Exploring the Legal Case
How the Nonhuman Rights Group is putting its first cases together
Since 2007, dozens of lawyers, political scientists, law students, sociologists, psychologists, natural scientists, and computer modelers from across the country have been preparing the first cases that will seek to have courts declare that at least some nonhuman animals are legal persons who have the capacity to possess legal rights, and extend the fundamental common law rights of liberty and equality to such nonhuman animals as great apes and cetaceans.
At the core of the Nonhuman Rights Project is the Legal Working Group, which is examining every aspect of the law that may be relevant to the case.
Its members explore numerous legal questions related to obtaining legal personhood throughout all 50 states. These questions include:
Is there anything inherent in legal personhood that would limit it to human beings? Or to particular kinds of human beings?
What are the meanings and legal significance of dignity and autonomy? Is there anything inherent in either or both that should legally limit them to human beings?
Do fundamental legal rights exist? What are the sources of fundamental legal rights? What are the purposes of fundamental legal rights? What interest should fundamental legal rights protect?
What is equality, and is there anything about it that limits it to human beings?
The Legal Working Group is also determining what relevant private causes of action might exist. Since constitutions and statutes circumscribe the ability of a common law court to do what it believes justice requires, and because statutory constitutional ambiguities usually require analysis of legislative history that is unlikely to have included any mention of nonhuman animals, the Nonhuman Rights Project generally focuses on establishing such fundamental legal rights as bodily integrity and bodily liberty for such animals as chimpanzees, whales, and elephants under the common law.
The common law causes of action the Legal Working Group believes are promising include the ancient writ of habeas corpus. This cause of action was used by human slaves, villeins, and other unfree humans to test the bounds of their freedom. The common law writ of habeas corpus – not to be confused with statutory or constitutional writs of habeas corpus – reaches private detentions, and any petitioner who demonstrates probable cause through a verified affidavit that his or her detention is unlawful is entitled to her freedom. Legal Working Group researchers are analyzing aspects of the common law writ of habeas corpus, including:
a) the circumstances under which it may be used by third parties or used to transfer custody rather than as a release from custody,
b) when it is superseded by constitutional or statutory writs of habeas corpus and when these writs merely supplement the common law,
c) to what degree the law of the 49 common law American states incorporates the English common law of habeas corpus, and
d) what is the law’s content, to what degree does habeas corpus persist through legislative suspensions, in what manner and to what degree may habeas corpus returns be controverted, to what degree does common law habeas corpus apply to private detentions, and under what circumstances may a third party assert another’s rights under common law habeas corpus.
An equally ancient common law writ is de homine replegiando, or replevin of the person. It first appears in the 12th Century, then evolves into the customary method of trying title to villeins. As with habeas corpus, de homine repegiando was used by the unfree, including black slaves, to test the legality of their imprisonment. If, for any reason, the writ of habeas corpus is not available, the writ of de homine replegiando can be used. Unlike habeas corpus, de homine replegiando entitles one to trial by jury.
Freedom Act statutes
The Legal Working Group is also assessing the suitability of utilizing antebellum statutory causes of action enacted to allow human slaves to challenge their slave status. These included so-called “Freedom Act Statutes.”
Paradoxically, these statutes were passed to diminish the ability of black slaves to challenge their unfree status by invoking such common law freedom writs as habeas corpus and de homine replegiando and to require plaintiffs to employ strict, narrow and often punitive procedures instead.
Other possible approaches
The Legal Working group is asking other questions:
Might the ancient procedure of manumission, by which a master could free his slave through his private action, apply to any nonhuman animal?
Under what circumstances might the burden of proof shift from the plaintiff nonhuman to a defendant accused of violating his fundamental rights to bodily liberty or bodily integrity?
To what degree might a jurisdiction’s common law be understood by its high court judges as their responsibility to update and expand to meet modern changes in experience?
Under what circumstances are next friends or guardians ad litem available to any nonhuman animal plaintiff?
What part do autonomy, dignity, natural law, natural rights play in the personhood law of each jurisdiction?
How did former legal things attain legal personhood in that jurisdiction? Is there a hierarchy of liberty-rights in the jurisdiction and, if so, how does a court determine which rights are most fundamental?
May a civil cause of action be derived from duties towards nonhuman animals that are imposed by criminal statutes in that jurisdiction?
The Legal Working Group is researching the natures of the several strains of the comparative right of equality as they exist in a hundred common law jurisdictions, American and foreign, around the world, focusing on the so-called “Normative Model. ”
In this model, equality is determined against a larger social, political, and legal context. It seeks to identify prohibited legislative and judicial ends, whether a rational connection exists between means and ends or not. Prohibited ends may include legislative or judicial classifications that burden a plaintiff in a manner that reflects deeply personal social stereotypes that are biologically immutable or changeable only at unacceptable personal costs or that involve morally irrelevant traits.
Selecting a jurisdiction
The Legal Working Group sets out to understand the strongest relevant legal influences in any jurisdiction. With this background, we then construct a hierarchy of common law American state jurisdictions according to their receptivity or hostility to certain key legal arguments.
And the last task of the Legal Working Group, at this stage, is to identify the five most receptive jurisdictions. Two other working groups – the Predictive Analytics Working Group and the Sociology Working Group – will then help determine which of those five jurisdictions might be the most favorable for the first suit.