Another chimpanzee personhood claim fails, but there's hope yet

Late last week, Judge Barbara Jaffe of the New York State Supreme Court declined to recognise the personhood of two chimpanzees, Hercules and Leo, for the purpose of a habeas corpus claim brought on their behalf. The chimpanzees are in the custody of Stony Brook University, where they are used for scientific research.

Habeas corpus is a legal claim that allows a person to challenge the lawfulness of their detention and to seek release. To pursue such a claim, the claimant must first be recognised by the law as a person who is capable of exercising that particular right to challenge their detention.

Despite the evolving nature of the law, which at one time was not open to some human beings, to date no entity other than a human being has ever been recognised as entitled to claim habeas corpus.

The decision

Last week’s decision is the most recent in a series of similar lawsuits being run by the Nonhuman Rights Project. Ostensibly, the cases aim to secure the release of specific chimpanzees from their current circumstances of detention into sanctuaries that better replicate conditions in the wild.

This would be a meaningful welfare outcome for those chimpanzees, but the cases have a deeper legal agenda. They seek to challenge the law’s simple and uniform designation of animals as property, at least in respect of cognitively, emotionally and morally advanced animal species.

While the focus of the cases has so far been chimpanzees, the intent of the Nonhuman Rights Project is to eventually include other nonhuman animal species with attributes that suggest their inner lives are closer to human experience, such as other great apes, elephants, and whales.

Last week’s decision, while rejecting the petitioner’s claim, provides some basis for cautious optimism among those who support the attempt to achieve recognition of animal legal personhood under common law. It’s certainly not a hostile judgment given it will now be appealed to the New York Supreme Court Appellate Division.

Reason for hope

Importantly, the decision was not made on the merits of the legal arguments as to whether a chimpanzee might be a legal person for the purpose of habeas corpus. Instead, Judge Jaffe carefully explained how her court was bound – because of technical rules of precedent – by a previous decision of a separate but superior New York court, which had denied a similar claim. But at no point did her comments demonstrate support for the legal reasoning that underpinned that court’s decision.

Indeed, I read in Judge Jaffe’s own brief treatment of the concept of legal personhood the potential that she, if free to pursue the matter on its merits, may have reached a different conclusion. She acknowledges, for instance, that the concept of a legal person is context-specific rather than fixed in the way the other court’s decision suggests.

I think the reasoning of the earlier decision was incorrect in that it treated the concept of a legal person as premised on certain fixed attributes. The court in that case linked legal personality to social contract theories of civil participation. It held that, to be recognised as a person entitled to rights in law, an entity must also be capable of accepting legal duties. And as animals cannot be held legally responsible for their actions, they cannot be legal persons.

But this reasoning ignores that the law often recognises personality in a more limited and context-specific sense. While an infant is a person for certain legal purposes (if they are wilfully killed, it would constitute murder), for instance, they’re not a legal person for the purposes of settling or enforcing a contract or being held criminally liable for their acts.

A higher court

Judge Jaffe also noted the legal question she was being asked to resolve, involving as it does a kind of legal evolutionary leap, is more appropriate for the next court in the hierarchy, the Court of Appeals. Indirectly, she seems to encourage the Court of Appeals to at least hear the case, noting its “role in setting State policy” and citing cases reminding courts that the parameters of habeas corpus are not solely a matter for the legislature.

The US animal personhood cases are a fascinating part of evolving legal dialogues on animals and their status under human law. Indeed, in some areas of US case law, companion animals are at times being treated as “quasi-persons” or at least a unique kind of property.

Some courts have recognised the emotional relationship between owners and pets, for instance, in determinations of pet custody after family breakdowns, and in deciding damages for harm caused by others to a pet.

The question is how much farther such incremental shifts of legal status will be taken and whether it will ever extend to fundamental rights being directly accorded to animals.

Joanna Kyriakakis is the current recipient of a small grant from Voiceless the Animal Protection Institute, for research into teaching Animal Law at Australian Universities. She is a member of the Voiceless Legal Advisory Council.