Andrew Fenton and L. Syd M Johnson report on the recent public release of an amicus brief supporting chimpanzee personhood, created by 17 philosophers as a part of the Nonhuman Rights Project’s efforts to get two captive chimpanzees to a sanctuary.
On February 26th, an amicus brief, drafted by 17 North American philosophers, was filed in support of a legal petition by the Nonhuman Rights Project to have two chimpanzees, Kiko and Tommy, released to an accredited sanctuary. To accomplish this, the Nonhuman Rights Project is asking the Court of Appeals of the State of New York to grant these chimpanzees habeas corpus relief. The writ of habeas corpus has a history that dates back to the Magna Carta as a common law instrument used to challenge the lawfulness of detention or confinement. To enjoy habeas corpus relief you must be a legal person—under common law, only persons have a right not to be unlawfully detained or confined. The writ of habeas corpus has also been used as a means to assert the personhood of humans who were not at the time recognized as legal persons, including children, in order to secure their release. The problem for Kiko and Tommy is that they are not currently recognized as legal persons under US common law—no animals other than humans are recognized as such. The Nonhuman Rights Project argues that the New York State Court of Appeals should recognize the legal personhood of Kiko and Tommy.
The brief, informally dubbed “Chimpanzee Personhood: The Philosophers’ Brief,” aims to clarify and correct philosophical concepts and ideas found in the prior rulings by the First, Third, and Fourth Judicial Departments of the Appellate Division of the Supreme Court of the State of New York concerning Kiko and Tommy. The authors, ourselves among them, don’t do this as experts in law, which we are not, but on the basis of our expertise in ethics, philosophy of biology, philosophy of animal minds, or political theory. We take issue with court rulings that, in an effort to deny Kiko and Tommy legal personhood, employ conceptions of personhood that are either inadequate or actually friendly to chimpanzees being persons. A further goal of the Philosophers’ Brief is to demonstrate that the conceptions of personhood advanced by the courts could, if wielded improperly (as we argue they were), threaten the personhood of many vulnerable humans as well.
Our central point can be simply stated: “person” and “human” are not synonyms. In fact, there is nothing unintelligible about the idea of nonhuman persons—anyone with even a passing knowledge of world religions and the beings that populate their teachings is aware of examples of persons who are decidedly not humans. Any adequate conception of personhood is one that can both make sense of how we commonly use the term and identify as persons those humans that we take to be persons. There is no adequate conception of personhood that can do that and exclude all nonhumans. Some nonhuman animals will fit the bill. Kiko and Tommy are among them.
The courts, to date, have failed to see what is in plain sight. We must reject arbitrary exclusions of individuals from personhood because such arbitrariness threatens the objectivity of the concept itself. Objectivity and arbitrariness are not compatible. If Kiko and Tommy can fit an adequate description of personhood, then they are persons.
Why does it matter if the courts agree that Tommy and Kiko are persons? Right now, they are being held in solitary enclosures and are legally unprotected from being confined in this way even though doing so harms them. They are unprotected because under the law there are only persons or things, and Tommy and Kiko are not recognized as persons. As far as we know, their current owners are not breaking any animal welfare laws, so their solitary captivity seems perfectly legal. This is a fundamental flaw with animal welfare laws – while they can protect animals from some forms of outrageous abuse (starvation, neglect), they are otherwise silent about whether other important interests of animals are served, such as their freedom of movement, or their ability to socialize with others of their kind. Only persons have rights, including rights to bodily liberty. So, unless and until Tommy and Kiko are recognized as persons, they remain legal things lacking even the most basic rights, including the right to live as chimpanzees, with other chimpanzees. Only an accredited chimpanzee sanctuary can adequately satisfy these basic rights. For this reason, the Nonhuman Rights Project seeks to have Tommy and Kiko released to such a sanctuary.
The goal of our brief, and of the Nonhuman Rights Project’s case, is to make clear what is obvious to many: that chimpanzees, although not human, are most certainly not things.
Andrew Fenton is an Assistant Professor of Philosophy at Dalhousie University.