Some of My Best Friends are Elephants!

Speaker 0 00:00:02 Love love and love and love. She's big and friendly, love a wrinkled and gray Lovett. And with the great big beat, better can out of the way of the elephant elephant, every sound, the jungle, the elephant with their king sized elephant ears got a nose as long as a Speaker 1 00:00:40 Hello case, squid listeners it's every other Sunday again, and you're listening to sustainability. Now, a biweekly case, squid radio show focused on environment sustainability and social justice in the Monterey bay region, California and the world. I'm your host, Ronnie Lipshitz a couple of weeks ago, the New York state of cor state court of appeals ruled on a petition submitted by the non-human rights project, arguing that non-human animals are legal persons being unlawfully, confined, and as such, they're entitled to the remedy of habeas Corpus. The specific focus of the petition was happy. An elephant that has resided at the Bronx zoo for the last 45 years, much to the dismay of petitioners and many others. The court decided that happy is not a person and has no right to be freed from captivity, but our elephants people do. They have rights, a growing number of peop human people around the world argue that both animals in nature have rights and must be treated with the same consideration granted to human persons. Speaker 1 00:01:43 Not that this is done always and everywhere for humans. That is the topic for today's show. My guess today on sustainability now is professor Matthew Leman associate professor and chair of the justice for animals program at the law school at the university of San Francisco before taking up, uh, his, his chair at USF professor Leman was the director of litigation for the animal legal defense fund, where he litigated animal protection cases, including ground baked, breaking ones to defend the first amendment rights of activists and to establish fundamental legal rights for non-human animals. He's co-author with Bruce Wagman of a worldview of animal law, which examines how the legal systems of different countries govern, govern our interactions with animals. Professor LeMans writing has also appeared in the animal law review the journal of animal law, the Stanford environmental law journal and the animal legal and historical web center. Professor Leman. Welcome to sustainability now, Speaker 2 00:02:43 Thanks so much for having me on, Speaker 1 00:02:45 Uh, why don't we begin with a little bit of background. What is the justice for animals program at the university of San Francisco? And what are your responsibilities as program chair? Speaker 2 00:02:55 Well, the justice for animals program was created about two years ago through, uh, an anonymous donation, um, or a donation from an anonymous donor who is an alum of the university of San Francisco whose life work and mission is the defense and protection of the non-human world. Um, and the donor, um, wanted to endow a position in the law school to foster the study of, uh, the protection of animals through the law and the creation of, of legal rights for, for animals. Um, and so the university of San Francisco school of law, um, initiated a, a search for someone to run that program. And, uh, I was fortunate enough to be hired to do that. I had a career for, uh, about 12 years as a litigator for a group called the animal legal defense fund. Um, I was a, a, uh, in the trenches litigator and then the director of litigation for a number of years at ALDF. Um, and then made the transition to run this program at USF, um, which has the goal of training lawyers, um, training law students to become advocates for animals, uh, through the legal system. Speaker 1 00:04:08 What, so, so what do you do as program chair? Speaker 2 00:04:10 Well, my position is a, it's a tenure track, uh, faculty position. So I teach courses, um, in animal law. Um, I teach a course, uh, on sort of the doctrinal issues in animal law and then another seminar which really digs deep into the, um, theoretical and philosophical issues on animal justice. And then I also teach a course in professional responsibility. Um, we also, uh, want to not just sort of have it be, you know, the academic work of teaching and, and writing scholarship, um, but also making a difference. The, the mission of the university is to change the world from here. Um, so we wanna also create opportunities for students to have, um, um, to, to work on actual cases. So I've maintained a little bit of a, of a legal practice doing animal protection cases. Um, I've, I've recently submitted an Amicus brief and, and, um, uh, major animal rights case about, uh, the rights of an elephant named happy. I'm the lead attorney on a case called justice versus virtue where my client is a horse who is suing for damages. Um, so I, I am trying to keep a, a foot in the practice world in addition to, um, the academic world of teaching and writing. Well, Speaker 1 00:05:25 I'd like to get back to those cases a little bit later in our, in our interview. I, the horse is, is sort of interesting. So who takes your classes? I mean, what sorts of students and what are their particular interests? Speaker 2 00:05:37 Well, it's a wide range of students. Um, some of them already have an interest and familiarity with, um, if not animal law, then at least animal protection issues and animal rights, others are just sort of curious, and it might be that the course is offered at a time that fits in their schedule and animal law sounded interesting. And so they've, um, I'd say majority of the students don't have a preexisting interest in animals. Uh, they just sort of thought the class sounded interesting and, um, hopefully they end up learning a lot, um, both kind of substantively about what the law is for animals. Um, and, and maybe, uh, think a little more deeply about the really complex, moral and ethical issues, um, that, that the courses raise Speaker 1 00:06:21 Well. How did you get interested in animal rights? Speaker 2 00:06:24 Well, my, you know, I, I, I think I've just always had sort of a, you know, affinity for animals, uh, uh, you know, compassionate spot, um, for, uh, for animals. Um, but I