by Kirill Ershov
[updated – see postscript below]
This essay summarizes the recent series of New York State cases that were filed by the Non Human Rights Project (NhRP) petitioning to have four chimpanzees released from their owners. NhRP’s primary intent was to have the chimpanzees recognized as human-like beings with a common law right to liberty — to be recognized as autonomous and self-determining beings that cannot be legally considered as property. [1] The summary includes a discussion on the Hohfieldian system of legal rights that was relied upon by the petitioners.
At the end of 2013 NhRP filed three separate writ of habeas corpus petitions on behalf of four chimpanzees — Tommy, Kiko, and Hercules and Leo. The chimpanzees were chosen from different areas of New York state so that they could be filed in different circuits, increasing the chances of a positive outcome. At the time of the filings Tommy was held inside a trailer at a place that rented trailers as well as animals, Kiko was owned by a primate specialist, and Hercules and Leo were held at a university laboratory for studies on human locomotion. [2]
The writ of habeas corpus allows an individual to assert his right to liberty and demand for release from unlawful imprisonment. It can be traced to 17th century England and it has progressed to US courts through common law — the practice of basing the current decision on previous decisions. The previous decisions are known as precedent, a legal term that encompasses all previous legal decisions and reasoning that can be considered to be relevant to the facts and circumstances at hand. This is considered to be an evolutionary process as there may be significant changes in interpretation of legal precedent due to changes in the circumstances surrounding the issue — historical changes in politics, economics, social issues and morality. The right to file the writ is protected in the US Constitution under Article 1, Section 9: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” Traditionally the writs are filed against the government and alleging illegal imprisonment.
The question of whether a chimpanzee can assert the right to liberty has not been previously considered by common law courts or addressed by the legislature. Consequently, NhRP’s strategy was to file habeas corpus petitions and show that if previous legal reasoning and principles were applied to what we now know about chimpanzees, then it should be recognized that they are autonomous human-like beings and can no longer be owned as private property. [3]
Under New York state law “a person illegally imprisoned or otherwise restrained with his liberty within the state … may petition without notice for a writ of habeas corpus to inquire into the cause of such detention and for deliverance.” [4] As its first step, NhRP argued that the legal term person is not a synonym for a human being, but instead refers to an entity with a capacity to possess legal rights. It emphasized that there are no necessary nor sufficient conditions for determining that an entity is a legal person. There are cases where human beings were not considered to be legal persons, not only pre-20th century human slavery cases, but also recent ones dealing with abortion. Those are cases where a fetus is not considered to be a person in the context of the 14th Amendment (“… nor shall any State deprive any person of life, liberty, or property, without due process of law”). On the other hand, there are cases going back to the 1800s where non human beings, like corporations, where found to have legal rights. Consequently, NhRP argued that the fact that a chimpanzee is not a human being should not prevent the argument that it is a legal person with a habeas corpus right to liberty. [5]
NhRP’s central point was that based on previous common law decisions, human autonomy and self-determination are the human qualities that are intended to be protected by the writ of habeas corpus. This is a narrow conception of liberty that NhRP defined as the right to bodily liberty. It argued that because chimpanzees are now known to possesses the same qualities, the right to bodily liberty should be expanded to this species. [6] More than thirty pages of the petition were devoted to going over chimpanzee evolutionary development, neurology, social practices and complex cognition. [7] All of this was based on attached documents from a dozen primatologists of various specializations. Below are a few of the listed qualities:
“Possession of an autobiographical self, episodic memory, self-determination, self-consciousness … empathy, a working memory, language, metacognition, numerosity, and material, social, and symbolic culture, their ability to plan … their ability to understand cause-and-effect and the experiences of others, to imagine, imitate … and to use and make tools.” [8]
As justification for the expansion of the right to chimpanzees, NhRP presented numerous 17th and 18th century England and New York state habeas corpus cases, where petitions were filed on behalf of human slaves. In many cases the slaves where considered as property, but nevertheless their petitions were accepted and their right to liberty was found to be violated, resulting in them being freed from their former owners. [9]
All three petitions were filed, with hearings being held for both Tommy and Kiko. At Tommy’s hearing the court made it very clear that the analogy to slavery would not be considered:
COUNSEL: … the famous case of Somerset vs. Stewart, which was 1772 England, a common law writ of habeas corpus case which was absorbed into the common law of New York when New York became a state. And that was for the first time you had a black slave who was seen as a legal thing, was able to come into court, went in front of…
COURT: Court’s not even going to consider that as synonymous, so you’ll have to use your other cases. I’m just telling you, the Court will reject that argument, the argument that the cases involving human-beings who were slaves in the 1800s as synonymous with a chimpanzee. I reject it. [10]
At Kiko’s hearing NhRP counsel emphasized that they were not seeking human rights for the chimpanzee and were only seeking a narrow expansion of bodily liberty. [11]
All three petitions where denied on the grounds that the chimpanzees where not persons and thus the issues in the petitions would not be considered. All three decisions were appealed. Tommy’s and Kiko’s appeals where accepted. Hercules and Leo’s appeal was denied on technical grounds, the petition was refiled and has not yet been reconsidered. At Kiko’s hearing the two main issues were: how would it be determined that a chimpanzee actually wanted to be released, and if it could be determined, would a transfer to another location be considered as a release from confinement, the purpose of the writ of habeas corpus. From Kiko’s hearing:
COURT: Part of the problem I’m having with your argument counsel, is that, and it is impressive — the experts, that announce that chimpanzees are autonomous, have self-determination… But it’s that self-determination itself that’s causing you problems, because, if that’s true, then a self-determination would not to be kept in another captive environment, it would be to be free. Your client [NhRP] would be determining for Kiko where Kiko lives, what Kiko gets in terms of food, exercise, you know, exposure to outdoors and indoors. All those determinations would be made by someone other than Kiko if your client gets the full relief.
COUNSEL: But, that, see, but that is going to have to be so when you’re dealing with someone who’s not an adult human being. The same thing happens with a child… the child cannot do whatever he wants. Someone else is going to make the call for him. But the important thing is that it’s the interests of the child that are being taken into account. And here, it would be the interests of Kiko that are being taken into account, not the interests of a person who calls himself his owner, and who has him with a chain around his neck in a cage…
COURT: How do we know he even wants to leave? [12]
NhRP’s counsel argued that such issues are regularly resolved in cases dealing with autonomous and self-determining human beings who at that time are incompetent or are too young to make those decisions. When asked by the court, the counsel answered that a chimpanzee is more akin to a young child around the age of five rather that a mentally retarded adult.
Kiko’s appeal was rejected. The court stated that even if a petition was considered, it would be denied because “this matter is governed by the line of cases standing for the proposition that habeas corpus does not lie where a petitioner seeks only to change the conditions of confinement rather than the confinement itself.” [13] Kiko is in the process of filing for a subsequent appeal. At Tommy’s hearing one of the main issues was concerned with the concept of rights and whether or not they are necessarily accompanied by responsibilities.
COURT: Well, but even you in your brief when you talk about individual rights, you talk about the fact that along with those individual rights come responsibilities, and we’re not, and you don’t want us to foist any responsibilities on this chimpanzee…
COUNSEL: No.
COURT: …you just want us to determine that he has the opportunity to be free of this confinement.
COUNSEL: The, the better way to view Tommy, would be similar to a human child who has, who has rights, you can’t put a little child in a cage, but doesn’t have correlative responsibilities. So Tommy has the autonomy and self-determination that is sufficient for him to be a legal person, and he can understand that he does not want to be imprisoned, for his life in a cage, which he has been. But he’s not going to be the um, defendant in a criminal action or a civil plaintiff, at least not, not by himself, they may have someone like the Non-Human Rights Project to come in… to um, to argue on his behalf. [14]
Tommy’s appeal was rejected. In its decision the court confirmed the earlier ruling that there is no precedent for finding that an animal could be thought of as a person. However, it reasoned further that:
“The lack of precedent for treating animals as persons for habeas corpus purposes does not, however, end the inquiry, as the writ has over time gained increasing use given its great flexibility and vague scope. While petitioner proffers various justifications for affording chimpanzees, such as Tommy, the liberty rights protected by such writ, the ascription of rights has historically been connected with the imposition of societal obligations and duties. Reciprocity between rights and responsibilities stems from principles of social contract, which inspired the ideals of freedom and democracy at the core of our system of government. Under this view, society extends rights in exchange for an express or implied agreement from its members to submit to social responsibilities. In other words, rights are connected to moral agency and the ability to accept societal responsibility in exchange for those rights.”
Black’s Law Dictionary defines the term “person” as “a human being” or, as relevant here, “an entity (such as a corporation) that is recognized by law as having the rights and duties of a human being.” It then goes on to provide: “So far as legal theory is concerned, a person is any being whom the law regards as capable of rights and duties … Persons are the substances of which rights and duties are the attributes. It is only in this respect that persons possess juridical significance, and this is the exclusive point of view from which personality receives legal recognition.”
“Needless to say, unlike human beings, chimpanzees cannot bear any legal duties, submit to societal responsibilities or be held legally accountable for their actions. In our view, it is this incapability to bear any legal responsibilities and societal duties that renders it inappropriate to confer upon chimpanzees the legal rights — such as the fundamental right to liberty protected by the writ of habeas corpus — that have been afforded to human beings.” [15]
NhRP has filed for an appeal to this decision. At the center of its argument is a reply to the court’s analysis of the concept of rights. NhRP’s argument is based on early 20th century writing of Wesley Hohfeld, a jurist whose work is considered to be fundamental to the modern conception of rights. Hohfeld pointed out that the term rights has multiple meanings with significant differences and that these meanings are often swapped for one another, producing major flaws in legal reasoning. Rights such as the right to property, a particular state’s right to bear arms or the constitutional right to an attorney are all combinations of the basic fundamental rights. There are four types of basic rights, with each right being a relationship between two correlating parties, with each party exercising an elementary legal concept.
There are two primary rights:
– A claims right is the basic right of a party to have the correlating party perform a duty.
– A privilege is the privilege of a party not to perform a duty because there is no-right for the correlating party to demand that a duty be performed.
And there are two secondary rights, which specify how a party can introduce, change and alter the primary rights:
– A power is the power of a party to alter the above primary rights of the correlating party. The correlating party has a liability to abide by an exercise of the power right.
– An immunity is the immunity of a party from having its claim rights or a privilege right altered by the correlating party. The correlating party has a disability preventing it from making those alterations. [16]
Under the current law, the right to property to possess a chimpanzee consists of multiple instances of all four of the Hohfeldian basic rights. Normally an owner has the privilege of keeping its possession at one location or moving it to another location, this is because there is no party with a right to which the owner has a duty to perform otherwise. There is an immunity that correlates to another party’s disability such as taking possession of the chimpanzee and moving it to another location or selling it to a third party. In contrast, the owner has the power to sell the chimpanzee to another party, creating a contract under which the correlating party takes on the liability of making the contract’s duties and benefits legally binding. Under the contract the owner has claim rights that the correlating party perform a specific duties, such as paying a specific amount before taking possession of the chimpanzee.
