A little earlier this year, there was a case brought before the New York courts concerning a chimpanzee called Tommy: the matter was the lawfulness of keeping Tommy confined.  Acting on Tommy’s behalf was an organisation called the NonHuman Rights Project.  The legal documentation filed is available here.  The basis of the case was not so much that Tommy was being harmed by his treatment as that he was wronged by it: to keep a chimpanzee in such conditions s a violation of certain rights, and ought not to be allowed granted a plausible application of habeas corpus, even the most comfortable of cages still being a cage – or so the claim went.  Essentially, the legal question under consideration was this: does a chimpanzee have any of the legal rights that a human has; and, if so, which?

Perhaps predictably, the suit was rejected; Justice Karen Peters found that habeas corpus did not apply to chimpanzees, and the other judges agreed.  Whatever legal restrictions there may be on primates, they do not fall under the rights paradigm.

The reasoning here strikes me as being a touch… well, wonky.

A significant part of the argument revolves around what kind of thing counts as a person, and so ought to have the rights of a person.  It’s not difficult to see why this is important in bioethics, because it’ll impinge on what happens in laboratories, and – potentially – on what happens in a human uterus or neonatal unit.  If the definition of “person” extends to chimps, the suit goes, then habeas corpus should apply.  If it doesn’t, then there’s no reason to suppose that it would.  The judgement is that personhood does not apply to chimps.  The term has, the court found, never been explicitly defined; and habeas corpus relief has never been granted to any nonhuman.  This wouldn’t mean that it shouldn’t be; the question then would move on to examining the ought question.

For Peters, there is no ought here, and this conclusion is based on an appeal to a particular definition of “person”.  It’s worth quoting the ruling at length here:

According to petitioner, while respondents are in compliance with state and federal statutes, the statutes themselves are inappropriate.  Yet, rather than challenging any such statutes, petitioner requests that this Court enlarge the common-law definition of “person” in order to afford legal rights to an animal. We decline to do so, and conclude that a chimpanzee is not a “person” entitled to the rights and protections afforded by the writ of habeas corpus.

[… A]lthough the dispositive inquiry is whether chimpanzees are entitled to the right to be free from bodily restraint such that they may be deemed “persons” subject to the benefits of habeas corpus, legal personhood has consistently been defined in terms of both rights and duties.  Black’s Law Dictionary defines the term “person” as “[a] human being” or, as relevant here, “[a]n entity (such as a corporation) that is recognized by law as having the rights and duties [of] a human being” (emphasis added).

[…]

Case law has always recognized the correlative rights and duties that attach to legal personhood […] Associations of human beings, such as corporations and municipal entities, may be considered legal persons, because they too bear legal duties in exchange for their legal rights.

[…]

Needless to say, unlike human beings, chimpanzees cannot bear any legal duties, submit to societal responsibilities or be held legally accountable for their actions.  In our view, it is this incapability to bear any legal responsibilities and societal duties that renders it inappropriate to confer upon chimpanzees the legal rights – such as the fundamental right to liberty protected by the writ of habeas corpus – that have been afforded to human beings.

Now,  I wonder whether that actually hits the target, since (as is admitted) a big part of the question is not whether the currently-accepted definition of “person” is correctly applied, but whether the definition is the right one in the first place.  Pointing to the way the term has and is applied won’t answer that.  Indeed, the ruling seems to take pains to avoid answering that part of the deposition.  If Smith says that the law is inadequate, Jones can’t demonstrate its adequacy simply by reciting it.

But let’s put that point to one side.

Part of the reasoning is in tune with the dogma that you can’t have rights unless you also have responsibilities.  I’ve never seen a particularly good defence of this dogma.  I can see how one might have rights, and I can see how one might have responsibilities, but I’m unsure how the former depends on the latter.  And I can see how Smith might have responsibilities based around Jones’ rights – but that isn’t what’s meant by the sort of (usually quite right-wing) person who blathers on about rights implying responsibilities.  But I digress.  Let’s allow that it’s true that you can’t have rights unless you can have duties imputed to you.

Obviously, that gives us a problem when it comes to young humans – certainly to neonates and (at least if you’re the sort of person who thinks that a foetus has rights) at least some of the unborn; but also quite probably to most children.  I don’t know at what age it makes sense to start imputing duties to children; I’m not sure it really matters here, though: all that matters is that there are some children to whom it makes little to no sense to impute duties but to or in whom we do normally assign or recognise rights – and, as an additional twist, a good number of them would probably come out as being less intellectually sophisticated than the chimpanzees in or to whom the court was unwilling to recognise or assign comparable rights.

