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DDr. Martin Balluch, Verein Gegen Tierfabriken, Vienna,
Austria
Mag. Eberhart Theuer, University of Vienna, Austria
Introduction
The chimpanzee “Matthew Pan”, affectionately known
as “Hiasl”, was abducted in 1982 from the African
jungle to be used in experiments in Austria. As his
abduction was illegal, he was freed at the airport.
After long legal battles with the company responsible
for his abduction, he grew up in a human family and
now lives at a Viennese animal shelter. In 2006, this
shelter ran into financial difficulties and he was
threatened with deportation. As a result, in 2007
his close friends started legal proceedings to have
him declared a person and get him appointed a legal
guardian to represent him in court. Four renowned
experts in anthropology, biology and law supported
the case scientifically. According to Austrian law,
all members of the genus “homo” are persons, and chimps
belong into this genus as they share 99.4% of human
genes. Secondly, it is argued that the definition
of person means, biologically, possessing a “theory
of mind”, which chimps do. Only when accepted as a
person, can Matthew's interests count and only as
a person can he start legal proceedings, claiming
for damages against those responsible for his abduction,
to secure his future.
Matthew's story
The chimpanzee Matthew Pan, as he is known, was born
in 1981 in the jungle of Sierra Leone, Western Africa,
into a tribe of troglodytes verus chimpanzees. In
those days, research labs, zoos and circuses were
very interested in chimpanzees caught in the wild
and were prepared to pay a big ransom for their capture.
In Sierra Leone, a wild animal trader of Austrian
origin named Dr. Sitter caught a number of baby chimps
to send over to Austria. For the price of 460,000
Austrian Schillings (corresponding to 33,500 Euro)
Matthew’s fate was decided. His mother was shot and
he was ripped from her dead body, aged only 10 months,
and stuffed into a box and boarded onto a plane. On
29th April 1982 he arrived together with 11 other
baby chimpanzees at Vienna International Airport Schwechat.
He and a young female chimpanze called Rosi, who,
like Matthew, was also about 10 months old, were destined
to go to the laboratory belonging to the company Immuno
in Orth on the Danube, 30 km East of Vienna, for medical
experiments to do with hepatitis and AIDS. In those
days, Immuno was trying to establish a large chimp
colony at their lab to breed them as experimental
tools. By 1989, Immuno had 53 chimps, of whom only
2 were not wild caught. For the chimps, being in the
lab meant living in tiny cages. At the beginning,
the cage dimensions were about 0.7 m x 1.2 m, later
the cage size increased to 1.5 m x 1.2 m, depending
on the weight of the animals. When the new primate
centre in Orth opened on 23rd of May 1992, it contained
56 single cages of 4.85 m² each (about 2.2 m x 2.2
m) in the windowless basement of the building. Seven
years later in 1999 the company Baxter, who took over
Immuno, stopped the experiments on the chimpanzees
and started a rehabilitation project with the surviving
44 chimps from the lab, almost 20 of whom had been
infected with a hepatitis virus or HIV or both. (Balluch
2003)
This was meant to be Matthew’s and Rosi’s fate when
they arrived as little babies in their boxes at the
airport. Another baby chimp, Henry, had been ordered
by he Viennese zoo dealer Walter Ullrich, and the
remaining 9 baby chimps from the shipment of 12 were
to be taken over by the animal dealer H. Demmer in
Vienna. But on the day before their arrival, the 28th
April 1982, Austria signed the Convention on International
Trade of Endangered Species CITES, an international
treaty originally drawn up in 1973 to protect wildlife
against overexploitation. The 12 chimps did not have
the necessary CITES documents and so their arrival
in Austria was essentially illegal. Animal rights
activists had received a tip-off and together with
customs officers they seized the 12 babies and freed
them from their boxes. On 6th May 1982, Vienna magistrates
ruled to confiscate Matthew and the other chimps according
to §12 (2) of the CITES agreement, unlawful import.
