Hiasl: The whole story published on 18 January 2008

Trial on personhood for chimpanzee Hiasl

by DDr. Martin Balluch, Verein Gegen Tierfabriken, Vienna, Austria
and 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 later moved to 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 chimpanzees 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 chimpanzees 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 chimpanzees 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, he was stuffed into a box and loaded 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 chimpanzee called Rosi, who, like Matthew, was also around 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, to be used in medical experiments on hepatitis and AIDS. In those days, Immuno was trying to establish a large chimpanzee colony at their lab to breed them as experimental tools. By 1989, Immuno had 53 chimpanzees, of whom only 2 were not wild caught. For the chimpanzees, 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 chimpanzees 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 chimpanzee, Henry, had been ordered by he Viennese zoo dealer Walter Ullrich, and the remaining 9 baby chimpanzees 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 chimpanzees 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 chimpanzees according to §12 (2) of the CITES agreement, unlawful import. The 9 Demmer chimpanzees 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 chimpanzees – in favour of the company. On 18th September 1984, the High Court even ruled the penalty for breaching CITES unlawful and ordered the chimpanzees 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 chimpanzees 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 chimpanzees, they started legal proceedings 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 chimpanzee, 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, he too soon 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 chimpanzees 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 chimpanzees, 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 recognised 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 chimpanzees 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 are mentally disabled 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 recognised 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 chimpanzees 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.

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.

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 chimpanzee 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 recognised 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 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 recognised 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 disabled 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 disabled, the applicants conceded that Matthew has no mental impairment. 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 recognised 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 disabled 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. As no 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 recognised 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 they 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 recognised 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 recognised 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. (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 disabled 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 On 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 from 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 recognised 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 chimpanzees 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.

References

Balluch, Martin 2003: Jetzt sind sie endlich wieder Schimpansen, Tierschutz Konsequent 23, page 18.
Balluch, Martin 2005: Die Kontinuität von Bewusstsein. Das naturwissenschaftliche Argument für Tierrechte, Guthmann-Peterson Verlag Wien.
Bekoff, Marc 2001: Das unnötige Leiden der Tiere, Verlag Herder, Freiburg im Breisgau.
Cavalieri, Paola and Singer, Peter 1993: The Great Ape Project. Equality beyond Humanity, Fourth Estate: London.
Darwin, Charles 1859: On the origin of species by means of natural selection, London.
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Grondin, Jean 1994: Kant zur Einführung, Junius Verlag.
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Hooper, Rowan 2007: Savannah chimpanzees get armed and dangerous, New Scientist No. 2593 (3.March 2007), page 16.
Kant, Immanuel 1786: Grundlegung zur Metaphysik der Sitten, Meiner Verlag 1999, 63 – 69 = Akademie Ausgabe Bd. IV 436 – 440.
Lehner, Michaela 2005: Recht und Ethik, Diss. Univ. Vienna.
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Savage-Rumbaugh, Sue and Lewin, Roger 1994: Kanzi. The Ape at the brink of the Human Mind, Doubleday.
Schönecker, Dieter and Wood, Allen W. 2002: Kants Grundlegung zur Metaphysik der Sitten, Ein einführender Kommentar, UTB Ferdinand Schöningh, Paderborn München Wien Zürich.
Sommer, Volker 2000: Von Menschen und anderen Tieren. Essays zur Evolutionsbiologie, Hirzel.
Stanford, Craig 2002: Significant Others: The ape-human continuum and the quest for human nature, Basic Books Inc.
Taylor-Parker, Sue, Mitchell, Robert W. and Boccia, Maria L. 1994: Self-Awareness in Animals and Humans. Developmental Perspectives, Cambridge University Press.
Taylor-Parker, Sue and McKinney, Michael L. 1999: Origins of Intelligence. The Evolution of Cognitive Intelligence in Monkeys, Apes and Humans, Johns Hopkins University Press.
Wiener Tierschutzverein 1988: Stellungnahme des Wiener Tierschutzverein zur Aufforderung der Republik Österreich, die beiden Schimpansen Rosi und Hiasl der Immuno AG zu übergeben, Der Tierfreund 2, page 4.
Wildman, Uddin, Liu, Grossmann and Goodmann 2003: Implications of Natural Selection in Shaping 99,4 % Nonsynonymous DNA Identity Between Humans and Chimpanzees: Enlarging Genus Homo, in: Proceedings of the National Academy of Sciences 100: 7181 – 7188.
Zeiller, Franz von 1819: Natürliches Privatrecht, cited in Posch and Schwimann 2005, ABGB Bd. 1 §16 Rz 2, Orac Verlag.

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