Plaintiff in Animal Lawsuits: Owners or Animals ?
Are there any lawyers reading this blog? I am familiar with the tort named "intentional inflection of emotional distress". Some courts have recognized the emotional distress of an owner whose pet was maliciously killed, and authorized the recovery of damages when appropriate.
For example, in 1985, an Alaskan court ruled:
We recognize that the loss of a beloved pet can be especially distressing in egregious situations. Therefore, we are willing to recognize a cause of action for intentional infliction of emotional distress for the intentional or reckless killing of a pet animal in an appropriate case…
However, the court noted that the animal had the status of personal property:
…since dogs have legal status as items of personal property, courts generally limit the damage award in cases in which a dog has been wrongfully killed to the animal's market value at the time of death.
In contradistinction to the above, what about an animal bringing a lawsuit when he or she(or itself) is the claimant?
One Animal Rights lawyer has proposed a new tort to be used by the animals(plaintiffs) against the humans(defendants). An article in The Physiologist, cited below, describes this tort succinctly as the "intentional interference with the primary interests of a chimpanzee ". Obviously, any such suits will originate by parties other than the directly aggrieved. This is based on a form of "personhood" attributed to animals, which I will elaborate on below.
On a personal note, I suppose that I have never quite grown out of my fascination with animals as a child. Although I have never wrestled with an alligator, I suppose that I share this fascination with a contemporary Jewish author, who turned his childhood interest into a career. In any event, the conflict between medical research groups and animal rights activists, as well as the discussion of "Animal Personhood" has piqued my interest.
An Animal Amongst Others ?
What was the philosophy of secular law toward animal research until the advent of the Animal Rights movement?
According to the Ethics committee of the British House of Lords:
More commonly, there are those who hold that the whole institution of morality, society and law is founded on the belief that human beings are unique amongst animals. Humans are therefore morally entitled to use animals, whether in the laboratory, the farmyard or the house, for their own purposes….. The unanimous view of the Select Committee is that it is morally acceptable for human beings to use other animals, but that it is morally wrong to cause them unnecessary or avoidable suffering…(emphasis mine -BH)
The Ethics Committee does not elaborate upon why humans are unique. Secular humanism, by definition, does not recognize the soul. Man, according to evolutionary theory, merely lies along a continuum with animals.
Assuming that the philosophical underpinning for animal law in Western civilization is not from an external source such as God(as in "endowed by their Creator with certain unalienable Rights" from the Declaration of Independence), then humaneness must be utilitarian and consists of balancing of human needs and animal needs. Nature, "the law of the jungle", or "survival of the fittest", does not assign a value to actions.
However, utilitarians do indeed recognize animal rights. The "greatest possible amount of happiness among the greatest number" would include animals as well. Jeremy Bentham(Eighteenth and Nineteenth Century) was well-known for advocating both utilitarianism and animal rights.
How would a humanist talk of compassion, if in his own terms, it merely served an adaptative purpose? The need to be humane and compassionate in humanistic terms would ultimately be one of an expanded sense of of self-fulfillment. Although it is obviously better than pure hedonism, it has no intrinsic purpose beyond "self-fulfillment".
As Dr. Melaine Joy, writes:
As we widen our psycho-conscious lens to include the nonhuman
world, we may ultimately expand our sense of self, no longer limiting
our so-called individual identity to only our own body or species
but encompassing other beings as well. Developing an expanded
self may, in turn, expand our capacity for empathy, as we grow, psychically,
beyond our selves. ("Humanistic Psychology and Animal
Rights: Reconsidering the Boundaries of the Humanistic Ethic", Journal of Humanistic Psychology, Vol. 45 No. 1, Winter 2005 , pg. 123).
Beyond that, there can be no meaning to compassion and humaneness. The question of humaneness in a secular society in legal terms, was further discussed at the Harvard symposium by Allan Dershowitz.
In contrast, the Jewish value system, is defined in terms of spirituality, neshama and mitzvos. The person, containing a soul, relates with compassion to fellow humans containing a neshama, and ultimately to Hashem, the All-Merciful or the ultimate rachaman.
