Standing Upright: The Moral and Legal Standing of Humans and Other Apes
Kolber, Adam, Stanford Law Review
In The Common Law, Oliver Wendell Holmes wrote that "even a dog distinguishes between being stumbled over and being kicked." (1) Holmes suggested that even dogs can tell the difference between intentional aggression and benign mistake, and his observation is often cited to show how a vague legal standard can still have clear applications. (2) Far less often is the quote considered as an empirical statement about the abilities of dogs. In that light, the quote suggests that dogs can understand humans well enough to discern the motivation (or lack thereof) behind some physical interaction between them. If dogs can understand the ways we treat them, we may think it matters more whether we treat them compassionately or cruelly. (3) And if dogs can make such distinctions, we may wonder how much more fine-grained and sensitive are the perceptions of smarter animals like chimpanzees and gorillas.
Calling the effort the Great Ape Project ("Project"), a number of scholars, scientists, and activists have organized to demand recognition of moral and legal rights for great apes. In the category of great apes, the Project includes chimpanzees, bonobos, orangutans, gorillas, and, surprisingly or not, humans. Supporters of the Project would like to see radical changes in the ways we treat great apes. These changes, if enforced globally, would mean an end to most biomedical experimentation on great apes; would largely eliminate the potential use of great apes for organ donations; (4) would prohibit, or at least require dramatic improvements, in the keeping of great apes in zoos; and would eliminate the use of great apes as a source of food. (5) Perhaps more radical sounding are the Project's claims that great apes should be considered equals with humans in the sense that the rights of apes should be respected no less than those of humans and that court-appointed guardians or other organizations should be enabled to protect the legal rights of great apes by bringing suit on their behalf. The Great Ape Project seeks nothing less than full moral and legal "personhood" for great apes.
Legal academia is awakening to the growing interest in the legal protection of apes and other animals. In 1999, Harvard Law School and Georgetown Law School announced that they would offer their first classes ever in animal law. (6) Less than a year later, Harvard's animal law instructor, Steven Wise, published a book demanding legal rights for chimpanzees and bonobos. (7) In what may be the clearest sign that discussion of great ape legal rights has entered mainstream legal discourse, Judge Richard Posner reviewed Wise's book in the Yale Law Journal. (8) Although Posner does criticize Wise's approach, he is surprisingly uncritical of Wise's aims and faults Wise principally on methodological grounds. (9)
In Martha Nussbaum's review of Wise's book in the Harvard Law Review, Nussbaum reveals a basic sympathy for Wise's project:
We live, many of us, in affectionate relationships with dogs and cats and horses. And yet a large population of us not only eat meat and eggs and wear leather, but we also collaborate in the appallingly cruel conditions under which those goods are produced these days, involving the torture of calves, chickens, and pigs.... [W]e have not defined very clearly the conceptual framework we should use to articulate philosophically what sympathy tells us in our lives.... Meanwhile, however, there are animals like [the apes that Wise describes] leading lives of agony, and there are activists, like Steven Wise, ready to move ahead with practical legal recommendations, even in the absence of conceptual and theoretical consensus. (10)
No country has granted great apes anything near the kinds of rights sought by Steven Wise or the Great Ape Project. However, some countries have enacted significant protections for great apes. In 1996, biomedical research on great apes was banned in Britain. …