The case of the day is Nonhuman Rights Project, Inc. ex rel. Tommy v. Lavery (N.Y. App. Div. 2017). This is the second in my occasional series of posts on animal rights law: in November 2015 I wrote about the Monkey Selfie case. The claim was that Tommy, a chimpanzee, has been kept in captivity in cruel conditions. A non-profit animal rights group brought a petition for a writ of habeas corpus on his behalf.

The court affirmed the denial of the petition, of course. It focused on the point I emphasized in the Monkey Selfie post. It doesn’t make sense to think of chimpanzees as the kind of creatures that can have rights unless you are prepared to think of them as the kind of creatures that can have duties, or, I would add, unless you think that they are the kind of creatures that can decide whether they want to enforce their rights in a particular instance or to waive them.

Suppose Tommy escaped from captivity and then killed a child. I take it everyone would agree that the chimpanzee is not legally or even morally responsible, and that while it might be necessary to put down the chimpanzee to prevent it doing further harm, it would be absurd to punish the chimp. There are of course margin cases: human children, the insane, people in comas, etc. Such people may not be liable for what would otherwise be breaches of legal duties, but they still have rights. But they are the kind of creatures that through growth, recovery, etc. can become morally responsible persons. A chimpanzee is not. And I say this as an animal lover and someone who objects to holding chimpanzees in captivity.

Take another example. Tommy is kept in captivity, but instead of being cruelly confined, he is confined in what for a chimpanze would be nirvana: a lush primeval forest filled with whatever chimpanzees like to do. Can the chimpanzee decide for itself whether it wants to bring the habeas petition? Of course not. It is always the human being deciding what is best for the chimpanzee. Again, we do this with children, the insane, etc., but they are potentially able to make such decisions for themselves.

You don’t have to deny that chimpanzees, like many animals including human beings, have thoughts and feelings that are worth protecting through the law to deny that they have rights and duties.