Primates and habeas corpus: lessons from the New York cases

706740029147231632In a decision dated January 2, 2015, the Supreme Court of the State of New York dismissed the petition of the nonhuman rights project, an organization seeking a writ of habeas corpus on behalf of Kiko, a chimpanzee that was – according to the organization – illegally held captive [read entire decision].

Contrary to what may appear at first glance, this decision does not settle the question of the alleged “right to freedom” of the animals. The court indeed decided to focus on some technicalities and not go to the bottom of the case. The argument of the court is that a writ of habeas corpus in this case is not possible because the petitioner did not ask for a release of Kiko but for its transfer to a better facility:

“Here, petitioner does not seek Kiko’s immediate release, nor does petitioner allege that Kiko’s continued detention is unlawful. Rather, petitioner seeks to have Kiko placed in a different facility that petitioner deems more appropriate. Consequently, even assuming, arguendo, that we agreed with petitioner that Kiko should be deemed a person for the purpose of this application, and further assuming, arguendo, that petitioner has standing to commence this proceeding on behalf of Kiko, this matter is governed by the line of cases standing for the proposition that habeas corpus does not lie where a petitioner seeks only to change the conditions of confinement rather than the confinement itself (Decision, p. 2)”

You can see, from the transcripts of the hearings, that the mind of the judge was set on using this argument to dismiss the case even before the pleadings really took place. As a result, the real question remains open: Are chimpanzees “persons” and are they entitled to “habeas corpus”?

That being said, the jurisdictions from New York don’t seem very keen to recognize habeas corpus to non-human animals. In a decision dated October 4, 2014 the supreme court of New York already stated the following:

the 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” […read entire decision].

The decision of the court is not based on a simple speceist argument according to which “only humans” would have the “right to have rights”. The argument is based on the theory of the social contract according to which individuals have rights only because they can bear responsibilities:

“[…] society extends rights in exchange for an express or implied agreement from its members to submit to social responsibilities. In other words, “rights [are] connected to moral agency and the ability to accept societal responsibility in exchange for [those] 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” […read entire decision].

The nonhuman rights project is appealing the decision. We shall see if the court will confirm it and – perhaps more importantly – on the same grounds. The theory according to which social rights are intimately linked with social responsibilities is vast and complex. The Court itself does not seem totally at ease with all the possible ramifications when it states that:“nothing in this decision should be read as limiting the rights of human beings in the context of habeas corpus proceedings or otherwise” […read entire decision].

It is indeed all too obvious how these theories could be used to refuse rights not only to non-human animals, but to less socially skilled humans such as newborns, elderly, or disabled people.

Vincent Chapaux – January 2015

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