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Scholarly Support for Nonhuman Rights—And Why It Matters

By Jay Shooster

When I first joined the Nonhuman Rights Project as a social media intern in 2013, I already believed the NhRP was a pioneer in animal law—their work to secure personhood and rights for nonhuman animals had just inspired me to apply to law school and begin a career in the field.

Five years and one law degree later, I am now working as a legal consultant to the NhRP, and I have just completed a research project to identify scholarly engagement with the organization’s legal theories. Before I started this project, I expected to confirm my belief that the NhRP has made a profound impact on the field of animal law. But having completed my research, it is clear that the NhRP hasn’t influenced only animal law, but also legal academia as a whole, moral philosophy, political theory, and the sciences.

Catalyzing Scholarly Research and Debate

The NhRP’s legal theories have catalyzed the development of a whole field of academic research and debate, generating extensive discussion and analysis in dozens of law review articles, multiple academic books, several science journals, and a variety of legal industry publications. For example, leading academic law journals including the Harvard Law Review, Yale Law Journal, Stanford Law Review, NYU Law Review, UCLA Law Review, and Columbia Human Rights Law Review have cited and/or discussed the NhRP’s legal theories at length. The elite scientific journals Science and Nature have also featured entire articles about the NhRP’s work.

With hundreds of academic publications drawing upon NhRP President Steven M. Wise’s work, especially in the last five years, he has been cited as many times as top professors in traditional/mainstream areas of law, like tax law. Through these citations, we can see concretely how Wise’s and the NhRP’s influence have stretched far beyond animal law and informed novel debates in constitutional law and tort law and in cutting edge scholarship on the governance of artificial intelligence. We can also see that this work is of international significance, with multiple citations in European, Indian, and Australian law journals.

Many of the most-cited and respected jurists of the day have cited and/or engaged with the NhRP’s arguments, including Laurence Tribe (who recently submitted an amicus brief in support of the NhRP), Cass Sunstein, Martha Nussbaum, Sanford Levinson, Richard Epstein, and Richard Posner.

To be sure, some of this engagement has been highly critical, but the overall takeaway is extremely encouraging: there is significant support in legal academia for ending the property status of nonhuman animals and recognizing that they are entitled to fundamental legal rights.

Rejecting Nonhuman Animals’ Property Status

Some quotes I found through my research shatter the idea that supporting the abolition of the property status of at least some animals is some kind of fringe position held only by unsophisticated radical activists.

Laurence Tribe—arguably the world’s most renowned constitutional lawyer—has stated that “chimps and dolphins and dogs and cats are infinitely precious—like ourselves, and … it is unjust … it is obscene and evil to treat them as things that anyone can really own.”

Cass R. Sunstein—the world’s most-cited legal scholar—has argued that animals are “beings with rights of their own,” and that we should work towards a world where their legal rights are clearly recognized, and their legal status as “property” is abolished.

Martha Nussbaum—one of the world’s most cited professors of law and philosophy—has implored that “[l]aw must find ways to make animals legal subjects” rather than “mere things” or “property.”

In a 2014 article that cited the cases of the NhRP and other animal advocacy organizations, Sanford Levinson—one of the world’s most respected constitutional law scholars—commented on the “sophisticated arguments for animal rights” and wondered whether animal rights activists are like slavery abolitionists, and whether society’s views about animals will be “dismissed with contempt by future generations.”

Of course, none of this is to suggest that there is some kind of consensus among legal academics that courts should abolish the property status of animals tomorrow and recognize their fundamental rights under the law. It’s clear that there is no such consensus. But it is equally clear that the legal academy is far more supportive of those ideas than the general public (and much of the legal profession) realizes.

Why Scholarly Support for Nonhuman Rights Matters

This scholarly support matters because, realistically speaking, few judges want to do anything that could be perceived as radical, or out of step with prevailing norms and sentiments of the legal profession. Thus, it is unsurprising that decades of research and debate in academic publications have preceded revolutionary legal and political changes on issues from gay marriage to gun rights, helping to shift minority viewpoints from laughable, to plausible, to the law of the land. It will surely be no different when it comes to nonhuman rights.

In 2018, the idea that at least some nonhuman animals are entitled to at least some legal rights is simply not a radical view in legal academia—the academic literature makes that clear. And it is equally clear that, sooner or later, it will seem archaic to believe that a fair and principled legal system could ever treat animals as “things that anyone can really own.”

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