Earlier this year, I expressed misgivings about a state habeas corpus case filed by Steven Wise and the Nonhuman Rights Project on behalf of Tommy, a captive chimpanzee. I said there that, although I share many of Wise's long-term goals, his attempt to secure legal recognition for the personhood of chimps was misguided for two reasons: First, in emphasizing the ways in which chimps are very much like humans (due in no small part to the fact that chimps and bonobos are our closest surviving cousins), the legal strategy, if successful, would invite courts to draw a line that separates, on the one side, humans, great apes, and a few other kinds of animals (such as elephants, parrots, and sea mammals pictured on the Nonhuman Rights Project's website) from the billions of other animals (such as chickens, cows, fishes, and pigs) who suffer and die at the hands of humans. Second, I explained that Wise's common-law action would surely be dismissed for the very reason that Wise rightly criticized PETA's constitutional action on behalf of orcas: In a society as committed as ours is to speciesism, nearly all judges share the prejudices that Wise aims to overcome.
Late last week, an intermediate appellate court in New York state unanimously vindicated my second fear. The judges affirmed the trial court's dismissal of the habeas corpus action on the ground that chimpanzees are not "persons" entitled by statute or common law to file habeas petitions.
When I last wrote about the case, I said that even though I thought the legal strategy misguided, perhaps some good could come of the case if it raised consciousness. That is still a possibility, but another possibility is that the defeat of Tommy's petition will be persuasive to some people, rendering the lawsuit counterproductive. To resist that outcome, I shall endeavor here to show how poor the court's reasoning is. It is predictably poor, which is why I criticized the decision by Wise to bring the case, but I want to make clear that my criticism of Wise over strategy is not meant to excuse the court for its shoddy reasoning.
The court rests its decision partly on precedent, which is fair enough. Heretofore, non-human animals have not been recognized as persons for habeas purposes by courts or legislatures. (Corporations and other artificial entities have sometimes been recognized as legal persons for other purposes.) But noting that the scope of the habeas writ can evolve, the court also asks whether it ought to be expanded to include non-human animals. It says no. Why not? Because, says the court,
the ascription of rights has historically been connected with the imposition of societal obligations and duties. Reciprocity between rights and responsibilities stems from principles of social contract, which inspired the ideals of freedom and democracy at the core of our system of government. Under this view, society extends rights in exchange for an express or implied agreement from its members to submit to social responsibilities. In other words, "rights [are] connected to moral agency and the ability to accept societal responsibility in exchange for [those] rights."The quotation at the end of that passage is from a 2013 article in the Arizona State Law Journal by Pepperdine law professor Richard Cupp, and the opinion, while much shorter than the article, tracks its reasoning pretty closely. Accordingly, to determine whether the opinion's reasoning is sound, it helps to examine the extended verison of that reasoning in Professor Cupp's article.
The article aims to respond to claims for animal rights rooted in the fact that some non-human animals have the same or greater capacities as some humans. Cupp sensibly concedes the factual point. He writes: "Any casual observer would concur that a newborn infant child has much less ability to engage in nuanced communication than does a normal adult chimpanzee." Nonetheless, Cupp opposes rights for non-human animals because, he says, rights for humans are grounded in social contractarianism but non-human animals lack the capacity to fulfill the obligations of the social contract. But upon inspection, social contractarianism plays only a minor role in his argument, serving mostly as a distraction.
Cupp at first says that children who lack the current ability to carry out the reciprocal responsibilities that ostensibly ground rights on a social contractarian view are nonetheless accorded rights because, unlike non-human animals, human children have the potential to become such beings. What about severely disabled human children or adults who will never be capable of carrying out responsibilities? Well, Cupp says, they are properly accorded rights because they are human and they have human brains and "presumably even the brains of mentally limited humans simply seem to think differently than do animals' brains."
Moreover, it turns out that even the children without severe disabilities get their rights simply in virtue of being human: Cupp recognizes that the argument from potential runs into trouble because it would also seem to extend rights to human zygotes or even human sperm cells. After some discussion of Roe v. Wade and related cases, Cupp concludes that human fetuses (and presumably zygotes and sperm cells) are more entitled to rights than non-human animals because they are human. So when all is said and done, Cupp says that non-human animals are not entitled to rights because they're not human--which is simply a reassertion of Cupp's human exceptionalism, rather than an argument for it.
Aware that "arguments" of the sort he is offering have been previously criticized as circular, Cupp first replies that the burden of proof should be on people who want to extend rights to animals to say why they should be. Maybe that's right on Burkean or other conservative grounds, but even if so, it's not a reason why Cupp's own argument isn't circular. And anyway, Cupp never actually confronts the straightforward argument for extension of minimal rights against killing and causing pain to beings who enjoy life and suffer pain--namely, that if anything is wrong, it is wrong to deprive sentient beings of their lives and to cause them to suffer without good reason.
