Note: This post was originally published as a shorter version on the Oxford Human Rights Hub blog on 15 January.

Tommy is an adult male who has been imprisoned for most of his life, forced to perform his daily routines in front of curious spectators that pay money to see him. Locked in a room in upstate New York, he has no money and cannot speak any languages. With the help of lawyers, Tommy is now invoking the historic writ of habeas corpus in the New York courts on the ground that he is being detained unlawfully. Tommy, though, is not a human; he is a chimpanzee, and his representatives are on a quest for ‘non-human person rights’ for animals. What are lawyers, legal theorists and those seeking better protection for animals to make of Tommy’s case?

The legal battle began in the Supreme Court of Fulton County in December 2013, where it was ruled that the term ‘persons’ under habeas corpus proceedings did not include chimpanzees. Down but not out, Tommy’s representatives appealed to the New York Third Appellate Court, in the case of ex rel. The Nonhuman Rights Project v Lavery. With the hope of sending Tommy to a retirement refuge in Florida, they requested that the common law definition of ‘person’ be extended in order to afford legal rights to animals.

Giving judgment on 4th December 2014, the Appellate Court recognized the novelty of the case and began by noting that animals have never been explicitly considered capable of asserting rights under state or federal law. This should remain the case the court held, rejecting the appeal. The ratio of the judgment was that chimpanzees, unlike human beings, cannot submit to societal responsibilities or be held legally accountable for their actions and, therefore, it would be inappropriate to confer upon such animals legal rights, including the right to liberty. In support of this reasoning, the court pointed to the historical ascription of rights with responsibilities in America stemming from principles of social contract, as well as the consistent definition of legal personhood in terms of both rights and duties. 

The judgment poses a central conceptual question concerning the nature of rights-based claims and the extent of correlative duties. For legal theorists, this maps onto well-worn jurisprudential debates, where the answer depends on whether we grant rights an internal logic or complexity and how this to be understood. Engaging with this complexity, ‘will theorists’, for example, suggest that the very essence of a right is a duty that someone else has the power of waiver over. ‘Interest theorists’, on the other hand, argue that a right represents a weighty interest that is good for us to have. It might equally justify the enjoyment of liberties or powers, as it does the imposition of duties. Perhaps most instructive in this instance, though, is Hohfeld’s influential fourfold unpacking of ‘rights’ in which he distinguishes a ‘claim-right’, which necessarily entails a duty on someone else, from ‘a liberty’, which establishes the permissibility of an individual’s action and is totally absent of any duty. As Tommy’s lawyers argue, he is claiming an immunity right from being detained, which correlates with a disability to interfere with that right; the notion of duty does not arise.

Off the jurisprudential map though, the court’s reasoning remains curious. Firstly, biologists would probably remind us that whether animals can in fact bear social responsibilities is less clear-cut than the court would like to think. Chimpanzees such as Tommy share 99% of our human DNA and can demonstrate highly complex cognitive functions, such as self-awareness and self-determination. Anyway, as a society would we not be willing to say that we have submitted a social responsibility to the likes of guide dogs tasked with assisting the blind or police horses used on our streets? Secondly, the strict aligning of rights with duties, pinned onto the responsibilities owed under the court’s vague and sparse description of an America’s social contract in 2014, creates a more general feeling of discomfort. Surely we would be reluctant to accept that those who are less able to shoulder societal responsibilities- babies, the elderly, the infirm- are in some sense written out of the social contract, thus losing the rights that come with it?

But for those interested in ensuring greater protection for animals, is litigation based on the rights of humans really the right way forward anyway? Just last week, in a landmark case, Sandra, a 29-year-old ape, won an appeal similar to Tommy’s before an Argentinean court. The full judgment has yet to be released, but the notion of ‘non-human person rights’ seems to have found favour with the court and Sandra is being moved to a sanctuary in Brazil. Tommy’s application to the Court of Appeals has just been lodged.

Maybe the real battle, though, should be one of hearts and minds outside the courtroom, encouraging us to reflect on the impact that our consumer habits and lifestyles, be it food, clothes, holidays, have on animals and their habitats. As the Appellate Court noted, steps have already been made by legislatures to better protect animals. In the UK, for example, the Animal Welfare Act 2006 has created various offences for causing suffering to animals, created positive duties to take reasonable steps to ensure that animals needs are met and established inspectors with wide enforcement powers.

Over a century ago, well-known theorist and father of Utilitarianism, Jeremy Bentham, scoffed at the notion of inalienable, universal rights held by virtue of being human. They were, he famously said, “nonsense on stilts”. Yet this very idea has become one, if not the, dominant legal paradigm(s) of the last century. With increasing concern about the sustainability of our planet, it’s creatures and future inhabitants, should we be reluctant to dismiss as nonsense something akin to human rights, with the weighty normative and legal claims they carry, being extended to those not currently understood as legal persons?