Photo: Minette Layne/Flickr
Over the last several decades, researchers have shown that many dolphin and whale species are extraordinarily intelligent and social creatures, with complex cultures and rich inner lives. They are, in a word, persons.
Now animal advocates are challenging society to follow science to its logical conclusion and give legal rights to cetaceans. In the next several years, they intend to make their case in a court of law. If they’re successful, a dolphin could conceivably become the first non-human ever considered a legal person.
“The problem so far is that all nonhuman animals are seen as being legal things,” said Steven Wise, an animal law scholar and attorney. “If you’re a legal person, you have the capacity to have rights. That’s the fundamental problem we intend to attack.”
Wise founded the Nonhuman Rights Project in 2007, two years after finishing a series of books on animals, rights and law. The first two, Rattling the Cage and Drawing the Line, made a case for giving legal rights to chimpanzees and bonobos, and considering other animals on a species-by-species basis. He followed those works with Though the Heavens May Fall, an account of the 1772 trial of James Somerset, the first black human recognized as a person under British law.
At the trial’s beginning, Somerset was legally considered a thing, not even permitted to speak on his behalf. At its end, he was a person. The case used by Somerset’s lawyers was an inspiration to Wise, and by the end of 2013 the Nonhuman Rights Project plans to file two lawsuits on behalf of individual animals held in captivity in the United States.
To be sure, it will be an underdog’s battle, and might even be called quixotic. “There would be tremendous resistance. People would worry — ‘What are the limits? Is every animal in a zoo going to have a lawyer?’” said Richard Posner, a judge on the 7th U.S. Circuit Court of Appeals. “In the foreseeable future it wouldn’t have traction.”
But Wise is undaunted by the challenge. In the 30 years since he started working in animal law, Wise said, society has changed in ways that once seemed radical: Ethical vegetarianism is mainstream, cute animal videos rule our collective subconscious, and people like himself are invited to lecture at Harvard. “What’s never been done doesn’t seem like it’s doable,” he said.
Whether the Nonhuman Rights Project’s first case will involve a cetacean is yet to be determined. If personhood is defined by character rather than chromosomes, many creatures would be eligible: Great apes are intelligent, empathic and emotional, as are elephants. But perhaps the most vocal support exists for cetaceans.
“We have all the evidence to show that there is an egregious mismatch between who cetaceans are and how they are perceived and still treated by our species,” said evolutionary neurobiologist Lori Marino of Emory University during a February meeting of the American Association for the Advancement of Science. “These characteristics make it ethically inconsistent to deny the basic rights of cetaceans.”
"Some court could just say, 'Humans are special,' but there's no rational reason for it."
The discussion at which Marino spoke was titled “Declaration of Rights for Cetaceans: Ethical and Policy Implications of Intelligence,” and its presence at the AAAS annual meeting, a sort of all-star game for science, signifies a sea-level change in how cetaceans are understood.Just a few decades ago, cetacean rights would have been considered a purely sentimental rather than scientifically supportable idea. But scientifically if not yet legally, evidence is overwhelming that cetaceans are special.
At a purely neuroanatomical level, their brains are as complex as our own. Their brains are also big — and not simply because cetaceans are large. Dolphins and whales have brains that are exceptional for their size, second only to modern humans in being larger than one would expect. They also possess neurological structures that, in humans, are linked to high-level social and intellectual function.
If all we knew of cetaceans was their brains, we’d probably expect them to be persons, but of course scientists know much more. Tests in captivity have returned evidence of symbolic understanding and abstract reasoning. They seem to be just as aware of themselves as selves as we are, and observations in the wild are even more compelling.
Orcas, dolphins, humpback whales and sperm whales — and almost certainly other as-yet-unstudied species — have rich social lives, vocal dialects comparable to language, and genuine cultures. They don’t live by instinct alone, but in cultures passed between generations, with group-specific differences in habit and lifestyle, in rituals of greeting and death.
Researchers compare differences between cetacean populations to differences between traditional human tribes. It’s even possible to imagine that cetaceans, some of whom live as long as humans and spend their entire lives with a single family, have social sensitivities as pronounced as our own.
Two years ago, advocates led by the Whale and Dolphin Conservation Society drafted what they called the Declaration of Cetacean Rights, formally articulating that “cetaceans as persons have the right to life, liberty and wellbeing.” But it’s one thing to say that creatures should have rights and another for those rights to be legally recognized. As of now, they’re not.
Cetaceans are, like every other non-human animal species, seen by the eyes of the law as objects. And while there are some legal protections for animals, such as animal cruelty laws, they reflect property rights and community proprieties rather than genuine rights.
“If you’re a human being, and the only thing protecting you is a statute saying you can’t be unnecessarily cruel to humans, you wouldn’t feel very protected,” said Wise. “To have the kind of protections that even approach the protections a normal human has, you need to be a legal person.”