In its appeal NhRP argued that the court committed an error in requiring Tommy to be able to carry out legal duties in order to be considered a legal person with a right to bodily liberty. It quoted Hohfield, that often
“the term ‘rights’ tends to be used indiscriminately to cover what in a given case may be a privilege, a power, or an immunity, rather than a right in the strictest sense [a claims right] … [an] impression is conveyed that all legal relations can be comprehended under the conceptions, ‘right’ and ‘duty.’” [19]
Only a claims right imposes a duty on to a correlating party. NhRP agreed with the court that a legal personhood of a corporation, allowing it to exercise its claims right to contractual obligations, can be granted if and only if, it is capable of carrying out the duties of its contractual obligations. But, unlike this right to enter into a contract, immunity does not impose a duty on the correlating party. Instead, it is a recognition of the correlating party’s disability of control over the privileges and duties of the rights holder.
“The existence or nonexistence of Tommy’s ability to bear duties or responsibilities is entirely irrelevant, as it is irrelevant to every immunity-right [freedom of speech, freedom from slavery, right to an abortion…] It is particularly inappropriate to demand that, for Tommy to possess the fundamental immunity right to bodily liberty protected by the common law writ of habeas corpus, he must possess the ability to bear duties and responsibilities, when this ability has nothing whatsoever to do with his fundamental immunity-right to bodily liberty.” [20]
Taking a step back, it should be noted that in its decision the court addressed “the novel question of whether a chimpanzee is a ‘person’ entitled to the rights and protections afforded by the writ of habeas corpus.” [21] The right to file for a writ of habeas corpus is protected under the Constitution and defined in New York state as a right to both a petition for an inquiry into a cause of illegal detention as well as for subsequent “deliverance” from it. Under the Hohfieldian approach, aside from the right to liberty, this complex right also includes two other basic rights. The power to file the petition which correlates with the courts liability of being required to consider this petition. And, the requirement that the court use its power and guarantee the petitioner’s release if the petition is granted. If so, the government would have a duty to free the petitioner. This means that there is a duty correlating to one of the basic rights within the broader right to habeas corpus. Even if NhRP’s appeals argument is valid it would still fail because one of its premises turns out to be false.
So far there has been no decision on Tommy’s appeal. The two other cases are also ongoing but at earlier stages. You can follow the progress of these cases on the NhRP website. [22] There is a great New York Times article on the story behind this litigation and specifically Steven M. Wise, who is the founder and head counsel of NhRP [2].
PostScript, 21 April 2015: An order has just been issued on the writ of habeas corpus petition for Hercules and Leo, the two chimpanzees held at Stony Brook University. The order is titled “Order To Show Cause & Writ of Habeas Corpus” and it is all over the news as “the writ of habeas corpus has been granted!” However, The meaning of the order is that the petition has been accepted to be considered and it is now the respondents’ turn to argue why it should not be granted (and accepted in the first place). Just because, technically, the order is stating that the University has to show cause for Hercules and Leo’s detainment, it does not mean that they are now considered to be detained persons. The argument is still going to center on whether the petition should even be considered. In the previous cases the petitions never got to this stage.
_____
Kirill Ershov is an attorney specializing in habeas corpus petitions contesting death penalty convictions. Primarily, the petitions are filed due to violations of an individual’s constitutional rights to a fair trial and to the effective assistance of counsel. He is licensed to practice in California and in federal court.
[1] Legal updates and all of the filings of these cases can be found here.
[2] Should a Chimp Be Able to Sue Its Owner? The NYT article has details on the background of the cases including the conditions of the chimpanzees.
[3] Tommy’s Petition’s Memorandum of Law.
[4] NY Code – Article 70: Habeas Corpus, Section 7002 – Petition.
[5] #3 starting at p. 39.
[6] #3 starting at p. 54.
[7] #3 at ps. 4 to 38.
[8] #3 at p. 61.
[9] #3 at p. 38.
[10] Tommy’s initial hearing transcript, at p. 12.
[11] Kiko’s initial hearing transcript, at p. 12.
[12] Kiko’s appellate hearing transcript, at p. 6.
[13] Kiko court of appeals decision, at p. 2.
[14] Tommy’s appellate hearing transcript, at p. 7.
[15] Tommy court of appeals decision, at ps. 3 to 6.
[16] Stanford Encyclopedia of Philosophy — Rights 2.1; Hohfeld, Wesley N., “Fundamental Legal Conceptions as Applied in Judicial Reasoning” (1917). Faculty Scholarship Series. Paper 4378.
[17] Tommy’s memorandum of appeal to the appellate court decision, at ps. 11 to 14.
[18] #16.
[19] #17 at p. 12.
[20] #17 at p. 13.
[21] #15 at p. 2.
[22] The NhRP website.
Scientia Salon 
Hi Aravis,
If I had intended to call you out, I would have mentioned you by name. If I have misunderstood you, I apologise.
> At a time, when the US courts — at every level — are overloaded and backlogged, something that causes real harm, to real people, on a massive scale, the use of those courts to make appeals on behalf of apes is perverse.
This argument only works if we take it as a given that the issue of ape rights is inherently absurd, trivial or frivolous. Otherwise there would be no reason to hold ape rights cases as any more perverse than any of the other cases flooding the legal system. I find them much less objectionable than a great deal of those cases, especially those due to the failed war on drugs.
The problem is that the argument you have made could also be made for any animal welfare case. For someone who feels that animals or not worthy of much moral consideration (at least in comparison to humans) it would be obscene to waste the court’s time on any case of cruelty to animals, no matter how heinous, as long as such a backlog exists.
Likewise for any legal case you may feel ill-disposed towards. Gay marriage, the constitutionality of certain kinds of taxes, obscure questions of intellectual property law and so on.
It’s clear to me that apes rights cases are not the problem. The effect they have had on the legal backlog is almost certainly negligible. In light of all this I find it hard to make sense of the claim that you feel that it is only bringing the issue to court that is frivolous and not the issue itself.
> Second, I was quite explicit in saying that the inflicting of gratuitous suffering is objectionable, but that I believe this is consistent with being a “speciesist.”
I understand that and I have no problem with it (did I say I did?)
Hi EJ,
> This is almost quote-mining to get a preferred result, and I’m disappointed.
I don’t understand how you can claim that. What result did I get? I even summarised your position as being precisely as you have restated: that what is important for you is being human. My purpose was not to ridicule your view but to represent it as a few bullet points for analysis, and I included a bullet point for being human.
> The sole criterion for membership in the category ‘human’ is being human.
Clearly. But nobody is arguing that apes should be considered human. For you, “human” is synonymous with “person”. That is what I regard as arbitrary.
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Massimo,
Thanks for the links. I’m learning a lot and appreciate it.
You’re right, my point was poorly explained. I was trying to point out that Haidt seemed to be dismissed without due consideration (prior to reading your linked due consideration) and yet you were urging Aravis to take seriously: “The question of whether a chimpanzee can assert the right to liberty…” as stated in the article.
It seems to me that the status of a chimpanzee and a human, with respect to personhood or liberty, are incommensurables and so the lawsuit might be a great catalyst for ethical thought but if Mr. Wise had won his lawsuit it’s not clear to me what the actionable effect would even be. Are we to take everything seriously? Don’t we need to temper our enthusiasm for ideals – habeus corpus for every primate – with a little pragmatism given the limitations of time and money? So I agree with Aravis that at a certain point our unconstrained-by-reality love of chimps can turn us into chumps.
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DM,
To begin with: “I infer that EJ thinks we don’t give chimpanzees rights because they have never had high cognition and because they are not human.” You inferred incorrectly. We grant humans rights because they are human – that was the extent of my claim. And our legislatures and courts only construct rights for entities insofar as they have direct impact on humans involved. Nonhumans are beyond this compass.
“What is NATURAL PERSON?
A human being, naturally born, versus a legally generated juridical person.”
http://thelawdictionary.org/natural-person/.
By petitioning for habeas corpus for chimps, the NhRP is asking for a novel definition of ‘natural person’ that is outside the understanding of the term in US law. Thus, they seem really hoping to find a judge who will be able to construct a fictional personhood to suit the purposes. This is quite beyond the mandate of any lower court, and is highly unlikely to be realized in any upper court, given American legal history.
Should it somehow be realized at the NY Court of Appeals, there would follow cases and petitions to the SCOTUS, which would likely uphold the traditional definition of natural person, and throw out any ‘legal person’ construct as arbitrary rewrite of established legal tradition, without grounding in the US Constitution – an over-reach of a State court’s jurisdiction.
Robin Herbert’s right; the NhRP have been so obsessed with their messianistic project that they have not thought this through.
The lower courts allowed a hearing, to give the NhRP a chance to voice their case, which is just; but the case does appear to be largely frivolous.
Let’s bear in mind here that the NhRP is also pressing the same case for orcas in marinas and elephants in circuses. How well do any criteria of “current mental abilities” apply to them?
What happens if nonhumans are granted human rights? Some agency could petition for habeas corpus against people who keep their dogs in kennels. Another, on the basis that Barnum-Bailey owes Dumbo the elephant back-wages, sues for these monies to be put in trust. Legislatures would need decide whether a deer struck on the highway was a victim of manslaughter, or they need to create a new felony, deerslaughter.
But of course the most sweeping effect – *which the NhRP clearly intends to pursue* – would be the end of the use of animals in research institutions.
The way most humans treat animals needs modification, just as I and others here have agreed. But these results of granting personhood to other animals are by no means absurd. And talk about clogging court calenders with frivolous lawsuits!
Finally, as noted in my last comment, a problem with distributing ‘rights’ to nonhumans is that this cheapens the very notion of rights; the idea begins losing its power: ‘I feel sympathy for this rosebush – it has its rights!” – until we could grant rights to rocks for all that any might care. That’s a real danger in my book.
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Okay, I’ve got an hour before our rehearsal dinner, so here is my last comment on this issue.
DM wrote:
This argument only works if we take it as a given that the issue of ape rights is inherently absurd, trivial or frivolous. Otherwise there would be no reason to hold ape rights cases as any more perverse than any of the other cases flooding the legal system.
—————————————————-
Wrong. There are any number of abstract and speculative questions that are interesting in their own right and worthy of further investigation, but with which it would be perverse to take up a court’s precious time and labor. The metaphysical status of apes is one of them.
——————————————————
The conversation is still largely in terms of criteria for being a rights-bearer. As I indicated, in my reference to the arguments by Diamond and Williams, this is to misunderstand, in a fundamental way, why we treat people in certain ways and treat animals in other ways. Or why we treat pets in some ways and non-pets in other ways.
