For a Narrow Expansion of Liberty — A Summary of Recent Cases Filed on Behalf of Four Chimpanzees

chimp_Craig_R_Sholleyby 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]

NhRP appellate hearing
Steven Wise of the Nonhuman Rights Project at the New York court of appeals hearing. By Brandon Kaim.

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.

94 thoughts on “For a Narrow Expansion of Liberty — A Summary of Recent Cases Filed on Behalf of Four Chimpanzees

  1. A very interesting article! 🙂

    I have a few questions though. As I understand, the habeas corpus, and probably all rights and duties in general, are a means to an end. To what end does the NhRP make this petition? Assuming that they achieve all their legal goals, what is practically going to change in the life of those four chimpanzees? Will they be assigned legal guardians and treated as 5-year old children or such? Will their living conditions be improved? Actually, from the essay itself we can infer very little about their current living conditions and whether they are being treated well or not.

    Second, if that happens that NhRP wins all arguments and a legal guardian is assigned to chimps (like for a human child), how does anyone define what is in the chimps best interest? In the case of human children, usually both the parents and the society at large act in the child’s best interest, to the best of their knowledge — a knowledge that has grounding in a basic biological component (parental instincts etc.). But I am not sure that similar knowledge exists (to a suitable extent) if a human is a legal guardian of a chimp. We humans, arguably, do not share the same instincts across babies and chimps. In that sense, how will legal guardianship be any different from having a chimpanzee as a pet animal in one’s home, similar to dogs, cats, etc.?

    And third, does this kind of reasoning open the door for other animals as well? Could a similar claim be made on behalf of dogs, horses, and other animals that are traditionally considered to be property? What about cattle and other animals we grow for food? Where does one draw the line? Should such a line even be drawn, or should we grant such freedoms for all animals in general?

    I am curious about all these issues, but most importantly about the first one — what is the endgame for NhRP, the purpose of this whole legal activity?

    Like

  2. The activist judges seem to be more interested in accountability than freedom, or at least accountability is attached to freedom in the sense, that is the rationale of their interpretation of habeas corpus that the two cannot be separated. So, how again have we been holding corporations accountable? If there are standards and precedents, what happened to this one?

    Like

  3. 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.

    I don’t blame him/her.

    I am quite surprised that the NhRP asked a judge to make that comparison – freeing the African American slaves and freeing the chimpanzees.

    This is something I mentioned last time the question of granting personhood to other primates came up here. The argument (and I am putting it as it will sound to many people) ‘we freed the blacks, so we should free the chimpanzees’

    My advice would be, if you are pursuing personhood for chimpanzees, don’t make that comparison. Even if you don’t consider it an insulting analogy to draw, enough of the rest of us will so that you will be shooting yourself in the foot.

    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.

    I would be interested to hear the basis for this comparison. The average five year old human child has a fairly sophisticated intellect, an intelligent adult chimpanzee is not even close. Importantly, a five year old child has quite a good grasp on the concept of responsibility and an idea of his/her own autonomy.

    Even if the Counsel had said a two year old child, I would be questioning it somewhat.

    I am all for according greater dignity to the higher primates, and a number of animals. I am all for animal welfare. We should certainly free chimpanzees from humiliating and confining circumstances. An I have no particular objection to broadening the notion of person to include the higher primates (perhaps even animals like dolphins).

    But I am not sure it has all been completely thought out.

    Liked by 1 person

  4. I am curious how it was established that these lawyers actually are representing the chimps. Or are these lawyers actually representing the NHRP? If the latter how do they gain standing to file a habeus corpus for these Chimps? Could another organization claim to represent the chimps and ask that the petitions be dismissed? Normally you would get authority from the parents or guardians to represent children or adults unable to express their wishes. I do not practice in this area of law and since this did not seem to be an issue I think I must be missing something. But it seems to me the huge difficulty in communication makes this difficult to have any idea how they can really say they are representing the chimps.

    I do not agree with the courts reasoning that rights always have duties. But assuming the court can get past the standing issue, I think the court should simply rule that the intent of the habeus law was to protect humans, not animals, and leave it to the legislature if there are to be new laws. In general I am more of a fan of democracy than judicial dictatorships.

    IMO this would better fit societies views of how animals should be treated, rather than trying to shoe horn animals into the rights people never intended to give to animals. That will not work well for animals or humans.

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  5. 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.

    Liked by 4 people

  6. Hi Marko,

    You said, ” Assuming that they achieve all their legal goals, what is practically going to change in the life of those four chimpanzees? Will they be assigned legal guardians and treated as 5-year old children or such? Will their living conditions be improved?”

    I just wanted to note that I think this was basically the concern of the court when they responded,

    “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.”

    You then said,

    “how does anyone define what is in the chimps best interest? In the case of human children, usually both the parents and the society at large act in the child’s best interest, to the best of their knowledge — a knowledge that has grounding in a basic biological component (parental instincts etc.). But I am not sure that similar knowledge exists (to a suitable extent) if a human is a legal guardian of a chimp. We humans, arguably, do not share the same instincts across babies and chimps. In that sense, how will legal guardianship be any different from having a chimpanzee as a pet animal in one’s home, similar to dogs, cats, etc.?”

    I actually think there is a good answer to this: either trust them into the care of researchers who have lived alongside these creatures for years (someone like Jane Goodall), or trust and follow the instructions from these researchers on how these creatures ought to be treated, and what is in their best interest. This is clearly different from an uninformed pet-seeker who buys a pet and keeps it in his home.

    Even if this doesn’t satisfy you and you think there is a permanent insurmountable epistemic problem about whether we can satisfactorily know what a chimp’s best interests are, I think there is something that can be said.

    I don’t think that pointing out an epistemic problem (that we can’t know what is in their best interests) means that we would be doing the wrong thing in trying and failing to do what is in their best interests. Consider a parent who doesn’t know what his child wants to be when he grows up. If he does something that doesn’t turn out to be in his child’s best interest (since the parent didn’t know what was in the child’s best interests in this sense), we would still praise the parent for trying, even if he failed in some respects.

    Lastly, you said:

    “And third, does this kind of reasoning open the door for other animals as well? Could a similar claim be made on behalf of dogs, horses, and other animals that are traditionally considered to be property? What about cattle and other animals we grow for food? Where does one draw the line? Should such a line even be drawn, or should we grant such freedoms for all animals in general?”

    Yes, it does open the door for other animals (which I think is a good thing since we don’t want to be speciesists). Where does one draw the line? One draws the line at relevant rights-determining factors. The article (and much philosophical literature) discusses what some intuitive criteria are for being a rightholder.

    “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”

    At least some of these things we think are relevant mental properties that indicate a rightholder. If we find out other creatures besides chimps have these mental features, then we would include them as well. Perhaps aliens too, if we should stumble upon them. After all, as mentioned earlier, we don’t want to be speciesists (defenders of the idea that only humans are right-holders simply because they are humans).

    So bacteria, ants, and fish don’t have these properties and wouldn’t be considered rightholders, but organisms coming later in the phylogenetic tree might, and we would want to allow for them to be rightholders in principle.

    Note: some views would hold that you don’t have to *actually* have the mental properties that were mentioned above, you only need to have the potential for them. Another account, given by Matthew Liao, says you only need to have the genetic basis for these mental properties.

    Like

  7. dantip wrote:

    “we don’t want to be speciesists.”

    ——————————————————————————

    Actually, I *do* want to be a speciesist. And I want everyone else to be speciesists too.

    Interestingly enough, so did Bernard Williams, in my mind the finest ethicist of the last hundred years or so. See his “The Human Prejudice,” in Philosophy as a Humanistic Discipline (Princeton University Press, 2006).

    Liked by 3 people

  8. Hey Aravis,

    ill take a look at the paper, thanks.

    For now would you mind giving me a
    Few “teaser” reasons for wanting everyone to be a speciesist?

    Liked by 2 people

  9. Aravis,

    I’m a bit surprised by your attitude. Not by the content of your comments, though. Indeed, I actually agree about human exceptionalism (which even if a matter of degree, it has *lots* of degrees of separation from any other primate), and when you say that non-human primates don’t qualify as persons in any meaningful way.