really can trace it to when I was about 15. Um, uh, I got a bird, a little, uh, Kanye, a green Kanye, which is a small parrot, uh, named chaplain. And I, I was, was, I didn't have, we didn't have a lot of pets growing up. We had, you know, a few hamsters here and there. Um, but, but, um, this was really my first pet. Um, so I went to a pet store looking to get a, a pet and, um, um, ended up going home with, with bringing chaplain home with me. Um, and you know, what, knowing what I know now about the pet trade, um, and the bird trade in particular, uh, not something I would do or encourage anyone else to do. Speaker 2 00:07:17 Um, but I didn't know better at the time. And, um, chaplain ended up, uh, becoming really the first companion animal that I had as a, um, you know, a, a, an adolescent and really bonded with him. And it was a moment where I really realized, um, that animals were someone and not something, um, just kind of the amount of time that I spent with him learning his quirks and his personality and his individuality, I think really drove home to me, um, the subject hood of animals, for lack of a, a better way of phrasing it. Um, and that really got me thinking about a lot of the kind of bigger issues and, and animal protection. Um, I, I remember they told me when I brought chaplain home, that in addition to his, um, you know, pellets, uh, and seeds and the fruit that I prepared him, um, he could also eat whatever I was eating. Speaker 2 00:08:09 And so if I was eating chicken, he could have some chicken. If I was eating some hamburger, he could have some of the hamburger. Um, and I went to do that. And something about, it seemed very strange to me that that giving chicken to a, a little bird, um, seemed almost cannibalistic. Um, and, you know, giving him beef was sort of weird because there's no way this tiny little bird in the wild would be taking down and eating, um, something the size of the cow. Uh, and then I had this kind of epiphany that if chaplain shouldn't be eating these creatures because they were too close to him, or he wouldn't be able to kill them that maybe the same thing applied to me if chaplain was so close to the chicken, that he couldn't eat, the chicken, maybe chaplain was so close to the chicken that, that I shouldn't be eating the chicken. Speaker 2 00:08:50 So that sort of started a big, um, uh, a lot of reflection, um, as, you know, 15 year olds do as they start to encounter their own thoughts about the world. And so I, I decided at that moment to go vegetarian, um, and then, uh, in, um, college went vegan, uh, with a philosophy major. And, and, um, I, I had a course in, at the university of Texas in mind body, and we were studying animal minds and we read part of Peter singer's animal liberation. And that really kind of gave me a, a philosophical grounding in what had been sort of intuitive to that point. And so from there, I, I really got interested in both the theory and practice of animal rights and decided to go to law school and, uh, make this my practice mm-hmm Speaker 1 00:09:38 <affirmative> well, of course, um, people have very close bonds with their pets, right? Pets become part of the family. It's kind of like the native American conception of, you know, nature as being part of the family, I guess. And they, of course then get special rights within the family, but this is something much more abstract. It seems to me, animal rights is something, you know, that goes for all animals, presumably would come and talk about that a little bit more. Um, so it's more, it's more abstract. And I think in that sense, it's, it's somewhat more difficult to conceptualize. We both went to the university of Texas, uh, and the same actual liberal arts degree program plan too. But I graduated at about 35 years before you did in 1975, which was only a few years after Christopher Stone published, should trees outstanding. Um, can you say something about that book? Speaker 2 00:10:39 Yeah, so, um, that was a really groundbreaking, uh, contribution to the legal concept of who should matter. Um, Christopher Stone, uh, he passed away in the last year or two, but he was a law professor at the university of Southern California. Um, and in 1972, he published this groundbreaking law review article called should trees have standing and standing, is this legal idea about who matters before the law who counts, who sh whose injuries should be able to give rise to a lawsuit and under traditional environmental and animal law nature and animals don't have standing their injuries don't matter. They can't be plaintiffs who can file a lawsuit to protect their interests. Um, instead what we have to do is find human beings, uh, who have legal standing human beings who have been injured because, you know, maybe they like to recreate in an area that's gonna be developed, or they like to, um, um, you know, swim in a river that's being polluted, but the river itself or the natural area doesn't have legal standing and stone suggested, um, quite persuasively in, in my mind, um, that no, actually entities like, uh, uh, ecosystems, um, and non-human animals should have standing in their own right, uh, to, uh, protect their own interest through litigation. Speaker 1 00:12:07 Oh, okay. Uh, well, in terms of, in terms of that notion of legal standing, uh, a number of people have written about animals on trial for various offenses, including murder during times pass. And I, I found one account from the 19th century that reports the following among trials of individual animals for special acts of turpitude. One of the most amusing was that of a SA or six young ones at LaVene in 1457 on a charge of their having murdered and partly eaten a child now, I mean, does being put on child, uh, trial entail recognition of certain kinds of legal rights or standing for animals? Speaker 2 00:12:48 That's a really fascinating question and a, and a very curious phenomenon. Um, it, it, and, and this is, you know, basically in the middle ages. Yeah. Um, and mostly ecclesiastical courts, which were religious courts, um, where in continental Europe, there were animals put on trial for their transgressions against humans. Um, and some of