The limited rights of Tommy the Chimp

9 December 2014

Posted by: Chris Magee

Category: Staff blog

Schimpanse_Zoo_Leipzig.jpgUAR’s Head of Policy and Media Chris Magee considers an attempt to give chimps universal rights.

I am always keen to avoid the term ‘animal rights’ when describing people who oppose animal research. The reason for this is that animals do have rights. They cannot be arbitrarily abused, for instance, and they have a right to certain standards of welfare. Being pro-animal research does not mean one opposes animal rights.

The reason nonhuman animals have these rights is because we as a society feel like giving them rights. They don’t derive from a social compact or civil contract, and it’s this which lies behind the recent failure of a legal challenge to grant chimpanzees “personhood”.

The Nonhuman Rights Project is a not-for-profit organisation which holds that great apes, dolphins, and elephants are entitled to such ‘basic legal rights as bodily liberty and integrity’, and has taken to the US courts to argue the case. The battleground that they picked was to attempt to apply Habeas Corpus to Tommy the chimp, who lives as a pet in upstate New York.

Habeas Corpus is a legal challenge that tests the legitimacy of authority, such a as prison warden justifying the incarceration of a prisoner, but it has its limits. Effectively, it is a guarantee against any detention that is forbidden by law. If it’s not already forbidden, Habeas Corpus cannot make it forbidden.

In a unanimous opinion, five judges of the state’s Supreme Court Appellate Division declined on Thursday to extend Habeas Corpus to Tommy, on the grounds that:

“…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. . . .

Needless to say, unlike human beings, chimpanzees cannot bear any legal duties, submit to societal responsibilities or be held legally accountable for their actions.”

No civil reciprocity, no liberty rights.

The Nonhuman Rights Project responded by saying the ruling “ignores the fact that the common law is supposed to change in light of new scientific discoveries, changing experiences, and changing ideas of what is right or wrong.”

There’s a problem there however, because I’m not aware of any scientific discoveries which show chimps are capable of civil reciprocity.

But of course, neither are all humans. In the UK, babies and those with severe mental impairment are granted certain rights which look rather similar to those of other animals in human society. They are cared for but their liberty is restricted.  Their welfare can be the responsibility of others.

Where they differ is they have human rights, a hotchpotch bag of entitlements jotted down after the Second World War as basically the opposite of whatever Hitler thought. Rights normally earned through civil reciprocity are granted unilaterally to those unable to fulfil them because in general humans have the capacity to enter a social contract. Babies will, on the whole, grow up to be capable of partaking in a civil contract and that is something a chimp can never do.

There is also a wider problem with a universal approach to rights, as we’ve seen with human rights. Defining a human can be quite tricky at times, leading some to, for instance, appeal to the constitution of our DNA as evidence for humanity which immediately raises questions about the validity of abortions. Like the natural rights which Jeremy Bentham called “nonsense upon stilts”, universal rights can be a clumsy tool and have little to say about clashes of rights, such as those of a foetus and its mother. Sometimes it’s better to hold a universal principle, which underpins civil protections.

But all is not lost for Tommy the Chimp. As noted in the ruling, there are many other avenues available for improving the welfare and experience of animals, which derive from the civil sphere without any need for universal entitlements. In fact, it’s these civil protections which are informed and justified by the “the new scientific discoveries, changing experiences, and changing ideas of what is right or wrong” mentioned by the Nonhuman Rights Project.

For example, it’s because of our understanding of the higher capacities of Great Apes that they are not allowed to be used in UK research. It is further illegal to keep a chimp as a pet in the UK. All of this arose without any need to ascribe “personhood” to nonhuman animals. In the end, civil society can grant unilateral rights to whatever it wants: babies, animals, national parks. With the notable exception of the Queen of England: You want to eat a swan? Tough luck.

One can be supportive of the general idea of ensuring animals’ rights are concurrent with our current understanding of them without invoking a clumsy universality to arbitrarily group together species as diverse as Great Apes, dolphins and elephants. Even attempting to identify species with higher concepts of self artificially limits the species of animals which could enjoy new civil protections if the issue were approached in a different way.

It is far better to consider suffering in the round, from the capacity for physical suffering to the capacity for psychological suffering. Perhaps, like the UK, other societies might conclude that Great Apes shouldn’t be pets, much less be used in the lab, and move to enact civil protections that are already effectively at their disposal.


Image by Thomas Lersch, Wikicommons