Pushing the legal peanut forwards

Although very different in character, these two books have a common theme: pushing peanuts forwards. The phrase is that of American activist Henry Spira, who when asked by Peter Singer, shortly before his death from cancer, what he would wish his epitaph to be, replied: "He pushed the peanut forward. I try to move things on a little."

Singer provides an affectionate overview of this long-term radical who, almost by accident, became involved in campaigning to improve the status and treatment of animals. Singer succeeds in maintaining a certain detachment, although he and Spira were friends and clearly had a high regard for each other's work. Spira was greatly influenced by Singer's seminal work Animal Liberation , first published in 1975, and Singer clearly admired Spira as an individual and as an effective campaigner.

As an historical account of the development of the animal protection movement in the United States in the last quarter of the 20th century, this book might at first seem to have a limited appeal in Europe. At its heart, however, is a message of considerable significance. For, at a time when meetings of the World Trade Organisation, the World Bank and the International Monetary Fund are greeted by large demonstrations, violence which, it has to be said, had precious little apparent tangible effect, Spira demonstrated that the big battalions in government and commerce could be successfully confronted, and their policies changed. In Singer's estimation, Spira's "unique campaigning methods have done more to reduce animal suffering than anything done in the previous 50 years by vastly larger organ-isations with millions of dollars at their disposal".

Spira counted among his successes: the end of pointless experiments on cats at the American Museum of Natural History in New York; opposition to the so-called "Draize test", by which the safety of cosmetics was tested by being placed in the eyes of rabbits, and the equally obnoxious and crude "LD50 test" (the purpose of which is to identify the dose of a substance that is lethal to 50 per cent of the group of animals to which it is administered); bringing pressure to bear to develop alternatives to animals in testing; and, in the 1980s, campaigning to improve the plight of animals caught up in livestock production. Much of this agenda remains unfinished business, but that is not a reflection on Spira's impact. He moved the issues forward, and his values continue to influence campaigners.

Singer demonstrates Spira's method of working. He identified a realistic goal, undertook meticulous research to underpin his arguments and, by the judicious use of demonstrations, advertising, lobbying and the media, put those he was confronting on the defensive, while continuing to negotiate with them. To his credit, Spira understood the world could not be changed overnight and this contributed to his success, but others were inevitably frustrated by the time taken and the rate of progress. Singer chronicles the inevitable splits and disagreements that Spira had with the more extreme and impatient elements within the animal-rights movement. Ultimately, however, Spira not only achieved results, he also succeeded in placing a new issue on the political agenda of the United States. He influenced how people think about other species and the way in which they are used. Singer reveals a man who was not only committed to his cause, but was a brilliant tactician, and it is those tactics that have a continuing application.

Singer's book is, however, largely retrospective. By contrast, Rattling the Cage is a call for future action. Steven Wise is a practising attorney, with considerable experience of fighting for animals' interests in the courts, and an academic who teaches animal rights law at Harvard, Vermont, and John Marshal law schools. He uses this background to the full in mounting a well-supported and far-reaching argument that the legal status of at least some animals (he focuses on chimpanzees and bonobos) should be changed from legal things to legal persons. This is a profound, controversial and, one suspects for many, disturbing proposal (cleverly alluded to in the book's title). Wise uses the image of "a thick and impenetrable legal wall" that for 4,000 years has separated human from nonhuman animals. "We have assigned ourselves, alone among the million animal species, the status of 'legal persons,'" he writes. "On the other side of that wall lies the legal refuse of an entire kingdom... They are 'legal things.' Their most basic and fundamental interests - their pains, their lives, their freedoms - are intentionally ignored, often maliciously trampled and routinely abused."

He points out that the ancient philosophers' claim that all nonhuman animals had been designed and placed on this earth just for human beings shaped our traditional attitudes towards them but, whereas "philosophy and science have long since recanted, the law has not."

Wise contends that it is high time this wall was breached. In developing his argument, he reviews the way in which "the legal thinghood of nonhuman animals" evolved, and its consequences; discusses the nature of legal rights and notions of liberty and equality; analyses the characteristics of the common law; describes our understanding of the meaning and relevance of consciousness; and sets out in detail why he considers chimpanzees and bonobos should be regarded as persons by law. Regardless of whether one is convinced by the thesis, it poses very serious questions about our attitude to other species and raises important issues about the way in which we regard ourselves.

The appropriate vehicle for securing radical change, Wise suggests, is the common law. That is to say, he is looking to persuade the courts that they should take the initiative in developing judge-made law so that at least some nonhuman animals are no longer regarded simply as things. It was, after all, the common law, by defining domestic and captive animals as property, that institutionalised the legal distinction between humans and other species in the first place. If this seems far-fetched, he holds up as an example, the way in which (at least some) judges at the end of the 18th century were persuaded to challenge the orthodox status of slaves as property.

Regardless of one's view of the argument, to the British lawyer there is a weakness in Wise's choice of tactics. He is, of course, writing in the context of the constitutional arrangements of the United States, where the relationship between courts and legislatures is fundamentally different from that in the United Kingdom, and where there is not the same tradition of using legislation to regulate the way in which animals are treated. One cannot help thinking, however, that even if the higher courts in Britain could be persuaded of the merits of Wise's argument, they would consider this to be territory already occupied by Parliament and, that if such a potentially far-reaching reform were to be introduced, it should be done by means of legislation rather than on the initiative of the courts.

Anyone who reads this book will be challenged by the experience. Many may be convinced; the majority, one suspects, will remain sceptical. That is a reflection of the novelty of the proposal, rather than of its merit. Make no mistake, this is a book that has the potential to change minds, and by doing so to influence social, political and legal attitudes. Animals are beginning to be regarded in a different way by the law. They are, for example, now formally recognised in European Union law as sentient beings, by virtue of the treaty of Amsterdam.

Rattling the Cage is a heady and illuminating mixture of science, ethics and law, written in a way that is accessible to those from any of these disciplines, as well as the general reader. It provides the intellectual basis to argue for change - though, as Spira discovered, it may take time to achieve it.

Mike Radford is lecturer in law, University of Aberdeen.