The Nonhuman Rights Project, an organization founded by Massachusetts lawyer and animal rights activist Steven Wise, has this week filed a series of lawsuits in New York demanding that chimpanzees be granted ‘legal personhood’. The lawsuit seeks to extend the concept of habeas corpus to chimpanzees, drawing an analogy with one of the most famous anti-slavery cases, that of James Somerset in 1772, an American slave

who had been taken to London by his owner, escaped, was recaptured and was being held in chains on a ship that was about to set sail for the slave markets of Jamaica. With help from a group of abolitionist attorneys, Somerset’s godparents filed a writ of habeas corpus on Somerset’s behalf in order to challenge Somerset’s classification as a legal thing, and the case went before the Chief Justice of the Court of King’s Bench, Lord Mansfield. In what became one of the most important trials in Anglo-American history, Lord Mansfield ruled that Somerset was not a piece of property, but instead a legal person, and he set him free.

‘We are claiming that chimpanzees are autonomous’, Wise has said. ‘That is, being able to self-determine, be self-aware, and be able to choose how to live their own lives.’

I hope to write a proper response to this. In the meantime, I am republishing an old debate between myself and Peter Singer on the question of rights for Great Apes. In the form of an exchange of letters, it was first published in Prospect magazine in in April 1999.

Dear Kenan

I am told that you do not favour the idea of granting rights to great apes. The case for doing so seems to me so clear-cut that I am curious to learn why someone like you, who generally opposes the exploitation of the weak by the strong, is against it. Supporters of the Great Ape Project (GAP) are pressing the New Zealand parliament to extend three basic rights to our nearest relatives, the great apes: the right to life; the right to liberty; and the right not to be tortured.

Why am I prepared to restrict my campaign to the great apes? After all, the central thesis of my book, Animal Liberation, is that the principle which entitles us to regard all human beings as equal -the principle of equal consideration of interests – ought to be applied to all beings with interests. Because all beings capable of experiencing pleasure and pain have interests, this includes all mammals-indeed, all vertebrates, and many invertebrates too. I have not changed my views about extending this principle to all sentient beings, but I am attracted by the chance to extend basic rights beyond our own species right now. The great apes (chimpanzees, gorillas and orangutans) are not only our closest relatives; they are also, more importantly, beings who possess many of the characteristics which we consider distinctive in our own species. They form close and lasting attachments to others; they show grief; they play; when taught sign language, they tell lies; they plan for the future; they form political coalitions; they reciprocate favours, and they become angry when someone for whom they have done a favour does not respond similarly. Their intellectual abilities have been compared with those of children between two and three years old, and their social bonds are stronger than we would expect from a child of that age. Why should we not recognise the basic rights of such beings, on the same basis as we include all members of our own species, irrespective of age or intellectual ability?

Such a step is not yet possible for all sentient beings. All over the world people are involved in raising and killing animals for food. The extension of rights to all sentient beings will remain politically impossible for a long time, no matter how strong the ethical arguments. By comparison, the step advocated by the GAP would not involve big changes in our daily lives. Yet to extend the idea of legally enforceable rights to members of another species would be a historic breakthrough. The GAP is not an appeal to save endangered animals, nor a plea for better treatment. It is a call to respect the rights of individual animals in the same way that we respect the rights of humans. It would mean a first breach in the species barrier which would, in time, make it easier to reach out to other non-humans.

It is true that no great ape can discuss philosophy, or reciprocate our recognition of their rights. But my argument for their rights is not based on the idea that they are our intellectual equals. If it were, we would have to deny these rights to many humans to whom we now grant them. For a typical great ape is the intellectual equal, or superior, of millions of young or disabled humans whose rights to life, liberty and freedom from torture we do recognise.

A right to liberty does not preclude confinement for a being’s own safety, or the safety of others. These decisions should be made in the same way that we make decisions for humans who, because they are young or severely disabled, are unable to make decisions for themselves. We might, for example, appoint guardians for apes, to make decisions for them.

The crux is this: today, great apes are property which can be owned. They are not legal persons-unlike infants and the most brain-damaged humans-they are the closest things now existing to slaves. The US government’s recommended cage size for a single adult chimpanzee is 5ft x 5ft x 7ft. Experiments on apes continue in several EU countries. Apes can also be used in zoos and circuses. It is time to put the slavery of the apes behind us. They need basic rights, enforceable by law.

Yours,

Peter Singer

Dear Peter

Two big issues divide us: your concept of rights and your belief in the mental abilities of apes. You argue that apes, like many other animals, should have rights because they are sentient and they suffer. But why should suffering be the basis on which we accord rights to apes? It is certainly not the basis on which we accord rights to humans. Humans possess rights by virtue of being rational agents.

