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Modern Moral Problems

Nonhuman Persons

Gerard Elfstrom asks what such creatures, if they exist, would be like and how much it matters morally.

For much of Western history, we have been confident that human beings are persons but no other creatures have that status. These beliefs matter because personhood has often been deemed a necessary requirement for possessing moral value. Recently, an American legal activist group, the Nonhuman Rights Project, has challenged the assumption that only human beings are persons. Their approach is simple. They assume that humans possess particular features that make them persons, then ask whether there is evidence that any nonhuman animals display these same qualities. The group has offered testimony from an array of experts to support the claim that chimpanzees, elephants, and dolphins do indeed possess them. They conclude that these animals should legally be considered persons. Indeed, the Project has filed lawsuits in several state courts on behalf of individual chimpanzees, requesting that these nonhuman persons be granted legal recognition of their autonomy.

Although the Project makes claims about legal rights only, and their court suits have so far been unsuccessful, their arguments have implications for more general issues concerning the moral standing of nonhuman animals and their relations to humans. If some animals do have a standing as persons even in the narrow sense required for legal recognition, then we may be morally obliged to treat those animals very differently, by, for example, not killing them for sport or food, or using them for medical experimentation.

Historic Animal Identity Issues

The discussion of the moral status of animals has ancient roots. The Classical Greeks debated the matter at length, and with considerable sophistication. Several Greek philosophers, including Aristotle and the Stoics, framed the issue in terms of the possession, or not, of reason. They argued that if any animals possessed reason they should enjoy the same moral status as human beings. But why should the ability to reason be required for moral standing?

Values and porpoise

The moral approach most often employed by the Greeks, was that members of communities who’d devised jointly-accepted standards of conduct have moral standing in that community. The idea is that rational beings alone are able to recognize the benefits of long-term advantage over short-term advantage and to grasp general principles of conduct. Several ancient Greek philosophers assumed that only the ability to reason allows beings to conform their activity to the requirements of morality.

Since reasoning is not a physical trait which can be examined directly, they had to seek indirect evidence for its possession. They determined that any genuinely rational being must possess language. Because, so far as most Greeks were able to discern, animals lack the ability to speak, none had reason, and thus none could be either persons or members of moral communities. Since nonhuman animals cannot be part of communities composed of reasoning individuals, they concluded that they had no claim to the same moral protections as humans.

Medieval Christian ideas regarding animals were shaped by Aristotle and the Stoics, and the scholastics asserted along with them that nonhuman animals lack reason, so they cannot enjoy anything akin to the moral status of humans.

Later, René Descartes (1596-1650) viewed a human being as a unique combination of a material body and an immaterial mind or soul. He argued that because animals lack reason they must lack an intellect (having only sensations), and so they lacked a soul. Similarly, Immanuel Kant (1724-1804) presumed that humans simultaneously resided in two domains – although in Kant’s case, a realm of sensory experience and a distinct realm of intellect (which to Kant means non-sensory thought). Since he also believed animals do not reside in the realm of intellect, he also believed they have no moral claims on us. Notoriously, Kant asserted that humans should avoid cruelty to animals, but not for the sake of the animals themselves. Cruelty to them should be avoided on grounds that some human observer might be pained at the prospect of such treatment, and also that to inflict cruelty was bad for the person doing the inflicting (Lectures on Ethics, 1775).

But this intellectual climate began to shift late in the Eighteenth Century. Jeremy Bentham famously asserted that the only question relevant to the treatment of any creature was whether it could suffer:

“It may come one day to be recognized, that the number of the legs, the villosity of the skin, or the termination of the os sacrum, are reasons equally insufficient for abandoning a sensitive being to the same fate [of suffering]. What else is it that should trace the insuperable line? Is it the faculty of reason, or, perhaps, the faculty of discourse? But a full-grown horse or dog is beyond comparison a more rational, as well as a more conversable animal, than an infant of a day, or a week, or even a month, old. But suppose the case were otherwise, what would it avail? The question is not, Can they reason? nor, Can they talk? but, Can they suffer?”
(The Principles of Morals and Legislation, Chapter XVII, 1780).

