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Thursday, December 04, 2014

Speciesism in Chimpanzee Habeas Case

A New York appellate court has ruled  that a chimpanzee is not a "person" entitled to state habeas corpus protections. Hence the Nonhuman Rights Project cannot get an order to show cause to commence a habeas proceeding to challenge the confinement of Tommy the chimpanzee (who is apparently being kept in accordance with state and federal animal welfare laws).

The court reasoned  that there is no precedent for treating chimps as persons and that personhood ought not be extended because the rights associated with the writ have "historically been connected with the imposition of societal obligations and duties" (emphasis added). "Under this view, society extends rights in exchange for an express or implied agreement from its members to submit to social responsibilities." Since chimps do not accept legal responsibilities, they ought not have the rights of persons.

As to why humans that are too young or too intellectually disabled to have legal duties are still persons, the court states in a footnote: "To be sure, some humans are less able to bear legal duties or responsibilities than others. These differences do not alter our analysis, as it is undeniable that, collectively, human beings possess the unique ability to bear legal responsibility. Accordingly, nothing in this decision should be read as limiting the rights of human beings in the context of habeas corpus proceedings or otherwise."

The court's position exemplifies what Peter Singer and others call speciesism. What entitles a being to protection, according to the court, is not something about the creature itself but about its membership in a particular group--namely, the species homo sapiens. If sexism is an irrational prejudice in favor of one gender and racism is an irrational prejudice in favor of one race over another, to many animal rights advocates, specisism is an irrational prejudice in favor of one species over another.  So how one feels about the decision likely turns on how seriously one takes the charge of speciesism.  

In this case, there is apparently no allegation that Tommy was being mistreated in the sense protected by current animal welfare laws. Often, however, even when animal welfare laws are being violated, private parties lack standing to bring suit. So questions of personhood for great apes and other animals both raise fundamental questions about the nature of personhood and less fundamental, but still important issues, about how expansively animal welfare protections apply.

(Hat tip: Eugene Volokh)

Posted by Adam Kolber on December 4, 2014 at 08:28 PM | Permalink


Adam Smith - when I said 'it's called evolution' I was referring to humans, in that it is in our 'nature' to evolve - and I mean that in all the permutations of that word, physically, mentally etc. (And I said it because I believe it is a FORWARD step to offer Tommy and other animals 'rights'.) When once we thought the world was flat we now know it to be round etc etc therefore even in our thinking our species evolves. Though sometimes I wonder how we evolve - because certainly there seems to be lots of backstepping along the way! I was not referring to chimps anyway. I was being a bit sarcastic, yes. And this case, this discussion is NOT IN ANY WAY embarrassing. First and foremost it's trying to help an animal, namely a chimp who has been locked away in a warehouse for 26 years, in a very original way: by giving him a 'voice', a set of rights. To me and many others this is completely logical. I as a human being very much believe in Dostoyevsky's credo that 'Each of us is responsible for everything and to every human being'. We must bestow certain 'rights' on those creatures we are responsible for in this world BECAUSE WE ARE RESPONSIBLE FOR THEM. SIMPLES! That's how best we can protect them. And we live in a connected world, whereby one animal made extinct or one animal grossly treated ultimately affects us all. This is not embarrassing. This is NECESSARY.

Posted by: JAKI MCCARRICK | Dec 11, 2014 11:00:10 AM

Adam Smith, you didn't really "argue" anything. You basically asserted it and let us know it was too "embarrassing" to have you deign to respond. Gratuitous comments about a word choice or a snarky use of "evolution" in a way different from used didn't help.

The "basic argument" is not that it is "really swell and cool" -- this is typical "I'm right, you are just emotional" tired argument device. I don't quite know what a "legitimate form" means here, since you think the other side is so "embarrassing" that it is not worth spelling it out. Legal arguments have been made, including that animals have enough "person" aspects to count.

You might find them wrong. That's fine. But, people felt the idea blacks were constitutional persons was "embarrassing" at one point too & based on moral sentiment. They instructed people to work to change the Constitution, if they wanted. It's a standard device here. It helps to actually refute the other side's argument too, even if you think they are "embarrassing."

