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By Cathy Kirkman

About this blog: This blog explores life in Palo Alto with our dogs, cats and other pets, as well as the urban wildlife around us, the title being a reference to Sharon Creech's lovely story, "Love That Dog." I grew up in Palo Alto surrounded by ...  (More)

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Animal rights: Monkey see, monkey sue?

Uploaded: Dec 4, 2013
Earlier this week a lawsuit was filed in upstate New York asserting that a chimpanzee is a legal "person," entitled to various rights of personhood. When we think of animal rights, we usually think of laws relating to the humane treatment of animals, as there's clearly a lot to be done about factory farming practices, and the new gag laws against filming factory farms seem downright Orwellian.

But should a monkey have the right to bring a law suit? The case was filed by the Nonhuman Rights Project, which describes itself as follows:

The Nonhuman Rights Project is the only organization working toward actual LEGAL rights for members of species other than our own. Our mission is to change the common law status of at least some nonhuman animals from mere "things," which lack the capacity to possess any legal right, to "persons," who possess such fundamental rights as bodily integrity and bodily liberty, and those other legal rights to which evolving standards of morality, scientific discovery, and human experience entitle them.

They've clearly done their homework, in terms of their theory of the case and legal research supporting it. They have filed a petition for a writ of habeas corpus, which is a court order to bring a prisoner or some other person being detained before the court to address their legal rights. So if the court issues a writ of habeas corpus (Latin, "you have the body") for Tommy, regardless of the outcome of the case, they will have created case law that a monkey is entitled to this recourse previously reserved for humans. Tommy's lawyers cite a lot of case law about how habeas corpus was used for slaves, even when they were considered legal chattel. However, slaves were in fact human, so there was a fundamental failure of the legal system to protect humans, not a question of the protection of non-humans, even if slaves were considered sub-human at the time.

The Nonhuman Rights Projects has also established a $5,000 trust fund for the monkey Tommy and some of his primate friends. They did this because New York has a statute that allows pets to be designated as the beneficiary of a trust fund, to allow people to take care of their pets in their wills. In fact, most states have these laws now. In creating a trust for Tommy, his lawyers are saying that these trust fund animals are legal persons under New York law, at least for the purpose of the trust.

Imagine a trust fund dog somewhere, and an evil human trustee taking advantage of his riches -- perhaps the dog is being abused, but the trustee is hiding this fact to keep control of the trust assets. There would need to be a legal remedy to address this. But is it a writ of habeas corpus to produce the dog (monkey in this case) as a person, or is it something else? Is a rich hamster entitled to a writ of habeas corpus? The New York pet trust law does not declare the pets to be legal persons, just that the trust may exist for the care of pets. Perhaps as legal beneficiaries they will be accorded this status? Or should it be a different kind of writ, like a writ to produce chattel property or evidence in a case? Any litigators out there?

Tommy's lawyers are also asking for the writ to be issued on the grounds that in general the common law should recognize him and other chimpanzees as legal "persons". The common law is the evolving body of judge-made law that enables our legal system to adapt to new situations, apart from statutes enacted by legislators. This is the heart of their case and their ultimate objective. They present a score of affidavits from primate experts on the cognitive functions of chimpanzees to show that they have human-like brain capacity. Their hope is to get a legal ruling of common law "personhood" that acknowledges basic rights of life and liberty for Tommy and his brethren, which can be limited in terms of the rights of the monkey-person to reflect the extent of his mental capacity. They assert that like a mentally impaired person, the chimp would have legal rights as a person, but not have the full rights of a competent adult.

So let's get to the slippery slope. If the chimp is a legal person, would he be entitled to equal protection and other benefits of the United States Constitution? Citizenship? Right to bear arms, go to public school, vote? Of course this sounds like nonsense, but that's one side of the slippery slope argument. The creation of personhood as a legal fiction was done to allow us humans to form corporations, but the extension of rights to the corporation itself has resulted in the Citizens United case and money being free speech, so the slippery slope is real.

The other side of the slippery slope argument is that if chimps are legal persons, then why can't dolphins, dogs, and other intelligent animals get a ruling of legal personhood of a limited scope that fits their intelligence? It's not so far-fetched -- in India dolphins have been given some legal rights as non-human persons, namely to be free of captivity in marine sea parks like Sea World. When you read about how the confinement affects the animals, you have to be happy about this development.

However, the elephant in the room (sorry) is whether our legal system is meant for humans, period -- the rights of humans, and the duties of humans to treat animals humanely, as dolphins could be protected this way. The formidable jurist Richard Posner lays out his view that laws are for humans, in a Slate magazine debate with Princeton ethicist Peter Singer.

But what about the caveman in the Geico commercials? Does Judge Posner mean homo sapiens, or any hominid being of the genus homo, including homo erectus or homo neanderthalis, if somehow they were to show up?

Finally, the Tommy case raises the related matter of the significance of the words we use to designate our relationship with our pets, as words are very powerful. The old-fashioned term was that we were our dog's master. That sounds like slavery, so no one uses it much anymore, although it did imply that the dog needs to be under your direction and control, which seems to be lost upon some people today. Now mostly people say they are the dog's owner. Legally, that's correct, so it makes sense, and also suggests the direction and control piece of the equation. However, when you go to the vet, they call you the "mom" or "dad" of the dog. That to me is entirely ridiculous, as I'm the parent of my children alone, but it makes some people feel good, so who cares.

Lately you hear some people saying they are their pet's "guardian." That's interesting, as a legal guardianship or conservatorship is something that is extended to humans lacking capacity to act as adults. Use of the term suggests we have legal responsibilities towards our pet, which I agree with. However I don't agree that my dog can get a lawyer to revoke my guardianship, or whatever else flows from this concept.