Furthermore, the Jewish people, tasked with the mission of l'saken olam b'malchus shakai, should be concerned with changing the atheistic view of portions of Western society, even if such change is best made by concentrating on within, and by ripple-effect.
In any event, apparently based on a view similar to that above, of the House of Lords, some groups like the ASPCA, merely seek to minimize cruelty in animals, and do not call for outlawing experimentation. This is called animal "welfarisim", as opposed to animal "rights"(Joy, ibid).
Two Views of Personhood
Steve Michael in "Animal Personhood: A Threat to Reserach?" (The Physiologist, December, 2004) writes from the perspective of the medical research community, and points out the potential threats to research from animal rights activists. As pointed out in the article, there are two types of personhood. One is merely a legal concept which applies to other inanimate objects as well-- corporations, partnerships, and other entities. "Personhood", under this category would be a legal fiction allowing animals(or their representatives) to sue or be sued. However, such personhood would not create new, or additional rights.
Switzerland, is quoted in the linked article as recognizing animals as "beings and not things" in a 1992 amendment. This would seem to be a form of the above type of personhood.
A second, more radical view of "personhood" nearly equates animals with people. This view, as summarized by Michael in the above-referenced article holds that :
certain animals are so much like humans, based upon their mental abilities, they should enjoy at a minimum, the basic legal rights afforded to the least capable humans.
Richard Wrangham, professor of anthropology at Harvard University, explained at a Harvard Law School symposium the idea of nearly equating man and beast using the following thought exercise(based on Oxford University evolutionary theorist Richard Dwarkins) :
Imagine taking your grandmother to the University of Michigan football stadium. I taught at the University of Michigan for a few years so, on a Saturday afternoon, I know that you have an empty stadium that fills up in a couple of hours. You go there with your grandmother and you are the first two people to sit down, and then the thought game is, she has her grandmother sit next to her, and then she has her grandmother sit next to her. You are sitting, chatting passionately to your grandmother, because you really care about sports, and two hours later you feel a nudge in your back, and who is it? There is the person. It is someone very much in the gorilla, chimpanzee, bonobo mold, another big, black, hairy thing that walks on its knuckles and has got a protruding mouth, probably very much like a chimpanzee. We are a great ape.
Two famous stories come to mind:
(1) Rabbi Yaakov Kamintesky explained to Yerucham Meschel, head of Histadrut, the difference between R' Yaakov's grandchildren, who doted on him, as compared to Meschel's, who didn't respect him. The latter's philosophy of Darwinism led to his children and grandchildren progressively devaluing him.
(2) Rabbi Simcha Zissel Ziv of Kelm stated that Darwin could not have said his theory had he met Rav Yisrael Salanter. It would be obvious to everyone that such a transcendent human being, an adam hashaleim, could only be the handiwork of God.
(If you believe that guided evolution--not the subject of this post-- is compatible with the pesukim of Maseh Berieshis, adapt the stories accordingly) .
Also at this Harvard symposium, Steve Wise, an animal rights lawyer and lecturer at Harvard Law School, and author of Rattling the Cage, was asked by Michael :
Under what circumstances would it be permissible to use chimpanzees in medical research? Is it always wrong? Morally wrong? If there were significant and clear benefits for finding cures to serious illnesses, would it then be permissible to use chimpanzees in research?
Well, at least legally, and probably morally, the only time I believe one should be able to use a chimpanzee in research is a situation where one would also use a four-year-old human child. Not many.
Michaels also quotes Roger Fouts, Professor of Psychology and Co-Director of the Chimpanzee-Human Communication Institute, who responded to the above question:
Why are we afraid of death, when it is such a natural thing? Why do we have to take an endangered species [chimpanzees] to help an overpopulated species [humans] to become more overpopulated?
I told this response to a relative who is quick on the uptake. She wryly suggested that perhaps some of the chimpanzees activists might care to volunteer their own lives to help keep in check the overpopulated species of humans.