Posted by: Joe | Dec 10, 2014 10:10:48 AM

Joe: My argument is clear. No legitimate form of construction leads to the result that a "chimp" is a person. I'm not going to respond to the basic argument being asserted--that it would be really swell and cool and compassionate and morally "right" to recognize chimps as "persons"--because my views (as a legal egghead) as to whether a chimp should be treated like a person simply aren't relevant. This is a legal question, not a political question. The arguments being made in this thread are political arguments. That is why I am telling everybody to run for office. That is the appropriate forum for these arguments. And good luck with that campaign. :)

Posted by: Adam Smith | Dec 8, 2014 4:51:53 PM

[pressed "post" too soon -- sorry for typos -- I would add latching on to my use of the word "contour" (if a better word was appropriate, such as the "reach" of habeas etc., fine) instead of fulling answering the overall argument is akin to the bit regarding "evolution" -- dismissive w/o really responding to the basic argument -- I get you are "embarrassed," but the reply itself is somewhat embarrassing]

Posted by: Joe | Dec 8, 2014 4:39:00 PM

"A habeas corpus petition is a petition filed with a court by a person who objects to his own or another's detention or imprisonment."


The debate here is the breadth of the term "person" which is part of "the general form or structure" ("contour") of habeas as a whole. Like those who disagreed with Taney that this includes black people (w/o the addition of further amendments), people with "strongly held moral convictions" can disagree Adam Smith here. Who comes off as patronizing.

Adam Smith uses the dismissive word "embarrassing" that suggests a certain special lack of reason without do much to refute the arguments made. This includes answering a claim that such and such would be a form of legal "evolution" with a quip using that word in a biological sense. Other than providing scorn, I don't know how responsive that is.

Posted by: Joe | Dec 8, 2014 4:32:17 PM

No, Jaki--Evolution would be if the chimp advanced biologically, gained improved intellect, and then organized into a chimp government that passed laws that allowed for chimp habeas from chimp imprisonment.

I will, again, submit that this entire discussion is embarrassing.

I will also point out, Joe, that whether a "chimp" is a "person" is not some "contour" of habeas.

I encourage all of you that think a "chimp" is a "person" to get active in re-writing the current laws so that they are consistent with your viewpoint. People with such strongly held moral convictions should be legislating and/or lobbying, not adjudicating/interpreting.


Posted by: Adam Smith | Dec 8, 2014 2:46:27 PM

Human beings have brought numerous animals out of their natural habitats into human society - chimps, dogs, cats, circus animals to name a few. In the original habitats of these animals there were natural hierarchies and 'rules'. In these settings animals set their own codes & modes of living. So, it seems to me that once humans destroy tthese natural laws for animal via the animal's extraction from a formerly coded environment, they are surely responsible in some way for that animal, to provide some kind of substitute code/law/system of survival/protection etc. In other words, humans owe these animals their rights. We have disrupted their societies for our gain. A chimp left to walk down a street in a city is an act of neglect on behalf of the chimp's owner/guardian - just as it is if the chimp is left alone in a warehouse for 26 years as in the case of Tommy. Tommy is owed something by our human society. We have deprived him of his chimp heritage. And he is in my opinion within his species a 'person' - 100% - and the law is utterly wrong. It will change eventually. It's called evolution.

Posted by: Jaki McCarrick | Dec 6, 2014 12:47:58 PM

This opinion reminds me of how same-sex marriage decisions were written in the 1970s. "This is how things have always been. Here is an argument for thinking that how things have always been make sense. There are serious problems with this argument, but we're not going to worry about them because we aren't actually taking your legal claim seriously. Now go away."

That's not a prediction about the future trajectory of habeas rights for chimpanzees. That depends on the politics, and it's hard to predict what will happen to the politics of this issue in the future. But that's the point, that the politics here are what's controlling. There is nothing objectively ridiculous or irrational about the legal claim here. If anything, the way it gets rejected here is rather more awkward, as the footnote suggests.

Posted by: JHW | Dec 5, 2014 6:46:02 PM

Any Rule 3.1 sanctions here for this?

Posted by: Sarah | Dec 5, 2014 2:46:36 PM

Not sure about the point missing.