It’s not because we they have a right not to be eaten that we don’t eat our pets. Rather, it’s because they are our pets that we don’t eat them. This is why a person, who thinks there is nothing wrong whatsoever, with eating a turkey sandwich will, at the same time, not eat his dog. It’s not because the dog has some antecedent quality that the turkey lacks, as would be clear from the fact that if the turkey was his pet, he wouldn’t eat it either.
Similarly, it’s not because of some antecedent right — not to be harmed, not to suffer, not to have one’s sovereignty violated — that we don’t eat people. It’s because they are people that we don’t eat them.
Now, I know what’s coming. The inevitable question. “But how do you acquire these various statuses? What makes X a person or a pet and not Y?” The question supposes that words and concepts are applied via a list of criteria — by way of some set of conditions. That the semantics of ordinary langauge expressions are determined in the manner that we set the meanings for theoretical terms, in mathematics or logic. But this is not the case — as our good friend, the later Wittgenstein showed us. Indeed, it is in discussions like the one we are having right now that the late-Wittgensteinian picture of language is so revealing: specifically, revealing of the way in which we can wind up engaging in confusing and frustrating disputes, in large part because we have a mistaken conception of the ways in which we actually use words.
I am aware that this hardly addresses all of the questions that are going to arise, and unfortunately I am out of replies. But it is enough, at least, to provide a very different frame for the conversation we are having. And I really *do* strongly recommend the Diamond and Williams essays to which I linked and in which arguments like the one I have sketched are developed in substantial detail.
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Animals have been granted legal personhood before (e.g. Marbled Murrelet V. Babbitt), like corporations having personhood, it’s not really noteworthy. Animals being deemed real persons is novel. The way the NhRP conflates these concepts is, too be polite, quite lawyerly.
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Lots of cute, myopically clever, statements here. Provide a good argument for outlawing cock or dog fights that doesn’t draw at all on some aspect of what it means to be humane. Man is not is the measure of all things except to the extent that no higher power comes forward to preempt his judgments. This is an exercise in self-portratism.
Ej, I’m really puzzled and surprised by your position as I perceive it in your commentary. Statements such as, “I don’t believe it wise to begin throwing ‘rights’ around loosely, this cheapens the value of the very notion,” seem more rhetorical to me than anything else. It’s particularly perplexing since if I’ve understood correctly from past comments you’ve described yourself as a secular Buddhist, in which case where does anicca and dukkha fit in mankind’s juridical expostulations.
“You will not find in US law any extension of human right to entities that cannot be recognized as immediately affecting humans.” You mean like utilizing more humane methods for slaughtering cattle has some measurable human effect on whether or not I enjoy eating beef? I think not. It may on the cattle, however. Or conceptualize for a rhino or elephant that extracting their tusks will feed twenty humans. So explain to me again how this behavior “cheapens” human rights without nonhuman collateral damage?
Aravis, in lieu of reading Dante’s Inferno again, please read your comment daily for the next 365:
“That the semantics of ordinary langauge expressions are determined in the manner that we set the meanings for theoretical terms, in mathematics or logic. But this is not the case — as our good friend, the later Wittgenstein showed us.”
Your “good friend” Wittgenstein would have bloodied your knuckles with a ruler upon hearing such nonsense. May he rest in peace as a cowboy film played out in the background.
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Dear Socratic Gadfly – I’ll remember to include a smiley in future. There are modern animal courts in Europe, usually regarding whether protected wild animals have been sufficiently of a nuisance that they can be killed by affected farmers.
More generally,
The title of the OP is “a narrow expansion of liberty” precisely because the approach being taken is via legal personhood. That is, as I understand it, should this entity have any legal standing, and if so, what kinds of rights can then be logically extended to it. Laws deal with metaphysical entities other than humans, and in some cases it is thought sensible to give them appropriate rights and duties. Whether you think there is a distinction between associations and corporations, for example, means what kind of rights they might have in law. You may have a particular metaphysics, arguing that human institutions are fictions, or have no additional properties than those of the individual participants, but others would disagree (in a principled fashion).
Re animal rights, I think there is still leeway about what duty the “correlating party” owes ( I liked declawing versus the right to bear arms). One answer to the “policing nature” objection – if you don’t owe a duty of care to the violinist in the JJT example, you probably don’t have a duty to go out and feed all the predators vegetarian food either. Obviously, a lot of humans think we have some kind of a duty to wild animals. Can there be a duty without some concept of a rights holder? We, I think, have an idea it is “intrinsically” wrong to make a species go extinct, even if we may little care about individual members of the species. I think it is not much of a jump to see the species as having a right. I am not unhappy with the idea that more sophisticated creatures (chimps v. fishes) might deserve slightly more recognition as individuals,
Personally I vacillate between a Benthamite disbelief and, I guess, a rule-utilitarian approval of rights in general.
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@ Massimo
“Where I disagree is your quick dismissal and even sarcasm at the very thought of an essay like this. Not only there are serious philosophical issues at stake here, but just remember what you reaction has been, even recently, when you perceived issues that are dear to you to have been dismissed by others on this forum.”
From you, just a few weeks ago (3/31/15):
“Labnut’s in my mind still unjustified exit from this site is paradigmatic here. I never did promise, nor could I possibly deliver, a site were irony and even sarcasm are never used. Indeed, such a site would be pretty damn boring. This isn’t kindergarten and I’m not your stern teacher of manners. We filter only egregiously uncivil or rude comments. Making light fun of one’s science (Coel), or one’s philosophy (Aravis), or one’s religion (Labnut) does not fall into this category. While I’d rather see more substantive criticism than sarcastic remarks, the latter are by no means banned, if they are in decent enough taste, and if that’s what you expect, I suggest you simply shut off your computer and get off the internet entirely.”
Why the huffy attitude when something dear to you like ape rights get gently skewered? Seems to me, with all due respect, that the problem for you is not humor per se, but how close to home it is. Sacred cows (so to speak).
Re: Wittgenstein and, specifically Thomas Jones’ reply to Aravis, viz.:
“Aravis, in lieu of reading Dante’s Inferno again, please read your comment daily for the next 365:
‘That the semantics of ordinary language expressions are determined in the manner that we set the meanings for theoretical terms, in mathematics or logic. But this is not the case — as our good friend, the later Wittgenstein showed us.’
Your ‘good friend’ Wittgenstein would have bloodied your knuckles with a ruler upon hearing such nonsense. May he rest in peace as a cowboy film played out in the background.”
First, you might want to reel in your hyperbole a bit, otherwise it just comes off as batty (how exactly that comment passed muster is another question). Second, how about some specifics in terms of Wittgenstein instead of hyperventilation about Aravis and visions of hell? Aravis’ case was very clear, with specifics. Care to rebut that with specific points drawn from knuckle-rapping Wittgenstein?
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Regarding that position and Williams and Diamond. Both Diamond’s and Williams’ views ultimate trace back to Wittgenstein, and involve (among other things) notions like that of a “thick moral concept,” an idea descended from Wittgenstein’s pioneering investigations of rules, agreements, and forms of life and learned by Williams from a 1954 Phillipa Foot/Iris Murdoch/Basil Mitchell seminar.
Murdoch broaches an early version of this idea in her important 1956 piece, “Vision and Choice in Morality”:
“But if we attend to the more complex regions which lie outside ‘actions’ and ‘choices’ we see moral differences as differences of understanding…. Here communication of a new moral concept cannot be achieved by specification of factual criteria open to any observer…but may involve the communication of a completely new, possibly far-reaching and coherent, vision….”
Such a vision, Williams argues, is the old idea of humanism and humanism rightly, necessarily, and inevitably for all involves what he calls “the human prejudice.”
Andrew Gleeson of the University of Adelaide, in a 2008 retrospective arguing why Cora Diamond’s piece is so crucial in the animal rights debate, put it like this:
“Diamond is claiming that some human practices—naming people, not eating them, rites of passage—partly comprise our sense of what being human is. It is easy to believe that our responses to objects of moral
concern are based upon a logically prior ‘cognitive’ grasp of a morally relevant pre-moral property (sentience etc.) a grasp independent of the response. Diamond says that, on the contrary, our power of response conditions our understanding of what we respond to. The property is, so to speak, understood as that thing which has this sort of ‘place in our lives’, that to which we find ourselves having certain sorts of responses, attitudes, practices, and so on. It does not first present itself to us independently of all that (combining with a desire to produce an action or response). She elaborates the point in relation to ‘human beings’, but it will apply also to particular human actions, responses and traits like murder and betrayal, kindness and cruelty. These are not purely factual concepts, or divisible into factual and moral components. Diamond is claiming the response goes to the heart of the concept.”
Andrew Gleeson, “Eating Meat and Reading Diamond.” Philosophical Papers 37:1 (March 2008), p. 164.
Williams, in reply to Robert Nozick’s vegetarian argument that if the tables were turned, we’d have to let superior aliens eat us, quoted Max Stirner’s 1845 work The Ego and His Own: “The tiger that assails me is in the right, and I who strike him down am also in the right. I defend against him not my right, but myself.” [Williams, pp. 148-9]
I would also remind all the animal rights people on the board that Diamond herself is a vegetarian and gives clear reasons for her own position, separate from her low opinion of the Peter Singer crowd.
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C Van Carter We need to caveat that a bit. Per this piece by Eric Posner, “person” has a specific definition, specific even within the law, in the Endangered Species Act — a piece that is about precisely this case, the habeas pleading for the chimps:http://www.slate.com/articles/news_and_politics/view_from_chicago/2013/12/personhood_for_corporations_and_chimpanzees_is_an_essential_legal_fiction.html
Posner does also mention corporate personhood. He notes the reasons why we allow it — in the specific areas of law we allow it. (
Posner also addresses the misunderstanding of medieval Christianity that David Duffy presented earlier:
Then, specific to this case (before the original court hearing):
Exactly.
To get back to EJ and his “messianistic,” it’s clear, as Carter also notes, that the lawyers in this case are trying to get people to think psychologically, or maybe philosophically, instead of legally.
I strongly urge all to read the full Posner piece. It’s short.
That includes Thomas. It’s clear that your dedication to animal welfare, or animal rights, whichever one we look at, is both deep and sincere.
That said, neither Aravis, nor EJ nor myself are disagreeing with that. We’ve all said that more than once.
We ARE, strongly, disagreeing with this particular legal angle.
In the sense of personhood that a habeas petition implies, animals aren’t persons today. They won’t be persons 20 years from now. They won’t be persons 200 years from now either. The last line from Posner has it exactly right.
