Standing upright: the moral and legal standing of humans and other apes.

• Author: Kolber, Adam

INTRODUCTION

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. (11) According to New Zealand's Animal Welfare Act of 1999, (12) "research, testing, or teaching" great apes requires approval from New Zealand's government official in charge of animal welfare. (13) The official can only give approval when satisfied that the activity in question benefits the individual ape or that it benefits the ape's species and "the benefits [of the activity] are not outweighed by the likely harm[s]." (14) Thus, the changes in New Zealand law mean that experimentation on great apes must, first and foremost, benefit great apes. The enactment of these protections can largely be traced to efforts by the Great Ape Project and its New Zealand affiliate. (15) Whether one likes or dislikes the efforts made by the Great Ape Project, they are having an effect on the laws governing animal protection and experimentation.

Furthermore, moral and legal issues raised by the Great Ape Project have implications beyond the treatment of great apes. Researchers in Portland, Oregon recently reported success in inserting genes from a jellyfish into a rhesus monkey. The senior researcher said that "his ultimate goal was to create colonies of monkeys that had been genetically modified to develop a human disease." (16) At the same time that colonies of monkeys are being created to lose their lives to benefit humans, humans are risking their lives to save animals. (17) In Colorado, an eleven-year, seven billion dollar project is underway to clean up nuclear waste in order to create a wildlife preserve. At least ten workers on the project were exposed to radiation during this dangerous work. (18) We are frequently, though usually subconsciously, making tradeoffs between the interests of humans and the interests of nonhuman animals. How we decide to treat animals can affect our legal regimes related to the environment, animal welfare, endangered species, agribusiness, the consumption and production of food, animal testing, veterinary malpractice, and more.

More broadly still, our treatment of great apes raises questions about the principles which underlie human equality. We usually hold that human beings should have equal rights, regardless of their cognitive abilities. Yet, we deny great apes basic protections afforded to humans, often citing the lower intelligence of great apes as a factor. However, the cognitive capacities of great apes can rival or surpass those of very young children and humans with severe cognitive deficits. (19) Some commentators, including members of the Great Ape Project, compare great apes to these humans in order to argue, as a matter of equality, that great apes deserve the same moral and legal protections afforded to young children and humans with severe cognitive deficits. This move is certainly controversial, and Judge Posner has described it as "monstrous." (20) At a minimum, however, it has forced us to consider a new perspective on the principles underlying our concept of human equality and the boundaries that we give to morally- and legally-protected forms of life.

This Note explores some of the moral and legal arguments made for the protection of great apes and other animals. Part I provides basic information about great apes and their abilities and the laws protecting them in the United States. It also discusses the kinds of legal protections sought by the Great Ape Project. While the Great Ape Project and Steven Wise seek similar protections for great apes, I focus on the Great Ape Project since it has demonstrated its ability to influence legislation and its philosophical foundations lie at the heart of much of the "animal liberation" movement. This movement, as sparked in large measure by Peter Singer's 1975 book, Animal Liberation, (21) holds that the interests of all animals, human and otherwise, should be given equal moral consideration. A critical analysis of Singer's position forms the focus of Part II and sets the stage for a discussion of a particular policy proposal. This policy proposal, discussed in Part III, vastly restricts the discussion of great ape personhood to a much less ambitious legal issue in the law of standing. More specifically, I explore the argument that great apes (and perhaps other animals) should be granted standing to bring lawsuits, through a human guardian, under the Animal Welfare Act (AWA). (22) The law of standing currently prevents humans from suing on behalf of animals that suffer injuries under the AWA. I explore the idea that Congress could further the substantive goals of the AWA by granting standing to apes and other animals without upsetting constitutional standing requirements. Granting standing to great apes does not require us to accept arguments about ape personhood but merely requires recognition of certain obligations to protect animal interests. I argue that the standing proposal is far less radical than it might sound at first and that it is at least worthy of further consideration.

1. GREAT APES AND THE GREAT APE PROJECT

   1. Great Ape Biology and Ecology

      Most great apes are native to Africa, with the exception of orangutans which are native to the islands of Borneo and Sumatra in Asia. If we were focusing on the preservation of great apes as a species, our most important issues would be wildlife preservation in countries with native populations of great apes and the local and international laws protecting endangered species. (23) The focus of the Great Ape Project, however, is largely on individual great apes as potential rights-bearers. To that end, we will focus on great apes in the United States and the laws which protect (or fail to protect) them. An informal census of great apes living in the United States counted as follows:

      A few thousand great apes currently live in the United States. Some 2,000 chimpanzees are in laboratories, 800-900 in zoos, and a few in entertainment. Ten to twenty orang-utans are used for entertainment, fifteen to twenty in laboratories, and several hundred are kept in zoos. Almost 300 gorillas are in zoos, ten to...