them were kind of individual, as you mentioned, you know, a pig that, that kills someone, um, being put on trial and, and, uh, I think usually convicted and then killed. Um, but sometimes it also helped happen to like groups of animals. So there would be sort of, you know, flock of rats. I don't know, flock is the right term for a group of rats, but, um, uh, or, um, you know, cicadas might be put on trial for destroying crops. Um, and, and yeah, there's a really interesting kind of question of whether that conception of animals under the law might be in some ways more progressive than our current conception, which is that, um, animals are, are property and things, and don't have any legal personhood or legal subjectivity. Speaker 2 00:14:00 Um, you know, I would say that those are it's, it's essentially a kind of what some people have called negative legal personhood, um, which means that they have the obligations, but, but not the rights. Um, so, you know, if we think about personhood as, as possibly being both having legal rights, but also having legal obligations, um, these sort of animal trials reflected animals as having obligations to humans, but no rights against humans. So that pig, for example, had no right not to be eaten. Um, at that point in time, probably not even a right, not to be treated cruelly or abused, um, but it did have a right not to hurt human beings. Um, and so this, this, there is a sense that animals did have some intentionality that they could be held responsible for. Um, but that was only used to, you know, hold them accountable. Um, but it's really, it's a very interesting phenomenon and it, it sort of faded out, um, in the era of the enlightenment and got replaced with the sort of Cartesian idea from Renee Decart that animals were just automatons rather than sort of intentionally acting subjects. Speaker 1 00:15:07 But it seems to me that that putting an animal or a group of animals on trial, uh, connotes intent, right. That there's some kind of, of consideration or as sentience and the animal decides it's going to do this, right. It's going to eat the child, or it's, it's going to eat the grain. The group is going to eat the grain. Um, and of course in our modern system, people can be found incompetent to stay trial because they don't have the capacity to understand a reason. So, um, you know, where do you go with that kind of argument or notion that, that it attributes some degree of Senti, sentience and, uh, choice Speaker 2 00:15:53 To rules? Yeah, I think, you know, it's, it's, it's difficult to know kind of what the motivation was in of these, um, medieval legal systems that were holding animal trials. I mean, some people say that they were really just trying to, um, kind of impose a human order on a chaotic world. Um, and that this was sort of a way of taking something that is rational and controllable. That is the human legal system and imposing it on something that is uncontrollable. That is, that is animals mm-hmm <affirmative>. But another way of looking at it is the one that you suggest that there's sort of a, an idea that animals have a degree of intentionality, and maybe they would be deterred, uh, for example, by knowing that that other pig down the street got prosecuted when it bit the kid. So maybe I should hold off from, from biting this kid. Um, you know, if I don't know that that's kind of the motivation, um, or, or what the ecclesiastical Juris thought animals were thinking. Um, I think it's probably more likely that they just sort of wanted to do this sort of performative idea of putting nature on trial as a way of imposing human control on the natural world. Um, but, uh, yeah, like I said, in some ways it is a more progressive idea of animal legal personhood than what we have right now. Speaker 1 00:17:09 So what does the term rights actually mean? Then we take it for granted, but we rarely sort of ask about the, the concepts history or function. And so where do rights come from? Where did they originate? Speaker 2 00:17:24 That's a really, um, complicated question and it really depends on that's why Speaker 1 00:17:29 I asked. Yeah, Speaker 2 00:17:30 <laugh>, it's a good one. Um, it depends on, on how one conceives of what a right is and whether you mean where do they come from in the normative sense or where do they come from in the historical sense historical? Speaker 2 00:17:42 Um, yeah, I mean, historically we see this concept of individual rights arising probably initially in the Magna Carta in the 13th century in England, but we have these other kind of manifestations of, of declarations, of individual rights in, um, um, kind of Western jurisprudence in the, the 17 hundreds and, and, and the 18 hundreds you have the, um, you know, in the 17 hundreds, the declaration of independence in the us constitution, um, the French, uh, rights of man, which is obviously gendered and, and maybe not accidentally. So, um, so this idea does kind of arise in a particular historical social context, um, to sort of describe an idea of, um, frankly white male property owning humans and the dominion and despotism they have over the rest of, uh, the world human and non-human. Um, and obviously that suggests a pretty problematic, um, way of framing rights. Speaker 2 00:18:46 There's another way of looking at it though that rights are simply the legal protections that, that individuals have, um, against each other and the government, um, and in some ways that can be used for progressive ends. And, and, you know, we can talk about, um, you know, the, the claiming of rights by, um, marginalized and oppressed individuals as a way of kind of, um, um, fighting back against power and oppression. So there's, there's kind of different ways of looking at rights and different ways of conceiving of rights. One distinction that I would wanna make is that between, um, legal rights and moral rights. Yeah. Um, so I think, you know, when we're talking about, um, um, moral rights, we're, we're thinking normatively about what should be the case. And so we would sort of think about, um, kind of from a position of moral philosophy or ethical philosophy, what is a person or a group or community entitled