“Rattling the Cage”

In his new book, animal rights law professor Steven Wise argues that chimps are persons too.

Topics: Academia, College, Books,

"Rattling the Cage"

Animals aren’t people. But, with a wave of a pen, we could make them persons. Demonstrating our special human gift for symbol manipulation, we could pass laws granting legal personhood to any animals we choose. “Poof, you’re a person!”

In recent years, serious arguments have been made that we should do just that for our fellow anthropoids. As editors of “The Great Ape Project,” published in 1993, animal rights advocate Paola Cavalieri and philosopher Peter Singer argue that we should grant legal equality to orangutans, gorillas and chimpanzees (presumably including pygmy chimpanzees, also known as bonobos). Now, in “Rattling the Cage,” animal rights law professor and litigator Steven Wise argues for granting personhood to chimpanzees and bonobos because they are so like you. (What happened to the gorillas and orangutans? He doesn’t say.)

He principally addresses their consciousness and intelligence — their autonomy — touching only briefly on their genetic relationship to us. (It’s estimated that we have 98 percent of our DNA in common with chimpanzees, our closest genetic relatives.) Wise examines the comparison of great apes with such categories of legal persons as children, unborn fetuses and the mentally incompetent, arguing that chimps and bonobos “are entitled to the rights to bodily integrity and bodily liberty if humans with similar autonomies are entitled to them.”

Why on earth should we involve innocent apes in our zany legal system? What could they possibly have done to deserve that? The answer is that many great apes are already enmeshed in our legal system, which defines them as property.

Lawyers struggling to prevent cruelty to animals — a small but growing band — are repeatedly frustrated by the limitations of feeble anti-cruelty laws. They cobble together innovative strategies revolving around charges like veterinary malpractice.

In the case of a Massachusetts couple whose seven beloved sheep were killed by a neighbor’s dogs, Wise requested compensation beyond the market value of the sheep — emotional damages. “I am talking about people who let their sheep in the house and baked them muffins,” Wise told the New York Times.

Anti-cruelty laws written to curb the worst practices of farmers or pet owners seldom address the nature of different kinds of animals. While they may specify that animals can’t be starved, they are unlikely to have anything to say about putting a chimpanzee alone in a small metal cage and leaving it there for a decade or two.

In 1998, a lawsuit was filed appealing to the Federal Animal Welfare Act to get companionship for an isolated chimpanzee at the Long Island Game Farm Park and Zoo, arguing that his solitude violated “the psychological well-being of primates.” In what was called a groundbreaking ruling, the court ruled that a zoo visitor had standing to sue. Two years before the ruling, while the case was grinding through the courts, the chimp, Barney, escaped, bit a person, pulled up a sign and threw it at a carousel and was shot by a zoo employee.

Such legal strategies are stopgaps. It might seem that the obvious remedy is to put teeth in laws against cruelty to animals. But Wise points out that this does not address the essential conflict with the property rights of those who own the chimps. If apes are property, then owners will wish to maximize their return on their property and generally dispose of their property as they see fit. Gary Francione, an attorney who directs the Rutgers Animal Rights Law Clinic, writes, “Animals can virtually never prevail as long as humans are the only rightholder and animals are merely regarded as property — the object of the exercise of an important human right.” You lose, Bonzo.

The next obligatory part of the argument centers on how smart and lovable and reflective apes are. Almost every person who spends time with great apes becomes increasingly certain that they have mental and emotional qualities startlingly similar to our own. Bernard Rollin, a philosopher and biologist, describes an encounter with a zoo orangutan. Rollin was taken on a behind-the-scenes tour. It was a hot day and he had his sleeves rolled up. As he entered the cage, the orangutan grabbed his left hand. She ran her finger along a “deep and dramatic scar” on his left forearm, gazing into his eyes. She took his right wrist, and traced her finger along his unscarred arm, looking at him quizzically. Then she touched the scar again.

“The sense that she was asking me about the scar, as a child might, was irresistible; so irresistible, in fact, that I found myself talking to her as I would to a foreigner with a limited grasp of English. ‘Old scar,’ I said. ‘Surgery. The doctors did it’… I confess to spending the next few hours in something of a stupor, so overwhelmed by the fact that I had, albeit momentarily, leaped the species barrier. I still cannot think or talk about that moment without feeling a chill of awe and sublimity.”

Other contributors to “The Great Ape Project,” including such primatologists as Jane Goodall, Geza Teleki and Roger Fouts, describe a growing certainty that the apes are astonishingly like us and unquestionably entitled to protection. The project’s “Declaration on Great Apes” asks to extend “the community of equals to include all great apes: human beings, chimpanzees, gorillas and orangutans” in granting us all three rights — the right not to be killed, except in circumstances such as self-defense; the right to liberty (except when criminally liable or for the protection of others); and the right not to be tortured. This last includes most painful experiments, except when the subject has given informed consent. And since the other apes can’t give informed consent, that leaves humans as the only great apes you can hook up to the shock device. I don’t know about you, but I generally turn down offers of that kind.