A Community of Equals
The Great Ape Project is collecting petitions to extend a "community of equals" to all members of the community. Such a community consists of
Rights would include:
- right to live
- protection of individual liberty and
- prohibitions against torture to apes.
As part of "protection of individual liberty" the aggrieved parties who have been detained against their will:
must have the right to appeal, either directly or, if they lack the relevant capacity, through an advocate, to a judicial tribunal.
In Chapter 1 of Rattling the Cage, Wise calls killing chimpanzees murder and genocide:
I hope you will conclude, as I do in Chapter 11, that justice entitles chimpanzees and bonobos to legal personhood and to the fundamental legal rights of bodily integrity and bodily liberty—now. Kidnapping them, selling them, imprisoning them, and vivisecting them must stop—now. Their abuse and their murder must be forbidden for what they are: genocide.(emphasis mine-BH)
One of the goals of the Chimpanzee and Human Communication Institute (CHCI) at Central Washington University(linked above) is to:
encourage in other humans respect, responsibility, and compassion for all of our fellow apes by offering unique, engaging educational programs and resources to elementary, secondary, and post-secondary students and the public at large(emphasis mine-BH).
Protecting Animals from Other Animals ?
According to Cass Sunstei, University of Chicago Law School Professor of Jurisprudence, at the above Harvard Law symposium , people might have an obligation to protect animals against their predators:
… animals' freedom of choice might indeed impose on human beings an obligation of protection, to the extent that it is costless, against predations of other animals. If a domesticated animal or wild animal is about to be killed by a predator, and we can prevent the murder (emphasis mine-BH) without cost, why not? Why ought we not say that the rights run against third parties that are animals, as well as third parties who are human? I have a fear that in some pockets of the animal rights movement there is a romanticization of natural processes, which often are in animals interests compared with human processes but not always. Nature itself is often cruel, and if we can reduce the cruelty, by all means we should.
Not Homo Sapiens
The Torah permits us to use make use of animals for human benefit while enjoining us against Tzar Balei Chaim(see here, halacha # 13). I have seen a reference to an article on animal experimentation in Tradition by Rabbi J. David Bleich(1986 Spring;22(1):1-36), and the topic is covered more recently, I believe, in Rabbi Natan Slifkin's "Man and Beast".
Rabbi Berel Wein(Living Jewish, pp. 278-280) has noted that polio research would not be possible without the rhesus monkey. Parenthetically, it is also interesting that according to this 1956 article, at a certain point, India was considering regulating export of monkeys due to the sacredness of monkeys to Hindu's. However, India was the first chosen by President Eisenhower to receive the formula of the Salk vaccine, because of the role Indian rhesus monkeys imported into America played in the development of the vaccine.
Rabbi Wein, in the above article, writes that the Torah demands balance and perspective in general, and that this applies specifically regarding man's relationship with the animal world. He notes that animal researchers may be cruel to people as in the Passuk : "Those who kiss the calves are those who slaughter humans"(Hosea 13:2). Obviously a balance is needed.
Similarly, the following is told about Rav Yeruchum Levovitz in this linked article :
On a visit to inter-war Berlin, Rabbi Yerucham Levovitz of Mirrer witnessed household pets dressed in pants and sweaters. He commented: "Where they treat animals as humans, in that place they will slaughter humans as animals," and he quoted the verse "Those who slaughter men will kiss their calves" (Hosea 13:2).
Sometimes, one sees dogs being walked that have protective clothing on their bodies in the winter, to keep them warm in the bitter cold. I imagine that Rav Yerucham was not referring to such type of clothing.
What distinguishes the Torah attitude from even the moderate secular attitude is that a man has a Divine Spark, Tzelem Elokim, and is able to choose between good and bad: vayipach b'apev nishmas chayim, God breathed into man a part of Himself, as it were. Thus we reject merely being "unique among animals", as described above by the British House of Lords.
Nevertheless, the Torah instructs us about Tzar Balei Chaim. Animals may not have "personhood" in the sense of animal rights activists, but we are instructed to be careful, in the stewardship granted to us over the earths resources, and not to cause unnecessary pain to any creature.