Philosophers Help Fight for Chimpanzee Personhood
Seventeen philosophers co-authored and submitted to the New York Court of Appeals an amicus curiae brief in support of legal personhood for a pair of chimpanzees.
The chimpanzees, Tommy and Kiko, are clients of Steve Wise and the organization he founded, the Nonhuman Rights Project (NhRP). The chimpanzees, each believed to be in their thirties, have been abused and held in solitary confinement for much of their lives in New York, according to Big Think. The NhRP is trying to get the chimpanzees moved to an accredited animal sanctuary in Florida.
The NhRP’s legal strategy involves asking the NY Court of Appeals to grant the chimpanzees habeas corpus relief. The idea is to require that the chimpanzees be brought to court as part of a proceeding to determine whether they are, in effect, illegally imprisoned. The NhRP has submitted a memo to the court seeking an appeal of a previous decision declining to issue writs of habeas corpus for Tommy and Kiko.
A central issue in the decision of whether to grant habeas corpus relief to the chimpanzees is whether they are legal persons. It is on this issue that the philosophers wrote their brief. They argue that the court, in its previous decision, has failed to use a “consistent and reasonable definition ‘personhood’ and ‘persons.'”
We submit this brief in our shared interest in ensuring a more just co-existence with other animals who live in our communities. We strongly urge this Court, in keeping with the best philosophical standards of rational judgment and ethical standards of justice, to recognize that, as nonhuman persons, Kiko and Tommy should be granted a writ of habeas corpus and their detainers should have the burden of showing the lawful justification of their current confinement…
In this brief, we argue that there is a diversity of ways in which humans (Homo sapiens) are ‘persons’ and there are no non-arbitrary conceptions of ‘personhood’ that can include all humans and exclude all nonhuman animals. To do so we describe and assess the four most prominent conceptions of ‘personhood’ that can be found in the rulings concerning Kiko and Tommy, with particular focus on the most recent decision, Nonhuman Rights Project, Inc v Lavery.
The four conceptions of persons the philosophers take up are persons as (1) members in the biological taxonomic classification homo sapiens, (2) social contractors, (3) members of the relevant community, (4) possessing certain capacities, such as autonomy. They write:
Each of these different conceptions supports different reasoning regarding personhood. The first, species membership, is morally weak due to its arbitrary character. The other three, when properly understood, entail that Kiko and Tommy can qualify as persons. On these grounds we agree with the NhRP that it is unjust to deny Kiko and Tommy habeas corpus relief.
The brief, informally known as “Chimpanzee Personhood: The Philosophers’ Brief,” is over 40 pages long, and elaborates on each of these points.
The philosophers who authored the brief are: Kristin Andrews (York University), Gary Comstock (North Carolina State University), G.K.D. Crozier (Laurentian University), Sue Donaldson (Queen’s University), Andrew Fenton (Dalhousie University), Tyler M. John (Rutgers University), L. Syd M Johnson (Michigan Technological University), Robert C. Jones (California State University, Chico), Will Kymlicka (Queen’s University), Letitia Meynell (Dalhousie University), Nathan Nobis (Morehouse College), David Peña-Guzmán (California State University, San Francisco), James Rocha (California State University, Fresno), Bernard Rollin (Colorado State), Jeffrey Sebo (New York University), Adam Shriver (University of British Columbia), and Rebecca L. Walker (University of North Carolina at Chapel Hill).
In a description of the brief, two of its authors, Andrew Fenton and Syd M Johnson, say more about why they think it is important:
Why does it matter if the courts agree that Tommy and Kiko are persons? Right now, they are being held in solitary enclosures and are legally unprotected from being confined in this way even though doing so harms them. They are unprotected because under the law there are only persons or things, and Tommy and Kiko are not recognized as persons. As far as we know, their current owners are not breaking any animal welfare laws, so their solitary captivity seems perfectly legal. This is a fundamental flaw with animal welfare laws—while they can protect animals from some forms of outrageous abuse (starvation, neglect), they are otherwise silent about whether other important interests of animals are served, such as their freedom of movement, or their ability to socialize with others of their kind. Only persons have rights, including rights to bodily liberty. So, unless and until Tommy and Kiko are recognized as persons, they remain legal things lacking even the most basic rights, including the right to live as chimpanzees, with other chimpanzees.
Further information is here.
(via Spencer Lo)
Chimpanzee Tommy, caged.
I am deeply sympathetic to the spirit of this brief support its legal aims. I have no doubt that it is rigorously argued.
