The Guardian reports:
Chimpanzees granted petition to hear ‘legal persons’ status in court
Wise’s argument in this case and others is that chimpanzees are intelligent, emotionally complex and self-aware enough to merit some basic human rights, such as the rights against illegal detainment and cruel treatment. They are “autonomous and self-determining”, in Wise’s words.
You can probably see why this post bears the “Self-ownership” tag. Many of the people arguing for legal personhood for animals are twerps like this one, who claims that she finds “discrimination on the grounds of species as distasteful as discrimination on the grounds of race or sex.”
However the arguments put forward by the Nonhuman Rights Project do not seem obviously wrongheaded to me. For instance they do discriminate on grounds of species, between higher and lower animals. This comes from their Q&A page:
Your first plaintiffs are chimpanzees, and you are also talking about elephants, whales and dolphins. What’s next after that? Dogs and pigs?
Our plaintiffs will be animals for whom there is clear scientific evidence of such complex cognitive abilities as self-awareness and autonomy. Currently that evidence exists for elephants, dolphins and whales, and all four species of great apes. So, for the foreseeable future, our plaintiffs are likely to come from these three groups.
Here is a fact I find disturbing to contemplate: some severely mentally disabled human beings are less intelligent than chimpanzees. If our society does start to act on that fact in its laws I hope and pray that it does so in the direction of granting more rights to animals, not taking rights away from disabled humans.
The litigation friend that concedes its own case (in any normal court) by its own name…
If God didn’t want us to eat pigs then he wouldn’t have made them out of bacon.
John Galt,
But people have always eaten people,
What else is there to eat?
If the Jou-Jou had meant us not to eat people,
He wouldn’t have made us of meat.
– Flanders & Swann
If the chimp is a person, I must respect its rights. Can it understand or respect my rights? If not, how is it a person?
Can I sue a chimp for damages?
My opinions on this are not settled, but in answer to the Sanity Inspector’s question, let me ask another question or two. Can a small child understand or respect your rights? Can a mentally disabled person understand or respect your rights? Can a senile person understand or respect your rights? Can a person in a coma understand or respect your rights? Are these not persons?
Assuming Perry’s question is meant in a similar way, I would respond in a similar way. (OK, I believe that in British law senile people or people in a coma technically can be sued in their absence for things done before they lost their mental capacity, as has come up in the Greville Janner case, but toddlers or the mentally disabled can’t be, without this usually being taken to negate their personhood.)
Ms. Solent: We have well-established legal standards of capacity, competence, and majority to deal with those special cases among humans. But every chimp is mentally deficient, compared to the average healthy adult male human. We’ll need a new category for them, at minimum.
To clarify, I don’t think the Nonhuman Rights Project people are seeking rights for chimps that equal the rights of humans. If they are, I am not. The question that interests me is whether chimps or other animals could have a level of rights overlapping with the level of rights accorded to some humans.
A related question is whether erasing the clear line between humans and animals, even if were desirable in itself, would in practice result in human rights being weakened.
Jane Goodall is one of the world’s leading authorities on chimpanzee behaviour. She locked her own infant son in a cage whilst working in situ so that her son would not be stolen and eaten by any chimpanzees that broke into her dwelling.
Chimps are:
(i) incredibly strong (some reports suggested weight for weight seven times stronger than a human, and in absolute terms 3.5 times stronger.
(ii) highly intelligent, with cognitive abilities well recognised.
(iii) wild animals.
(iv) not human.
If chimps are to have rights, why not octopuses?
The Sanity Inspector,
“But every chimp is mentally deficient, compared to the average healthy adult male human. We’ll need a new category for them, at minimum.”
Errr… I hope the presence of the word “male” there is a force-of-habit typo. I could take offence at the suggestion that some chimps are not mentally deficient compared to the average healthy adult female human!
But yes, a new category would be needed, if anything is.
I’ve been cautiously in favour of this for years. It seems like some higher animals compare favourably to less-intelligent humans, and my rule of thumb of “I’ll give a nonhuman species rights when it can ask me for them” could actually be accomplished by a few of them.
As a general rule, no, they cannot – and that is why they are not considered legal persons, but instead have parents/guardians and similar, whether natural or appointed. The fact that they cannot be (legally) consumed or otherwise abused by other humans is a separate matter.