The 9 Demmer chimps were handed over to the Vienna
zoo, where all of them died soon after. Matthew, Rosi
and Henry were officially given into the care of the
Vienna animal shelter on 17th May 1982, where a carer
took them home to raise them together with his own
human children. Matthew has therefore been socialized
in a human environment and considers himself part
of the human species. He reacts to other humans like
his social partners, or his rivals or his sexual mates,
to this day.
More than a year later, on 14th July 1983, Vienna
magistrates found the company Immuno guilty of breaching
the CITES agreement and ruled that therefore, Immuno
cannot be considered as having legal possession of
Matthew and Rosi. Immuno appealed against this decision.
On 10th October 1983, this appeal was refused. Immuno
took the matter to the High Court, which ruled on
10th April 1984 – almost 2 years after the arrival
of the chimps – in favour of the company. On 18th
September 1984, the High Court even ruled the penalty
for breaching CITES unlawful and ordered the chimps
to be handed back. On 20th November 1984 the mayor
of Vienna issued an order to the human family and
the Vienna animal shelter, to hand over the chimpanzees
to Immuno. When Immuno representatives arrived on
29th November 1984 to take over the, by now, 3 year
old chimpanzees, they were physically blocked by animal
rights activists and prevented from taking them. The
activists, many of whom had befriended the chimps
and loved them dearly, were not willing to allow these
creatures to be delivered to their fate inside the
research lab. An offer was made to buy the chimpanzees,
but Immuno declined.
Since Immuno was not able to get their hands on the
two chimps, they started legal procedures on 10th
July 1985 against the Republic of Austria to legally
demand the removal of the chimpanzees from their carers
by physical force. The charge was based on article
137 of the Austrian constitution, which deals with
property rights claims against the republic. For the
zoo dealer Walter Ullrich, such court proceedings
were not to his liking, and he agreed on 16th December
1985 to sell “his” chimpanzee Henry for 48,000 Schillings
(3500 Euro) to the animal shelter. Since the shelter
was not equipped to keep the chimp, one year later,
on 10th December 1986, they handed Henry on to the
zoo in Heidelberg, Germany, where, just as with the
baby chimpanzees in the Vienna zoo, the chimp died.
On 10th December 1986, Immuno’s case against the
Republic of Austria was decided on by the High Courts
in their favour. The judges ordered the government
to enforce their ruling to hand over the remaining
chimpanzees, Matthew and Rosi, to the research lab.
On 23rd March 1987, the Republic of Austria gave the
animal shelter 14 days to surrender the chimps voluntarily.
The shelter refused. Instead of using police force,
the Republic of Austria went to court once again on
11th June 1987 against the shelter. On 18th February
1988, the trial took place at the provincial court
of civil law in Vienna. The shelter argued that it
has to protect animals from pain and suffering, which
would undoubtedly be the consequence for Matthew and
Rosi if they were sent to the lab. The judges, however,
responded by saying that animals are things and as
such, have no interests themselves. The only interests
existing in this case were, according to the court,
the interests of the owner Immuno in terms of their
property rights, which had been infringed upon. (Wiener
Tierschutzverein 1988)
The shelter appealed against this decision. At the
beginning of 1989, independently of this case, the
Austrian parliament had added a new paragraph to the
Austrian civil law code dealing with the property
status of animals. §285 of the civil law code says
that any entity that is not a person is a thing, implicitly
declaring all non-human animals as things. To this
paragraph, a new section §285a was added that explicitly
says that animals are not things, but that they shall
be treated as things unless there are specific laws
saying otherwise. Referring to this new law, the animal
shelter argued at the High Court appeal that animals,
not being things, have a value in themselves that
goes beyond the value of property for the property
owners. And this value shall count higher in this
case than the property value of the utility of the
chimpanzees as experimental tools for Immuno’s research
lab. However, on 27th September 1989, the High Court
ruled that, §285a not withstanding, non-human animals
are still things and have no value in themselves.
The property owner has the right to take possession
of his or her property, even if that means suffering
and death for the chimpanzees. The shelter, however,
refused once more to comply and the Immuno representatives
did not dare come back to try and get their property.
