Andrew Fenton reflects on Judge Fahey’s recent concurring opinion on the Nonhuman Rights Project’s efforts to get two captive chimpanzees to sanctuary.

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The New York Court of Appeals recently denied the Nonhuman Rights Project “leave to appeal” the 2017 decision of the Appellate Division of the New York Supreme Court, which had ruled against their efforts to see two chimpanzees, Kiko and Tommy, who are currently living alone, transferred to an adequate chimpanzee sanctuary. I was a co-author, in addition to sixteen other philosophers, of a philosophers’ brief that supported the Nonhuman Rights Project’s motion for permission to appeal. Though it was denied, Judge Eugene Fahey, one of five judges who ruled on the motion, submitted a striking concurring opinion to explain his decision. Here are some of the details.

Judge Fahey’s decision to deny the Nonhuman Rights Project’s motion was not based on the merits of their case. Indeed, he indicates his discomfort with the New York Court of Appeals’ earlier decision to deny the Nonhuman Rights Project’s leave to appeal in 2015. Judge Fahey expresses doubt that the decision was the right one, implying that the legal journey may well have been quite different (with, presumably, a more favorable result for Kiko and Tommy).

He also identifies this case as involving a “deep dilemma of ethics and policy” and one that involves “a manifest injustice.” In this statement we have an admission of something at the heart of the ligation effort, that Kiko and Tommy are being treated unjustly. That Fahey seems deeply sympathetic to Kiko and Tommy enjoying a right to liberty (his language) can help us interpret this injustice as one that involves a violation of a basic right reasonably accorded to chimpanzees.

A painting of Congo (1954-1964), a chimpanzee who painted pictures at the ages of two to four years under the egis of Desmond Morris (*1928).
Image Description: Abstract paint brush strokes in black, white, blue, and brown on canvas.

That such a right is reasonably accorded to chimpanzees arises out of what our best science reveals about chimpanzee cognition and behavior. Fahey notes that a chimpanzee such as Kiko or Tommy is not only “highly intelligent” and self-aware, he is also an autonomous being “who thinks and plans and appreciates life as human beings do.”

Fahey concludes his concurring opinion: “While it may be arguable that a chimpanzee is not a ‘person,’ there is no doubt that it is not merely a thing.” This is an astonishing statement. Elsewhere in his opinion, Fahey connects being a thing with being someone’s property and having only extrinsic value (rather than “independent worth”). To be a non-thing is to enjoy “inherent value…[and] the right to be treated with respect.”

As seen in his opinion’s last statement, Fahey resists calling chimpanzees persons. But he also seems to reject the binary – entrenched in US and Canadian law – that an individual is either a thing or a person. Fahey is implying that there should be room for individuals who are both non-things and non-persons and who enjoy such basic rights as a right to liberty. This is strong stuff: much stronger than the claims I helped co-author in our philosophers’ brief. There, we argue that the courts have not offered an adequate conception of personhood that would both recognize all those humans rightly so regarded as full and equal persons under law and deny chimpanzee personhood. We also do not think that such a conception will be found. Rather, we argue that, given what’s on offer, Kiko and Tommy are best regarded as persons. In contrast, Fahey seems to be encouraging a move to a third category. Such a category would identify the individuals falling under it as rights holders and possessing at least some of the rights currently accorded human persons.

As we briefly discuss in a forthcoming book, Quebec and the European Union use “sentient being” as something like a third category in their laws or policies. In both jurisdictions, sentient animals can still be treated as property. They can be harmed in ways that are not to their benefit (which contrasts with veterinary treatment) and be consumed. So understood, such a third category will not do for chimpanzees like Kiko and Tommy. Formal justice requires us to regard like alike. Fahey goes further than these jurisdictions in suggesting that Kiko and Tommy might have a right to liberty. This position is justified on the grounds that Kiko and Tommy, like us, are intelligent, autonomous beings whose welfare matters to them. Quebec and the European Union remind us that a third category may permit regularly placing chimpanzee interests below those of humans who enjoy the rights of legal persons. This is not to treat like alike and should caution us against rushing too quickly to adopt any third category.

Do captive chimpanzees have a right to liberty? Fahey seems to think so. What remains to be seen is whether we will have the moral courage to enshrine such rights in law or continue to tolerate a manifest injustice.

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Andrew Fenton is an Assistant Professor in the Department of Philosophy at Dalhousie University.