Legal “Persons”? The New York Court of Appeals, Chimpanzees, and Habeas Corpus
On December 4, 2014, five judges of the Appellate Division of the New York Supreme Court, Third Judicial Department, delivered judgment on a rather unusual matter. In The Nonhuman Rights Project v Lavery, 518336 (NY App Div), the court had to consider whether a captive chimpanzee could be considered a legal “person” entitled to a habeas corpus proceeding.
This case raises some basic questions about law, morality, and what we owe non-human animals. In what follows, I outline the matter’s history, the arguments of the petitioner representing Tommy the chimpanzee, and the court’s decision to deny Tommy the status of “person” in the relevant legal sense. I close with some reflections on the distinction between moral and legal personhood and what morality might require of us in the future.
Legislative Framework & History of Proceedings
Section 7002 of Article 70 of the New York State Civil Practice Law and Rules (CVP) codifies the common law writ of habeas corpus and provides, in part: “A person illegally imprisoned or otherwise restrained in his liberty within the state … may petition without notice for a writ of habeas corpus and inquire into the cause of such detention and for deliverance.”
Tommy, upon whose behalf the petition was filed, is a chimpanzee currently being kept on the respondent’s property in Gloversville, New York. The Nonhuman Rights Project, the petitioner, had sought an order to commence a habeas corpus proceeding on Tommy’s behalf, on the ground that he was a person being unlawfully detained by the respondents. The court of first instance found that the term “person” under Article 70 did not include chimpanzees, and refused to grant an order for habeas corpus proceedings. The petitioner appealed as of right.
For the reasons outlined below, the Third Judicial Department ultimately agreed with the court below, concluding that a chimpanzee is not a “person” entitled to the rights and protections afforded by the common law writ of habeas corpus.
The Argument for Tommy’s Legal Personhood
It is important to note, as the Third Judicial Department did, that the petitioner was not asking the court to evaluate the adequacy of Tommy’s living conditions, nor arguing that the respondents (those housing Tommy) were violating any statutes governing the possession of domestic animals (2).
Rather, counsel for the Nonhuman Rights Project initiated the application under section 7002 of the CVP to make arguments for the expansion of the common law’s understanding of the term “person.” This is consistent with the petitioner’s mandate “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.”
For brevity’s sake, I reconstruct the petitioner’s argument from the court’s decision as follows:
- Human beings are autonomous and self-determining animals
- Due to these attributes of human beings, the common law recognizes human beings as legal persons
- Chimpanzees, in a sense sufficiently similar to humans, are autonomous and are self-determining beings
- Thus, the common law should recognize chimpanzees as persons
Notice that the argument is, formally speaking, valid. What remains to be seen is which premise the court rejects.
The Reasons of the Third Judicial Department
Interestingly, the court did not consider the truth of the third premise, which would require extensive (and fascinating) arguments. Rather, it simply noted that the petitioner “submitted the affidavits of several experts in an effort to establish that, in general, chimpanzees have attributes sufficient to consider them “persons” for the purposes of their interest in personal autonomy and freedom from unlawful detention.”
Instead, the court took aim at the second premise by offering a particular understanding of legal personhood based not in autonomy or self-determination but, instead, in the idea of a social contract. For the court, legal rights like personal liberty are recognized on the condition that certain social burdens are shouldered: “the ascription of [legal] rights has historically been connected with the imposition of societal obligations and duties … Under this view, society extends rights in exchange for an express or implied agreement from its members to submit to social responsibilities” (4).
As the court noted, this “social contract” view of legal personhood is consistent with the expansion of personhood to entities like corporations or municipal entities, which, although not human, are able to take on legal rights and responsibilities.
So, according to the court, premise two is incorrect, or at least, incomplete. Human beings do not enjoy legal personhood because they have the properties of autonomy and self-determination. Rather, these properties allow them to respond to the offer of a social contract, after which the law then extends them legal rights. It is that response to the offer — the possibility of reciprocation – which motivates the legal system’s recognition of offerees’ legal rights.
If the court is correct that the operative conception of legal personhood is the “social contract” view, then it follows that premise 2 is incorrect, and the petitioner’s argument must fail. As the court noted, “unlike human beings, chimpanzees cannot bear any legal duties, submit to societal responsibilities or be held legally accountable for their actions” (6). On this basis, the court refused to confer the status of legal ‘person’ on chimpanzees.
However, the court noted that the rejection of this particular ‘rights paradigm for animals’ does not leave them defenceless: “the petitioner is fully able to importune the Legislature to extend further legal protections to chimpanzees” (6).
Morality, Law, and Animals
At this point, one might find the court’s social contract understanding of personhood and the rights from which it flows repugnant. Surely, one might think, a being’s rights and personhood are grounded in certain relevant features of that being: the capacity to have interests, to self-determine, to choose the better over the worse. In determining who counts as a “person,” the law should look to see if those features are present in a group of beings and, if so, extend protection to that group. This, roughly speaking, is the argument that was offered by the Nonhuman Rights Project.
It is important to remember, however, that the court made a determination about the source of legal personhood and the accompanying legal rights. The law is in the business of structuring relations between those recognized as actors under its purview; the status of legal personhood confers a strong set of protections from the state, providing the entity dubbed “person” with a set of legally defensible claims against the state and others.
However, in return for these benefits, the state expects a kind of minimum standard of conduct. When that standard is not met, the state can justifiably retract those entitlements, for example, in the form of the penal sanctions of the criminal law. It is far from clear, on the evidence that we currently have, that this minimum standard can be met – or even meaningfully appreciated – by any non-human animals. Without that capacity, the status of legal personhood is inapplicable to those animals.
A failure to extend legal personhood to non-human animals does not in any way, however, preclude the recognition of moral rights. It may very well be that chimpanzees like Tommy possess a set of morally relevant cognitive capacities that we recognize in human beings, and, as such, it may very well be that we owe them something like the set of moral rights – manifestations of concern and respect – we afford human persons. To the extent that such morally relevant similarities exist, we should extend moral concern to non-human animals through legislative protection.
Conclusion: What Morality Might Require
Morality has a large role to play in this process of legislating concern for non-human animals. As science advances and we learn more about the cognitive capacities of other species, we must be able to identify and agree upon what sorts of psychological features create a basis for moral concern. Together, we will need to locate moral personhood’s equivalent to legal personhood’s capacity to take on a social burden, and be willing to extend our concern to those beings possessing those features.