By Grace Smith*
In In re Nonhuman Rights Project v. Lavery (Lavery II), the Appellate Division of the Supreme Court of New York denied chimpanzees legal personhood status and the ability to bring a habeas corpus claim.[i] The court denied chimpanzees legal personhood status primarily because chimpanzees are unable to bear legal duties and responsibility. However, when the Court explained why some people are granted rights even if they are not able to bear legal duties, it appealed to humanity and dignity.[ii] Petitioner, in response to the Court’s concern, argued that chimpanzees can bear legal duties. But the emphasis on legal duties was misplaced. There was a contradiction in the Court’s reasoning in Lavery II since it conditioned certain rights on the ability to bear legal duties while at the same time arguing those same rights were entitled to persons that have no such capabilities. The Petitioner should have recognized this contradiction instead of trying to argue within that framework, and would have fared better with a legal theory based on fundamental rights. It should have ultimately distinguished those rights that are unconditional, such as freedom of movement, from those rights that should only be granted to those who can bear legal duties.
Lavery II arrived after a stream of habeas corpus claims brought by the Nonhuman Rights Project (“NhRP”), a group advocating for advancing legal personhood status for particular animals. In 2013 NhRP filed three lawsuits: Lavery I, Nonhuman Rights Project v. Presti, and Nonhuman Rights Project v. Stanley. All involved chimpanzees held in captivity, seeking to use the writ of habeas corpus to move the chimpanzees to a sanctuary with more desirable living conditions.[iii] The NhRP supported its brief with affidavits from the world’s nine leading primate researchers with scientific evidence demonstrating that chimpanzees are highly complex, self-aware, and autonomous beings with cognitive and emotional qualities paralleling those of humans.[iv] Lavery I was the first case to result in a published decision by an intermediate appellate court. The court in Lavery I and Lavery II denied chimpanzees habeas relief because chimpanzees lack standing as legal persons due to their inability to fulfill legal duties, such as answering to criminal proceedings.[v]
While American courts have consistently denied the writ to chimpanzees, courts in other countries have begun to apply traditional conceptions of the writ, such as freedom from unlawful imprisonment, to chimpanzees.[vi] In Bogotá, Columbia, Judge Luis Armando Tolosa Villabona of the Supreme Court granted a bear named Chucho personhood rights in August of 2017.[vii] Chucho’s lawyer argued that there were no proper mechanisms in place for safeguarding fundamental rights for nonhuman sentient beings in Columbia.[viii] Judge Villanoba ordered the transfer of Chucho to a reserve where he could live in more “dignified conditions.”[ix]
Maldonado based his argument on legal precedent in Argentina. There, the Third Court of Guarantees ruled that a chimpanzee, Cecilia, was a nonhuman legal person.[x] The Court recognized Cecilia’s living conditions as deplorable and that, as a sentient being, Cecilia deserved the most basic liberties, such as freedom from such harsh condition and freedom of movement. The Court did not define “sentient being”, but according to many animals welfare groups, a sentient being is an entity with consciousness and the ability to feel positive and negative emotions. The Court emphasized as well that it was not affording chimpanzees “human” rights but rather fundamental rights.[xi]
In the United States, courts have taken a different view of legal personhood. At the trial level, the Court in Lavery II denied habeas relief because “case law has defined a legal person as having correlative rights and duties attached.”[xii] At the appeals level, the Court held similarly that chimpanzees cannot be held legally accountable or fulfill legal duties even though chimpanzees are cognitively and linguistically advanced for animals.[xiii]
In its brief, NhRP argued that entitlement to habeas relief should not depend on the ability to fulfill legal duties because current legal doctrine does not strip infants and the cognitively disabled of their rights merely due to their inability to bear legal responsibility.[xiv] In response, the Court reasoned that infants and the disabled are entitled to habeas due to their membership in the human community.[xv] Unlike in Lavery I, the petitioner in Lavery II tried to show that chimpanzees can and do bear responsibility, and that chimpanzees might even be trained to bear legal responsibility within the human community.[xvi] After recognizing that chimpanzees might have a sense of responsibility within their own community, the Court decided that the connection to legal responsibility was too tenuous.[xvii] Chimpanzees may feel a sense of social responsibility, the Court suggested, but they don’t have the ability to recognize, take ownership of, and be effectively punished for illegal acts that humans can and must take responsibility for.