And yes, if an animal/robot/any other creature can understand, respect and reciprocate the rights of others, that creature should indeed be afforded rights similar to everyone else.
Mr Ed,
I suppose that the similarity of form between humans and chimps is in practice the reason why the possibility of rights for chimps does not immediately strike many people as ridiculous. However in principle the form should not matter, only whether the intelligence crosses a certain threshold.
If we ever meet sentient aliens that differ greatly from us in form and exceed us in intelligence, let us hope they take something like this attitude.
Natalie, the chimpanzee (and bonobo) genome is very similar to the human genome, and a chimpanzee can be dressed up to ‘play-act’ as a human, and can interact with humans in a manner that I am sure many find to be eerie. An octopus, however, still is found on many a Continental European menu. The forms seems to matter as a tactic, since to argue for Rights for Squid might seem just a little too extreme.
It should be noted that the range of humans, including those damaged and lacking cognitive abilities, are still humans. One friend of mine told me that a psychology lecturer told him in the 1980s that Downs Syndrome people were not ‘human’ as they had an extra chromosome, a ludicrous suggestion wholly ignorant of the fact that having an extra chromosome does not make that person not human, it simply makes them a developmentally-impaired human.
English law historically regarded kindness to animals as a charitable cause, not on the basis of kindness to animals as such, but on the basis that it was good for humans to be kind to animals, an important distinction. I fear that those who campaign for animal rights are amongst the first to deny humans property rights, including self-ownership.
That particular trisomy (21) has that effect. There are several other known trisomies. Some are immediately lethal (16). Others are usually lethal (13) or cause serious general defectiveness (8, 18), or moderate to negligible general defectiveness (46 XXX, XXY) or developmental impairment (46 XYY). Many Trisomy 46 cases are never diagnosed as such.
Chimps (and many other sentient beings) are not members of our social order(s)
Whatever “obligations” members of our social order, in their relationships with those beings, may feel exist, they do not arise out of membership in the social order (with its mutualities of obligations)and hence do not come within the purview of LAW which defines and describes our observed social order and the relationships within it.
This is not a “new” issue. It was brought up on LibertyLaw awhile back, and I will find the post dealing with it for repetition here.
Of course, if enough desire a different form of social order than the one now observed (as so often happens) they can establish Rules of Policy (which differ from Law, but may be given the same force [with a different meaning]).
My memory was wrong, it was at the Hoover Institute:
A response to Do Chimps Have Human Rights? By James Huffman* in Defining Ideas.
*Dean Emeritus, Lewis & Clark Law School
Perhaps there is a different, but not contra, perspective of the issues you note in “Do Chimps Have Human Rights?” which may offer further clarification.
Would you agree that, over something more than the past 500 years, a (if not-the) predominant function “our” legal systems has been the identification, delineation, reconciliation (including enforcement) of obligations recognized and accepted within the social orders extant over those periods of time?
That general statement must also take into account the “drift” away from that predominant function, including a shifting predominance of functions which has occurred in our own immediate society over the past century and certainly accelerated since my late entry, at 28, to the bar in 1952.
Would you further accept that (in physical reality, not theory) any “right” exists only by reason of concomitant direct obligations, requiring actions or constraints of human conduct? In simplified terms: “Animal-Rights” are comprised of the obligations of humans in their relationships with animals; “Children’s Rights” are comprised of the obligations of adults in their relationships with children; the rights of freedom of speech, worship and association require obligations of constraints upon interference.
If we can go that far together, can we go a step further and conclude that those rights which are “human rights” rest on obligations that are commutative amongst humans; whereas, the obligations that humans may have in their relationships with animals are not, and by nature cannot be, commutative?
Despite how far legal systems may have drifted from original predominant functions, the identification and delineation of obligations cannot be expanded to encompass concepts that are at direct variance with what we know of the laws of nature and the rules of logic. It is of no little importance that the roles of obligations in human conduct be understood as the basis for the Rule of Law.
Huffman’s response:
Dear Mr. Schweitzer,
I believe we are in agreement. As you say, you offer a different perspective. I agree that your perspective is rooted in practical reality, but also theory. Wesley Hohfeld might have said that our two perspectives are jural correlatives. My emphasis was on rights, yours is on obligations, or duties in Hohfeld’s terms.