To go past Aravis to a philosopher, I like, Ryle, to presume that an animal is worthy of something like habeas corpus is to make a category mistake. If not more than one. It starts with confusing broader issues in law with those in philosophy. Yes, there are philosophies of jurisprudence, but beyond that, the law cares not in any special way for philosophy, or science, or engineering, unless one is an expert witness in a trial. Beyond that, we have category mistakes on legal vs. philosophical ideas of personhood, of rights, and more.
That said, I think that stems in part from a mismatch between the essay and we its interlocutors, connected to this website. The essay is laid out almost entirely in a legal POV, and has little to do, at least explicitly, with philosophy.
The case itself had nothing to do with philosophy, either, beyond that philosophy of jurisprudence, perhaps.
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jarnuga,
“Why the huffy attitude when something dear to you like ape rights get gently skewered? Seems to me, with all due respect, that the problem for you is not humor per se, but how close to home it is. Sacred cows (so to speak).”
Well, maybe so, though chimpanzees’ rights is actually not one of my sacred cows. Indeed, my position here is that non-human primates are not persons, and they should not have rights. (Although they should be treated humanely.)
I guess I saw differences between the two cases you mention. Sarcasm, and its close kin, irony, come in varieties and degrees, and I thought – in this specific case – that Aravis was far too quick to go for it while Labnut was not sufficiently resilient to it. Then again, that’s obviously a personal subjective line. To give you n idea, I go for Jon Stewart but not for Bill Maher, if that helps.
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Hi Dantip,
Thanks for your work to help run this excellent site. Yes things have gone “meta,” but then how could they not have? You said:
>I really hope this discussion thread does not become another beaten-down discussion on meta-ethics and whether we must discuss it in order to say anything about rights or first-order ethics.
I do hope you’re not suggesting that “rights” inherently exist beyond that which is granted!
Here’s my own attempt to not get “meta”: Our legal systems seek to help permit a naturally selfish creature (the human), to productively function together in social settings.
Such systems are quite arbitrary in the sense that we create them ourselves. But if one also asks, “Should chimpanzees be given greater rights?” the discussion should naturally become “meta” because how indeed are we to otherwise interpret the term “should”? Furthermore one might say that I’ve already gone meta by calling the human a selfish creature which thus requires legal systems for productive social function. There simply is no escape!
I’d also like to commend Coel for always demonstrating the fallacy of absolute morality, as well as his subjectivism and scientism in general. My only addition would be to say that we must actually discard “morals/ethics” speculation in the field of philosophy, to instead determine the nature of human reality itself. It’s the very comprehension of human dynamics, I think, that will teach us how to lead our lives and structure our societies “properly.”
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Eric,
as you know, I find Coel-style scientism highly unattractive, but that’s not very relevant. What I don’t understand is why you, and Coel, seem convinced that most people here are strong moral realists. I for one, believe that there are both degrees of objectivity and contingency to ethics, which stems from the virtue ethical approach I espouse. So, once again, seems to me that “going meta” is unnecessary at best, and confusing at worst.
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First, let me acknowledge my agreement with jarnauga111’s concern. My tone was inappropriate. It is difficult to make editorial decisions regarding the intent of a commentator. I don’t think I was engaging in hyperbole. I simply don’t believe Wittgenstein’s insights into the uses of language are particularly helpful in this matter or our discussion of it. I, along with some others, also felt that Aravis’s early comments were dismissive and insulting, largely attitudinal and prejudicial. His words speak for themselves as I see it.
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It is heartening to know that our courts are so under-burdened by cases that they can entertain petitions brought on behalf of apes.
After careful reflection of the case’s more subtle dimensions, however, it seems rather clear to me that the only way the chimps will get a fair hearing is by a jury of their peers.
One wishes this was an April Fool’s joke.
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Hyperbole? What does such a comment add to the discussion other than insult?
Later, after Massimo made his “I’m a bit surprised by your attitude” comment, we are treated to more attitude in the nature of a gratuitous editorial.
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And I find the involvement of the courts, as described, frivolous and frankly, outrageous, given the backlog of real cases that plagues our courts and all the really disastrous effects that this backlog has, including unconscionable delays in the administration of justice, the inability to prosecute serious crimes, etc. In my last turn on jury duty, one of the judges actually came into the common room to talk to us about this problem and why it is so dangerous, in a system like ours. To my mind, misusing courts in this way is akin to misusing 911 and other emergency services.
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I would say that, aside from being anecdotal, this is roughly analogous to receiving a speeding citation and then lecturing the police officer about how he best spend his time toward stopping “real” crime and criminals.
But actually the NonHuman Rights website provides some insight into the legal strategy that is being employed. They are targeting those States where they believe existing law regarding nonhuman animals presents the best opportunity for them to make their legal case. There are also budgetary considerations. I feel Aravis is being dangerously presumptuous in prejudging which cases should or should not be pursued legally. His frustration is understandable, but criteria other than disdain and disagreement would be appreciated. And, with all due respect towards appeals to one’s personal philosophic preferences, this is a legal matter that necessitates a legalistic, not purely a philosophic, delineation.
Let me make it clear that my feelings on this issue are quite conflicted. I’m not a radical animal rights advocate. I am not a member of the Nonhuman Rights Project, PETA, or Greenpeace. That’s not to say that I’m not open to and sympathetic to some of their goals.
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Hi Massimo,
I have somewhat been paying attention for a while now, so it does feel good to finally speak with you. (I’ve mainly been invested in email discussions since June 2014). If by “degrees of objectivity and contingency to ethics” you are referring to “the limited interests of a given subject,” then I certainly agree with you! Each conscious entity, or defined society of them, has unique interests based upon what it is. I’m afraid that I still need to find out if your “virtual ethical” platform references specific subjects, or instead is general. The test would be if an associated “should” in your ideology addresses a given monkey, yourself, the state of New York, or whatever.
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Hi Massimo,
I’ve never thought that “most” were, but some certainly are.
“Confused” isn’t the right word, but I did indeed get the impression that some here *disagree* about what rights are. The two positions are (1) rights are real properties, independent of human opinion, and our task is to discern them; versus (2) rights are granted by communal human agreement, and our task is to agree them.
Both Joe and Paul Paolini are explicitly advocating the former (at least partially).
As for Dan, well, I’m unsure. Some of his wording suggests the former (“One draws the line at relevant rights-determining factors. […] If we find out other creatures besides chimps have these mental features, then we would include them as well”). Further, his taking for granted a dismissal of speciesism also suggests the former (since (2) is intrinsically speciesist, whereas (1) is not).
Of course I could very well be misinterpreting Dan there, and indeed by first reply was intended to clarify exactly that.
On the “meta” issue, like DM I’m rather baffled that anyone thinks we could decide an issue as big and fundamental as the extension of “human rights” to chimps and other animals *without* “going meta”. Dan wants to narrow down the discussion to his framing of it, but that’s hard to do if you don’t agree with that framing (it seems it’s not just me, Aravis also doesn’t agree with Dan’s framing of the issue).
Hi Paul Paolini,
I agree that our language (and indeed intuition) is thoroughly moral realist, however it is reasonably straightforward and coherent to re-interpret such language as being reports of people’s feelings and opinions.
Personally I’d say that we do have a very good, coherent and convincing anti-realist theory — namely the account of morals as being evolutionary programming to facilitate a cooperative way of life and thus enable a species to exploit a cooperative evolutionary niche.
Hi davidlduffy,
One could regard the “rights holder” as other humans. Consider the recent destruction of the city of Nineveh: the wronged party is not the city, it’s the rest of humanity, who value that city (even if we’ve never been there). In the same way, causing the extinction of a species wrongs the rest of humanity value the species on an emotional level (as with Nineveh), but who also benefit from a robust ecosystem.
In a similar way, if a human is cruel to a pet rabbit, the wronged party could be other humans who dislike that happening. Those same humans would, though, not mind if a wild rabbit were eaten by a wild lion.
This analysis, though, depends on the “meta” since it stems from the above (2) but not from (1).
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Daniel Tippens,
“since we don’t want to be speciesists”
why ever not? That seems rather presumptive.
Singer’s arguments are unpersuasive. He weakens his case when he resorts to the pejorative uses of the term ‘specieism’, equating it with racism and sexism, calling it prejudice(SPECIESISM AND MORAL STATUS). You seem to be continuing in the same vein with your presumption. We can take three views of the truth, pragmatic, inquiring and prescriptive. Singer, by his use of the term(and you, by extension) is verging towards the prescriptive view of the truth and it can be considered as a form of silencing(‘we don’t want to be speciesists’). No thank you, political correctness is an unmitigated wrong, the enemy of thoughtful inquiry.
Singer(SPECIESISM AND MORAL STATUS) essentially uses a marginal cases argument. We have two sets whose properties are distinctly different(different family resemblances). The two sets marginally overlap. He argues that because of the marginal overlap we can effectively extend properties(moral status) of one set to the other. The argument fails because a set is not defined by its marginal properties. We accord all members of a set the same treatment because they bear a strong family resemblance to each other. We vary that treatment at the margins to take into account the special circumstances of the margin. So, for example, a mentally disabled person may not have full freedom of movement. To use properties in the marginal overlap between sets to dictate a view of the entire set is careless thinking.
The argument fails furthermore because it fails to distinguish between status and capacity. Status only has useful meaning when there is a capacity(at least potentially) to exercise that status. I have the capacity for moral thought, I have the capacity to exercise rights and I have the capacity for personhood. Moreover I am reflectively aware of my capacity and that awareness allows me to both claim and exercise the corresponding status. None of these things are true of other sentient species.
Yes, there is a major problem in the cruel way we treat other species. Solving that problem starts with recognising it as a moral failure in ourselves. Assigning a fictional status to other species is a dodge designed to accommodate the bankrupt nature of our own moral thinking. It is the substitution of legality for morality.
Make no mistake, legislation is necessary to protect other species from our cruelty. But grounding that legislation in a fiction will weaken the legislation and have a host of unforeseen consequences.
The paper that Aravis cited, by Bernard Williams, uses the word ‘humanism’ instead of ‘speciesism’. That term is much preferable, carrying, as it does, the implication of being humane. We are first and foremost a moral species(unlike any other species) and our primary destiny is to realise our moral capacity, by, among other things, being humane. Legal fictions do not help, they are merely evasive manoeuvers.
See also Douglas MacLean, ‘Is “Human Being” a Moral Concept?’
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If we have indeed established the need to go “meta” here, it seems to me that the only question left is to see if we can also honor Dantip by not making this just another “beat-down discussion” on the subject. I certainly hope so! Here is my own perspective:
I am essentially a utilitarian, and one of the main reasons for our failure so far, I think, is because we’ve lacked proper subject identification. So if the question is “Should these four animals be given standard human rights?” from my own perspective we must first identify a subject whose happiness is thus to be promoted — perhaps the citizens of New York. From here the question does become quite simple. Would granting these chimps human rights, make the people of New York more happy?
