The Entitlement of Chimpanzees to the Common Law Writs of Habeas Corpus and de Homine Replegiando

Golden Gate University Law Review, Dec 2007

In this Article, I claim that humans enslave chimpanzees and thereby deprive them of their bodily liberty and that chimpanzees should be entitled to use the common law writs of habeas corpus and de homine replegiando and to bring their common law claims to bodily liberty before courts. In Part I, I demonstrate that chimpanzees are genetically highly similar to humans and quite cognitively and socially complex. In Part II, I argue that flexibility is part of the common law's basic structure, that legal personhood is one of the common law's basic values, that the structure of the common law requires it to permit such a cause of action to go forward on its merits, and that the claim of chimpanzees to common law legal personhood should always be subject to common law re-evaluation. In Part III, I show that post-Conquest English villeins used writs that allowed them, under certain circumstances, to be declared free. In Part IV, I trace the history of the common law writ of de homine replegiando in England and America and argue that individual chimpanzees are entitled to use it to bring their claims to bodily liberty before common law courts. In Part V, I set out the history of the common law writ of habeas corpus in England and America and argue that individual chimpanzees are entitled to use that common law writ to bring their claims to bodily liberty before common law courts.

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The Entitlement of Chimpanzees to the Common Law Writs of Habeas Corpus and de Homine Replegiando

