Peter McKnight is an adjunct professor in the School of Criminology at Simon Fraser University.
In the late 18th century, a British judge issued a writ of habeas corpus on behalf of James Somerset, thereby freeing him from slavery. In so doing, the judge effectively transformed Somerset from a legal thing to a legal person, a being entitled to legal rights.
Nearly 250 years later, it's happening again: In December, an Argentine court issued a writ of habeas corpus on behalf of an orangutan, saying that "it is necessary to recognize the animal as a subject of rights."
Are you offended by this comparison of the rights of humans and the "rights" of animals, this apparent equation of man and ape? And if so, why?
After all, we have been gradually expanding the concept of personhood throughout human history, gradually increasing the number of human beings we recognize as having legal rights. And although slavery still exists in some parts in the world, we have, after many millenniums, finally come to accept that all human beings are persons, that all humans, rather than just those of the "right" sex, race or ethnicity, possess inviolable rights.
But why stop there? If some animals, notably the great apes, display the characteristics of personhood – autonomy, rationality, self-awareness – should they not also be considered legal persons? And isn't our failure to recognize their personhood the equivalent of our past (and present) moral failings with human bondage?
There's that offensiveness again. But offensive or not, this was in effect the argument accepted by the Argentine court, and is the argument advanced by many animal rights groups. Most prominently, the Nonhuman Rights Project, a group led by former Harvard law professor Steven Wise, has brought five separate legal actions aimed at convincing courts that apes are people too.
Shortly before the Argentine decision, a New York appellate court rejected the Project's argument, concluding that a chimpanzee is not a person because persons possess both rights and responsibilities. People aren't just capable of making decisions; they're held responsible for those decisions, and no one seems prepared to haul an ape into court for, say, throwing rocks at humans, which is what a chimp named Santino had a habit of doing.
But then again, as the New York court acknowledged, some people are less responsible than others. Indeed, according to what philosophers call "the argument from marginal cases," apes' cognitive skills are at least the equivalent of certain humans, such as infants and those with severe intellectual disabilities, and apes therefore ought to be treated similarly. Some people find that thinking offensive too, but the court dismissed it because "collectively, human beings possess the unique ability to bear legal responsibility."
So we arrive at the crux of the matter: Membership in the human species is enough, even if the member possesses few cognitive skills. This position, which British psychologist Richard Ryder referred to as speciesism in an effort to draw parallels with racism and sexism, and which was popularized by Australian philosopher Peter Singer in his landmark book Animal Liberation, effectively creates a moral and legal wall between humans and other animals.
Arguments in defence of speciesism are often tautological, often concluding that we should treat members of our own species specially because that's what species do instinctively. But perhaps this isn't about argument; perhaps it's about intuition: Famed judge Richard Posner argues that granting moral status only to humans rests on a "moral intuition deeper than any reason that could be given for it."
That helps to explain why we find the equation of man and ape so offensive, but it doesn't necessarily justify our taking offence. After all, people long embraced the "moral intuition" that the races should be treated differently. If we are not to make the same mistake again, and we insist on treating humans differently, we need to avoid intuition and instinct and find reasons – use reason – to justify our position. That's what people do.