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By Cathy Kirkman

Animal rights: Monkey see, monkey sue?

Uploaded: Dec 4, 2013

Earlier this week a lawsuit was filed in upstate New York asserting that a chimpanzee is a legal "person," entitled to various rights of personhood. When we think of animal rights, we usually think of laws relating to the humane treatment of animals, as there's clearly a lot to be done about factory farming practices, and the new gag laws against filming factory farms seem downright Orwellian.

But should a monkey have the right to bring a law suit? The case was filed by the Nonhuman Rights Project, which describes itself as follows:

The Nonhuman Rights Project is the only organization working toward actual LEGAL rights for members of species other than our own. Our mission is to change the common law status of at least some nonhuman animals from mere "things," which lack the capacity to possess any legal right, to "persons," who possess such fundamental rights as bodily integrity and bodily liberty, and those other legal rights to which evolving standards of morality, scientific discovery, and human experience entitle them.

They've clearly done their homework, in terms of their theory of the case and legal research supporting it. They have filed a petition for a writ of habeas corpus, which is a court order to bring a prisoner or some other person being detained before the court to address their legal rights. So if the court issues a writ of habeas corpus (Latin, "you have the body") for Tommy, regardless of the outcome of the case, they will have created case law that a monkey is entitled to this recourse previously reserved for humans. Tommy's lawyers cite a lot of case law about how habeas corpus was used for slaves, even when they were considered legal chattel. However, slaves were in fact human, so there was a fundamental failure of the legal system to protect humans, not a question of the protection of non-humans, even if slaves were considered sub-human at the time.

The Nonhuman Rights Projects has also established a $5,000 trust fund for the monkey Tommy and some of his primate friends. They did this because New York has a statute that allows pets to be designated as the beneficiary of a trust fund, to allow people to take care of their pets in their wills. In fact, most states have these laws now. In creating a trust for Tommy, his lawyers are saying that these trust fund animals are legal persons under New York law, at least for the purpose of the trust.

Imagine a trust fund dog somewhere, and an evil human trustee taking advantage of his riches -- perhaps the dog is being abused, but the trustee is hiding this fact to keep control of the trust assets. There would need to be a legal remedy to address this. But is it a writ of habeas corpus to produce the dog (monkey in this case) as a person, or is it something else? Is a rich hamster entitled to a writ of habeas corpus? The New York pet trust law does not declare the pets to be legal persons, just that the trust may exist for the care of pets. Perhaps as legal beneficiaries they will be accorded this status? Or should it be a different kind of writ, like a writ to produce chattel property or evidence in a case? Any litigators out there?

Tommy's lawyers are also asking for the writ to be issued on the grounds that in general the common law should recognize him and other chimpanzees as legal "persons". The common law is the evolving body of judge-made law that enables our legal system to adapt to new situations, apart from statutes enacted by legislators. This is the heart of their case and their ultimate objective. They present a score of affidavits from primate experts on the cognitive functions of chimpanzees to show that they have human-like brain capacity. Their hope is to get a legal ruling of common law "personhood" that acknowledges basic rights of life and liberty for Tommy and his brethren, which can be limited in terms of the rights of the monkey-person to reflect the extent of his mental capacity. They assert that like a mentally impaired person, the chimp would have legal rights as a person, but not have the full rights of a competent adult.

So let's get to the slippery slope. If the chimp is a legal person, would he be entitled to equal protection and other benefits of the United States Constitution? Citizenship? Right to bear arms, go to public school, vote? Of course this sounds like nonsense, but that's one side of the slippery slope argument. The creation of personhood as a legal fiction was done to allow us humans to form corporations, but the extension of rights to the corporation itself has resulted in the Citizens United case and money being free speech, so the slippery slope is real.

The other side of the slippery slope argument is that if chimps are legal persons, then why can't dolphins, dogs, and other intelligent animals get a ruling of legal personhood of a limited scope that fits their intelligence? It's not so far-fetched -- in India dolphins have been given some legal rights as non-human persons, namely to be free of captivity in marine sea parks like Sea World. When you read about how the confinement affects the animals, you have to be happy about this development.

However, the elephant in the room (sorry) is whether our legal system is meant for humans, period -- the rights of humans, and the duties of humans to treat animals humanely, as dolphins could be protected this way. The formidable jurist Richard Posner lays out his view that laws are for humans, in a Slate magazine debate with Princeton ethicist Peter Singer.

But what about the caveman in the Geico commercials? Does Judge Posner mean homo sapiens, or any hominid being of the genus homo, including homo erectus or homo neanderthalis, if somehow they were to show up?

Finally, the Tommy case raises the related matter of the significance of the words we use to designate our relationship with our pets, as words are very powerful. The old-fashioned term was that we were our dog's master. That sounds like slavery, so no one uses it much anymore, although it did imply that the dog needs to be under your direction and control, which seems to be lost upon some people today. Now mostly people say they are the dog's owner. Legally, that's correct, so it makes sense, and also suggests the direction and control piece of the equation. However, when you go to the vet, they call you the "mom" or "dad" of the dog. That to me is entirely ridiculous, as I'm the parent of my children alone, but it makes some people feel good, so who cares.

Lately you hear some people saying they are their pet's "guardian." That's interesting, as a legal guardianship or conservatorship is something that is extended to humans lacking capacity to act as adults. Use of the term suggests we have legal responsibilities towards our pet, which I agree with. However I don't agree that my dog can get a lawyer to revoke my guardianship, or whatever else flows from this concept.

I love my pets, but they're not my children, and they're not people in the natural sense. Whether chimps and pets will become people in the legal sense, we'll have to see. Your thoughts? It's interesting stuff.