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With the Spanish Parliament Poised to Extend "Human Rights" to Great Apes, What are the Implications for Human Beings and Other Animals?


Monday, Jul. 21, 2008

Last month, the environmental committee of the Spanish Parliament passed several resolutions embracing the principles of the Great Ape Project (“GAP”), which hold that Great Apes – including Chimpanzees, Bonobos, Gorillas, and Orangutans – are entitled to the same basic rights as human beings against being held captive, killed, and tortured. Soon, the Parliament is expected to approve the resolutions. In this column, I will consider and evaluate some responses to the resolutions, both favorable and critical.

The Theory Behind the Resolutions: Great Apes Share Morally Relevant Qualities with Humans

“The Great Ape Project” refers both to an organization and to its platform. The organization, as of its founding in 1993, has urged the extension of what are currently called “human rights” to the select species of primates included within the group of Great Apes.

The organization reasons that all of these primates share the morally relevant qualities of human beings that endow us with human rights, such as the capacity to feel fear, anxiety, pain, and happiness; the skill to create and use tools; and the ability to learn language. With these qualities in common, the GAP argues, it is unconscionable for us to use the Great Apes for entertainment, experimentation, or food.

The Critics’ Argument: Ensure Human Rights First

Some critics of the recent resolutions take a “First things first” attitude. They note that many human beings on this earth do not enjoy human rights, and they worry that extending protection to nonhuman animals under such circumstances distracts us from the work of ensuring the universality of these rights among our fellow human beings. These critics do not necessarily quarrel with the idea of Great Apes eventually having human rights, as long as it does not happen before all human beings are truly covered.

There are at least two flaws in the argument that because human beings do not all enjoy the human rights to which they are entitled, the law should not extend the rights to any nonhuman animals.

First, as a legal matter, the international community does recognize that every human being has the right not to be kept in captivity as a slave, not to be killed (other than in self-defense or as a penalty for a serious crime), and not to be tortured. The fact that some governments (including, disturbingly, our own) fail at times to comply with these mandates does not change the fact that the victims have rights; it means only that the rights have been violated. The International Criminal Court’s recent indictment of Sudan President Al-Bashir for genocide and crimes against humanity, to note one example, illustrates the vitality of a universal vision of enforceable human rights.

Just as private people will commit atrocities notwithstanding the law, government officials will do so as well. But because we prohibit such conduct, we recognize its commission as a violation of human rights, rather than authorizing and accepting the conduct as legitimate and lawful.

By contrast to every human being on the planet, “nonhuman animals,” no matter what capacities they have, lack the basic legal right to be left alone. That is, we human beings can and do – with complete impunity and without risk of legal repercussions – cage animals; subject them to excruciatingly painful medical experiments; slaughter them for food; mutilate them in the process of preparing them to be eaten; and forcibly compel them to appear in circuses, movies, and rodeos for our entertainment.

Spain’s adoption of GAP principles will, of course, not end the abuse of our closest genetic relatives, any more than criminal laws against rape and murder have ended the commission of these crimes throughout the world. What the GAP (and presumably the Spanish Parliament) aim to do, instead, is to classify as serious crimes the sorts of behavior that have, up until now, been perfectly legal. The hope is thereby not only to reduce the incidence of such abuse, but also to alter the way in which we think about Great Apes. Ideally, we would come to understand that our primate cousins have intrinsic value and do not exist as mere means to human ends. We have achieved that moral understanding with respect to all human beings, and it is proper that we achieve it with respect to Great Apes as well.

The second flaw in the “First things first” argument is the assumption that we must tackle injustice one step at a time and that as long as we have not successfully ended one kind of atrocity (towards human beings), we must refrain from addressing another kind of atrocity (towards Great Apes). The problem in such thinking is that fighting injustice ought not to be a competitive enterprise. To recognize, for example, that African-Americans are entitled to equal treatment under the law does not morally preclude the simultaneous recognition that women are entitled to equal treatment under the law.

If anything, the failure to extend basic rights beyond our own species exposes a prejudice that reduces the moral force behind the fight to protect such rights – the view that only those who very much resemble us must remain free of captivity, murder, and torture. In the history of human life on the planet, moreover, this kind of thinking has led repeatedly to the persecution and slaughter of human beings who fell outside the narrow circle of “people like us.”