to as, as, um, uh, the kinds of beings that they are, that would be kind of the moral question. Speaker 2 00:19:43 The legal question is maybe more descriptive where we say, um, what is it that the law provides? What rights does it give to an individual or a collective? Um, and those, um, um, are quite distinct from, um, from moral rights. There could be moral rights without legal rights. Um, frankly we saw that, uh, recently with the, the overturning of Roe versus Wade, that many of us believe that there is a moral right, um, for pregnant people to control their destiny, to control their bodies, to make decisions about their future. Um, but as of, uh, Friday morning, that's no longer, uh, a legal right in the fundamental sense, uh, protected by the us constitution. Um, so thinking about the distinction between moral and legal rights, um, I think is, is important, um, both in the context of animal rights, but also more broadly, Speaker 1 00:20:36 Uh, I would say that the, um, the decision, the Supreme court's decision though illustrates, uh, political struggles over rights, um, they can give, they can take away. And, um, and that then is about, is about power, but, um, liberal societies like ours are then premised on private property, right? And this, the, in some sense, rights then become, uh, ownership of the bodies, individual ownership of the body. As you were talking, I was thinking about the enclosure of the commons as an example, in which, uh, tenants and, and villains went from being the property of the Lord to being autonomous individuals, right. And then migrating to the cities because they no longer had work, they'd lost their land, right. And then, uh, being granted certain rights and responsibilities as a, as a means of control it, wasn't just simply, they're now free individuals. They're free individuals who we have to control. Speaker 1 00:21:40 And the consequences of that, uh, are seen in the, um, English civil war, right? When, when groups like the levelers demanded full, uh, rights of autonomy, um, and social rights as well. Uh, I'm lecturing. I, I, sorry, you know, I want to, don't want to do that too much. Uh, but, but that whole sort of connection is, is kind of interesting, but to go back to this, this, um, you know, issue a, B abolition of slavery was based on the proposition that no human being should own the body and labor of another human being. Um, and John lock then refined that to say that, uh, one's labor is one's own property, except if it's a servant who you're paying and then the servant's labor is the property of the person who's paying for the work, of course. Um, right. But then, but then rights then comes into come out of this notion of property in the body. And isn't that a tricky and problematic basis on which to infer a whole range of both human rights and then animal rights. Speaker 2 00:22:50 Yes. I, I mean, I think it's certainly, you know, the history of the origin of rights and their linkage with the ownership of private property. Um, as I mentioned, it kind of arises in an era of, um, colonialism and expansion. And before that feudalism, um, where that conception of, of rights is stemming from the sort of strictly autonomous self controlling individual, um, I is sort of descriptively problematic, right? None of us are truly autonomous. We're all dependent on, um, um, you know, the, the help of, of others, um, both for recognition of ourselves and also through, you know, just the ability to exist in society. Um, and so I think sort of founding rights on an idea of individual ownership of, um, the body and labor is sort of descriptively, maybe incomplete. Um, but I don't think that's the only way of framing rights. I mean, as a, you know, former litigator, I guess, still a litigator, you know, I, I think of it a bit more pragmatically, um, as rights are simply the protections that, um, have been in a legal sense, legal rights are the ENT environment of protected moral rights for the sake of the individual. Speaker 2 00:24:12 Um, and so to say, for example, that, um, you know, a non-human animal has a right not to be treated cruelly is just to say, there is a statute that says it's illegal to treat an animal in a way that is cruel. Um, and most of those statutes were passed with a recognition that animals, um, count morally, um, not necessarily that they have full equality with human beings, but these are protections passed for the sake of the animals themselves. Um, and that I think qualifies as a legal right. Um, so the way that I think about it is a legal right, is simply a protection for the sake of the other that creates a duty on someone else. And so because, um, the legal system has in some ways, um, certainly in completely and insufficiently, but created protections for animals that impose duties upon human beings, the duty to not abuse animals, the duty to offer, um, appropriate food, sufficient water, um, adequate shelter, um, that those are, uh, at least a form of legal rights for animals that is not, uh, necessarily beholden to this sort of, um, kind of idea of rights, um, that has the, the problematic history that you're describing. Speaker 1 00:25:31 Uh, but, um, you know, rights were also justified under the notion of natural law. I think weren't they, and, and, uh, you know, natural law invoking that is to make it invi right, is to make a right in violent because it's a transcendent source. You can't appeal. It's just there. Um, the historical perspective, which obviously I prefer is interested in how, how these changes, how these ideas and changes were rationalized to who they served. And, and the, in the case of rights, you mentioned obligations, uh, and duties doesn't there have to be a human being to recognize a right of another or the right of an animal. I mean, animals are not going to say we have rights, at least as far as, not yet until communication improves. So it's a kind of a, a, a duty imposed or an obligation imposed on a human beings, which means that it's mostly, well, it's kind of, kind of shaky. It seems to me, I'm, I'm not sure where I'm going with this, but, uh, Speaker 2 00:26:53 Yeah, I mean, I think there is sort of a, um, you