Matthew and Rosi were by then already over 8 years
old. Eventually, the two lost contact to their human
family and moved permanently to a specially built
enclosure in the animal shelter in Vienna. In 1999,
the company Baxter, who had taken over Immuno, stopped
their experiments on chimps, and 3 years later they
officially donated Mathew and Rosi to the shelter.
In 2005, the actions of those activists back in 1984,
who prevented Immuno removing the chimpanzees, were
officially recognized as justified since the Austrian
parliament unanimously voted to ban all experiments
on apes. From 1st January 2006 onwards, any experiments,
not only on common chimpanzees, but also on bonobos,
gorillas, orangutans and gibbons, became illegal in
Austria if they are not for the benefit of the individual
concerned. This breakthrough is much like the human
rights declaration of Helsinki 1964, which protects
humans from medical experiments against their own
interests.
Starting a trial for personhood
In 2006, the Vienna animal shelter ran into financial
difficulties. In the bankruptcy proceedings, a business
manager was put in charge of the assets of the shelter,
with the aim to secure as much as possible for those
people the shelter owed money to. The shelter usually
takes cats, dogs and other pet animals in if they
are homeless, and seeks people willing to give those
animals a new home. Vienna city council pays the shelter
money for each animal that was found within the city
perimeter. Not being pet animals Matthew and Rosi
are a big liability for the shelter. They cost about
5000 Euro each a month. If the shelter goes bankrupt,
Matthew and Rosi will be one of the first creatures,
who have to go. Being 26 years old, they are still
in the prime of their life, and might be very valuable
for a zoo or a circus or, indeed, even a research
lab doing experiments on chimpanzees abroad, in countries,
where this is still allowed.
At the end of 2006, a person gave a donation of a
large sum of money to the president of the animal
rights association VGT on the condition that he may
only take possession of it if Matthew has been appointed
a legal guardian, who can receive this money at the
same time, and who can decide what the two together
would want to spend the money on. With this contract,
VGT’s president could argue to have legal standing
to start court proceedings for a legal guardian for
Matthew. This application was made on 6th February
2007 at the district court in Mödling, Lower Austria.
The application was supported by four expert statements
from Prof. Stefan Hammer, professor of civil rights
and constitutional law at the University of Vienna,
Prof. Eva-Maria Maier, professor of philosophy of
law at the University of Vienna, Prof. Volker Sommer,
professor of anthropology at the University of London
and Dr. Signe Preuschoft, biologist and chimpanzee
expert at the University of Zurich, who was scientific
head of the rehabilitation project of the ex-lab chimpanzees
in Austria. With the help of those expert statements,
an argument was put forward that a chimpanzee, and
in particular Matthew, is to be considered a person
according to Austrian law.
Why chimps are persons in accordance with the Austrian
civil law
The Austrian civil law code ABGB does not define
what a person is. Section §16 of the civil law code
declares all humans to be persons: “Every human is
born […] with rights and therefore has to be considered
a person”. What, however, is meant with the term “human”?
The definition of “human” in §16 ABGB has to be interpreted
biologically. After all, beings acting like humans
but not being genetically human (possibly computers
or robots) are not included. On the other hand, genetic
human beings, who have mental defects or have been
socialized in a tribe of monkeys, definitely do count
as persons before the law.
There is no judicial literature on this subject since
everybody apparently assumed that they knew which
creatures are human and which are not. This might
have been a reasonable assumption to make in the pre-Darwinian
days of 1811, when the law was written. However, since
evolution has been taken seriously, a number of species
or subspecies of humans have been identified. Take,
for example, Neanderthals. Would they count as humans
according to §16 ABGB, if, say, they suddenly appeared
living in a remote Himalayan valley? Or homo habilis,
or homo erectus, or the recently discovered homo florensis,
who apparently lived a mere 12.000 years ago? In human
rights charters (Heidelmeyer 1997), basic rights are
recognized for “members of the human family”. To give
this phrase a scientific meaning, it must be interpreted
as the term “family” of the Linnean classification.
The biological family today’s homo sapiens belong
to, is the family of great apes, which includes chimpanzees.
