[BRIEF NOTE] On the legal mechanics of granting smart animals personhood

[rfmcdonald]

Gerry Canavan linked to the Scientific American blog The Primate Diaries, where Eric Michael Johnson described the sorts of legal mechanics necessary to grant smart animals basic rights. Dolphins and whales were the subject of a recent declaration by scientists, Johnson notes.

Such a declaration is a minefield ripe for misunderstanding, as the BBC quickly demonstrated with their headline, “Dolphins deserve same rights as humans, say scientists.” However, according to Thomas I. White, Conrad N. Hilton Chair of Business Ethics at Loyola Marymount University in Los Angeles, the idea of granting personhood rights to nonhumans would not make them equal to humans under law. They would not vote, sit on a jury, or attend public school. However, by legally making whales and dolphins “nonhuman persons,” with individual rights under law, it would obligate governments to protect cetaceans from slaughter or abuse.

“The evidence for cognitive and affective sophistication—currently most strongly documented in dolphins—supports the claim that these cetaceans are ‘non-human persons,’” said White. As a result, cetaceans should be seen as “beyond use” by humans and have “moral standing” as individuals. “It is, therefore, ethically indefensible to kill, injure or keep these beings captive for human purposes,” he said.

This is not as radical an idea as it may sound. The law is fully capable of making and unmaking “persons” in the strictly legal sense. For example, one Supreme Court case in 1894 (Lockwood, Ex Parte 154 U.S. 116) decided that it was up to the states “to determine whether the word ‘person’ as therein used [in the statute] is confined to males, and whether women are admitted to practice law in that commonwealth.” As atrocious as this ruling sounds, such a precedent continued well into the twentieth century and, in 1931, a Massachusetts judge ruled that women could be denied eligibility to jury status because the word “person” was a term that could be interpreted by the court.

[. . . P]rior to 1886, dating back to the 1600s, corporations were viewed as “artificial persons,” a legal turn of phrase that offered certain rights to the companies but without the full rights of citizens. By using the wording of the 14th Amendment (intended to protect former slaves from a state government seeking to “deprive any person of life, liberty, or property, without due process of law”) it was ruled that corporations should enjoy the same status. As a result, between 1890 and 1920, out of all the 14th Amendment cases that came before the Supreme Court, 19 dealt with African-Americans while 288 dealt with corporations. With the legal stroke of a pen, artificial persons were granted all the protections of citizens.

But that would be unlikely to happen with whales, dolphins, or even great apes. A “nonhuman person” would have a definition similar to this earlier tradition of “artificial person,” one that grants limited rights that a government is obligated to protect. Furthermore, according to White, the term would only apply under specific cases for nonhumans that had self-awareness, complex social as well as emotional lives, and met certain criteria under the definition of consciousness (so, for example, ants would never be considered persons under law). According to White, these criteria have been met in the case of dolphins and whales and our legal institutions should incorporate this evidence into American jurisprudence.

Similar legal precedents regarding the concept of personhood exist elsewhere, for instance in Canada in the famous Persons Case put before the Supreme Court. In the Canadian case, the Persons Case established Canadian constitutional law as a corpus in constant evolution in keeping with changing times.

Thoughts, legal-type people?