In the late 1990s, New Zealand and Great Britain banned experimentation on great apes, though neither nation has granted them legal personhood. Even Richard Dawkins, a famously unsentimental biologist, supports the declaration. Dawkins examines the biological facts of our close relationship to the other great apes and concludes that they are more like us than they are different. Most supporters of the declaration argue not from molecular similarity, but from mental similarity. Much of this discussion comes from philosophers, who litter the animal rights movement with their terrifyingly Germanic prose. Philosophers in general love to propound definitions of what it is to be a person, and philosophers who support animal rights find that the more we learn about the other great apes, the more they seem to meet the criteria.

The line that divides humans from other animals gets moved every time we learn more about the animals. Man is the animal that uses tools — what, you say chimps, otters, even birds use tools? Man is the animal that makes tools. What, wild chimps make tools? Well, man is the animal that demonstrates mental meta-representation, self-conception, conscience, logical and mathematical ability, the knowledge that minds exist, and symbolic and nonsymbolic communication. And should be able to dance backward in high heels, presumably.

No one argues that the other great apes are as capable as we are at this stuff (which might be why we picked these criteria), but as psychologist Robert Mitchell writes, “The great apes seem to differ from human beings by degrees [of self-consciousness] rather than in kind.”

Mitchell’s research focuses on imitation and deception, subjects that cast light on animals’ self-images and on their knowledge of other minds. He relates the story of a young bottlenose dolphin in an aquarium trying to get attention from some people on the other side of the glass. Seeing one of them blow a cloud of cigarette smoke, she went to her mother, took a mouthful of milk, swam back to the glass and puffed it out so it made a cloud around her own head. It’s cute, but it also demonstrates “communication via simulation and non-natural meaning.”

Deception also demonstrates interesting things about consciousness of self and others and perhaps an explicit “theory of mind.” H. Lyn White Miles, a sociologist and psychologist, worked with an orangutan, Chantek, who knows some sign language. Chantek stole a pencil eraser, popped it in his mouth and pretended to swallow. To prove it, he opened his mouth and signed “food eat.” But in fact — the liar! – - he had concealed it in his cheek, where he kept it until he could stash it in his bedroom.

One can’t get too outraged about the theft of the eraser or Chantek’s grossly dishonest testimony, but the matter of deception raises the issue of responsibility. Primatologist Frans de Waal, who has done extensive research on the lives of captive chimpanzees and bonobos, argues that “rights are part of a social contract that makes no sense without responsibilities.”

If Chantek bites someone who tries to take his eraser, should he be held responsible? What if he kills someone? Or, in the example given by de Waal, if a cheetah attacks a gazelle, can a lawyer representing the gazelle sue the cheetah?

De Waal hopes that we can ensure decent treatment of animals not by giving them rights and lawyers, but by advocating a sense of obligation and an ethic of caring. De Waal also objects to “the animal rights movement’s outrageous parallel with the abolition of slavery,” which he calls not only insulting but also morally flawed. “Slaves can and should become full members of society,” he writes. “Animals cannot and will not.”

It’s true that animal advocates like Wise seem to talk about slavery endlessly. Wise makes heavy use of the comparison between remarks made about slaves and what people now say about animals. People said slaves could not feel pain, could not anticipate the future, could not take care of themselves and could not be taught to read. They were called “animated property.”

What could be more insulting and racist than comparing human beings to animals? It is certainly racist to liken one race of humanity to animals, but this is not what animal rights proponents do. Instead they liken all humans to animals. Because identical remarks about slaves and animals have been made does not mean that slaves and animals are identical. Rather, it illustrates the arbitrariness of such rhetoric.

Supporters of the “Declaration on Great Apes” are undecided on exactly what rights apes should have besides life, liberty and freedom from torture. There’s general agreement that we don’t get to bring law and order to wild communities, wading in to stop chimp-on-chimp violence. Attorney Francione feels apes will be safe from criminal liability because, though persons, they would have to be treated as “children or incompetents.” (Yet how much protection is that in an era when presidential candidates are eager to execute juveniles and the mentally incompetent to win votes?)

Wise argues that the rights of apes, at least those who live in America, will have to be restricted, even with legal personhood. They should have partial rights, the same way children, mentally retarded or autistic people have partial autonomy.

When it comes to other animals, critics ask where we draw the line. Will we be asked to grant personhood to all primates next? All mammals? All vertebrates? “Would even bacteria have rights?” asks legal scholar Richard Epstein.

Well, no. I have yet to find anyone who would deny you the chance to brush your teeth, no matter how many innocent bacteria you kill. So a line would indeed have to be drawn, and we will differ on where to draw it. But the more you know great apes, it seems, the more certain you are that they belong on the same side of the line, even if no other animals do.