know, the, the recognition would have to be through the human legal system, right? So there's, there's always going to be, um, sort of a human mediation between the rights of animals and the legal system. And it may be, you know, I'm a bit agnostic on this question of whether there is such a thing as rights, um, in the absence of, um, sort of positive law. So there's this debate between natural law and positivism, which is, you know, are there these transcendent things called rights? That's, inhering deep in my Boso, or is it just sort of this materialist thing that we have convinced the government to recognize or convinced each other through social structures to recognize? Um, and you know, a lot of people, a lot smarter than me have spent their careers trying to, to sort through that. Speaker 2 00:27:44 And I, I sort of throw up my hands and say, you know, I don't know. Um, I think there's a utility to saying there is such a thing as, as natural rights, but, you know, it's not a material property that one could identify. Um, so it gets tricky. Um, so, you know, I would say at the very least rights could be a social construct, um, that we recognize through social systems and legal systems. Um, and if we can use those structures, which are inherently, uh, um, mediated through human beings, if we can use those to alleviate animal suffering, to recognize the capacity of animals to flourish, to protect their, what I think is their inherent dignity. Um, then that's a, uh, a good thing to do. Speaker 1 00:28:31 I, I didn't wanna give you the impression that I believe in natural law <laugh>, um, but, but it's interesting just to get back to the Supreme court decision that they did not invoke natural law, they invoked historical precedent. Right. Which again, uh, it seems to me is problematic, right? I mean, you could, they could have said, uh, the fetus as, as is argued, right? The fetus has this natural law, right. Not to be killed, but they didn't do that as far as I know Speaker 2 00:29:05 Mm-hmm Speaker 1 00:29:05 <affirmative>. Um, but on the other hand, history then acquires a sort of transcendent quality, right? You attribute to history, the cause of this decision and, you know, that can't be changed. I mean, it's a sort of interesting, uh, contradiction. It seems to me. Speaker 2 00:29:28 Yeah. And, and of course, history is as subject to interpretation as our interpretations of, of natural law or inherit rights as we saw the day before, um, the Dobbs case with the, the New York gun control case, which is, you know, justified by, uh, sort of originalism in history, but the, the scholars of the second amendment and the idea of gun regulation, um, you know, being a, uh, forbidden thing and the context of an individual, right. To bear arms, um, I think has been pretty clearly manufactured by the Federalist society and, and others to reach a particular political endpoint. So, um, you know, a lot of this stuff is incredibly malleable. Speaker 1 00:30:11 Yeah. Well, I mean, that gets back back to the idea, perhaps cynical idea that, that the law positive law, uh, is simply the means by which the powerful controlled, weak, right. I mean, uh, but I wouldn't, I'm not attributing that to you. Speaker 2 00:30:27 Yeah. I mean, I, I, I think in many cases it is, but it's all because that is one of the battle grounds, um, of sort of this cultural war, uh, that it is one that should be engaged by, uh, progressives and, and animal folks as well. I mean, in some ways it is a rigged game, but in other ways there are ways to make, um, gains. I mean, we had 50 years of protection of the right to an abortion because of agitation and, and litigation that enshrine that as a right now, as we're seeing, that's not permanent, uh, these sort of culture wars continue to rage even after the right has been supposedly established. But for 50 years it was, uh, protection that that many people benefited from in material ways. Speaker 1 00:31:19 Some people are, are to get not to get completely off topic, but I know some people are comparing this to the, to BR brown versus board of education case in which, uh, the denial of a particular right, which had become deeply entrenched right. Was overturned. And I mean, it caused a lot of political political uproar for, you know, years and years afterwards. And I think also of dread Scott, right. As being these kinds of, of major, major decisions. It's just that we didn't expect it in our lifetime, I suppose. Yeah. Right. And, and grew up with the idea that rights are in violent. Um, and once recognized can't be changed, it's a, it's a, an object lesson let's go onto a different and more cheerful topic. Tell us some more about happy and the elephants in the Fresno zoo and the horse. Speaker 2 00:32:18 Yeah. So, um, you know, as I mentioned, there is, uh, extensive litigation, um, really trying to recognize, you know, kind of the idea that Christopher Stone suggested 50 years ago. Um, interestingly, uh, the year before Roe was decided, um, that there should be legal personhood beyond the human, beyond just individuals or, or corporations, um, that recognizes kind of the inherent value, um, of the, the non-human world. Um, and so I've been involved in a couple of cases that, you know, much of my career was in animal protection litigation. So cases that were trying to enforce, um, protections for animals through statutes like the humane methods of slaughter act or the endangered species act, um, the animal welfare act, state, anti cruelty laws, um, and that's sort of what, what some people call animal protection law or animal welfare law. There's another area, um, which is maybe under the umbrella of animal protection law, but, but quite distinct, which is animal rights law, which is trying to establish legal personhood and legal rights for animals. Speaker 2 00:33:36 And a couple of those cases, um, are the ones that you mentioned, um, um, brought by the non-human rights project, uh, to seek a writ of habeas Corpus on behalf of animals that the non-human rights project argues are unjustly confined. So they brought a series of cases in New York. Um, first on behalf of chimpanzees, then on behalf of elephants, they've