What would it take for an animal to be considered a person? In a landmark court case that reached its conclusion in a New York State appellate court yesterday, a five-judge panel refused to grant legal personhood to a chimpanzee named Tommy. Their unanimous decision: He’s not a person, in spite of the best arguments put forward by a group called the Nonhuman Rights Project (NhRP). Tommy’s owner keeps the chimp in a wire-mesh cage, inside a nondescript warehouse, in upstate New York. That’s not illegal, because it’s not illegal to own a chimpanzee in New York State. In the eyes of the law, Tommy isn’t a person – he’s property. Tommy, the court ruled, “is not a ‘person’ entitled to the rights and protections afforded by the writ of habeas corpus” – the legal term for a petition urging a court to halt the unlawful detention of a prisoner. The court decision ends this particular battle, but the legal wrangling, and the larger philosophical questions that swirl around human-animal relations, are sure to continue.
We might not be inclined to label a sea slug or a salamander as a person – but might feel differently about the great apes, or dolphins, or elephants. Chimpanzees, in particular, are our evolutionary cousins; biologists believe that humans and chimps only parted ways about seven million years ago. For decades now, researchers have known how clever chimps are. They live in complex social groups. They hunt together. They can’t talk, but they do vocalize, and they use those vocalizations, as well as hand gestures and facial expressions, to communicate. They use sticks and rocks as tools. “Science has shown that [chimpanzees] are more emotionally and socially and cognitively complex than we ever thought,” says Steven Wise, a lawyer and founder of the NhRP. Unfortunately, under current law, a chimpanzee isn’t an individual – it’s a thing, and therefore not eligible for any rights whatsoever. An animal that’s recognized as a person, on the other hand, “has the capacity for an infinite number of rights.” Of course, chimps are not Homo sapiens – but then, personhood isn’t a biological label; it’s a normative one, says Kristin Andrews, a philosopher at York University in Toronto and the author of a new textbook called The Animal Mind. In other words, we shouldn’t get caught up in biological differences: Personhood, she says, is a label that we bestow on a creature depending on some broad set of criteria – and it’s up to us to choose those criteria.
What is a Person?
One of those criteria might be an animal’s capacity to suffer. Traditional arguments for animal rights have focused on that aspect of welfare. If treating an animal in some particular way causes it to suffer, we can say that such treatment is wrong. But personhood would seem to entail more than just the capacity to feel pain. For Andrews, it hinges on the fact that certain animals are autonomous, self-directed individuals. That autonomy shows up most clearly, she says, when we look an animal’s “social cognition” – studying how an animal interacts with others of its species, and with those of different species. Any scientist attempting to get inside an animal’s head, so to speak, has to recognize the importance of those relationships. “What we see in the great apes, and in corvids [the family of birds that includes crows], and in dolphins, and in elephants, is the social complexity in their lives,” says Andrews. As an example, she cites the grieving behavior of elephants following the death of a relative: Elephants “will go back year after year and caress the bones of dead ancestors,” she says, and notes that dolphins and chimpanzees display a similar behavior. Andrews doesn’t shy away from using the word “culture” to describe some of these complex social behaviors – especially those of our closest relative, the chimpanzee. “There’s been a lot of work in the last 15-plus years on ‘culture’ in chimpanzees,” says Andrews. “They have communities. And the individual members have goals. They engage in friendships; they get into fights. Their social lives are important to them.” Most zoos have also come to recognize the social needs of chimps, which is why an international agreement now prohibits the animals from being removed from the wild. And last year, the National Institutes of Health agreed to retire all but 50 of the more than 300 chimps it had been using for research, and to gradually reduce the work being done with the remaining chimps.
The Limits of Personhood
Even among those concerned about Tommy’s treatment, there are some who feel that personhood may not be the best solution. For one thing, although courts often use the term “personhood,” no clear definition exists. At one time or another, corporations, boats, and even bells have been considered persons under the law. Given the difficulty in pinning down what we mean by “person,” it makes more sense to focus on rights and protections, says David Cassuto, a law professor at Pace University. “This personhood issue gets in the way of what I consider to be a more important discussion, which is: What rights and obligations and protections are, and should be, awarded to non-humans?” Richard Epstein, a law professor at New York University, agrees that in many senses of the word, chimps aren’t, and shouldn’t be, persons. “Ask yourself, what are the attributes of personhood when you’re talking about a natural ‘person,’” he says. “People are allowed to acquire property; they’re allowed to enter into contracts; they’re allowed to participate in political discourse; they’re allowed to vote. The only thing that you could grant chimpanzees, realistically, given their own capabilities, is immunity from medical treatment. And you don’t need to have rights in order to do that – you can pass sensible laws which ask the question, ‘When do we wish to use chimps as the subjects of medical experimentation, and when not?’” But, as the NhRP is quick to point out, the march of history has been toward an ever-expanding definition of who deserves rights. Racial equality, gender equality, and gay rights were at one time unimaginable from a legal point of view, but, with great effort, have become part of modern society. Many animal rights activists believe that extending rights and protections to non-humans is the natural next step.
Just the Start
Had Wise and the NhRP won their case, Tommy could have been taken from his owner and moved to a chimpanzee sanctuary in Florida. Yesterday’s court ruling now makes this unlikely, although the judges emphasized that other avenues, apart from legal personhood, may also be worth pursuing. In particular, the judges suggested that legislatures could pass further animal protection laws. “Our rejection of a rights paradigm for animals does not, however, leave them defenseless,” the judges said. Wise, meanwhile, has said he’ll continue to pursue the legal-personhood approach – and he’s already got a long list of animals, of various species, that he believes deserve the label of “person.” “For us, it’s the beginning of a long-term strategic litigation campaign,” Wise said in our interview while the court case was underway. “If we win, that’s great. If we lose, we want to find out why we lost; we try to bolster our arguments, and we move on to the next case.” The NhRP has already announced its plan to appeal the decision to the state’s highest court, the New York Court of Appeals.
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