Do chimpanzees have rights?

Jim Huffman Dean Emeritus, Lewis & Clark Law School
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Earlier this month, the Nonhuman Rights Project filed a habeas corpus petition in New York’s Fulton County Court seeking the release of Tommy, a chimpanzee “held captive in a cage in a shed at a used trailer lot in Gloversville.” On Tuesday a similar petition was filed in Niagara Falls on behalf of Kiko, a deaf chimpanzee living in a private home. A third petition was filed Thursday seeking the release of chimpanzees Hercules and Leo who are in the possession of a research center at Stony Brook University.

A writ of habeas corpus is an order to show legal cause for holding a person captive. Heretofore, writs have only issued for human captives. If successful, the New York lawsuits would extend the scope of the writ to an undefined array of nonhuman creatures.

It is easy to sympathize with these lawsuits. The conditions in which many captive animals are held are sometimes appalling, and the uses to which they are put for human benefit or entertainment often result in serious injury or death. When we look at chimpanzees at the zoo, we see a bit of ourselves.

But beyond the immediate goal of protecting the named chimps, these lawsuits are part of a national strategy to establish something resembling legal personhood for at least some nonhuman animals. Courts should be wary of accepting such claims. It is a slippery slope down which courts will slide into endless litigation, with nothing better than empathy and compassion to guide the way.

Don’t get me wrong. We should all aspire to empathy and compassion for our fellow creatures and appeal to our elected representatives to do the same in their public work, but it is not the business of judges sworn to uphold the rule of law.

The NRP lawsuits are founded on the 1772 ruling by England’s Lord Mansfield that the American slave James Somerset was not lawfully confined on a slave ship bound for Jamaica because he was a legal person, not property as his captor claimed. The argument is much the same as that made by Professor Christopher Stone four decades ago in an article titled “Should Trees Have Standing?” Stone sought to provide a legal theory in support of environmentalist efforts to sue as the legal guardians of the environment. He suggested that the idea of granting legal standing to nonhuman animals and other natural entities is not so revolutionary if we recall that blacks and women were once denied all manner of legal rights.

Though Stone’s article had wide appeal, even gaining mention in a dissenting opinion by Supreme Court Justice William O. Douglas in the case of Sierra Club v. Morton, his thesis never gained traction in the courts for the same reason that the NRP habeas petitions should be summarily dismissed.

A central premise of Anglo American law, reflected in the Supreme Court’s standing case law, is that individuals (and associations organized by individuals) have legal rights that only they can exercise. This is as it must be under a constitution founded on equal liberty.

The NRP lawyers will be quick to suggest that the chimpanzees they seek to represent are no different than children and others represented by legally recognized guardians. But it is one thing to represent and therefore purport to know the best interests of individuals of one’s own kind and experience, whether slaves or children. It is a different matter entirely to represent and claim to know the best interests of a chimpanzee. Why is the NRP any more qualified for this task than the persons with whom Kiko lives or than the researchers with whom Hercules and Leo work? At the end of the day the NRP will be representing its own interests, noble as they may be.

Rather than open the courthouse doors to an endless parade of lawsuits brought in the name of nonhuman rights by a predictably wide array of self-proclaimed guardians in pursuit of their own agendas, the courts should reaffirm that rights are a means of protection peculiar to human beings. The legitimate and often compelling desire of humans to preserve species and protect individual animals should be left to the legislative process where the tradeoffs inherent in human interaction with a complex (and often cruel) natural world are best made.