December 5, 2013 at 7:02 P.M. Congratulations to Senator Menendez on evading indictment in Florida. Regrettably, for Boss Bob, this was only one of the three bullets that he must duck: federal investigators will continue to look into his finances and the episode with Dr. Melgen, while possible FBI as well as Justice Department criminal proceedings will continue, together with the U.S. Senate's Ethics proceedings and the New Jersey Bar Association's Ethics Committee has yet to "clear" Senator Menendez. This "clearance" may cost him more money. I will be writing about this development soon. ("De Blasio and Christie.")
December 5, 2013 at 2:33 P.M. The title of Ms. Okin's book was altered in size overnight in violation of copyright and First Amendment rights by New Jersey hackers. I will try to repair the harm done. ("How censorship works in America.")
December 4, 2013 at 3:15 P.M. Defacements of this essay are expected, including alterations in spacing between paragraphs, size of text, and other deformations of this work. I will struggle to make all necessary corrections promptly. I continue to experience obstructions in efforts to use my home laptop computer. Perhaps "Muhammad" at Time/Warner is upset about my views?
Motoko Rich, "American 15-Year-Olds Lag, Mainly in Math, On International Standardized Tests," The New York Times, December 3, 2013, p. A12. (U.S. is 26th out of 30 countries in High school graduates' educational level. Decline in math and reading as well as comprehension skills is sharpest, but the numbers are even more discouraging and still falling among university graduates. "Manohla Dargis Strikes Again!")
Adam Liptak, "Allocating Liability For Child Pornography, in Full or Fractional Shares," The New York Times, December 3, 2013, p. A13. (Are children "persons," Mr. Menendez? "Menendez Consorts With Underage Prostitutes.")
Benjamin Wieser, "Prosecutor Sees Danger in Budget Cuts," The New York Times, December 3, 2013, p. A25. (Who gets prosecuted for serious crimes, besides African-Americans, is a budgetary matter. Perhaps this lack of money explains the inaction in my matters. "So Black and So Blue in Prison.")
Thomas Kaplan, "One Cuomo Interviews Another," The New York Times, December 3, 2013, p. A22. (An interview symbolic of the relationship between U.S. media and government today. Is this cozy "connection" between press and politicians a good thing?)
Gary Gutting, "The Real Humanities Crisis," The New York Times, Sunday Review, December 1, 2013, p. 8. (Why Johnny can't read and ... whatever.)
What follows is a brief comment on a legal controversy touching on some of the issues discussed in my philosophical essays concerning the status of "persons" in law and philosophy.
James Gorman, "Rights Group Is Seeking Status of Legal Person For Captive Chimpanzee," The New York Times, December 3, 2013, p. A19.
Lon L. Fuller, Legal Fictions (Stanford: Stanford U. Press, 1967).
Mary Midgley, Utopias, Dolphins and Computers: Problems of Philosophical Plumbing (London: Routledge, 1976).
Peter Singer, Animal Liberation: A New Ethics For Our Treatment of Animals (New York: Avon, 1975).
James B. White, The Legal Imagination (Boston: Little & Brown, 1973).
James B. White, When Words Lose Their Meaning (Chicago: U. Chi. Press, 1984).
Law evolves, "consciously," through the use of fictions. Accordingly, much legal reasoning involves the ability to deploy juridical concepts in new and unexpected ways that allow for the ever-greater incorporation of humane values into the administration of law, or adjudication, while fostering the social policies intended to create maximum justice for the community. ("Ronald Dworkin's Jurisprudence of Interpretation" and "Ronald Dworkin Says: 'The Law Works Itself Pure!'")
Cases, however, are mostly about litigants (individuals) involved -- often unwillingly -- in controversies before the bar, not merely illustrative hypotheticals capturing dramatic and abstract political or philosophical issues. ("What is Law?")
Questions of whether there is a genuine "case or controversy" and threshold problems concerning "standing" -- or even, as it were, in personam jurisdiction -- may preclude this matter from being heard on the merits in a courtroom.