We must always keep in mind that “rights” is simply a legal status, or something which may or may not be granted.
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Coel,
“The two positions are (1) rights are real properties, independent of human opinion, and our task is to discern them; versus (2) rights are granted by communal human agreement, and our task is to agree them.”
You may be right. I guess I simply take (2) for granted at this point, and respond to (1) as Jeremy Bentham famously did: “nonsense on stilts.” (And I’m no utilitarian, as you know…)
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Hi Coel. “…could regard the “rights holder” as other humans…”. Of course, this is exactly the ostensible rationale of, for examples, animal welfare legislation. But, we extend rights to others because of fellow feeling and a recognition of the fairness of an appropriate symmetry in our dealings (golden rule), exactly the emotions that I think arise in many people regarding nonhuman animals, but which will be suppressed for economic or survival motives.
Labnut – Singer’s “marginal argument” is that decisions or judgments be made on a case-by-case basis, using a particular framework of values. (A capacity that is not actually available is no capacity at all.)
Rather than a legal fiction, I see legal rights as one cultural institution encoding how we think animals should be treated viz animal killing should be humane “all animals have a right to be killed humanely”, by those entities that are capable of recognizing that duty. The definition of humane varies according to the characteristics of the animal.
Nicholas Humphrey (2002). “Preservation Versus the People? : Nature, Humanity, and Political Philosophy”
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Thank you so much for going over and discussing what I wrote. I’ve been going through it all and have had the different lines of thought slowly seep into my head and have now sort of crystalized. Can we think of ethics as existing in parallel plains? A form of moral relativity that in a way would be less controversial because in this case the differences between cultures would be undeniable. Plus there would not be a relativity argument that one system is as “good” as another.
Like with us, the core of a chimpanzees life is social interaction. And there are patterns of interaction differences between a group living in one region of Africa and another region of Africa. If these can be considered as ‘cultural’ differences, then one can also argue that the chimpanzees as whole have their own meta-culture, and that there are cultural differences between our species and theirs. The key to the argument would be to prove that their culture has its own system of ethics. Below is some data. It’s included so the argument is considered not as purely conceptual but more as scientific as in applying a theory to a set of data.
NhPR emphasized that like humans chimpanzees are social and cultural beings. They perform actions that are classified as cultural amongst human beings. These actions are learned by watching others, they are normative because they are preformed by the majority of individuals, and they are collective because they are characteristic of the community. They include direct mimicking; Immolation – learning about the results of someone else’s actions, then achieving those results in another way; And innovation, producing novel ways to do things and combining known elements in new ways. This often includes symbolic cultural behavior, special communicative gestures and vocalizations all of which are arbitrarily associated with their social benefits.
Because such behavior is considered to be goal oriented, the actions are often referred to as cultural tools. A significant share of cultural tools, are the actual material tools, the ones that we usually think of when we think of chimpanzees as tool users. The different chimpanzee populations (sets of groups) exist in different geographic regions, such as a savanna or a rainforest, with each region’s cultures maintaining different ‘tool kits.’ These kits consist of more than a dozen ‘tools’ which are used in specific and often multi level combinations to achieve specific ends. Tools consisting of vegetation and stone are used in daily life for hunting, gathering, fighting, play, communication, courtship, hygiene and socializing. For example using one stone as a hammer and another as an anvil for cracking hard nuts and also using wedge stones, where chimpanzees insert another stone under an anvil to level its working surface to increase its efficiency. Using a leaf sponge in which several fresh leaves are compressed into a single absorbent mass that allows water to be extracted from tree holes.
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Tools are also made and used for personal comfort and hygiene, including using leaves to clean the body, using certain stems to comb through hair, using sticks to clear the nasal passages and using a leafy twig to fan away flies, among many others.
There are many social displays and social customs that chimpanzees pass down from one generation to the next. There is a “rain dance”, which is a slow and deliberate pattern of rhythmic, bipedal locomotion at the start of rain performed mostly at the beginning of rainy season. Another well-documented social custom is the grooming hand-clasp in which two chimpanzees clasp each other’s hands, raise those arms in the air, and groom each other with their free hand. In Tanzania where it was first observed, it occurs with some variation, and is completely absent in other locations.
In regards to ethics, chimpanzees do appear to have moral inclinations as well as what can be considered to be moral agency. They behave in ways that, if we saw the same thing in humans, we would interpret as a reflection of moral imperatives and self-consciousness. In the wild they ostracize individuals who violate social norms. The process of hunting and crop raiding (in some areas close to villages) involves males and females performing different tasks, with the results being distributed between all participants. At chimpanzee sanctuaries, when crossing a road stronger and more capable adult males of a chimpanzee group will investigate the situation before more vulnerable group-members cross and they also take up positions at the front and rear of the procession. In captivity experiments, chimpanzees respond negatively to inequitable situations, like when offered a lower rewards than companions receiving higher ones, for the same task. When given a chance to play economic games, they spontaneously make fair offers, even when not obliged to do so.
A recent observation of responses of a group of chimpanzees to a dying, elderly member of the group can be interpreted as providing evidence of compassion, bereavement-induced depression, and an understanding of the distinction between living and non-living. The group responded with special attention and pre-death care of an ailing female, male aggression towards the corpse, close inspection and testing for signs of life at the moment of death, all-night attendance by the deceased’s adult daughter, cleaning the corpse, and, later, avoidance of the area where death occurred.
The results of different cognitive experiments and human kid comparisons range from 2 to 5 year olds. Allot of this testing is done to evaluate self awareness, awareness of selves in others, empathy, goal making, assessment of future action, emotional reaction, awareness of results of action and the correlating emotional reaction.
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Now to the gist of it: In the Tommy’s appeals court decision, the court addressed the NhPR argument that Tommy’s inability to perform duties should not be the reason for his exclusion from the right to file a habeas petition because he should be considered similarly to those inabilities in children and disabled adults. The court: “To be sure, some humans are less able to bear legal duties or responsibilities than others. These differences do not alter our analysis, as it is undeniable that, collectively, human beings possess the unique ability to bear legal responsibility.” If I was NhPR I would argue that yes, the ability to possess legal rights and legal responsibility is unique to human, but not so with ethical-societal personal expectations and ethical-societal obligations. It is not unique because it is present in the culture of chimpanzee social interaction. They are ethical beings with moral feelings and justifications. Because of that we should at least agree that in our ethical/legal system they should not be possessed as objects.
The detailed data is also included in the comments so one can evaluate how slippery would be the slope when the argument was applied it to dolphins, chimpanzees and especially parrots ☺
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Hi Kirill,
In practice I’m not sure we can get around the thorny issues of ethics using “parallel planes.” The only plane that really seems to matter is our human legal systems, and fortunately they generally do address subjects other than ourselves. Chimpanzees are of course fascinating, but their similarities to us does not naturally provide them with rights. Black people needed rights in order to not be kept as slaves. Women needed rights in order to vote. We could indeed provide chimpanzees with more rights if we wanted to. I suppose at the moment they are just “property,” though torturing them is also generally illegal under most systems.
If we are indeed now “meta,” however, what I haven’t seen here are any competing ideologies to my own subject based utilitarianism. How indeed “should” we base the issue of chimpanzee rights? I would be particularly interested in hearing Massimo’s virtue ethical position on the matter.
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Hi Eric,
By ‘parallel plane’ I meant that they could be considered as ethical beings based on their relationships with each other. But they are of a different species and their relationships are not nearly as complex as ours. So they have ethical relationships but this does not mean that in general we should look at them as equal persons. They are not cognitively complex to have an ethical relationship with us. They have their ethical plane we have ours. Would you say they have ethical responsibilities to each other? Like that food should be shared amongst all members of the group. Or a child should be taken care of if his mother dies and cannot do it on her own. Or based on the description above you would say that their actions are not complex enough to be thought of as an ethical system?
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While, as I have said above, I think it is good for society to develop some degree of animal rights, I don’t know what kind of special animal (e.g. chimp) court system should be developed. (There are special courts already for different classes of jurisprudence, like drug courts.) That the animals in question are chimps and not kangaroos is a good thing, I guess.
“Kangaroo court is American English, first recorded 1850 in a Southwestern context (also mustang court), from notion of proceeding by leaps.” — etymonline.com
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Coel,
>“The two positions are (1) rights are real properties, independent of human opinion, and our task is to discern them; versus (2) rights are granted by communal human agreement, and our task is to agree them.”
A general concern I have about your ethics is that while it might sound plausible on the level of broad assertion, it offers no actual guidance on matters of real-world individual ethical decision-making. Regarding (2), would this mean my views about who has what rights should be determined simply by agreeing with what most people think? What if i disagree with what most people think, as vegan might with regard to the views of a carnivorous society? Ethical dissent appears incoherent on your view; or to put is another way, it doesn’t appear your view can make sense of ethical dissent.
As another example, suppose you moved into a society where, for reasons of honor, fathers were deemed to have the right to kill daughters who had been raped. Suppose nearly every day, a father could be seen murdering a daughter in the streets. My guess is that you would find this practice abhorrent, but what sense could your view make of this dissenting attitude? Would you see your attitude as just evolutionary noise? Moral realist flashbacks?
It seems your ethics would dictate ignoring these internal rumblings and respect the father’s right. It’s the consensus of the community that he has that right after all, and that’s the only basis of genuine rights.
Regarding (1), I’m not sure what ‘real’ in “real properties” signifies. At any rate, a moral realist need not believe in mind-independent properties. I certainly do not. On my view, properties are human linguistic demarcations that will pass away with human language. It does seem like Plantonistic presumptions of some kind are involved in your disdain for moral realism.
>”I agree that our language (and indeed intuition) is thoroughly moral realist, however it is reasonably straightforward and coherent to re-interpret such language as being reports of people’s feelings and opinions.”
This is hardly a reinterpretation. I would would agree that ordinary moral discourse consists in expressions of feelings and opinions. To make this statement a proper contentious re-interpretation, you might need something like the following to the end: ‘such the validity of such feelings and opinions is a function of how many people agree with them’.
>”Personally I’d say that we do have a very good, coherent and convincing anti-realist theory — namely the account of morals as being evolutionary programming to facilitate a cooperative way of life and thus enable a species to exploit a cooperative evolutionary niche.”
This isn’t an alternative theory of ethics, meta- or otherwise. It’s a broad biological statement, one that I don’t disagree with.
To have a theory, you need to explain how the wreckage your view seems to make of ordinary ethical reasoning isn’t really wreckage.
