Nonhuman Persons, Nonhuman Rights

24 November 2019

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.




Comments (17)

RepoMan05's picture


Sunday, November 24, 2019 -- 1:01 AM

The issue with expanding

The issue with expanding animal rights has to do with the issue of expanding Human Rights. You can't tell an animal to forget how to use its innate impulses. An animal won't stop being an animal. Only in small ways are most animals of a subjective existence. There's not enough subjective world to their world that they have to reconnect their instincts by using subjectivity. You can make some animals forget the point of their impulses but you can't give them the agnosia we suffer from by telling them "the way things are" and filling their heads with lies.

Subjectivity is inexorably separate from reality. Subjectivity can never perfectly reflect objectivity. Telling someone "how it is" will always miss something or at least tell them something wrong. You can write the biggest most complex lexicon on even the simplest of things and you'll still forget something even if you didn't make an outright mistake. That's why enculturation is a subjective disease I call "subjective-agnosia." There's possibly a few exceptions.

Examples, "every rule has an exception" (and its exception) "everything is a poison; it's simply a matter of dosage" which is a furtherance of "truth exists independently of you and your belief of it."

This said, if you have human rights AND animal rights, you have to treat animal rights lower than human rights or you run into the problem of giving animals more rights than yourself and have to amend human rights to fit animal rights. You can tell a lioness not to harass a lion until he's ready to rape her but she'd probably kill you. It's what lions are made to do and so are you. It's proven by the fact that makes good sense to you.... It either makes good sense or you'd be eaten by a lioness.... If not a lion....

Religion, drugs, and eunuchs, are the source of inhumanity. for better and/or much worse. What could possibly be more morbid than being subject to a eunuch?

Psychosis is the only thing that separates us from animals.

Rationality is just a poorly defined value term for an undermined number of times our inner contrarians threw the ball back and forth before our inner umpire called foul.

Subjectivity itself is psychosis. It's not until you know where you are that you can know where you're going. Scribbles don't mean anything without the collectivist psychosis that they do.

In English, something you drink from is a "Cup." In Spanish, something you drink from is a "Taza." So which is it? Is it a Cup or a Taza. Is it both? Doesn't it exist independently of whatever you'd like to call it? It may as well be an Aschenbecher.

Truth exists independently of you and your beliefs. You exist in a socialy constructed collectivist psychosis. You're a living anthropomorphic argumentum ad populum fallacy.

Tim Smith's picture

Tim Smith

Thursday, November 28, 2019 -- 10:26 PM

Again... please seek help.

Again... please seek help.

This is not to say you don't have a point here and there or even ultimately. Reality is surely constructed.

The psychosis, however, is yours to bear alone. There is hope and help if you just seek it out.

Take care.

RepoMan05's picture


Saturday, November 30, 2019 -- 10:41 AM

You refuse that you might be

You refuse that you might be psychotic while claiming between the two of us that I'm the only one that's psychotic? Do i have that straight?

Tim Smith's picture

Tim Smith

Sunday, December 1, 2019 -- 10:17 PM

Hmm... am I psychotic? My

Hmm... am I psychotic? My wife would say yes. She actually is saying yes right now. I think it is incumbent on all Philosophers to ask this question. Let me get back to you on that.

Can a psychotic person definitively say whether they have lost touch with reality? Well, darn it. That's a good question that I am going to have to think about if only because I'm tired, but also because it's a good question.

Are you psychotic? I truly can't answer that. It's best that someone you love or someone you trust help you with that. I'm neither one of those.

I can say you came back on these posts and that in and of itself is a sign of sanity.

I've got to go... I must work in the morning and sleep awaits.

Best to you RM5. I would extend rights to you regardless of the content of your posts.

Ginkgo's picture


Sunday, December 15, 2019 -- 3:39 AM

Do you consider your mind can

Do you consider your mind can escape subjectivity?
Is your thinking flawless?
How can you know then that truth, objectively, exists?

Harold G. Neuman's picture

Harold G. Neuman

Monday, November 25, 2019 -- 11:10 AM

We may be making too much of

We may be making too much of this 'rights' thing. Descartes was just as limited as anyone else when he started ranting about an 'immaterial soul'. Whether humans (or any other advanced animal life, mammal or no) have an immaterial soul is very much a matter of belief, inasmuch as we have not figured out a way to demonstrate the existence of immaterial souls. We, as civilized humans, grant rights to one another, individually and on broader social bases. This separates us from the vulgar savage and the 'unfeeling beast'. So, this idea of rights had to begin some-when, probably around the time of the codification of language(s). It had little (or nothing?) to do with non-humans---sub-humans, maybe, but this begins to split hairs. It was part of advancement of civilizations and getting along with people outside of one's own sphere of everyday life.
On this topic I have opined before, claiming that we are getting wrapped up in animal rights because it makes us feel better and presents itself a a worthy cause, but, DOES it offer any sort of well-grounded rewards? I mean, for example, animals to whom we are offering rights have no notion of anything being different, do they? No, there is no reason nor advantage to acting towards them with malice and cruelty. Our best friends (dogs, I mean) act with love and loyalty towards their owners and human families, committing acts of bravery and saving human lives. If someone treats them badly, they probably do not consciously understand why that is happening. Nor do they understand why someone would intentionally starve them. My point, if it may be considered one, is that those of us who value animal life which is below our own will continue to do so. Those who don't won't. Whether or not this is a rights issue, then, depends upon who is looking at the matter. And, insofar as we have found out, the hard way, that we cannot legislate morality among ourselves, how does it follow that we can do so between ourselves and our canine; feline; anthropoid friends? This is another fight, while perhaps worth fighting, seems unlikely to be winnable. Seems to me.
(As to mixing religion and other forms of philosophy, it greatly muddies the water, yielding a product which is neither.)