There are two issues with Lavery II. The first is that the Court promoted a theory of reciprocity that values granting fundamental freedoms in return for the ability to bear legal duties. In other words, it advocated for granting rights on a conditional basis, which runs contrary to the very notion of “fundamental.” The second is that the petitioner, NhRP, should have explored and strengthened alternative legal arguments in its quest to grant animals a set of fundamental rights.
While the outcome of affording legal personhood to highly cognitive animals may seem radical, the Court of Appeals expressed a contradiction in its rationale, leaving the legal definition of personhood in a flimsy state. While the Court professed a theory of reciprocity wherein rights are granted in exchange for the ability to bear legal duties, it dealt with marginal cases by appealing to their humanity. Although infants and the cognitively disabled cannot bear legal responsibility, the Court argued that they are still members of the human race.[xviii] But the Court stopped short, failing to elaborate on why humanity, as a characteristic, should entitle an entity to rights. The Court failed to recognize that its emphasis on humanity at a fundamental level signifies that, more than the ability to bear legal duties, it is the ability to feel and exist as a being that should be the pre-requisite for entitlement to particular rights.
Granting rights in exchange for the ability to bear duties makes sense in particular areas of law and with respect to particular rights. Some argue that requiring legal accountability to each other as a social compact is at the core of the American legal system.[xix] The Bill of Rights, for example, is in some sense an instrument of collective action. The First Amendment grants freedom of speech and the freedom to petition the government. It carries with it somewhat of a social compact that says these rights are given in exchange for participation in the collective. Such participation requires that an individual be able to bear legal duties. Thus, a theory of reciprocity makes sense for right such as those laid out in the Bill of Rights because they are rights that are based societal, not always individual, interests.
However, not all rights are rooted in the concept of a social compact. The purpose of the writ of habeas corpus is to ensure freedom from unlawful imprisonment. It is Latin for “that you have the body.” [xx] We citizens are afforded the writ because it is immoral to wrongfully detain someone and deprive them of their most basic liberties, not because they are a person that can bear legal duties. Certain rights, like habeas relief, are thus distinct from others in that they are inalienable and unconditional.
However, the Court denied such rights could be unconditionally granted to animals. In response to petitioner’s argument that the legal duty rationale falls through when considering infants and comatose persons that cannot possibly bear legal duties, the Court drew a line at the human race:
Petitioner argues that the ability to acknowledge a legal duty or legal responsibility should not be determinative of entitlement to habeas relief, since, for example, infants cannot comprehend that they owe duties or responsibilities and a comatose person lacks sentience, yet both have legal rights. This argument ignores the fact that these are still human beings, members of the human community. [xxi]
The Court does not explain why being a member of the human community intrinsically guarantees certain fundamental freedoms. By premising its opinion on a theory of reciprocity (i.e., arguing that one’s rights are granted on the condition that one is able to reciprocate with legal and social accountability) but then subsequently arguing that being a member of the human community despite lacking this ability is sufficient to obtain rights, the Court ushers in a contradiction and confuses the definition of legal personhood. Underlying the Court’s concern for granting rights to disabled humans perhaps was more about a concern that it is simply wrong to deny certain rights to living, sentient beings, whether or not they can bear legal duties.
In its brief, NhRP argued that chimpanzees can indeed bear duties.[xxii] Chimps can bear duties within their own community, such as taking on the role of the food supplier or caretaker, and they can face social consequences as well. However, it would certainly be a stretch to say that chimps can bear legal duties within the human community. For example, chimpanzees cannot attend criminal proceedings for wrongs they have committed to humans, and cannot pay damages to compensate such wrongs. NhRP thus attempted to fit chimpanzees into a box that chimpanzees will never be able to fit into, ultimately causing their argument to backfire
While the petitioner attempted to argue that chimpanzees can fulfill duties, it should have emphasized that there are a limited set of rights that do not require the reciprocal ability to bear legal duties. As outlined above, reciprocity makes sense in many areas of law, but to require its application to certain fundamental principles such as bodily autonomy and freedom from captivity contradicts moral principles at the crux of our society. Perhaps advocating for a very limited set of fundamental rights instead of “legal personhood” would lead to more success for animal rights groups.
