Nonhuman rights and legal capacity

Super quick post as have to dash!  When I was trying to get my head around just what exactly legal capacity is, I read a fantastic book by Steve Wise on Lord Mansfield’s decision in Somerset’s case, which brought an end to slavery in England by recognising that ‘slaves’ were legal persons, and therefore a writ of habeas corpus could be used to release slaves from detention.  It’s a great book, and I really recommend it, but what interested me at the time was the difference that having ‘legal personality’ made and the reasoning that the court used to get there.  (Another fantastic book on legal personality is The Law is a White Dog by Colin Dayan).

Steve Wise has been applying this logic to the plight of animals, and has for some years now been working with the Non Human Rights Project in the USA to seek to get certain animals with higher level cognitive functioning recognised as legal persons.  They argued that recognition of legal personality was critical for animals in captivity to have ‘rights’ – as opposed to welfare laws that couldn’t be enforced directly on behalf of the animals.  Up until this week, they didn’t have a great deal of success, but this morning I saw the following press release on their website:

First Time in World History Judge Recognizes Two Chimpanzees as Legal Persons, Grants them Writ of Habeas Corpus

April 20, 2015 – New York, NY – For the first time in history a judge has granted an order to show cause and writ of habeas corpus on behalf of a nonhuman animal. This afternoon, in a case brought by the Nonhuman Rights Project (NhRP), Manhattan Supreme Court Justice Barbara Jaffe issued an order to show cause and writ of habeas corpus on behalf of two chimpanzees, Hercules and Leo, who are being used for biomedical experimentation at Stony Brook University on Long Island, New York.

Under the law of New York State, only a “legal person” may have an order to show cause and writ of habeas corpus issued in his or her behalf. The Court has therefore implicitly determined that Hercules and Leo are “persons.”

A common law writ of habeas corpus involves a two-step process. First, a Justice issues the order to show cause and a writ of habeas corpus, which the Nonhuman Rights Project then serves on Stony Brook University. The writ requires Stony Brook University, represented by the Attorney General of New York, to appear in court and provide a legally sufficient reason for detaining Hercules and Leo. The Court has scheduled that hearing for May 6, 2015, though it may be moved to a later day in May.

The NhRP has asked that Hercules and Leo be freed and released into the care of Save the Chimps, a sanctuary in Ft. Pierce, Florida. There they will spend the rest of their lives primarily on one of 13 artificial islands on a large lake in Ft. Pierce, Florida along with 250 other chimpanzees in an environment as close to that of their natural home in Africa as can be found in North America. In the second step of the process, the Court will determine whether the reason given by Stony Brook is legally sufficient, or whether Hercules and Leo should be freed.

Hercules and Leo’s suit was originally filed in the Supreme Court of Suffolk County in December, 2013. A Justice of that Court refused to issue the requested writ of habeas corpus, and the Appellate Division, Second Department, dismissed the appeal on the ground that the NhRP lacked the right to appeal.

In the belief that both courts erred, the Nonhuman Rights Project respectfully re-filed its petition for an order to show cause and writ of habeas corpus on behalf of Hercules and Leo in March, 2015, in the New York County Supreme Court in Manhattan, which led to today’s decision.

In two similar cases on behalf of two other chimpanzees, Tommy and Kiko, the Nonhuman Rights Project has filed Motions for Leave to Appeal to New York’s highest court, the Court of Appeals. Decisions in both cases are pending.

The critical take home point is that legal capacity is a fluid construct, that is highly flexible and can be shaped and reshaped for the needs of the day.  I’m looking forward to seeing the court transcript from the hearing.

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