If the term “human” has to be considered in its more
narrow sense, then it must be referring to the genus
“homo”, which, after all, is Latin for human. Now,
while there might be controversy over which species
belong to the genus homo, a well based scientific
argument can be made that chimpanzees (and bonobos)
must be part of it as homo pan. The primary reason
for this classification is the very close genetic
relationship between homo sapiens and chimpanzees,
who share about 99.4% of their genes (Hecht 2003,
Wildman et al. 2003). A study looking at amino acid
chains, the building blocks of protein, found that
of 1271 positions only 0.4% differed between chimps
and homo sapiens (Bekoff 2001). Other pairs of species
like brown bear and ice bear, lion and tiger, horse
and donkey, who are similarly closely related, do
belong to the same genus (Balluch 2005, page 151).
Further, at least theoretically if not already experimentally,
homo sapiens and chimpanzees, in particular male chimpanzees
and female homo sapiens, can produce fertile offspring
(Balluch 2005, page 151).
Due to the fact that in homo sapiens the chimpanzee
chromosomes 2p and 2q have fused into a large chromosome,
homo sapiens therefore have one chromosome fewer than
chimpanzees. Having different numbers of chromosomes
is not an absolute barrier to hybridization, though.
Similar mismatches are relatively common in existing
species, a phenomenon known as chromosomal polymorphism.
(http://en.wikipedia.org/wiki/Humanzee)
The genetic structure of all the great apes, including
homo sapiens, is similar. Chromosomes 6, 13, 19, 21,
22, and X are structurally the same in all great apes.
3, 11, 14, 15, 18, and 20 match between gorillas,
chimpanzees and homo sapiens. Chimpanzees and homo
sapiens match on 1, 2p, 2q, 5, 7 - 10, 12, 16, and
Y as well and they have recently been found to share
a large transposition from chromosome 1 to Y that
is not found in any other ape. This level of chromosomal
similarity is roughly equivalent to that found in
equines. Interfertility of horses and donkeys is common,
although sterility of the offspring (mules) is nearly
universal. Similar complexities and prevalent sterility
pertain to horse-zebra hybrids, or zorses, whose chromosomal
disparity is very wide, with horses typically having
32 chromosomes and zebras possessing between 44 and
62 depending upon species. In a direct parallel to
the chimphuman case, the Przewalski horse (Equus przewalskii)
with 33 chromosome pairs, and the domestic horse (E.caballus)
with 32 chromosome pairs, have been found to be interfertile,
and produce semi-fertile offspring, where male hybrids
can breed with female domestic horses. (http://en.wikipedia.org/wiki/Humanzee)
To summarize, a reasonable argument can be made that
the definition of the term “human” in §16 ABGB must
include chimpanzees, i.e. also the chimp Matthew.
On the other hand, §16 ABGB also makes it clear that
not only humans are persons. If the terms “human”
and “person” were interchangeable, the statement that
all humans are persons would not make any sense. Indeed,
judicially speaking, companies or associations can
be persons before the law, for example. The reason
is that companies and associations might have interests
by themselves, which differ from the interests of
the people working within those companies and associations.
Only if the companies and associations are recognized
as persons before the law, can their interests be
represented in court. That clearly shows that “having
interests” must be one defining aspect of being a
person.
However, since there is actually no judicial literature
on the question of what constitutes a person according
to the Austrian civil law code, we have to look at
the philosophical background of this law. The Austrian
civil law code was prepared by a specific ABGB commission,
in which Franz von Zeiller was the most important
member. It was primarily influenced by the ideas of
the enlightenment area, and, more specifically, by
the ideas of Immanuel Kant, who had published his
thoughts in the years just before. Within this context,
it is the ability to reason, which must be isolated
as the defining factor for personhood (Kant 1786,
Schönecker and Wood 2002 page 142-144, Jean Grondin
1994 page 117f, Lehner 2005 page 22-30 with further
references). Zeiller himself speaks of the “dignity
of a reasonable, free acting creature” (italics by
author) when commenting §16 ABGB (Zeiller 1819 page
65). The ability to reason should include the ability
for abstract thought, thinking in terms of cause and
effect and being able to put yourself into the position
of another being, i.e. being able to predict what
another being might feel or do next. Through abstract
thought and thinking in terms of cause and effect,
you might say that a person has interests. By being
able to put him or herself into the position of other
persons, the person can appreciate the interests of
other persons as well, thereby recognizing personhood
in others. This ability we can translate into biological
terminology: a person is biologically defined as a
being capable of recognizing the interests of other
beings, i.e. a person is a being who has what is called
a “theory of mind”.