I love my pets, but they're not my children, and they're not people in the natural sense. Whether chimps and pets will become people in the legal sense, we'll have to see. Your thoughts? It's interesting stuff.
What is it worth to you?


Posted by Dario Ringach, a resident of another community,
on Dec 4, 2013 at 7:41 pm

We can and should pass animal welfare laws that describe how is that we, humans, ought to treat other species -- in this case we are talking about chimps (an ape, not a monkey). But non-human animals are not capable of behaving as moral agents in a community of equals. They are not able to accept the obligations that accompany the rights. To define them as persons is nothing but a legal maneuver to create the slippery slope you describe. This, and only this, is the true intent of this group.

Posted by Cathy Kirkman, a Palo Alto Online blogger,
on Dec 4, 2013 at 8:03 pm

Cathy Kirkman is a registered user.

Thanks Dario, I appreciate your comments. I hope you read the essay exchange on Slate between Posner and Singer, very good stuff. And thanks for noting that chimp and monkey should not be used interchangeably -- I see that within primates, chimps are of the hominid family of great apes (which includes humans), while monkeys are in entirely different families. Also you raise an interesting point that I have not seen addressed elsewhere in this discussion -- how the concept of having legal rights of personhood without any social obligations for the person should be reconciled. Even humans with limited capacity have some responsibility and accountability to society, commensurate with their capacity, except in cases of infancy or mental impairment where the person can in no way be held responsible for their actions.

Posted by Hmmm, a resident of East Palo Alto,
on Dec 9, 2013 at 3:24 pm

Hmmm is a registered user.

Utterly ridiculous. Thank dog Dario nails the argument against concisely.

Posted by A, a resident of Green Acres,
on Dec 10, 2013 at 9:31 am

You have brought up a good point that who our legal system is for is different than whether all entities that need legal protections in courts as humans should be afforded all rights as humans, as seems to have happened with corporations. I'm not so sure that's a slippery slope so much as a failure to differentiate. Corporations are fully persons under the law, and shouldn't be if it means they get more rights and less responsibility than the rest of us, as has happened. But the law is an ass.

Ecuador's Constitution now gives rights to nature, to exist, for example. I am strongly in favor of such a view. When we look at how complex life on earth is and how long it took to prduce it, and just how harsh the universe is, we should be making it hard to destroy life on earth. We hit the cosmic jackpot here and we're ruining it. Nature should have legl rights against that, in fact, nature should be getting that same superior legal deal as corporations.

Elevating the status of non-human animals under the law seems about the granting of a legal status, not a granting of an intellectul status. Kind of like the difference between marriage under the state and marriage in the church. But granting the legal status could improve the intellectual status, as for examle with slaves. Or not, as for example with corporations.

Maybe this suit will open up the possibility of non-humans who are humans under the law, but aren't afforded all the same rights because they aren't in fact human, maybe we start differentating. Maybe then we could put corporations in that category too and stop givng them special privileges. If I were working against Citizens United, I'd be watching this case very closely.

Posted by Cathy Kirkman, a Palo Alto Online blogger,
on Dec 10, 2013 at 11:24 am

Cathy Kirkman is a registered user.

Thanks for your thoughtful perspective, and that is fascinating information about Ecuador. Here is an excerpt from the Constitution of Ecuador, which was revised in 2008 by referendum: "Persons and people have the fundamental rights guaranteed in this Constitution and in the international human rights instruments. Nature is subject to those rights given by this Constitution and Law."

You raise an interesting point about nature -- if global warming is a tragedy of the commons, how do we preserve our planet without an approach that favors the planet over human gain? In terms of slaves that was a matter of recognizing absolute equality as humans, the same with women's rights. So there has to be a clear dividing line between humans and non-humans in my view, but whether some rights can abide in nature and its creatures by level of sentience or otherwise, is worth thinking about.

Posted by Nora Charles, a resident of Stanford,
on Jan 3, 2014 at 7:55 pm

I've just discovered your wonderful blogpost. This was such a fascinating, landmark case for animals. Clearly we must speak on animals' behalf, as people do for anyone without a voice. There are so many areas of cruelty, neglect, or tradition: poaching, animals in entertainment (zoos, aquatic parks, circuses, rodeos, dog fighting, bull fighting), fur and leather, lab animals, trophy hunting, factory farming, as you mentioned, whaling, the baby seal hunt, dolphin slaughter, the millions of dogs, cats, and other animals euthanized each year in shelters, among so many other terrible fates befalling animals. They deserve our protection.

I don't expect, alas, to see animals obtain rights in my lifetime, but I am cheered by various large and small victories and advancements. For instance, years ago it was hard to find household products and cosmetics that had not been tested on animals. The CNN film "Blackfish" has exposed the inhumanity of keeping orcas in the equivalent of bathtubs. Many restaurants now offer vegetarian and vegan options. There are now many alternatives to leather shoes and handbags. There are now No Kill animal shelters. Zoos are evolving and some will no longer house elephants. So, I have hope.

I look forward to reading more about this. And thanks for the link to the Slate debate. Peter Singer is one of my heroes!

Posted by Cathy Kirkman, a Palo Alto Online blogger,
on Jan 4, 2014 at 6:10 pm

Cathy Kirkman is a registered user.

Thanks Nora, I appreciate your perspective, and agree that in general society is trending towards more humane treatment of animals. I was discussing with family over the holidays about the constitutional rights of nature in Ecuador that another contributor mentioned, and while we all allowed that it is complicated, somehow we all felt good about it -- that nature had some standing there and their legal system would sort it out.

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