    However, I hope you would agree that it is immoral to inflict harsh or painful life conditions on any sentient being without a more than solid motivation, so it seems that the “rights” of these animals have to be represented somehow. (Incidentally, of course, Peter Singer doesn’t talk about animal rights, but rather of animal welfare, since he’s a utilitarian, and for utilitarians the concept of rights is a bit too, ahem, deontological.)

    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.

    Liked by 3 people

  10. I just want to note that I think whether or not you turn out to be a speciesist or not will significantly hinge on what you mean by the “human species” and what you mean by “right.”

    Some people think that something is a rightholder when it is capable of being morally harmed; when it has some (even if minimal) moral status. This is what makes mental features like the experience of pain, ability to plan, self-consciousness, etc. very relevant for determining whether something has rights, even if has far fewer rights than we do – perhaps only the right to not have pain inflicted upon them when there is no instrumental reason to do so.

    If you adopt this view, then it is tougher (though not impossible) to consistently hold both that causing pain in non-human animals is wrong and that they are not rightholders.

    So now to both Aravis and Massimo, I think I (and other readers) would really appreciate some motivations for speciesism (or human exceptionalism).

    Liked by 2 people

  11. Robin Herbert,

    I think this is a good first response, and share it.

    Massimo,

    I read Aravis as snarking at the case, not the article.

    The article is actually narrowly focused, on the legal issues involved. But the case raises some questions in philosophy or law, epistemology, ontology, and politics. However, some of these questions, do appear, at first glance, to border on the absurd, and need to be brought back to basics to be constructively discussed. (That bodes not well for the NhRP crowd, since courts will only allow just so much esoterica before they rule it irrelevant to the case.)

    The bottom line is whether humans and chimps have enough in common to grant chimps certain rights we grant humans in this country, and of course that’s clearly false. So what NhRP is really asking is for the courts to construct such rights around a fictitious ‘person-hood’ for chimps, and I don’t see that playing out well either.

    Surely one doesn’t have to go so far to enact laws to prevent cruelty to animals; and making the case that we should probably weakens the cause of animal welfare by generating a back-lash effect.

    Like

  12. Aravis,
    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.

    This amusing riposte goes right to the heart of the matter. It has a Churchillian ring to it and I can easily imagine Sir Winston Churchill delivering it as another of his signature ripostes in Parliament.

    Massimo,
    However, I hope you would agree that it is immoral to inflict harsh or painful life conditions on any sentient being

    In the present company we can take that as a given.

    Aravis,
    The Human Prejudice,” in Philosophy as a Humanistic Discipline

    So much good reading to do. This should keep me quiet for the remainder of the discussion 🙂

    Like

  13. Hi Dan,

    For now would you mind giving me a few “teaser” reasons for wanting everyone to be a speciesist?

    For starters, there are no such things as objective “rights”, there are only agreements we humans have entered into with each other about how to treat each other. These agreements derive from our moral feelings, which in turn are programmed by our species’ gene pool. Thus our moral feelings will be primarily about our own species, and thus it will likely be a fact that most humans do value humans above other species.

    Indeed, the very fact that “rights” are a social contract among *humans* amounts to “human exceptionalism” on this topic. It may be that, were we to meet equally capable aliens, then we might negotiate and agree notions of rights that encompass both them and us. But, there is no prospect of such a negotiation with chimps or other earthly species, and thus we are inevitably in the speciesist position of choosing to bestow “rights” on other species if we so wish.
    And we may so wish, since we have empathy and compassion, and many of us would dislike causing unnecessary suffering to sentient creatures. This is likely to be a spill-over of the empathy and compassion that developed (in evolutionary terms) with regard to other humans.

    Other species don’t have objective “rights”, any more than we humans do. But we may want and decide to agree with each other acceptable ways of treating animals, and these can be codified in the language of “rights” (as indeed is done for humans). Indeed, most Western countries have long had laws about acceptable treatment of animals.

    And it’s appropriate that we discuss with each other acceptable treatment of our nearest evolutionary relatives. (It’s been remarked before that it’s a good job that Neanderthals are extinct, otherwise we’d have huge issues over “human rights” law.)

    Liked by 1 person

  14. 1/2
    Mr. Ershov,

    Thank you for an interesting article. And yet–
    “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.”
    I should think not. Charitably I assume you meant “can” in the sense of whether chimps *should* be able to assert certain legal rights, but what strikes me as more operative is that indeed chimps *cannnot* assert such rights because they *cannot* (are unable) to assert anything. Because they are chimps. Much of your article, and counsel’s argument, moves on briskly from considering whether they *can* (are able) to assert anything to whether they *can* (ought to be legally permitted to) assert some things. I find myself thinking of Monty Python and men’s symbolic right to have babies. Obviously I share in some of Aravis’ mirth here.

    Personally I have a very hard time imagining that chimps represent in anything like the human way. Rather I agree, for once, with Jerry Fodor when he characterizes most of this talk as “sentimentalist propaganda on the part of chimpanzees and dolphins.” Usually this kind of stuff is asserted by psychologists and biologists who call philosophers scientifically naive before going on to be blindingly naive about the nature of mental representation and language. But I’m not going to win that argument so leave that go.

    The main point is that chimps obviously don’t have “autonomy” and “self-determination” in anything like the human senses. Of course in one way a mouse has “autonomy” and “self-determination”. It crosses the kitchen to find a scrap of food due to no outside influence (so “autonomously”) and according to its desire for food and, in some sense, mental representation that there is food across the kitchen (so “self-determining”). Lower animals, pre-linguistic children and the severely disabled all have this ability. Yet animals in all three categories have something else in common as well. We don’t hold them responsible when they do something wrong. If an infant or an animal, say, bites someone, we do not morally blame them or attempt to hold them responsible for their actions. Doing so would be committing a kind of mistake. Why?

    Well, children and lower animals lack the ability to follow principles. They lack the autonomy of being able to choose to follow, or not follow rules. As Kant might put it, they lack the autonomy of practical reason, the ability to give themselves the law. Without the I ability to represent to oneself a rule and to represent onself as following it, tne cannot be held responsible for breaking rules. In that case one just lacks the capacity to understand rule following and so cannot be blamed for being unable to follow a given rule. Mature humans of course have this special kind of autonomy and that is what makes them able to enter to the legal realm of asserting, denying, claiming and demanding. (In this way the court was right in it’s suspicion that in able to be to claim a right one must also be able to bear a responsibility although the court perhaps failed to articulate why they should be so connected.)

    Liked by 2 people

  15. Massimo:

    I think the article’s great. No criticism of it whatsoever. It’s the issue that I have issues with. 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.

    dantip:

    I can’t do justice to your question, here, now, because I simply do not have the time. (My daughter’s Bat-Mitzvah is Saturday, and I have the entire mishpocha on my hands.) The Williams essay captures a lot of my thoughts on this subject, but let me just say a few things, by way of indication: (1) I reject the analogy that is intended between “speciesism” and prejudices against other people, on the basis of race or gender; (2) I reject the Impartial Observer — essentially judicial — conception of morals, from which the speciesist charge emenates; (3) I do not think that caring about one’s own species more than, say, chickens or cows, is something for which reasons need be given, any more than caring more about one’s own children than about total strangers does.

    Again, these are just a few points, by way of indication as to where I’m coming from. By no means do I think that they give anything like an adequate answer, of course. I will try to be more substantial, once the proverbial storm, here, is over.

    Finally, I am in complete agreement that the inflicting of gratuitous suffering is objectionable, but I believe that one can think that, while still being a speciesist.

    Liked by 2 people

  16. 2/2

    Now I take it to be obvious that chimps do not act on general principles (although what people are willing to claim on behalf of animals consistently surprises me). Obviously chimps (capable of complex social interactions and symbolic performances are somewhere between mice and linguistic animals. Yet I take it as obvious that while a chimp might share food because it has the expectation of future reciprocity or fear of domination given its place in a social rank, it cannot be thinking “It is right to share food with my fellow chimps when I have enough and my fellows do not.” Chimps just lack the capacity for such rule following behavior. Lacking such capacity they cannot enter into legal relations which consist of asserting and abiding by rules (here laws).