The Defenders’ Argument: A Key First Step Toward the Abolition of Animal Cruelty and Exploitation

Before the reader concludes that I am unambiguously enthusiastic about the Spanish Parliament’s recent move, let me turn a critical eye to what some defenders of the GAP proposal have said. Many – including, not surprisingly, members of the GAP itself – believe that this is a monumental first step toward the legal abolition of animal cruelty and exploitation. Once we come to recognize that Great Apes are entitled to what we have heretofore considered exclusively “human” rights, they predict, we will become more open to recognizing that other species share such entitlements as well.

One flaw in this “positive slippery slope” argument is that the entire premise of the GAP is that there is something special about the Great Apes, by contrast even to the apes that fall outside this category, such as Gibbons. What is special about them? The fact that like us, they can perform intellectually-demanding tasks like tool-building and language-based communication.

If such characteristics properly distinguish between those who may be tortured and killed and those who may not be, then there is no reason to expect any further slippage down the slope. To put it differently, the GAP appears to enlarge the category of “human beings” to include our closest genetic relatives, rather than truly expanding the category of morally-valuable entities beyond human beings.

A more significant flaw in both the argument and the GAP more generally is that the ability to make tools or use language to communicate does not have any obvious moral relevance to answering the question “Who has the right not to be murdered, tortured, or enslaved?” If we look to the category of human beings alone, for instance, we do not limit human rights to those human beings who are capable of tool-making or speech. As Professor Gary Francione observed in Introduction to Animal Rights: Your Child or the Dog? and Animals as Persons: Essays on the Abolition of Animal Exploitation, we frequently extend greater protection against exploitation to those human beings who are least able along some of the dimensions that the GAP has identified as central to an entitlement to human rights.

An infant or a mentally-disabled human being has at least as much of a right to be free of painful bio-medical experimentation as a brilliant scholar does, regardless of whether he or she is able to speak or perform rudimentary tasks that supposedly distinguish us from nonhuman animals. And if these traits are not relevant to a human’s entitlement to human rights, then why should their presence or absence play any role in deciding whether and to whom among nonhumans to grant the same rights?

When one considers why it is wrong to torture another human being or why it is wrong to kill her or hold her in captivity, a more logical answer than her ability to use tools or language is her capacity to suffer when experiencing captivity, torture, and death. Torture is wrong, in other words, because it inflicts excruciating pain on a being that is capable of suffering excruciating pain, not because it inflicts excruciating pain on someone who happens also to be capable of writing poetry or performing complex mathematical equations.

Jeremy Bentham said of our treatment of nonhuman animals over 200 years ago: “The question is not, Can they reason? nor, Can they talk? but, Can they suffer?” If the answer to this question is yes – which it certainly is for the astonishing number of mammals, birds, and fish that human beings consume – then it is wrong to torture, kill, and confine them.

As an empirical matter, it is possible that the largest hurdle to recognition of rights (against torture, murder, and enslavement) in all sentient non-human animals is crossing the human/nonhuman divide and that if we can do so, then we will all become more receptive to the argument that the consumption of animals as products is wrong across the board. It strikes me as doubtful, however, that this consequence will follow if our very theory for enlarging the moral community is that Great Apes are so similar to human beings. This theory seems too much like the exception that proves the rule, reinforcing the notion that whatever is distinctive about human beings (whether our DNA or our supposedly unique skill set) is what entitles a living creature to be free of torture, murder, and enslavement. This reasoning appears to close the door to the cows, sheep, pigs, and chickens who suffer at our hands in the largest numbers.

Residual Ambivalence

Having criticized the GAP, I am nonetheless ambivalent. If the choice is between protecting the rights of Great Apes to freedom from treatment as objects whose interests we utterly disregard and not protecting animals at all, then I would strongly favor the former. It would be very unfortunate, however, if the fight to protect Great Apes had the effect of reducing people’s inclination to take account of other animals – if it diverted our conscience regarding animals, in other words, away from challenging their use across the board.

That said, I am happy for the Spanish primates, just as I would be for any small group of animals (human or nonhuman) whose suffering at our hands is finally recognized as the wrong that it is. And perhaps, if the Parliament’s resolutions give rise to more conversations about animal rights around the world, they will indirectly lead more people to favor the abolition of animal torture, murder, and slavery, and to adopt that philosophy in their own lives, by becoming vegans.

Sherry F. Colb, a FindLaw columnist, is a Professor at Cornell Law School. Her book, When Sex Counts: Making Babies and Making Law, is currently available on Amazon.

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