Richard Cupp, who wrote an amicus brief advocating against legal personhood for chimpanzees, correctly suggested that there is a danger in basing legal personhood on particular abilities, including the ability to bear responsibility.[xxiii] The fear is a reversal in progress that has been made, legally and culturally, for people with disabilities. He argues that over time “both the courts and society might be tempted not only to view the most intelligent animals more like we now view humans, but also to view the least intelligent humans more like we now view animals.”[xxiv]
He’s right. It seems wrong, some would argue, to say legal protections will be granted to people based on their cognitive ability. But at the core of that concern is that the maltreatment of a living, breathing being that is aware and can feel is immoral despite its level of intelligence. That is not to say that intelligence is irrelevant. While intelligence shouldn’t be a pre-requisite for obtaining fundamental rights, its high levels in certain animals renders it more immoral to deprive those intelligent animals of fundamental rights. But ultimately, one’s capability and ability to bear duties should not impact the granting of legal personhood. While it focused on capacity, the Lavery II brief tried to argue that chimpanzees can bear duties. It should have focused more on liberty and freedom from torture as fundamental rights that should be granted irrespective of one’s capabilities. For a fleeting moment, the brief did when it mentioned “personhood is unrelated to duties because bodily liberty is an immunity right that does not require capacity.”[xxv] However, the brief did not expand upon or push forward that legal theory enough.
NhRP should follow Argentina’s, Colombia’s, and Spain’s model. In 2008, the Spanish Parliament approved a resolution that granted certain creatures the right to life, liberty, and freedom from physical and psychological torture.[xxvi]
America should adopt a similar approach. America should attempt to define a limited set of inalienable rights that are distinct from rights given to legal persons on the basis of the ability to bear legal duties. America should identify which rights require a duty as its counterpart and which rights are inalienable. These certain limited rights that are inalienable should include the ability to be free from torture, experimentation, and captivity.
While it may seem like a far-fetched idea to grant legal personhood to animals, lifeless objects such as trusts, estates, unions, municipalities and other corporations have fundamental rights. However, the idea of granting rights to animals might seem less extreme if society progresses to view animals as beings, rather than things. The cause will also likely find more success if it attempts to argue for a limited set of inalienable rights within the current definition of legal personhood rather than giving credence to the notion that legal personhood is entirely based on one’s capabilities and the ability to bear legal duties.
*Grace Smith is a Junior Editor for MJEAL and can be reached at email@example.com.
The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.
[i] Stephen Wells, Legal Personhood for Apes, Huffington Post (Dec. 6, 2017), https://www.huffingtonpost.com/stephen-wells/legal-personhood-for-apes_b_6378486.html.
[ii] Matter of Nonhuman Rights Project, Inc. v Lavery, 152 A.D.3d 73 (N.Y. 2014).
[iii] Wells, supra note 1.
[iv] Brandon Keim, A Chimp’s Day in Court: Inside the Historic Demand for Nonhuman Rights, Wired Magazine (Dec. 6, 2013), https://www.wired.com/2013/12/chimpanzee-personhood-nonhuman-right/.
[v] Richard L. Cupp, Cognitively Impaired Humans, Intelligent Animals, and Legal Personhood, 69 Fla. L. Rev. 465 (2017).
[vi] Annette Gartland, Habeas Corpus Victory for Bear in Colombia Encourages Animal Rights Lawyers, Changing Times Media (Aug. 3, 2017), https://changingtimes.media/2017/08/03/habeas-corpus-victory-for-bear-in-colombia-encourages-animal-rights-lawyers/.
[xii] Richard L. Cupp Jr., Focusing on Human Responsibility Rather than Legal Personhood for Nonhuman Animals, 33 Pace Envtl. L. Rev. 517 (2016).
[xiii] Matter of Nonhuman Rights Project, Inc., 152 A.D.3d 73.
[xiv] Cupp, supra note 4.
[xv] Matter of Nonhuman Rights Project, Inc., 152 A.D.3d 73.
[xix] Richard L. Cupp Jr., Focusing on Human Responsibility Rather than Legal Personhood for Nonhuman Animals, 33 Pace Envtl. L. Rev. 517 (2016).
[xxi] Alan Yuhas, Chimpanzees are Not People: New York Court Decides, The Guardian (Dec. 4, 2014), https://www.theguardian.com/world/2014/dec/04/court-denies-legal-personhood-of-chimpanzees.
[xxii] Wells, supra note 1.
[xxiii] Cupp, supra note 4.
[xxv] Cupp Jr., supra note 14.
[xxvi] Jon Kelly, The Battle to Make Tommy the Chimp a Person, BBC News Magazine (Oct. 9, 2014), http://www.bbc.com/news/magazine-29542829.