    Now this does not quite put to bed whether or not chimps have rights. Certainly it seems to me they do. What I think it does put to bed is whether they have rights on the kinds of grounds counsel urges (they do not). And certainly pre-linguistic children and the severely disabled have rights and I have argued they equally lack autonomy in the full-blooded sense. I have heard that cats have been granted rights in divorce settlements. This of course does not presupose cats are competent to appoint counsel. Rather we award rights to such creature on the basis of their welfare. We think cats (and less able humans) deserve certain treatment and should be treated accordingly by the courts. Yet this, crucially, does not presuppose the special ability of such creatures to behave autonomously or in self-determination. I would suggest that what rights chimps have can be granted on these more humble grounds.

    Liked by 2 people

  17. I would have to agree the case is frivolous. The fact that they brought multiple cases arguing the same thing, to get several bites at the apple, only exacerbates my feeling that this was somewhat abusive and wasteful of court resources.

    As to the numerous underlying issues, I think they are interesting and worthy of discussion. What defines person-hood? What rights should animals have if any? What morally differentiates human animals from the others? etc.

    It may well be that laws protected humans and no other animals because of the view that humans, and human life was sacred. Chimps weren’t endowed by their creator with any inalienable rights. I happen to be a religious type so I have no problem with believing that human life is sacred. But I think many people do want to hold onto something like the sacredness of human life without the sacredness. We can use more secular terms like “dignity” of humans. But then why wouldn’t that dignity apply to animals?

    If we assume “sacred” implies a religious basis can such laws be allowed under tests like the Lemon test?
    http://en.wikipedia.org/wiki/Lemon_v._Kurtzman

    Specifically at issue would be whether basing this distinction on the “sacredness” of humans or human life would violate the requirement that the law have a “secular purpose.”

    The lawyers bringing this case are clever because they can force the judges to try to give some revisionist justification for excluding chimpanzees that does not appeal to religious grounds. And when the judges then try to formulate their revisionist purposes to exclude animals the lawyers can be critical of those reasons.

    One court made the argument that rights only go to those who have duties. Chimpanzees have no duties and therefore have no rights. When it was cogently argued that very young children have rights yet no duties the court responded by saying humans as a whole have duties. I think this seems an arbitrary distinction. I mean why draw the line with species? Why not group things differently and say children have no duties so they do not have any rights? BTW there may be good reason to draw a line between species even though one doesn’t exist between children and adults. But the court didn’t articulate those reasons from what I read.
    Coel:
    “For starters, there are no such things as objective “rights”, there are only agreements we humans have entered into with each other about how to treat each other.”
    When did we agree?
    Dantip:
    Our meta approach to ethics effects our ethical reasoning much more than Hume’s meta argument regarding science effects how people do science. That is why these meta issues will come up time and again in political and legal debates among intellectuals.

    David
    You are right neither a child nor a chimp can make claims in court. But that doesn’t answer why a child should have a right of habeas corpus and not a chimp. But I think you generally make some good points.

    I it requires a considerable leap to know this group really represents what the chimp wants. At least with Children we have better understanding of what children want in general. It may be the chimps would much prefer to remain where they are, instead of moved to some sanctuary. This may be so even if they thrive in sanctuaries.

    Like

  18. Fascinating article a set of cases. As a first thought, another dimension of equivocation on ‘rights’ is between legal rights and ethical rights. I would agree that society *grants* legal rights. But this granting is ethically constrained by ethical rights, which I do not think society grants. If ethical rights are not conceived as prior to society (existing independently of societal formations), then the notion of an ethically illegitimate society is empty. Equivocation between ethical and legal notions of rights seems to be issue in the presented legal discussions, but I won’t try to unpack that, as such at least.

    While I believe that animals have ethical rights, I think the strategy to protect these rights by getting some animals the status of persons is misguided. If the capacity to do moral wrong is a necessary condition of being a moral agent, and being a moral agent is a necessary condition of being a person, then giving relevant primates the status of personhood would validate the saying, “Some people can do no wrong.” Kidding aside, the relevant move would require a reconception of personhood to the effect that personhood is only accidentally related to moral agency. Herein lies the flaw in the strategy: they’re trying to elevate the relevant primates by giving them the status of persons, but this can only work at the expense of removing what makes personhood elevated. Personhood would be reduced to something like: animal or thing with legal rights of freedom, and we would need to find a new word to mean what we have traditionally meant by ‘person’.

    As to non-human animals having ethical rights, I think this follows from the fact that it possible to do ethical wrongs to animals. If it is ethically wrong to kill an animal just for the heck of it, then animals have a right not to be killed just for the heck of it. On my view talk of ethical rights is just a posterior mode of talking about ethically right and wrong acts.

    While I would agree with the chimp advocates that animals have a right of freedom–that is, I think it’s wrong to constrain the freedom of an animal without a compelling justification–I think they need to get over their issues with the notion of animal ownership. While I too wouldn’t endorse a lot that is done to and with animals, I think there are compelling reasons for most of the constituents of animal ownership (e.g., care, safety, liability). The problem is not with ownership per se, as if we bring animals into human populations we need something like that, but with whether we should take them from the wild at all, that is, with what counts as a valid reason for taking animals from the wild and/or owning them. So the issue, properly framed in my view, is not with ownership per se but with justifications for ownership.

    So I think the chimp advocates, and animal rights people (human people, that is), should focus on questions of validity regarding justifications for owning animals rather than trying to change the institutional status of animals.

    Like

  19. I am very much with Robert both on the court rejecting this, and why. Chimpanzees are not people. To legally treat them as people would also mean arresting chimpanzees for crimes and other things.

    Should we have tried Travis for aggravated assault, had he not eventually been shot dead? http://en.wikipedia.org/wiki/Travis_(chimpanzee)

    I also agree with Robert that, to the degree we can make such comparisons, a chimp is probably a lot closer to a 2-year-old human than a 5-year-old.

    David Ottlinger follows up well and knocks this out of the park. Assuming a chimp is like a human 2-year-old, it cannot engage in anything close to abstract thinking of rights, or welfare, or philosophy in general.

    In short, to riff on Aristotle’s famous quote: “A chimpanzee is NOT a civil animal.”

    David’s also right on the emotional side. I call it a bit of pandering for the lawyers to try to play the “slavery card.”

    Joe I think the issue, in your response to David, is “potentiality.” A chimp will never be more than the equivalent of a human 2-year-old, whereas a human 2-year-old, barring unexpected disease or accident, will become more than that.

    (Speaking of sorites, I know we’re now skating close to reproductive rights issues.)

    Dantip is right. A variety of rehabilitation sanctuaries exist. Their existence, to use a good legal word, makes such acts as filing habeas petitions for chimps nugatory. I hope the appeal is dismissed, and with prejudice.

    And, we avoid the “line-drawing” issue, or to be all philosophical! we avoid a sorites, by not going down the road of chimp personhood.

    Massimo, as an anti-systems person on ethics, I’m OK with talking about animal welfare rather than rights from a virtue ethics or a deontological position too.

    Beyond that, I probably, for reasons above, like Aravis, snark at the case a little bit. Given that rehab sanctuaries made the whole idea nugatory, and the judge, to put it bluntly, called the petitioners’ bluff on the idea of actual chimp autonomy, and I think they expected it would happen, I’m not sure if the petitioners were primarily — and wrongly — thinking this was the best way to help chimps, or if they were in part turd-polishing their legal resumes. (There, there’s snark.)

    ==

    To Aravis: Mazel tov!

    Like

  20. Aravis said:
    “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.”
    Excellent way to highlight the absurdity of the assertion that chimps can make assertions.

    Massimo said:
    “Where I disagree is your quick dismissal and even sarcasm at the very thought of an essay like this.”
    In a previous thread Massimo dismissed Jonathan Haidt with the statement, “I don’t know why he is even taken so seriously.” Haidt is a member of the Academy and cites research as the basis of his claims (not that this makes him right). This organization, NhRP, is addressing, “The question of whether a chimpanzee can assert the right to liberty…”, an empirical question and one that is demonstrably false.

