1228. Considering the Humanity of Nonhumans

By James Gorman, The New York times, December 9, 2013

Elephants, chimpanzees and some cetaceans have shown that they can recognize themselves in a mirror. Photo: James Hill for the New York Times.

What is a person?

You probably take them every day, but do you know what vitamins really do? Can an ape be declared a person — legally speaking? When should you get back behind the wheel after breaking a bone?

“Beings who recognize themselves as ‘I’s.’ Those are persons.” That was the view of Immanuel Kant, said Lori Gruen, a philosophy professor at Wesleyan University who thinks and writes often about nonhuman animals and the moral and philosophical issues involved in how we treat them.

She was responding to questions in an interview last week after advocates used a new legal strategy to have chimpanzees recognized as legal persons, with a right to liberty, albeit a liberty with considerable limits.

The Nonhuman Rights Project, an advocacy group led by Steven M. Wise, filed writs of habeas corpus in New York last week on behalf of four captive chimpanzees: Tommy, owned by a Gloversville couple; two at Stony Brook University; and one at the Primate Sanctuary in Niagara Falls. The lawsuits were dismissed, but Mr. Wise said he planned to appeal.

He believes that the historical use of habeas corpus lawsuits as a tool against human slavery offers a model for how to fight for legal rights for nonhumans.

His case relies heavily on science. Nine affidavits from scientists that were part of the court filings offer opinions of what research says about the lives, thinking ability and self-awareness of chimpanzees.

Mr. Wise argues that chimps are enough like humans that they should have some legal rights; not the right to vote or freedom of religion — he is not aiming for a full-blown planet of the apes — but a limited right to bodily liberty. The suits asked that the chimps be freed to go to sanctuaries where they would have more freedom.

Richard L. Cupp, a law professor at Pepperdine University in California who opposes granting rights to nonhuman animals, described the legal strategy as “far outside the mainstream.” He said in an email, “The courts would have to dramatically expand existing common law for the cases to succeed.”

Lori Marino of Emory University, who studies dolphins and other cetaceans and is the science director of the Nonhuman Rights Project, said it “is about more than these four chimpanzees.” Mr. Wise, she said, “sees this as the knob that can turn a lot of things. It’s potentially transformative.”

She said she was under no illusion that rights for animals would be easy to gain. “It may not happen in anyone’s lifetime,” she said.

The science of behavior is only part of the legal argument, though it is crucial to the central idea — that chimps are in some sense autonomous. Autonomy can mean different things, depending on whether you are talking about chimpanzees, drones or robot vacuum cleaners, and whether you are using the language of law, philosophy or artificial intelligence.

Dr. Gruen sees it as a term that is fraught with problems in philosophy, but Dr. Marino said that for the purposes of the legal effort, autonomy means “a very basic capacity to be aware of yourself, your circumstances and your future.”

Science can’t be decisive in such an argument, as Dr. Gruen points out, but what it can do is support or undermine this idea of autonomy. “If you form the right kinds of questions,” she said, “there are important answers that science can give about animal cognition and animal behavior.”

Dr. Marino said that science could “contribute evidence for the kinds of characteristics that a judge may find to be part of autonomy.”

Dr. Gruen, Dr. Marino and Mr. Wise made presentations at a conference, Personhood Beyond the Human, at Yale over the weekend. They spoke in interviews related to the court case during the week before the conference.

The kind of science that supports the idea of chimpanzees as autonomous could also support the idea that many other animals fit the bill. There are affidavits related to cognitive ability, tool use, social life and many other capabilities of chimpanzees, but there are questions about how pertinent each line of evidence is.

“Is that important for being a philosophical person — tool use itself?” Dr. Gruen asked.

The issues of self-awareness and of awareness of past and future strike to the heart of a common-sense view of what personhood might be. Chimps, elephants and some cetaceans have shown that they can recognize themselves in a mirror.

But the rights project is claiming more, saying that for chimps, as Dr. Marino put it, “you know it was you yesterday, you today, you tomorrow,” and “you have desires and goals for the future.”

There is plenty of evidence that chimpanzees and other animals act for the future. Some birds hide seeds to recover in leaner times, for example.

One affidavit is from Matthias Osvath, of Lund University in Sweden, who studies the thinking ability of animals, particularly great apes and some birds. He cites a number of studies of chimps that support the idea they have a sense of the future, including resisting an immediate reward to gain a tool that will get them a larger reward.

In one well-known piece of research by Dr. Osvath, he reported on Santino, a chimp at a zoo in Sweden who stockpiled and hid rocks he would later throw at human visitors. Dr. Osvath argued that Santino had the capacity to think of himself making future use of the rocks he saved.

Science cannot prove what went on in Santino’s mind. But Dr. Marino said the cumulative evidence could be used to ask a judge, “If you look at all the evidence in total, then what kind of being could produce all that evidence?”

Not all proponents of animal welfare are convinced that calling for rights for animals is the best way to go.

Dr. Gruen said that she had misgivings about the rights approach, philosophically and politically. “My own view is that it makes more sense to think about what we owe animals.” Progress on that front in 2013, particularly for chimpanzees, has surprised and delighted many activists. The National Institutes of Health is retiring most of its chimpanzees. And the United States Fish and Wildlife Service has proposed changes that would classify all chimps, even those in laboratories, as endangered, a move that would raise obstacles to experiments on privately owned chimps.

One point to remember is that personhood does not mean being human. Robert Sapolsky, a primatologist and neuroscientist at Stanford University who was not associated with the lawsuit, said, “I think the evidence certainly suggests that chimps are self-aware and autonomous.” That still leaves a vast gap between chimps and humans, he said. Chimps may look ahead in hiding food for later, or planning “how to ambush monkeys they are hunting.” Humans, he noted, could think about “the consequences of global warming for their grandchildren’s grandchildren, or of the sun eventually dying, or of them eventually dying.”