I realise that many humans – children, for instance, or the intellectually disabled – may not be rational agents, yet we enact laws to protect such vulnerable groups. But to call these ‘rights’ is a misnomer. They are protections which we use to ring-fence those incapable of bearing rights. The age of consent, for example, is a right for an adult, but a protection for a child.

A right requires us to make our own decisions. A protection requires us to make decisions on behalf of another. Indeed, many rights – for example, the right to vote – are denied to children, precisely because we deem them incapable of making such decisions. It is plausible to argue that apes require protection; it is nonsense to insist that they should have rights.

You insist that apes should have the ‘right to liberty’. Do you believe that apes should be free to wander the streets? Or do you mean that apes should not be kept in cages? That may be a laudable aim, but it is not a ‘right to liberty’ . You say that ‘a right to liberty does not preclude confinement for a being’s own safety’ and that an ape might have a ‘guardian’ to make its decisions. We seem to have followed Alice through the looking-glass here: apes have the right to liberty so long as they have a human to exercise it for them. The only consequence of extending to apes the ‘right to liberty’ is to degrade its meaning for humans.

I agree that because animals are sentient, they have interests. But it is wrong to assume that because animals have interests, they should be accorded rights. There is no logical link between interests and rights. And even where animals have interests, these are of a different order to those of humans. That is why I, like most people, consent to the use of non-human animals – but not mentally handicapped humans – in medical research.

You write that while all sentient beings should be accorded ‘equal consideration’ you are attracted to the plan to extend rights initially to great apes, as they are not only our closest relatives but, ‘more important’, beings who possess many human-like characteristics. But if, as you believe, all sentient beings should be accorded rights by virtue of their sentience, irrespective of their other characteristics, why should it be ‘more important’ that apes supposedly show human-like capacities?

It is not clear that apes do possess all the capacities that you attribute to them. One thing, however, is certain: whatever capacities apes may possess, language (in any human sense) is not one of them. And language has been crucial in enabling humans to transform our relationship to our evolutionary heritage, to help ourselves become aware of ourselves as rational agents -and to be bearers of rights.

Yours,

Kenan Malik

Dear Kenan

If you are going to read what I write with so little care, we might as well stop now. You say that I attribute rights to animals on the basis of sentience, but where did I say that? In my last letter I link sentience to ‘the principle of equal consideration of interests’. To give equal consideration to the interests of a being does not require attributing rights to it.

Rights have never been fundamental to my ethical scheme. I use the term as shorthand for the kind of protection that we give to all members of our species, not only to rational agents. All I want is that we protect apes in the same way that we protect vulnerable humans-that we show concern for their interests, reject the idea that they can be owned and, where they are at risk, we appoint guardians to protect their interests. Most people would express this by saying that children and the intellectually disabled have rights, but if you prefer not to use the term, I will drop it.

You ask if I believe apes should have the right to wander through the streets. No more than two-year-olds, or people with profound intellectual disabilities. They need to be looked after. And if someone should want to lock them up so that others can enjoy staring at them, then we need a law which allows a guardian to go to court on their behalf.

The other issue which you say divides us is the mental abilities of apes. But beyond your paean to our use of language, you don’t offer evidence to contradict my claims. And since the GAP is supported by many scientists who have spent their lifetimes studying apes – Jane Goodall, Roger and Deborah Fouts, Adriaan Kortlandt – it would take a lot of evidence to shake my views on this. As for language, plenty of work has been done on the abilities of the apes to use sign language; but this is not crucial to my case, because young humans and humans with profound intellectual disabilities are no more capable of using language than apes. Given that you agree that these humans should have the protections they now enjoy, absence of language is not a reason for denying the same protections to apes.

Yours,

Peter Singer

Dear Peter

I am sorry that you feel that I read your letter with insufficient care. You suggested that ‘The extension of rights to all sentient beings will remain politically impossible for a long time, no matter how strong the ethical arguments.’ Therefore, you wrote, you welcomed ‘the step advocated by the GAP’. Surely this means that you believe all sentient beings should have rights, but feel that now is not an opportune moment to press for them?

I accept that when you refer to rights, you mean protections. This is not, however, a question of semantics. The conflation of rights and protections is one of the ways in which rights for humans are being degraded. But let us turn to what you rightly say is the heart of the matter: should apes be accorded the same protections as humans and, in particular, as children and the mentally disabled? I say no. Humans, actually or potentially, are moral beings. It is true that the evolutionary roots of moral sense lies in non-human animals. But that does not make such beings moral in a human sense. Humans are moral beings because we live within a web of reciprocal rights and obligations created by our capacity for rational dialogue. We can distinguish between right and wrong, accept responsibility and apportion blame. Apes do not exist within such a community and it would be cruel to treat them as if they do. Your argument for according rights to apes does not depend upon them being able to reciprocate that recognition. But my argument as to why children and apes have different interests does depend on this distinction.

