I had the pleasure of meeting Professor Laurence Tribe over twenty years ago when, as general counsel of Borland Software (makers of the Quattro Pro spreadsheet program, Paradox, dBASE, Sidekick, Turbo C, etc.), I hired him to argue a motion in Lotus v. Borland in federal district court in Boston. He lost the motion, but he did the best be could before a difficult judge and earned every penny of his substantial fee. Today, we are on different sides of a case in which neither of us have a commercial interest.

Earlier this year, I filed an amicus brief in the NY State Court of Appeals (the state's highest court) to oppose the NonHuman Rights Project's petition for a writ of habeas corpus, seeking the release of a chimp named Tommy being held by a private owner in upstate New York. More recently, I filed an amicus brief in a similar case to release two chimps being held at SUNY Stony Brook.

Professor Tribe has now weighed in on the Tommy case with his own amicus brief, contending the lower court got it wrong when it held that a chimp is not a legal person entitled to a writ of habeas corpus. The court held that unless a chimp can bear legal duties, it is not entitled to legal rights. The reasoning followed an argument I made in an earlier amicus brief I filed in the case.

The thrust of Professor Tribe's argument is that requring the capacity to apprehend legal duties as a prerequisite to the recognition of legal rights would "appear on its face to exclude third-trimester fetuses, children, and comatose adults."

What Professor Tribe has appeared to close his eyes on is that there is a great difference between a being's capacity to bear legal duties and its ability to exercise that capacity. Third-trimester fetuses may have the capacity to understand legal duties--e.g., that it should not harm others or their property--but it has no means by which to exercise those capacities. Young children, too, have the capacity to understand right from wrong, but their brains are not be sufficiently developed to exercise that capacity. This condition, in normal children, is only temporary. Likewise, adults in a coma, certainly have the capacity we're talking about, but clearly, because of some physical defect, are unable to exercise that capacity.

Chimpanzees have never, nor will they ever, have the capacity to understand right from wrong. They simply do not have what science has proven that we have to the exclusion of all other animals: the ability to think conceptually (as opposed to merely perceptually), which is what enables us to understand and converse about what is right or wrong. Chimps do not have that capacity and therefore can never exercise that capacity.

The ability to comprehend legal responsibilites is fundamental to the recognition of legal personhood. If a creature does not have the capacity to understand it is wrong to harm you or your property, it has no right to demand that you cannot harm it. It is this dividing line between human beings and all other animals that give us the moral right to eat and enslave nonhuman animals.

Of course, we have recognized a public right,civilized humans share in, that animals should not be mistreated. Even when we kill them for food, we recognize that the act should be executed as humanely as practical.

The cases filed by NonHuman Rights Project are not about animal rights. It's about this dividing line between humans and all other animals. In another post, I will explain why our recognition of this important line is the bases for our belief in human civil rights and equal protection under the law.