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When Apes Have Their Day In Court

Shawn Thompson follows legal efforts in the U.S. and Argentina to win rights for apes, exploring arguments about morality and autonomy along the way.

Don’t worry. It may not be the beginning of the end. Chimpanzees won’t be voting in elections or applying for drivers’ licences any time soon. But it is possible that the rights of chimpanzees and other apes could change radically in the West through a legal strategy being tried in the U.S. court system, which, if successful, could transform the nature of ethics itself.

The legal strategy is intriguing. It involves leveraging underlying principles of the justice system that are consistent with the thinking of the philosopher Immanuel Kant (1724-1804), particularly the principle of autonomy.

Kant is relevant in the debate on the rights of apes in several ways, beginning with the basic choice of whether to explain morality through empirical findings, or rather, like Kant, to rely on the detached use of reason to derive morality.

Scientists have recently been trying to introduce an empirical theory of the origins of morality in a way that applies to apes. The theory from people such as the influential primatologist Frans de Waal, is that natural selection favours a social species like ours, where individuals co-operate and make sacrifices to benefit the group as a whole. This, the argument goes, has led to the predisposition of humans as good social creatures in a way that helps our societies, and nature rewards us with feel-good emotions for co-operating. De Waal therefore believes that there is an empirical basis for morality, dismissing philosophers such as Kant for their theory-based abstractions. Moreover, the primatologist says in his 2006 book Primates and Philosophers: How Morality Evolved that it is wrong to pursue the rights of apes in court, or even offer courses in animal law, as the prominent animal-rights lawyer Steven M. Wise does. As de Waal explains, apes are entitled to humane treatment in the sort of research he does, but not to the legal rights of a full and responsible member of society, because “rights are part of a social contract that makes no sense without responsibilities.”

From a Kantian perspective, the philosophical debate about morality depends on the idea of a free rational agent, whose actions are not determined by other forces. Indeed, for Kant, to act morally is to act in a purely rational way without compulsion, reward or self-interest. This is Kant’s idea of pure autonomy. Kant would therefore argue that the scientific basis for morality that de Waal and others suggest is wrong, since it proposes agents who are not completely free to choose, since it is biology – evolution and genetics – that decides how they act, and rewards those actions.

Current Cases

While the debate rages about the basis of morality, there are current court cases trying to win rights for apes. The justice system is probably the purest form of a relatively independent rational system that we use in the governing of society, with its own rules, procedures, and standards for argument and evidence, so it’s interesting to observe how rationality functions within this domain. We can ask, how rational is the argument that intelligent species such as apes should have the rights of what the legal system calls a person?

On one side is Steven Wise, president of the Nonhuman Rights Project, and according to British primatologist Jane Goodall, “one of the world’s most prominent animal-rights lawyers.” Wise argues in court that chimpanzees are entitled to the right of liberty, and so should not be imprisoned. His application for a common law writ of habeas corpus led to a landmark hearing in May 2015 to determine whether the judge would order the release of two chimpanzees held at Stony Brook University on Long Island.

This last year has been a busy one for this kind of legal activity for ape rights. An Argentinian association of lawyers for animal rights named AFADA also made so-called ‘Great Writ’ habeas corpus applications for an orangutan named Sandra and a chimpanzee named Cecilia. The circumstances in these cases are legally complicated and their ambiguities can easily lead to misinterpretation, but basically the habeas corpus for Sandra in the Buenos Aires zoo failed, yet the Cámara Federal de Casación Penal nevertheless ruled in brief and without explanation in December 2014 that Sandra was ‘a subject of rights’. Sandra thus became not an ‘object’, as animals traditionally are legally, but presumably a ‘person’. The legal status was clarified in October in a ruling by Argentinian Justice Elena Amanda Liberatori in another case with the orangutan Sandra. Liberatori called Sandra “una persona no humana” or “a non-human person” and ordered the city of Buenos Aires to provide what is “necessary to preserve her cognitive abilities.”

The problem is in interpreting internationally what has been achieved in Argentina, which has a justice system that works differently than in the United States or England. The Argentinian justice system does not have precedent in the way the English common law system does, which involves the modification of law through judicial decisions. A common law ruling on the chimpanzees’ habeas corpus applications in England or the United States would create a precedent that essentially changed the law. However, in Argentina, a similar ruling does not have the same effect, since a substantial change would require decisions at a legislative and constitutional level. Thus the Cámara Federal de Casación Penal’s ‘subject of rights’ ruling on Sandra came without the crucial change of the Argentina civil code, which would apply the same status to all intelligent beings, and would obligate judges in Argentina to treat all cases with intelligent creatures this way. Sandra was legally declared a ‘person’ only in a very limited way. So to what degree this is a victory for the rights of apes is open to interpretation.