Like Hohfeld, I would agree that for any right there is a concomitant duty (obligation), or to state if from the perspective I take in the Defining Ideas piece, for any obligation there is a concomitant right.
Certainly it can be said, meaningfully, that humans have obligations toward chimps and other animals. But these obligations would exist as moral duties imposed by humans on themselves, not from correlative rights of the animals. And you explain why this is so in your observation that rights arise from obligations that are commutative among humans – or I might say that obligations arise from rights that are commutative among humans.
Chimps, so far as we know, are incapable of obligations, though a mother chimp may evidence, for biological reasons, something resembling an obligation toward her offspring. But we error to conclude from animal behaviors that resemble human actions encouraged or dictated by obligations that the animals are actually capable of possessing obligations toward humans. When the mountain lion eats my child, who do I sue for recompense and how does the lion meet its obligation?
I also agree with your suggestion that our rights/obligations based legal system has been adrift over the past several decades. For many years I taught tort law which has drifted from a system of rights and obligations to one of compensation based on ability to pay. It is a worrisome drift.
Thanks for your thoughtful comments. It is always gratifying, though rare, to discover that someone has actually read what one has written.
We should treat animals humanely as not to do so diminishes us.
That describes every cat that I’ve ever met.
I think I agree with Mr. Schweitzer’s approach, although I am not entirely clear on what he means by “commutative”; I would have used “reciprocal” instead, but perhaps he has a different meaning in mind.
Or hippos?
The trouble with that Tim is when this happens, that gentleman might come to regret where he is sitting.
The last point raises an interesting question.
One of the problems of democracy and universal suffrage is that it compels government to give the vote to some people whom some other people might consider idiots (indeed we have an established metric for this, the IQ test). Given that a number of animals – among them elephants, whales, dolphins and the great apes – both generate revenue, some of which is paid in tax, and qualify as legal persons (indeed more so than some humans, at least by this criterion), it appears franchise might not be as universal as we had taken for granted.
Roue le Jour writes:
Yes, mostly. And that is an argument at/for the transmitting entity.
But do not get caught in the equivocation (WRT the receiving entity) between “humane treatment” and “treatment befitting humans”.
Best regards
It occurs to me that there is a connection here with euthanasia (as in killing to prevent pain or suffering).
Animals, even especially higher non-human animals, are commonly put down in the appropriate circumstances. If/when (according to jurisdiction) we introduce the euthanasia of humans, are we not implicitly weakening (even doing away with) a distinction between humans and higher animals. And thereby supporting the legal transition to give human rights to animals (and presumably the higher ones first).
And the converse. If we give human (legal) rights to animals, does that affect our legal policy on the concept of animal rights (eg particularly euthanasia) for humans?
Best regards
Thank you for concern, Nigel, I shall try not to get caught in equvication. My point was that you could tie a chimpanzee to a rack and torture it with red hot irons and result would be the same as doing it to a human, screaming and writhing in agony. “It’s not a person” would not excuse such behavior.
The euthanasia question is an interesting one because a big difference between humans and animals is that we routinely care for those who cannot fend for themselves, aged Ps for example. We take this so much for granted that not to care for a sick person is a crime, yet in a “state of nature” that person would surely die.
Something being “distasteful” should not be a basis for law.
As for “discrimination” – that is just another way of saying “choice”.
As in a “discriminating person” (someone who careful chooses).
One either believes in freedom of choice – or one does not.
However……
If the argument is that chimps are reasoning agents – it would be foolish for me (someone who knows little of the science of these matters) to deny it out right.
I do not know whether they are or not.
However, if they are, then yes the non aggression principle would apply to them.
Although, if they are consistent, the people who argue that chimps are reasoning agents (persons) then they should support chimps being put on trial when they kill each other.
If “agony” and “pain” were the standard of rights it would be OK to kill people painlessly in their sleep.
Animals have no rights – none whatsoever.