Children will normally grow up to be full members of the moral community. Most intellectually disabled people are sufficiently socialised to be members of the moral community. There are, certainly, a small number who are so disabled that they are denied a moral sense. (There, but for an accident of nature, go you and I.) But children and the mentally handicapped are of the same kind as you and me: the kind whose normal instance is a moral being. Apes are not. This is important because our humanity derives not from our individual selves, but from our membership of the human collective.

You want apes to be treated as ‘legal persons’. But this is to confuse moral and non-moral beings. Apes, like many animals, have distinct characters. But humans are individuals in a different sense: we are self-created beings who realise ourselves through our relations with other such beings.

I accept that we have a duty of care towards animals. But care is an attitude which derives from human choices and therefore from our existence as moral agents. Our duty of care towards children is different because it is shaped not simply by our humanity, but by theirs, too. In time they will reciprocate, exercising a duty of care in a way no ape can.

As for the notion of a ‘right to life and to liberty’: I have no objection to the eating of animals or of their use in medical or scientific experiments. The right to life of millions of humans depends upon hunting and farming animals, and on medical advances which come from experimenting on them. The only consequence of according illusory ‘rights’ to apes is to constrain the real rights of humans.

With best wishes

Kenan Malik

Dear Kenan

I am shocked by this bias in favour of your own kind. Go back 200 years and imagine that Wilberforce has asked you to join the fight against the slave trade. You reply: I will sign up when you show me that Africans are not Africans, but Europeans. It is wrong just to say: ‘If they are not my kind, I don’t care about them.’ Africans are not Europeans, but are entitled to the same rights as Europeans. Apes are not humans, but are entitled to the same rights as those we grant to all humans – remembering that we grant these rights to humans who are no more capable of becoming part of a reciprocal moral arrangement than are apes. (There is actually evidence of moral reciprocity in apes, see Frans de Waal’s book Chimpanzee Politics.) You, like the European racist, are claiming that your own group is superior to all others. That is wrong.

You acknowledge that children and people with profound disabilities are not moral beings, but you now argue that children are ‘potential’ moral beings, and that people with profound disabilities are ‘might have been’ moral beings. Are you, then, against abortion? The first argument implies that abortion is wrong, because a foetus is as much a potential moral being as a newborn baby. And I can’t take seriously your ‘there but for the grace of God go I’ argument for giving protection to intellectually disabled people, but not to apes. ‘I’ am not just a body, I am a being with a mind. If my parents had, at the time I was conceived, conceived a child with a genetic abnormality, that would not have been me, it would have been another human. Your resort to such a weak argument suggests that some prejudice against beings which are not ‘my kind’ lies behind the distinction you are defending.

Yours,

Peter Singer

Dear Peter

Am I biased towards humans? Yes. What you deride as speciesism I celebrate as humanism, a tradition which, over centuries, has paved the way for scientific advance and social emancipation. The fact that you, like many intellectuals, feel uncomfortable with this tradition says more about the depth of anti-humanism than it does about the nature of rights.

You argue that it is wrong to say, ‘If they are not my kind, I don’t care about them.’ Really? Human beings and vegetables are different kinds. Is it wrong to say that I care about my neighbour more than a cabbage? The problem is not discriminating between different kinds, but the basis on which we do so.

Your attempt to link my argument to that of racists is facile and historically ignorant. Central to racial science was the belief that there existed no intellectual, social or moral discontinuities between certain humans and non-human animals; this allowed racists to claim that some human groups were closer to apes than others. I would not wish to make the comparison, but if you do insist on claiming that one of our arguments echoes that of the racists, it is more plausibly yours, with its failure to distinguish properly at a moral level between humans and apes.

You believe that it is wrong to discriminate between humans and apes with respect to rights because apes have human-like capacities. As evidence you point to the work of primatologists such as Frans de Waal (who, ironically, actually opposes the granting of rights to apes). His research reveals the great complexity of ape social life. But it has not shown them capable of making moral judgements in the way that humans do.

Your other argument is that some humans are less rational and moral than many apes. But you miss my point that human rationality and morality derive from our existence as social beings – from our membership of humanity as a collective, something obviously denied to apes.

Finally, I do support abortion for the same reason that I oppose ape rights. I defend the real rights of women over the illusory rights of the foetus, just as I defend the real rights of humans over the illusory rights of apes.

With best wishes,

Kenan Malik

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The two montages of Great Ape faces are by James Mollison and Ian Bickerstaff. The other images are stills and posters from the Planet of the Apes series