Judges acting as Platonic philosopher kings become exceedingly dangerous: For example, New Jersey's Supreme Court has entered a number of moral minefields -- usually, unnecessarily -- losing a limb or two in the well-intentioned effort to "legislate" values for society. Mt. Laurel, Abbott, and plenty of other examples of such overreaching and hubris are available. ("Law and Ethics in the Soprano State" and "New Jersey's Feces-Covered Supreme Court.")
The much-better (because they are usually more cautious) New York courts have now been presented with a novel question concerning whether chimpanzees can be regarded as "persons" under the law, thus ensuring their protection for some reasons and purposes, by guaranteeing them rights comparable in limited ways and contexts, to the rights that should be afforded to all human persons. ("America's Holocaust" and "Abuse and Exploitation of Women in New Jersey.")
In a society that continues to operate concentration camps and/or "black sites," places like Guantanamo, where human beings are tortured, killed, or simply held in solitary confinement without charges or convictions over a period of years, denied habeas corpus relief along with due process rights of any kind; for a nation that admits to a drone policy allowing for foresseable killings of thousands of innocent human beings, many of them children and old people, without accusations or convictions, nor public and meaningful judicial review of any kind for the victims; for a society that starves and denies innocent human beings life-saving medicines and food under illegal embargos or "sanctions regimes" -- for such a society to pursue this litigation potentially defining a chimpanzee as a "person" with some rights that are legally recognized strikes me as surreal and insulting to the millions of persons concerned about alleged U.S. human rights violations in the world.
There is, then, a kind of "Alice in Wonderland"-like absurdity to this news item and law suit, even as I continue to request, publicly, the truth about the rapes, thefts, tortures, to which I have been subjected by New Jersey, while receiving no response from the state's courts and government, in violation of their own existing laws. I renew my requests for the truth under New Jersey's public disclosure laws and all applicable provisions of Constitutional and other regulations. ("Have you no shame, Mr. Rabner?")
If only I were a corporation (or a chimp, perhaps?) New Jersey may be required to abide by its own laws so as to disclose the truth in my case. ("Terry Tuchin, Diana Lisa Riccioli, and New Jersey's Agency of Torture" and "John McGill, Esq., the OAE, and New Jersey Corruption.")
At any rate, cases should be decided on their facts. The factual source of this litigation is easily summarized. After setting forth the facts, I will turn to the doctrinal question of first impression for New York's Supreme Court.
Curiously, it appears that both the authors of the legal briefs in question and The New York Times article describing the case may have missed existing legal precedent on point: a case from one American jurisdiction has examined, extensively, the question of whether a non-human mammal can be regarded as a legal person as well as the analysis of this judicial opinion by a leading analytical philosopher.
More on that later, for now it may help to be clear on the parties and counsel before the bar.
This litigation is a "class action" suit as well as a petition under a habeas corpus writ filed on behalf of "Tommy," a chimpanzee (and other apes who are "similarly situated") against Patrick C. Lavery, owner of Circle L. Trailer Sales in Gloversville, New York, where "Tommy" is held -- ostensibly against his "will," in a cage -- but also on behalf of apes held by the New Iberia Research Center and Carmen Presti of Niagara Falls, who runs the Primate Sanctuary, a non-profit organization.
I am told that persons in New Jersey see me and many others in America as "like Tommy," fitting subjects for experimental research because we are not, allegedly, true human beings. ("Terry Tuchin, Diana Lisa Riccioli, and New Jersey's Agency of Torture" and "An Open Letter to My Torturers in New Jersey, Terry Tuchin and Diana Lisa Riccioli.")
All of these entities in New York have "state contacts" and habeas corpus is a writ derived from common law (dating from Magna Carta) usually filed against the state for the production of a person held without charge, while class actions are civil procedural mechanisms that permit multiple plaintiffs to bring an action together, because they share an interest in the outcome of litigation.
The procedural confusions in this law suit suggest that, at least in part, the matter was prepared by non-lawyers. If an attorney brought a "suit" like this, he or she should be sanctioned, or disbarred. ("Is America's Legal Ethics a Lie?" and "America's Torture Lawyers.")