“To claim that man’s use of animals is immoral is to claim that we have no right to our own lives and that we must sacrifice our welfare for the sake of creatures who cannot think or grasp the concept of morality. It is to elevate amoral animals to a moral level higher than ourselves–a flagrant contradiction. Of course, it is proper not to cause animals gratuitous suffering. But this is not the same as inventing a bill of rights for them–at our expense.”
Commutative:
Not to put to fine a point on intent, but commutative seemed to cover the range of “exchanges” (encounters) in our social order; to-wit A to B, B to D, D to C, then C to A. But more often as units or groups of XYZs with HRGs, etc. Taking in all rather than just direct mutuality.
But I won’t be picky, given the premise.
Note incomplete sentences!
Maybe I should go back to just plain RRS
Indeed, Perry. I’m guessing that’s the only reason why hippocarts never caught on.
I understand, RRS, and agree with you.
Rights are ethical principles applicable only to beings capable of reason and choice. This discludes animals, or those with profound mental retardation. This does not mean we should not treat such beings with compassion but it does not mean they have rights.
Ms. Solent: Oops, yes that was quite unconsciously typed, no offense intended. Brain slipped a gear, sorry.
Taggart triggers something:
Every obligation does not create a “right.”
Yet, the existence of every right requires a supporting obligation.
“Can it understand or respect my rights? If not, how is it a person?”
That’s the point. We extend the protection of human rights to mentally disabled humans who can’t understand as a sort of courtesy, because, because however impaired, they’re still us; they are human.
Which isn’t to say that we shouldn’t extend similar – if not the same – courtesies to other reasoning animals, in recognition that they’re almost us. Treat them, in other words, humanely. But they’re not human. As Richard Schweitzer says above, they’re not members of our social order. Unless their kind can take part in that order, and the process of defining rights, it’s quite simply arrogance to impose ours on them.
I disagree, Sam: we do not extend to the mentally disabled the same rights as we do to fully able humans – rather, we extend a very specific and strictly limited set of rights to their legal guardians. Moreover, we even limit their rights as compared to the rest of the members of society. The same applies to minors as well (and to different extents to domestic animals*). That said, the reasons for our doing so are in fact as you describe (i.e. a mentally disabled person/young child still being human by most accepted definitions), but that is a separate point.
*The reasons for that being different, of course.
To say that a fetus or someone with severe mental retardation has rights because they are still human is meaningless – it is not through some trascendental essence of ‘humanness’, or through a human morphology that beings acquire what we call rights, it is through their ability to reason and their moral agency.
To ascribe ‘rights’ to beings incapable of understanding or reciprocating those rights is invalid.
So far in all this we do not see attempts to describe what a “right” is.
For most of the posts here it would seem that a right is a form of power over one’s (humans & other sentient beings)own self and conduct.
The capacity to use that power affects its possession and therefore its existence for any being, separately and apart from that beings involvements with other beings.
The variances in that capacity, may be physical, issues of maturation, mental (and arguably others).
We observe in nature, as well as in human relations, impacts on the formations and exercises of those capacities.
From that view, it may be easier to understand how all “rights” require concomitant obligations, but that all obligations do not necessarily create or give rise to rights.
No. It is not ‘meaningless’ even if it is indeed debatable and perhaps mistaken (but only perhaps). It just suggests to me that person is proceeding from a different set of axioms.
I certainly agree that animals should not be granted ‘human’ rights, but diminished rights for humans are generally seen on a sliding scale: children have less rights generally on the basis they are less able to understand their reciprocal responsibilities. But a 1 day old child does have *no* rights, even though it is completely unable to understand such notions. And does a person with a 90 IQ have rights? 80? 70? 60?
Sam:
It’s not courtesy, it’s a presumption of liberty. As a human, you are presumed to have liberty unless — on an individual, case by case basis — it can be demonstrated that you do not. Normally, this is discovered when you are a child and your liberties are being exercised for you by your parents, as Alisa described. But it can happen after adulthood, in the case of injury or disease.
dagny is partly right when it says that a fetus or a mentally handicapped person doesn’t have rights merely because he or she is human. They have rights because, as a human, there is an automatic presumption of liberty in the general case of a human being. But we also recognize the need for someone else to exercise those liberties in the name of the individual, in cases of diminished capacity. The term in the name of reminds us that this reassignment of liberties is on an individual basis. That is why some children can legitimately get certain freedoms from their parents earlier than other children, and why some mentally handicapped people require someone to assume responsibility for a greater range of their liberties than others do. But the liberty remains a characteristic of the individual (in both a legal and a moral sense) owing to this presumption of liberty.