In the United States there have been other developments in court. The New York hearing I mentioned earlier concerns two chimpanzees, Hercules and Leo, owned by the University of Louisiana, and being used for research by the anatomy department at Stony Brook University. The ‘show cause’ hearing for their habeas corpus application was heard May 27, 2015, in New York County Supreme Court in Manhattan by Justice Barbara Jaffe. Hercules and Leo were being used in research to understand the possible origin of bipedalism among hominids. Wise argued there that the two chimpanzees have been imprisoned in psychologically damaging ‘solitary confinement’ from the time they were three years old.

This show cause hearing was a landmark because for the first time a U.S. judge ordered a defendant incarcerating a non-human living being to give the court a legal basis for the incarceration. The judge listened to arguments as to whether a chimpanzee could be a person for the purpose of a common law writ of habeas corpus.That was a remarkable development.

Wise & Sapience

Orangutan photo © Shawn Thompson 2015. His column in online ecomagazine Mongabay is at http://news.mongabay.com/list/the-ethical-ape/

Why make habeas corpus applications for apes? What does it mean, and how does it make sense both rationally and as an animal rights strategy?

A habeas corpus application is meant to apply to a person being held illegally. It deals solely with the issue of liberty – that is, whether the state has a legal right to detain someone. If you’re locked up and your lawyer thinks the authorities have no legal basis for detaining you, your lawyer can make a habeas corpus application for your release. For a court to order the release of a chimpanzee through a writ of habeas corpus, it must accept the ape as a legal person for that purpose, and not as an object or property, as animals now are in legal systems around the world.

The law is not fixed on what a ‘person’ is, but changes over time. At different times in Western culture, certain classes of humans – such as women, children, slaves, or natives – were not legally full persons. That changed. By comparison, in contemporary law, corporations have the status of a ‘person’ even though they’re not intelligent beings like apes; and infants at a stage of development below the cognitive abilities of an adult ape have rights that the ape doesn’t have. For the most part, therefore, the law applies to those with Homo sapiens genes, and not to all intelligent beings. Steven Wise is trying to change that. He has crafted an ingenious argument in order to win basic rights for all intelligent, autonomous species, using the legal principles of liberty and equality. The particular ingenuity of Wise is to appeal to the underlying rationality that makes the legal system work.

I met Wise for dinner in Vancouver in March this year – a night, as I recall, of heavy rainfall, as we sat in a restaurant looking through the window west over English Bay to the wide open sea, symbolic, I like to think, of the expansive scope of the conversation. This was two months before Wise would be arguing his habeas corpus case in court on the other side of the continent. Wise explained to me that the law puts a high value on autonomy: “Judges so value the liberty rights that stem from autonomy, they will trump almost anything.” And as Wise realized, and said to the court later, the fundamental principle and purpose of the writ of habeas corpus is to protect “the autonomy of autonomous and self-determining beings.” As the conversation unfolded that rainy night in Vancouver, and I listened to Wise construct layer on layer of logic, the lawyer used phrases such as “autonomous, self-determining being” and “a rational means to a legitimate end” repeatedly, like a kind of cerebral drum beat.

Humans & Other Apes

Later I realized that I had to sort out in my own mind how the legal arguments around autonomy are different from more familiar arguments based on the capacity of apes to think, feel and suffer, or from arguments based on the genetic, physiological and behavioural similarities between humans and apes, these being the main focus of much of the heated debate in science and ethics about granting rights to apes. The role of reason in this debate concerning how apes compare to people, is to make judgements on similarities and differences, continuity and discontinuity, order and hierarchy, with the serious consequences that follow.

The basic issue of this debate is to what degree apes are like human beings. The common ethical argument is that an ape is a person because it has a level of intelligence (which Jane Goodall calls ‘sapience’) comparable to a human being, and that this can be demonstrated empirically.

This is a similarity argument. Ironically, as Wise points out, the similarity argument is also used to justify the harm done to chimpanzees in research laboratories. They have been useful in medical experiments as substitutes for human beings precisely because they are so similar to humans mentally and physically, to the point that they can be probed and infected to see how a human being might also be affected. So, chimpanzees are similar enough to harm for the benefit of human beings, but apparently not similar enough to be protected from the harm that human beings do to them. That painful contradiction aside, a common ethical argument is that if two beings are sufficiently alike, then they should be treated alike.

