Nonhuman Persons, Nonhuman Rights

Should some nonhuman animals be regarded as persons in the eyes of the law? And should animals so-regarded be allowed to sue in court to protect their legal rights? These are some of the questions we’re asking in this week’s show.

Should some nonhuman animals be regarded as persons in the eyes of the law? And should animals so-regarded be allowed to sue in court to protect their legal rights? These are some of the questions we’re asking in this week’s show. 

Philosophers believe that we have human rights because we are persons. That’s sort of a technical term in philosophy and it means something different from the same term used in legal contexts. (Note: our guest this week is a lawyer, not a philosopher!) So what exactly is a person in the philosophical sense of the word? And could some nonhuman animals be persons?

Descartes thought that to be a person means to have an immaterial soul, which is the seat of all thought and consciousness. He also thought that nonhuman animals lacked souls and therefore were just “fleshy automata” with no thought or consciousness at all. It seems likely Descartes over-estimated humans and underestimated other animals.

Contrast Descartes’ view with John Locke’s. Locke said that any creature with a conception of itself counts as a person. According to him, a person is “a thinking intelligent being, that has reason and reflection, and can consider itself as itself.” There are certainly many animals who have brains large enough to reason, albeit it in a fairly unsophisticated way (though this is also true of many humans…). But apart from considering the size of the brain, is there any reason to believe that some animals can “consider themselves as themselves”?   

Certainly, many animals feel pain. But if we took the capacity to feel pain as a criterion of personhood, then any animal that writhes around when it’s harmed would have to be considered a person. And if it turns out that some nonhuman animals are person, then as persons surely we would have to grant them certain nonhuman rights.   

I don’t think the capacity to feel pain by itself is sufficient for personhood as that is sometimes just a simple aversive reaction. But it can lead to a more robust notion when the animal not only reacts to pain, but is also capable of understanding and representing the infliction of pain as an infliction of harm to itself.

When we humans respond to pain we do things like protest and, depending on the situation, we might even threaten to inflict pain on the perpetrator. This could be a physical response, or it could be something more abstract, like taking someone to court for “injuries.” So, when we experience pain, we have a certain representation of that pain and what it means to us. When someone accidentally trods on us, for example, we recognize that it was not intended as an infliction of harm on us. But if we think someone is maliciously trying to hurt us, we see that as a violation to the self.

Do animals similarly behave in this way? Can they represent the pain that they feel as a violation of the self? Do we have any evidence that animals could even have a concept of the self? The Mirror Test is one way to see if animals have self-awareness, but I see no reason to believe it is the only test, which means failing that test would not necessarily mean the animal has no sense of self.

The ability to represent oneself as a self might be one criterion for personhood. But that’s not to say it’s the only one. Think of Koko the Gorilla (who, incidentally, passed the Mirror Test). She was taught to communicate her thoughts using American Sign Language. She knew something like a thousand signs. And there are also African grey parrots that can speak in whole sentences. So some animals are capable of communicating in fairly complex ways. Koko and other animals who have been successfully taught a language can understand sentences they have never heard before based on the syntax and component parts (compositionality) and they can also form new sentences from combining words they know in novel ways (generativity/productivity).

This ability is a sign of what Locke describes as “a thinking intelligent being, that has reason and reflection,” and it sets some animals, like humans, gorillas, and African grey parrots, for example, apart from others, like worms and fruit flies. Could this capacity for language be a criterion for nonhuman personhood?

Again, there may be other criteria we use. Think about elephants. They have really strong social bonds and complex relations with one another. They grieve when family members die and even seem to have mourning rituals that can last days. So they clearly distinguish self from other and can experience the loss of others in their family as the loss of something of value to the self. This might lead us to believe that elephants are also nonhuman persons.

So, suppose we find some criterion or set of criteria (the ones I offered are not meant to be exhaustive) to grant some nonhuman animals the status of person. What follows from this? Well, for a start, we ought to start treating these animals as persons and not mere objects or property! And what would that look like? We would have to recognize that they have the right to life, liberty, and security of person, the right to be free from fear, oppression, and slavery, and the right not to suffer cruel or degrading treatment. For those animals deemed as persons, it would mean we could not do things like keep them in captivity (in labs, zoos, or acquariums), eat them, or hunt them for sport. 

There will, of course, be much resistance to this idea of nonhuman rights. Humans can be selfish, biased, and irrational. But as Confucius once said, even the longest journey starts with a single step.