And some people who express derision at the idea of considering great apes as legal persons may have overlooked the fact that our legal system treats corporations and associations as legal persons, who may therefore sue and be sued.

An enduring problem with animal rights issues is the suspicion of the hidden agenda. When someone says you shouldn’t wear fur, do you suspect that if they win that battle, they will next request that you not wear leather, then that you not eat meat, then perhaps that you become a vegan and give up milk, honey, wool and other animal products?

In truth, many animal activists do have such goals for the world and hope to proceed step by moral step toward them, leading you bleating and rationalizing behind them. “Well, OK, no endangered species, but I still get fur trim on my parka. They do? OK, no fur, but I’m not giving up veal. They raise them how? OK, no veal, but I’m not giving up lobster. Really? That’s so sad. OK, no lobster, but …”

Wise, for example, makes only passing reference to animals other than chimpanzees and bonobos. While he explores the implications of personhood for chimps and bonobos, he does not examine the implications of granting personhood to some animals and not others. He has fought legal battles on behalf of animals from the muffin-munching sheep to parrots, so one naturally suspects that if the battle to cede personhood to great apes is won, he’ll be back with testimonials to the wonders of other creatures.

The other great apes are not identical to us, but like us in their mental lives and in our close physical relationship. I’m not sure where I myself will want to draw the line, but I’m convinced that apes (and I would vote for all of them, not just chimps and bonobos) should be on my side of it, even if they insist on hooting and throwing things at the animals on the other side.

Susan McCarthy is a San Francisco freelance writer and the author, with Jeffrey Masson, of "When Elephants Weep: The Emotional Lives of Animals."

More Related Stories

Featured Slide Shows

  • Share on Twitter
  • Share on Facebook
  • 1 of 11
  • Close
  • Fullscreen
  • Thumbnails

    Ten spectacular graphic novels from 2014

    Beautiful Darkness by Fabien Vehlmann & Kerascoët
    Kerascoët's lovely, delicate pen-and-watercolor art -- all intricate botanicals, big eyes and flowing hair -- gives this fairy story a deceptively pretty finish. You find out quickly, however, that these are the heartless and heedless fairies of folk legend, not the sentimental sprites beloved by the Victorians and Disney fans. A host of tiny hominid creatures must learn to survive in the forest after fleeing their former home -- a little girl who lies dead in the woods. The main character, Aurora, tries to organize the group into a community, but most of her cohort is too capricious, lazy and selfish to participate for long. There's no real moral to this story, which is refreshing in itself, beyond the perpetual lessons that life is hard and you have to be careful whom you trust. Never has ugly truth been given a prettier face.

    Ten spectacular graphic novels from 2014

    Climate Changed: A Personal Journey Through the Science by Philippe Squarzoni
    Squarzoni is a French cartoonist who makes nonfiction graphic novels about contemporary issues and politics. While finishing up a book about France under Jacques Chirac, he realized that when it came to environmental policy, he didn't know what he was talking about. "Climate Changed" is the result of his efforts to understand what has been happening to the planet, a striking combination of memoir and data that ruminates on a notoriously elusive, difficult and even imponderable subject. Panels of talking heads dispensing information (or Squarzoni discussing the issues with his partner) are juxtaposed with detailed and meticulous yet lyrical scenes from the author's childhood, the countryside where he takes a holiday and a visit to New York. He uses his own unreachable past as a way to grasp the imminent transformation of the Earth. The result is both enlightening and unexpectedly moving.

    Ten spectacular graphic novels from 2014

    Here by Richard McGuire
    A six-page version of this innovative work by a regular contributor to the New Yorker first appeared in RAW magazine 25 years ago. Each two-page spread depicts a single place, sometimes occupied by a corner of a room, over the course of 4 billion years. The oldest image is a blur of pink and purple gases; others depict hazmat-suited explorers from 300 years in the future. Inset images show the changing decor and inhabitants of the house throughout its existence: family photos, quarrels, kids in Halloween costumes, a woman reading a book, a cat walking across the floor. The cumulative effect is serene and ravishing, an intimation of the immensity of time and the wonder embodied in the humblest things.

    Ten spectacular graphic novels from 2014

    Kill My Mother by Jules Feiffer
    The legendary Pulitzer Prize-winning cartoonist delivers his debut graphic novel at 85, a deliriously over-the-top blend of classic movie noir and melodrama that roams from chiaroscuro Bay City to Hollywood to a USO gig in the Pacific theater of World War II. There's a burnt-out drunk of a private eye, but the story is soon commandeered by a multigenerational collection of ferocious women, including a mysterious chanteuse who never speaks, a radio comedy writer who makes a childhood friend the butt of a hit series and a ruthless dame intent on making her whiny coward of a husband into a star. There are disguises, musical numbers and plenty of gunfights, but the drawing is the main attraction. Nobody convey's bodies in motion more thrillingly than Feiffer, whether they're dancing, running or duking it out. The kid has promise.

