On Monday at 10.00 Eastern Time, the Nonhuman Rights Project filed suit in Fulton County Court in the state of New York on behalf of Tommy, a chimpanzee, who is being held captive in a cage in a shed at a used trailer lot in Gloversville.
According to the NRP, this is the first of three suits they are filing this week. The second was filed on Tuesday in Niagara Falls on behalf of Kiko, a chimpanzee who is deaf and living in a private home. And the third will be filed on Thursday on behalf of Hercules and Leo, who are owned by a research center and are being used in locomotion experiments at Stony Brook University on Long Island.
The organisation, led by the animal-rights lawyer Steven Wise, is using the writ of habeas corpus on behalf of the animals to ask the judge to grant the chimpanzees the right to bodily liberty and to order that they be moved to a sanctuary where they can live out their days with others of their kind in an environment as close to the wild as is possible in North America.
| Updated (10 December)|: The judge has declined the application for habeas corpus. According to Steven Wise, Judge Boniello said “that ‘I’m not going to be the one to make that leap of faith.’” Yet Boniello, who decided that chimpanzee personhood is ultimately a matter for legislatures to decide, was also “unexpectedly sympathetic”, calling their arguments sound and wishing them luck. “I’ve been in a lot of cases, and there’s not been many where the judge says, ‘Good luck.’ Usually they just say, ‘denied’.
They compare their case to that of the 1772 court battle concerning an American Slave, James Somerset, who had been taken to London by his owner, escaped, was recaptured and was being held in chains on a ship that was about to set sail for the slave markets of Jamaica. With help from a group of abolitionist attorneys, Somerset’s godparents filed a writ of habeas corpus on Somerset’s behalf in order to challenge Somerset’s classification as a legal thing, and the case went before the Chief Justice of the Court of King’s Bench, Lord Mansfield. In what became one of the most important trials in Anglo-American history, Lord Mansfield ruled that Somerset was not a piece of property, but instead a legal person, and he set him free.
NRP maintain that they have a strong scientifically based case.
While our legal petitions and memoranda, along with affidavits from some of the world’s most respected scientists, lay out a clear case as to why these cognitively complex, autonomous beings have the basic legal right to not be imprisoned, we cannot, of course, predict how each of the judges in the three county courts will respond. Habeas corpus cases are usually heard soon after being filed since the person is being held captive. So it’s possible that the judges in any or all of these cases could move quickly to a hearing – or to deny the petition altogether. On the other hand, considering that this is new legal territory, they could slow the proceedings down. And each judge could rule in a different way.
Whatever happens in the trial court, however, New York allows for an automatic appeal of an adverse habeas corpus decision. And either side can appeal the ruling. NRP predicts that their case will be heard, sooner or later, by New York’s intermediate appellate court, and quite possibly by New York’s highest court, the State Court of Appeals.
And, from many points of view, that’s where we would like the case to be heard, since what happens at the appellate level has much wider reach than at the trial level.
This is a notoriously difficult area of jurisprudence, largely because once one crosses the human/chimpanzee species line (and why not? they share over 98% of their DNA with homo sapiens, and only the religious believe there is any bright line between us and the rest of the non human animal world) then we arrive straight at the door of the laboratory, where research on apes and monkeys set their “rights” and those of humans in a starkly opposing trajectory.
But it is difficult – other than nakedly selfish grounds – to deny the higher vertebrates the bedrock of what we claim we humans have as an entitlement to rights: autonomy. Behavioural research on the great apes and the cetaceans (whales and dolphins) have long established that these animals have a capacity for conscious experience like humans. Furthermore experiments have shown that they show signs of having desire, being able to act on that desire to plan future and make choices accordingly. This is the behaviour of an organism that has autonomy.
And of course it has been pointed out by Peter Singer and many on the animal rights side of the debate that we have no problem according human rights to non-autonomous humans such as babies, the mentally ill, and those in minimal states of consciousness or PVS. LSE Law Professor Conor Gearty argues, in his 2008 paper on the subject, that we should stop regarding “human rights” as an entitlement that rests upon our membership of the homo species family, which is an increasingly indefensible and illogical legacy of medieval and then Enlightenment Christianity, but on the role of rights in the real world, which reflects the need to protect the weak from the abuse of power, in other words the meta-idea behind rights for which his essay contends. Also turning to the example of those early slave-freeing cases, Gearty observes
Bizarre though it seems to modern opinion, in many ways this leap of understanding in the nature of the slave, from mere chattel into full member of the species (and therefore no longer property, being necessarily free), required a larger job of persuasion than any equivalent effort today to convince the public of the entitlement of at least certain animals to a limited range of rights.
There are of course plenty of people who think, in a post-religious society, that there can be no such thing as ‘human rights’ since there are no foundations outside language capable of underpinning the kind of universal ethical judgement inherent in use of the term. Not surprisingly, says Gearty, this is not good enough for people who think of themselves as human rights scholars.
Among this group are those who acknowledge the force but desire to avoid the implications of such anti-foundationalism, and who therefore seek to locate their objections to the abuse of power in something more grounded than neutral observation or unspoken assumption. From such a perspective, it is tempting to draw out of the human inclination to do ‘good’, in other words to avoid abuses of power but rather to act with hospitality towards the stranger, a new kind of natural law based on compassion and empathy which can then sensibly and without difficulty be said to find contemporary expression in the language of human rights
This particular language of human rights is being used to describe a thread of behaviour that is natural and, from the point of view of the flourishing of the species, valuable. And there is no reason why animals – or at least those of the “higher” vertebrates whose behaviour we have observed exhibiting consciousness of others and future planning etc – should de excluded from this model.
The collapse of intellectual confidence in the specialness of the human, the decline in arguments for human uniqueness vis-a-vis the rest of the living things on the planet, now offers a window of opportunity for other animals, or rather to be accurate for their human protagonists, to be able to say much more convincingly than in the past that certain animals deserve to fit within the world of right behaviour and of entitlement to proper treatment that hitherto has been the preserve of the human alone
Certainly Gearty has the force of modern biology behind him. Evolutionary psychologist Stephen Pinker in his weighty exploration of the decline of violence The Better Angels of Our Nature (Allen Lane, 2011) describes the widening “moral circle: we have used the language of human rights to expand its net of solicitude ever outwards towards categories of humans (women; slaves; prisoners-of-war; also children, prisoners, those with mental and physical disabilities and many others) previously invisible to the powerful: there is no reason in principle why this outward momentum should be permanently blocked at a species barrier that is after all only a human construct.
Update: The NRP intends to appeal the judge’s decision. Although this process will take a year, the appeal court will enable the organisation to arguing the essence of the claim, rather than legal fine print. Appeals courts may reject the Nonhuman Rights Project’s arguments, but they’ll hear them — and their science — in full. As Wise says,
The crux of our cases depends on judges reading and thinking about what’s presented before them. I don’t think that’s happened yet. And that’s what we’re hoping from the appellate court. We will be very disappointed if appellate court judges have not read and absorbed that. They’re our main targets.
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