ABSTRACT
Richard Posner responds to Wise’s arguments by pointing out that Wise has not shown that having cognitive capacity is necessary or sufficient for having legal rights. In Posner’s view, Wise is not urging judges to develop doctrines already implicit in legal tradition but rather to “set sail on an uncharted sea without a compass.” Posner recommends instead that we build on the liberating potential of legal property, because people tend to protect what they own, and that we extend and more vigorously enforce laws designed to prevent cruelty to animals. 1
The “animal rights” movement is gathering steam, and Steven Wise is one of the pistons. A lawyer whose practice is the protection of animals, he has now written a book in which he urges courts in the exercise of their common-law powers of legal rulemaking to confer legally enforceable rights on animals, beginning with chimpanzees and bonobos (the two most intelligent primate species). 2
[. . .] If Wise is to persuade his chosen audience, he must show how courts can proceed incrementally,
building on existing cases and legal concepts, toward his goal of radically enhanced legal protection for animals. Recall the process by which, starting from the unpromising principle that “separate but equal” was constitutional, the Supreme Court outlawed official segregation. First, certain public facilities were held not to be equal; then segregation of law schools was invalidated as inherently unequal because of the importance of the contacts made in law school to a successful legal practice; then segregation of elementary schools was outlawed on the basis of social scientific evidence that this segregation, too, was inherently unequal; then the “separate but equal” principle itself, having been reduced to a husk, was quietly buried and the no-segregation principle of the education cases extended to all public facilities, including rest rooms and drinking fountains.
