In an earlier post, I promised to review the legal arguments proffered by the Nonhuman Rights Project (NRP) in their petition for the release of several chimpanzees held in captivity in the State of New York—not pursuant to existing laws governing the mistreatment of animals, but on the novel basis that the chimps are “persons” under the law entitling them to deliverance via habeas corpus. Those arguments are set forth in the NRP’s first appellate brief to which I provide some preliminary thoughts below.
The NRP’s position, to summarize it briefly, is that a chimp is a “person” under both New York’s statutory law and the common law doctrine of habeas corpus. A person, they argue, is not a synonym for human being and the term may encompass a nonhuman animal just as it may include a corporation or other entity which the law has recognized as a person. Being a person, therefore, the chimps are entitled to their “bodily liberty,” and such other rights as the courts may recognize on a “case by case basis.”
A court should be unpersuaded by these arguments on a number of grounds -- legal, practical, and moral. Let's start with the legal:
I. Writ of habeas corpus only applies to human beings, not persons.
A. The statutes of New York State have neither expanded nor contracted the scope of habeas corpus protection. While the State has extended personhood from human beings to corporations, partnerships and governments, it has never extended it to nonhuman animals. Accordingly, a chimp is not a person under the statutes of the State of New York.
Writs of habeas corpus are issued in New York pursuant to statute, specifically Article 70 of New York’s Civil Practice Law & Rules (CPLR). Section 7002(a) of that Article states (in principal part):
“A person illegally imprisoned or otherwise restrained in his liberty within the state, or one acting on his behalf…may petition without notice for a writ of habeas corpus to inquire into the cause of such detention and for deliverance.” [emphasis added]
NPR claims that Section 7002(a) does not define the word “person” and therefore the court must look to the common law for a definition. Yet, the New York Code actually does define the word "person." How did the NRP miss it?
What NRP glosses over in its brief is the underlying legal basis for it's complaint: that the chimp’s imprisonment is illegal. Imprisonment, or restriction of one’s liberty, is illegal pursuant to either New York’s statutory law against unlawful imprisonment or a common law cause of action for false imprisonment.
The criminal law prohibiting unlawful imprisonment is set forth in New York Penal Law Article 135, which states at Section 135.05:
“A person is guilty of unlawful imprisonment in the second degree when he restrains another person.” [emphasis added]
The term “restrains” is defined in New York Penal Law Section 135.00(1):
“‘Restrains’ means to restrict a person’s movements intentionally and unlawfully in such manner as to interfere substantially with his liberty . . . " [emphasis added]
Of course, contrary to NRP's suggestion, the word “person” is, in fact, defined by the State's legislature. New York Penal Law Section 10.00(7), which specifically governs the legal interpretation of the unlawful imprisonment statute, states:
“”Person’ means a human being, and where appropriate, a public or private corporation, an unincorporated association, a partnership, a government or a governmental instrumentality.” [emphasis added]
Accordingly, since the chimp is not one of the kinds of corporations, partnerships, or governmental organizations listed in Section 10.00(7), it must be deemed a human being if it were to be given the status of “person” under New York Law.
The NRP made much in its brief of the fact that to be a person does not necessarily mean human being. That is true, but if you are not a human being, or one of the specific kinds of entities listed in the statute, you cannot be a person.
Since the legislature acted with respect to the definition of person, the courts need not refer to its common law meaning. Under New York law, a chimp is not a person.
The NRP notes that the State of New York, by statute, has now allowed “domestic or pet animals” to be beneficiaries of a trust. See, New York Estates, Powers & Trusts Sec. 7-8.1. To secure this avenue of argument, the chimp in captivity, Tommy, was made the beneficiary of an inter vivos trust established by NRP. Hence, the petitioner leaps to the following conclusion: “By allowing ‘designated domestic or pet animals’ to be trust beneficiations able to own the trust corpus, New York recognized these nonhuman animals as ‘persons’ with the capacity for legal rights. Because Tommy is a New York trust beneficiary, he is a legal 'person'."
Unfortunately, nowhere in the statute does it say that the animal beneficiary is a “person.” In fact, Section 7-8.1(a) & (b) repeatedly uses the term “animal” in reference to the beneficiary, not person. Elsewhere, the NY code defines the term "animal" as "every living creature except a human being." See, Agriculture & Markets Law Section 350).
Even if such animal were considered a person for the purposes of the trust, that certainly does not make it a person for the purpose of having his “bodily liberty” violated, because only a “person,” as defined under Section 10.00(7) is entitled to such liberty under NY Penal Law Article 135, regarding unlawful imprisonment.
In other words, I can leave a trust for the benefit of my pet goldfish, and the NRP can take the position the fish is a person for purposes of its ownership interest in the corpus of the trust, but that does not mean it is a person for purposes of unlawful or false imprisonment, and neither the NRP not anyone else should be able to obtain a writ of habeas corpus to deliver the fish from the confinement of its aquarium.
B. A chimp is not a person under the common law either. Even if it were, common law habeas corpus actions only apply to human beings, not persons.