    Ten spectacular graphic novels from 2014

    The Motherless Oven by Rob Davis
    This is a weird one, but in the nervy surreal way that word-playful novels like "A Clockwork Orange" or "Ulysses" are weird. The main character, a teenage schoolboy named Scarper Lee, lives in a world where it rains knives and people make their own parents, contraptions that can be anything from a tiny figurine stashable in a pocket to biomorphic boiler-like entities that seem to have escaped from Dr. Seuss' nightmares. Their homes are crammed with gadgets they call gods and instead of TV they watch a hulu-hoop-size wheel of repeating images that changes with the day of the week. They also know their own "death day," and Scarper's is coming up fast. Maybe that's why he runs off with the new girl at school, a real troublemaker, and the obscurely dysfunctional Castro, whose mother is a cageful of talking parakeets. A solid towline of teenage angst holds this manically inventive vision together, and proves that some graphic novels can rival the text-only kind at their own game.

    Ten spectacular graphic novels from 2014

    NOBROW 9: It's Oh So Quiet
    For each issue, the anthology magazine put out by this adventurous U.K.-based publisher of independent graphic design, illustration and comics gives 45 artists a four-color palette and a theme. In the ninth issue, the theme is silence, and the results are magnificent and full of surprises. The comics, each told in images only, range from atmospheric to trippy to jokey to melancholy to epic to creepy. But the two-page illustrations are even more powerful, even if it's not always easy to see how they pertain to the overall concept of silence. Well, except perhaps for the fact that so many of them left me utterly dumbstruck with visual delight.

    Ten spectacular graphic novels from 2014

    Over Easy by Mimi Pond
    When Pond was a broke art student in the 1970s, she took a job at a neighborhood breakfast spot in Oakland, a place with good food, splendid coffee and an endlessly entertaining crew of short-order cooks, waitresses, dishwashers and regular customers. This graphic memoir, influenced by the work of Pond's friend, Alison Bechdel, captures the funky ethos of the time, when hippies, punks and disco aficionados mingled in a Bay Area at the height of its eccentricity. The staff of the Imperial Cafe were forever swapping wisecracks and hopping in and out of each other's beds, which makes them more or less like every restaurant team in history. There's an intoxicating esprit de corps to a well-run everyday joint like the Imperial Cafe, and never has the delight in being part of it been more winningly portrayed.

    Ten spectacular graphic novels from 2014

    The Shadow Hero by Gene Luen Yang and Sonny Liew
    You don't have to be a superhero fan to be utterly charmed by Yang and Liew's revival of a little-known character created in the 1940s by the cartoonist Chu Hing. This version of the Green Turtle, however, is rich in characterization, comedy and luscious period detail from the Chinatown of "San Incendio" (a ringer for San Francisco). Hank, son of a mild-mannered grocer, would like to follow in his father's footsteps, but his restless mother (the book's best character and drawn with masterful nuance by Liew) has other ideas after her thrilling encounter with a superhero. Yang's story effortlessly folds pathos into humor without stooping to either slapstick or cheap "darkness." This is that rare tribute that far surpasses the thing it celebrates.

    Ten spectacular graphic novels from 2014

    Shoplifter by Michael Cho
    Corinna Park, former English major, works, unhappily, in a Toronto advertising agency. When the dissatisfaction of the past five years begins to oppress her, she lets off steam by pilfering magazines from a local convenience store. Cho's moody character study is as much about city life as it is about Corinna. He depicts her falling asleep in front of the TV in her condo, brooding on the subway, roaming the crowded streets after a budding romance goes awry. Like a great short story, this is a simple tale of a young woman figuring out how to get her life back, but if feels as if it contains so much of contemporary existence -- its comforts, its loneliness, its self-deceptions -- suspended in wintery amber.

    Ten spectacular graphic novels from 2014

    Through the Woods by Emily Carroll
    This collection of archetypal horror, fairy and ghost stories, all about young girls, comes lushly decked in Carroll's inky black, snowy white and blood-scarlet art. A young bride hears her predecessor's bones singing from under the floorboards, two friends make the mistake of pretending to summon the spirits of the dead, a family of orphaned siblings disappears one by one into the winter nights. Carroll's color-saturated images can be jagged, ornate and gruesome, but she also knows how to chill with absence, shadows and a single staring eye. Literary readers who cherish the work of Kelly Link or the late Angela Carter's collection, "The Bloody Chamber," will adore the violent beauty on these pages.

  • Recent Slide Shows



Comment Preview

Your name will appear as username ( settings | log out )

You may use these HTML tags and attributes: <a href=""> <b> <em> <strong> <i> <blockquote>