The argument of the similarity between apes and humans does carry enough weight to convince some people to accept the idea of advancing ape rights. Others just aren’t convinced. The problem with the argument is that there is no precise way to determine what the threshold should be for being ‘sufficiently’ alike. What does ‘sufficiently’ alike mean? And how do we measure this? What is the threshold to be a person? It’s a little like asking how intelligent is intelligent? How many birds make a flock? As Wise says, “Everyone is infinitively similar and infinitely dissimilar from everybody else.” How do we then decide when things are similar and when different, and the relevance of that?

Several years ago I interviewed Frans de Waal at a science convention, also in Vancouver. “In your mind,” I asked de Waal, “is there a threshold that demonstrates that something is a moral being?” He responded, “I don’t know. I’m not sure I can easily define that. I do feel that human morality is far beyond what I see in the apes.” He said that chimpanzees do demonstrate altruism – making sacrifices for the benefit of another ape – but human morality is at “a different level” – although, he said, human morality couldn’t exist without the basis for it that is also observed in chimpanzees. So for de Waal morality, like the colour spectrum, is a gradual progression, with a threshold that’s subjective – a matter of taste.

In a sense, whether we see things as alike or not is a consequence of the system of classification we use. There is, however, a deeply entrenched belief that humans and other apes – both primates and descended from a common ancestor – are essentially different. The belief in taxonomical distinctions like this may be so deep and habitual that reason alone is not powerful enough at the moment to change our minds. French philosopher Michel Foucault (1926-1984) has helped us understand the strange and arbitrary nature of classification in his book The Order of Things. One noteworthy example from history of the faulty application of taxonomy is the story of Ota Benga, a pygmy kidnapped in Africa, hauled across the ocean to the United States, and put on display in a cage in 1906 in the Bronx Zoo with an orangutan named Dohung. And, in fact, some races and ethnic groups have been classed in the past as animals by other races and ethnic groups, to the point that marrying across this purely hypothetical divide was considered ‘bestial’.

Autonomy & The Law

So much for the common argument based on perceptions of similarity: it becomes a matter of agreeing among ourselves what we include and exclude when we group things together or not. What about the separate legal argument – of autonomy?

The concept of rational autonomy is a primary principle both for the justice system and for Kant. The idea is that our ability to deliberate rationally frees us from being puppets of our natural instincts, as well as other influences. As Frank Williams III and Marilyn McShane explain in Criminological Theory (1998) concerning the justice system’s roots in Eighteenth Century political philosophy, with its emphasis on free will choices, “The entire legal structure is founded on the concept of a rational personality and responsibility for one’s own actions.”

So autonomy – freedom of choice and being independent of compulsions in order to act ethically – is a pure, inviolate and essential principle in the legal system: autonomous beings are responsible for the choices they make, and the argument is that, unless they are harming others, they should not be enslaved or coerced against their will. The law would not make sense for beings which are not autonomous. Steven Wise realized that the principle of autonomy is deeply entrenched in the foundations of law, so he introduced the accepted legal principle of autonomy specifically into the legal context of liberty in a habeas corpus application, which, although an apparently natural fit, he believes has never been done before.

The principle of autonomy was also the foundation of Kant’s moral position two hundred and thirty years ago, as he explains in his book Groundwork for the Metaphysics of Morals (1785). As Kant helped us understand, autonomy includes being able to make choices and act independently of compulsions – including instincts and other biological compulsions. This is not easy for human beings to do, and yet there are claims that apes can act autonomously, according to some scientists, including some cited by Wise to the court, and some I have interviewed. I myself saw two orangutans acting together to make choices against their individual interests and biological urges. I was in a private area of Taipei Zoo, and observed a male and a female orangutan refuse the strong biological urge to have the sex that both clearly wanted because it was against the vocal wishes of the young orangutan caged up with them. In frustration the male yanked a fire hose in the cage. I interpret this incident as evidence for my belief that orangutans can act autonomously, but I would be countered by Frans de Waal, who would interpret my observations as evidence that the orangutans are acting through biology and evolution to cooperate. Kant would perhaps tell de Waal and me that we just can’t know.

