Monkeying around with the specialness of humans

‘Tommy’ is a chimpanzee being kept alone, at the back of a New York trailer lot, in a steel cage. Tommy’s owners apparently provided him with a television.

This somewhat bizarre situation was the impetus for the Boston-based Non Human Rights Project (NHRP) to file a writ of habeas corpus on behalf of Tommy and three other chimps in New York. The court papers ask the court to see Tommy as, ‘not a legal thing to be possessed by respondents, but rather as a cognitively complex autonomous legal person with the fundamental legal right not to be imprisoned’.

The idea of habeas corpus, literally translated as ‘to have body’, emerged in the course of English legal history as an important safeguard against arbitrary detention and was referred to as early as 1215 in the Magna Carta (1). Although the doctrine is almost obsolete in the UK, in America it remains as a route of appeal and, for many, it’s the last opportunity to appeal against the legality of a conviction. Habeas corpus has, for example, been invoked to challenge the legality of detention in Guantánamo Bay.

The NHRP’s argument, however, relies on the speech of Lord Mansfield in the case of Somerset v Stuart in 1772, in which a writ of habeas corpus was used to free the slave James Somerset who had been brought to England by his owner. The NHRP cites the case as establishing in English law that a slave ‘was not a piece of property, but instead a legal person’, compelling the court to set Somerset free.

It is illustrative of the NHRP’s blind willingness to defer to the law to enact significant social change that it overestimates the parameters of the Somerset judgement, which merely stated that if slave owners wanted to ship slaves abroad without their consent then there would need to be a ‘positive law’ granting that power. The judgement did little to affect the abolition of the slave trade. Slavery was abolished in France following the 1789 French Revolution, which subsequently inspired reformers in England to campaign and lobby for abolition, leading to the 1807 Slave Trade Act. Meanwhile, slavery continued in America until the end of the Civil War in 1865. Someone should let the NHRP know that significant social change requires social and political engagement, not the swift turn of a judge’s gavel.

The tumultuous social and political changes of the eighteenth and nineteenth centuries are, of course, far removed from the current apathetic state of politics. In the early 1970s, the philosopher Peter Singer argued that our current prejudices against ‘non-human animals’ are as baseless as our previous prejudices against human minorities. As the belief in human action has gradually faded, Singer’s ideas have gained greater acceptance. In 2008, legal philosopher Connor Gearty of the London School of Economics argued that the ‘capacity for conscious experience in animals should render the “species specificity” of rights obsolete’. Gearty concluded that the ‘collapse of intellectual confidence in the specialness of the human… now offers a window of opportunity for other animals… to fit within the world of right behaviour’.

This ‘collapse of intellectual confidence in the specialness of the human’ has fostered an environment in which we are more deferential to the idea that animals should be afforded legal rights. The UK banned experiments on great apes in 1986, a move justified by the Home Office on the basis that the ‘cognitive and behavioural characteristics of these animals mean it is unethical to treat them as expendable for research’. In 2008, the Spanish parliament granted apes the ‘right to life and freedom’ following pressure from the Great Apes Project, co-founded by Singer. Gearty is right that a diminished view of the ‘specialness’ of human ‘cognitive and behavioural characteristics’ means we are more willing than ever today to accept the idea that animals should receive legal recognition as ‘persons’.

Widespread acceptance that chimps have equivalent, or almost equivalent, mental and behavioural capacity to humans mean that the NHRP can boldly state: ‘[O]ur lawsuits set out to establish that chimpanzees possess such complex cognitive abilities as autonomy, self-determination, self-consciousness, awareness of the past, anticipation of the future, and the ability to make choices; that they display complex emotions like empathy; and that they construct diverse cultures. The possession of these characteristics is sufficient to establish personhood and the consequential fundamental right to bodily liberty.’

Each of these claims is highly contestable. Autonomy, for example, is typically understood to mean the ability of rational agents to make informed choices and to be held accountable for those choices and the consequences of any action they might take. If you smash a window, for example, then you might be prosecuted for damage on the assumption that you chose to act in that way and were free to act in another way. When it comes to chimpanzees, the situation is far less clear. A chimp may throw a rock at a window but few would suggest that the chimp acted as a rational agent that might have acted differently. Any attempt to prosecute the chimp for damage would be seen as eccentric in the extreme.

The same goes for empathy and fairness. There are anecdotal accounts of chimpanzees ‘helping’ other injured chimpanzees and there is evidence that chimpanzees will reject less favourable rewards (such as a cucumber slice) when another chimpanzee receives a more favourable award (such as a grape). At the same time, it seems that chimpanzees will not take action to deliver food to other chimpanzees even when the action has no cost to them (2). Also, a chimpanzee will happily accept inequitable rewards if he is the beneficiary. If you are injured on the battlefield, it seems unlikely that you can rely on a chimp to risk his life to provide treatment, and if you are starving it seems unlikely a chimp will give you any food. At best, any empathy or sense of fairness is constrained and limited in chimps compared with humans. The evidence for perspective-taking and moral behaviour in chimps is extremely limited.

But even accepting a certain, limited, capacity for cognition and emotion in chimpanzees, such things do not amount to personhood. Personhood is not delivered through the bric-a-brac of mental processes (however defined) but through the active and appropriate engagement in a society of other persons. That is why chimpanzees can never be persons. A chimpanzee will never represent himself in court and demand his autonomy. A chimpanzee will never take on a job, walk into a store and make a purchase. A chimpanzee will never even express disdain at all the rubbish on TV. Chimpanzees will merely go on doing what chimpanzees have always done because they lack the scope for flexibility and engagement in anything beyond their spontaneous desires and immediate environment.

That is why the idea of extending habeas corpus to chimpanzees is an insult to the memory of James Somerset and to all of us living today. Habeas corpus was drilled out of the very guts of human struggle and development and, as such, is momentous. Extending habeas corpus to chimpanzees makes a mockery of that struggle and renders that momentous human development banal – nothing more than the extension of a mélange of cognition and emotion. Suggesting habeas corpus for chimpanzees reflects a tragic loss of belief in humanity.

Stuart Derbyshire is an associate professor in the Department of Psychology, National University of Singapore (NUS) and A*STAR-NUS Clinical Imaging Research Centre.

Luke Gittos is law editor at spiked, a paralegal in criminal law and convenor of the London Legal Salon.