I am afraid that counsel for "Tommy" may have erred by failing to bring the action also against New York and the United States of America alleging Constitutional rights to due process and equal protection for "Tommy" and his fellow non-human creatures, if he prevails on the personhood issue. ("American Doctors and Torture" then "American Legal Ethics Today" and "Foucault, Rose, Davis and the Meanings of Prison.")
The court will probably dismiss the action on a summary judgment motion. Sorry, "Tommy."
The first set of difficulties are, therefore, pragmatic: by recognizing legal rights for "Tommy," despite the efforts by counsel to limit the holding of the initial tribunal, will the courts open the proverbial floodgates of litigation brought on behalf of many other non-human animals raised for slaughter: cattle, chickens, pigs, horses?
Furthermore, the "slippery slope" problem must be faced: what characteristics of horses or dogs preclude their achievement of the legal or moral status of "persons" under the law as compared with any kind of apes? Perhaps next week a Moose will sue to be admitted to Barnard College?
How can we distinguish a fictional entity's status as a person -- that is, a corporation -- with (potentially) religious rights (this is something which the U.S. Supreme Court must decide this term!) from a non-fictional animal's ("person"?) suffering when tormented or killed, caged or eaten, or from being confined forever and separated from fellow creatures in the way that we torture, say, Mumia Abu-Jamal and so many others. ("Justice For Mumia Abu-Jamal" and "Freedom For Mumia Abu-Jamal.")
Should we be more troubled by a corporation seeking to convert to Judaism, or to become a priest, than by chimpanzees seeking to run for President of the United States of America? (G.W.?)
Perhaps "Tommy" and other chimps could file for incorporation and solve the problem by becoming a corporate "person" with fully recognized legal rights. ("Is there a gay marriage right?" then "Mind and Machine" and "Consciousness and Computers.")
The petition brought by counsel affiliated with the "Human Rights Project" -- an organization seeking to protect "animal rights" -- articulates (unconsciously) and brings to center stage America's many confusions and contradictions or hypocrisy on the subject of persons and rights:
"This petition asks this court to issue a writ recognizing that 'Tommy' is not a legal thing to be possessed by respondents, but rather is a cognitively complex autonomous [moral philosophy] legal person [jurisprudential] with the fundamental legal right not to be imprisoned."
It is very likely that confusions in these pleadings and journalistic accounts may result in an unfavorable outcome for "Tommy." The "chimpanzee" in question may have been much better off without these efforts by so-called "therapists" and "friends."
The legal analysis by counsel fails to distinguish the moral rationale for rights of human persons -- in a cynical and contemptuous manner in relation to the slavery debate in American legal history -- from the legal fiction of personhood status that is accorded to corporations and, possibly, to other entities or animals (someday) for social policy reasons. ("Humanities and Humanity in Decline?")
I refer readers to Professor Lon L. Fuller's classic analysis of this device and the reasons for the doctrine in his treatise on legal fictions. Rights are not best understood in the context of such fictions as demonstrated in the legal scholarly works of Jeremy Waldron and Ronald Dworkin, Harold J. Berman and Charles Fried. ("What is Law?")
British philosopher, Mary Midgley, has analyzed a celebrated case from Hawaii handed down in 1977, in which courts determined, specifically, whether dolphins and other non-human creatures may be considered "persons" with legal rights for some public policy purposes.
The same or similar litigation has been attempted with respect to the "rights" of robots. Regrettably, for advocates of these animals and entities, thus far, the courts have been (correctly) unsympathetic to efforts to extend rights to non-humans even if they are concerned to protect animals and encourage scientific developments.
The question of animals, as persons, was first examined by Immanuel Kant -- who developed the linked concepts of persons and rights that are foundational to Western jurisprudence -- in a work entitled "Duties Towards Animals and Spirits," in Lectures On Ethics (London: Methuen, 1930), p. 239. (1791?) ("Is Western Philosophy Racist?")
The courts are likely to reject "Tommy's" claim -- Professor Kant would have agreed -- while instructing counsel to revise and refile this petition as a public interest claim by society (humans) in preventing suffering or cruelty to all animals.
