Bioethics Forum Essay
Chimpanzees: Persons or Things?
Last month, a group of 17 North American philosophers (myself included) filed an amicus curiae brief with the New York State Court of Appeals on behalf of Kiko and Tommy, two captive chimpanzees. The brief, informally known as “Chimpanzee Personhood: The Philosophers’ Brief,” supports a legal action by the Nonhuman Rights Project (NhRP). Pursuing a court case that began in 2013, the NhRP has filed a petition for a common law writ of habeas corpus, seeking to have Kiko and Tommy recognized as persons under the law and transferred to a sanctuary where their right to bodily liberty will be respected. If it succeeds, nonhumans will for the first time be recognized as persons in the U.S.
Why has the NhRP adopted this moonshot strategy? Under the law, there are two categories of entities: persons and things. Unless and until Kiko and Tommy are recognized as persons, they remain mere things. Only persons have enforceable legal rights, such as the right to bodily liberty; things do not. The writ of habeas corpus has a storied history in similar cases brought on behalf of humans who were not, at one time, considered persons. For example, in 1772 in England, it was used to recognize the personhood of James Somerset, a slave, and secure his release from unlawful detention. The ruling effectively abolished slavery in that country (although it did not end the slave trade entirely). In New York City, the American Society for the Prevention of Cruelty to Animals used the writ in 1874 to free a child from an abusive home – at the time, children were not recognized as persons with rights of their own.
The 17 philosophers, who have expertise in bioethics, animal ethics, political theory, the philosophy of animal cognition and behavior, and the philosophy of biology, argue that, given the diversity that exists among humans, there are no nonarbitrary conceptions of “personhood” that can include all humans and exclude all nonhuman animals. In previous rulings concerning Kiko and Tommy, courts in New York have employed three conceptions of “person” which, when properly understood, are either arbitrary and philosophically inadequate or are in fact compatible with the personhood of Kiko and Tommy.
First among these is the familiar and arbitrary use of species membership to disqualify any nonhuman from personhood. Biologically speaking, species boundaries are notoriously fuzzy. It is common knowledge that chimpanzees (Pan troglodytes) and humans (Homo sapiens) share 99 percent of their DNA, but they also have in common many social and psychological characteristics. Attempts to justify speciesist distinctions between humans and nonhumans must pick out characteristics that make humans exceptional, but then it is the characteristics themselves, and not species, doing the moral work of defining personhood. Moreover, target characteristics are typically capacities like rationality and autonomy that will inevitably exclude many vulnerable humans from personhood.
The courts have also argued that society extends personhood and rights in a social contract through which its members submit to social responsibilities and legal duties. This conception of personhood fails in a number of ways. It fundamentally misunderstands social contract philosophy, and the seventeenth and eighteenth century philosophers whose writing inspired the language and ideals of U.S. founding documents such as the Constitution and the Declaration of Independence. First of all, social contracts do not produce persons. Rather, social contractors must already be persons – the authority and legitimacy of the contract itself depends on the rationality and autonomy of contractors. Persons become citizens under a social contract. Second, not all rights – certainly not natural rights such as the right to bodily liberty – depend on the existence of a social contract. And third, personhood is not conditional on bearing duties and responsibilities. For reasons that should be obvious, hanging personhood on having the capacities required of contractors, or having the ability to bear legal duties and social responsibilities, would exclude a great many humans, including infants and children and some persons with cognitive disabilities. It is not necessary for someone be a contractor to be a person, and contractarianism does not rule out the personhood of chimpanzees.
In order to include vulnerable humans who cannot bear legal duties and social responsibilities, the courts contend that they instead qualify as members of “the human community.” This can be interpreted as a mere appeal to speciesism, or as something more. That something more includes being embedded in interpersonal webs of interdependency, communication, and trust. On this view, infants and children and individuals with profound cognitive disabilities count as persons, and are entitled to rights and protection, because they are embedded in these webs of social connection. But so, too, are Kiko and Tommy, former movie “actors” who were raised by humans and have lived among humans their entire lives.
The NhRP argues that Kiko and Tommy are persons because they are autonomous beings, and autonomy is sufficient (but not necessary) for personhood under the common law. A number of primatologists have filed affidavits in the case, attesting to the rationality and autonomy of free-living chimpanzees. The Philosophers’ Brief supports the argument that autonomy is a sufficient condition for personhood.
A court ruling in favor of chimpanzee personhood could set an important legal precedent, but it would also have profound, life-changing implications for Kiko and Tommy, who are currently held by separate owners, kept alone in cages. The NhRP is seeking their release to a chimpanzee sanctuary such as Save the Chimps. Autonomous individuals have a basic interest in exercising their autonomy. The current conditions of captivity in which Kiko and Tommy live profoundly violate their autonomy and liberty and thwart their basic interests in living as chimpanzees among other chimpanzees. The courts have never disputed that Kiko and Tommy are autonomous and rational, but they have thus far resisted the conclusion that manifestly follows: that Kiko and Tommy are not mere things, but they are persons.
L. Syd M. Johnson, PhD, is an associate professor of philosophy and bioethics at Michigan Technological University. Twitter: (@LSydMJohnson).
(Photo: Pennebaker Hegedus Films)