Author: Raffael Fasel



New York County Supreme Court where the hearing in Hercules’s and Leo’s case will take place

When on April 20, 2015, a Manhattan trial court judge granted an order to show cause and writ of habeas corpus on behalf of two chimpanzees, news portals trumpeted bold headlines. “Court recognizes chimpanzees as ‘legal persons’ for first time”, claimed BuzzFeed, and the National Post declared: “judge grants legal rights to research chimps”. The Daily Mail even headlined: “U.S. court grants ‚human rights‘ to chimpanzees”.

Do chimpanzees now possess legal personhood? Were they given legal rights, or even “human rights”? And weren’t there other states in which some nonhuman animals were already granted personhood and rights?

The court hearing for the two chimpanzees (Leo and Hercules) is scheduled on May 27, 2015. In view of the current confusion as to what this day is going to be about, it is high time to bring some clarity in the debate. This is the purpose of this blog post. In what follows, I will situate the Hercules and Leo case in its theoretical and comparative context and will show what the trial means for animal rights – and what it doesn’t mean.

What is a legal right?

In order to determine whether Hercules and Leo receive legal rights on May 27 or whether they already possess such rights, it is first necessary to analyze what “legal rights” for nonhuman animals are. There are two dominant and conflicting views on this question.

According to the first rights conception, which I will call the “Inclusive Rights Conception”, nonhuman animals possess rights if there are laws that impose duties on others that typically serve the interests of animals. For example, anti-cruelty laws impose duties on human beings not to subject nonhuman animals to certain forms of cruel mistreatment. Because this serves the interest of the animals, they possess a legal right not to be treated cruelly. According to this conception, legal personhood is not a necessary prerequisite for having rights. Already under existing animal welfare statutes animals possess rights despite the fact that they are not considered as legal persons.

The second rights conception argues that rights are not coextensive with the duties imposed on others on behalf of animals. Rights, according to this more narrow conception – let’s call it the “Exclusive Rights Conception” – bestow a distinctive status on their holders: a status that recognizes their inherent value and that protects their most important interests. For this conception, legal personhood is a necessary condition for receiving rights. To use a term coined by Hannah Arendt, legal personhood is the “right to have rights”: it is more fundamental than any other right because all rights derive from it. According to Steven Wise, president of the Nonhuman Rights Project (NhRP) which filed the lawsuit on behalf of Leo and Hercules, “[l]egal personhood is the capacity to possess at least one legal right“. Put differently, only legal persons can possess rights; legal things cannot. Only persons, Wise argues, “count in courtrooms, or can be legally seen, for only they exist in law for their own benefits.“

An historic event …

The newspaper headlines quoted above suggest that April 20 (when the order to show cause and writ of habeas corpus was issued) and more importantly May 27 (when habeas corpus relief might be granted and Leo and Hercules might be released from captivity) are unprecedented events in the history of legal systems. But are these headlines correct? And didn’t the Manhattan judge amend her order to show cause and writ of habeas corpus one day after having issued it by striking out the part “and writ of habeas corpus”?

Yes, the judge did. But the part of the order that she maintained – the “order to show cause” – is still historic if seen from the Exclusive Rights perspective. For the first time, a judge has ordered human beings (in this case: Stony Brook University, where Leo and Hercules are being held captive for use in experiments) “to show cause why the person[s] detained should not be released” (NY CPLR, Article 7003 (a), emphasis added). By issuing this order, the judge implicitly acknowledged that chimpanzees could be considered as legal persons.

In order to understand why this is big for those who endorse the Exclusive Rights Conception, we have to understand the nature of the writ that the NhRP invokes: the writ of habeas corpus. The purpose of this common-law legal instrument is to empower courts to review the legality of a person’s detention. In contrast to legal persons, legal things cannot have their “detention” reviewed. For example, no court would issue an order to show cause to review the legality of a table’s detention. Tables are clearly legal things that have no interest in being freed. Chimpanzees, on the other hand, do have an interest not to be incarcerated. Hence, by granting the order to show cause for Leo’s and Hercules’s detention, the Manhattan Supreme Court recognized the possibility that the two chimpanzees qualify as legal persons that need to be liberated. What is more, because personhood is the precondition for all other rights, the Court’s decision could open the gates for more specific chimpanzee rights.

