Monkey See, Monkey Sue? Gewirth's Principle of Generic Consistency and Rights for Non-Human Agents

Author:Joshua Jowitt
Position:MA (Cantab), LLM (Warwick), PhD Candidate, Durham Law School
Pages:71-96
© 2016 Joshua Jowitt and Dublin University Law Society
MONKEY SEE, MONKEY SUE? GEWIRTHS
PRINCIPLE OF GENERIC CONSISTENCY AND
RIGHTS FOR NON-HUMAN AGENTS
JOSHUA JOWITT*
Introduction
The notion of human rights enjoys a long and diverse history. Yet, at times,
it appears that the concept is in the throes of an identity crisis; are they a
philosophical ideal, a pre-political morality of aspiration, or are they a
purely legalistic standard which can vary according to the political standards
of the day? Despite this foundational uncertainty, many jurisdictions, both
national and supra-national, have adopted a legally enforceable framework
of human rights which may be pursued via the relevant court structures. In
recent years, an increasing number of cases have been filed in courts across
the world in which the applicants have sought to have the rights of non-
human actors enforced judicially. This paper will examine whether or not
such actions can be philosophically grounded within the same justification
for the existence of rights which are possessed by human actors. Until this
problem is conclusively resolved, the idea will be vulnerable to attack.
This article will seek to probe the limits of legislation which seeks to
protect certain freedoms broadly coming under the heading of “human
rights.” It will first examine two recent cases in the United States which
push the limits of ‘human rights’ beyond their traditional ambits to non-
human actors. In the first, Nonhuman Rights Project v Lavery,1 the
Nonhuman Rights Project, a Nongovernmental Organisation whose purpose
is to enforce human rights standards on non-human agents, sought a writ of
habeas corpus under §70 of the New York Civil Practice Law and Rules on
behalf of a chimpanzee named Tommy. The second, Naruto et al v Slater et
* Joshua Jowitt MA (Cantab), LLM (Warwick), PhD Candidate, Durham Law School. The
author would like to dedicate this article to his parents for their constant and unwavering
support. He would also like to thank his supervisor Prof. Deryck Beyleveld for his patience
and guidance throughout his PhD research to date.
1Nonhuman Rights Project v. Lavery, No. 518366 (NY App Dec 04 2014) [hereinafter Tommy
the Chimp’s Case].
Trinity College Law Review [Vol 19
72
al, 2 concerned a macaque named Naruto living in Tangkoko Nature Reserve
in Sulawesi, Indonesia. Naruto took a series of pictures of himself using
photography equipment left in the reserve by a photographer, who then
published a book containing these “Monkey Selfies.” The pressure group
People for the Ethical Treatment of Animals” [hereinafter PETA] brought
a claim in the Federal Courts in California claiming that, as the author of the
photographs, Naruto should be considered the owner of their copyright, and
therefore sought damages on her behalf.
Whilst the initial reaction of many to these cases may be one of
scepticism, Part II of this article will examine the reasoning used by the
applicants in both cases for expanding habeas corpus and copyright
ownership to non-humans. It will then analyse this reasoning, and the
judicial response to it, in light of the justification of reciprocity given for
why humans possess any rights which might be considered to be ‘human
rights.’ Parts III and IV will examine whether this is philosophically
feasible. After a careful examination of the morally rational Principle of
Generic Consistency (PGC) established by the American philosopher Alan
Gewirth through a process of dialectically necessary induction, it can be
shown that primates exhibit the conditions of agency required to be covered
by the theory he establishes. The requirements imposed by the PGC mean
that future courts should be slow to dismiss such cases without due
consideration, as to do may result in a morally unsound result.
I. Pushing the Boundaries of “Human”: Tommy the Chimp
and Monkey Selfies
At first consideration, it might seem counter-intuitive to be speaking of
‘human rights’ to property or relief from unlawful imprisonment for
subjects who are, unequivocally, not human. One might consider it
axiomatic that human rights apply exclusively to humans. Whether one
agrees with this statement or not, this is not the view taken by either the
Nonhuman Rights Project or PETA. Although neither of these organisations
possesses an inherent ability to change or formulate government policy with
regards to where we wish to draw the line beyond which human rights are
no longer applicable, both are well known and well respected pressure
groups fighting for greater recognition of animal rights. Their highly visible
profiles within their field of operation requires us to take their efforts to
2 Naruto et al v Slater et al No 3:15-cv-04324, 2016 (ND CA, 6 January 2016) [hereinafter
Monkey Selfie Case].

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