also done cases in, uh, Connecticut and recently filed a case, um, in California against the Fresno zoo. Um, all trying to get courts to recognize the legal personhood of, uh, at least some animals based on their capacity for autonomy, um, and the principle of equality. So if the law says, we ought to treat like cases alike, and if animals have some of the same capacities and capabilities as human beings, including the capacity for autonomy, for, to make decisions that that govern their own lives. Speaker 2 00:34:34 Um, although again, we come back to Dobbs about whether that's truly a concept that the legal system recognizes for all human beings. It doesn't. Um, but if, if we at least recognize that principle, in some cases, maybe that ought to be extended to, uh, animals as well. Um, so the happy case is one on behalf of a, an elephant named happy who was kidnapped from, uh, Thailand, um, in 1972. It's interesting how that year keeps coming up, um, how serendipitous, but, uh, she was taken from the wild, brought to the United States, um, put on display at a safari park, um, along with a number of other, other elephants, they all had names of the seven dwarves, which is how she became happy. Um, but it is a, a misnomer. Um, she was brought to the Bronx zoo, uh, in the mid seventies and then has been there ever since. And for the last several years, she's been by herself, which is torture for elephants. They're incredibly social matriarchal animals. And to confine them, um, by themselves, uh, causes pretty severe psychological distress. Speaker 1 00:35:39 We, we might mention that her companion died a few years ago, right. She had a companion in the enclosure Speaker 2 00:35:45 That's right. Speaker 1 00:35:46 And, and, but this case is doesn't relate to that at all. I suppose. I mean, this petition. Speaker 2 00:35:54 Yeah. So it's just in regards to, to happy, there is one other elephant at the, the Bronx zoo, just to be clear, an elephant named Patty. Um, but they don't get along. So they're housed separately. So it's, it's, it's bad for both happy and for Patty. Um, but the, so the non-human rights project filed for a writ of habeas Corpus to have happy, transferred from the Bronx zoo to a sanctuary, um, that would more, um, better take care of her, uh, and meet her, her needs. Um, the New York court of appeals, which is the highest court in the state just ruled, um, uh, about a week ago against happy and found that she was not a legal person and could not be granted a writ of habeas Corpus. Um, so, uh, unfortunately that case has met the same fate as the prior cases on behalf of chimpanzees, the case in Connecticut on behalf of elephants. So unfortunately the courts have, have not been ready to recognize legal personhood for, for animals, but there have been a couple of dissents that have given one hope that at least some judges are starting to recognize the, the claim for legal personhood for non-humans Speaker 1 00:37:00 Have the rights of animals been recognized anywhere in the world. I mean, these kinds of rights. Speaker 2 00:37:06 Um, yes. So there is, uh, a case out of Argentina, um, on behalf of a chimpanzee. Um, uh, and then there's a, a Renan case, and then a bear case out of Columbia, I believe mm-hmm <affirmative>, um, that have recognized, um, habeas Corpus rights for animals. So interestingly, um, countries in Latin America, um, have been much more receptive to the idea of animal legal personhood, um, cases out of India have recognized legal rights for animals. And there's a case, um, out of Pakistan that recognized, um, legal rights for an elephant named Kaban. So, um, these arguments, haven't gotten a lot of traction in us courts say for a couple of dissents. Um, but in other jurisdictions, they are meeting with, um, uh, more success, which, um, one could speculate as to the reason some have suggested that it has to do with the extent to which, um, Western legal systems are kind of beholden to an anthrop percent that may be less deeply woven into other legal systems. Um, or it may just be the, uh, you know, circumstances of, of the individual judges. But, um, it's, it's interesting to, to note where there's been success and where there hasn't Speaker 1 00:38:28 Do these countries follow the Napoleonic code. Speaker 2 00:38:31 So, uh, Argentina is a civil law country. Mm-hmm <affirmative>, uh, the others, um, India is a common law country. Oh, okay. Um, so there's, there's a split between civil law and common law. Um, but it kind of both there have been victories in, in, Speaker 1 00:38:45 In both. Yeah. Oh, okay. Okay. Um, well do all living beings have rights then? Um, you know, mosquitoes ticks it's and so on? Uh, Speaker 2 00:38:58 Yeah, it's a, it's a difficult question. So, you know, if we're talking about legal rights, the answer is an unequivocal. No. Um, you know, there's, to my knowledge, no country in the world that protect gives legal protections to mosquitoes or ticks, um, outside of sort of, uh, if they were endangered, maybe there would be prohibitions on, on killing them. Um, but do they have moral rights, uh, is an, an interesting question for me. Um, you know, I think about these, uh, about the basis for moral rights being whether or not an individual has interests and that stems from whether or not they're sentient. So as far as I'm concerned, any individual being that has the capacity for pleasure and pain has an interest in not feeling that pleasure and pain, and that gives rise to a right to consider that pleasure and pain. This is, um, you know, an idea that, um, derives from kind of a utilitarian idea of, of what counts and what, what matters. Um, so I would say to the extent, I mean, I don't know what the science is on the Senti of mosquitoes and ticks. Um, but I will also say even if those animals, I mean, I will say those animals are morally considerable. Um, Speaker 2 00:40:19 I also think there's some value to the precautionary principle, uh, which is the idea that we ought to tread carefully, especially in areas where we don't know very much. And I think given our limited knowledge about animal consciousness, animal suffering, animal pain, uh, their ability