Legal Personhood: Steven Wise and the battle to free chimpanzees in the U.S.

In light of the court ruling in Argentina that appeared to grant an orangutan her freedom from captivity in a zoo (as much as she can be granted this), I thought I would post a bit more of the personhood research I’ve done for the anthrozoology course – introducing Steven Wise, who has been battling for the same rights for 4 chimpanzees in the States.

Recognising the personhood of other great apes (or other animals more generally), based on growing scientific evidence of continuity, could stop at acknowledgement of their moral rights, but advocates such as Gary L. Francione and Steven Wise believe that this stops short of truly ensuring their protection, since legally these animals in the American setting would still be considered property.   Francione (1993:251-252) argues that legal rights must be pursued:  “If the Declaration on Great Apes is to have any meaning as far as chimpanzees [bonobos], gorillas and orang-utans are concerned, then it is necessary that the concept of legal personhood be extended to them, and they must cease to be treated or viewed as the property of humans.”  Francione (2004:108) talks about a “moral schizophrenia” that human beings (in European-American cultures) display; while animals are seen to have “morally significant interests”, they are at the same time treated as if they have instrumental value only or primarily (they are used as means to an end, and are not seen as ends in themselves), as a result of their continued status as property.  Like Singer, Francione (2004:112-113) focuses on the importance of animal sentience:  “no other characteristic, such as humanlike rationality, reflective self-consciousness, or the ability to communicate in a human language, is necessary.”

Wise (2013, 1996) is in agreement with Francione regarding the importance of legal rights for nonhuman animals.  While he promotes expansion of legal personhood widely (to nonhuman animals), his recent court actions show a practical focus on chimpanzees, since these great apes are considered to be most genetically similar to human beings (our closest living relatives, along with bonobos); this could be an easier win than attempting a court action for an animal that appears to be significantly different to humans.  Wise filed three court actions in the United States on behalf of four captive chimpanzees, arguing for their personhood and thus their current neglect and mistreatment; two are living in a research lab and two are privately owned (Siebert, 2014).  One of these chimpanzees, 26-year-old Tommy, formerly a circus animal, has been kept in a small cage on the Circle L Trailer Sales premises (in New York) for more than 20 years.  Wise contends that these conditions can only cause suffering for an animal with Tommy’s cognitive and social capacities (Yuhas, 2014).  Leading primatologists (and scientists in other fields) have provided affidavits to support this claim.  The legal argument rests on the autonomy of chimpanzees (a limited legal personhood), and also focuses on the right of autonomous beings, or persons, to not be imprisoned against their will (a writ of habeas corpus); the goal is to have Tommy and the three other chimps removed from their confinement and relocated to a sanctuary that provides them with some amount of self-determination.  In court arguments, Wise has been careful not to characterise the issue as one of animal welfare, since this would lead back to animal cruelty legislation (it would frame the issue within existing laws and relationships, rather than pushing boundaries).  Garner acknowledges this problem in the British context:

“Where the interests of animals have been considered, in both the political and academic worlds, it is in terms of their welfare, rather than their rights.  That is, it is widely accepted that we owe some moral obligations to animals, but the interests of humans, it is commonly argued, must come first, and our right to exploit animals in order to further these interests remains sacrosanct.” (2010:123)

An animal welfare focus still allows animals to be used, but it improves the conditions under which they are used.  Such an approach can be dangerous as identified by Davis (2010:271) who describes the possibility of supposedly increasing welfare by engineering animals that could feel less or generally experience less; she provides the example of “creation of insentient, brain-dead animals to fit the procrustean systems of industrialized agriculture”.  Hearings for the three court actions took place in December 2013 and the outcome was unanimous across the Supreme Court Justices deciding the cases (although in Tommy’s case, the Justice expressed sympathy and noted the strength of the argument): habeas corpus could not apply to chimpanzees because chimpanzees were not persons (Grimm, 2013).  Wise and his team are in the process of appealing the decisions (which have so far been unsuccessful).  Despite these defeats, there have been successes and similar moves in other parts of the world that are worth noting.  Dolphins were given protection as nonhuman persons by the government of India in 2013 (Cetacean Rights, 2013).  Legislation has been proposed to give rights to great apes in Spain (however this has not become law), and the Balearic Islands passed legislation in 2007 to grant great apes personhood (Saner, 2013).

We can now possibly add Argentina to the list of countries acknowledging basic rights (to “freedom”) for some nonhuman animals and expanding definitions of personhood – there is some discussion over the actual content of the court’s decision (see Marc Bekoff quoting Steven Wise).  South American countries are definitely places to watch, if we also consider that Bolivia and Ecuador both have rights for nature written into their constitutions.

Personhood and Alloprimates

Research for my anthrozoology course has included an exploration of primates and personhood:

What is “personhood” in European-American cultures?