This conclusion is supported if we look at the detailed
wording of §16 ABGB. There it says that it can be
recognized through reason that all humans are born
with rights and therefore are persons. Reason in this
context is hence used to describe the ability to recognize
a rightsholder, i.e. a person. That supports the conclusion
derived earlier, that a person is a being that recognizes
personhood in other persons, i.e. a being with a theory
of mind.
Now, chimpanzees in general, and Matthew in particular,
have been shown to possess a theory of mind (Taylor-Parker,
Mitchell and Boccia 1994, Sommer 2000 page 131, Taylor-Parker
and McKinney 1999 page 145, Savage-Rumbaugh and Lewin
1994 page 274). Within a behavioural enrichment project,
Matthew has passed a mirror self-recognition test,
he shows tool use, plays with human caretakers, watches
TV and draws pictures. Matthew can understand if caretakers
want to lure him into doing something, and then decides
whether this is in his interest or not. He can pretend
to feel or want something when actually he has other
intentions thus showing that he deliberately hides
his real intentions in order to achieve his aims.
Those humans close to him, who know him best, clearly
support the proposition that he has a theory of mind
and does understand intentional states in other persons.
This is supported by scientific findings on cognitive
abilities of chimpanzees in general. There is practically
no quality or ability traditionally considered typically
human that chimpanzees do not also possess. They do
not only use but also produce tools, which they might
reuse regularly. Chimpanzees create brushlike ends
out of sticks to fish for termites, stone tools to
break nuts and spears for hunting (Hooper 2007). Their
tools are so sophisticated, that it is hard for paleontologists
to decide whether certain stone tools were made by
homo sapiens or chimpanzee ancestors (Holmes 2007).
Chimpanzees show medicinal use of plants – a medical
knowledge that could have only been accumulated by
trial and error and by passing it on over generations;
a clear indication of culture. That chimpanzees pass
on knowledge from one generation to another has been
verified both in observation in the wild and tests
on captive chimpanzees (Holmes 2006). Different chimpanzee
populations have different methods of tool making
and usage, various rituals for interactions such as
greetings – very much like different populations within
the homo sapiens species have different cultural traditions..
Therefore, we can state that they indeed possess culture.
Chimpanzees can learn to use sophisticated sign language
and to understand spoken English. Chimpanzees possess
all aspects of rational thought including the ability
of thinking in causal relations and of drawing analogies
(Matsuzawa 2006, Stanford 2002, Savage-Rumbaugh and
Lewin 1994). Moreover, as they are able to adapt their
behaviour to the knowledge, feelings and needs of
others, they have a theory of mind, being able to
act in a Machiavellian manner or altruistically by
using others for their purposes or helping them in
need (Gomez 1998).
To summarize, Matthew is, as a chimpanzee, a human
according to the definition of the term as it is used
in §16 ABGB. But he is also a person according to
the definition of this term within the philosophical
tradition of the enlightenment, which forms the very
basis of the Austrian civil law code. He is therefore
a person according to today’s Austrian civil law.
Change in paradigm! A modern understanding of personhood
includes all great apes.
The trial for personhood
Austrian district court turns down application
On 6th February 2007, the application for a legal
guardian for the chimpanzee Matthew Pan was put to
the Mödling district court in Lower Austria. The judge
called two hearings. In the first, she bemoaned the
fact that Matthew had no documents proving his identity.