… or business as usual?

There is a different view on the trial, however, according to which the whole discussion about chimpanzee personhood and rights is – to speak with Shakespeare – much ado about nothing. Proponents of the Inclusive Rights Conception point out that many nonhuman animals, including chimpanzees, already possess legal rights. This is because they are protected by statutes which confer duties on human beings that serve the chimps’ interests. Thus, whatever the Manhattan Supreme Court is going to decide, it’s not going to change the fact that animals already possess rights. What is more, according to this conception, whether or not Leo and Hercules are granted legal personhood is irrelevant for their capacity to have rights.

The problem with the Inclusive Rights Conception is that it cannot account for the importance that the exclusive notion of rights has had in the past and continues to have. If, as the Inclusive Conception claims, legal rights are just the other side of the coin of duties imposed on human beings, why then did abolitionists or the women’s liberation movement not merely demand for more such duties? Why didn’t the anti-slavery movement content itself with harsher punishments for cruel mistreatments of slaves? Or why weren’t women happy with more duties imposed on men? After all, if we were to believe the Inclusive Rights Conception, all these duties would have granted slaves and women more “legal rights”.

Even if we assume that duties give rise to legal rights in the broad sense, those are not the type of rights that social movements have been fighting for. What they struggle for is a distinctive status that recognizes particular persons’ inherent value and gives special protection to their most important interests. This is the main reason why the Thirteenth Amendment to the U.S. Constitution (abolishing slavery) was adopted and it is the main rationale behind the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Both these legal instruments bestowed a distinctive status on their beneficiaries (former slaves and women, respectively). Rights, understood in the exclusive sense, are the legal tools that embody and protect this special status.

Hence, even if we followed the Inclusive Rights Conception and conceded that Hercules and Leo possess rights in the broad sense, this is not the kind of rights that either of the great social movements was after. Rather, they and the NhRP today seek to achieve a more exclusive notion of legal rights: rights that recognize the inherent value of their holder.

A comparative perspective on animal “rights”

A look at other legal systems confirms that the Leo and Hercules trial is historic – when seen from the perspective of Exclusive Rights.

Just recently, on May 15, the High Court of Delhi held in a decision concerning the trade and captivity of birds that “all the birds have fundamental rights to fly in the sky and all human beings have no right to keep them in small cages for the purposes of their business or otherwise.“ Although the language chosen in this ruling suggests that birds were granted rights in the narrow sense, a closer reading reveals that this is not the case. In fact, despite his claim to pronounce “fundamental rights” for animals, the judge was merely applying an existing anti-cruelty statute.

The Indian Supreme Court in the case Animal Welfare Board of India v. A. Nagaraja & Ors issued a similar ruling in May 2014. In this case, the Supreme Court was confronted with the question whether bullock cart races and Jallikattus are legal, in which participants try to take control of bulls who have regularly been mutilated and denied food, water, and sanitation. The Supreme Court’s ruling was even more daring than the High Court’s. It found that bullock cart races, Jallikattus, and similar events violate the “inherent dignity” and “right to live peacefully” that “all living creatures” possess. However, also this ruling was based on an inclusive reading of rights that understands statutory duties to correspond with legal rights for animals. In fact, the Court explicitly noted that the violated rights derive from the Prevention of Cruelty to Animals Act, which confers “duties, responsibilities and obligations” to human beings, and “corresponding rights on animals.”

In 1999, news media reported that the parliament of New Zealand gave rights to apes. However, what happened in reality is that the parliament amended the Animal Welfare Act so as to outlaw experiments on nonhuman hominids (unless special approval is given).

Sometimes, supposed conferrals of rights to animals are also simply based on false reports. For example, in 2008 a committee of the Spanish parliament proposed the adoption of the legal goals set out by the Great Ape Project (namely, to confer the rights to life, to freedom, and the right not to be tortured to great apes). Despite the fact that the parliament itself did not enact the proposed provisions, many media reports suggested that Spain gave rights to apes.

