomes.
Take the recent killing of Harambe the gorilla at the Cincinnati Zoo, which left so many questions: What was Harambe really thinking as he dragged that toddler through the water? Did the child’s presence or the panicking humans prompt his behaviour? Was that toddler trespassing on gorilla territory, or re-colonizing a space of incarceration? What does it mean that a zoo feels obliged to keep an armed SWAT team on standby? And how are we to interpret the comment by Dr. Jane Goodall herself, that zoo officials had no choice but to shoot Harambe, “that life and death decisions sometimes have to be made?”
To paraphrase the poet Charles Bukowski, smart people are always full of doubts. The fact that our relationship with nonhuman animals is getting more complicated is actually a positive thing. This may seem counter-intuitive, but when we allow our interactions with the natural world to fall back on easy interpretations – exactly that moment when our status on the planet seems indisputable – is when we usually have the most problems.
One intriguing way of looking at human history, popularized by the philosopher Roman Krznaric, sees the sweep of human affairs not in terms of watershed moments but through the lens of mass empathy movements – periods of empathic flowering and empathic collapse. When I ask Steven Wise whether he thinks we’re living in a period of blossoming or decline, he goes quiet for a time.
“I think it’s both,” he says finally. “In some areas we’re flowering, in other areas we’re collapsing. In the 36 years I’ve been working as an animal protection lawyer, the world has changed dramatically in one direction: towards empathy. But at the same time there has been the rise of intensive farming, biomedical research, all the ways animals are abused by the billions. There’s an intensification of evil, but there’s an intensification of good at the same time.”
Unlocking the Cage ends on an appropriately unfinished note. The lawsuits are ongoing, Tommy the chimp has been smuggled out of state and Steven is gearing up for his next big challenge: filing suit on behalf of captive elephants. Hegedus tells me that she has switched out the cards at the end of the film so many times, because between every screening something happens in the real world that changes the trajectory of the story.
Should the Nonhuman Rights Project succeed in winning a writ of habeas corpus for one of its plaintiffs, it will mark the watershed moment for which the animal welfare movement has been looking. If a chimpanzee can indeed leave the courtroom as a person, our empathy toward nonhuman animals will unquestionably be in bloom.
“There have been organizations trying to stand up for the interests of nonhuman animals for at least 150 years,” says Wise. “If we can break that barrier from “thinghood” to personhood, from nonhuman animals being rightless to having rights, that, to me, is the end of the beginning. As soon as we’ve done that, a whole world of litigation will be catalyzed, and that will become the beginning of the end.”