Yesterday, a New York appeals court rejected a lawsuit filed by the Nonhuman Rights Project seeking legal rights for Tommy, a 26-year-old chimp kept alone in a warehouse. Here's why the judges were wrong — and why that's actually good news in the struggle to recognize nonhuman animal personhood.

Top image: The plaintiff, Tommy, in his cage (AP).

Just to recap this story, the Nonhuman Rights Project (NRP) has been asking judges in the state of New York to grant several captive chimpanzees legal personhood status, thus ensuring their right to bodily liberty (the suits are seeking writs of habeas corpus) so that they may be moved to a sanctuary. The NRP says these chimps are deserving of legal protections because their cognitive, social and emotional capacities are similar to those of humans.

Scientific Evidence Not Contested

Lawsuits for the four chimps were filed last December but were all rejected by lower courts. Yesterday's decision to deny Tommy personhood status at the intermediate New York court was the first appeals court ruling.

It's important to note that the judges did not challenge any of the scientific evidence presented by the team, which included affidavits filed by nine leading primatologists. The NRP's affidavits contend "that chimpanzees exhibit highly complex cognitive functions-such as autonomy, self-awareness, and self-determination, among others—similar to those possessed by human beings." The NRP team, led by Steven Wise, argues that Tommy should not be regarded as property but as a "complex autonomous legal person with the fundamental legal right not to be imprisoned."

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Instead, the judges claimed that legal rights arise from an abiding respect for individual liberty and self-determination. Rights are contingent upon responsibility, they say, and chimps can't have rights because they can't fulfill their social duties.

In their decision, the judges wrote:

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.

Some observers, including myself, see this as an extremely problematic reading of the law, especially considering that children and the mentally disabled are persons, yet they cannot "bear any legal responsibilities and societal duties."

In defense, the judges wrote:

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. [emphasis added]

The judges are thus making the case that these particular attributes are what makes a person a person. It would appear that the judges ruled against Tommy simply because of his biological status as a chimpanzee. Subsequently, it's a decision that will very likely not stand the test of time.

As noted on the PrawfsBlawg:

The court's position exemplifies what Peter Singer and others call speciesism. What entitles a being to protection, according to the court, is not something about the creature itself but about its membership in a particular group—namely, the species homo sapiens. If sexism is an irrational prejudice in favor of one gender and racism is an irrational prejudice in favor of one race over another, to many animal rights advocates, specisism is an irrational prejudice in favor of one species over another. So how one feels about the decision likely turns on how seriously one takes the charge of speciesism.

In this case, there is apparently no allegation that Tommy was being mistreated in the sense protected by current animal welfare laws. Often, however, even when animal welfare laws are being violated, private parties lack standing to bring suit. So questions of personhood for great apes and other animals both raise fundamental questions about the nature of personhood and less fundamental, but still important issues, about how expansively animal welfare protections apply.

'Fundamentally Flawed'

"Their reasoning is very flawed and we feel they've made some major legal errors that we'll appeal on," NRP Executive Director Natalie Prosin told io9. "In a way I feel that we lost in the weakest way we could've lost — they used the weakest claims, and that opens the door for us to make some really strong arguments on appeal."

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Prosin says the judges rested their decision on whether or not someone is eligible for legal personhood on their species, so they're essentially saying that Tommy is not eligible for legal personhood status simply because he's a chimpanzee.

"We have contradictory case law in the state of New York which rules that your eligibility for personhood is not a question of biological or natural correspondence but one that must be a question of public policy," she says. "We were hoping that the court would make a public policy determination and use the great amount of scientific evidence that was submitted through our lawsuit to actually make the determination that Tommy is in fact a legal person."

Prosin told io9 that the common law is flexible and is supposed to change in light of new scientific discoveries, changing morality, and changing experiences. It's not that the common law influences public moralities. Instead, the common law is supposed to recognize changing public moralities and incorporate them into the law.

"Unfortunately the intermediate court did not do that," she says.

The NRP is already working on filing an appeal to the New York Court of Appeals.

It's About Individuals, Not Species

Prosin is not the only person dismayed by the court's decision. Brandon Keim from Wired reports:

"It is unfortunate," said primatologist Mary Lee Jensvold, who works with chimpanzees trained to use sign language and filed an affidavit describing their cognitive similarities to humans.

Chimps might not be able to acknowledge our society's expectations, said Jensvold, but it's worth remembering that in their own societies, they are capable—and indeed expected—to perform duties of child-rearing and hunting.

"I'm sure cultural anthropologists could think of many examples of human individuals being transplanted from one culture to another. They don't function very well, and maybe they don't fulfill their rights and duties," said Jensvold. "But we're not going to take their personhood away from them."

David Cassuto, an animal law scholar at Pace University, criticized the Court's rationale that the rights of children or mentally disabled adults is rooted in the collective capacities of humans.

"A habeas corpus petition is about an individual, not a species," said Cassuto. "It has nothing to do with the potential of that individual's species."

Those opposed to the NRP's legal case say that the extension of personhood considerations beyond the human sphere would diminish what it means to be human, and leave certain individuals vulnerable. It could also complicate matters for zoos and marine amusement parks who would not be allowed to hold such animals in captivity.