Monkey Trial: Redefining a Jury of Their Peers

Here is a courtroom scene that lawyers in the fledgling field of animal law say will unfold sometime soon.

A great ape will appear in the courtroom. A lawsuit, perhaps protesting the ape's life behind bars, will have been filed in the animal's name. The ape will then testify in sign language or using a voice synthesizer to support the claim that, contrary to centuries of law, it has legal rights, including a fundamental right to liberty.

Fiction? An animal activist's dream?

Perhaps. But a growing group of lawyers and legal academics say they are plotting strategies to bring such a suit, perhaps within a decade. Such a trial, they say, is the inevitable culmination of challenges they are starting to make to the principle that animals are property without legal rights.

"This is going to be a very important case," said William A. Reppy Jr., a Duke University law professor.

"It has never happened before. An animal has never conversed with a judge," added Professor Reppy, who has joined in a briefing about a potential great ape case.

Plans for a new Monkey Trial may never amount to more than a flight of legal imagination. But the plans reveal the strategy of an increasingly credible group of animal-rights lawyers who say the country will be hearing much more from them in the future.

Their goal is to make it intellectually uncomfortable for the legal system to continue to declare that animals lack legal rights because they are property. That simple legal proposition is the foundation for many common human activities, including the eating of meat, the ownership of pets, all forms of animal exhibition, hunting and animal experimentation.

In essence, the lawyers want to challenge the status quo by asking the courts to look closely at great apes, large and intelligent creatures like gorillas, chimpanzees and orangutans that resemble humans genetically. Some of these apes have been trained to communicate with humans. The mere presence of such an animal in court, the lawyers believe, would raise tough questions.

Would mere property -- a stick of furniture, say -- be able to say anything at all in court?

"The idea is to find a fact pattern in which the public can identify with the moral position," said David S. Favre, a law professor at Detroit College of Law at Michigan State University. Professor Favre is a participant in one planning group for such cases, the Great Ape Legal Project, which is part of the Animal Legal Defense Fund, a national organization.

The moral position advanced by some animal-rights lawyers is that the legal system has drawn the line in the wrong place between humans, who they see as animals with rights, and animals without rights.

They say great apes, who most closely resemble humans, pose the question most clearly of whether the law has drawn the line in the wrong place. But if the line were drawn somewhere else -- if apes had some rights, for example -- where would the new line be drawn? Dogs? Cows? Chickens? Lobsters?

For these lawyers, the beauty of a great ape case is that it would open the courthouse door without forcing them to answer such questions about the likes of lobsters and chickens.

Joyce Tischler, executive director of the Animal Legal Defense Fund, said it was too early in the evolution of animal law to know where a new line ought to be drawn. "Where do I stop?" she asked. "My perspective is: I'd like to get started."

She is not alone. An increasing number of lawyers say they are full-or part-time animal law specialists interested in testing the boundaries of established legal principles. There are conferences, legal books and bar committees on animal law. About a dozen law schools now teach animal law, including Harvard, Georgetown, the University of Vermont and the University of California at Los Angeles.

All sorts of lawyers, from pet lovers to budding entrepreneurs, say they are drawn to animal law. Their adversaries say the lawyers should not be underestimated and have substantial financial backing from animal welfare organizations.

"They have decided the courts are available to them and they are very good at it," said William P. Horn, a Washington lawyer and a former Reagan Administration Interior Department official, who often represents hunting groups.

Modest cases, some animal-rights lawyers say, could set the stage for ambitious suits like a great ape case. Some legal scholars, for example, are considering whether the legal system can justify common but arguably cruel farming practices, like the close confinement of animals raised for slaughter.

"Once you decide some farm practices are cruel and animals should not be treated cruelly," said David J. Wolfson, a New York lawyer, "you have to ask: What are animals' nature? And how should we treat them?"

Mr. Wolfson, a mergers and acquisitions lawyer at the prestigious law firm Milbank, Tweed, Hadley & McCloy, has a sideline interest in animal law. He has just published a law review article on the legal issues presented by common farming practices.

In an interview, Mr. Wolfson said raising questions about the treatment of farm animals could be part of a continuum leading toward a great ape suit.

For the moment, lawyers considering a great ape case say they are evaluating very practical legal questions, like whether an ape could be sworn in as a witness.

The problem is that the law generally requires proof that a witness knows the difference between right and wrong. There is not yet proof that a court would be likely to accept that apes understand what humans mean by those concepts.

Steven M. Wise, a Boston lawyer who will teach a course in animal law at Harvard this spring, said one issue is what legal mechanism could be used to file a great ape suit, since the law requires that suits be filed by people with the authority to bring suit.

One solution Mr. Wise proposes is the use of slavery-era statutes that enabled slaves -- legally nonpersons at the time -- to bring suits. The statutes were passed to authorize suits by slaves who said they were held improperly -- because they were white, for example.

Of course, there is also the problem all would-be legal reformers face: finding the right plaintiff for a landmark case. Some lawyers say it is possible that no communicating ape would be mistreated enough to warrant a suit. Some say another case, perhaps involving a different animal entirely, could present itself first as a confounding moral challenge to the legal system.

Then there is concern about what a communicating primate might say in court. "I know they don't talk much better than a 4-year-old," Professor Reppy of Duke said. Last month an orangutan who had been taught to use a voice synthesizer in Atlanta said this: "Please buy me a hamburger."

Given the chance, a great ape might not make an eloquent plea for freedom. But its lawyers would hope that any words uttered from an animal to a judge would be powerful simply because they were uttered.

By WILLIAM GLABERSON
ORIGIN: http://www.law.duke.edu/news/webarticles/08-22-99reppy.htm

Copyright 2003 The New York Times Company

SimpleToRemember.com - Judaism Online