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  • Bob Kohn

Amicus Brief Filed to Oppose Writ of Habeas Corpus for Chimps

Earlier today, I filed an amicus brief in opposition to a lawsuit by the Nonhuman Rights Project (NRP) to release a chimp from captivity in upstate 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.


The trial court denied the writ and NRP appealed, but the owner of the chimp informed the court that he would not be filing a response, which is due on May 19. My amicus brief, if accepted by the court, will provide the court with arguments it might not otherwise have had in order to evaluate the contentions made by NPR in its appellate brief.

The NRP has ten days from the receipt of my amicus brief, or about May 23, to file a reply. Presumably, the court, which is located in Albany, NY, will announce a hearing date.

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:

Writ of habeas corpus only applies to human beings, not persons. 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. Nor is a chimp a person under the common law. Even if it were, common law habeas corpus actions only apply to human beings, not persons.

NRP 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.

The common law writ of habeas corpus should not be expanded to protect nonhumans and NRP provides no good reason to do so.

First, there is no practical need to provide human rights to nonhumans. 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.

Second, providing human rights to nonhuman animals 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?

What other nonhuman animal 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 do anything to refute the significant differences between them, including the solid scientific evidence that human beings have something that other animals do not.

Professor V.S. Ramachandran, Director for Brain and Cognition at the University of California, San Diego, has called the human brain “unique and distinct from that of the ape by a huge gap.” [1] The difference, he says, boils down to language: Our “unique competence” in producing language, “seems to be absent in all other animals.” This competence, he adds, “comes from our language acquisition device or LAD. Humans have LAD; apes and all other animals lack it.”

Likewise, the great linguist, Professor Noam Chomsky, has conceded that human beings must be born with what he calls a “universal grammar.” [2] Animals do have “communications systems,” says Chomsky, “but they don’t have anything like a language…[T]he human conceptual system looks as though it has nothing analogous in the animal world.” Id.

The basis of our unique facility with language is what the American philosopher Mortimer J. Adler has called the human intellect, our power of conceptual thought, something which is absent in all other animals. [3]

And, although we may not know how or from whence these powers arise in us, there no doubt exists a marked discontinuity in nature—drawing a line between human beings and all other animals—which has been recognized since antiquity and which modern science repeatedly confirms. Indeed, all the behavioral studies of chimpanzees, rather than disproving the fundamental difference between human beings and chimps, only supports it.

This difference has been, since at least as early as Aristotle’s time, very the basis for ascribing rights to human beings for being human. And it has always been the basis for treating animals as the different kind of things they are.

Jurisprudentially, rights follow from duties. It should be self-evident, said Aristotle, that each human being, by nature, has an obligation to do what is really good for one’s self—that is, an obligation to pursue happiness. And it is by virtue of this obligation that each of us has the right to do so, not the other way around. Human rights—our moral and legal obligations to each other—enable us to pursue happiness. Non-human animals, having only an instinct to survive rather than a free will to choose otherwise, can neither understand nor carry out moral or legal obligations, such as respecting the life, liberty, and property of others. If a creature cannot be said to have obligations, it cannot be said to have rights.

[1] V.S. Ramachandran, The Tell-Tale Brain: A Neuroscientist’s Quest for What Makes Us Human (W.W. Norton & Company 2011)

[2] Noam Chomsky, The Science of Grammar (Cambridge Univ. Press 2012).

[3] Mortimer J. Adler, The Difference of Man and the Difference It Makes (Holt 1967) and Intellect (Macmillan 1990).

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