If an animal could suffer, Bentham argued, it should have the same claim to be free of suffering as human subjects. He believed that an animal’s appearance of suffering was an accurate indication of the experience of pain, and, thus, it should not be made to experience suffering.

Bentham’s position on animals is a marked shift from that of earlier thinkers. He assumed that the simple fact of vulnerability to harm was sufficient to endow a creature with moral standing. This was a significant shift in moral thought, too. Until then, a basic assumption of Western European ethics had been that only moral agents were of moral concern – only individuals able to grasp moral principles and act in accordance with them. Bentham presented the alternative idea that beings able to suffer harm mattered morally simply because they were vulnerable to harm. Hence (without employing the term) he introduced the notion of moral patients: that is, of creatures who mattered morally simply because of their vulnerability to harm.

In the second half of the Nineteenth Century, Charles Darwin completely altered the common view of our relationship to animals in a different way. An important implication of his theory of evolution by incremental change was that there is no sharp break between the abilities of humans and those of nonhuman creatures. Hence for those who accepted Darwin’s ideas, the thinking of Aristotle, Aquinas, Descartes and Kant was incomplete at best, since they all presumed the existence of a significant gap or difference between humans and nonhuman animals.

One of the troubling aspects of Darwin’s continuity view was that it conflicted with the evident fact that humans live in ways that are markedly different from other animals, and also have abilities that seem vastly different from those which animals appear to possess. However, these ‘evident facts’ also came under fire in the Twentieth Century.

Modern Animal Thinking

During the Twentieth Century scientists began to hotly debate the question of whether nonhuman animals have genuine language use. Certainly, nonhuman animals are unable to communicate as humans can; but to what extent does this imply they lack language? Scientists are even now hard at work examining the sounds produced by chimpanzees, elephants, dolphins, and whales. In a number of cases, they have concluded that some types of animal communication have a syntactical structure akin to human speech. We might say that they use grammar to create complex meaning. They not only produce different distinct sounds, they are also able to produce those sounds in ordered series, and the order in which the sounds are produced is important for the meaning of the whole. For the past thirty years there has been ferocious debate on the question of whether chimpanzees and gorillas have language, or can learn to communicate at a human level. There is not yet a final consensus on these matters (see for instance, ‘Why monkeys can’t talk – and what they would sound like if they could’, M. Price, Science magazine, 2016). But at this juncture, it is not at all obvious that the Greek confidence that all animals lack complex language, or reason, is justified.

Chimpanzee © Carlos Valenzuela 2018

Chimpanzees, and some other nonhuman animals, also display evidence of other abilities that some researchers associate with personhood. One is the ability to recognize oneself in a mirror. The thought here is that an animal able to recognize its own reflection possesses a sense of self, a requisite for personhood. In addition, some animals, including chimpanzees, display evidence of what’s called ‘a theory of mind’. That is, they are able to understand that other individuals have wants, desires, feelings, intentions, and projects of their own, and act on the basis of that understanding – by being deliberately deceptive, for instance.

Another set of abilities concerning personhood involves being able to foresee a future and plan for it. Chimpanzees certainly do display such abilities. Notably, some captive chimps will store up piles of rocks, which they plan to toss at future human visitors.

These are remarkable and important discoveries, and they greatly deepen our understanding of our nonhuman neighbors. Nonetheless, by themselves, they do not necessarily imply that animals with these abilities should be considered persons.

Christine Korsgaard of Harvard University is a highly astute and clear-headed modern Kantian philosopher. She nonetheless rejects Kant’s view that animals have no moral claims on us. In support of this she argues in her book Fellow Creatures (2018) that perhaps all conscious creatures have intentions and plans that entitle them to be respected by us. She contends that we have no sound basis for judging that our wants, desires, and values have greater worth or moral significance than those of other creatures. She believes that since we are unable to successfully defend the claim that our values are superior to theirs, we are obliged to accommodate their life plans. Among other things, she concludes that this implies that nonhuman animals should not be removed from their native habitats, and certainly should not be held captive.