    Ejwinner said:
    “So what NhRP is really asking is for the courts to construct such rights around a fictitious ‘person-hood’ for chimps.”

    It seems to me that NhRP has a religious (fictitious) orientation toward animals and that this feeling of sacredness blinds them to the facts that are clear to non-believers. I’m reminded of the theriomorphic symbolism of Hanuman (the monkey God). We have an incredible compulsion to worship animals with homo sapiens being the number one object of our devotion. Musolini was refered to by his most ardent followers as “The Myth”.

    Like

  21. A correction to my previous post. I wrote: “If the capacity to do moral wrong is a necessary condition of being a moral agent, and being a moral agent is a necessary condition of being a person, then giving relevant primates the status of personhood would validate the saying, “Some people can do no wrong.””

    I meant to write: If the capacity to do moral wrong is a necessary condition of being a moral agent, and being a moral agent is a necessary condition of being a person, then given that chimps do not have the capacity to do moral wrongs, they cannot be persons. But if were to give relevant primates the status of personhood, it would validate the saying, “Some people can do no wrong.”

    Coel,

    You wrote: “For starters, there are no such things as objective “rights”, there are only agreements we humans have entered into with each other about how to treat each other.”

    This view seems like such an obvious non-starter. It implies that a society cannot be wrong in what it regards as ethically right and wrong. There is no fact of the matter beyond agreement, after all. It also nullifies the notion of moral progress, as there’s no standard by which to measure whether one set of agreements is better than others. Do you have a response to concerns like these?

    Like

  22. You folks might need to broaden your thoughts about legal v. natural personhood:

    http://www.academia.edu/5741939/Rivers_Rights_and_Reconciliation_in_British_Columbia_Lessons_Learned_from_New_Zealands_Whanganui_River_Agreement

    Under the Whanganui River Agreement, the parties agreed that the whole of the Whanganui River will be granted legal personhood, with recognized values and rights of its own, as well as ownership over those parts of the riverbed that currently vest with the Crown. The parties further agreed to appoint guardians who will give voice to the river and make decisions in the best interests of the river.

    http://therightsofnature.org/learn-about-rights-of-nature/

    Using habeus corpus may not necessarily be the best way to advance the cause, even though,

    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2589243

    These confounding thought exercises might motivate judges and scholars to
    recognize animals to be a sui generis group even among this intermediate category of quasi-
    persons, also including corporations, ships, fetuses, robots or future generations.

    and of course

    http://en.wikipedia.org/wiki/Animal_trial

    Liked by 1 person

  23. I’m going to refrain from making judgments as to whether such cases should be pursued through the legal system since I don’t wish to tread on what might be prejudicial grounds. I don’t find such matters to be frivilously pursued–though legal competence and strategy are critical–and expect that in a lifetime or two we will be addressing similar issues in the context of AI.

    No one has yet provided the link to the Nonhuman Rights Project yet, so I will:

    http://www.nonhumanrights.org/

    Of particular interest to me in their mission statement is this: “and those other legal rights to which *evolving* standards of morality, scientific discovery, and human experience entitle them.” [emphasis added] And I personally would have modified “standards of morality” with “human” for further emphasis.

    At this point in time, I’m more inclined to frame my viewpoint along the lines Paul Paolini when he writes,
    “The problem is not with ownership per se . . . but with whether we should take them from the wild at all.”

    As a disclaimer, I should add that I don’t enjoy going to sea worlds, zoos, or circuses.

    Like

  24. The quote about quasi-persons I used earlier came from a quite short paper
    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2589243
    where he also comments

    Importantly, the fact of there being negligible judicial conversation on the topic of non-natural personhood made it here easier for the New York appellate court to put forward a narrow, selective vision of rights jurisprudence. Although there is a rich literature of both deontological and utilitarian justifications for animal personhood, the court cites wholly to […] Richard Cupp’s social contract conception of “rights” being paired with social “responsibilities.” […]

    Interestingly, this dearth of conversation might also represent the strategic vision of
    Stephen Wise and other animal lawyers
    [My emphasis]. At a Harvard conference a decade ago he identified the lack of “deep, bad law” on animal personhood as a tactical tool.

    Like

  25. dantip,

    In remarks in our recent discussion concerning whether fish feel pain, I tried to make the distinction between ‘consciousness’ (many require for pain to be meaningful to them) and ‘sentience’ (i.e., simple gross awareness, which any organism many manifest in behavior). This propped up my next distinction: while there are organisms that may not experience what we call ‘pain,’ they certainly evidence ‘suffering’ (response to physically invasive threats to survival). (This BTW is derived from Buddhist ethical heuristics.)

    I bring this up, because I believe we can find a basis for avoiding causing pain or suffering to other species without engaging in expanding our understanding of what it means to be a ‘sapient hominid’ to include non-human species.

    Why not? Because we cannot make any certain claims about what is going on in the brains of any species other than our own. Without that, there is a limit to the co-efficient empathy we can show for other species, without lapsing into anthropomorphism.

    I certainly recognize (behaviorally) that a dog suffers. I cannot know why it suffers (beyond obvious lacks or threats), or how it suffers, or what internal responses it makes to that suffering. Without that knowledge, or at least some sense of it, all I can do is re-inscribe the dog’s behavior in terms of what I do know; what I do know is human being. So I’d end up describing the dog’s behavior in anthropomorphic terms – which isn’t at all far removed from doing the same for my car, although in that case I at least know that I am speaking metaphorically. (All this applies to chimps, despite the complete nonsense the NhRP pushes that ‘science is proving how much they have in common with us.’ Science tells us about behaviors and physiology, and nothing about intrinsic properties of consciousness or sentience.)

    I urge caution in drawing analogies between children (or the mentally disabled, etc.) and other species. A full grown chimp has no further potential to be realized. We grant children rights, because we recognize that they will become adults; we grant the mentally disabled rights because we recognize that they are adults like us, albeit with a different level of functionality; or because (in the case of dementia) that have been adults. In any case, they are human, and part of the human community. I recognize chimps as my evolutionary cousins; that cannot in itself make them part of the human community.

    Further, it must be noted that we have a legal redress for children and the mentally infirm: guardianship – appointment of a capable adult to voice and protect the interests of the those guardian’s ward.

    Most states recognize guardianship for certain animals, especially in abuse cases. So why does the NhRP not petition for guardianship for the chimps, but for habeas corpus? They seem not so concerned with the individual animals as they are with positioning for a judicial change in law that circumvents the legislature. I find that suspect.

    Liked by 1 person

  26. davidlduffy,

    “You folks might need to broaden your thoughts about legal v. natural personhood”

    There’s also the ethical sense of a person–in which a person is a being with a certain moral significance–which I think is what some here are focused on, and which seems to be a basis of the question of how chimps and other animals should be treated in law.

    Like

  27. Coel,

    The problem is that in the immediate issue meta-ethics has no place. We have before us a concrete case, with real world implications, requiring decision, first on the part of the courts, and then on the part of the electorate if it gets to that point, finally on the part of the judges or the legislature, depending on the politics involved. How do we address the issues of the case? What are its legal ramifications? What are its real world implications? What actions *in this case* are in the best interests of those involved, and of the society *as it is currently constituted*? “But we may want and decide to agree with each other acceptable ways of treating animals” – but why would we want to do this *in this case* – and in what way? What is our decision for Tommy the chimp, for the NhRP, for the people of the State of New York? On what ground are we willing to base our arguments concerning either the chimps or the people involved? What is the argument of the NhRP? What is the court’s reasoning in response? These are the issues the article addresses. Meta-ethics is a theoretical musing on how any ethics come into being at all. That doesn’t answer questions about particular ethical questions.

    davidlduffy,

    There are weaknesses drawing analogy between the Whanganui River affair and the present issue. 1) Whanganui River concerned a negotiation between the government and the loosely autonomous tribes of the Maori. The current issue involves a court case. 2) Whanganui River settled a conflict between the government and the Maori. The NhRP is attempting to foment a conflict that does not yet exist. 3) The Moari case in Whanganui River derived from established tribal traditions; the NhRP is trying to establish its case on (its interpretation of) current science.

