When Marc Jurnove first visited the Long Island Game Farm Park and Zoo in the spring of 1995, he found Barney, a chimpanzee, living in bleak isolation, with only a swing to distract him and no other chimps in sight. Concerned, Jurnove sought legal action. However, the case that followed, Animal Legal Defense Fund v. Glickman (1998), did not focus on Barney’s psychological well-being, oddly enough, but that of his human observer. As one of the deciding judges wrote, “Mr. Jurnove’s affidavit is an uncontested statement of the injuries that he has suffered to his aesthetic interest in observing animals living under humane conditions.”
Of course, none of the interested parties in this case were actually convinced that animal welfare is merely a matter of taste. But the notion of “aesthetic injury” is just one means of circumventing a hard legal fact: Property can’t sue, thus neither can animals, nor can a guardian ad litem bring criminal or civil action on their behalf. Some animal rights advocates are hoping that will soon change. In Rattling the Cage: Toward Legal Rights for Animals (2000) and the recently published Drawing the Line: Science and the Case for Animal Rights (both Perseus), attorney Steven M. Wise proposes “legal personhood” for certain highly intelligent nonhuman species, beginning with our evolutionary next-door neighbors: chimpanzees and bonobos, who are endangered in the wild. Wise’s idea is a major point of contention in the far-flung animal rights debate, tangled in ageless questions of justice, philosophy, biology, even the very definition of being human.
Protections, if not rights, for animals have been on the books for decades. But though the Animal Welfare Act requires the U.S. Department of Agriculture to set minimum standards of nutrition and shelter for captive animals, they’re difficult to enforce (especially against elusive traveling zoos, who are among the worst offenders), the fines are token, and the rules are skimpy—the Game Farm hadn’t even broken any of them. Though Jurnove had standing to sue for once-removed distress, Barney himself had no judicial recourse.
Legal personhood for animals, Wise explained in an interview with the Voice, “means the right to bodily liberty and bodily integrity, which are the fundamental rights that we humans have. If you wanted to do something to violate [animals’] rights, at the very least they should have a guardian appointed to represent their interests, the way a human child or any severely impaired human being would.”
“Ironically, ships, corporations, partnerships, and other inanimate entities and objects are considered ‘persons’ under the law with the ability to sue and be sued, and have been for generations,” says Pamela Frasch, director of the anti-cruelty division of the Animal Legal Defense Fund. “Judges and legislatures need the courage to take the next logical step and enhance the status of sentient nonhuman animals as well.” Any species equipped with these new rights could no longer be used as zoo attractions or biomedical research subjects, but as Wise writes in Rattling the Cage, “Without legal personhood, one is invisible to civil law. One has no civil rights. One might as well be dead.”
Animal law, however, is alive and kicking—this fledgling division of legal theory is now taught in 21 law schools around the country, up from 12 just two years ago, and will be the subject of a symposium next month at Harvard. (The all-star roster of scheduled speakers includes Jane Goodall, Alan Dershowitz, and Laurence Tribe.) In the past few years, pets have become increasingly common subjects of custody battles, veterinary malpractice suits, and emotional-distress claims. Outside the U.S., rights and protections for animals are expanding by steady increments. The last laboratory in the European Union to use chimpanzees in experiments, the Biomedical Primate Research Centre in the Netherlands, will stop in December by order of the Dutch government. And this past May, Germany’s lower house of parliament voted 543-19 to add animals to the dignity-rights clause of their constitution, though, as one lawmaker hastened to add, “People remain the most important.”
With that general consensus in mind, Wise has prioritized seeking rights for the most people-like of nature’s kingdom. “I don’t think that ‘animals should have rights,'” Wise says. “I think that specific kinds of animals should have specific kinds of rights. Because we share genetic and evolutionary status, it’s easier for a human to understand and empathize with why a chimpanzee or bonobo should have similar basic rights. Their lives mean a lot to them in the way our lives mean a lot to us; we’re just able to direct our lives in a much more complex way.”
The eligibility requirement for legal personhood is what Wise calls “practical autonomy,” a constellation of capacities observable to varying degrees in all species of the Great Ape family (which comprises chimps, bonobos, orangutans, gorillas, and yup, Homo sapiens). These include self-consciousness, imitation, empathy, insight, tool use and production, spatial representation, and understanding of symbols—including the building blocks of language. The famous signing gorilla, Koko, has scored as high as 95 on standardized IQ tests for human children; she boasts a signing vocabulary of 500 words and has given Internet chats.
“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 structure—by 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 duties—what 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 driven—you’re not going to walk around the park with them on a leash. They are a different species—they’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 basis—none 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.”