Petitioner cites decisions of the courts of India for designating a Hindu idol and a Sikh sacred text each as a legal person; a Pakistani court for so designating a mosque; and a treaty between the Crown and the indigenous peoples of New Zealand for so designating a river. But NRP's attorneys admitted at the hearing held in the trial court that they were unable to cite a single case--either in NY or anywhere else in the world--in which any being other than a human being (either free or slave) has been the subject of a writ of habeas corpus.
Indeed, the common law has never allowed just any kind of person to be subject to habeas corpus; the writ has always been exclusively reserved for persons who are human beings.
Are chimpanzees human beings? The answer to that should be academic. Nor has any chimp ever been equated to a human being. The NRP admitted that in court.
C. The common law writ of habeas corpus should not be expanded to protect nonhumans.
1. No Practical Need to Do So
In opposing the writ, I am by no means being unsympathetic to the plight of the chimps in question. Every animal in NY State is already the beneficiary of the State's laudable statutory protection against the unhealthy confinement of animals. Specifically, Section 373(2) of the Agriculture & Markets Law allows police and qualified animal rights organizations to rescue animals who are being confined in a "crowded or unhealthful condition."
The NRP has admitted that it is not seeking the complete release of the chimps from confinement, only the chimps' transfer to a more hospitable confinement. Since the law already provides for a means to that end, changing the common law writ of habeas corpus to cover nonhuman animals would provide no marginal benefit whatsoever.
2. Doing so would have enormous practical consequences.
What would be the the scope of a nonhuman animal's rights under habeas corpus. The right which NRP seeks is an animal's "bodily liberty." But, again, they are not seeking the complete release of the chimps, only a transfer to a different location. How will the common law determine in the context of "bodily liberty" one form of confinement over another? For a particular species? For a particular animal?
Would "bodily liberty" protect against assault or abuse? Training? Sale?
New York State has enacted a number of laws regarding the conditions of an animal's confinement, as well as addressing an animal's abandonment, malnourishment, poisoning, exposure, sale, carrying them in a cruel manner, clipping a dog's ears, operating on a horse's tale, and the like.
What other nonhuman anima rights will the courts be asked to recognize beyond "bodily liberty"? The NPR concedes that this would be determined on a "case-by-case basis."
Beyond chimps, what other animals would be protected? The NPR says on its website it's looking to add apes, whales, and dolphins, and has already chosen a state in which to file a writ of habeas corpus action on behalf of an elephant.
Nearly 25 pages of the NRP brief is devoted to summarizing the similarities between chimpanzees and human beings, as detailed in hundreds of pages of affidavits filed by a number of “experts” with the trial court. As would be expected, none of these materials spend much time on the important differences between chimps and humans.
As this post is getting rather long, I will point out some of these differences in a future blog entry, and why they are more relevant than the similarities, but suffice it to say that the NRP choses to base a chimp’s personhood on one particular characteristic that humans and chimps appear to have in common: “autonomy." It is under this attribute, they say, many of the chimps’ complex cognitive abilities are subsumed. Leaving aside the considerable flaws in the science of this conclusion, the NRP does not suggest in its brief whether its next candidate for a habeas corpus petition is Google’s self-driving cars or autonomous robots.
The brief continues with an astounding comparison between chimpanzees right to equal protection with prohibitions on racial discrimination. There is a particular irony here, which I’ll leave to another day, but let’s just say that the contention begs the question. Equal protection under the law is premised upon the essential equality among those protected. The petitioners are far from proving essential equality between humans and nonhumans.
The NRP then moves its argument into the realm of philosophy, unearthing a 1983 citation to a single “philosopher” (i.e., Daniel Wikler, described in Wikpedia as “a public health educator, philosopher, and medical ethicist”) quoted astonishingly to the effect that “the thesis that humans should be ascribed rights for being human has received practically no support from philosophers.”
Either the writer was quoted hopelessly out of context, or he was completely unaware of the vast western philosophical canons on the subject, beginning with Aristotle--with whom Kant and Locke later concurred on tis point. The position that humans should be ascribed rights for being human is perhaps best elucidated by the American philosopher Mortimer J. Adler in his works, The Difference of Man and the Difference It Makes (Holt 1967) and Intellect (Macmillan 1990).
The brief proceeds to misconstrue statements made by the emanate Judge Richard Posner, who it says “implicitly concedes” there exist “no rational arguments” to support discrimination against nonhumans. On the contrary, all Judge Posner said was that he “does not feel obligated to defend” the “moral intuition” that seems to him “deeper than any reason given for it.” That’s hardly a concession that “no rational arguments” exist for treating humans differently from all other animals. Judge Posner’s unfiltered thoughts on the subject are set forth here.
That about sums up my preliminary thoughts on the subject, sparing you for now the “rational arguments” which Judge Posner did not feel obligated to defend in the forum in which he was writing. Soon, I will add those rational arguments—arguments which concern the distinction between humans and all other animals, a distinction from which we derive our moral basis for treating nonhuman animals unequally, even with respect to their bodily liberty.
