Beyond Animal Rights
ETHICS I Recognizing apes as persons with rights could accord them powerful protections. But it could also backfire
According to primatologists, apes experience emotions, have a sense of the past and the future, use tools, and can be taught (rudimentary) language.

Peter McKnight, Vancouver Sun
Published: Saturday, May 20, 2006

God said 'Let us make man in our image, after our likeness: and let them have dominion over the fish of the sea, and over the birds of the sky, and over the livestock, and over all the earth, and over every creeping thing that creeps on the earth.'

Genesis: 1:26

You might have heard recently that Spain is going ape. The country that gave us the conquistadors has gradually been mending its macho ways, and has been granting rights to ever more dispossessed groups: First to women and minorities, and now to the last of the oppressed groups -- the Great Apes.

Thanks to a bill recently introduced by Spain's governing Socialist party, the Spanish parliament is set to debate whether to grant chimpanzees, bonobos, gorillas and orangutans the rights of persons.

The initiative was influenced by the international Great Ape Project, which seeks to secure for apes the rights to life, liberty and freedom from torture, and was motivated by evidence of the similarity between humans and their hominid cousins.

Not only do we share about 99 per cent of our genes with chimpanzees, but according to primatologists, chimps and other apes experience emotions, have a sense of the past and the future, use tools, and can be taught (rudimentary) language.

That evidence has allowed the animal rights movement to achieve some conspicuous successes. New Zealand recently passed a measure similar to the one before Spanish parliament, and since the publication of Australian philosopher Peter Singer's seminal work, Animal Liberation, in 1975, the animal rights movement has grown at a pace civil libertarians can only envy.

Academics from a wide array of fields have lent their support to the movement, many countries have been strengthening their animal cruelty laws, and North American law schools are now offering courses in animal law in increasing numbers.

And while the movement was originally dominated by the left, it is no longer. Witness Matthew Scully, a conservative Republican and former speechwriter for George W. Bush, who offers an impassioned Christian defence of animal welfare in Dominion: The Power of Man, the Suffering of Animals and the Call to Mercy.

Nevertheless, Spain's initiative has met with considerable opposition: Scientists fear that it will mean an end to animal experimentation, which has had some conspicuous successes of its own, the Catholic Church objects to treating apes as persons when fetuses don't enjoy similar status, and Amnesty International notes that we are still a long way from respecting the rights of humans.

The problem, it seems, is with the use of loaded terms like "rights" and "personhood." And though it might seem counterintuitive, the use of such terms could do animals a lot more harm than good.

Certainly, recognizing apes as persons endowed with rights could accord them powerful protections. But it could also backfire, and would undoubtedly do a lot less than either animal activists or their opponents believe.

Both seem to believe that once apes are granted rights as persons, they magically become the equals of humans. Yet not all persons are created equal, regardless of what your civics teacher taught you.
In addition to humans, the law recognizes corporations and partnerships as persons, yet no one suggests that companies and humans are equal. Further, as no rights are absolute, we could envision situations where we would consider it acceptable to violates an ape's rights.

Harvard Law School's Lawrence Tribe, an animal law advocate and the United States' foremost constitutional scholar, provides one such example, saying that if it could be shown "that performing a particular experiment on chimpanzees would be the only means of relieving some terrible form of human suffering, then ... it would be open to argument that, in the circumstance, perhaps the [chimps'] right should give way."

One could argue otherwise, of course, but the example makes it clear that legal recognition of the personhood of apes wouldn't necessarily be the panacea activists believe it to be.

Tribe also notes that the lack of such recognition doesn't automatically reduce an animal to a thing. Indeed, instead of conferring rights, the law often identifies and prohibits wrongs. This, in essence, is the way animal cruelty laws function: The law proscribes treating animals in certain ways despite their having no rights.

To be sure, animal cruelty laws in Canada and the U.S. are woefully inadequate, as is the prosecution of offences under such laws. But that the law can prohibit certain forms of behaviour without creating new rights-holders reveals -- in combination with the violability of rights -- that recognizing apes as persons is neither necessary nor sufficient for ensuring their humane treatment.

But by emphasizing rights, animal activists inevitably provoke a backlash from those who believe they're elevating animals to the status of humans, a backlash that animals will be forced to endure.

Finally, and perhaps most importantly, all talk of rights is, in a sense, negative -- it tells us what we may not do to others. For example, that we have a right to free speech means the government may not prevent us from speaking.

Similarly, recognizing animals as persons with rights only tells us what we may not do to them. But what many animals need most is not to be let alone, but to be cared for, and often, to be taken care of. This simple fact -- that the nature of animals is such that we might have a positive obligation toward them -- reveals the poverty of the concept of animal rights.

I say this not because I oppose strict legal protections for animals, but because I support them. And the only way to ensure such protections are enacted and enforced is to emphasize the duties that come with our dominion over animals, to highlight human responsibilities rather than animal rights.