Justice Jaffe has amended the order she issued yesterday in a case brought by the Nonhuman Rights Project (NhRP), regarding two chimpanzees, Hercules and Leo, who are being used for biomedical experimentation at Stony Brook University on Long Island, New York.
Yesterday it read “ORDER TO SHOW CAUSE & WRIT OF HABEAS CORPUS”. This afternoon, Justice Jaffe struck out the words “& WRIT OF HABEAS CORPUS” from the title of her Order.
The judge has not commented on her amendment. But the fact is we have entered unmapped legal territory, and we should expect a certain amount of confusion as these cases go forward, more back-and-forth, revisions and re-revisions, appeals and counter-appeals.
Yesterday’s decision was a huge step forward. Today’s amendment sets it back a small step. But the step forward is still huge, and the door is still open for the court to recognize that Hercules and Leo are legal persons with the fundamental right to bodily liberty.
Here’s the NhRP’s interpretation of the situation:
The Order does not necessarily mean that the Court has declared that the two chimpanzees, Hercules and Leo, are legal persons for the purpose of an Article 70 common law writ of habeas corpus proceeding. In New York, an Article 70 proceeding has two steps. The first is that the Court may issue an Order to Show Cause (which is the equivalent of a writ of habeas corpus, except the petitioner does not request that the body of the alleged detainee be immediately brought before the Court).
The issuance of the Order means, we believe, that the Court believes at minimum that the chimpanzees could possibly be legal persons for the purpose of Article 70, without deciding that they are, and that the issue will be determined only after it is fully briefed and argued at the adversarial hearing that is step 2 of the Article 70 proceeding.
According to David Bookstaver, a spokesman for the New York State court system: “All this does is allow the parties to argue their case in court.”
He believes that habeas corpus should be extended to “other beings whose capacities are limited but who are potentially capable of bearing rights.”
In an email to the New York Times, Harvard Law School scholar Laurence H. Tribe says he believes that habeas corpus should be extended to “other beings whose capacities are limited but who are potentially capable of bearing rights,” which, he argued, would include chimpanzees like Hercules and Leo. According to The Times:
Mr. Tribe added that Justice Jaffe’s decision was “a legally sound and suitably cautious step forward in the struggle to extend legal protections,” regardless of “whether or not we are yet ready to crown those others with the title of ‘human person.'”
Tribe’s comment, while favorable to the NhRP, needs clarification itself, in that the NhRP is not arguing that animals like Hercules and Leo should be recognized as “human persons“, but as “legal persons” – i.e. entities that are capable of having legal rights. Legal personhood is society’s way of acknowledging that an entity counts in the law, and such entities have included humans, fetuses, corporations, and ships.
Nor is the NhRP seeking “human rights” for nonhuman animals, as is sometimes mistakenly asserted in media reports. Human rights are for humans; chimpanzee rights are for chimpanzees. The specific right that the NhRP is seeking for Hercules and Leo (and also, in separate lawsuits, for Tommy and Kiko) is the right to bodily liberty.
The NhRP’s lawsuits will require the legal system to reassess who and what constitutes a “legal person”, just as it did when giving that same recognition, not so long ago, to slaves, women and children.