    No one doubts now that the legislature, and the courts, can create fictitious ‘person-hood’ for entities to accomplish political, social, or economic ends thought to be desirable. The question always has to do with the broader picture – what are the ends accomplished, how do they fit into a society’s agreed upon values, what are their larger consequences and implications?

    I agree with Coel’s basic point that ‘rights’ are socially (and legally) constructed; but when they are, we must ask after the consequences and implications. Roe v. Wade gave women power over their bodies and experience; but there was a cost, in that it reshaped our entire understanding of what it meant to be human. I think that cost worth it. I’m not prepared to pay out what I think would be a heavier price for making chimps ‘persons.’

    All,

    I recommend: “Living Property: A New Status for Animals Within the Legal System” by David Favre. His paper includes considerable insight into the history and current status of this issue, whether one agrees with his proposal or not.
    https://www.animallaw.info/article/living-property-new-status-animals-within-legal-system

    Like

  28. My strongest views on this issue are to have a strong negative reaction to those who think it’s frivolous or silly to consider the question of whether chimpanzees or other animals should have rights or be considered persons. I also quite dislike the sarcastic mocking tone from some here, which rather than addressing the question seriously remind me of those who ridiculed Darwin by portraying him as an ape in cartoons.

    I don’t have a good answer to those questions. I don’t think there is a good answer. But I don’t think that painting it as absurd is warranted.

    Chimpanzees share many capacities with humans. Those who focus too much on the limitations of chimpanzee cognition fail to recognise that there are human beings with the same limitations due to cognitive impairment. And what capacities chimpanzees and bonobos and other animals have is often open to interpretation. I’m not as sure as some here that non-human apes are incapable of asserting anything, for instance.

    The easy dismissal of chimpanzees as *just* animals, apparently unworthy of moral consideration, strikes me as callous.

    As has been pointed out by Coel here and Dawkins elsewhere, it is a historical accident that there is such a sharp discontinuity between humans and chimpanzee cognition. There is a smooth chain of intermediate forms between humans and chimpanzees going back through our family tree to our common ancestor and then forward along the chimpanzee’s. Were more of those intermediate forms still around we would have to make difficult choices about where to draw a line. I suggest it would be far more natural to consider having a gradation of rights and personhood along this continuum commensurate with the cognitive abilities of the individual. As such, it is only down to historical accident that it is so easy to consider chimpanzees as being a completely different category of being.

    So I don’t know whether chimpanzees should have rights or be considered quasi-persons, but when in doubt, I think it’s safer to err on the side of empathy and compassion. I would not want to be judged a monster by future generations.

    Liked by 2 people

  29. Feelings are natural. Rights are artificial. But ‘artificial’ is not a pejorative. Extending rights to other animals with feelings can be justified, consistently with our culture of justice. Killer whales at SeaWorld Parks are also getting noticed recently for what rights they may need. In the future we will be faced with the question of rights for synthetic robots.

    Like

  30. Occam,

    “In a previous thread Massimo dismissed Jonathan Haidt with the statement, “I don’t know why he is even taken so seriously.” Haidt is a member of the Academy and cites research as the basis of his claims”

    I’m not sure what your point is. Yes, Haidt is a member of the academy, and I think he is a rather sloppy researcher who makes claims that go significantly beyond what his data warrant. It is pretty standard among academics to criticize each other, sometimes in somewhat harsh tones. Here are a few examples of what I find objectionable about Haidt’s work:

    http://rationallyspeaking.blogspot.com/2008/09/what-makes-people-vote-republican.html
    http://rationallyspeaking.blogspot.com/2011/02/does-academy-discriminate-against.html
    http://rationallyspeaking.blogspot.com/2011/05/jonathan-haidt-does-it-again.html
    http://rationallyspeaking.blogspot.com/2012/08/liberal-bias-in-academia.html
    http://rationallyspeaking.blogspot.com/2010/10/what-set-of-moral-criteria.html

    davidlduffy, Paul,

    “”You folks might need to broaden your thoughts about legal v. natural personhood” There’s also the ethical sense of a person–in which a person is a being with a certain moral significance–which I think is what some here are focused on”

    This is correct, but I guess I fundamentally object to introducing distinct categories of personhood. To me personhood is a metaphysical concept that has legal and ethical implications, and creating separate legal and ethical concepts of “personhood” leads straight into the abysmal mess related to granting corporations the state of partial legal persons.

    Like

  31. ej,

    “Coel, The problem is that in the immediate issue meta-ethics has no place. We have before us a concrete case, with real world implications, requiring decision”

    Precisely. I have noticed that people “go meta” as soon as they want to quickly dismiss any complex ethical discussion. I think it is an intellectual copout, and usually perpetrated by people who have no hesitation in making ethical judgments on other matters that concern them.

    I think meta-ethical discussions are intrinsically interesting, but to invoke them as trump cards within the context of specific debates in moral philosophy is like dismissing a new scientific theory or discovery by invoking Hume’s problem of induction.

    Liked by 1 person

  32. HI DM,

    The easy dismissal of chimpanzees as *just* animals, apparently unworthy of moral consideration, strikes me as callous.

    I am struggling a little to determine who exactly has said that here.

    So I don’t know whether chimpanzees should have rights or be considered quasi-persons, but when in doubt, I think it’s safer to err on the side of empathy and compassion.

    And again, who has said that we should not have empathy and compassion?

    How do you even know that making them ‘persons’, by whatever definition of that word, will result in any improvement in their lot?

    Liked by 1 person

  33. Some have said that it is an accident of history that no species who was closer to us cognitively survived.

    True, but I fail to see the relevance. They didn’t survive.

    Earlier I questioned the comparison between a chimpanzee and a five year old child. I would even question any sort of equivalence between a chimpanzee and a two year old child.

    Just for example, I have seen a two year old with a mild to moderate intellectual disability, who saw a group of ice skaters and immediately went and fished his father’s phone out of his pocket, opened it up and navigated two screens to start the video recorder and then videoed the ice skaters. Later that evening he would get the phone and find the video.

    I read of attempts to get chimpanzees to make a film (why, I wonder) and there is simply no comparison, even with a two year old human with an intellectual disability.

    Chimpanzees are what they are, they are good at doing what chimpanzees are good at doing. They have all those amazing qualities listed in the article and that should be valued.

    We should certainly have a dialogue about how we relate to the other animals, how we treat them and the kind of dignity and respect we should accord them. In fact we do have that dialogue, it has been happening for a long time.

    And, again, we should try to stamp out animal cruelty wherever we see it.

    But, as I said earlier, I am unconvinced that the approach described in the article is the right one and if it is well thought out.

    Like

  34. Hi ejwinner,

    Meta-ethics is a theoretical musing on how any ethics come into being at all. That doesn’t answer questions about particular ethical questions.

    True, but sorting the “meta” is often a good idea as a foundation for then addressing the particular questions. Anyhow, my main point was to answer Dan’s question, asking for “motivations for speciesism (or human exceptionalism)”.

    Since the position is of us deciding what rights to assign to chimps and other animals, we are inevitably in a speciesist and human-exceptionalist position. That was my central point. It would be different if we were negotiating with other species or similarly-capable aliens, but we are not.

    Hi Massimo,

    Precisely. I have noticed that people “go meta” as soon as they want to quickly dismiss any complex ethical discussion.

    There was certainly nothing in my post about wanting to dismiss the complex ethical questions of treatment of animals. Rather, it was about establishing the foundation for then addressing such issues. If you’re going to discuss rights, it helps to have agreed what rights are.

    Hi Paul Paolini,

    This view seems like such an obvious non-starter. It implies that a society cannot be wrong in what it regards as ethically right and wrong.

    Yes, it does indeed imply that there is no objective supra-human standard of “moral wrongness” against which humans can be judged. Why do you say that that is an “obvious non-starter”? The brightest philosophers in three thousand years have produced neither hide nor hair of this supposed objective standard, which is a good indication that it is a false grail.

    It also nullifies the notion of moral progress, as there’s no standard by which to measure whether one set of agreements is better than others.

