Bioethics Forum Essay

Might Chimpanzees Have Legal Rights?

On May 8, the New York Court of Appeals denied an appeal to have two captive chimpanzees, Kiko and Tommy, recognized as legal persons with the right to bodily liberty and released to a chimpanzee sanctuary. The Court of Appeals allows only about 5 percent of appeals, so the legal outcome was not surprising. In an extraordinary concurring opinion, however, Judge Eugene M. Fahey stressed that the denial of appeal was not decided on the merits of the case, which was brought on behalf of the chimpanzees by the Nonhuman Rights Project. Indeed, he said, the legal and ethical questions raised by the case are important and will eventually have to be addressed by the courts.

Getting to the core of the legal and ethical matter, the judge asked whether nonhuman animals should be treated as persons or as mere things. In his provocative and thoughtful opinion, he cited the Philosophers’ Brief–an amicus brief filed by a group of 17 North American philosophers (myself included) in support of the NhRP appeal–which argued that chimpanzees should be legally recognized as persons. The judge also extensively invoked philosopher Tom Regan, who, in The Case for Animal Rights, draws a distinction between moral agents and moral patients.

Moral agents have the sophisticated abilities needed to apply impartial moral principles in deciding what to do and can be held morally accountable for their actions. Moral patients, although they lack these abilities, can nonetheless have inherent value, and can be on the receiving end of right or wrong actions performed by moral agents. They are entitled to moral (and presumably legal) consideration and are not to be treated as mere things to be exploited or used by moral agents. Noting that previous courts have ruled against Kiko and Tommy because they are not moral agents, Judge Fahey rightly concluded that one need not be a moral agent to be a moral patient “who can be wronged and may have the right to redress wrongs.”

Acknowledging that chimpanzees are intelligent and have many sophisticated cognitive abilities, including the capacity to act autonomously, the judge asked, “Does an intelligent nonhuman animal who thinks and plans and appreciates life as human beings do have the right to protection of the law against arbitrary cruelties and enforced detentions visited on him or her?” This question, Judge Fahey concluded, poses “a deep dilemma of ethics and policy that demands our attention. To treat a chimpanzee as if he or she had no right to liberty protected by habeas corpus is to regard the chimpanzee as entirely lacking independent worth, as a mere resource for human use, a thing the value of which consists exclusively in its usefulness to others. Instead, we should consider whether a chimpanzee is an individual with inherent value who has the right to be treated with respect.” His conclusion–“While it may be arguable that a chimpanzee is not a ‘person,’ there is no doubt that it is not merely a thing”–is unprecedented in American law. No high court in any U.S. jurisdiction has ever recognized the non-thing-hood of nonhumans, nor the possibility that animals might be entitled to legal rights.

In an apparent rejection of the binary legal ontology that restricts any entity to being either a person with rights or a mere thing, the judge asserted that the question that matters is not whether a chimpanzee has the same rights and duties as a human being, but “instead whether he or she has the right to liberty.” The NhRP and the Philosophers’ Brief argued that Kiko, Tommy, and other chimpanzees have such a right because they satisfy the conditions for personhood. (Recently, the NhRP has also advocated for legal recognition of the personhood of other species, including elephants.) The judge criticized the opinions of New York’s lower courts in Tommy’s and Kiko’s cases for relying too much on species membership as the criterion of legal personhood and entitlement to rights. In an extraordinary rejection of the status quo, he argued that limiting the law’s scope, and entitlement to a court’s protection, only to those considered persons “amounts to a refusal to confront a manifest injustice.”

It’s possible that Judge Fahey is endorsing an expansion of the legal ontology to include more than persons and things, with moral patients occupying an intermediary zone. In recent years, a few countries have adopted a third legal category of entities, such as “sentient beings,” to differentiate animals from other living and nonliving things. The recognition that sentient beings have inherent moral value and some legal rights could potentially improve the lot of many nonhuman animals. Nonetheless, there are compelling reasons to be cautious about creating new classes of beings without first considering whether the scope of personhood can and should be extended to include some nonhumans.

First, in countries where “sentient beings” have been legally recognized, their status remains ambiguous. In France, for example, domesticated and captive animals are recognized as “living, sentient beings,” but the law still considers most animals to be property, albeit “sentient property.” French law allows, in essence, for animals to have their cake, but for them to be eaten, too. The EU’s Treaty of Lisbon, similarly, states that animals are sentient beings entitled to a limited set of freedoms affecting their welfare (e.g., freedom from hunger and thirst), while still recognizing that humans have property rights in animals. At local, state, and federal levels in the U.S., animal welfare laws provide limited protection against some forms of egregious abuse and neglect, but animals remain legal property, with monetary and instrumental rather than inherent value. To have the status of property, liable to be disposed of, held captive, sold, or killed, is to have no important personal rights. It excludes the bodily liberty rights being sought for Tommy and Kiko.

Second, creating a second tier of not-quite-persons could also prove risky for many vulnerable humans, including infants and children, individuals with disabilities, and especially those with cognitive and intellectual disabilities. The moral personhood and worth of these humans is already frequently questioned, as is their right to medical treatment and societal resources. One need not look far back in human history (nor beyond recent headlines) to find numerous occasions when “second class” and “undesirable” humans were systematically mistreated, exploited, expelled, and exterminated.

In his opinion, Judge Fahey cautioned that “in elevating our species, we should not lower the status of other highly intelligent species.” We must be equally careful that the class of “moral patients” or “sentient beings” is not relegated to second class (or lower) status. Animals in that in-between legal space are treated much more like things than persons with rights and liberties. If there is no doubt that a chimpanzee is not merely a thing, as Judge Fahey himself stated, then there should be no doubt that justice requires more than to be treated like one.

Syd M Johnson, PhD, is an associate professor of philosophy and bioethics at Michigan Technological University. Twitter @LSydMJohnson

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