The applicants could remedy this shortcoming, by providing
witnesses of his arrival as an abducted child in Austria,
as well as his continued identity over the years in
Austria since that time. After the second hearing,
the court issued a decision not to continue the proceedings,
arguing that Matthew is not mentally handicapped and
that he faces no imminent threat. According to Austrian
law, both of these are pre-conditions for getting
a legal guardian.
Regarding being mentally handicapped, the applicants
conceded that Matthew has no mental defect. But he
was abducted as a child, taken from his family and
his native environment, and seriously traumatized.
He had to grow up in an alien environment, where he
is not capable of an autonomous life, in contrast
to having a life in the African jungle, where he would
not need a legal guardian. Matthew has been locked
up for most of his life, which obviously does not
put him in the position to look after himself within
the society he is living in. He therefore needs a
legal guardian to make sure his interests are being
recognized and respected, and that he does not lose
out.
These interests are seriously threatened due to the
ever present bankruptcy threat of the animal shelter
that is his home. He is threatened with deportation
into an unknown future, possibly abroad where many
laws protecting him in Austria might not exist. As
a person with a legal guardian, he could receive donations
for himself instead of only as an asset of the animal
shelter. If the shelter goes bankrupt, those donations
are lost to him. If he were to receive the money personally,
he would be able to keep it and make good use of it
for himself. And further, the donation that has been
given to him and the president of VGT together, he
would also lose, if he is not represented by a legal
guardian. All these aspects clearly show, not only
an imminent threat, but also a clear disadvantage
for him personally, should he not be appointed a legal
guardian.
The applicants appealed against the court’s decision.
On 9th May 2007, the judge eventually turned down
the appeal, arguing that the applicant had no legal
standing to appeal. By doing that, she left the question
open whether Matthew is a person or not. Indeed, in
all her decisions and correspondence, she wrote as
if Matthew was a person.
Austrian provincial court turns down appeal
On 22nd May 2007, the applicants appealed against
this decision to the provincial court in Wiener Neustadt.
On 5th September 2007, the provincial court turned
down the appeal. The judges argued that according
to Austrian law, only the legal guardian or the being
him- or herself, for whom the application was seeking
a legal guardian, could appeal against a court decision
on legal guardianship.
Austrian supreme court turns down appeal
On 26th September 2007, the applicants made an appeal
to the Austrian Supreme Court for Civil and Criminal
Matters (Oberster Gerichtshof). In this appeal, the
applicants argue that the law cited by the judges
only applies when a legal guardian has already been
appointed. Otherwise it would make no sense to say
only the legal guardian can appeal. This law obviously
pertains only to cases where an appointed legal guardian
does not actually want to be the legal guardian or
where the person having a legal guardian appointed
wants to appeal against this decision. Usually, in
cases of mentally handicapped humans, there will only
be an appeal if a legal guardian has been appointed,
because that reduces the rights of the person getting
a legal guardian. In Matthew’s case however ,the refusal
to appoint a legal guardian by the court is taking
his rights away. So, the provisions of appeals cited
by the provincial court do not apply.
Secondly, the Supreme Court has already ruled in
other cases that if necessary, close relatives of
a person can appeal in his or her name, if he or she
is not capable to do this him- or herself. In the
case of Matthew, the latter surely applies. But since
the close relatives have been killed during his abduction,
or, in any event, are neither present nor capable
of making such an appeal themselves, as an extension
of the meaning of this ruling, Matthew’s close friends
should be able to appeal in his name.
And thirdly it is argued, that the applicants have
to have legal standing, because their interests are
at stake as well. After all, they have received this
donation of a large sum, which they can only use if
Matthew is appointed a legal guardian. In the appeal
to the Supreme Court, the applicants stress that this
point has been missed by the Provincial Court in its
judgement.
Appeal to the European Court of Human Rights
The Supreme Court rejected this appeal on the grounds
that the applicant had no legal standing.Asno Austrian
court had addressed the central question of personhood,
instead avoiding the question by refusing the application
on technical grounds, a case was made to the European
Court of Human Rights that Matthew had been denied
a fair trial. The applicants have asked that the court
nullifies the Supreme Court ruling on the grounds
of unfair trial and other basic rights being broken.