Korsgaard’s argument is both ingenious and intriguing. Nonetheless, her findings leave several issues unaddressed. For example, human interests frequently conflict with those of animals. We seek to keep deer, rabbits, and squirrels out of our gardens. Mice and rats appear to find human residences enormously attractive, yet we make determined efforts to keep them away. How are we to deal with the issue of pests? Also, although some nonhuman animals are akin to persons in some ways, they possess the qualities of personhood to a markedly lesser degree than adult humans. For example, research has provided evidence that adult chimpanzees achieve the intellectual development of a two- or three-year-old human child (‘The Intellectual Development of a Home-Raised Chimpanzee’, K. J. and C. Hayes, Proceedings of the American Philosophical Society, Vol. 95, No. 2, 1951). Children continue to develop intellectually for more than twenty years, while chimpanzees cease cognitive development at an early age. Should they have the same or similar moral standing to humans?

Detailed investigation shows that chimpanzees form close emotional bonds with others and suffer emotional distress if those associations are denied. The same is true of many – perhaps most – nonhuman animals. Hence, this data may provide a foundation for claims to decent treatment; but it seems unlikely that an appeal to personhood is necessary to reach that conclusion. As Bentham would likely insist, it provides evidence of ways in which they can suffer, and that alone is sufficient to ground moral claims on us.

Chimpanzees display signs of self-recognition and of planning for future activity. But it is not obvious that this entitles them to legal claims to remain free of human constraint. In fact, the chimpanzees that are the principals of the Nonhuman Rights Project lawsuits have been in captivity for much or even all of their lives, and it is most unlikely they would survive a return to the wild. Given this, what rights is it reasonable for them to possess? The Nonhuman Rights Project believe they should be allowed to form associations with other chimpanzees and enjoy some degree of freedom to live as they wish. But, for primates resident in human societies, these degrees of freedom must remain strictly limited. Like small children, they can survive only with the direction and care of human adults.

Moreover, laws presently exist to protect animals from cruelty and ensure their proper treatment. Would granting the legal status of personhood add significantly to these protections? As Jeremy Bentham and his utilitarian followers would no doubt insist, what matters is the ways in which animals can be harmed. In addition to physical pain and discomfort, we have learned they may suffer by being deprived of social ties with others of their species and by the inability to live as they would wish. The bare fact of this seems adequate reason to protect them from such experiences, regardless of issues of personhood.

Nonhuman Moral Standing

Christine Korsgaard believes that only conscious beings have a claim on our moral obligations. It would seem that Korsgaard thinks that a creature without consciousness (insects, for example) is thus without awareness of its circumstances, and so unable to suffer, no matter what level of physical distress it encounters.

There are several difficulties with this view. For one, we have no clear, accepted definition of consciousness, nor any clear criteria for determining when consciousness is present. Given the present state of our understanding, it is possible that both flies and cockroaches possess some level of consciousness. After all, they are notoriously well-equipped to escape threats and respond to predators. For Korsgaard – in opposition to Bentham – it appears that suffering alone is not directly morally relevant to our treatment of animals. What matters in her view is their intention to escape it. For her – as for Kant – it is intention that is morally central. Hence Korsgaard’s standard may allow a huge number of living beings, including insects, to have moral standing.

Professor Korsgaard, following Kant, nonetheless finds a wide gap between human beings and creatures of other sorts. She notes that human beings are able to grasp moral principles and conduct their lives in accordance with them. As far as she is able to determine, no other creatures have this ability. Other creatures simply act in accordance with their impulses. They do not reflect on their motives, nor evaluate them as humans can. They simply act or do not act. So although Korsgaard differs from Kant in arguing that nonhuman animals matter morally, she agrees with Kant that only human beings are capable of functioning as moral agents. In other words, she is assuming that nonhuman animals are unable to grasp general moral principles and align their actions with them. The activists of the Nonhuman Rights Project are thus faced with the difficulty that nonhuman animals can never be persons in the way humans are. From this perspective, the Nonhuman Rights Project is misconceived. But there are robust grounds for asserting that nonhuman animals should matter morally simply because of the ways they can suffer. Hence, rather than seeking something akin to human legal personhood for animals, it would likely be more feasible as well as more conceptually coherent to seek robust legal redress for the ways in which humans make animals suffer.

© Prof. Gerard A. Elfstrom 2021

Gerard Elfstrom is Professor of Philosophy at Auburn University in Alabama. He took his PhD at Emory University.

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