Blake M. Mills, a volunteer attorney for the Nonhuman Rights Project, is the lead author of a law review article—“The Writ De Homine Replegiando: A Common Law Path to Nonhuman Animal Rights”—that was just published in the Spring 2015 issue of the George Mason University Civil Rights Law Journal (NhRP President Steven M. Wise is a co-author). The writ de homine replegiando, like the writ of habeas corpus, is a legal tool used to challenge an illegal detention, but with important differences. I recently talked to Blake about the article (which you can view and download here), the intricacies of the process of litigating on behalf of nonhuman animals, and the larger nonhuman rights movement.
Lauren Choplin: First, thank you, Blake, for taking the time to talk with us about your and Steve’s article. You’ve assisted with the NhRP’s work for a long time now. How did you come to be committed to nonhuman rights and in what capacities have you contributed to the NhRP in the past?
Blake Mills: Thanks Lauren. My interest in nonhuman rights started in law school after I was exposed to treatment of animals on factory farms. After that, for me, I felt like I could no longer consider myself a moral person if I continued to support those practices by eating animal products. I went vegetarian, then vegan, and it continued from there. After I graduated, I joined a large law firm, and after a few years I realized that I was lacking a real connection with the types of cases I was working on. So I started working towards supplementing my regular caseload with legal work on behalf of nonhuman animals. That led me to take a summer course in animal law taught by Steve, and from there I developed a relationship with him and the NhRP. I started out assisting with research on discreet issues, and eventually that grew into writing this article.
LC: Your article argues that the writ de homine replegiando “offers legal ‘things’ the opportunity to challenge their legal ‘thinghood’ and establish their rights to bodily liberty.” As you write, the writ is a way of working through the common law to challenge unlawful detention; in American judicial history, slaves, prisoners, and children have all used the writ to reclaim their freedom. To what extent do you think that common law judges, on the one hand, and laypeople, on the other hand, are or will be open to thinking of, say, a chimpanzee kept as a “pet” or an orca kept in a tank as being “imprisoned”—much less falsely imprisoned, per the writ? In your opinion, what will it take for people to see these animals as being imprisoned as such?
BM: Well, I think the “imprisoned” part shouldn’t be much of a leap. Putting aside whatever the person might feel about nonhuman rights, it seems impossible to deny that such a chimp or orca is being detained or “imprisoned”. As you suggest, the larger problem is convincing people that it’s a wrongful detention. I think with either a judge or a layperson, it’s about introducing them to the nonhuman animal, showing them its personality, and explaining how it is being affected by its mistreatment/confinement. That’s one reason why the writ de homine replegiando, and the writ of habeas corpus, are so appealing, because a hearing on either writ should allow an opportunity to fully engage in that process.
LC: One section of the article takes up the procedural differences between the writ de homine replegiando and the writ of habeas corpus, the most important of which is that the former calls for a jury trial on the merits, while the latter—as those who have followed the NhRP’s New York lawsuits already know—calls for judges’ rulings. You suggest that a jury “may be more inclined to grant a nonhuman animal rights than would a judge.” Why do you think this might be the case?
BM: I think the concern is that a judge might be less inclined to recognize nonhuman rights because such a ruling would be viewed as expansionary and would have a risk of being overturned on appeal. The hope is that a jury would more concerned with the treatment of the particular nonhuman animal at issue and may act where a judge would not.
LC: You write, “both [the writ de homine replegiando and the writ of habeas corpus] can … be brought on behalf of the detainee by a third-party.” Can you explain how these particular legal proceedings thus avoid the problem of standing? (Note to readers: standing is the term for the ability of a party to demonstrate sufficient connection to and harm from a challenged law or action to support its participation in a case; a legal person’s capacity to have basic rights is distinct from the problem of standing).
BM: Since these writs deal with challenging a wrongful detention, the party seeking redress is typically incapable of actually filing the petition on their own. So there has to be a mechanism for another person to file the petition on their behalf. But the petitioner is still the one being detained and suffering an injury, so you can hopefully avoid the complicated standing issues that can arise when people file suits in their own capacity and must then establish that they themselves have been injured in connection with the injury to a nonhuman animal.
LC: This article is the lead feature in the George Mason University Civil Rights Law Journal. How would you articulate the relationship between nonhuman rights and traditional conceptions of civil rights? More broadly, how would you respond to people who resist the idea that at least some nonhuman animals are entitled to rights and not just increased or stronger animal welfare protections?
BM: I definitely think nonhuman rights are an aspect of civil rights, and I was thrilled that the editors at the George Mason University Civil Rights Law Journal felt the same. Civil rights are about what we owe each other as members of a society, if we want that society to be just, and nonhuman animals are a major part of our society. We rely on them in so many ways, and as such I think they deserve a corresponding level of respect from us. As for people who resist that idea, I think most would agree that there is something wrong with, for example, physically mistreating a nonhuman animal. Without some form of rights, there’s no method for that nonhuman animal to protect itself from that mistreatment. And it’s always important to remind people that we’re talking about a limited grant of rights. We grant different sets of rights to certain humans based on their different capacities (children versus adults, for example), so there’s no reason we couldn’t do the same with a nonhuman animal.
LC: I found especially inspiring—and even hopeful—the following quote: “As membership in the human species is neither a necessary nor a sufficient condition for legal personhood, it is not an appropriate basis for denying a nonhuman animal, or a person acting on its behalf, the use of the writ de homine replegiando to challenge her confinement. Nothing in the history of the writ’s usage in United States courts suggests otherwise.” What words of encouragement do you have for nonhuman rights supporters—including attorneys like yourself—who want to work to achieve justice for and challenge the legal thinghood of falsely imprisoned nonhuman animals?
BM: Just that progress is definitely being made, both in the courtrooms, where the NhRP is starting to have real success, and outside, where a growing number of people are becoming sympathetic to the treatment of nonhuman animals in confinement. Hopefully as more talented, committed people become involved, that momentum will continue.