    Correct, there is no objective supra-human standard against which to judge one society’s morals against another’s. (And that sure does bother a lot of people who hanker after the stamp of objective approval for their own opinions; usually this is done by projecting from “I want” to “God wants”.)

    But, one can still rank different moral systems by human preference. It is a coherent concept to say that people who had lived in two different moral systems would tend to prefer one to the other.

    Do you have a response to concerns like these?

    Yes. Don’t trust your moral-realist intuition!

    Hi Joe,

    When did we agree?

    Morals, and the assignment of rights and duties to each other, has been and always will be a matter of continual and ongoing negotiation in all human societies. If you want some waymarks, look at Magna Carta, the US Bill of Rights, and the European Convention on Human Rights as examples.

    Like

  35. Hi Coel,

    I wont say much, but I just want to note something,

    “Anyhow, my main point was to answer Dan’s question, asking for “motivations for speciesism (or human exceptionalism)….

    Since the position is of us deciding what rights to assign to chimps and other animals, we are inevitably in a speciesist and human-exceptionalist position. That was my central point. It would be different if we were negotiating with other species or similarly-capable aliens, but we are not.”

    Unfortunately (and I think this is due to your introduction of meta-ethics or meta-issues) you have conflated two different senses of speciesism. You seem to be talking about a meta-speciesism here – the only creatures who can decide who gets rights are humans.

    However, we were talking simply about speciesism – humans are the only ones who *get* rights (no matter what the meta-view of rights that you hold) and the justification for this is that they are human.

    Hi Ej,

    Just to be clear, I wasn’t actually siding with anyone (in terms of whether or not chimps should get certain rights etc.) in any of my comments above. I was merely making general philosophical points about the discussion on whether chimps ought to have rights.

    Like

  36. Hi Massimo, Dan and EJWinner

    I agree with Coel that the meta-ethical question is relevant. I think the analogy to Hume’s problem of induction is rather weak, as it’s not too hard to just accept induction as a given for the purposes of scientific discourse. By contrast, different foundational ethical assumptions will sometimes yield different attitudes regarding ethical questions. In such cases, all discussion of those questions is rendered pointless until a common foundation can be agreed by interlocutors.

    Yes, it does get tedious that meta-ethics is repeatedly dragged into each and every ethical debate, and this is unfortunate, but it is also near-unavoidable in my view if we want to have an honest and open discussion at all.

    Hi Robin,

    > I am struggling a little to determine who exactly has said that here.

    This is just how some of the commentary is coming across to me, particularly when the tone is dismissive or mocking of the issue.

    > How do you even know that making them ‘persons’, by whatever definition of that word, will result in any improvement in their lot?

    I didn’t say I knew any such thing. I said that I take it to be a serious question not worthy of dismissal.

    > True, but I fail to see the relevance. They didn’t survive.

    So, if they had survived, then we might be inclined to view apes as quasi-persons. Seeing as they did not survive, we are not inclined to view them as quasi-persons. So whether they are quasi-persons (with rights and so on) or not depends on which species became extinct and which did not, and not on any of their own attributes. Which seems absurd to me. That’s all I’m saying.

    Liked by 1 person

  37. Coel, DM,

    sorry, I don’t buy it, and I’m going to stick to my guns:

    “There was certainly nothing in my post about wanting to dismiss the complex ethical questions of treatment of animals. Rather, it was about establishing the foundation for then addressing such issues. If you’re going to discuss rights, it helps to have agreed what rights are.”

    Did you actually get the impression anyone was confused about what rights mean? And do we really need meta-ethical skepticism such as the one you brought up in order to agree that rights are useful human constructs to deal with certain categories of ethical problems?

    “I think the analogy to Hume’s problem of induction is rather weak, as it’s not too hard to just accept induction as a given for the purposes of scientific discourse. By contrast, different foundational ethical assumptions will sometimes yield different attitudes regarding ethical questions.”

    Well no, the analogy is a pretty darn good one, if I may say so myself. Nothing is gained from introducing meta-ethical considerations in the sort of discussion we are having, unless someone rejects other people’s arguments on the basis of arbitrary statements along the lines of “that is not the will of God.” Which, again, I haven’t seen anyone doing.

    Like

  38. Part 1/2
    Ejwinner
    The analogy between animals and children and disable humans has been drawn long and argued for too long to now start asking for caution. (See my quote from Singer back in 1993) From the perspective of those arguing for animal rights just saying we are in the same species/community does not itself justify the different treatment. They think species is arbitrary and the underlying qualities of the animal human or otherwise are what is at issue. Moreover the analogy between animals and children is precisely the question they are asking the courts to look into.

    SocraticGadfly: Yes they likely would reject the idea of “potential” being relevant and as you suggest likely claim that would be inconsistent with abortion rights. I say that because Peter Singer is the philosopher who is perhaps the most often sited in animal rights literature. And here is his view from his book Practical Ethics, 2nd edition, Cambridge, 1993:
    “In Chapter 4 we saw that the fact that a being is a human being, in the sense of a member of the species Homo sapiens, is not relevant to the wrongness of killing it; it is, rather, characteristics like rationality, autonomy, and self-consciousness that make a difference. Infants lack these characteristics. Killing them, therefore, cannot be equated with killing normal human beings, or any other self-conscious beings. This conclusion is not limited to infants who, because of irreversible intellectual disabilities, will never be rational, self-conscious beings. We saw in our discussion of abortion that the potential of a fetus to become a rational, self-conscious being cannot count against killing it at a stage when it lacks these characteristics – not, that is, unless we are also prepared to count the value of rational self-conscious life as a reason against contraception and celibacy. No infant – disabled or not – has as strong a claim to life as beings capable of seeing themselves as distinct entities, existing over time.

    The difference between killing disabled and normal infants lies not in any supposed right to life that the latter has and the former lacks, but in other considerations about killing. Most obviously there is the difference that often exists in the attitudes of the parents. The birth of a child is usually a happy event for the parents. They have, nowadays, often planned for the child. The mother has carried it for nine months. From birth, a natural affection begins to bind the parents to it. 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.”

    http://www.utilitarian.net/singer/by/1993—-.htm

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  39. Ejwinner,
    “The problem is that in the immediate issue meta-ethics has no place.”

    I couldn’t disagree more. Yes this is a concrete case with implications in the real world. But if you read what Singer wrote in my earlier post you will see that Utilitarianism pervades his reasoning. If you accept utilitarianism and his view that nothing can be sacred. It is *much* more difficult to not reach the same conclusions he does. In fact some might see the logical conclusions Singer draws as an argument against utilitarianism as a form of reductio ad absurdum. In other words it’s often conceded that yes conclusions like this do logically follow from his meta-ethical view. So if you want to argue against them you have to attack the meta-ethical system.

    Singer suggests that lots of our immediate emotional views happen to mirror notions that humans are sacrosanct. When/if we abandon them we need to formulate other reasoning for our actions. Now it seems to me that Singer is to a large extent logically following his basic meta-ethical view of utilitarianism. I think those who try to hold onto something like sanctity of life are doing what John Haidt (many curses be upon him) describes in his article “Emotional Dog and its Rational Tail.”

    Click to access Haidt%202001.pdf


    First, they have a strong emotional urge to give humans more rights. And only when that is challenged do they then start to try to figure out how to rationalize it. Needless to say when we mine for reasons after our conclusions are already drawn are views are often biased.

    Hi Coel:
    I never agreed to those documents at least not in any normal sense of the word agree. I actually never even read the European document and I can’t recall reading the full magna carta.(I may have read it though) I don’t mean to be overly obtuse on this issue. Let me just say that I find the conclusion that because I was born in a country and choose to stay there (as opposed to what some deserted island?) that I agree with their laws dubious.

    I do share Paul Paolini’s concerns. I think we have certain ethical rights (not dependent on agreement) and when the laws accord with them they are good laws. To the extent they go against them they are bad laws. I think everyone who argues for certain legislation as opposed to other implicitly agrees. But I will agree that there are reasonable arguments to the contrary that can be made.

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  40. Hi Massimo,

    > Nothing is gained from introducing meta-ethical considerations in the sort of discussion we are having, unless someone rejects other people’s arguments on the basis of arbitrary statements along the lines of “that is not the will of God.”

