Creatures in the Courtroom

When Harvard Law School (HLS) first offered a class entitled “Animal Law” in the spring of 2000, the Harvard Salient predicted catastrophe. “Radical Ape Activists Storm the Law School,” screamed the satirical headline, in a piece that went on to claim, rather more sternly, that the course would lead to lawsuits against Harvard’s own research laboratories for abusing animals.

Eight years on, the ape activists are not yet at the breach. But “Animal Law” is a biannual course at HLS, offering Harvard’s attorneys-to-be a chance to question how the law views animals. Some animal lawyers now hope that the course and others like it could help challenge one of the oldest assumptions of our legal system: the property status of animals.

Only a handful of law schools offered “animal law” when Harvard students first petitioned for the course in the late 1990’s; today, more than half of America’s 190 accredited law schools do. The American Bar Association and 13 state bar associations have also added animal law committees.

Paul Waldau, director of the Center for Animals and Public Policy at Tufts University and instructor of Harvard’s “Animal Law” course this Spring, told me that animal law’s rise reflects the growing social ferment on animal issues. He predicts that animal law is just the “leading edge of human-animal studies” as the academy—from sociology to religion—catches up with society’s unease with our existing relationship with animals.

Steven Wise, a Boston-based animal lawyer who taught the course in its first year, embraced this approach. Historically, we have held a mindset that “animals are property, and property has no rights,” Wise stated bluntly, arguing that animals were designated as property in an age of scientific illiteracy. Now that modern science is revealing animals’ cognitive and emotional abilities, Wise thinks it’s time for a new legal status for animals.

The case for such a new status is compelling. As mere property, animals can be caged on zoos and farms, pushed into painful shows in circuses and rodeos, and mutilated in laboratories. And when disasters strike, property is simply left behind—witness the thousands of pigs who drowned in their crates when floods hit Iowa this summer, and the farmers who subsequently collected insurance payouts on their sentient losses.

But if animal lawyers agree that the status quo is flawed, they differ on how to challenge it.

Waldau advocates an incremental approach. For over a decade, he’s served as the Vice-President of the Great Apes Project, a global coalition pushing for basic legal rights for chimpanzees, bonobos, gorillas, and orangutans. The campaign hopes to establish legal rights to life, liberty, and freedom from torture for our closest evolutionary cousins; many hope these rights could then be extended to other animals.

The campaign received a big boost last month when the European Commission proposed a ban on the use of great apes in scientific procedure testing across Europe (behavioral studies will still be allowed). But such a ban is still unforeseeable in America, where an estimated 3,100 great apes remain in captivity.

Wise’s strategy is more radical. He once listed a dolphin named Rainbow as the plaintiff in a lawsuit against an aquarium, and he hopes to establish animals as legal persons in future suits—he argues that if corporations and ships can already be persons before the law, it is absurd that animals cannot. Wise believes that until animals achieve legal personhood, even the strongest welfare laws will be undermined by animals’ property status—right now, there is no such thing as “animal rights law” he notes, only “animal slave law.”

Back at HLS, Felix Frankfurter Professor of Law Cass Sunstein advocates a middle course. He argues that the real problem is not animals’ property status, but the lack of enforcement of current animal welfare statues by state prosecutors indifferent to institutionalized animal cruelty. He proposes allowing private citizens or advocacy groups to take suits on behalf of animals—a system that would both bring animal abusers to book and disincentivize abuses in the first place.

What all three scholars can agree on, though, is that the time is ripe for change. In the last two decades, 42 states have passed felony-level animal cruelty laws, as a tenfold increase in the number of animal law courses across the country has produced more attorneys and legislators focused on the issue. And though these laws still treat animals as property, animal lawyers argue the stautes could form the basis for ending that property status, and with it some of society’s most systematic abuses of animals.

A legal revolution for animals is on the way, and Harvard was there at the dawn.


Lewis E. Bollard ’09 is a social studies concentrator in Kirkland House. His column appears on alternate Fridays.