But Kant is not the one arguing in a Twenty-First Century courtroom. Wise is, and his habeas corpus applications are based on the idea that chimpanzees are sufficiently like human beings in a way relevant to habeas corpus. As evidence, he presented affidavits from experts which “clearly show that chimpanzees are autonomous and self-determining beings.” The research indicating that chimpanzees are self-reflective, thinking beings, was used by Wise to argue that chimpanzees are autonomous. The Argentina lawyers for animal rights association AFADA also made its habeas corpus application for the orangutan Sandra partly based on the autonomy argument.

Better Persons & Philosophers

Wise began his argument in the Hercules and Leo case with the words, “Now we argue that both as a matter of liberty and as a matter of equality, Hercules and Leo are indeed persons.”

The lawyer for the state university opposing Wise’s application, New York Assistant Attorney General Christopher Coulston, responded to Wise’s presentation with a volley of arguments about legal technicalities. But the judge asked Coulston directly about the validity of Wise’s argument: “Isn’t it incumbent upon the judiciary to at least consider whether a class of beings be granted a right, or something short of a right under the habeas statute, some kind of special status?… Why isn’t that an appropriate use of this Great Writ?” Coulston dodged the question and for the most part avoided the autonomy issue, relying on the familiar distinctions to separate humans and apes, saying, “The reality is these are fundamentally different species than human beings” and repeating an earlier argument, like de Waal, that chimpanzees can’t participate in society. He then made the plaintive point: “I worry about the diminishment of these rights in some way if we expand them beyond human beings.” A few minutes later he made a blatant slippery slope argument, saying that accepting Wise’s reasoning would be “absolutely opening the possible flood gates” in rights of human beings extended to apes, and then that the habeas corpus is “a Great Writ for human beings, and I think it should stay there.”

For Wise, on the contrary, the extension of rights in law to apes would be part of the historical advance of ethics and rationality previously applied in extending rights to slaves, natives, women and children – a point he made repeatedly to the court. For him, the distinction between humans as primates and apes as primates is legally arbitrary, like the distinction between blue eyes and brown eyes. Being arbitrary, the distinction violates the principle of equality under the law, he argues, not serving a legitimate end. Rather, the distinction serves the selfish purpose of some people using others for their own interests, as women, children, slaves and natives were once used to serve others’ selfish interests. Or as Kant would perhaps put it, this is one living being treating another living being as an object, without autonomy – simply as a means to an end. Doing that, according to Kant, is essentially immoral.

Although Kant didn’t apply his principles to animals, he did reason that it’s wrong for human beings to be cruel to animals because it damages the compassion that we need as human beings. But centuries after Kant we are free to evolve his arguments. We can help Kant be an even better moral philosopher.

So is it immoral to treat apes as though they’re not autonomous beings? We must wait to see what happens in future court cases for apes. Steven Wise is still hoping for the good fortune of a judge sympathetic to the force of his rational arguments. He has a foxy legal strategy, a reversal of sorts. He is asking the court to explain how it is not irrational and contrary to the basic principles of the law to deny autonomy to an apparently autonomous being in an arbitrary way, that is, to no legitimate purpose. Wise explained to me his strategy thus: “We say the law says that it is not only rational but required to treat an autonomous and self-determining being in a certain way… An autonomous, self-determining being should be a legal person.” So why not apply this principle to non-human apes?

In the end, Wise lost the leave to file a writ of habeas corpus for Leo and Hercules solely on the precedent of another case. But in her decision in the case, Justice Jaffe also rejected the slippery slope argument that rights for apes would open the flood gates to diminish human rights and said, “Efforts to extend legal rights to chimpanzees are thus understandable; some day they may even succeed.” Meanwhile, Wise is negotiating another solution for the release of Leo and Hercules, and is returning to court undeterred, with habeas corpus actions for two other chimpanzees, and now one for an elephant.

If Kant were alive now, would he agree with the lawyer about apes? And if so, would Kant have any luck convincing scientists like de Waal that morality ultimately comes through reason, not nature and evolution? For sure, this is the kind of rarified speculation that we big-brained primates enjoy – all of us infinitely similar, and infinitely different.

© Prof. Shawn Thompson 2015

Shawn Thompson is a member of the board of the non-profit Orang Utan Republik foundation, and the author of The Intimate Ape: Orangutans and the Secret Life of a Vanishing Species (2010). He testified this year by Skype in a case in Argentina for the orangutan Sandra while the judge considered a set of reports he had written.

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