    I think this is right. That’s the problem. But without an agreed or implicit shared foundation for statements about morality, they are all more or less as arbitrary as this (which is not to say completely arbitrary — the will of God is usually supposed to be benevolent, for instance)

    > Which, again, I haven’t seen anyone doing.

    Perhaps we disagree on what counts as an arbitrary statement like “that is not the will of God”. I see most of the arguments here being rooted in similarly arbitrary sentiments, my own included.

    Let’s take ejwinner’s argument as an example.

    we grant the mentally disabled rights because we recognize that they are adults like us, albeit with a different level of functionality; or because (in the case of dementia) that have been adults. In any case, they are human, and part of the human community. I recognize chimps as my evolutionary cousins; that cannot in itself make them part of the human community.

    I don’t mean to take issue with EJ in particular, but this sure seems arbitrary to me. The reasons EJ gives for affording rights to the cognitively impaired but not chimpanzees are:

    * Because they are adults
    * Because they have in some cases been adults with high cognition in the past
    * Because they are human

    The first of these criteria applies to chimpanzees too, so let’s discount that. I infer that EJ thinks we don’t give chimpanzees rights because they have never had high cognition and because they are not human. But what makes these reasonable criteria for rights-giving? I’m not saying EJ is wrong, I am saying this is completely arbitrary.

    I might disagree with EJ, believing that the only criteria that matter are the current mental abilities of an entity, not its past or future states and certainly not its species. This is close enough to my actual views. But, crucially, I admit that what I believe is also arbitrary. There’s no way to mediate between my views and EJ’s without getting into meta-ethics.

    Liked by 1 person

  41. Coel,

    Thanks for your thoughtful response.

    “Yes, it does indeed imply that there is no objective supra-human standard of “moral wrongness” against which humans can be judged. Why do you say that that is an “obvious non-starter”? The brightest philosophers in three thousand years have produced neither hide nor hair of this supposed objective standard, which is a good indication that it is a false grail.”

    First, I don’t believe in an objective *supra-human* moral standard either; you say to me not to trust my moral realist intuitions; I say to you not to trust your theory as to what moral realism requires ; ) My moral realism begins simply with the observation that moral matters are treated in language as objective matters in the sense that people can be right or wrong about them, and that objectivity in this sense–however it is possible–is critical to the coherence of our ordinary moral speech. The reason I think your view is a non-starter is that it renders much, if not all, of our ordinary moral discourse strictly incoherent, or false, or illusory. Ordinarily, to restate examples, we tend to think whole societies can be morally corrupt and that its possible for a society to improve morally. These points make little sense on your view. While I would agree that undesirable consequences is no argument for moral objectivity, I think such consequences require one to be very very certain that moral objectivity is impossible before going the anti-realist route.

    On the matter of how moral objectivity is possible, what philosophers have not done is establish a generally accepted theory on this question. What they have accomplished is a lot of progress in clarifying the problems of morality. Note that philosophers also have not established that moral anti-realism is coherent. It’s odd that one should think that anti-realism is the default view, sans a good theory either way, when it’s the one that is most inconsistent with ordinary moral discourse.

    Though we may not yet have a satisfactory theory of how moral objectivity is possible, in the interim, we can rely on the fact that there is nothing particularly incoherent about treating moral questions as if they have right and wrong answers. When a theory does come, I think it will be something like this: at root ethics concerns resolution of opposing interests. Wrong resolutions, which lead to moral wrongs, rest on breaches of rationality in some sense. In this way, ethics is a species of rationality, and moral objectivity ultimately rests on objectivity regarding what is rational. Note that objectivity about what is rational does not require invoking the anti-realist’s favorite specter, “the supra-human,” whatever that creature is supposed to be.

    Massimo,

    “To me personhood is a metaphysical concept that has legal and ethical implications, and creating separate legal and ethical concepts of “personhood” leads straight into the abysmal mess related to granting corporations the state of partial legal persons.”

    I think you’re referring to the metaphysical conception of personhood ; ) More seriously, if lawyers might consider rivers people, it seems ‘person’ must be regarded as a term with a variety of senses.

    Like

  42. DavidDuffy Sorry, but the idea that we should accord animals any sort of legal standing because superstitious medieval Christians occasionally put animals on trial has to be the non-sequitur of the week. Do we reopen the Salem witch courts next?

    And, just as chimps don’t need legal personhood for better rights, neither does a waterway need personhood for better preservation.

    Ditto on other rights in nature in general.

    Let’s go down the road of a mix of speciesism plus Jainism. We have 5 normally recognized senses. Multiply by 2 for being human for a number of 10. All animals with 5 senses have a number of 5 for one-half our rights, all the way down to rocks and clouds, which, per Jains, have the sense of touch. They get a 1, and one-tenth our rights.

    Otherwise?

    “I refute it thus,” per Samuel Johnson.

    Oops, Mr. Johnson, you kicked a rock and violated its rights.

    EJ gets less snarky, but says the same thing. To put it another way, and to riff on the handle of one commenter, and on an old philosophical “saw,” there’s no need to multiple legal statuses and categories beyond the minimum necessary, and there’s certainly no need to apply Occam’s Magic Beard Grower to do so.

    Disagreeable seems to set up a straw man, as Robert also notes. I don’t think that I, or others, have referred to chimps as “just” animals in the way he portrays.

    It’s not dismissive of animal welfare; it’s dismissive of the idea that animals should be considered like people. Pretty big difference, as I see it.

    That said, things like this can backfire, too.

    As for the issue of missing intermediate species? Sometimes a thought experiment is good, but given that the law normally deals with things in res, and not hypotheticals, I think here it’s irrelevant. Besides, those of us who are European by ancestry have bits of Neanderthal in our genes, so, we’ve partially covered it, too!

    In short, the idea of Australopithecines being missing is as nugatory as is the idea that these chimps needed a habeas plea in the first place, speaking in terms of the law.

    Philosophically? It may inspire us to pre-emptively create in advance a legal framework for protection of sufficiently advanced robots, per Phillip. And, of course, said robots are “just around the corner.” Just like peaceful nuclear fusion power.

    Liked by 1 person

  43. Hi all,

    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.

    Even if meta-ethics is relevant, there is no way we are going to settle the issue here, and in the end we would say nothing directly about the issues at hand in the OP, only meta-issues which we have probably said and heard a hundred times in previous threads.

    It would be nice if we could have more variety to discussion here, but we frequently seem to come back to the same issues (yes, I am at fault in instigating this as well). Let’s try our best not to do this please.

    Recommended topics: personhood in chimps, whether there is a better criterion for rightholding other than personhood, whether we can know what is in a chimp’s best interests, the analogy between chimps and young children, etc.

    Like

  44. I have a little time, and since I have been “called out,” I think it important to respond. I will also try to give a bit of a more substantive reply to dantip.

    First, I was very explicit in saying that it is the *court case* that is frivolous. I was also very explicit in saying *why* it is frivolous. 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. Outrageous. Appalling. I might even call it “callous,” in its disregard for the people involved. So bad is the problem, in fact, that in my area, prosecutors have periodically had to put moritoriums on prosecutions. Our newspaper had a front page article, with mug shots of felons, all of whose prosecutions were on indefinite hold, because of the overloading of the system.

    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.”

    Now, with respect to dantip’s questions.

    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 and that this misunderstanding more generally leads to ill-informed — in her own words, “obtuse” — treatments of the human-human and human-animal relationship. Diamond, it should be mentioned, is herself a vegetarian.

    Click to access Diamond%20–%20Eating%20Meat%20and%20Eating%20People.pdf

    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.

    On the other side of the issue, if ethical-vegans don’t eat meat, because of the animal’s rights or suffering, then they would have no problem eating roadkill, animals dead from natural causes, etc. (Again, presuming the meat is good) And if we thought the status of animals was such that they deserve the protections afforded by human morality and law, we would be out there trying to police nature — to prevent animals from harming each other, much in the way we tried to stop the Serbs from harming the people in Kosovo.

    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.