I would want to nit pick the claim that there are only four conceptions of human being worthy of serious consideration and I am immediately suspicious of the a priori claim that there *can be* no meaningful definition that functions as described. I’m having a hard time seeing how that claim could possibly be substantiated.
Hi Will, thanks for your comment. I want to make it clear that we don’t think that there are only four conceptions of “person” worthy of philosophical consideration. Rather, we say that in their decisions the judges used four different conceptions of “person” and that they used them in inconsistent ways. In the brief we examine each of those four conceptions and argue that one of them, species membership, is arbitrary (and the attempts to justify it dissolve into a capacities conception). We also argue that on the other three personhood conceptions the judges discuss Tommy and Kiko would count as persons.
I would strongly contest that “there are no non-arbitrary conceptions of ‘personhood’ that can include all humans and exclude all nonhuman animals.” Terry Deacon and Charles Taylor have both, recently, given somewhat compelling indications as to why, in their studies of language (succinctly, that only humans have what can properly be called language–other animals do not even have “primitive” languages, only speech); and the late John Deely gave most of his career to explaining the specific difference of human beings from all other animals. Boiled down to its absolute simplest formulation: all animals make use of signs, but only human beings are aware that they make use of signs. While particular individual human beings may not develop this capacity, this failure to develop is a consequence of material, developmental defect.
I think it’s terrible to treat animals as “things”, but I hardly think that classifying them as “persons” is the solution. The rush to efface genuine distinctions will quickly undermine our already-weakened ability to make them.
Kristen, that is immensely helpful in my understanding the claims here, which of course I have not read in full. Thank you for your time.
Hi Brian,
Thanks for these comments. Kristin’s response to Will will help, but, yes, there are other conceptions of personhood that can drive a wedge between some humans and both other humans and alloanimals. Apart from working with the conceptions found in the relevant Appellate Court rulings, we also are committed to not introducing conceptions of personhood that threaten the most vulnerable in our own populations. It is something of a recurring problem that conceptions of personhood that seek a wedge do so at the expense of some of our most vulnerable. To avoid such a problem, philosophers can sometimes find ways to get these vulnerable humans in as exceptions, but this is not an advance beyond what would concern us (or folks who more directly work in disability studies). Thanks again for your comment.
Andrew,
First, I have to object to your phrase of “seeking a wedge”. That implies an artificial, or forced, division. I would rather insist that the conception of personhood which I am advocating is based on observation of the reality.
Second, to prevent exposure of the most vulnerable, I hold that the humans who cannot exhibit the capacities in question nevertheless intrinsically possess the qualities which have been developmentally interrupted and therefore still deserve the protections of personhood. This is not “getting them in as exceptions”, but recognizing that their nature entails a certain respect despite its developmental interruption.
In other words, a human who fails to exercise the species-specifically human semiotic capacity fails through privation; to a non-human animal, the semiotic capacity cannot be deprived because it does not first belong.
Thanks for your reply.
Hi Brian,
Yes, there are important views that if something (or someone) has a “personal nature” or an “intrinsic capacity” to develop certain qualities or is of the essence of a person (even if it doesn’t currently display those person-like qualities), then that something or someone is a person. Such views are usually taken to imply that, say, human embryos and early fetuses, and perhaps even that permanently comatose individuals are persons.
The brief is largely silent on such views, since they weren’t really raised by the courts. And such views don’t rule out personhood for chimpanzees, since they are usually offered as sufficient, not necessary conditions for personhood. So we are arguing that, given a variety of other influential and plausible conceptions of personhood, chimpanzees meet the criteria.
Nathan,
Yes. Such views rely upon a teleological (or teleonomic) perspective within which alone a biological entity, being more than the sum of its material parts, can be understood. If one rejects the possibility of extra-cognitive telos, undoubtedly the “intrinsic capacity” views become problematic. So too any sort of normativity, for that matter, if the denial of extra-cognitive telos is carried to its conclusions.
The brief is largely silent on such views; because it dismisses them out of hand with its assertion that “there are no non-arbitrary conceptions of ‘personhood’ that can include all humans and exclude all nonhuman animals.”
That such views have regularly been employed as sufficient rather than necessary conditions for personhood does not mean that they cannot be considered necessary conditions. My point is precisely that the brief is advancing a monological position precisely where there ought to be a dialogue.
“Second, to prevent exposure of the most vulnerable, I hold that the humans who cannot exhibit the capacities in question nevertheless intrinsically possess the qualities which have been developmentally interrupted and therefore still deserve the protections of personhood.”
And what of cases where there is a genetic basis for the lack of the relevant capacities? There is no ‘developmental interruption’ in this case, as the genetic basis is present from conception onward.