Similarly, a few months ago, newspapers headlined that an Orangutan called Sandra has been granted habeas corpus relief in Argentina. Yet, as it turned out, Sandra was neither granted legal personhood nor any particular legal rights. Rather, also this case was merely about the statutory protection of animals.

In all of these cases, either the media or the courts themselves interpreted the imposition of duties on human beings that serve the interests of particular animals as giving rise to corresponding rights for these animals. This might be correct from the perspective of the Inclusive Rights Conception. However, if we adopt – as I suggest – the view of the Exclusive Conception, then neither of these cases approximates the importance of the upcoming Leo and Hercules trial.

What is going to happen on the 27th?

This raises the question: what is going to happen on May 27? Are chimpanzees going to get legal personhood, legal rights, or even human rights?

What happened until now is that the Manhattan Supreme Court accepted habeas corpus jurisdiction by issuing the order to show cause. However, as Laurence Tribe has pointed out, habeas corpus jurisdiction does not automatically lead to habeas corpus relief. The mere fact that a court grants an order to show cause (that is, if it accepts habeas corpus jurisdiction over the concrete case) does not mean that the court will find the specific detention to be unlawful and that it will order that the person be released (habeas corpus relief).

Having accepted habeas corpus jurisdiction on April 20, the Court will in its upcoming trial provide a “forum for review” in which the legality of Leo’s and Hercules’s captivity can be assessed. In order to do so, the Court will hear the evidence produced from both the side of the NhRP and of Stony Brook University (represented by the New York Attorney General). Based on the evidence, the Court will then decide whether or not Leo and Hercules are illegally detained and should be discharged. There are two possible outcomes:

First, the Court could grant habeas corpus relief: it decides that the chimpanzees are legal persons for the purpose of Article 70 CPLR who are illegally being held captive. In this scenario, Leo and Hercules are likely to be sent to the Save the Chimps sanctuary in Florida, as petitioned by the NhRP. By declaring the chimpanzee’s detention to be illegal, the Court would recognize that they are legal persons who possess the right to bodily liberty (that is, the right not to be held captive). What the Court would not do, however, is grant Leo and Hercules any other right, such as the right not to be killed, the right to respect for private or family life, etc. Least of all, the Court would grant Leo and Hercules any other rights that are particularly “human”, such as the right to freedom of religion or the right to vote.

Second, the Court could decide that Leo’s and Hercules’s detention is lawful. In this scenario, the Court finds that the evidence presented by Stony Brook University constitutes sufficient proof for the legality of Leo’s and Hercules’s captivity. In this case, the two chimpanzees remain in the facilities of the University, where they are likely to be subjected to further experiments.

However, even this second outcome would not be a defeat for nonhuman animals’ rights. On the contrary. Firstly, it is likely that the NhRP would appeal such a decision and take it to the New York Court of Appeals, as has happened in its suit filed on behalf of chimpanzee Tommy. Secondly, and more importantly, even a refusal to grant habeas corpus relief constitutes an unprecedented step: so far, no other court has recognized that chimpanzees could be legal persons whose captivity must be reviewed.

For these reasons, the order to show cause is a historic step regardless of whether the Court will go all the way and give chimpanzees the “right to have rights”. By issuing the order, the Court has already admitted that nonhuman animals could possess the kind of narrow legal rights that other social movements have been fighting for. Whatever the outcome, nonhuman animals now have their foot in the legal door.

References

Steven M. Wise, Legal Personhood and the Nonhuman Rights Project, 17 Animal Law 1 (2010), https://www.lclark.edu/live/files/8137-171-wise

Lawrence H. Tribe, Amicus Curiae Brief in the Tommy case, http://www.nonhumanrightsproject.org/wp-content/uploads/2015/05/Tribe-Amicus-Curiae-Letter-Brief-FINAL.pdf

NY Civil Practice Law and Rules, Article 70 (Habeas Corpus), http://codes.lp.findlaw.com/nycode/CVP/70