Can chimpanzees be people, legally speaking? Four new lawsuits by an animal advocacy group are trying to use obscure slavery-era law to grant chimpanzees many of the legal rights that people have. Whether or not their legal arguments are right, their cause is eminently just. Chimpanzees should be legal persons — full stop.
The Nonhuman Rights Project, the organization that filed the suit, is not seeking for chimpanzees to be granted the right to free speech or to vote. Instead, their first suit asks that a chimpanzee named Tommy be released from the “small, dank cement cage in a cavernous dark shed” in which he is being held in Gloversville, New York. Tommy, NhRP argues, is “a cognitively complex autonomous legal person with the fundamental right not to be imprisoned.”
In short: Tommy the chimpanzee may not be a human being, but he’s enough of a person that he deserves the right not to be imprisoned and held in a cell.
But isn’t “person” just another word for “human?” Not at all, either as a matter of law or morality. In law, “personhood” is a status that allows the legal system to treat a non-human entity just like a person for the matter of lawsuits or other legal actions. All sorts of non-humans have been considered persons in this fashion: corporations are the famous example, but New York law has treated pets as legal persons in certain limited circumstances.
In morality, it’s much more complicated — philosophers have lots of fun wrangling over what it means to be person at all. The most useful way to think about “personhood’s” role in morality, though, is that it tells us what kind of creatures deserve the baseline obligation to be treated equally routinely given to all adult humans. Think about the debate over whether a fetus is a person: everyone recognizes that fetuses are biologically human, but whether they deserve the right not to be killed depends on whether they’re moral persons.
It’s hard to say whether Tommy is a legal person under current law. NhRP is banking on an interpretation of New York common law that defines personhood in part by a high level of cognitive ability, a bar they argue chimpanzees clear. This strategy has never been tried in the United States before, but several experts on constitutional and animal law told the New York Times that it’s got a shot to work.
But to me, what the law says today matters less than what it should say. Even if the New York courts rule against Tommy and the NhRP, the question of whether the law should be changed by Congress or state legislatures is still unresolved. What the law should say depends on the more fundamental ethical question: is it right that chimpanzees are treated as legal property, or do we owe them better?
Definitively the latter. Chimpanzees and other great apes don’t just feel pain — almost all animals, even ones as simple as shrimp and hermit crabs, suffer. Great apes go well beyond that — they feel empathy and loss, make plans for the future and recognize photos of their younger selves. They’re smart enough to communicate with humans using sign language and do basic math better than most humans.
In the wild, tribes of chimpanzees develop distinct cultures. You can watch their funerals when chimpanzee children die.
These are self-aware creatures, equipped with greater awareness and a more sophisticated emotional range than a great many humans (young children, for instance). Why shouldn’t they have rights?
Morality isn’t that simple, of course. Moral philosophers disagree sharply over what defines moral personhood; some believe it to be the sort of cognitive and psychological capabilities I’ve just listed; others (Immanuel Kant and his followers in particular) argue personhood is created by upper-level abilities to reflect on your own actions. Still others deny the significance of personhood altogether, suggesting all that matters is (for instance) the amount of pain and pleasure the animals experience.
Ultimately, these arguments reflect deep moral disagreements that the law is really, really bad at resolving. In fact, it shouldn’t try — can you imagine Congress declaring utilitarianism the One True Moral Law or a court case (Kant v. Mill, say) ruling the same? Instead, it’s better to think about the political question of whether animals should have legal rights using concepts everyone in a modern liberal democracy understands and accepts. Regardless of the specifics of your moral beliefs, accepting liberal rights protections and democratic elections requires you to accept a set of basic political principles (all people should be treated equally, for instance).
In the case of chimpanzees like Tommy, the most relevant one of these universal principles is non-discrimination. Nobody seriously argues that it’s OK to discriminate against a group of people on the sheer basis of arbitrary characteristics like being female, black, or gay. Mainstream arguments for discriminatory policies, like the ones against marriage equality, say it’s not about the inherent inferiority of gays, appealing instead the effect of “expanding the definition of marriage” on family stability and children’s welfare. As far as political principles go, non-discrimination is a pretty solid one.
That’s why I made such a big deal out of the fact that chimpanzees are smarter and more aware than many children earlier. Everyone agrees that it’s wrong to kidnap and lock up young children. Saying that Tommy, who’s at least as smart and aware of the world, can’t be similarly kidnapped and unlawfully detained is discriminating against him on the basis of his species, no less arbitrary a reason for denying him rights than race, gender, or sexual orientation.
This isn’t an argument for Tommy to have the exact same legal rights as an adult American. Like children (or severely cognitively disabled adults), Tommy can’t live in a house by himself or vote. Also like children, that means he’s a special kind of person, one that requires a different slate of legal rights to flourish. NhDF is asking that Tommy be taken from his trailer and allowed to live out his life in a far freer chimpanzee sanctuary; that’s a good place to start.
People worried about the slippery slope this reasoning takes us down needn’t fret too much. Legal personhood would rule out the use of chimpanzees in medical experiments, but the National Institutes for Health are freeing all but 50 of their chimps on grounds that the apes are “largely unnecessary” for medical research. The official decision reflects a growing scientific consensus, codified in a 2011 Institute of Medicine report, that the value of chimp research can’t possibly justify the ethical harm.
Moreover, non-discrimination is a limited principle. It doesn’t require extending a full slate of legal protections to rocks or trees, for instance, because “rock kidnapping” doesn’t make a lick of sense. Rocks don’t have the capabilities necessary to be “harmed” by kidnapping. Ditto for other cognitively simple living creatures like bacteria and insects. The implications are trickier for cows, dogs, and fish — I believe there’s a strong non-discrimination argument against factory farming, but given the lower cognitive capabilities of those creatures, it’s not as obvious as it is for chimpanzees. Moreover, if there really is an irresolvable conflict between non-discrimination and the way we treat animals, then we have to pick one and give up on the other one. Which do you choose — the foundational principle of modern liberal democracy, or cheaper meat?
These are questions that, as a society, we’re not yet fully confronting, let alone resolving. But the NhDF suit on Tommy’s behalf should be a wakeup call telling us we can’t put off the reckoning over our treatment of animals forever.