Hi Brian,
Thanks for your thoughts. Whether or not some of the communicative practices of other animals are in some sense language is a contentious question and I think the science is still out on that. However, we don’t need to answer that question in order to observe that not all humans have the capacity to use language. This is why we claim, as you note, “there are no non-arbitrary conceptions of ‘personhood’ that can include *all humans* and exclude *all nonhuman animals.*”
As for whether personhood is the best way to think of the moral status of other animals, this again is a contentious question. However, in legal contexts we are constrained by the concepts that the law uses and in US Common Law there are only two options available–persons and things. When this is the choice available, do you still object to Tommy and Kiko (the two particular individuals whose interests are at stake) being treated as legal persons?
Letitia,
I don’t think the question of animal language is one of disputed idioscopic scientific investigation but of cenoscopic understanding. The study of animal communication, both in laboratory settings, controlled experiments, and in minimally-invasive field studies, is fairly extensive.
I would protest that “not all humans have the capacity to use language.” Not all humans have developed their capacities to use language–and some may, due to brain injury or other development deficiency be incapable of ever developing that capacity–but that is not the same as not having the capacity. Thus I maintain my objection to your claim.
I understand the constraints of the present legal system, and I applaud the attempt to attain better treatment of the animals; but I worry about the long term ramifications of the here-and-now expedient path. The move to protect Tommy and Kiko is good; but only within a context which seeks attaining a true and clear definition of personhood as well as protection of animal rights.
Thanks for your reply.
Dear Brian (if I may),
You wrote “and some may, due to brain injury or other development deficiency be incapable of ever developing that capacity–but that is not the same as not having the capacity.”
This is the crucial bit. It isn’t clear what it means to be incapable of ever developing a capacity but still have the capacity.
To follow up on Robert Jone’s point,
I understand if you have an essentialist view of humans and other species. – e.g., if only humans have souls, and non-human animals don’t, etc. or if you have to have a certain number of chromosomes, etc. to be human and have rights. Maybe your view ultimately rests on one of these sorts of views?
But if there isn’t some difference like this, then it seems problematic. What does it mean for an individual to “have the capacity”? Is it merely because a majority of other members of the species develop such traits (in this case, language) in the current environments that most are exposed to? how do we determine what counts as “normal environments”? Is it just statistically normal in the actual history, etc.
It is certainly possible, that due to a series of bad mutations (an environmental catastrophe, say), that most humans born with anencephaly. This would mean most humans would not develop the ability to use language.
The worry is, absent some story about souls, or divine creation, or essences, etc. it isn’t clear how to determine what “normal environment means”, other than “statistically normal”. But why should that bear such normative weight? That’s one thing that seems arbitrary.
Chris,
I do take something of an “essentialist” position, although that term has been so widely and variably used that I don’t think it is a reliable indication of much at all, any more. The reductive, simplistic caricatures are unhelpful, to say the least–such that “only humans have souls” or “you have to have a certain number of chromosomes etc. to be human and have rights”.
“To have the capacity” means: given the environment in which the intrinsically-driven development of the organism is able to flourish according to its proximate potentialities and absent any interfering influence, that ability will manifest. This is what determines the “normal environment”; which is only incidentally the statistical majority. Thus your (norm-presupposing) case of “bad” mutations is one in which the environment prevents the ability of the individuals to flourish according to the “natural”, that is, intrinsically-driven (even if extrinsically-influenced), development of the organism.
Which, further, seems to me to answer why it has a normative weight.
Hi Brian,
Thanks again for the reply. I don’t think it speaks to what concerns us. Note that you speak of privation, a lack, in the individuals who nevertheless ‘count’ because they have a potential that was interrupted. Two things jump out. This inclusion of some humans despite-a-lack cuts at the heart of what some (including philosophers of disability) find objectionable. This reads as inclusion despite them. It gets worse because there will be some who were not on a developmental trajectory that, over time, includes the to-be-specified linguistic capacity. I agree that this is about perception and how we see others around us. It’s important, I think, to see who folks are and value them for who they are, not who they might have been, and that requires more than an inclusion despite them.
To extend Andrew’s point just a bit, to claim that “a human who fails to exercise the species-specifically human semiotic capacity fails through privation” is to cast the discussion in somewhat essentialist terms, terms that—as Andrew points out—most philosophers of disability reject. To ontologize disability as a privation is not descriptive, but normative. In framing disability in this way is to characterize disability as something in need of repair, in need of a cure. This “medical model”, that sees disability as a kind of biological drawback requiring intervention, is a paradigm that philosophers of disability persuasively argue is exclusionary. Further, regarding interrupted potentials and moral status, that’s certainly a can of worms. Are “natural” potentials the only ones that impact moral status? How about possible technological potentials? Interrupted potentials–moral status arguments are fraught.
