Last December the global press sang the praises of a ground-breaking ruling by an Argentine court. According to the press, the court had granted an orang-utan (named Sandra) legal personhood and was therefore the first court ever to grant fundamental rights to a nonhuman animal. The judgement in question turned out to be a sham. Contrary to what was widely celebrated in the media, the court granted the unfortunate ape no legal personhood and Sandra can claim no rights whatsoever. It turns out the lawsuit was just an ordinary criminal case without any consequences for the imprisoned orang-utan. So no legal personhood for nonhuman animals yet. But why is legal personhood so important and can we expect animal rights any time soon?
Legal personhood for animals
Legal personhood is aptly described by Steven Wise (president of the Nonhuman Rights Project) as a cup in which rights are preserved. Without a cup, no rights. As long as an entity is not recognised as a ‘subject’, or ‘person’ in the world of law, that entity cannot participate in the legal game. Legal personhood is therefore the entrance ticket to the legal arena. Once inside, it is to be decided which rights and/or obligations are appropriate for the entity in question. This is why animal rights advocates worry so much about legal personhood: without it the nonhuman animal is irrelevant in the legal world and thus can have no rights.
The struggle for animal rights in American courts
So legal personhood was not recognised for the Argentinian orang-utan Sandra, but animal rights advocates are currently fighting on several fronts simultaneously. At present there are three lawsuits in America in which the Nonhuman Rights Project (NhRP) is fighting for the freedom of four chimpanzees who are held captive. The first of these three, in which the NhRP is fighting for the freedom of the two chimpanzees Hercules and Leo, is the least interesting. The court rejected the claim all too easily, without a hearing, by saying that chimpanzees are not considered ‘legal persons’. NhRP re-filed this case in March and requested an oral hearing. Of more interest are the other two lawsuits, those on behalf of chimpanzees Tommy and Kiko. The lower court judges rejected the freedom claims of the NhRP for principled reasons, but substantiated its decisions so clumsily that the NhRP is hopeful of a positive outcome during appeal.
Tommy the chimpanzee
In the lawsuit concerning Tommy the court ruled that a nonhuman animal can have no rights because a nonhuman animal can have no duties. The court assumes that having rights goes necessarily hand in hand with having duties. This reasoning is often heard in animal ethics, but it is in fact quite curious. Why should it be the case that there is a binding relationship between rights and duties? Are we so selfish that we’re only willing to protect someone by law if that entity can ‘re-pay’ us with duties? Obviously this is not the case, because we are also willing to protect children or elderly people with dementia by law, even if there is nothing in it for ourselves. The court needs to explain why it thinks that there exists such a relationship between rights and duties and why that relationship should be binding. But instead of doing so the court merely states that there has always been a relationship between rights and duties, and that Black’s Law Dictionary says that rights and duties go together. Apparently, this court considers itself incapable of countering outdated case law, and it deems its own power limited by a dictionary. If all judges in history would have ruled as ultra-conservatively as this one, the civilization of today probably wouldn’t exist. Why ban burning witches, enslavement and child labour? ‘It has always been this way’, according to this court. Obviously the NhRP is hopeful that it can successfully refute these arguments during the appeal.
Kiko the chimpanzee
Then there is the third case, the one on behalf of chimpanzee Kiko. Kiko is used in the entertainment industry and is partially deaf. NhRP is trying to persuade the court to grant Kiko the right to bodily freedom and to transfer him to a sanctuary, where he could lead a normal life amongst other domesticated apes. The court, however, rejected this request because, according to the court, NhRP cannot claim that the confinement needs to be changed, they can only claim full release. One must, in other words, either demand complete freedom, or settle for the miserable conditions under which Kiko is currently held. This is also a strange kind of reasoning. Apparently, individuals who are (made) dependent on others are not entitled to humane living conditions, only to full release. The latter is obviously not an option for Kiko: a domesticated ape will not survive in the wild. This argument is also unconvincing in a legal sense. Based on the same legal action (habeas corpus), others have been successfully granted partial freedom, for example child slaves and severely demented elderly people. Just like a chimpanzee, they are in some way dependent on others for their survival, but the court didn’t consider this an obstacle in their cases.
There are some important questions to be asked about these three law suits. Why does the court in Kiko’s case suddenly make such a clear distinction between two similar habeas corpus claims? Why do the New York courts consider precedents strictly binding when they lead to the exclusion of chimpanzees from gaining legal personhood, while at the same time consider these precedents not binding when that gives them the ability to decline the claim for Kiko’s partial release? Could it be possible that there are other, underlying reasons for the unwillingness of judges to grant chimpanzees personhood and rights, and that they cover up these underlying reasons with formal nonsense? Could it be that some judges share the unstated assumption that humans per se are more important and thus have more rights than all other animals? If that were the case, and that would be very wrong in an open legal society, it would definitely be fairer to express these real reasons out loud, so they can be openly debated by all. Of course we cannot know this, and so should assume that this isn’t the case, but it is still important to keep these questions and possibilities in mind.
NhRP will appeal or re-file in all three cases. The question is: when will the time come that the creative but illogical reasoning used by judges to avoid granting animals rights come to an end? The used arguments for denying these chimpanzees rights are certainly erroneous, simple or ill-informed. If there are other, yet unknown and unspoken, reasons for withholding legal standing for chimpanzees, judges will have to publicly state these reasons for making grave legal distinctions between humans and chimpanzees. It seems that the NhRP, with their cases on behalf of Hercules, Leo, Tommy and Kiko, must keep on challenging American judges for some time to come.
Last minute update: Recently the media has reported extensively on the – said – new developments in the case of Hercules and Leo. They reported that an American judge ’extended the habeas corpus claim to non-human species’ and that the judge set in motion the process of releasing the chimps. However these comments are too optimistic, if not downright false. What really happened last Monday is that a judge issued an order to show cause, which only means that the court agrees to hear the statements of NhRP and the opposing party. The (real) hearing will take place on May 27, 2015. More information can be found here.