This particular metaphor, however, dilutes or even contaminates the animal rights message by its uncomfortable proximity with the most vile and vicious of centuries-old racial stereotyping. “To compare any class of humans to apes is ipso facto dehumanizing to the people concerned,” Marks says. “The targets are always the people whose own rights are the most precarious—blacks in America, the Irish in England, and now the mentally disabled. It has a long history; it has never, ever been intended as a compliment; and it is simply biologically bankrupt.” In What It Means to be 98% Chimpanzee (University of California, 2002) Marks cites the astonishing cover art for the 1996 Houghton Mifflin publication Demonic Males: Apes and the Origins of Human Violence: a 1933 illustration by the Swiss anatomist Adolph Schultz comparing the body proportions of a gorilla to a man Schultz identified as an “adult Negro.”
To make the point again but with tongue in cheek, Marks also directs this reporter to Bushorchimp.com; it’s worth noting that this very paper expressed its displeasure with George W. Bush’s ascension via the cover salute “Hail to the Chimp” and a correspondingly simian portrait.
Wise suggests that “proportional rights” could be allocated to nonhuman animals according to their level of practical autonomy. “The legal scale needs to approximate the biological scale,” he says. “Darwinian evolution would imply a seamless continuum from a virus all the way to human beings. It doesn’t make sense to treat them all the same.” Nor should humans be splitting hairs on issues of chimpanzee culture. “Whether or not chimpanzees have an advanced technological society is utterly irrelevant. Human beings have an infinite number of rights, and many of them make no sense with respect to chimpanzees. We’re not talking about the right to vote or practice religion or petition the government. The fact that they can’t send someone to the moon doesn’t mean that we have the right to do biomedical research on them.”
Ironically, Marks poses a similar argument to arrive at the opposite conclusion. “I know of no basis in the human species where smart people should have more rights than dumb people,” he says. “What does it mean to give a chimpanzee an IQ test and say, ‘Well, it’s really smart, therefore it should get human rights’? That presupposes that we use a scale of intelligence as a basis for allocation of rights for humans, and we don’t.”
But a cognitive scale to measure animal minds could provide a basis for the most divisive and wrenching of issues: deciding which species, if any, can be ethically used in invasive experimentation. (No fewer than 10 scientists who work with animal models—ranging from cardiovascular disease in lab rats to AIDS in primates—either declined or did not acknowledge interview requests for this article.) A practical-autonomy rubric could potentially separate those animals who feel pain from those who feel pain intelligently—that is, those who suffer.
On this count, it’s safe to say that even the staunchest supporters of animal use in biomedical research feel some measure of regret or ambivalence about the use of great apes. Invasive chimpanzee experimentation all but ceased in Great Britain after the early ’70s, and the government formally prohibited the practice in November 1997. Japan has also called a moratorium. Stateside, chimps are still used in investigations of malaria and hepatitis C. In the ’80s, hundreds were infected with HIV in clinical settings, but in 1999, the National Institute of Allergy and Infectious Diseases called a halt to new infections.
“Because chimps take such a long time to progress to AIDS, they are not a practical model for developing vaccines,” explains Lillian Lee Kim, chief of public relations at the Yerkes center. “Scientists have moved to using rhesus macaque monkeys, which do develop AIDS-like illness much more quickly than humans.” (Harriet Robinson’s vaccine candidate, developed using macaques at Yerkes, is now entering clinical trials.) Paradoxically, chimps’ physiological similarities to people—which is the most compelling reason both for and against their use in biomedical research—ruled them out of conscription into the war on AIDS.
It’s another paradox that captive primates, even granted bodily integrity through legal personhood, most likely represent the future of their species. Plagued by deforestation and the increasingly commercialized “bushmeat” trade, wild great apes in sub-Saharan Africa are disappearing. As few as 150,000 chimpanzees survive there today, down from 2 million a century ago. “I’m pretty fatalistic about their plight in the wild,” Boysen says, “but that gives us even greater responsibility to try to create situations in captivity in which the animals can maintain their behavioral integrity. And that doesn’t mean getting a liver punch every week.”
In a July speech at an animal rights conference in Virginia, Peter Singer invoked the Judeo-Christian ethic of mankind’s “dominion” over animals as a roadblock to securing their rights. But humans—from the radical warriors of the Animal Liberation Front to meat-eating cosmetics researchers—have dominion over nonhumans whether they like it or not. Freeing captive apes would effectively authorize their extinction. Boysen’s team of chimps—most of them rescued from adverse environments, and all of them beloved—are enculturated for the enhancement of human knowledge. And every tenet of the animal rights debate boils down to anthropomorphic projections: How similar to me is this creature, and therefore which of my rights do I assign her? Improving Barney’s plight at the Game Farm, after all, hinged on a human being’s “aesthetic interests.” Perhaps the editors of Nature had that case in mind recently, when they published an editorial on the use of nonhuman primates in biomedical research and titled it “Distasteful but Necessary.”
Research assistance: Ben Kenigsberg