Over the weekend, I borrowed a friend's time machine and cold-bloodedly killed a Neandertal, a Homo erectus, an Australopithecus, a dolphin, a chimp, eight sentient robots, the first extraterrestrial visitor to Earth, and my neighbor with the unreasonably loud sound system. Question: in the eyes of the law, how many murders did I just commit?
Probably two is my guess, with an outside possibility of three. I might be able to spin a justifiable homicide defense around "too much Ke$ha" with respect to my noisy neighbor, but the charge would still be murder. Just 10 years ago I might have been able to argue that Homo neanderthalensis was a different species and that killing one was therefore not the same as killing a person. Recent genomic studies, though, have shown that modern humans and Neandertals interbred so heavily that it's now doubtful whether they were separate species, which isn't good for my case. That hairy little Homo erectus was clearly not one of our species, but his kind still looked and acted human enough that I wouldn't want to take my chances with a sentimental jury. So I might hang for those three killings.
On all the others, though -- the dolphin, the chimp, the australopithecine, the alien, and the robots -- I ought to be able to walk away from everything except some charges on cruelty to animals and vandalism. No matter how smart, self-aware, empathetic, or ethical they might be, those creatures and things don't qualify as persons under the law because they are not human beings. Doing awful things to them might make me a monster, but it doesn't technically make me a murderer. (And even as a human monster and murderer, I have rights that they do not.)
Science fiction scenarios aside, some scientists, philosophers, legal scholars and others are beginning to wonder whether the laws need to change for the benefit of dolphins, chimpanzees, and other highly intelligent animals. Should the law recognize a category of nonhuman persons with rights comparable to (but not necessarily identical to) those of human beings? If so, what would be the consequences and implications, not just for these animals but maybe also for humans?
Persons with blowholes
The eligibility of cetaceans (dolphins, porpoises, and whales) for legal recognition as nonhuman beings was the focus of a much discussed session last month at the American Association for the Advancement of Science meeting in Vancouver. Lori Marino, a behavioral biologist and neuroscientist at Emory University, kicked off the discussion with a review of the abundant evidence for the creatures' highly developed cognitive abilities.
It's no secret that dolphins are exceptionally good at solving problems, for example, even ones that involve some level of abstract thinking. They can recognize themselves in mirrors, which seemingly demonstrates a capacity for self-awareness. Cetaceans also communicate amongst themselves with sophisticated vocal utterances that are at least reminiscent of language (though some linguists debate the appropriateness of that label). Recent findings even suggest that dolphins may greet one another with sets of sounds that seem to act as individuals' names.
Cetaceans also live in groups with complex social dynamics, and at least some of those groups seem to have local "cultures" of behaviors that each generation teaches the next. For instance, some dolphins teach their young how to use sponges as tools while foraging along the seafloor.
Yet notwithstanding cetaceans' intellectual capabilities, throughout history and around the world, humans have used and abused these animals as a resource. The slaughter of whales for food and oils and of dolphins as bycatch in fishing nets is notorious, Marino said, but the seemingly more benign practice of keeping cetaceans at marine parks for entertainment is also bad: she pointed to research showing that such captivity was harmful to the animals.
Thomas I. White, professor of ethics at Loyola Marymount University who also spoke on the AAAS panel, has argued that living things that demonstrate self-awareness, intelligence and autonomy, experience emotions and treat other individuals with empathic respect deserve to have moral standing as persons. Cetaceans meet all those criteria, in his view.
On those grounds, White, Marino, and others met in Helsinki in May 2010 to draft a Declaration of Rights for Cetaceans that affirms their status as persons. Among the 10 provisions in the declaration are calls that "Every individual cetacean has the right to life," that no cetacean should be held captive or removed from its natural home, and that "Cetaceans have the right to the protection of their environment." The signers hope that over time enough countries will endorse the document's principles for it to acquire some international force.
Too human for comfort
Chimpanzees and the other great apes, of course, also stand out as candidates for nonhuman person status because of their high intelligence, their tool use, and their apparent self-awareness. Their evolutionary proximity to human beings also makes it easy to believe that if any nonhuman animals possess some elusive property of "being" that could justify their personhood, the apes do. Indeed, a research paper appearing last October in Current Biology by Michael Krützen of the University of Zurich and his colleagues claimed that manifestations of culture in orangutans, the other great apes, and humans share evolutionary roots.
No one seems to have yet drafted a "Declaration of Rights for Apes" comparable to the Helsinki Group's cetacean document, but The Great Ape Protection and Cost Savings Act (H.R. 1513/S.810) now pending in the U.S. Congress would end the use of chimpanzees in invasive biomedical research. (The U.S. and Gabon are the only countries in the world that still use chimpanzees for such studies.) [Added: But see also the update at the bottom of this page.]
