What, morally and legally speaking, is a chimpanzee?
This is the question being pushed by the Non-Human Rights Project, which insists that chimps, because they have rationality, self-awareness, and the use of American Sign Language, are the kinds of autonomous beings which should not be locked up without their consent.
Indeed, their legal strategy has been to push the courts to declare two chimps — named Tommy and Kiko — legal persons with a right to habeas corpus. Asserting this right has been the method by which other vulnerable populations have historically been freed from bondage without their consent.
Courts have been willing to hear such arguments, though they have been ultimately rejected in previous cases primarily because chimps cannot have “legal responsibilities and social duties.”
The Non-Human Rights Project has rejected this reasoning, asking the Appellate Division of the New York State Supreme Court to overturn previous decisions.
Quite correctly, their attorney Steven Wise argues that millions of persons do not have legal responsibilities and social duties. Newborns and other young children, those in a coma, and those with later-stage Alzheimer’s disease fall into this category, for instance.
On June 8th, however, the Appellate Court ruled against the Non-Human Rights Project — and, by extension, against Tommy and Kiko. They ruled that, despite the very high capabilities of chimpanzees detailed by Wise, this didn’t rise to the level of giving these primates legal responsibilities and social duties.
In responding to Wise’s argument about the examples of persons above who do not have such responsibilities and duties, the Court said something quite interesting: This argument “ignores the fact that these are still human beings, members of the human community.”
Let us think about what is being said here.
The reason why someone’s young daughter or older grandparent counts as person — even if they do not have the relevant capabilities mentioned above — is simply being a human being. In this context, the Court apparently is defining personhood as simply being a member of the species Homo sapiens. Nothing else is required.
Of course, this kind of claim is absolutely begging to be applied to cases surrounding beginning and end of life issues. If being a living member of Homo sapiens is all that is required for personhood, then prenatal human children, even eight-celled embryos, should be considered legal persons.
It would also follow that human beings in a persistently unconscious state, even those whose brain has largely died, should be considered legal persons.
Of course, that’s not how American jurisprudence on the value of human life works. When it comes to the beginning and end of life, instead of invoking the fact that “these are still human beings,” courts invoke morally-relevant traits which exclude them from the moral and legal community.
Is it too cynical to conclude that the courts now invoke importance of being human in order to exclude non-human animals from the moral community, but invoke the importance of morally-relevant traits to exclude certain human beings from the moral community?
It may not be intentional, but that is the practical outcome of the current American jurisprudence on these questions. And it is just totally incoherent. Steven Wise and the Non-Human Rights project will have a strong case as they take their argument up the appeal chain.
Both as a broader culture and as a legal community, we must resist the temptation to reason inconsistently in order to arrive at comfortable conclusions. My own view is that we ought to resist biological speciesism.
As I have written about previously here at Crux, such speciesism is not theologically justified. Angels and demons are persons despite not being Homo sapiens. If we were visited by aliens who were like us but of a different species, they should also be considered persons.
The key is focusing attention, not on biological species, but rather on metaphysical species. What kind of thing are we talking about?
Catholic moral theology considers any substance of a rational and relational nature to be a person. This includes embryos, fetuses, infants, the brain dead, comatose, and severely mentally ill.
It also includes Gabriel and Superman.
Should it also include Tommy and Kiko?
Whatever answer we give to this very serious question must be carefully considered and supported by a tight, coherent argument. And we must have a good-faith willingness to follow that argument wherever it leads.
Charles C. Camosy is Associate Professor of Theological and Social Ethics at Fordham University and is author of For Love of Animals: Christian Ethics, Consistent Action.