to experience the world, um, you know, there's this idea of the, um, belt of each individual animal, the kind of clearing of their existence. Um, and if that is the case for these animals, we oughta consider them. Does that mean you can't kill mosquitoes to prevent malaria? No. Uh, you know, I don't think rights are absolute, even human rights are not absolute. Um, and so sort of thinking about what the trade offs are in any given case is gonna present problems and challenges and sort of how we move forward and make policy choices. But I do think we ought to ethically consider the interests of, um, everyone involved in our decisions, both at the level of individual creatures and at the level of species, and even at the level of ecosystems and, um, um, natural entities. Speaker 1 00:41:28 You use that term unwell mm-hmm <affirmative>. Can you explain that just briefly? Speaker 2 00:41:33 So that is an idea that comes out of a sort of early 20th century, um, biologist, uh, named Yucca VA. I, I can never pronounce his last name. Right. Um, but it's, uh, uh, it's sort of is having a bit of a Renaissance. There's this new book, um, by a guy named ed young, who's a science journalist for the Atlantic. He has a new book out called an immense world, um, where he uses this concept of the, um, belt, which is kind of the, the experiential life world of each individual animal kind of the, the, from the perspective of that individual animal, what does the world look like? So my house, for example, looks very different to the human beings who live in it compared to the dog who lives in it, right? The dog is much more, you know, her construction of what our house and our space looks like is gonna be driven by the smells. Speaker 2 00:42:23 The sounds much more than by what things look like. Um, the colors are gonna be very different from her perspective than from the perspective of my son, uh, or my daughter or my wife. And so, um, each individual, uh, has their own Unal, their own kind of clearing of the world. And that experience is gonna be different depending on species and depending on sort of one's own kind of personal history and biography. Um, and so to sort of create a ranking of, you know, this animal is more important than that animal, you know, chimps are more important in pigs, cuz they can recognize themselves in a mirror is, is kind of a, you know, fools errand in my opinion, like different animals have different capacities based on their evolutionary history. Um, and to sort of create a hierarchy is, is gonna be a challenge. Now, if you ask me, is it better to kill a mosquito or a chimpanzee? I'm gonna go with killing the mosquito. Um, but it it's difficult to, um, um, you know, there's a lot of philosophical, ethical issues that to, to, to sort through that, that I don't really have the answers to. And some of it is, is more intuitive and some of it's more rational. Speaker 1 00:43:35 You, you mentioned that, that this, this, uh, notion treats animals as individuals and not just a species, right. Mm-hmm <affirmative> and so, so individualism rears its head in this particular area, right. Which, which in some ways may be itself part of the problem. Um, but I, I either there are religions, Jainism, and some variations on Buddhism, which refrain from killing anything right on the principle of possible reincarnation. Right. You never know mm-hmm <affirmative> um, and, uh, we're sort of seems like we're sort of getting into that particular area with this kind of, you know, individualist, uh, regard or individual regard. I, you know, I, I don't know if it's a problem, but, uh, that then suggests that you can differentiate between, you know, animals and a species. Speaker 2 00:44:35 Yeah. I mean, I, you know, personally, I don't have a commitment to tho that metaphysics of, of reincarnation. Speaker 1 00:44:41 I'm not suggesting it, I'm just raising it. Speaker 2 00:44:43 Yeah. Yeah. I mean, I do think that each individual has, that has an experience. Um, we ought consider what that experience is. Now, what we do with that is, is, you know, questions of politics and, and, um, um, you know, ecology, and there's a lot of other questions that are involved. I don't think that saying someone is morally considerable or that they, even if they have rights, foreclosures or pre answers, um, the difficult political and ecological questions that we have to make, um, in living our lives and avoiding, you know, climate collapse and everything else. Um, so I, you know, some people have treated rights as Trump's sort of the end of the question, oh, for mosquito has moral consideration. It has rights. If a mosquito has rights, you can't kill 'em. So, uh, you know, let people die of malaria. You know, I think that's a pretty morally reprehensible approach to take. Um, so I, I think we ought to be open to ethical and moral and legal claims, but I don't think that answers the hard questions that, that we will nevertheless have to address. Speaker 1 00:45:54 We're we're coming to the end of our interview. And in the last few, few minutes, I want to actually raise some, some arguments about the whole question of rights and, and I guess in regard, um, and that has to do with this notion of, of recognition. You've brought that up, but I read this article in a New York review of books about a German philosopher. Uh, who's written about recognition and you know, it's not something that's particularly new, but the idea here, not as, not as they understand it, but as I think about it is that we exist as individuals only by virtue of our relationships with others. Right. And therefore we're, it's kind of like the elephant we're incomplete. Indeed. We're not humans unless we have grown up with, in relationships with others. Right. So there's a sense in which, um, the individual is a product of the society, right? It's this completely opposite. The, the dictum Thatcher's dictum, there is no such thing as society, it's it? And, um, you know, can we extend this notion to the, the world around us so that, uh, we're not, um, the, the, the world is part of us as individuals, right? And as, as a society, and then you don't get into the, the problem of