Robert and Andrew,
It’s not “despite a lack” but “because of an essence”. Recognizing the lack is critical if ever we are to be able to overcome the lack… unless you wish to commit the metaphysical fallacy of insisting that two things can be equal (in either numerical or virtual quantity) precisely in the regard that they differ, in which case we cannot even have a conversation.
I’m afraid that I think reality is itself normative, though (and so too, therefore, accurate descriptions of it). I guess that makes me an outdated bigot, or something, though, so it’s probably for everyone’s best if I just walk away.
Hi Brian. You wrote, “I guess that makes me an outdated bigot, or something, though, so it’s probably for everyone’s best if I just walk away.” That’s your prerogative, of course, but no one here called you an outdated bigot. I thought the conversation was interesting and proceeding in a respectful manner, and you’re welcome to continue to take part, should you be so inclined.
Thanks, Justin. Truth is that the gulf between my position and that of my interlocutors here is probably not going to be bridged in the comments section of any website so–if I could suggest that my last line there be taken as tongue-in-cheek and that there are many legitimate alternatives to the position the brief and its defenders have offered–I’d like to bring an end to my participation in the discussion.
In spite of myself, I returned; and not only returned, I thought it best to lay out my ideas in a more thorough fashion. In particular, Gary Comstock’s request resonated. In case anyone is interested, therefore: https://semioticthomist.wordpress.com/2018/03/06/natural-personhood/
Why should it be a problem that essentialism implies that disability is something in need of repair? I take it to be rather obvious that disabilities *are* bad things that we should try to repair. Someone who has one leg rather than two is objectively worse off than someone with two legs, etc. To insist otherwise is just silly.
Indeed, that essentialism is able to account for disability in these terms should be taken as a point in favor of it.
Ahhh, the argument from silliness. My students use this all the time, and it is devastating in its effectiveness.
Well, you’re not helping. If you don’t think it’s silly, then I would invite you to explain why. Because, on the face of things, the idea that disabilities aren’t bad things that we should try to repair does seem rather silly.
Here are a couple of papers that argue for the position that disabilities are not necessarily simply bad things in need of repair:
https://philpapers.org/rec/BARVDC-2
https://philpapers.org/rec/CAMTCR-3
There is a fair bit of literature on this subject if you are interested (there is a Disability and Wellbeing category on Philpapers) I’m not expert enough to provide a summary argument for you, so my apologies for just digging up links instead. But it’s better than nothing if you are genuinely interested in the arguments. Hopefully someone more qualified will turn up.
Hey Tim,
So I’m no disability scholar (and I’m pretty new to the philosophy game as well!) but here’s my first shot at considering this issue.
There are obvious defects that hinder human flourishing. For instance, if a healthy individual catches a flu, the flu is a defect that ought to be repaired. It prevents her from living her best life. It’s commonly understood that the flu is such a defect, and that it disables us.
Another example might be losing your arm. You now only have one, and it’s a defect that disables you, insofar as it prevents you from participating fully in some aspects of life. It might be best rectified by a prosthesis (or maybe one day growing a replacement.)
However, there are other variations in the human experience that we may culturally consider ‘defects’ but are not obviously such. They disable our ability to live the “typical” life, but given that the typical life isn’t necessarily the highest or best one, perhaps that’s indeed a positive thing.
Consider autism. An autistic individual struggles in certain elements of typical living (ie, socializing). However, they may excel at other parts of living, and improve the world for the rest of us. If autism is considered a defect to be repaired, then we spend our time trying to find some magic genetic fix that changes the *core* of who that human is. We actually limit the diversity of the human experience, and we may lose some fundamental and important good.
Because losing a limb and autism both require additional resources on the part of society to enable these individuals to participate in some aspects of “typical life”, we can classify them together as disabilities. However, deciding that both of these ought to be “repaired” seems like a big problem to me.
[Defect is a difficult word to use, so I appreciate it if others have more apt vocabulary for the idea I’m trying to describe.]
Hi Tim,
As you can see from other comments as well, there is a significant division in the philosophical community on how to adequately respond to concerns of philosophers of disability and disability studies scholars about the way those without disability talk of, or think about, those with disability.
Here’s a quote from your initial comment: “I take it to be rather obvious that disabilities *are* bad things that we should try to repair. Someone who has one leg rather than two is objectively worse off than someone with two legs, etc.”