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Thanks for the explanation Kirill,
Yes I think I now see what you meant, and if chimps didn’t share our environment, I’d even agree that this “different plane” argument can useful in practice — if say we each lived on different planets. But as things stand we do need to decide how to structure our laws regarding other kinds of sentient beings around us. If we forget about that however, I suppose the presumption you’re making is that “cognitive complexity” is what should give chimpanzees improved “rights,” since I think you’ve implied that if they had our complexity then we would be obligated to oblige. (Furthermore if they could verbally tell us us “Give us more rights!” I do suppose that we generally would.) Nevertheless “rights” need to be considered as a legal term which may or may not be granted. Sure the courts will play around with arguments such as this one, as will the politicians, but that’s just arbitrary human stuff. I most certainly do believe that chimpanzees have “ethical relationships” between each other, as do rabbits, (I’m not so sure about ants) but I do not believe that “ethical relationships” happen to be the real issue here.
I believe that the real issue is the magnitude of positive to negative sensations which any given conscious entity experiences at a given moment. I call this its “self.” The good of each given subject will then be the aggregate total of it’s positive minus negative sensations (or “qualia” of you prefer), over time. This may concern a given individual such as a chimp, or society such as the people of New York. I believe that the philosophy community must ultimately reach agreement regarding the issue of biological good for the conscious entity, in order for it to become the founding science from which to base our mental and behavioral sciences (as well as to help us build things like better legal systems).
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An interesting discussion.
The only think I would add is that it seems to me that chimpanzees and many other animals are already viewed as persons under law, depending on how you interpret it. There are laws against animal cruelty which is a recognition that animals are beings with a first hand experience and that they share at least one kind of experience in common with us.
But there is also recognition at law that various animals can feel anxiety at confinement, boredom, grief and many other things besides. Animals are recognised as persons, but persons of a different kind, and I think that is more or less appropriate, although new scientific data might help us fine tune the way animals of various types are treated under law.
I am still not convinced by the approach above though. No satisfactory answer as to how the chimpanzee’s new location (I note from the NhRP website that a sanctuary is the preferred option) would be any less the subject of habeus corpus then there existing situation.
Also, I think that it is a little strange to treat adult and intelligent members of one species as though they were immature or cognitively impaired members of another.
Interesting discussion on the nature of rights and obligations too, but no time to chime in.
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Hey Eric,
“I do hope you’re not suggesting that “rights” inherently exist beyond that which is granted!”
I’m not quite sure why you thought I might be suggesting this, but to clarify…no I was not.
Hi Coel,
“As for Dan, well, I’m unsure. Some of his wording suggests the former (“One draws the line at relevant rights-determining factors. […] If we find out other creatures besides chimps have these mental features, then we would include them as well”). Further, his taking for granted a dismissal of speciesism also suggests the former (since (2) is intrinsically speciesist, whereas (1) is not).”
I intend not to get into meta-ethics or meta-rights, so I was intentionally saying nothing about meta issues concerning rights. That said, everything that I have said should be consistent with every meta-ethical or meta-rights view you might have with the exception of some kind of nihilism.
Also FYI though I am a realist, I am not a property realist, so please scratch me off that list if you happened to have me on it 🙂
With regards to Aravis’ brief comments, I wanted to say just a couple of things to at least minimally motivate not being a speciesist. Also, thanks for taking the time to give us a bit of the motivations for your views, Aravis.
“In addition to William’s essay, there is an equally outstanding essay by Cora Diamond, entitled “Eating Meat and Eating People,” which has had quite a bit of influence on my views on this subject. Her main criticism of Singer and Co. is that they completely misunderstand the reasons why we eat chickens but not people…
This whole conversation assumes that we behave the way we do towards people, because of some listable characteristics they have, and then proceeds on the argument that animals have the same relevant characteristics. The problem is, this clearly is *not* true of our actual reasons. If we didn’t eat people because of their “rights” or because the “suffer,” then we would have no problem eating our dead, presuming the meat was good, amputed limbs (same assumption), or other human meat products, the acquisition of which involves no violation of those rights or suffering. And if we eat animals, because we think they have “no rights” or because they “don’t suffer” then we would have no problem eating our pets….
But none of these things are true, which indicates that our reasons for/for not treating people/animals in certain ways has absolutely nothing to do with these sorts of characteristics.”
It is the last part of your comment that I disagree with. I can get on board with just about everything you said about our reasons for not eating dead humans, etc. but I do not think this warrants the conclusions that it is never the case that we act toward humans in certain ways because of a list of morally relevant characteristics they have. In other words, I think that Cora Diamond is certainly right that in some cases our reasons for treating humans vs. animals in different ways are speciesist reasons, and that we clearly have an additional reason to care for humans simply because they are humans. However, I don’t think this means all of our reasons in all situations are purely speciesist and that we have no reasons to care, and give rights, to other species as well.
You point out the case of how we don’t eat people after they are dead. Since they can’t experience pain, or have goals cut short, etc. yet we still don’t want to eat them, it looks like our reason for not doing so is simply that the corpse is a human one. In other words, speciesism is the motivation for not eating dead humans.
I think this is true in this case, but I don’t think that in all cases our reasons are speciesist. When I don’t want to cause pain to a human, is my reason simply because that creature is a human? I really don’t think so. I don’t cause pain to a human because, as they say in the technical literature, pain sucks, and I know that humans have the capacity to feel pain. If this is true, then when I discover that an animal can feel the same pain, my reason for not wanting to cause pain in it is also that pain is pretty awful and the animal has the capacity to feel pain.
Assuming that some rights are given when we identify things like this, then a human is given the right to not have pain induced upon him absent instrumental reasons and so is the animal.
In other words, as long as in some cases our reasons for treating other humans in certain ways has something to do with a list of relevant characteristics that have morally relevant consequences and not simply because they are human, then there is no logical reason to exclude animals from being rightholders in these cases as well.
I can certainly agree that some, indeed many, rights are given to humans for speciesist reasons, but I don’t see why they all are, or why they all must be.
I also agree can with you that we certainly can have good reasons to preferentially care for our own species, but I don’t know why this means we should be speciesists altogether. Why can’t we care most for our own species, but also care for other species?
I hope I haven’t misunderstood, and indeed I will go read the literature you cited. But this is my brief motivation for not being a full blown speciesist (only humans have rights simply because they are humans). I can agree in many cases we are warranted in being speciesists (like perhaps the right not to have one’s body eaten after death), but not in all cases like the right not to have pain induced upon you absent instrumental reasons to do so.
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@ Thomas Jones:
“I simply don’t believe Wittgenstein’s insights into the uses of language are particularly helpful in this matter or our discussion of it.”
That’s very nice as a stipulative statement, but without specifically addressing the Wittgensteinian points it tells me nothing about why these points are insufficient or that you even understand the criticism.
@ dantip:
“…but I do not think this warrants the conclusions that it is never the case that we act toward humans in certain ways because of a list of morally relevant characteristics they have. In other words, I think that Cora Diamond is certainly right that in some cases our reasons for treating humans vs. animals in different ways are speciesist reasons, and that we clearly have an additional reason to care for humans simply because they are humans. However, I don’t think this means all of our reasons in all situations are purely speciesist and that we have no reasons to care, and give rights, to other species as well.”
This attempt to split reasons for acting towards humans and animals into two groups (by conceding humanism is operative part of the time only, and thus attempting to salvage Singer’s Benthamite position) cannot work. When I cause pain to a human by running him over with my car, it is different than when I run over a squirrel because the human is in a different relationship with me in terms of a form of life and the agreements that constitute it. To ask for anything deeper is to misunderstand one’s own situation as a human being and it is an attempt to place oneself outside human forms of life, a Quixotic quest. My relationship with humans precedes anything else- which is why we don’t eat dead people. To say that I don’t cause the animal pain for the reasons I don’t cause the human pain is to pretend that we can separate ourselves from a human form of life and look at things in a way abstracted from that. Because that’s not really possible, running over a human is much different than running over a woodland rodent. For the record, Diamond explicitly grants that animals feel pain:
“Here I want to mention a point only to get it out of the way. I disagree with a great deal of what Singer and Regan and other defenders of animals’ rights say, but I do not wish to raise the issue how we can be certain that animals feel pain. I think Singer and Regan are right that doubt about that is, in most ordinary cases, as much out of place as it is in many cases in connection with human beings.” (p.466)
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Andrew Gleeson, in the 2008 retrospective I cited earlier on the significance of Diamond’s piece, puts it this way:
“Does Diamond deny that suffering is a reason for action? No. But capacities can be reasons for action without morality being a function of them. As David Cockburn has said in conversation, we should distinguish whether someone’s being in pain is a reason to help them, from whether we have reason to help people in pain. The answers are ‘yes’ and ‘no’. In seeing that someone’s pain is reason to help them, I have run out of reasons. If I fail to see this, it is not because I need a further reason telling me why; I am losing my very concept of a person (human being) in pain. A person is not something to eat—or to ignore when in pain: the concept human being plays a crucial role in the appeal to pain.
Diamond’s point is that the appeal to pain—and other pre-moral capacities—does not go on in a vacuum. It depends on a background of responses which compose our concepts human being or animal. There is no response to pain per se. The response is to the person-in-pain, thus saturating our understanding of what we respond to with all the meaning of human being. It would be a mistake to construe this as: here is a more fundamental reason ‘this thing is a human being’ supporting in a chain of justification relation the reason ‘this thing is in pain’. Pain is not separable from the individual who suffers it—and vice versa—in a way that would create such justification. We can explore what is implicit in pain or in human being, but these are different entrances into an intricately structured whole.” (pp. 171-172)
To salvage Singer’s Bentham-inspired position by saying that, although in many cases speciesism is justified, in other cases we can suddenly ignore the fact that it’s an animal rather than a human is to pretend that we can turn off humanism as if it were a light switch. Not only does that sound odd, it is needlessly more complex than Diamond’s own reasons for her vegetarianism, which is based on an “extension to animals of modes of thinking characteristic of our responses to human beings….” (p. 474). Diamond concedes that this (which she is also at pains to point out is *not* anthropomorphization) is by no means an argument for why everyone should be a vegetarian, but an explanation of why she’s one and a more coherent justification of such attitudes towards animals.
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Dantip wrote (responding to Aravis):
“… I think that Cora Diamond is certainly right that in some cases our reasons for treating humans vs. animals in different ways are speciesist reasons, and that we clearly have an additional reason to care for humans simply because they are humans. However, I don’t think this means all of our reasons in all situations are purely speciesist and that we have no reasons to care, and give rights, to other species as well.”
It’s late in the day and I have not been involved in this discussion, and now I see jarnauga111 has come in with a detailed rebuttal of Dantip’s claims; but here are a few thoughts on language and on the framing of debates…
The term ‘speciesist’ (which I think Dan introduced into the discussion) is a loaded term, and it is not surprising that its use by an assistant editor (he said: “we don’t want to be speciesists”) was objected to. Obviously it is based on words like racist and sexist which are not simply descriptive…
And then, this: “… we … have reasons to care, and give rights, to [sic] other species as well.”