Certain characteristics seem to figure in many influential philosophical definitions of personhood:  “cognitive capacities such as rationality have remained important features of most subsequent accounts [after Boethius] of personhood, including the two most influential accounts… those of John Locke and Emmanuel Kant” (Farah and Heberlein, 2007:37).  Numerous philosophers have since challenged this emphasis on rationality and other characteristics such as language, referenced to set human beings apart from other animals.  Singer (2013) takes a consequentialist or utilitarian approach that rejects speciesism.  Human beings can recognise that other animals (particularly other mammals) have similar interests and share the interest to not feel pain (suffer).  To that end, all animals should be considered equally with regard to this interest; an argument rooted in the 19th century philosophy of Jeremy Bentham.  Singer asserts that the utilitarian principle is more encompassing than a notion of personhood, which he believes is limited in that it is defined, in the “Western” context, by self-awareness and capacities for rationality (thus the category of persons will exclude many animals); of course a potential and fundamental flaw for utilitarianism develops in real world situations in attempts to calculate and compare human pain and other animals’ pain (protection of other animals is by no means guaranteed). Saying that, Singer has been integral to the Great Ape Project, and he explains that great apes such as chimpanzees can bridge the yawning chasm between humans and nonhumans, if they are given legal personhood status; Singer acknowledges the continuing dualities that exist in the American context (humans/all other animals).  Widening personhood to include great apes would be a first step towards changing attitudes to other animals more fundamentally.  Regan (1985), in contrast to Singer, does not focus on the ability of animals to feel pain, but instead bases his philosophical argument on what could be considered the wider notion that humans and other animals are all “subjects of a life”.  There is an inherent value to all subjects of a life and this has moral implications; primates and other animals must not be treated as means to an end (in terms of use value), which appears to solve the utilitarian problem.  Ryder (2010, 2002), who coined the term speciesism,  synthesises Singer’s and Regan’s approaches in his argument for “painism”, in which all animals’ moral status derives from the ability to feel pain but this is not a utilitarian position, as Ryder forefronts the imperative not to use other beings as means to an end.  Finally, Rowlands’ recent work (2012) presents a case for animals as moral subjects; he decouples moral subject from moral agent, so that human animals are both but other animals are moral subjects but not moral agents (and so not responsible for what they do, in the way that humans are responsible). These arguments, from the discipline of philosophy, attempt to describe similarities in feelings and/or cognition between humans and other animals so that the category of “persons” expands to include other animals.

Personhood extended to great apes?

Bekoff (1993:104) rightly identifies three types of evidence that can be referenced to support a move to include other great apes as persons:  anecdote (what he calls common sense, evidence from observation which can involve use of anthropomorphic terminology- consider Jane Goodall, etc), animal cognition studies that reveal the “richness of the cognitive and intentional lives of great apes”, and evolutionary continuity.  Griffin (2001), a central figure in the development of the field of cognitive ethology, provides examples of primate cognition, intentionality and consciousness.  Great apes, as social animals living in cooperative groups, developed cognitive capacities and consciousness as it was advantageous for individuals to be able to read the behaviours of others in their social group and act with their interests in mind (with empathy and consideration); this diminished instances of conflict, and cooperation increased all group members’ chances of survival.  Griffin introduces the work of primatologists such as Cheney and Seyfarth, whose research has led them to conclude that monkeys (at least those that they have studied, which include baboons and vervets) may have complex social understandings so that they recognise individuals in their troops, their vocalisations and rank, but they do not exhibit empathy or self-awareness.  However, Griffin lays down a reasonable challenge to this:  “A blanket denial that even monkeys are capable of understanding their own knowledge seems a rather sweeping conclusion to be based on the lack of a kind of evidence that would be very difficult to obtain.”  (2001:235-236)  The complexity of great ape cognition is also presented by Griffin through examples of captive chimpanzees, bonobos, gorillas and an orang-utan using American sign language or keyboards to communicate with researchers (he particularly reviews the work of Savage-Rambaugh).  For Griffin, their abilities reflect evolutionary continuity.  Griffin locates these primate examples within his wider understanding that all animals experience subjective conscious awareness (continuity means differences of degree not kind):

“it is both more parsimonious and more plausible to assume that the difference between human and other brains and minds is the content of conscious experience … rather than an absolute all-or-nothing dichotomy between human brains uniquely capable of producing conscious experience, on the one hand, and all other brains that can never do so, on the other, this hypothesis is consistent with our general belief in evolutionary continuity” (2001:18)

De Waal (2010, 2009), in general agreement with Griffin’s conclusions but with focus on primates, builds on the work of Goodall and other researchers who began to fully document similarities between humans and other apes in terms of their emotional lives and behaviours (this is not to say that they did not acknowledge differences); de Waal attempts to provide solid and sound evidence of these shared characteristics, including the origin of morality which he also does not consider to be solely the reserve of human beings.

Noske (1993) has noted the evidence for continuity that primatologists’ have gathered, leading to conclusions that all great apes have complex social lives, in which they respect social rules, read social cues and exhibit abstract thinking.  She also argues for the place of the anthropologist in the study of primate societies and cultures; to her, the shift to consider all great apes as persons would also lead to a shift in research procedures, and anthropologists would have much to offer because of existing research practices (participant observation) and focus on understanding the “other”.  Noske makes the important point that researchers such as Goodall and Fossey were already doing this in primatology, using what amounted to participant observation methods, which it can be argued should have as much legitimacy when applied to chimpanzees or gorillas as an anthropological participant observation approach used to understand human cultures.