Two things jump out. Note the “we” in the first sentence. Who is that? Does that “we” include folks with disabilities? If it does, it won’t be so obvious within that diverse group that all of what we call disabilities *are* bad things that we should try and repair. Instead of the leg example, though that will work, think of those who are deaf. There is a large literature, written by those defending Deaf Culture, who would object to seeing ‘deafness’ in the way that you are describing. This self-advocacy site discusses some of the complications I am highlighting (http://cad.ca/issues-positions/deaf-culture-vs.-medicalization/). This point will also apply to those self-advocates on the Autism Spectrum who will remind folks that there’s not a hidden, non-Autistic, self just waiting to come out. These self-advocates see their Autism as a part of who they are. To approach Autism as a lack or privation is not unreasonably seen by these advocates as an attack on their identity and self-worth. This self-advocacy site discusses some of the complications I am highlighting (http://autisticadvocacy.org/about-asan/position-statements/).
For the second sentence: In bioethics there is an increasing awareness of the difficulty of judging when someone is ‘objectively worse off’ in areas that touch on disability. There are a number of considerations (which I’ll present as questions) that complicate such a claim. Does it matter if the individuals ‘we’ (and who is included in the ‘we’ here will be important) are talking about do not think of themselves as ‘objectively worse off’? Before making judgments of who is ‘objectively worse off’ is it important to first consider what, in the environments in which we live and move and have our being, can make certain differences of embodiment dis-abling? If this reflects an ‘objective-list’ approach to well-being, what is the standard that is being used to create the list: is it human flourishing, an exemplar who embodies what is objectively best or optimal, or, perhaps, reproductive fitness? If the ‘we’ mentioned throughout includes those whose differences of embodiment are dis-abling, I suspect that you can see that your claims are no longer “obvious.”
You should ask Elisabeth Barnes why she’s so silly then. (Perhaps you could also explain why you think this is silly and not shift the burden of proof on others.) You can disagree with her view, but dismissing it as just obviously silly is not exactly the epitome of philosophical reasoning. For instance, I find your views morally abhorrent and very weakly supported, but I wouldn’t dismiss them as silly. Remember, orthodoxies…
There is not only a “large literature” advocating for viewing disabilities as differences rather than deficiencies, there is a broad cultural shift towards effacing all normative standards. The television channel TLC has more or less made this the bread-and-butter of their programming (if you don’t believe me… watch “My Big Fat Fabulous Life”, tonight at 8et!).
As Joan’s post exhibits, however, this results in tortured rhetoric. Disability, defect, deficiency. Someone who is deaf is not someone who has an alternative capacity to hearing. They may develop their *other* capacities in surprising and impressive ways to compensate for the absence of hearing, but it is nevertheless a compensation. Someone who is autistic may develop through that autism some amazing gifts; but this is because of their essential humanity, of an essential capacity which the autistic condition cannot eradicate and to which, therefore, the autistic condition can be subordinated as a means to an end. Yet to say that there are no specific challenges which go with autism, challenges which put that person at a disadvantage in comparison to their “statistically average” peers is patently untrue; and I’m sure that most if not all people with autism would agree with me.
That is: if you can’t have your cake and eat it too, you can’t be disadvantaged and equal at the same time, in the same regard. An autistic person is certainly equally human, in that they have a human essence, but their capacities have been impaired–perhaps allowing for other capacities to be further developed, perhaps not.
I understand that no one likes to be considered inferior to another. We’re particularly touchy about that in the U.S., given the long, sad, stupid history of racism and slavery. But racial discrimination is wrong because it mistakes something totally incidental (typically skin color) to be significant of something essential (human nature). To say one woman is essentially inferior to another because of her skin color is a gross intellectual error. To say that I am inferior to Lebron James in basketball is simply recognizing a truth; to say that being a healthy weight is better than being obese is, too, as is saying that it is better to be able to hear (ignoring what it is one hears) than not to be able to hear, better to be able to see than not to be able to see, and so on.
[I know, I know; I’m “back”. Between Justin and Gary Comstock I was persuaded to give it another go. See the link above.]
Brian,
It seems to me that you have two important assertions in your discussion of autism as an example of your broader point:
A. Any gifts a person with a disability exhibits are attributable to their ‘essential humanity’. In other words, there are no benefits to being having a disability like autism that are due to autism.
B. There are challenges that are due to having a disability like autism.
With respect to A, what warrants this claim? It certainly runs contrary to the reported experience of many people with autism, who experience some specifically autistic traits as positives, where those traits are indeed distinctive of being autistic (we are talking even traits that are considered diagnostically distinctive, such as the ‘special interests’ described in the DSM criterion B.3).
