By Steven M. Wise – to Foreign Affairs

Every year, humans inflict tremendous suffering upon other animals. Humans hunt them by the millions, farm them by the billions, and fish them by the trillions. In circuses, zoos, rodeos, puppy mills, fur farms, factory farms, marine parks, and laboratories, humans routinely abuse and slaughter animals. They do this because they can—under the law, nonhuman animals are only “things.”
In The Humane Economy, Wayne Pacelle, president of the Humane Society of the United States, the largest animal protection organization in the country, proposes harnessing capitalism for moral ends. He wants to pressure businesses to treat animals more humanely and provide information to consumers that they can use to purchase products that minimize animal exploitation; in other words, he wants to create a “new humane economy . . . with consumers gently and sometimes urgently pushing companies to do more for animals.”
Pacelle presents impressive evidence of successful campaigns that have helped reduce the suffering of many nonhuman animals. In the mid-1990s, Petco and PetSmart ceased sourcing pets from puppy mills and stopped selling dogs and cats altogether; instead, they now help animal rescue organizations offer pets in need of homes. Ten years ago, Smithfield Foods phased out its use of hog gestation crates, metal enclosures with concrete floors in which breeding sows may spend nearly their entire adult lives. Thanks to pressure from Starbucks,McDonald’s, Walmart, and other businesses, egg producers promised to begin phasing out their use of tiny battery cages in which laying hens can barely move. Scientists are developing plant-based “meats” and “eggs.” In films, computer-generated nonhuman animals are replacing real ones. Ringling Brothers, one of the most successful circuses in the United States, no longer uses elephants. Scientists have developed alternatives to animals for cosmetic and medical testing. Tourists now travel to see whales, lions, and gorillas, not to kill them.
These victories are real, and more will follow. But the humane economy is a temporary solution; Pacelle’s strategy of informing consumers and pressuring businesses to reduce animal suffering is not sufficient in the long run. A legal breakthrough is also necessary.

The law has long classified entities as “things” or “persons.” But “person” has never been synonymous with “human.” Legally, tens of millions of human slaves were once things, while corporations, ships, a Hindu idol, a mosque, the holy books of the Sikh religion, and New Zealand’s Whanganui River have been labeled persons. The distinction is critical: persons have the capacity for legal rights; things don’t. Personhood protects a human’s most fundamental interests. This is why Article 6 of the Universal Declaration of Human Rights states that “everyone has the right to recognition everywhere as a person before the law.” Nonhuman animals will continue to suffer until the law recognizes them as persons.

PERSONS BEFORE THE LAW

On June 22, 1772, a young slave named James Somerset entered London’s Court of King’s Bench. When he emerged several hours later, after the judge, Lord Mansfield, had declared human slavery so odious that the common law would not tolerate it, he looked the same as when he had gone in. But so far as the law was concerned, he was an entirely different entity. Legally, he had entered the court as a thing, but he left as a person.
Almost two and a half centuries after Mansfield’s verdict, the struggle for the formal recognition of universal human personhood has ended; nowhere are there legal human slaves. But the battle to transform nonhuman animal “things” into “persons” has only recently begun. In December 2013, the Nonhuman Rights Project, a civil rights group of which I am president, brought three cases in the trial courts of New York State. In each case, the Nonhuman Rights Project demanded that the court issue a common law writ of habeas corpus, a writ typically used to determine whether the detention of a prisoner is lawful, on behalf of a chimpanzee. One hundred pages of affidavits from chimpanzee cognition experts demonstrated that chimpanzees are autonomous beings. The Nonhuman Rights Project argued that a chimpanzee’s autonomy was sufficient to entitle him or her to the fundamental right to bodily liberty that habeas corpus guarantees. The group also argued that denying an autonomous being liberty was not a legitimate goal of the state and that because such a denial depended on a single characteristic—what species an animal happened to be—it violated fundamental notions of equality. The Nonhuman Rights Project has since begun expanding its litigation to embrace other species of great apes, elephants, and cetaceans and is working with legal and political groups in Australia, Europe, and South America.

The legal struggle to recognize the fundamental rights of humans was arduous. So, too, will be the struggle to recognize the fundamental rights of nonhuman animals, since so many humans benefit from exploiting them. In the meantime, billions of animals will suffer terribly. The work of the Humane Society of the United States and other such organizations will therefore be crucial in the short term to ameliorate their suffering.
But in the long run, the protection of the fundamental interests of nonhuman animals cannot be guaranteed without legal rights, any more than can the fundamental interests of humans.
Sentient beings cannot rely upon markets alone to protect their interests. Pacelle notes that “confronting injustices—from slavery and child labor to segregation to gender discrimination—was a painful and necessary part of our American tradition.” But humane marketplaces remedied none of these injustices. Reform came only when the victims attained personhood and fundamental legal rights.
Sentient beings cannot rely upon markets alone to protect their interests.
Pacelle seems to believe that for most consumers, the welfare of the animals they eat or watch or wear will outweigh the increased cost of treating them more humanely. Yet the number of abused and exploited animals has risen. In the United States alone, nearly ten billion animals are killed every year for food alone, up from less than two billion in 1960. Even if one believes that this trend has leveled off and that progress is ongoing, retrenchment is possible, as popular attitudes change. Legal rights are crucial precisely because they protect the fundamental interests of the rights holder from exploitation as the desires of the majority shift.
What’s more, animals can’t rely on the invisible hand to produce a humane outcome. Time and again, economic interests have led to the exploitation of others, most prominently under slavery. And it is unclear what Pacelle’s backup plan is if the humane economy fails, as it has often done.
Consider the current wildlife crisis in Africa and Asia. Despite the best efforts of groups such as the International Anti-Poaching Foundation, organized criminal syndicates are driving elephants and rhinos to extinction, hunting them for the ivory in their tusks and the supposedly medicinal powder that can be extracted from their horns. Human demand for bush meat, land, and palm oil is driving every species of African and Asian great ape into oblivion. Pacelle believes this problem can be solved “by not buying ivory goods and by traveling only to African countries where wildlife is protected.” Yet that solution will take too long.
Pacelle thinks the humane economy is the solution to the problems that confront every species of nonhuman animal; for chimpanzees and mosquitoes, elephants and cockroaches, orcas and ants, the humane economy will bring progress. But there are some animals, such as apes, elephants, cetaceans, and others, who are so cognitively complex and autonomous, and whose exploitation is so undeniably frivolous, that leaving their fundamental interests to the vagaries of the humane economy for one day longer is grotesque. In these cases, the Humane Society of the United States should be pressing for the establishment of legal personhood and legal rights right now.