Yes, of course we have good reasons to care about the welfare of other species. Nobody is denying this.
But my central point is about ordinary language, and about the way ‘rights’ talk has got completely out of hand and out of touch with the original and perfectly good uses of the word in ordinary and legal contexts (the latter, of course, deriving from the former).
Specifically I don’t think it makes a lot of sense to talk about giving rights to other species when they cannot and will never understand the ‘rights’ they are supposedly being given. Doesn’t it make a lot more sense to talk, say, about providing legal protections or safeguards or something of that sort?
Intuitively, a right is something one can claim and consciously exercise. Otherwise, the protection or freedom or benefit or whatever which is being conferred is better conceptualized in another way, I think.
It’s all too evident that rights activists exploit (and try to expand) traditional notions of ‘universal human rights’ and associated (implicit) notions of moral realism.
Dantip again: ” … [E]verything that I have said should be consistent with every meta-ethical or meta-rights view you might have with the exception of some kind of nihilism.”
Really, this is not plausible: it is naive to think that a relatively sophisticated moral position (such as Dantip elaborates on a fairly regular basis) does not draw on certain implicit meta-ethical commitments.
And the allusion to the spectre of ‘nihilism’ could well be seen in the light of the realism issue and also as a rhetorical ploy (we all use them!) similar to his original use of ‘speciesism’.
As another commenter suggested, many of these discussions are about framing. Trying to get them framed in terms favourable to one’s point of view or convictions is a central part of the debate, and not the sort of thing that can be decided ‘from above’ in a neutral way.
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Hi Mark,
“The term ‘speciesist’ (which I think Dan introduced into the discussion) is a loaded term, and it is not surprising that its use by an assistant editor (he said: “we don’t want to be speciesists”) was objected to. ”
Please note that all views and putative rhetorical moves expressed by Dantip are those of Dantip alone and are not representative of SciSal generally 🙂
“Specifically I don’t think it makes a lot of sense to talk about giving rights to other species when they cannot and will never understand the ‘rights’ they are supposedly being given.”
It seems that your justification for not giving something rights here is that they cannot and will not ever understand the rights they are given. But anancephalic patients, as I mentioned earlier, cannot and will never understand the rights they are given, but we do give them rights. Same can be said of many persistent vegetative state patients too. Either you say they don’t have rights or you might need to revise this condition for right-holding that you expressed.
“Really, this is not plausible: it is naive to think that a relatively sophisticated moral position (such as Dantip elaborates on a fairly regular basis) does not draw on certain implicit meta-ethical commitments.”
I am, to use Massimo’s phrase, sticking to my guns that my claims can all be interpreted in a manner that is consistent with any meta-ethical postition. All you need to do is insert the relevant meanings for the moral terms used depending on your meta ethical theory of choice. Massimo’s “meta-itch” paper I linked earlier in this thread can hopefully let you see generally where I am coming from.
“And the allusion to the spectre of ‘nihilism’ could well be seen in the light of the realism issue and also as a rhetorical ploy (we all use them!) similar to his original use of ‘speciesism’.”
I will concede I probably shouldn’t have used the term speciesism.
However I am not sure why alluding to nihilism would be considered a rhetorical ploy. I was quite literally just saying that if you are a nihilist then yes, none of my claims will follow at all or even make sense. But if you are a realist, quasi realist, expressivist, relativist, etc. then all of my claims can be made consistent with these. After all, meta-ethics primarily discusses what moral terms *mean.* So just plug in the relevant meanings for my uses of first-order moral terms.
” now I see jarnauga111 has come in with a detailed rebuttal of Dantip’s claims…”
You are right, we all do use loaded terms, like the word “rebuttal,” which implies decisive refutation with no room for potential response 😉
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Cora Diamond’s article is a good read and it helps to articulate why we are not cannibals. But at the same time I was left with the impression she was tip-toeing around the real issue, that of sacredness. Her account is not sufficient and to complete the story we need to talk about the sacred. I am not talking about religion. I am talking instead about that deep sense of awe that attends our perception of something that overwhelms us with its inexplicable value, beauty, complexity and ‘otherness’.
From earliest times we have seen ourselves as being ‘other’ when compared with the animal kingdom. In part this was because we were obviously smarter, by orders of magnitude. But this does not really explain it. What does explain it was the possession of properties that were seemingly unique and truly special. We alone could perceive love, beauty and morality. We alone could act on our feelings of love, beauty and morality. We alone possessed a powerful imagination that could enroll our feelings of love, beauty and morality in narratives or art.
But most of all, we could perceive mortality. And with mortality came a grievous, irreparable feeling of loss. We alone could see the light go out of a loved one’s eyes and know that life would now be attended by endless desolation.
At that moment of overwhelming loss you comprehend for the first time the true value of what you have lost. You have lost something sacred, human life. Words will not explain your loss, you can only feel it. With this unimaginable intensity of feeling comes also a feeling for the wonder of what you have lost. As grief attends you for the remainder of your life, so too you are reminded of the singular value of being human.
And so we deeply, to the very innermost core of our being, feel that we are special in a ways that can only be described as sacred. We protect the sacred with powerful taboos. We will not eat our own kind. We will not discard our dead for the carrion to dispose of. We will protect the memories of our dead. We will celebrate the memories of our dead and we will console ourselves with thoughts that they still persist elsewhere in a kinder world.
But this contains a powerful contradiction because we are endlessly cruel to our own kind. That is because their ‘our’ is not the same as my ‘our’. Their ‘our’ falls outside my circle of compassion while my ‘our’ are contained in my circle of compassion. Even so, we will not eat the bodies of our enemies, that is a step too far.
As Cora Diamond says, “to argue as Singer and Regan do, is not to give a defence of animals; it is to attack significance in human life“.
The ethical position is to increase the significance of human life by enlarging our circles of compassion to encompass other sentient life. This means changing our moral concepts, enlarging them, not changing our understanding of animals.
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Hi Dan,
However, a torturer or a sadist can agree with everything you’ve said, and then cite those reasons for why they *do* cause pain to a human. I thus think that your account is not getting at the real reasons.
Possibly this taboo derives from the additional disease pathways if one eats ones own species (see the history of Kuru and BSE). This (un-evidenced EvoPsych just-so story) could be wrong, but we should remember that metaphysics is usually a commentary on human psychology, rather than ideas such as “rights” deriving from the metaphysics.
Hi Paul Paolini,
This is the problem with arguing moral anti-realism; people always try to translate the view into a moral realist one!
Here you are interpreting my ethics as saying that there is such a thing as “genuine” rights, presumably some absolute standard of “rights”, and that it is “consensus of the community” that maps to that standard.
My actual view is to reject the whole concept of an absolute standard. All there is is people’s feelings and opinions!
Not at all! Humans express their feelings and opinions and try to influence society to their liking all the time. You don’t need a licence granted by some “objective standard” in order to do that.
You are entirely right, it doesn’t! But that’s only a defect if you start from the moral-realist presumption that a meta-ethical view should offer guidance and prescriptions about real-world decision-making.
What do you mean by “should be determined”? If you’re trying to map to some absolute standard of “shouldness” then my reply is to reject any such concept.
Where’s the problem? Humans differ a lot in their likes and dislikes, and they have different opinions about how they’d like society to be or how they’d like people to relate to each other. So?
No! It’s your moral-realist intuition that requires the stamp of “validity” deriving from how it maps to some supposed absolute standard. I reject that whole concept.
It is indeed a theory solving *meta*-ethics. What it is not is a prescriptive guide to applied ethics. It’s only your moral-realist intuition that requires that there be such a thing.
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To Mark and Dantip
A follow up on your discussion of
“Specifically I don’t think it makes a lot of sense to talk about giving rights to other species when they cannot and will never understand the ‘rights’ they are supposedly being given. Doesn’t it make a lot more sense to talk, say, about providing legal protections or safeguards or something of that sort?”
I do not understand how providing rights can be discussed without analyzing how that right should be provided legally. A right is a right only if one can claim it. Or is that not true? (I am not arguing I really want to know if I am making a false assumption). Is the legal argument for performance of corresponding duties also a requirement for having rights in a broader ethical sense?
Regarding my point of view on considering the understanding of rights as a requirement for having rights:
If the problem of not understanding is tied to the problem of not being able to perform the duties.
Not being able to perform the duties is how the issue is addressed in Tommy’s case. And NhPRs argument is similar to Dantip’s that there are many human example’s where there is no understanding and no performance of corresponding duties. NhPRs argument is that that the corresponding duties requirement can be satisfied through a guardian (or parent in case of mentally disabled children) responsibilities, such as being liable in negligence suits. Also because of the connection of one’s language to one’s understanding it is very likely that many human cultures do not understand our conception of rights. The piraha do not understand the concepts of numbers
(http://www.slate.com/blogs/lexicon_valley/2013/10/16/piraha_cognitive_anumeracy_in_a_language_without_numbers.html), if this claim is to be accepted then it would not be unreasonable to accept for this conversation that some cultures do not understand our conception rights. Consequently, if it was not for them being human they would not be able to satisfy the requirement. However these cultures surely must have a complex system of ethics and moral responsibilities, so their participation in their system may be a good reason to allow them to be considered as equals in our system.
In regards to being human part of the requirement I think that species like the chimpanzee should be considered. Because if it is proven they do have complex social activities that are not innate and are cultural, combined with proof of complex cognitive function, it can be argued that there is a moral aspect of their culture. Which in turn makes a chimpanzee a performer of moral action. I think that the complexity of the ethical structure would be the key to their inclusion into a particular right such as the right not to be possessed as an object.
What is the problem with dealing with ethical issues one step at a time, with the taking of the next step being connected to the examination of previous steps? For example – Chimpanzee’s have a right not to be possessed. Should they have a right to be supported by the state as a citizen would? Lets look at the first step and how it was decided and apply it to the context of the next step. The broader ethical principles have a role in the reasoning but are not the answer on their own when dealing with new situations.
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I believe this is my fifth and, by rule :), my final comment on this article and the commentary.
jarnauga111 stated:
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@ Thomas Jones:
“I simply don’t believe Wittgenstein’s insights into the uses of language are particularly helpful in this matter or our discussion of it.”
That’s very nice as a stipulative statement, but without specifically addressing the Wittgensteinian points it tells me nothing about why these points are insufficient or that you even understand the criticism.
– – – – – – – – – – – – – – – – – – – – – – – – – – – –
Well, it certainly wasn’t intended in an ostensive sense, but if it is a stipulative statement, it is rather mild when compared to the many that pepper the commentary. Nevertheless, I have to admit that I have only myself to blame for getting hoisted by my own petard when I made a glib reference to Wittgenstein’s well-known statement that “If a lion could talk, we could not understand it.” My suggestion is that legal cases regarding nonhuman rights say more about how we envision what it means to be human than it does about how nonhuman animals envision themselves.
