On November 7, 2019 Newsweek published an article with the rather sensational title, “Orangutan Granted Legal Personhood, Moves to Florida, Becomes Florida Woman.” In a time when transgender identities arouse national debate and ethical perturbation, the suggestion that an orangutan named Sandra could seemingly change species and move from Buenos Aires to Florida as a woman—all by legal declaration—is indeed an “oddity,” as the Associated Press categorized it, if not a descent into delirium. Sandra’s move was the culmination of legal efforts to free her from a zoo where she languished from 2015 until better conditions could be obtained.
The declaration by an Argentinian judge in 2015 that the orangutan is legally not simply an animal, but a non-human person, purported, in her words, to “tell society something new, that animals are sentient beings and that the first right they have is our obligation to respect them.” That ruling came as a result of a habeas corpus petition filed on behalf of the orangutan. In order to validate the use of an action that is typically used to challenge the legality of a person’s detention or imprisonment, the judge, in essence, “reassigned” the orangutan’s species so as to grant it human rights. Granting non-human animals legal personhood and human rights, however, demonstrates a failure to distinguish between sentience and the higher-order consciousness, self, and rational soul that are requisite for such rights—the latter all being unique to humans. Species distinctions endure regardless of judicial declaration.
The Use of Habeas Corpus for Animals
The case of Sandra the orangutan is by no means the first successful filing of a writ of habeas corpus on behalf of an animal “imprisoned” in a zoo. Cecilia the chimpanzee was granted a writ of habeas corpus by an Argentinian court in November 2016. A 2017 Colombian Supreme Court ruling granted habeas corpus to Chucho the bear and relocation from a zoo to a more species-appropriate habitat.
Such efforts had not met with success in the United States, but the tide may be turning. In 2014, the New York State Supreme Court ruled in the case of Tommy the chimpanzee that “a chimpanzee is not a ‘personʼ entitled to the rights and protections afforded by the writ of habeas corpus.” The Court argued that the chimpanzee’s inability to be responsible rendered it ineligible for a conferral of human rights. The New York County Supreme Court followed this precedent in the 2015 case of Hercules and Leo the chimpanzees, ruling in favor of Stony Brook University’s use of the animals in laboratory experiments. Notwithstanding, the judge acknowledged “efforts to extend legal rights to chimpanzees are . . . understandable; some day they may even succeed,” and that “[t]he pace may now be accelerating.”
Further efforts did succeed on November 16, 2018, when a New York State judge issued a habeas corpus order on behalf of Happy, an elephant at the Bronx Zoo, ordering that it be released to an appropriate sanctuary. The pace may now be accelerating. Chimps and elephants have not, of course, suddenly become self-conscious and responsible agents. Rather, anthropomorphic arguments for the sentience of animals now hold judicial sway.
The Question of Legal Personhood: Are Some Animals “Just Like Us”?
The Non-Human Rights Project, which brought the last two suits in the United States, seeks to extend rights to whales, orcas, dolphins, and chimpanzees, as well as to any other animals that demonstrate sufficient cognition and autonomy to be recognized as a “legal person” and be granted personal liberty. The Great Ape Project (GAP), organized by philosophers Peter Singer and Paola Cavalieri in 1993, similarly seeks to “defend the rights of non-human great primates” (chimpanzees, gorillas, orangutans, and bonobos).
Dr. Pedro Ynterian, founder of the GAP Brazil Project, explains that chimpanzees “think, feel, hate, suffer, learn, and even transmit their learning. They are just like us. The only difference is that they do not speak, although they communicate through gestures, sounds, and facial expressions. We need to guarantee their rights to life and freedom.” If chimpanzees are “just like us,” except that they do not speak, then certainly they should be granted the rights to life, liberty, and the pursuit of happiness. What Thomas Jefferson asserted to be “self-evident” in the eighteenth century—that all humans are “endowed by their Creator” with these unalienable rights—is no longer so clearly limited to humans.
But we must make it clear that chimpanzees—as well as whales, dolphins, and all other creatures—whatever sentience they may have, are not “just like us.” Anthropologist Russell Tuttle ably synthesizes the many studies of our closest hominid ancestors in his magisterial 2014 book Apes and Human Evolution. Chimps are very capable learners, with ideational processes enabling them to be good problem solvers. They have self-recognition, exhibit intentional behavior, deception, cooperation, and retribution, and have mental powers (thinking, knowing, perceiving, feeling) common to many species.
They are not, however, lingual. The female chimp Washoe (1965–2007), though raised from the age of one year in daily interaction with humans, learned by age five to make 132 signs in American Sign Language and to understand several hundred more. This pales in comparison to an average human, who learns about 60,000 words between birth and adulthood, beginning at age two at a rate of eight to ten a day.
Stephen Budiansky demonstrated in his book If A Lion Could Talk: Animal Intelligence and the Evolution of Consciousness that efforts to replicate the “Washoe effect” showed, in contrast to the largely spontaneous and creative use of language by children (hearing and deaf alike), chimp signing turned out to be a means of obtaining a reward from the teacher. “The apes were largely imitating signs that their trainers had just used,” along with making many mistakes or questionable signs that were “extremely generous” in interpretation.