An additional appeal against the Supreme Court ruling
has been made by Paula Stibbe as representative of
Matthew Pan in his name to the European Court of Human
Rights. Paula Stibbe has been working with Matthew
Pan in a behavioural enrichment project for many years.
Since none of the Austrian courts have appointed a
legal representative for him, she has taken it upon
herself to act as his representative, as she knows
him so well.
Person versus thing
The law distinguishes on a very fundamental level
between person and thing. While a person cannot be
someone’s property, but can own property him- or herself,
a thing can be someone’s property and cannot own property
itself. A person has interests, which can be protected
by rights, i.e. a person is a rights-holder, while
a thing has no interests, which are represented or
recognized by the law in court, and cannot have rights
in principle. Things, however, can be protected by
laws, but not in their own interest. Monuments, for
example, can be protected by specific laws, because
it is in the interest of society to protect them.
It is not in the interest of a monument itself to
be protected. Similarly with non-human animals. According
to the law they are things (in practice), hence have
no interests and hence can only be protected by laws
in the interest of society. The animal protection
ombudsman, for example, who has legal standing in
cases of animal abuse, has the duty according to the
law to represent the interests of society in matters
pertaining to animal protection, and not the interests
of animals themselves. Things, in contrast to persons,
have no legal standing.
If Matthew is seen as a thing and not a person, neither
he, nor anyone else, can ensure that the laws protecting
him are being enforced. As a person, in such a situation
he could either file charges against the authorities
failing him, or he could make court applications to
uphold the law. If Matthew is considered a thing,
then only the interests of his owner are infringed
if somebody else does him harm. His best protection
would then be the law against criminal damage and
the property rights of his owner.
If, however, it is his owner, who does him harm,
then only his owner’s interests will be represented
in court. That means, for example, he could be sold,
evicted or deported any time his owner sees a personal
advantage in that. His own interests would play no
role whatsoever in such proceedings. As a person,
in contrast, he could legally fight his eviction or
deportation. Only if he is recognized as a person
would the judges have the option of weighing his interests
against those of the person trying to evict or deport
him.
As a thing, he can be owned, but he cannot own anything
himself. That means that nobody can donate money to
Matthew to secure his future or to buy his own land
and to build his own enclosure. As a thing, Matthew
will always be dependent not just on the good will
of his owners, but also on their ability not to go
bankrupt. If they do, no amount of good will can protect
him from being taken, evicted, sold or deported. As
a person, Matthew could not be owned by anybody. In
contrast, through his legal guardian, he could raise
his own money and secure his own future, independently
of any misfortunes of others.
And last but not least, as a thing Matthew has no
legal standing by himself in any cases he might wish
to bring to court. His situation is not due to bad
luck, but due to certain people, companies and governments
acting irresponsibly and illegally. The damage done
by those people, companies and governments to Matthew
personally is very high. They have destroyed his life.
Were it not for sympathetic, caring people, he would
long be dead by now. Why should it be the responsibility
of good hearted people, to fund his future, if there
are culprits, who would have the money to pay for
what they have done? As a thing, his owner, the animal
shelter, could only claim money for the damages the
shelter has incurred. Damages to Matthew himself would
not count. And since the animal shelter is not legally
obliged to care for Matthew, the shelter cannot sue
for the costs for caring for him. If, however, Matthew
were recognized as a person, the damage done to his
life would count and he himself could start legal
procedures against those responsible for it. He could
sue the animal dealers, who abducted him and killed
his mother. He could sue the company, who paid for
his abduction in order to do experiments on him. And
he could sue the governments of those countries, who
gave permits for his abduction or for those experiments.
All those are responsible for his situation, and all
those should therefore be held liable to undo the
damage as best they can.
Discussion
This trial, in many respects, touches on the core
beliefs in our society. Historically and culturally,
many of our traditions are based on Christian values,
for whom often the biggest point seems to be to separate
humans from other animals. Humans are supposed to
be made in God’s image, chimpanzees – looking very
much like humans – apparently are not. This tradition
can be traced from early church elders like Augustinus
via influential catholic writers like Thomas von Aquin
up until today, when the Salzburgian Weihbischof Laun
declared: “Having a soul distinguishes humans from
the world of animals. […] No commonality and no similarity
in the realm of the body can cover up this deep gulf.