    Liked by 1 person

  45. Aravis said
    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.

    His amusing and cutting repartee gets right to the heart of the matter. That is because there is confusion between status and capacity. Aravis is saying that granting the status of personhood to chimpanzees just cannot work because they do not have the capacity to exercise personhood. It is all very well and good to talk about moral status and personhood but what does that mean? The answer is that we possess moral status and we possess personhood because we have have the capacity for moral thought and we have the capacity to behave as a person.

    This capacity is unique to us and so we cannot assign it to another species. That would be merely another legal fiction, like the personhood of a business entity. Imagine for a moment this present world had developed without us. Neither personhood nor moral thinking would have existed. All that would have existed is the merciless law of Darwinian selection. If, under those conditions, chimpanzees had met a much more powerful species, they would have been ruthlessly subjected to the reality of power. This would have had no moral content, it would simply have been a reality. Therefore, when we talk about personhood and moral status, we are talking only about our own capacities.

    The argument about personhood diverts attention from the central issue. To what extent should we extend moral consideration to other sentient beings? This is a moral question not a legal question and has nothing to do with personhood. To answer this question we must have clearly formed moral concepts and values.

    For me the issue is quite clear. As a devout Catholic I believe in the primacy of the virtue of love. This means, when dealing with species capable of suffering and flourishing:
    1. Our first responsibility is not to inflict suffering.
    2. Our second responsibility is to promote welfare.
    3. Our third responsibility is to exercise our power over others with compassion.

    You may arrive at these conclusions from other premises. If we are clear about these conclusions we will treat other species, such as chimpanzees, accordingly. This is the real problem, to agree that we owe moral consideration to other sentient species, and to to agree on the form that it will take. Talk of personhood is a diversion from the real issues.

    In other words, we are wasting time talking about the status of chimpanzees, we should instead be talking about our moral responsibility. We know they have a capacity for suffering and a capacity for flourishing and that is enough to inform our moral decision making. If our primary virtue is love, our moral responsibility in that case, is to 1) mitigate suffering, 2) promote welfare and 3) exercise power with compassion.

    Liked by 1 person

  46. [Socratic, I believe it’s “Robin,” not “Robert,” though a rose is a rose by any other name. :)]

    The struggle here involves creating a legalistic bridge, a human construct, between notions of animal welfare and animal rights. In most situations, I’m sensitive to issues of anthropocentrism, but in cases such as this, I don’t see another recourse. Is there an intersection between notions of welfare and rights? Please explain without resorting to simplistic analogies that compare cognitive ability and “potential” of chimps and children and disabled adult humans. It begs the question in my opinion. What we are attempting to adjudicate, quite obviously, is what we mean when we address questions of what it means to be humane at a particular point in history. This issue is to my mind more to do with envisioning who we are at a particular point in time than it does with how a chimp or elephant envision who they are. So to paraphrase Wittgenstein, it doesn’t matter whether we understand what the lion is saying. We join hands with Rilke and make an imaginative leap without flattering ourselves in the process of making the leap.

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  47. Coel,

    The rights involved in this case are those determined by the United States Constitution, the laws of the State of New York, the common law history of interpretation of those laws, and such further legal reasoning the courts need to draw on to determine a decision.

    By bringing petition for habeas corpus, the NhRP are asking the courts to ‘recognize’ that chimpanzees are already somehow natural persons, *or* to construct a ‘legal personhood’ that would then endow them with right of habeas corpus.

    The question of from whence these rights derive and what constitutes personhood for legal purposes, will be decided entirely within this domain.

    We can ask philosophical questions concerning the appropriateness of reasoning within that, domain viewed from outside – like Massimo’s appropriate comment that the creation of fictitious ‘legal personhood’ has some ethical problems in political application, or Robin Herbert’s remarking the NhRP’s politically questionable attempt to equate animal ownership with slavery. But within the domain, the principles are well understood, and no longer need meta-ethical clarification.

    DM,

    “Because they are adults (…) The first of these criteria applies to chimpanzees too”

    Within the context it was quite clear that the term ‘adult’ qualified the category ‘human.’ This is almost quote-mining to get a preferred result, and I’m disappointed.

    Obviously what I argue is that ‘human’ is a fire-walled ontological category, epistemically grounded; it doesn’t include chimps, it won’t include robots. This has nothing to do with functions of the members of the category, it has everything to do with the fact that the members of the category are recognized by themselves and by others of the category as belonging to the category.

    This goes beyond the legal domain, but overlaps with it quite well. The fictional personhood of corporations is predicated on the presumption that corporations are business collectives of humans. You will not find in US law any extension of human right to entities that cannot be recognized as immediately affecting humans. The US government did not redefine slaves as human after the Civil War, they recognized a humanity that was self-evident, that had needed considerable propaganda to suppress.

    The sole criterion for membership in the category ‘human’ is being human. (I believe this is in line with Aravis’ post.)

    Joe,

    Meta-ethics is a consideration of the origins and practices of ethics; ethical theory considers what we should do in particular situations. Utilitarianism is an ethical theory; Emotivism, which is largely at the root of Coel’s argument, and derived from positivist analysis, is a meta-ethics. Singer is making a case concerning what we should do in given situations; Coel is saying that what we do is less interesting than how we make such decisions. Maybe; but not when dealing with a case calling for us to do something.

    As to the case: while I have sympathy for animal welfare activists, I don’t believe it wise to begin throwing ‘rights’ around loosely, this cheapens the value of the very notion.

    Liked by 2 people

  48. Aravis Though it didn’t exist in the ancient Mediterranean, I suspect that armadillo isn’t kosher, so no Texas roadkill dilly chili from me to you!

    More seriously, you raise some interesting additional ideas.

    • First, cannibalism. I’ll be honest in that, if I had a slice, properly butchered by someone else and presented that way, I’d pop a leg o’ (Charles) Lamb in the skillet or something, if it were also legal.

    Raise your hands silently, at your own computers, if any others think similarly.

    • Second, ethical arguments for eating less meat, if not being vegetarian, abound for other reasons.

    In both how much feed it takes to put on a pound of animal weight, and how much climate-change inducing flatulence they produce, cows are the worse. Pork is second worse, then poultry are better yet, then seafood best of all.

    So, eating less meat in general, and less beef above all, is not a bad idea in terms of better protecting our global lifeboat.

    (Besides, the Dutch now have the price of synthetic hamburger beef down to just $11/burger. It’s still made from beef, but it just requires a little bit of muscle, no killing. http://www.inquisitr.com/1980097/test-tube-hamburgers-now-costs-just-11-36-scientists-manage-to-drastically-slash-price-of-lab-grown-meat-from-325000/

    And, it’s not just meat. Modern technology also opens the world of “real synthetic” leather. http://www.3ders.org/articles/20150415-rockefeller-heir-invests-in-brooklyn-based-3d-printed-meat-company-modern-meadow.html)

    In short, far beyond chimps in cages, or not, the modern world offers the possibility of changing animal welfare on an empirical level far more than any legal filing. That said, let nobody think I have a blind, blanket belief in what I call “salvific technologism” on my blog.

    As for the chimps? Let’s lessen income inequality, give Americans European-type annual vacation time, and maybe more Americans will actually go to Africa and visit animals in the wild.

    • Third, perhaps “mindfulness” would be appropriate here. More mindful of animal rights in general, and in this case in particular, mindful that a piece of meat inside Saran Wrap or butcher paper was once a leg, or loin, or flank, or ribs, or whatever, of a cow, hog or sheep. These are among good reasons to lament “Mass Ag” and the fact that, along with that, fewer people ever visit a ranch and know what’s behind meat.

    • Fourth, on “roadkill,” I think a lot of people would eat it, per my cannibalism comment, if it were packaged in store-sold style and they didn’t know it was roadkill. Otherwise, as with cannibalism, the human sense of disgust comes into play.

    • Fifth, “speciesism” ties in a lot with appearance. Puppies look cute, in part, because compared to wolves, neoteny makes them look that way. Ditto for babies of Homo sapiens. Toads look cuter than scorpions, because we don’t see them fluoresce, normally.

    (And, per Thomas my apologies for mistagging Robin. A rose by any name still smells as sweet to the Earl of Oxford, eh?)

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