As I stated, the issue of nonhuman rights is one about which I am conflicted. Similarly, I am frequently conflicted when I read articles on bio-diversity, the global environment and our ecosystem. I confess that my readings of Wittgenstein do not lead me to any fruitful insights on these matters. So, when Aravis suggests “our good friend” Wittgenstein can lead us through these legal questions, I feel Aravis is again being dismissive. Or, perhaps, the people of Finland and India simply do not have a proper appreciation of Wittgenstein when they decide to grant some cetaceans the legal status of “persons.”
Let us just agree to disagree regarding whether this matter is frivolous and whether it “should” be legally pursued. And let me suggest that you redirect your focus on the article itself which has to do with the merits of the “legal” strategy employed by the Nonhuman Rights Project and, in the words of the author, “a discussion on the Hohfieldian system of legal rights that was relied upon by the petitioners.”
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Last post and there is no way to cover even a fraction of the important issues in 500 words.
I am Catholic and repulsed by Singer’s views. Being religious may have its own intellectual problems, but the sacredness of human life fits well with our moral intuitions.
Nevertheless, it’s refreshing to go over some of Singer’s arguments after hearing a utilitarian who thinks he deserves kudos because his ethical framework supports the claim that it is wrong to mutilate little girls. Singer didn’t shy from the real issues.
I do concede to Ejwinner that I mis-catagorized utilitarianism. I agree there is plenty to address without going overly meta, but also think meta discussions can naturally follow from this issue.
Cora Diamond:
Advances the debate but also overstates her case.
She argues that the appeal to different capacities of animals are not entirely adequate. “…as an explanation of the appropriateness of a funeral for a child two days old and not for a puppy it will not do; and the vegetarian is forced to explain that-if he tries at all-in terms of what it is to us, a form of explanation which for him is evidently dangerous”
But my quote from Singer clearly indicates he does think “what it is to us” is important. He says “So one important reason why it is normally a terrible thing to kill an infant is the effect the killing will have on its parents.” Now he doesn’t limit himself to that reason but it is in fact the *only* reason he offers in that textbook. Sure it’s dangerous, because it implies that if the parents want to kill their infant it’s fine. But again if you are a utilitarian who basis all your concerns off the avoidance of suffering/misery then this view makes sense. Diamond also blames utilitarianism.
She claims people like Singer “equally may be accused of ignoring the hard cases for their own view.” It’s hard to believe anyone would say that about Singer.
Williams:
Suggests Singer should be a relativist, but does not address *any* of the substantial problems with relativism.
Argues against Singer’s abortion stance using a folksy argument.
Argues it would be crazy to treat all animals like humans. Singer doesn’t argue that we should be obligated to rush every suffering chipmunk to the hospital. But if we think it’s suffering bad enough we should stomp its skull and not leave it to suffer. Yes EJ Singer dilutes human rights but he gives his reasons.
Suggests that Singer is only interested in preventing suffering including in the animal world. And suggests if we really considered all the suffering in the world we would recommend annihilating earth. But singer also wants joy/happiness and not just to avoid suffering. But it is a fair question to ask such utilitarians: If we can prove a certain animal does not have considerable joy that outweighs its suffering should we eliminate it?
Why shouldn’t we consider humans separate just because we are human? If we drop the characteristics then it’s arbitrary.
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@ Thomas Jones:
“And let me suggest that you redirect your focus on the article itself which has to do with the merits of the ‘legal’ strategy employed by the Nonhuman Rights Project and, in the words of the author, ‘a discussion on the Hohfieldian system of legal rights that was relied upon by the petitioners.’
What we’ve been discussing re: Wittgenstein goes precisely to the (philosophical) heart of this legal strategy, insofar as whether one can ascribe rights to an ape by listing certain criteria. The Wittgensteinian position argues that that is precisely backwards, for all the reasons that have been given (which I won’t go through again). I am still wondering if you really grasp this point, since the famous line about the lion that you cite from Wittgenstein is based in part on the notion that humans have a form of life absent from lions (if they even have one that can be called that in terms of agreements, etc)- that’s why we wouldn’t understand him and that’s why talking about ape rights is nonsensical- they are not part of our form of life, which they would have to be for the Hohfeldian strategy to work. Wittgenstein makes this clear by the remarks immediately preceding that one in the Philosophical Investigations via an analogy of us being a stranger in a strange land:
“We also say of some people that they are transparent to us. It is, however, important as regards this observation that one human being can be a complete enigma to another. We learn this when we come
into a strange country with entirely strange traditions; and, what is more, even given a mastery of the country’s language. We do not understand the people. (And not because of not knowing what they are
saying to themselves.) We cannot find our feet with them.”
If that’s the case in a strange human country, it is a fortiori the case with a lion.
Now, we could take Diamond’s route and extend certain descriptions to the lion, but that would be neither mixing two different forms of life nor would it be anthropomorphizing them, which is the reason why it’s coherent. The Stirner quote from Williams I cited earlier gets it’s bite for a similar reason to Wittgenstein’s lion line:
““The tiger that assails me is in the right, and I who strike him down am also in the right. I defend against him not my right, but myself.”
@Joe: “She claims people like Singer ‘equally may be accused of ignoring the hard cases for their own view.’ It’s hard to believe anyone would say that about Singer.”
This is a reference to the cases of dead people and eating their flesh and our attitudes towards this and so forth. These are certainly hard cases for someone like Singer and, given the ubiquity of the phenomenon, to be silent about it (at least at the time the article was written- 1978) is odd.
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By my count I have four contributions so maybe I have just a little time to dip into the other question.
It seems to me that this discussion illustrates what I keep saying, that it is misleading to keep on using the language of objective morality even if you don’t think there is objective morality (and even as an agnostic on the question of objective morality, I think there are constructs such as ‘rights’ which are just useful fictions).
When people wonder if chimpanzees are ‘persons’ for the purposes of habeus corpus they are asking a question which has no objective answer. If we decide that they are then they are. On the other hand, if we decide that we prefer them dressed in cute outfits making us laugh at the circus or in cages for the purposes of scientific experiments, then they are not such ‘persons’.
I imagine that, being as we are and being fully informed of all that science can tell us of chimpanzees, we would not choose the latter, we would choose instead that they be accorded some dignity.
But this suggests a legislative pathway, backed by some solid scientific and philosophical preparation, would be the way to achieve the best outcomes for chimpanzees (and possibly other animals) based on how we feel they ought to be treated. If we did that then we could probably frame laws for animals in a coherent fashion using language suitable to the purpose, rather than trying to shoehorn them into existing categories with all the attendant messy complications (for example they question of why they wouldn’t be subject to habeus corpus in a sanctuary).
We could also frame the language so that animals are accorded the dignity we feel they should have depending on the type of animal they are.
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Dantip (responding to my earlier comment) wrote:
“Either you say they [anencephalic humans] don’t have rights or you might need to revise this condition for right-holding that you expressed.”
I was simply saying that I think it’s better not to talk of assigning ‘rights’ to beings who cannot understand or embrace or claim them, and clearly anencephalic humans are in this category. You seem to be challenging me to say that they ‘don’t have rights’. But this is just the sort of talk (and thinking) I am trying to get away from.
First of all, it is unclear and ambiguous. I certainly reject the idea of innate and imprescriptible rights. I see rights as arising naturally via ordinary human interactions, customs and conventions. The law, quite rightly, formalizes some of these…
And of course legal frameworks can assign rights (or ‘rights’) to anybody or anything — though what will count more in many instances will be the legal obligations on others to deliver whatever benefits the legal right in question specifies.
My basic point is that rights talk has been overdone. I tend to agree with those who claim that rights-based activism is leading to ‘rights inflation’ and a hollowing out of the meaning of the term. This process could even be seen to be corrupting (aspects of) our legal systems and bringing them into disrepute.
But I am saying that we can easily reframe and rephrase our views of our obligations etc. to the sorts of vulnerable beings under discussion in much more linguistically natural terms — and so avoid the unnecessary confusion which inappropriate rights talk inevitably brings to these debates.
Speaking more broadly, I have to say that your vision of how natural language works, given your talk about ‘plugging in’ those analytically decided ‘meanings’ is totally alien to the way I see it working.
And, if we are talking about ethics or morals, it seems to me that we need to make sure our understanding of natural language semantics is well-grounded because ‘thick’ ethical concepts (which are deeply embedded in culture and language) are basic here. The meaning of these concepts is an integral part of and arises out of the system, i.e. is not something that can be somehow separately defined and then ‘plugged in’.
(And, by the way, the word ‘rebuttal’ does not imply what you claim it implies. A refutation, yes. But I said rebuttal.)
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@Robin:
“But this suggests a legislative pathway, backed by some solid scientific and philosophical preparation, would be the way to achieve the best outcomes for chimpanzees (and possibly other animals) based on how we feel they ought to be treated. ”
Taking it slow and making sure we got it right is one option. But, If ultimately the right decision is to forbid treating them as property and give them the claim right of filing in court to enforce that. Then, should we have not tried to do it the ASAP way now? That is how I am thinking about it – if one is not quite sure about it but there is a good chance that it is wrong to hold them right not to be property maybe the way to play it safe is to go for it like NhRP, even if one is not as sure and passionate about it as them. But that is a different type of a discussion.
Interestingly, NhRP is soon to file an elephant habeas petition. This seems backwards, surely if a chimpanzee is denied an elephant would be denied also. Seems like it should be done the other way – start with an elephant, see the reasoning that is presented with the denial. Then figure out how to best present the more cognitive and social chimpanzee in a way to overcome the problems set by the court in the elephant case.
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If approved can you put in the version below, I messed up with one of the sentences above. Thank you.
@Robin:
“But this suggests a legislative pathway, backed by some solid scientific and philosophical preparation, would be the way to achieve the best outcomes for chimpanzees (and possibly other animals) based on how we feel they ought to be treated. ”
Taking it slow and making sure we got it right is one option. But, If ultimately the right decision is to forbid treating them as property and give them the claim right of filing in court to enforce that. Then, should we have not tried to do it the ASAP way now? That is how I am thinking about it – if one is not quite sure about it but there is a good chance that it is wrong to hold them as property maybe the way to play it safe is to go for it like NhRP, even if one is not as sure and passionate about it as them. But that is a different type of a discussion.
Interestingly, NhRP is soon to file an elephant habeas petition. This seems backwards, surely if a chimpanzee is denied an elephant would be denied also. Seems like it should be done the other way – start with an elephant, see the reasoning that is presented with the denial. Then figure out how to best present the more cognitive and social chimpanzee in a way to overcome the problems set by the court in the elephant case.
LikeLiked by 1 person