Monkey business

If chimpanzees' cognitive thinking makes them legal persons, then where does man begin and animal end, asks Richard Easton

They share 99 per cent of our DNA; they speak to us through sign language; they grieve; they laugh; and yet they are mere 'things': our closest relatives, chimpanzees, are - like all animals except man - property, whereas we are persons.

A pioneering claim to free four chimpanzees in New York State might, however, make our nearest animal kin our legal equals. But, if chimps become 'persons' with rights, why should not dogs, horses, pigs and cows? Or would a menagerie of rights bearers undermine the whole notion of human rights?

In early December last year, the Nonhuman Rights Project (NHRP) petitioned the New York Supreme Courts of Fulton County, Niagara County and Suffolk County for writs of habeas corpus to compel the release of four chimpanzees - Tommy, Kiko, Hercules and Leo - held captive in the state. The NHRP argues that the chimps should be freed from the allegedly poor conditions in which they are kept to live in 'extraordinary sanctuaries [...], there to spend the rest of their lives living like chimpanzees, among chimpanzee friends'.

Autonomous beings

Chimpanzees' cognitive capacities make them, according to the NHRP, self-aware, autonomous beings. And, as autonomy is the essence of the common law of liberty, habeas corpus should apply equally to humans and chimpanzees: to view the four captive chimps legally as things would be, the NHRP asserts, 'for the sole, illegitimate, and odious purpose of enslaving them'.

Pursuing the chimps-as-slaves metaphor, the NHRP has relied on the English abolitionist case Somerset v Stewart (1772) Lofft 1, in which Lord Mansfield famously held that 'slavery is…so odious, that nothing can be suffered to support it, but positive law', to demonstrate that the common law can be 'refashioned' dramatically to turn a 'thing' (Somerset, the slave; Kiko, the chimpanzee) into a 'person'.

And personhood, so the NHRP argues, is not synonymous with being human. By a legal fiction, companies and corporations enjoy personhood - and have human rights. Bizarrely, Indian law has recognised Sikhism's holy book the Sri Guru Granth Sahib, a mosque and a Hindu idol as legal persons; and New Zealand's Whanganui River has legal personality by a 2012 agreement between the Māori and the Crown. The State of New York itself has already, so say the NHRP, impliedly recognised chimpanzees as legal persons by allowing them to be beneficiaries under trusts. Why should the four chimps, then, be considered chattels?

Although impressed with the NHRP's erudition, all three New York Supreme Courts have dismissed the chimpanzees' applications for freedom. The NHRP's fight will, however, continue in New York's appeal courts.

Any extension of legal personhood to great apes would, of course, be based largely on their cognitive, social and genetic similarity to humans. But US thinkers in the field of animal law such as legal scholar Gary Francione and philosopher Tom Regan posit that sentience alone should be sufficient for an animal to attain personhood, a proposal that, if acted upon, would overnight turn us all into vegans.

Species exclusivity

Should the Council of Europe, then, heed the Centre for Animals and Social Justice's call on 27 January to end the 'species exclusivity' of the European Convention on Human Rights and extend rights to life, liberty and bodily integrity to animals? But might the very idea of human rights require that animals should be viewed as legally apart from man? The European Court of Human Right's decision in People for the Ethical Treatment of Animal (PETA) v Germany (Application No: 43481/09), which became final in March last year, suggests so.

In its PETA ruling, the chamber upheld a German court's ban on an animal rights poster campaign in which images of starving concentration camp inmates and emaciated cattle were juxtaposed under the caption 'the Holocaust on your plate'. The Strasbourg Court concluded that, within the unique context of Germany, the human dignity of offended Jewish survivors of the Shoah outweighed PETA's right to free speech.

Significantly, in their concurring minority opinion, Judges Zupančič and Spielmann disputed that Germany's history or Jewishness was determinative of the unlawfulness of PETA's posters. Indeed, neither Judge Zupančič nor Judge Spielmann would countenance that comparisons between human and animal suffering should be permitted anywhere: 'when human beings in their utter suffering and indignity are [...] compared to hens and pigs [...] we are no longer in the position to maintain that the human beings […] are treated as an end in themselves'.

Does the law, as Judges Zupančič and Spielmann suggest, require that animals retain their legal status as 'things' ('means to ends' rather than 'ends in themselves') whose sufferings cannot be compared to man's for our Kantian notion of human dignity (and, therefore, human rights) to be maintained? The drafting of the 1950 Convention was, after all, a response to the slaughterhouse that Europe became in the 1940s, when humans were treated as animals. Might, then, the idea of inhuman treatment require an implied concept of what is not human, namely the animal?

Perhaps in law's bestiary there is not yet a place for that hybrid being - the animal-person.

Richard Easton is a solicitor at GT Stewart Solicitors

www.gtstewart.co.uk