Friday, December 19, 2014

Brassington on Tommy the Chimpanzee

Iain Brassington has an utterly baffling post on the Tommy the Chimpanzee case. It seems to me to make a number of very obvious errors, both in interpretation of the decision and in an understanding of what the decision indicates in its proper context.

(1) Judges do not determine adequacy of law. Brassington says:

Now, I wonder whether that actually hits the target, since (as is admitted) a big part of the question is not whether the currently-accepted definition of “person” is correctly applied, but whether the definition is the right one in the first place. Pointing to the way the term has and is applied won’t answer that. Indeed, the ruling seems to take pains to avoid answering that part of the deposition. If Smith says that the law is inadequate, Jones can’t demonstrate its adequacy simply by reciting it.

As I noted in remarking on the NhRP press release, this gets the structure of the decision wrong in the first place. But even if we set this aside, this remark makes no sense. It is not Jones's place or responsibility, when a matter of law comes up, to "demonstrate its adequacy", if Jones is a judge deciding a case. A judge can demonstrate the adequacy or inadequacy of law to more fundamental laws, but there is no court system in the world in which they are tasked with demonstrating the adequacy of laws, simply speaking. What is more, a judge cannot simply ignore how a law fits into the overall legal regime; that's one of the things a judge is supposed to do. It matters whether there is precedent; and it matters how much of a change to the entire legal regime a particular kind of decision would require. These always need at least to be assessed, even though precedent alone is not necessarily definitive in itself (as the decision itself explicitly points out). And if one wishes to change the legal regime itself, the appropriate route is to work with the legislature to do so (as the decision also explicitly points out). One of my continual complaints about the way bioethics is often done is that it tends to ignore actual relevant context, and Brassington's comment here is a an excellent example.

(2)A judicial decision is not the forum for a general consideration of rights as such, but only for a consideration of rights as available under law. Brassington says:

Part of the reasoning is in tune with the dogma that you can’t have rights unless you also have responsibilities. I’ve never seen a particularly good defence of this dogma. I can see how one might have rights, and I can see how one might have responsibilities, but I’m unsure how the former depends on the latter.

The reasoning, however, has nothing to do with "the dogma that you can't have rights unless you also have responsibilities"; it simply notes that our legal regime does, in fact, link rights to in-principle participation in the responsibilities of society. What is more, we aren't in this particular case dealing with all rights in general; we are dealing with remedy rights like the writ of habeas corpus, which is in fact historically a right that is linked with the responsibilities of those subject to the law (the root idea of it being that a court can bring a person to court for whatever purposes the court is capable of having, even if the person is detained; and historically the right has primarily been upheld as a procedural protection for citizens). Even if one held that the general principle of the correlation of rights and responsibilities failed, it does not follow that it fails for rights based on legal personhood, which are, as the court notes, generally treated as linked to the in-principle capacity for social responsibility.

Likewise, contrary to what Brassington says, the application of the principle doesn't give us "a problem when it comes to young humans"; the status is (a) presumptive and (b) determined by legal regime -- you don't have to prove that you are capable of social responsibility in order to be a legal person, you just have to be the kind of entity taken to have that legal status in the overall legal regime. This can be because one literally does have the ability for social responsibility, or merely because one is deemed for convenience of law to have it, even if that is a fiction. But this is a status conferred by the legal regime as a whole. And, as the decision notes, there is simply no question here about whether our legal regime takes chimpanzees to have the relevant status -- it doesn't. There isn't even any ambiguity or inconsistency about it, as there has occasionally been with human beings; everyone recognizes that giving chimpanzees the legal status of personhood would be a significant change in how our society handles that legal status. Young humans do not represent any such change at all; our legal regime is very clear that infants are to be deemed legal persons, so there is no doubt at all about them, and is inconsistent on whether the unborn are to be deemed legal persons, so it can tip either way depending on how one assesses the overall system of law.

(3) Judicial cases give the burden of proof to those who would change the status quo. Brassington does recognize that in principle one can take the rights and responsibilities here as stipulative. But he goes on to say:

For one thing, even if all right-holders are duty-holders, it doesn’t follow that all duty-holders are right-holders. (In just the same way, even if all squares are rectangles, it doesn’t follow that all rectangles are squares.) So if slaves did have rights after all, there seems to be something else going on – and if it can be going on in respect of slaves, then why not in respect of chimps? At the very least, that something else would have to be quite carefully defined.

But, first of all, this is not how the relation of rights and responsibilities are generally conceived; if someone has a genuine duty, one does have the rights required for the performance of the duty. What is more, the writ of habeas corpus has historically had a very close connection with precisely this way of relating rights and duties: one of the reasons it is seen as protecting subjects and citizens is that it means that others cannot arbitrarily prevent them from fulfilling their overall legal and judicial responsibilities without having an acceptable reason that justifies it.

But again Brassington drops the judicial context. In a judicial context it does not "have to be quite carefully defined" what the relation between rights and duties is; judges are not philosophers of law or moral philosophers, considering regimes in the abstract in a rigorous way; nor are they legislators determining the basic principles of a particular regime on broader principles; they are practical decision-makers handling particular cases in light of how the actual legal regime operates. It is not the responsibility of the court to carefully define every important issue that comes up, or even most issues that come up; if someone wishes to establish in court that the way things are done practically is inconsistent or unacceptable, it is they who need to establish it, and they need to do so in a way that has relevance to the court's actual authority to the practical requirements of the case at hand. A court can indeed address these sorts of problems -- if they come up in a way that the court can do something about and in a matter in which it is important for the practical issue at hand. It is not, however, either the court's general responsibility or general right even to show how or whether the way things are legally done makes sense.

(4) A remedy under law depends on the general way law works. Brassington says:

So I’m inclined to think that the sufficiently narrow view is artificially narrow. It seems to devolve either to a potentiality argument (human newborns are potentially duty-holders), or to ignore the central part of the NHRP’s claim, which is precisely that the extent of legal protection afforded to chimps is insufficient. People who think that rights have an important role to play in explaining what law is, and what law should be, are unlikely to be satisfied with the role they’re given in the ratio here.

And as the court notes, the most appropriate way to extend legal protection to chimps is to get the legislature to pass laws establishing those legal protections. Courts are not legislatures with the authority to establish legal protections in general; they can recognize legal protections that already exist, or rule that consistency in their application requires that they be applied in cases where they have not before, or any number of other things. But they can't make them whole cloth. And thus the central part of the NhRP's claim can only be addressed by the court insofar as addressing it makes sense in light of precedent and the overall system of law. The court simply pointed out that precedent and the overall system of law pretty clearly leave no room for the court to act in the way the NhRP takes its claim to establish that they should.

(5) The decision is more or less what a reasonable person would have expected. Brassington ends by saying, "It’s a strange judgement." But in reality what's strange is thinking that a judgment that is more or less what almost every relevant court in the U.S. would have said up to this point, and that pointed out what is clearly the legal issue with trying to do what the NhRP is trying to do through the courts rather than the legislature, is in any way strange. Despite some very optimistic thinking surrounding the NhRP, there was very little expectation in general that the court would act in any other way; there was very little doubt prior to the case about what the basic lines of its reasoning would be. There is also very little doubt that had the court gone the other way, it would have sparked considerable outrage, and possibly backlash in the legislature, as a great many people would have regarded the court as having overstepped the bounds of its authority. None of these tell us whether the result is good or bad in itself; but they do in fact establish that there is nothing strange about it.

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