Readers might be interested that this same story was taken up by Elizabeth Price Foley, guest-blogging at Instapundit. She’s much more hostile to the idea than I am, as are most of the comments to her post. But she certainly provides a wealth of interesting related links, mostly focussing on US law.
Back on “rights” again, then? Try “obligations” & it all looks much simpler.
From your link, Natalie:
IANAL, but I think this statement is very wrong. Is it not routine for the judicial system to grant habeas corpus to nonhumans? Didn’t South Dakota grant habeas corpus to 15 cats? Didn’t the United States government grant habeas corpus to 2,507 Live Canary Winged Parakeets? Not to mention many other interesting nonhuman defendants?
Any judicial body that supports the accepted process for forfeiture but rejects habeas corpus for any nonhuman entity or object, any at all, is trying to spread the jam on both sides of their toast.
Midwesterner, I think you’re confusing “habeas corpus” with an “in rem” proceeding. The former requires the jailer to “deliver up the body” so a court can determine wither the detention is lawful. The latter is a proceeding directly against a piece of property (it originated in the admiralty courts, to permit creditors to collect on judgments against absent ship-owners). Now it is commonly used in drug-related cases, to seize property allegedly acquired using drug money. But it is a action against the property itself, not against the person holding it (which is what a habeas corpus order is).
Irrespective of origin, the principle of bringing an action against things, non-humans, is that the state is engaging in litigation with a non-human entity. I pretty sure we both agree that by definition, “property” must involve a human and that trying the thing rather than the alleged owner (even in absentia) is an overt rejection of human rights and and a simultaneous displacement of human rights onto non-human entities. Even if the “in rem” case is for the purpose of establishing ownership, it should be between the contesting owners or creditors.
The entire concept of in rem is as wrong as the concept of “crimes against the crown/state/people/etc). It is just a way to lock infringed parties out of the case. In the case of “crime” the people who are truly damaged get at best a token statement at sentencing in criminal cases. The original law was civil if I remember my Anglo history correctly.
So unless I’ve gotten something further deeply wrong (always a ready possibility!) I stand by my assertion that legal actions must only be between human beings. Or, with respect to Natalie’s article, sentient beings.
Chimpanzees are much easier to anthropomorphize than dolphins. But I lean towards dolphins as being the most likely candidate for “human rights”.
This article discusses dolphins ability to (even using human originated sign language) understand abstract sentences. They even understand how sentence meaning changes when word order changes. When assigned an impossible task, she ignored the instruction. When given a partially nonsensible instruction she ignored the impossible part and executed the possible part of the instruction. Dolphins appear to be biologically capable of word and word order based language. The article concludes by restating an earlier observation by another researcher.
Even more interesting, and perhaps explanatory of why we are having trouble understanding dolphin communication, is the discovery that they can acoustically “see” objects and details in a way very similar to how we see with our eyes. Further more, rather then describing by narrative what they see/have seen to other dolphins, they might be able to project an image to them. It is possible they can do this even of things that they only imagine. It might be like humans being able to show each other images or maybe even movies.
Nothing here discusses an innate ability to reciprocate the rights of life liberty and property, but nothing we know of so far refutes it.
That is truly fascinating, Mid – thanks.
That really is fascinating Mid!
Douglas Adams explained Dolphin intelligence over 30 years ago.
http://youtu.be/MFg6Y7zbRg4
Fair enough, Tedd. I did say “sort of courtesy”, because I was dimly aware that there’s more to it than that, but that clears things up.
Which one’s rights would you rather see respected: Pongo or Jihadi John?
There is a reason why dolphins are still stuck in the ocean and monkeys are still stuck in the forest while we have progressed to the stars.
The reason is this – man is the only rational animal.
Rights are simply the recognition of that fact.
For dolphins, the invention and control of fire, a very useful stage on the way to the stars, is likely to be problematic for reasons outside of their control.
And in fact, we are still just touching on the fringes of our solar system.