With respect to B, this is certainly true, but missing the point a bit. First, I don’t think I have ever heard anyone deny that autism involves challenges specific to being autistic. But, while autistic folks might have distinctive challenges in certain areas, having challenges or limitations itself is not distinctive (at least, so the argument goes, not in a way that would warrant the judgment that autism is more than a mere difference). So, B makes argumentative headway mainly in tandem with A. If we accept both, then it seems like only the challenges that come along with autism are distinctive of it, whereas to be a human being generally comes with a mixture of limitations and advantages. On the other hand, If there are distinctive advantages that result from the neurological difference of being autistic, then alliistics will have their own ‘challenges’ inasmuch as they lack these advantages. But then it seems unclear why autism is a disability and allism isn’t. Indeed, some of these deficits in the autistic case look very much like a two-way street. Take the impairment in cognitive empathy that is commonly taken to be characteristic of autism. Given that autism is a neurological difference that affects how one thinks in many ways, it should not be any surprise that autistics would have trouble with cognitive empathy when it comes to allistics. But this is a two-way street: allistics frequently do not understand how autistics think, so it seems like we can attribute to allistics a deficiency in cognitive empathy as well. Indeed, this is an experience that many autistics find a great deal of frustration with: autistics are deficient for not understanding allistics, but when allistics do not understand autistics, this is seen as no deficiency on their part at all.
abcdefgodthåb,
Being blind might very well enhance my hearing. Being socially-unconcerned might very well enhance my focus on a topic for which I feel a strong passion. But just as hearing is not a property of being blind, so too focus, as such, is not a property of autism. A negative may clear the way for a positive, but that does not make the negative itself a good, nor even the primary cause of the positive. Moreover, I doubt anyone would consider the positives of level 3 autism to outweigh the negatives; and if autism itself were the cause of the positive, then shouldn’t those with a more profound case of autism have a more profound instance of the positive?
In other words, I think it prudent not to oversimplify the causality at work in attempting to analyze the positives and negatives which follow from disability… or from anything, really.
That those without autism fail to understand how autistics think is not a failure of their capacities, but a failure of actions; either presuming to know what one does not, or through a lack of experience. That is, being without autism poses no special challenge to understanding autism compared to understanding any other lived experience in which one does not directly share oneself. To develop empathy for the autistic, we typically need some prolonged exposure to life with the autistic.
Finally, that no one denies autism has unique challenges is kind of more or less my point. There is a prevalent tendency today to claim status based on the degree of one’s challenge compared to “normal” people all while insisting upon being equal with “normal” people. There is a real metaphysical impossibility here that I would insist everyone take a little time to contemplate.
Tim, does that “etc.” mean that three legs are better than two, and four better than three? If not, then two legs being better than one seems to rely on humans being essentially bipedal. And if that’s right, then saying “that essentialism is able to account for disability in these terms should be taken as a point in favor of it” is begging the question.
@ Tim:
I’ve found William Peace’s blog very helpful for understanding some of these issues:
http://badcripple.blogspot.com/
Why must these two sets of criteria coincide: criteria by which human beings merit treatment as persons (say, generic abilities of rationality and language use) and criteria for inclusion in the set of persons (say, having human beings as parents)?
If we allow distinct criteria, we can still be open to issues of nonhuman animal welfare and “humane” treatment of such animals, without being tied to the notion that chimps (or whatever) are legally persons. The problem ultimately seems to be the ham-handed division of the world in to persons and things (the same logic that drives courts to count corporations as persons).
Michael’s comments are close to on-target here. The problem of the case is that it pivots on a set of concepts about personhood that are not well-behaved with respect to sorting out morally-relevant issues in law. Part of the problem is legal precedent involving the term “person”; part of the problem is failure to see that law already has ruled that such precedents are not always decisive with respect to the law and non-human animals. The fact that people (denoted as held guilty) have been convicted of felonies in mistreating (biologically defined) non-human animals should have some standing as precedent. Either those convictions are based on some moral standing of the creatures affected or some legally heinous defect in the characters of those so convicted that does not consider the creatures affected. Perhaps the amicus briefs could direct legal attention in such directions in addition to showing that focus on personhood ain’t gonna cut it.
As an interested reader of this thread, let me join Justin in inviting Brian to stay. Brian, you represent a position that many of my students have and yet they struggle to articulate it. Hang around and if you see an opening, please continue to defend it. Your interventions have already helped me to see better how I can help them explain themselves (even though I wouldn’t, after Hull, 1965, call essentialism a legitimate alternative to the position we take in the brief).