Golden Gate University Law Review Volume 37 | Issue 2 Article 1 January 2007 The Entitlement of Chimpanzees to the Common Law Writs of Habeas Corpus and de Homine Replegiando Steven M. Wise Follow this and additional works at: http://digitalcommons.law.ggu.edu/ggulrev Part of the Animal Law Commons Recommended Citation Steven M. Wise, The Entitlement of Chimpanzees to the Common Law Writs of Habeas Corpus and de Homine Replegiando, 37 Golden Gate U. L. Rev. (2007). http://digitalcommons.law.ggu.edu/ggulrev/vol37/iss2/1 This Article is brought to you for free and open access by the Academic Journals at GGU Law Digital Commons. It has been accepted for inclusion in Golden Gate University Law Review by an authorized administrator of GGU Law Digital Commons. For more information, please contact . Wise: Chimpanzees and the Common Law Writs ARTICLE THE ENTITLEMENT OF CHIMPANZEES TO THE COMMON LAW WRITS OF HABEAS CORPUS AND DE HOMINE REPLEGIANDO STEVEN M. WISE* I believe that even with [the chimpanzee] "Suica's" death the matter will continue to be discussed, especially in law school classes, as many colleagues, attorneys, students and entities have voiced their opinions, wishing to make those prevail. The topic will not die with this writ, it will certainly continue l to remain controversial. * President, Center for the Expansion of Fundamental Rights, Inc., Coral Springs, Florida, presently adjunct professor teaching "Animal Rights Law," Vermont Law School and St. Thomas Law School. I thank Christopher Green, Esq. for assuming the heavy burden of evaluating every line of several drafts of this article. His suggestions vastly improved the fmal version. I thank Professor Laurence H. Tribe for his penetrating critiques. I thank law student Kristin Lupoli for her diligent research and Ann Jones, Esq., for spending months researching antebellum Southern slave statutes. I also thank Professor Daniel Coquillette, Professor David Favre, Bonita Meyersfield, Esq., Katrina Sharman, Esq., Professor Joseph Vining, and David Wolfson, Esq. for their reviews of early drafts, and the Animal Welfare Trust, Brad Goldberg, and Jana Kohl for their support over the twenty months it took to research and write this article. 1 In Favor of Suica, 9th Criminal Court, No. 833085-3/2005 (Bahia, Brazil Sept. 26, 2005) (written after the untimely death of Suica, a chimpanzee, halted the attempt to have him released from a zoo by writ of habeas corpus) [hereinafter In Favor of Suica], English translation available at http://animallaw.info/nonuslcaseslcabrsuicaeng2005.htm (last visited Dec. 10, 2006). Both the original Portuguese decision and the English translation are on file with the author. 219 Published by GGU Law Digital Commons, 2007 1 Golden Gate University Law Review, Vol. 37, Iss. 2 [2007], Art. 1 220 GOLDEN GATE UNIVERSITY LAW REVIEW [Vol. 37 INTRODUCTION Chimpanzees, like every other nonhuman animal, are presently regarded as legal "things.,,2 Classified as property, they are denied all legal rights. This allows humans to enslave them. However, the claim that chimpanzees, and perhaps other cognitively complex nonhuman animals, should be entitled to basic legal rights has sparked widespread scholarly discussion by highly-respected members of the legal academy.3 Some legal "things" require common law personhood for an important reason: things are invisible to the civil law and lack all rights, including the capacity to sue. Those that can suffer for their invisibility do. But social morality changes, social policy evolves, and human experience accrues. Yesterday an African slave was commonly considered a rightless thing, the day before that an English villein; today that thing may be a human fetus, tomorrow perhaps a chimpanzee. Employing commonly accepted legal principles, I have offered extensive arguments over years as to why at least some chimpanzees, and members of certain other species, should be entitled to the substantive fundamental common law rights of bodily liberty and bodily integrity.4 These substantive common 2 Within the designation of "chimpanzee," I include both the common chimpanzee and the bonobo, each of whom is equally evolutionarily close to human beings. 3 See, e.g., ANIMAL RIGHTS: CURRENT DEBATES AND NEW DIRECTIONS (Cass Sunstein & Martha Nussbaum, eds., 2004) (numerous essays) [hereinafter ANIMAL RIGHTS: CURRENT DEBATES AND NEW DIRECTIONS); ALAN DERSHOWlTZ, RIGHTS FROM WRONGS: A SECULAR THEORY OF THE ORIGINS OF RIGHTS 139, 193-199 (Perseus Books 2005); Laurence H. Tribe, Ten Lessons Our Constitutional Experience Can Teach Us About the Puzzle of Animal Rights: The Work of Steven M. Wise, 7 ANIMAL L. 1, 4 (2001); Martha C. Nussbaum, Book Review: Animal Rights: The Need for a Theoretical Basis, 114 HARv. L. REV. 1506 (2001) (review of STEVEN M. WISE, RATTLING THE CAGE: TOWARD LEGAL RIGHTS FOR ANIMALS Perseus Books 2000»; Robert R. M. Verchick, A New Species of Rights, 89 CAL. L. REV. 207 (2001); Richard A. Posner, Animal Rights, 110 YALE L. J. 527 (2000). 4 See, e.g., Steven M. Wise, Rattling the Cage Defended, 43 B.C. L. REV. 623 (2002); STEVEN M. WISE, DRAWING THE LINE: SCIENCE AND THE CASE FOR ANIMAL RIGHTS (Perseus Books 2002) [hereinafter WISE, DRAWING THE LINE); STEVEN M. WISE, RATTLING THE CAGE: TOWARD LEGAL RIGHTS FOR ANIMALS (Perseus Books 2000) [hereinafter WISE, RATTLING THE CAGE); Steven M. Wise, Hardly a Revolution - The Eligibility of Nonhuman Animals for Dignity-Rights in a Liberal Democracy, 22 VT. L. REV. 793 (1998) [hereinafter Wise, Hardly a Revolution); Steven M. Wise, The Legal Thinghood of Nonhuman Animals, 23 B. C. ENVTL. AFF. L. REV. 471 (1996) [hereinafter, Wise, Legal Thinghoodl; Steven M. Wise, How Nonhuman Animals Were Trapped in a Nonexistent Universe, 1 ANIMAL L. 15 (1995). See also Steven M. Wise, http://digitalcommons.law.ggu.edu/ggulrev/vol37/iss2/1 2 Wise: Chimpanzees and the Common Law Writs 2007] CHIMPANZEES AND THE COMMON LAW WRITS 221 law rights would qualify their holders as common law "persons," not just "things." I do not reiterate those arguments in this article, though I briefly summarize some of the scientific findings that underpin the substantive arguments. This article focuses on procedure. It may turn out that courts reject the substantive arguments a legal thing proffers in support of its claim to personhood. The gap between thing and person is not easily bridged and any legal thing's initial claim will be, as observed Professor Christopher Stone, "bound to sound odd or frightening or laughable ... because until the rightless thing receives its rights, we cannot see it as anything but a thing for the use of 'us' - those who are holding rights at the time."s But whether its substantive claims prevail on their merits or not, the legal thing requires a procedural cause of action to assert its claim in the first instance that it ought no longer be considered a thing, but a person, either as a matter of (...truncated)


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Steven M. Wise. The Entitlement of Chimpanzees to the Common Law Writs of Habeas Corpus and de Homine Replegiando, Golden Gate University Law Review, 2007, Volume 37, Issue 2,