Give A Captive Chimp His Day In Court? Of Course!

“Tommy” is an ape, actually a chimpanzee, who was left in a grungy cage in a big shack in the yard of a Trailer Sales place in Gloversville, N.Y. after his owner passed away.  He was unceremoniously discovered by Steven Wise on October 10, last year and the dreadful condition of Tommy’s digs – a small steel mesh cell on which were strewn soiled bedding and odd toys – was enough to mobilize the human to action on the chimp’s behalf.


On December 2^nd, Wise – a 63-year old legal scholar in the field of animal law, walked with his fellow lawyers into the Fulton County Courthouse in Johnstown, New York flashing multiple copies of a legal document which had never before been seen in any of the world’s courts.  Under the partial heading of: “The Non-human Rights Project On Behalf of Tommy” the legal petition and memo included amongst its 106 pages a detailed account of the petitoner’s “solitary confinement in a small, dank, cement cage in a cavernous dark shed” along with a series of nine affidavits gathered from leading primatologists around the world – each one detailing the cognitive abilities of a being like Tommy – thereby underscoring the psychological and physical ravages of being in such confinement.

 A chimp like Tommy is clearly the best example to use in a test case. As Wise et al’s legal memo reads (cf. New York Times Magazine, May 4):

“Like humans, chimpanzees have a concept of their personal past and future …they suffer the pain of not being able to fulfill their needs or move around as they wish, and they suffer the pain of anticipating a never-ending confinement.”

None of this ought to be amazing to us, despite our human chauvinism, given that the chimp and human have the exact SAME cytochrome –c protein sequence! If evolution is false we’d expect the human and chimp cytochrome-c sequences to vary dramatically given that it exhibits 10^93 variations in functionality with other organisms. That is, 10 followed by ninety three zeros!

 They are, in effect, our closest non-human cousins.  It is this that the skeptical human must bear in mind on considering that Tommy was about to make history as the first non-human primate to ever sue a human captor in an attempt to gain his own freedom. Insane? Hell no! It logically follows if one fully accepts the tenets of Darwinian evolution.

Indeed, James Rachels, in his controversial book, Created From Animals, invokes Darwinian evolution to make the strong case that unless animals are extended consideration and value, humans can't have it either. Merely to argue humans- by virtue of being "exalted thinking beings"- merit more consideration, is no argument and can indeed be shown to fail at numerous levels. As Rachels points out (p. 191):

"For example, normal adult humans have the obligation not to torture each other. What characteristics make it possible for a person to have this obligation? For one thing, he must be able to understand what torture is, and he must be capable of recognizing that it is wrong."

Rachels, in his book (ibid.) uses the example of a "severely retarded person" who is incapable of relating what he does in terms of actions, to consequences or suffering. Thus, such a person could willy-nilly stab or slice people at will with a pen knife or drawing compass-divider and not know any better or appreciate their suffering from his actions. We do not regard such people as possessing the discriminating capacity for empathy, so don't hold them accountable. (Or at least we shouldn't).

As Rachels puts it (p. 192)

"A severely retarded person may not be able to understand what torture is, or see it as wrong, and yet still be able to suffer pain himself. So we- who are not retarded - have an obligation not to torture him even though he cannot have a similar obligation not to torture us." Thus we come to the key point made:

"It is wrong to torture someone ...not because of his capacity for understanding what torture is, or for recognizing it is morally wrong, but simply because of his capacity for experiencing pain."

The premise for the extension of the legal and logical argument is that if we aren’t prepared to grant standing for an ape like Tommy, we aren’t justified in doing it for a severely retarded or disabled human (e.g. unable to speak) either. Humans don’t get any special merits for being “human” in other words. And citing supernatural piffle like "souls" doesn't get you there.

 The point was also rendered by Wise to his lecture class, when he had them consider the case of a 4-month old anencephalic baby, that is, an infant born without a complete brain. The intact brain stem allows the baby to breathe and digest but there is no remote consciousness nor will there ever be any. In fact, there can be no feelings or awareness whatsoever.  At this level, the chimp is vastly more advanced than the baby human and no one could argue differently.

 Wise in this context put it to his class why one couldn’t just eat this baby and done with it. Or put her in a cage as a pet until expiry. Of course, the class was instantly appalled and as Wise put it (when they were asked the question):

 “Got all tied up in knots and said things like ‘because she has a soul’ or ‘all life is sacred’

 Wise’s reply was to dismiss such answers since “we aren’t talking about characteristics here that can’t be proven” but rather that she has the FORM of a human. But is this a sufficient condition to be conferred legal rights?  Why is a human individual with no cognitive abilities whatsoever a legal person with rights while cognitively complex beings like chimps have no rights at all?

 Therein lies the rub, and James Rachels himself would argue that unless legal rights are also extended to cognitively complex animals (including dolphins, gorillas and Orcas) you are not entitled to extend them to all humans merely by the fact they possess human forms.

 Again, the invocation of humans having “souls” is useless because souls have never been proven to exist. The rejoinder that “we already have animal rights laws on the books” is also inadequate because it does not advance the definition of a true legal person for all situations. (Imagine a mutation that would confer speech to a chimp.)  In this case,  as Wise and Rachels would quickly point out, a legal person is not synonymous with a human being.

Rather, a legal person would be an entity that the legal system considers important enough so that it is visible and has interests. Under this rubric, the anencephalic baby would be a legal person, but so would Tommy the chimp. We aren’t allowed to discriminate on the superficial basis of “humanness” because that doesn’t provide both the sufficient and necessary conditions to be a legal person. Humans are only a step up the cognitive ladder from apes, but if we use that evolutionary spread as a standard for legal personhood we aren’t entitled to extend the latter to severely disabled humans, such as the anencephalic baby.

Merely to spout  for human exceptionality on the basis of “soul -hood” doesn’t cut the mustard, apart from the fact that millions of us (atheists) don’t recognize the existence of souls anyway. It is time then, to put away the shits and giggles and give the apes their day in court – or else admit we’re hypocrites. "Hypocrite Humans", yeah that’s a good one! We might remember that next time we behold a hapless chimp seized for horrific medical "experiments" (say to test a new Army nerve gas) or locked up in a 2' by 2' cage in conditions no creature ought to abide.