trying to define rights, the, the is, is enough to justify the autonomy of animals. Speaker 2 00:47:33 Yeah. I mean, I, I think this idea of the individual situatedness within a larger community is, is important. And I think, um, you know, we see the same thing in animal communities as well. If you look at, you know, orcas, there's so much cultural transmission or chimpanzees, there's a significant amount of cultural transmission of, of knowledge of learning, how to be a chimpanzee or learning how to be an Orca. It's not just sort of, you're born with this biological programming and you do it. Um, there is, um, you know, a sort of recognition of the self within the, the community or the, the troop or whatever it might be. Um, and so I think that that makes a lot of sense in the context of animals. I also think it's a good sort of rationale for recognizing animal personhood. There's a philosopher Martha Nuba, who writes about animal's capacity for, for flourishing as the kinds of individual beings that they are. Speaker 2 00:48:32 And that idea of flourishing within your own kind of capacities, to me makes a lot more sense than the sort of linear individualist sort of ranking of animals based on who can recognize themselves in a mirror or who can do math problems or who can use sign language, or, or what have you. Instead, we ought to recognize the animalness of animals. Mm-hmm, <affirmative> not the humanness of animals. That's not the basis for legal rights. The basis is that they have the capacity to, to, to flourish as the kinds of critters that they are. And we ought to respect that and recognize it to use the, the language of recognition mm-hmm <affirmative>, um, in law, and say that infringing on the ability of the animal to flourish as an animal is an issue of, of justice and one, the legal system ought to be concerned about. And so recognizing animals as legal persons with legal rights may look individualistic, but I think is a way of creating the space in which animals can flourish both individually and within their own communities in a, in a collective sense as well. Speaker 1 00:49:46 What was the story with the horse? Speaker 2 00:49:49 Yeah, so the horse, that's a case that I've been litigating, um, for a number of years, um, uh, with the animal legal defense fund where, um, there's a horse named justice who was a victim of animal cruelty. His owner left him out. Uh, this is in Oregon, left him out in Oregon winter, um, with no food, no water, um, no shelter from the elements. Uh, he lost a bunch of weight. He was 300 pounds underweight when he was rescued. Um, he was emaciated had frostbite on his genitals, um, real, real bad shape. And he was fortunately rescued and nursed back to health. Um, and, but he has sort of lifelong veterinary injuries that will require some, some care, uh, both physical and, and psychological. And so we filed a lawsuit with justice as the plaintiff justice is suing his former owner for damages. Um, that would be put into a trust that could only be used, um, for Justice's care and comfort. Speaker 2 00:50:54 So he would essentially, uh, it's a tort lawsuit. You know, if someone were the victim of a crime, an assault say they could Sue the person. In addition to that person being criminally prosecuted, if they were, there's a separate civil action where one could recover financial damages, that would then be used to sort of write the cosmic wrong of, of the injury, but also tangibly, uh, create, give them resources to counteract, uh, the harm that they've suffered to pay their medical bills. Um, and so we filed a lawsuit on Justice's behalf, um, essentially a negligence action against, um, uh, the former owner arguing that she should have to pay for his medical bills and put money into a trust to, to care for him into the future. Um, the case was dismissed, uh, on, um, for lack of standing and on the argument that an animal can't be a legal person that can initiate litigation. Um, it's currently pending before the Oregon court of appeals. Um, we expect a decision relatively soon, um, but also anticipate that it could go up to the Oregon Supreme court, um, for further consideration and litigation. Speaker 1 00:52:02 Well, in our last couple of minutes, maybe you can tell us what you're working on right now. Speaker 2 00:52:07 Yeah, so, um, my scholarly work right now is focusing on two issues. The first is, uh, kind of the issue we were talking about before, which is the utility of litigation for social movements, um, whether or not, uh, suing, um, to establish precedent or to, um, contest oppression is a valid and effective movement, effective tool for social movements, um, seeking liberation. And I use a case study from the animal law movement to argue, um, essentially that litigation is an important tool in the toolbox, um, that it, it is by no means, um, a pathway in and of itself to liberation, but that it can be, um, used situationally and critically to, um, further the goals of social movements and to liberate individuals. So I look at a case study that shut down a roadside zoo and led to a bunch of animals going to sanctuary to show how litigation can have tangible effects for social movements. And then the other piece that I'm working on right now is on animal plaintiffs. So it's really addressing all these questions of whether or not animals can be plaintiffs. Um, do they have rights? Are they legal persons? Um, and what are the kind of practical and political considerations of recognizing them as, uh, participants in litigation? Speaker 1 00:53:28 Well, professor Leman, I want to thank you so much for being on sustainability now. It was a fascinating discussion. Speaker 2 00:53:35 My pleasure. Thank you so much for having me Ronnie, Speaker 1 00:53:37 And I'll, we'll keep track of what you're up to. So until next every other Sunday, sustainability now Speaker 0 00:53:48 Love and love and love. Love she's big and friendly, love the wrinkled and gray love. And with the great big beat, better can out of the way of the elephant elephants, every sound in the jungle, the elephant ears with their block be king sized, elephant ears got a drunk or a nose as long as a hose, the.