Thanks, Gary. I’ve not read Hull’s work (which seems largely oriented towards dismantling essentialism), though I can say a quick glance shows a paucity of sources in his work, which, I suspect, means he’s attacking something of a straw man. I have, at any rate, put forward my own position a little bit more thoroughly (only a tiny bit, though), here: https://semioticthomist.wordpress.com/2018/03/06/natural-personhood/
Enjoying the discussion, especially Brian’s comments.
In many European countries we have the concept of “species-specific animal welfare” (artgerechte Tierhaltung in German). This overcomes the limitations to use inadequate terms. I have followed this question for years. The US courts are not taking an essentialist stance btw, since the are natural persons and legal persons. And chimpanzees are neither the one nor the other.
Thanks for this. I’m not quite sure what you mean by natural persons. If no chimpanzee is a natural person then I assume that there are many members of our own species who aren’t either, right? I’m not sure what criteria are being used here.
Letitia, in legal language, you and I are natural persons, company x and NGO y are legal persons (they can act like a person, although it is a sum of persons). That’s all.
The way the chimpanzees have been treated is awful so with Brian I applaud the sentiment behind the memo; but also, like Brian, I find the position argued for pretty implausible. I find it implausible partly because it gets wrong results, indeed, offensive: the way most chickens are treated in farms is pretty bad, but it doesn’t compare to how terrible it would be if humans were treated that way. An intuitive reason to explain why, is that humans are persons, deserving of a kind of respect that other animals are not. That explanation is no longer available on the view proposed. That seems to me a decisive reason to reject it.
But I also find the dialectic pretty weird: Why is the defender of the view that animals are not persons supposed to be able to provide a DEFINITION of personhood (that rules out animals?) Isn’t one of the main lessons of philosophy in the past something something years that we can’t define basic categories (knowledge, good, rightness, essence, etc.)? Person seems as basic as any of these in the moral realm.
I think that we can rely, to some degree, upon intuition to help us notice that something is different. But I would resist the impulse to just say, “We intuitively recognize that X is not Y” and leave it at that; and the impulse to say that we can’t define knowledge, good, essence, person, etc. That doesn’t mean we’re going to have a Porphyrian taxonomy of true, self-evident principles which found subsequent genus and species definitions; but rather that definition is a process of specification which aims at progressively unveiling what things really are. This requires investigating and clarifying the intuitively-grasped distinctions we encounter: we see that animals are not like humans, and wonder why–and pursuing that wonder unveils an awful lot to us.
Hi grad student,
Thanks for your thoughts. So, if you read the brief you’ll see that our main complaint is that the courts equivocate and slide between different conceptions of personhood that have different implications regarding the personhood of Tommy and Kiko. At no point do we say or even imply that all animals are persons. Instead we go through the conceptions of personhood that the courts appear to be employing and identify whether the conceptions are plausible and, if they are plausible, whether chimpanzees, like Tommy and Kiko measure up. It’s also important to note that Tommy and Kiko are chimpanzees, not chickens. Humans are closely related to chimpanzees and so if there are evolved traits that are relevant to human personhood (and I’m inclined to think that all of our traits are in an important sense evolved) then its not obvious that our close relatives won’t have them too. It’s an empirical question–we need to get clear on the theoretical concept, operationalize it, and look.
When it comes to what’s intuitive, I think intuitions differ. I just listened to a talk on Mi’kmaq ontology yesterday that identified all animals as persons. Now maybe the Mi’kmaq scholar I was listening to means something different by “person” but figuring out what the word means is precisely what’s at stake. I don’t find it obvious, nor do I find any particular position intuitive and given how often I’ve found my intuitions to be wrong I would be reluctant to rely on that anyway.
If a slave is a person who is owned by another person, and chimpanzees are persons, then owned chimpanzees are slaves. From a legal point of view, this would presumably be an unwelcome conclusion, and would be even less welcome if personality extended far enough into the animal kingdom. But it seems best to bite the bullet here, regardless of the comparative worth of Socrates’ dissatisfaction, and just accept that owning a chimpanzee is wrong, since otherwise we would have to go down the path of making arbitrary distinctions between either sorts of persons or sorts of slavery.