I read the opinion as well as the OP and the opinion rests on broad principle as to the basics of rights. The basic idea of habeas corpus was at stake and "intent" of the "legislature" is not the only way to determine such things. We don't merely look to the "intent" of the 1st Congress to determine what "due process" in the Fifth Amendment means.

The opinion noting "the writ has over time gained increasing use given its 'great flexibility and vague scope'" means mere "precedent" or I'd add some bare "original intent" or expectation isn't the end of the question. And, on some level the "intent" was to partially use current understanding to help flesh out the contours of habeas, due process et. al. So, yes, "us eggheads" and others have a place here, including the OP as a general expression of current legal scholarship and knowledge.

Posted by: Joe | Dec 5, 2014 2:08:33 PM

This entire discussion is embarrassing, in my humble opinion.

Anyway, everybody is missing the point. The relevant legal question is not whether us eggheads think a chimp should be treated like a human. The relevant legal question is whether the legislature intended to give chimps legal rights when it used the term "person."

If you think chimps should have legal rights, run for office and pass a bill.


Posted by: Adam Smith | Dec 5, 2014 10:48:12 AM

"It doesn't make sense to equate a chimp with a person. Let's not forget that our Constitution is deeply, deeply species-ist."

"Let's not forget" is one of those additions that tend to get me concerned. Often it means something not obvious will be said. Let's take the Constitution part. Okay.

It used to be deeply favorable to white people. This didn't mean, contra Taney, blacks had no rights under it. The question is if a chimp is equal enough for the bare right at issue here. The decision, e.g., notes chimps can't be called to account, don't have the same duties. They can in theory, I'd think. If they harm humans, they might even be killed. The word 'responsibility' seems applicable there.

"Animals, including this chimp, are considered someone's property."

I guess some animals are in effect the property of the state? I say that not in a negative way exactly. You'd have to address stray animals and the like with no personal owners. Anyway, I think animals should not be thought of as "property" full stop, like a chair. A dog, e.g., is treated as a bit more than that by society overall.

"grant easier access"

This was in effect the argument of Justice Douglas in an infamous dissent. He didn't really want to giving standing to trees, as some phrase. He ultimately wanted to give standing to those who benefit from nature. I think this could be a useful device, especially for certain groups particularly authorized to protect animal's interests. The actions can be done in the name of the animals too, which would respect their own individual interests as well.

Posted by: Joe | Dec 5, 2014 10:02:59 AM

It doesn't make sense to equate a chimp with a person. Let's not forget that our Constitution is deeply, deeply species-ist. Wouldn't the solution to this problem (to the extent that it's a real and not an imagined one) be to grant easier access to the courts to challenge these "detentions?" So expand standing doctrine in the New York courts rather than engaging in the fiction of thinking that a chimp is a person and is therefore entitled to habeas. I'm imagining a world in which a court would entertain a habeas suit on behalf of lost cat Fluffy. Maybe Fluffy could also challenge her owners' decision to buy the cheap cat food.

This did, incidentally, get me interested in the analogies that can be drawn between an animal and a corporation. Animals, including this chimp, are considered someone's property. Do they need to have a separate legal existence from their owner in a way that's analogous to the separate interests of a corporation from the people or person who own it?

Posted by: C, an unabashed person | Dec 5, 2014 9:48:26 AM

If there were a like button on Typepad, I'd surely press it!

For those who would take Orin's computer's comment as a challenge to speciesism, here is how I think Singer would respond: What makes confining a chimp bad is that the chimp has interests in not being confined. Presumably, the chimp is distressed by its confinement relative to a world in which it is not confined. Inanimate objects, by contrast, such as Orin's computer, do not have interests in being unconfined.

According to Singer, we should give equal consideration to the interests of all sentient creatures. But species membership is irrelevant, except to the extent it tells us about what kinds of interest a creature has. For example, apes have interests in not feeling pain and maybe in continuing to exist over time. But they do not have interests in reading fine literature.

Posted by: Adam Kolber's Fingers | Dec 5, 2014 5:56:39 AM

"If sexism is an irrational prejudice in favor of one gender and racism is an irrational prejudice in favor of one race over another, to many animal rights advocates, specisism is an irrational prejudice in favor of one species over another."

And don't get me started on animate-objectism.

Posted by: Orin Kerr's Computer | Dec 5, 2014 12:06:45 AM

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