The following concerns a petition for recognition of habeas corpus for chimpanzees in the State of New York. *
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.
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 the petitioners are 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.
In a previous post concerning whether fish feel pain, I tried to make the distinction between ‘consciousness’ (which 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 any nonsense 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.)
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 – it can never become human.
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.
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 already self-evident, that had needed considerable propaganda to suppress.
The sole criterion for membership in the category ‘human’ is being human.
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.
As it happens, most states recognize guardianship for certain animals, especially in abuse cases. So why not petition for guardianship for the chimps, but for habeas corpus? The petitioners seem not so concerned with the individual animals as they are with positioning for a change in the laws that circumvents the legislature. I find that suspect.
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?
So ‘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 means to be human, and what the relations between women, men, and the products of their unions might be. I think the gain worth the cost.
I’m not prepared to pay out what I think would be a heavier price for making chimps ‘persons.’
While I have considerable 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.
We grant humans rights because those receiving this grant are human – that’s the extent of my claim. And our legislatures and courts only construct rights for entities insofar as they have direct impact on humans involved. Nonhumans are beyond this compass, except insofar as they elicit human sympathies.
“What is NATURAL PERSON?
A human being, naturally born, versus a legally generated juridical person.” **
Chimps are undoubtedly something like us; how much so is questionable, especially since we can never have true insight into how chimps think – or whether they can in our understanding. But let’s bear in mind here that ‘animal rights’ activists are also pressing the same case for whales in marinas and elephants in circuses. How well do any criteria of mental abilities apply to them?
What happens if nonhumans are granted human rights? Some agency could petition for habeas corpus against people who keep their dogs in kennels. Another, on the basis that Barnum-Bailey owes Dumbo the elephant back-wages, sues for these monies to be put in trust. Legislatures might need decide whether a deer struck on the highway was a victim of manslaughter or they need to create a new felony, deerslaughter.
But of course the most sweeping effect would be the end of the use of animals in research institutions.
The way most humans treat animals needs modification, just as I and others here have agreed. But these results of granting personhood to other animals are by no means absurd. And talk about clogging court calenders with frivolous lawsuits!
Finally, the problem with distributing ‘rights’ to nonhumans is that this cheapens the very notion of rights; the idea begins losing its power: ‘I feel sympathy for this rosebush – it has its rights!’ – until we could grant rights to rocks for all that any might care. That’s a real danger in my book.
Any laws we make concerning animals are due to the perceived interests of the electorate. So they are of immediate impact on a human population. The animals cannot voice their concerns. It is we who raise objection to mistreatment, as we conceive it.
The issue raised is important. Heightened awareness of our responsibility to other sentient life forms is just. But the origin of human compassion for nonhumans arises in the human mind. Our concern for animal welfare has to do with our perceptions and judgments. Neither the compassion nor its origins should be denied. The responsibilities for compassion arise from our ability to cognize those responsibilities. Our political duty is to raise awareness of such responsibility, not try incorporating other species into our own.
If the term ‘rights’ is applied too broadly politically, it becomes an empty signifier, and loses its power when we need it to argue for the oppressed. How do we argue for the rights of the poor to more equitable distribution of wealth, if we must also argue similar rights for chimps or whales?
As I’ve noted in previous posts, there’s a big difference between questions of ‘what I should do’ (how I conduct my behavior ethically) and ‘what we should do’ – which necessarily invokes politics. If we over-distribute the rhetoric of ‘rights,’ then its capacity to elicit positive response diminishes, possibly to the point of uselessness. I am too political an animal to allow that to happen without complaint.
Habeas corpus: http://en.wikipedia.org/wiki/Habeas_corpus
I also 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.