This is the “gross anthropomorphism” that Budiansky and others deem the great bane of animal studies—the tendency to read human attributes into animal actions. Tuttle concludes that Washoe and other chimps in similar studies are “problem solving instead of using language with the intent of conveying meaning.” Since computers process language apart from consciousness, it is difficult to allow that chimps and other non-human hominids possess those aspects of language and culture that are symbolically mediated in ideas, beliefs, and values—not to mention morals, truth, and spirituality, all of which would seem to be involved in genuine autonomy. Non-human animals are not essentially rational animals as humans are.
Rationality, Sentiency, and Orders of Consciousness
Rationality is not some particular power humans have, but rather their distinctive manner of having powers. To describe a human being as rational does not describe properties requisite to qualify for a certain species or species’ right; rather it characterizes human nature itself. The predicates, as Matthew Boyle puts it, “state not features that individuals must have if they are to belong to that kind, but rather attributes that directly characterize the nature of the substantial kind itself.” “Rational” is thus not a characteristic of some animal species, but instead constitutes the human way of being uniquely different from all other physical creatures. Deliberative agency and subjectivity, acting knowingly by conceptually weighing options, all involving intentionality and reflective thought, are distinctive of humans, who alone fit the description of rational animals.
The Argentinian judge ruled an orangutan was a non-human person based on sentiency. Many are concerned about the “smuggling in of consciousness” involved in the use of the term “sentiency.” Though Darwin himself recognized imagination as a “serious source of error,” leading one to project what might be expected, cognitive ethology’s admitted reliance “on anecdotes, analogy, and anthropomorphism to reach its conclusions” may compound this error.
It has certainly given rise to a veritable cottage industry of books on the emotional lives of animals. Neuroscientist Joseph LeDoux, in his recent book A Deep History of Ourselves, is among the “many [who] are challenging these ideas, arguing that versions of anthropomorphism with scientific-sounding names do not qualify as rigorous scientific approaches to behavior. . . . Unless one can rule out alternative nonconscious interpretations in animals, claims of consciousness should be withheld.”
Already back in 1940, C. S. Lewis observed of animal suffering: “we must still distinguish sentience from consciousness.” He noted that, while animals have a nervous system in which to experience sensations, there is no (rational) soul or self in them to distinguish itself from the sensation, to say, “I am in pain.” Thus, “a great deal of what appears to be animal suffering need not be suffering in any real sense,” since humans may be “reading into the beast a self for which there is no real evidence.”
However, advocates of animal rights and liberation often equate sentiency with consciousness, without distinguishing how consciousness is to be understood. The July 2012 Cambridge Declaration on Consciousness, signed by a dozen neuroscientists, maintained that nonhuman animals—including all mammals and birds, and many other creatures such as octopuses—possess the neurological substrates necessary for the generation of consciousness. Sentience, generally understood as the capacity to feel or experience, as distinct from reason and perception, is here assumed to involve consciousness, but of what type?
Psychologist Merlin Donald is among many who suggest different orders of consciousness, noting at least three definitions: consciousness as a state—that of concentration, readiness, and dreams, which most mammals and many non-mammals have; consciousness as a place in the mind—architecturally having to do with the cognition, emotion, action, and self-regulation that are found in all higher mammals—as well as in some species of birds—that enable them to pursue a goal over the short term and to behave as though they possessed a unity of experience; and finally, consciousness as representational, which is exclusive to humans because it depends on the human capacity for symbolic expression that is found in language.
Human Rights Only Belong to Human Beings
Many creatures have various degrees of sentience and cognitive ability, including some level of consciousness. What distinguishes the human species from all non-human animals is self-consciousness: the recognition of one’s being a self that is ontologically distinct from the thoughts one has—the recognition that one is the subject of experience, a responsible agent, a person. All of these are part of being an essentially rational animal and, in the Judeo-Christian perspective, of being created in the image of God.
Humans are different in kind from all other animals. This claim is not based on an aggregate of properties or capabilities found in some, but perhaps not all, humans. To disable or remove a property does not change what something essentially is. A blind eagle is still an eagle, and an unconscious or unborn human is still a human.
Animals do not have freedom of the will; morality based on ideas of virtue, duty, and intrinsic value and rights; or any concept of truth; or abstract thought; or language. No amount of legal legerdemain can reassign to an orangutan, or to any other creature, the status of being sufficiently “like us” to be an autonomous creature with the rights that are unique to humans. Species is not judicially assigned but divinely determined.
The legal profession needs to reckon with the question of granting human rights to non-human animals, because they are not “just like us.” Granting human rights to non-human creatures sets a dangerous precedent, with potential ramifications for many facets of human-animal relations. The differences between humans and non-humans need to be better articulated in philosophy, theology, science, law, and journalism. Apart from clearly delineating and understanding what sentience, consciousness, selfhood, and personhood entail, humans’ tendency to anthropomorphize may continue apace, reassigning non-humans to the realm of rights-bearing humans.
No non-human animal, however, should be construed as having human rights, by definition. No orangutan can ever become a woman—an adult human female. Sensationalistic headlines notwithstanding, Sandra is still an orangutan, living now in Florida with other orangutans—a female but not a woman—ever to be an orangutan, without the ability to understand any concept of rights. She may not know better, but we humans should.