So how can we square that circle?  For Justice Peters, the answer is fairly straightforward:

To be sure, some humans are less able to bear legal duties or responsibilities than others. These differences do not alter our analysis, as it is undeniable that, collectively, human beings possess the unique ability to bear legal responsibility. Accordingly, nothing in this decision should be read as limiting the rights of human beings in the context of habeas corpus proceedings or otherwise.

Now, it’s tempting to dismiss this as ad hoc speciesism: having rights depends on being capable of having duties, unless it doesn’t; if you happen to be a member of a species of legal duty-holders, then – phew! – it’s all peachy.

While there might be speciesism here, I’m not sure that that’s necessarily the only interpretation.  A more generous interpretation would be that Peters was talking specifically about legal rights, and linking them to legal duties, which we do assign only to humans.  However, what still needs explaining is how an entity with neither rights nor duties can come to be a rights-holder; Peters’ explanation appears to ride on the idea that a non-duty-holding human is of the right kind – it’s the same sort of thing as rights-and-duties holders, and so counts as a rights-holder by proxy.  A chimp isn’t a member of the right kind, though, so doesn’t qualify.

One might be inclined to think that, at least on a sufficiently narrow view of law, that’s coherent: laws can stipulate whatever they like.  It would also answer the slavery point in the NHRP’s submission:

Common-law courts, whose decisions are part of New York law, have issued writs of habeas corpus for slaves[,] who were not legal persons at the time…

After all, slaves had legal duties; and if having duties makes you a rights-holder, this meant they had rights – including habeas corpus – as well.  Chimps don’t have duties, so, if it’s true that you only get rights on the basis of duties, they can’t have rights.

But I’m not sure that this line works in practice.  For one thing, even if all right-holders are duty-holders, it doesn’t follow that all duty-holders are right-holders.  (In just the same way, even if all squares are rectangles, it doesn’t follow that all rectangles are squares.)  So if slaves did have rights after all, there seems to be something else going on – and if it can be going on in respect of slaves, then why not in respect of chimps?  At the very least, that something else would have to be quite carefully defined.

For another, it seems unlikely to me that there’d be many people inclined to accept or welcome rights as a moral or legal concept who’d be satisfied with them being a spin-off from duties.  Taking rights seriously means, for most, that rights are there and it’s up to the law to protect them, perhaps defining others’ duties in the process.  (Again, this is the only sense I can make of the claim that you can’t have rights without duties.)  And so we might be inclined to dismiss Peters’ reasoning as being… well, as being arse-over-tit right from the start.  Now, Peters might want to bite the positivist bullet here and reassert the legal definitions of rights and duties: but this brings us back to the question of whether the legal definition is adequate; even if you think that law is one thing and morality another, it doesn’t follow that law is and ought to be immune from scrutiny, and some of it might be moral scrutiny.

And did slaves really have duties in any meaningful sense anyway?  For sure, there was a long list of things for which they could be punished by the law… but whether that establishes a duty is another matter entirely.  Legal retribution could be a cover for something else.  A slave may have been punished for escaping; but I think we’d be reluctant to say that he had a duty to stay put, except in the most formal and unrealistic sense of the word.  And, anyway, even on the formalistic sense, the wheels fall off fairly quickly: suppose I confine my slave to a shed, and the law backs me up on this.  On this interpretation, the slave has a duty to stay in the shed.  But, since having a legal duty is supposed to generate legal rights – presumably, including habeas corpus – it would seem to follow that he has a right not to be confined because, and only because, he has a duty to accept that confinement.  I take that to be absurd.  The absurdity can be resolved if we admit that the legal right doesn’t depend on the duty – either formalistically or non-formalistcally understood – to begin with.  And in that case, Tommy might still have rights that the law ought to recognise.

So I’m inclined to think that the sufficiently narrow view is artificially narrow.  It seems to devolve either to a potentiality argument (human newborns are potentially duty-holders), or to ignore the central part of the NHRP’s claim, which is precisely that the extent of legal protection afforded to chips is insufficient.  People who think that rights have an important role to play in explaining what law is, and what law should be, are unlikely to be satisfied with the role they’re given in the ratio here.

It’s a strange judgement.