Unprecedented in human time is the realization that the sum of cognitive sentient life does not end with people. From scientific revelations about the inner workings of animal consciousness, to the hybridization of people and technology, to the development of artificial intelligence, the line of beings seeking admission to the big tent of “human” rights is getting longer. And personhood, the embodiment of human justice, is evolving from the fountainhead of cognitive rights.
The earth is host to innumerable species, from the durable extremophiles that inhabit lava tubes on the ocean floor to fresh water ephemera that exist for only a day. Their sheer numbers make mankind a minority in the biological catalog, but distinct in terms of intelligence. And since the departure of Neanderthals from the playing field, the high castle of human cognition has been unassailed. However, our perception of cognition is changing.
Homo sapien culture is the product of a million years in the trenches. In its wake have arisen animal rights and environmental laws protecting nonhuman species and the natural world. And despite their aspirations the intent behind these laws has yet to be fully realized.1
Beings on this planet exist beneath one integument that separates the inner life from the outer world. Even as humans occupy only a thin layer in this global membrane of sentience, science and technology are exposing the spectrum of nonhuman cognition.
No Soul to Damn, No Body to Kick
What would law be with “no soul to damn, no body to kick”?2 This phrase speaks to the human impulse to ennoble and to demonize, to cannonade and to canonize, to reward and to punish, and to equate punishment with suffering.
In human history, cruelty was defined before personhood, indeed the story of mankind is the management of cruelty—distinguishing the gratuitous and the sinister from the necessary and the beneficial. Our laws only offer a rough hewn impression of human nature while science works to discover the unvarnished truth of cognitive life.3
In Cartesian simplicity, the first existential principle should be “I suffer, therefore I am.” And it’s moral corollary, “I have a right not to suffer.” Indeed, the vocabulary of suffering can be found in the language of laws proscribing “cruel and unusual punishments” and interdicting slavery.4 Unfortunately, the human faculty for infliction of suffering has rarely been indexed to the capacity for empathy.5
Thus, the right to be heard is the right to renounce suffering. But who in our world are voiceless? The answer is the poor, the punished and the imprisoned. And then are those beings incapable of human speech or even human thought—the silent suffering majority of animal life.6
Existence and experience are indivisible, conjoined in flesh and spirit. Thus, encagement of a body that feels is suffering; and thereby the most intense expression of cognitive personhood.7
The Exordium of Personhood
Dormant writs and forgotten remedies find new life through a legal Lazarus effect. They survive the contest between common law and codification because justice demands wrongs to be answerable.8
In several New York counties, judges were asked to consider an existential question: What does it mean to be a “person”? The Nonhuman Rights Project9 filed writs of habeas corpus entreating the law to recognize the “dignity, equality and autonomy” of chimpanzees and release them from their current holdings.10
In essence, they sought a ruling on the “personhood” of sentient animals and the right to freedom from captivity based on evidence of their “cognition, self-awareness and autonomy.”11 So they sought freedom’s remedy:
The lawsuits asked the judges to grant the chimpanzees the right to bodily liberty and to order that they be moved to a sanctuary that’s part of the North American Primate Sanctuary Alliance (NAPSA), where they can live out their days with others of their kind in an environment as close to the wild as is possible in North America.12
Predictably, the lower courts denied relief on the narrow ground that state habeas corpus did not extend to chimpanzees; they were not persons under the law.
In Nonhuman Rights Project v. Lavery, 124 A.D.3d 148, 152 (3d Dept. 2014), the Third Department conceived personhood as a “social contract”:
Needless to say, unlike human beings, chimpanzees cannot bear any legal duties, submit to societal responsibilities or be held legally accountable for their actions. In our view, it is this incapability to bear any legal responsibilities and societal duties that renders it inappropriate to confer upon chimpanzees the legal rights—such as the fundamental right to liberty protected by the writ of habeas corpus—that have been afforded to human beings.
In Matter of Nonhuman Rights Project v. Presti, 124 A.D.3d 1334, 1335 (4th Dept. 2015), the Fourth Department assumed arguendo the personhood status and standing issues. Still, the justices affirmed the dismissal because: “[H]abeas corpus does not lie where a petitioner seeks only to change the conditions of confinement rather than the confinement itself.”13
Frankly, the appellate courts took an unduly pedantic approach, defining a right by its remedy. They engaged in a form of habeas-channeling without taking into account the flexibility of New York’s procedural remedies.14
Notwithstanding the Appellate Division holdings, these decisions had three things to say: First, animals can petition;15 second, they can be represented;16 and third, they are juristic beings.
Just hearing the case was an acknowledgement of two pillars of legal existence: jurisdiction and justiciability.17 A fortiori, should the Court of Appeals decide to address this important question,18 all that remains to dilate upon is the nature of habeas corpus, i.e., cognitive liberty from unbearable confinement.19
Read more: http://www.newyorklawjournal.com/id=1202732877365/Cognitive-Rights-for-the-Neighbors-of-Humanity#ixzz3hAhrWyEF