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"The waters have been lapping on the shores of human uniqueness for a very long time," says Sally Boysen, who founded the Ohio State University Chimpanzee Center in 1983 and has spent much of her career teaching basic mathematical tasks to chimps. "First we were undermined when Jane Goodall discovered tool use in chimpanzees. Then we had apes using the rudiments of language. Later, [Emory University primatologist] Frans de Waal identified the roots of morality as seen in chimp reconciliation and alliance formation. We used to think only humans could attribute mental states to others, but now we know that chimps do that all day long. The bottom-line question since the '60s has been, Gee, are they really like us? And there's been a resounding Yes from every camp."
In this light, Wise sees the legal separation between human and nonhuman animals as a cruelly arbitrary one. To borrow a phrase coined by Peter Singer, author of the seminal Animal Liberation, the distinction can be seen as a form of "speciesism," with roots reaching back to Genesis and Aristotle's Great Chain of Being. In June of 1999, a team of primatologists published an article in Nature, "Cultures in Chimpanzees," which concluded that chimps possess the ability to invent customs and pass them on. In response, The New York Times ran an anti-speciesist editorial: "We have learned to live with the curvature of space. It may be harder to learn to live with the curvature of history, to grasp that our almost deific sense of difference from the animal creation is a latent prejudice that obscures as much as it explains."
"Culture," of course, can be defined as narrowly or broadly as you like. In The Electric Meme> (Free Press, 2002), Robert Aunger stresses that chimps lack "cumulative culture": They don't produce artifacts, and the adaptations they make to their environments over the course of a lifetime do not improve or evolve from generation to generation. Aunger, a professor of biological anthropology at Cambridge, concludes, "This limitation consigns monkey culture to the continual reinvention of simple novelties (like the famous invention of potato-washing by a Japanese macaque)."
A divine distinction between man and ape may well be presumptuous, but casting Ape in Man's own image presents a different, and knottier, dilemma. The human brain is three times as large as that of a great ape of equivalent body size. (The reader should keep in mind, however, the Chihuahua Fallacy: The dogs' encephalization quotient is off the charts, but that's because they've been bred for tiny bodies, not big brains.) The frequently cited 98.7 percent genetic similarity says less about human nature than DNA structureby the identical math, people are 98.1 percent mouse. Chimps are cannibals, and depending on how much practical autonomy you grant them, you could also call them kidnappers, rapists, and murderers. The same could be said of humans, but once protections become rights, they go hand in hand with dutieswhat duties could a chimpanzee possibly fulfill under the social contract? Among Goodall's subjects in Gombe Stream National Park, an ape named Passion killed and ate the offspring of other females. Given legal personhood, could a Passion be tried for manslaughter?
Chimps will find no truer friend among humans than Sally Boysen, but even she harbors trepidation about the legal-personhood hypothesis. "Whatever it takes to protect chimps from biomedical research is important to me," she says. "But I've been working with chimps for almost 29 years, and they are not hairy little humans. Males especially are huge, extremely powerful, hormonally drivenyou're not going to walk around the park with them on a leash. They are a different speciesthey're not infants, they're not disabled, they're not mentally retarded."
"They're endangered, sentient, and emotionally complex, and they require protections on that basisnone of this is in dispute," says Jonathan Marks, a biological anthropologist at the University of North Carolina, Charlotte. "But when people say the minds of chimpanzees are like the minds of mentally disabled humans, the big therefore is that we should give apes human rights because they're mentally on a par with mentally disabled humans, which is an odious way of humanizing chimpanzees. Because if you say to them, 'All right, if chimpanzees are somehow like retarded humans, do you believe retarded humans are like chimpanzees?' they would say, ' Oh no no no.' "
The legal-personhood camp frequently draws such parallels, but they push the envelope even further by drawing an analogy between great apes subjected to biomedical research and the ordeal of slaves in the United States. The chimpanzee Jerom died at age 13 after he was repeatedly infected with strains of HIV at the Yerkes Regional Primate Research Center at Emory; in a 2000 speech, Laurence Tribe declared that Jerom had been "enslaved." The Animal Law casebook, co-edited by Pamela Frasch (the second edition was just published by Carolina Academic Press), includes a section on slave disputes. Wise's next book will chronicle the life of James Somerset, a slave in England who made a successful legal journey to freedom. "It's the story of how a thing became a person under the law," Wise says. "The thing in 1772 was an African human being; I would argue the thing in 2002 is certain species of nonhuman animals. I'm hoping that even if you don't care about animal rights you'll find the story interesting, but it's also one large metaphor for what I'm trying to accomplish."