Cupp also says that he does not rely on the humanity of children as the basis for rights simply for humanity's sake. He says instead that their humanity makes them sufficiently similar in fact to adult humans to warrant granting them rights. After all, if animal rights advocates think that the similarity of various non-human animals qualifies them for rights, then surely the greater similarity of little humans to big humans qualifies children--simply in virtue of being human--for rights.
Cupp's mistake here is a predictable consequence of the fact that he is responding to the misguided argument made by Wise and others, who do seem to pick out attributes that we widely associate with human intelligence and to note that some highly intelligent non-human animals share those attributes. So it does look like the argument for animal rights rests on a claim of similarity between humans and (some) other animals.
But seen as a response to what I called the straightforward argument for animal rights, Cupp's claim that even severely disabled human children are more like adult humans than the most intelligent non-human animals is a non sequitur. Human children are entitled to the same rights as human adults to the extent that they have the same relevant capacities. For example, having the potential to take on the responsibilities of citizenship as an adult does not give a current 4-year-old the right to vote now. But having the present ability to suffer pain when hurt, children have the moral and legal right, even when they are children, not to be abused by their parents or others. For the extremely basic rights like the sort asserted on behalf of Tommy--and like the rights asserted by animal rights activists on behalf of billions of chickens, cows, pigs, and fishes--the relevant capacity is, as Bentham said, the capacity to suffer.
Now I don't mean to pick on Professor Cupp. I discuss his article because it's a longer, more sophisticated version of the appeals court's decision. The latter makes the same basic moves. It purports to say that "it is the incapability to bear any legal responsibilities and societal duties that renders it inappropriate to confer upon chimpanzees the legal rights – such as the fundamental right to liberty protected by the writ of habeas corpus – that have been afforded to human beings." But the reciprocity of rights and responsibilities does no real work in the opinion either. The court buries in a footnote the concession that "some humans are less able to bear legal duties or responsibilities than others." However, the court goes on in the same footnote, "[t]hese differences do not alter our analysis, as it is undeniable that, collectively, human beings possess the unique ability to bear legal responsibility."
So, for the court as well as for Professor Cupp, being a member of the human species--most of whose members are capable of bearing responsibilities--is both a necessary and a sufficient condition for rights.
Another way to see why the rights-as-reciprocal-to-responsbilities claim is simply a distraction from the court's naked speciesism is to note that the claim makes little sense even on its own terms. Why should the right to freedom from physical restraint (which is the right protected by habeas corpus) depend on one's ability to exercise all manner of responsibilities? Non-citizens do not have all of the responsibilities of citizens, and yet non-citizens have the right to habeas corpus under many circumstances. (See, e.g., Boumediene v. Bush).
The relations of capacities, rights, and responsibilities ought to be addressed in relevant context. Being capable of understanding politics and accepting the responsibilities of citizenship ought to be relevant to whether one has a right to vote or run for office, but not to whether one has a right to freedom from physical confinement. Being capable of suffering when tortured seems like the only relevant capacity to the determination of whether a sentient being properly has a moral right (and should therefore have a legal right) against being tortured.
Both Professor Cupp and the NY court make a final move. They both say that while non-human animals are incapable of being afforded rights, they are entitled to humane treatment. The court writes: "The Legislature has extended significant protections to animals, subject to criminal penalties, such as prohibiting the torture or unjustifiable killing of animals."
If the court really meant that, the debate over animal rights would be entirely semantic and unimportant, because all that animal rights advocates really want is for humans to stop torturing and unjustifiably killing animals. Nearly all killing of non-human animals for their products is unjustified and the systems for exploiting animals are rife with torture, even on ostensibly humane farms. Taking seriously the stated commitment of the court and others to animal welfare would, as a practical matter, provide the same protection that is sought under the rubric of animal rights. But most people are so invested in seeing their use of animals as justified that animal welfare protections end up being practically meaningless.
The investment can be financial. For example, Cupp's article notes that his research was funded by an organization that promotes experimentation on animals. However, I have no reason to think he wouldn't reach the same conclusions just by virtue of having been raised in a society that takes for granted the moral acceptability of eating and wearing parts and products of animals who were completely dominated by humans. After all, the judges who rejected Tommy's petition are not animal industry funded. Their investment is psychological, but extremely powerfully so.
Some day, lawsuits on behalf of animals may be a sensible way to advance the cause of animal rights. But so long as the vast majority of people--including the vast majority of judges--reinforce their own psychological investment in the normality of exploiting and killing animals every time they sit down to a meal or put on their shoes, a better strategy will be to focus on changing individual hearts and minds.