The most human-like ape has, if you look at it, more
in common with tadpoles or amoebas than humans.” (http://www.kirchen.net/bischof/laun/texte).
Unfortunately, it is unscientific, dogmatic attitudes
such as these, which are, to this day, very influential
in many of society’s actions, and are used to justify
them. What should actually have long been discarded
as religious fundamentalism, still permeates laws
and regulations. We are reminded of debates between
creationism or intelligent design versus science,
which seem to become increasingly more frequent these
days. However, the rules of society about how we live
together, cannot depend on somebody’s religion. Should
those, who do not believe the same religion, be forced
with the threat of violence to succumb to the collective
delusions of the religious fundamentalists?
There is only one plausible option to be taken here,
and that is to base any decision concerning the whole
of society on rational argument and scientific facts.
This is what this trial tries to achieve with the
term “person” and with the status of non-human great
apes in society. Actually, there has been a long tradition
of such transitions from religious dogma to secular
wisdom regarding who should be considered a person
or human since the beginning of the enlightenment
era. It was a secular argument winning against the
Christian tradition that widened the terms to include
“barbarians”, women, people of colour, children and
mentally handicapped people. The time has come now
to start the debate on whether to cross the Rubicon
and include, for the first time in history, beings
outside the biological species homo sapien (maybe
keeping in mind that the category of species is also
an arbitrary convention, as Darwin already wrote in
his seminal work “The origin of species”, Darwin 1859).
This trial on personhood of the chimpanzee Matthew
has triggered more international media attention worldwide
than any other topic regarding animals, or even most
other topics concerning Austria altogether. That alone
proves that the time has come to question speciesism
as being the fundamental ideology of today.
But the personhood trial does not go as far as the
Great Ape Project (Cavalieri and Singer 1993), which
demands basic equal rights for all great apes to life,
liberty and freedom of harm. To explicitly recognize
basic rights for all great apes is a political decision
parliament has to make. And indeed, parliamentary
debates on this issue such as those in New Zealand
and Spain are in progress. But in this particular
trial, the applicants only argue that Matthew is a
person and not a thing according to today’s Austrian
civil law. This is not a political decision. No change
of law is necessary for Matthew to be appointed a
legal guardian.
If Matthew were to be appointed a legal guardian
and hence recognized as a person, that would not give
him equal basic rights. It would only recognize him
as a rights-holder instead of being a thing. Which
rights he has would still be an open question. For
example, his rights could be solely to have the laws
protecting him executed, i.e. to make him via his
legal guardian into a legal player, to give him legal
standing. That would be the consequence were he to
be accepted as a person. But further, a political
decision could be made to extend basic rights to life,
liberty and freedom from harm to him. Nobody, however,
talks of extending Matthew’s rights further to include
voting rights etc. In contrast to the basic rights,
he could not benefit from those extended rights. Hence
they are not in his interest and they do not need
to be debated.
It has also been argued, that basic rights for great
apes would diminish the idea of human rights altogether.
On the contrary, legal rights for great apes can be
seen as a logical step forward in the development
of human rights. Rather than being a revolutionary
change of traditional human rights concepts, they
are evolutionarily (in both, the general as well as
the biological meaning of the word) the next step.
A modern understanding of human rights therefore necessarily
must include at least the most basic rights for great
apes. This would not take anything away from the rights
that the species homo sapien possesses, but, on the
contrary, would strengthen its position: In a world,
where legal rights for all great apes were accepted,
no-one could question the existence of rights for
certain ethnicities, minority groups, or genders of
homo sapiens.
Clear rational arguments based on scientific facts
have been put forward to argue for the inclusion of
chimps in the realm of beings considered persons according
to today’s Austrian civil law code. It remains to
be seen whether these arguments will be heard and
evaluated, or whether the old religious doctrine of
humans being metaphysically different to all other
animals will prevail.
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