If the concern is genuinely to prevent suffering to animals rather than to make laws or obtain headlines, then this petitioner will be more likely to succeed with a revised claim. On the other hand, if the motivation for the so-called "Human Rights Project" is to extend the concept of rights to any or all sentient creatures that are non-human, I believe the effort to protect these animals should and will fail to result in legally-recognized "rights" for non-human creatures, like "Tommy."
To explain why this is true will require me to offer a brief comment on the twined concepts of "persons" and "rights."
The boundaries and limits of these concepts have been examined, most importantly, in three contexts: 1). in deciding whether persons of African ancestry should be considered human beings with equal rights as compared with other human persons in America (Dredd Scott); 2). in connection with the, amazingly, still unresolved question of whether women and men are fully equal citizens and moral subjects entitled to identical ontological status and, therefore, parallel legal rights ("David Stove and the Intellectual Capacity of Women"); 3). also in deciding whether non-human animals and A.I. systems as well as corporations may be deemed "persons" in moral philosophy, or legally, to serve our social purposes, only as legal fictions. ("The Allegory of the Cave.")
These are very different contexts: the first two issues are deontological in nature; the third issue is teleological and utilitarian in nature. ("Zero Dark Thirty" and "John Rawls and Justice.")
"The idea of a person in the almost technical sense required by morality [and law] today is the one worked out by Kant. It is the idea of a rational being, capable of choice and therefore endowed with dignity, worthy of respect, having rights; one that must be regarded always as end in itself, never as a means to the ends of others."
Mary Midgley, "Is a Dolphin a Person?," in Utopias, Dolphins and Computers, pp. 110-111.
"Autonomy" creating "zones of entitlement" is explored in the jurisprudential writings of British barrister and law professor Genevieve Lloyd together with American legal scholars Martha Minow and Robin West on law and humanities. For the examination of this question in connection with women's centuries-old struggle for equality of rights, please see Susan Muller Okin, Women in Western Political Thought (Princeton: Princeton U. Press, 1979), esp. p. 251. (From Mary Wollstonecraft to Judith Butler, today, women have fought to be accepted as equal persons before the law: "A Doll's Aria" and "Master and Commander.")
A fascinating discussion of slaves' inability to appeal an action of a master who raped, beat, nearly killed a female slave -- also a woman -- please see State v. Mann, 13 N.C. 263 (1828). (To be a woman and a slave meant that a person could be raped and beaten without recourse to the courts and with fewer protections, at the time, than were given to horses. Do Americans feel the same disdain about the rights of "prostitutes" today? If so, if such disdain of their rights exists among lawyers and judges, is it because prostitutes are mostly powerless women?)
The evolution of the law requires theoretical consistency. Rights are unique in Western thought because they feature in the lives exclusively of persons, as the essence of their ontological status, which must receive public recognition. This recognition makes persons the only beings who are the locus of legal responsibility because they are free and each is equally entitled to the dignity, or respect, that the law exists to protect. The law must never violate this dignity by trampling on human rights on penalty of ceasing to be law or violating legality. ("A Commencement Address by Secretary of State Hillary Rodham-Clinton" and "Charles Fried and William Shakespeare On Interpretation" then "The Allegory of the Cave" and "Is Humanism Still Possible?")
Legal behaviorism offends this value of human dignity as does the extension of this moral-jurisprudential category of "persons" to non-human creatures. The crucial mistake regarding slavery was the failure to see the humanity of dark-skinned persons. This is not a matter for trivializing humor. Jews were "rodents," according to Dr. Mengele, who were unworthy of being treated as persons. ("Drawing Room Comedy: A Philosophical Essay in the Form of a Film Script" and "Richard A. Posner On Voluntary Actions and Criminal Responsibility" then "Roberto Unger's Revolutionary Legal Theory.")
" ... the law shows itself to be in a not uncommon difficulty, one that arises when public opinion is changing: Legal standards are not altogether independent of moral standards. They flow from them and crystallize in ways designed to express certain selected MORAL insights. When those insights change deeply enough, the law changes. But there are often jolts and discrepancies here, because the pace of change is different. New moral perceptions require the crystals to be broken-up and reformed, and this process takes time." (Midgley, p. 114.) ("The Wanderer and His Shadow.")