Hi Tim,
Although in global history people of all races have been enslaved, in the American context (and here I mean the context of the Americas) slavery historically and in the imaginary is highly racialized. Moreover, although the racialization of New World slavery happened before scientific racism came on the scene, the role of biologists in naturalizing racial hierarchies that justified the enslavement of African people cannot be ignored. It is a sobering lesson in the capacity of scientists (and presumably the rest of us) to channel predominant bigotries and deceive themselves (ourselves). The particular character of anti-Black racism inferiorizes humans of African descent by treating them as subhumans or nonhumans (despite the manifest incoherency of this). This means that the particular character of anti-Black racism is animalizing. Because of this history in the Americas one cannot compare the plight of nonhuman animals with slavery without in some sense pouring salt in this open wound of past and continuing racial injustice. That is why the suggestion that chimpanzees are slaves is worse than unwelcome, it can be quite damaging.
The problem is that currently US law gives us two types—things and persons. Things can be owned. At the present moment, legally, persons cannot. Whether the previous legal regime where some humans could legally be owned is best thought of as the ownership of persons or denying some humans their personhood (at least in some degree) is a question for historians and legal scholars. The only way legally available to put a stop to owning chimpanzees when they are currently owned is through denying that they are things which entails claiming that they are persons. (Another option is waiting for legislative change.)
I know that these conversations are difficult but especially given that we are at a time where white supremacy appears ever more prevalent it is important that we not be coy and that we take pains to disrupt racist narratives and imaginaries wherever we see them.
Hi Letitia,
NhRP has pressed a similar argument in the case of orcas at SeaWorld, but I do regret proposing an inflammatory example.
The main point is just that if the chimpanzees were considered persons, then laws applicable to persons become applicable to them, often with undesirable effects. To take another example, persons born in the United States are citizens: should it then be illegal to return them to their natural habitats if they are capable of surviving there? Laws framed in terms of persons would have to be clarified and a considerable amount of litigation would appear in cases where it was decided to treat one class of persons (chimpanzees) from another class of persons (humans). These costs would be incurred in addition to the loss of value to present and future owners of chimpanzees, which would obtain equally if ownership of chimpanzees were simply outlawed. Since the benefits of the two approaches are presumably the same, in the long run, ignoring differences in the short run costs of the two approaches, the pragmatic thing to do is pursue legislation…
Unless either the long run benefits are markedly different, or the metaphysical cases for the personhood is clear.
“To take another example, persons born in the United States are citizens: should it then be illegal to return them to their natural habitats if they are capable of surviving there?”
If I’m understanding your concern, this may help: habeas corpus is reserved for cases involving unlawful imprisonment and detention. Those who enter the United States willingly and who are not being held unlawfully would not come before the courts with a request for release on the grounds of habeas corpus. In its application to human cases, this would not change.
(The use of “natural habitat” should also be flagged here)
Imagine a scenario where a child was held in confinement and socially isolated since birth. Further imagine that this child suffered lasting physical/emotional/developmental difficulties. Her release may be sought through this channel (HC), but if the consequence of her confinement severely impacted her she may require a level of care that would not be met if we simply reintroduced her into society as an adult: “Here! Get a job and an apartment. Welcome to New York!”
More plausible is this: we would seek a space where she could thrive: a place that met her needs and allowed a level of socialization and appropriate care.
I hope I am not mischaracterizing your argument. Also a disclaimer: I am not a lawyer, so I don’t know the intricacies of habeas corpus, but on its face this analogy seems more appropriate.
The concern I have is that it seems like laws framed in term of persons must be applied to the same effect in all cases unless exceptions are provided for by law. For instance, if the government could dump citizens into foreign jungles if it seemed to the government to be in their interest, that would be intolerable if the citizens were human persons born in the US but not if they were chimpanzee persons born in the US.
It would be interesting to know if this concern is invalid.
I am having a hard time seeing the problem, Tim.
Personhood entitles entities to rights, responsibilities, protections, etc, but it is certainly not the case that every person has the same relationship with those rights, responsibilities, protections, etc. For example, the government of Canada would not deem me a crown ward, as I am an adult and am capable of caring for myself, but it is often the case that guardian-less children are placed in the legal custody of the government. Non-persons, however, are not made wards of the state. In the Charter we give explicit right to ‘persons charged with an offence’ and to ‘witnesses’, which don’t apply broadly to everyone who is a person unless that person is also charged with an offense or the witness of one. We also distinguish between the regional linguistic rights of persons. In New Brunswick, the law guarantees that francophone persons and communities have an equal right to education and cultural institutions as anglophone persons and communities. This is not the case in any other province, however, and it is not the case anywhere in Canada that allophone persons have a right to educational and cultural institutions.
We absolutely do, and often, distinguish between the rights, protections and responsibilities affording to different persons on a contextual basis. I don’t see how there would be an issue distinguishing between which sorts of people have the right not to be dumped in jungles.
I will not address whether or not we should be leaving chimps in jungles, though I believe there is a lot more to say about that.