Adding some momentum to that push, the Institute of Medicine released a report in December that concluded, "most current biomedical research use of chimpanzees is not necessary," though it fell short of endorsing a full ban. Meanwhile, some scientists are arguing that chimps should not be kept as pets (because they are dangerous) or used unnaturally in commercials or other media (because the practice lulls people into thinking chimps are not endangered).
Nonhumans don't get to vote
To many people familiar with the scientific evidence for sentience in animals, recognition of dolphins and chimps as nonhuman persons with certain inalienable rights might seem irresistibly logical. It would also seem to afford the creatures more complete and unassailable protection than other piecemeal conservation measures. After all, if corporations can be nonhuman persons, as the Supreme Court ruled in 2010 in the controversial Citizens United case, why not dolphins?
The idea is more complicated than it might first appear, however, and not all resistance to it is born of unwillingness to accept these creatures as our peers in some way.
For openers, considerable misunderstanding surrounds what granting rights as persons to nonhumans would mean. Some critics have dismissed the idea as absurd because the animals would not be accepting any responsibilities or obligations incumbent on them in return. But nonhuman persons would not be equivalent to humans, Thomas White says: their rights would specifically allow them to live as they historically have, without human interference. As such, their rights would only be obligations on human governments, not on the creatures themselves. (Eric Michael Johnson, author of the excellent book The Primate Diaries, has an outstanding discussion of this point and the sometimes elastic status of personhood on his blog.)
Legal theory can therefore probably support nonhuman persons fine. Yet there may be a Catch-22 problem with putting the idea into practice. The major practical motivation for declaring cetaceans and apes to be persons is to protect them more sweepingly from us. If governments wanted to do more to protect these creatures, however, they wouldn't be waiting for a declaration of rights or personhood to prompt them. True, if the rest of the world recognized whales as persons, the last few whaling nations might feel shamed into stopping. But they might instead stand pat against the idea as radical and coercive, and use that excuse to justify ignoring more moderate protective measures. The drive for personhood would then be counterproductive.
The other practical problem could be in determining eligibility for personhood. Qualities like intelligence and empathy can be hard to evaluate in creatures very different from humans. Skeptics often point out that the animals being nominated for personhood sometimes engage in behaviors that can only be called beastly: gangs of male dolphins have been observed to rape unreceptive females; dolphins will also sometimes kill porpoises; chimps are not above infanticide and cannibalism. (Let us not forget that humans commit all these crimes as well; the question is whether they are norms of behavior or aberrations.)
Holding animals to strictly human standards of morality is unreasonable. But if we're hoping to recognize nonhuman persons in part from their capacities for empathy and ethics, we will need to find a way to evaluate those qualities that doesn't just reshape itself to give whatever answer we want.
A puzzle that won't go away
The fact that working out good criteria for nonhuman persons may be difficult is no excuse for failing to do it, however. My suspicion -- and it is no more than that -- is that even if the Declaration of Rights for Cetaceans runs out of steam, the questions of whether and how to recognize persons who aren't Homo sapiens are going to keep coming up. Maybe we'll face the problem someday with digital intelligences; maybe creations from biotech labs will pose it instead; maybe someone from the stars will compel us to return to it. The sheer number of ways it can pop up makes me think it's inevitable.
My further hunch is that, notwithstanding the problems, cetaceans and at least some of the great apes will eventually be recognized as persons. In fact, this categorization will someday probably be regarded as so self-evident that future generations will look back on our ignorance of it with the incredulity that we have for societies that kept slaves.
Update (3/20): Andrew Westoll, a former primatologist and author of The Chimps of Fauna Sanctuary, reminds me that the philosopher Peter Singer and other members of the Great Ape Project have in fact issued a World Declaration on Great Primates that, like the declaration for cetaceans, calls for the extension of rights to life, individual freedom, and protection from torture to the apes. One difference, though, is that the primates declaration doesn't explicitly call for them to be regarded as persons.
I'm also moved to add this: Whenever we do start to become comfortable with recognizing nonhuman persons ... wait for the fireworks to start. Politicized issues relating to pregnancy and end of life are complicated and cantankerous already. If society starts recognizing new categories of persons, then expect that concept to be brought into those conversations, too -- however inappropriately . At that point, we can only be glad the dolphins and the chimps will have the good sense to stay out of the argument.
Image: Dolphin. (Credit: Just Taken Pics, via Flickr)