RepoMan05's picture


Saturday, November 30, 2019 -- 10:57 AM

One problem inexorably starts

One problem inexorably starts the mud to swirl in the water. What that problem is, the problem of whether or not morality is a real thing or just a constructionist's reified ad popumlum delusion.

Tim Smith's picture

Tim Smith

Monday, December 2, 2019 -- 4:14 AM

It is both real and

Morality is both real and constructed.

There is a book I would mention and read with you. Would you read it and discuss it here? I will read any book you stipulate in return and share my thought.

Would you do this?

Is morality your criteria for non human rights? You seem to waffle and pause at that.

Tim Smith's picture

Tim Smith

Thursday, November 28, 2019 -- 11:13 PM

Bacteria show some aversion

Bacteria show some aversion to threats. Does that give them non human rights. Would I be insane to say yes to that? I think not if a group of the bacteria acted as one being on a scale that could be compared to human consciousness.

Consciousness is the boundary condition for extending rights to non humans. Some simple tests are currently being done called Zap and Zip which compliment an Integrated Information Theory (IIT) approach to consciousness assessment. The philosophical underpinning of this theory is panpsychism if I'm reading this literature correctly. Though Zap and Zip is a simple test and independent of IIT - this sort of quantitative approach shows promise. I agree that the mirror test, pain and feeling are too vague and open to allow extending legal rights.

It's important for philosophers to understand the stakes of the current scientific debates regarding emotion and feeling. Damasio's allusion to emotion as a higher order mental circuit are just the begining of a very active and pitched battle with very real stakes and deep consequence.

Finally, I would say, this has real significance in the effort to bring about the singularity. IIT research is key to this effort. There is a very deep distinction between consciousness and intelligence. Artificial Intelligence is seen as the harbinger of the coming singularity. It is not. Artificial consciousness is.

Ok, I lied. Here's my final offer. I'm stuffed. It's Thanksgiving and I ate ... I'm full. Everything I ate... was vegan. The Jainists are right. Let's fix this planet and industrial cruelty in one swoop. That is a non human right that will fix many wrongs. Happy Thanksgiving.

Ginkgo's picture


Sunday, December 15, 2019 -- 3:53 AM

Very enriching, thank you.

Very enriching, thank you. The ITT looks promising indeed.

Based on Damasio's statements, we could say that feelings are directly related to conciousness.
Do you believe artificial conciousness will arrive?

Tim Smith's picture

Tim Smith

Monday, December 16, 2019 -- 6:30 PM



Nature is a beast. Physic is its master. Nothing nature does can't be repeated except the past. If that is a noodle worth sucking let me say it doesn't entirely hold true. In general, however, if you do something you can largely do it again in the same way. The methylation and non-coding RNA that sprout and reset genes can be understood on an organic scale that explains stuff. Darwin does the heavy lifting. Here you are ... black box and all. Can you figure it out? If you can get it won't you tell me how?

Do you believe artificial consciousness hasn't already arrived? How will we know? Let me take a pass at that...

The very first sign will be a catastrophic upheaval in the markets. Why? Because money begat math.

This upheaval has happened on the scale of the first seven trumpets in 2008 but has also been seen in many many other inexplicable changes of fortune. Why does the news attribute the ticks and tocks of the index to the ... news? (That, is a very different and deep question... but let's not get off course.) I put it to you that the markets are instead an indicator of the coming of artificial consciousness. Why? Because humans are lazy, math is fun and it's nice work if you can get it.

The second sign of artificial consciousness will be an everlasting preoccupation with math to the absolute subjugation of nature. That, to our dismay, is happening now. I wish us all well.

The third sign of the coming will be consciousness reborn. What is it? You and I have scratched that post. Others are carving it. You are not what you think you are. In fact, you and I are thinking alike. When two hearts become one who could ask for anything more? Who indeed?

But to get a bunch more practical... no, I don't. I don't think artificial consciousness will arrive. Only because nature will denude the human brain before it gets to that for its own sake. If AC is done... it will be done by raccoon progeny or crow kin. I'd say octopi clades but it looks like we are killing the oceans faster than the atmosphere.

This is perhaps the final word on why we need to extend nonhuman rights. If not legal ... surely existential.

Harold G. Neuman's picture

Harold G. Neuman

Friday, November 29, 2019 -- 9:02 AM

Bravo, Tim, Bravo. I have an

Bravo, Tim, Bravo. I have an acquaintance who is very much into the notion of time travel. Claims to being close to solving it...I don't know how close he thinks he is. On the other hand, he is suspicious of the pitfalls of AI---thinks nothing good can come of it. Seems an enigma in some sort of way, yet, there you are.

RepoMan05's picture


Saturday, November 30, 2019 -- 10:47 AM

Time travel is inescapable.

Time travel is inescapable.

Tim Smith's picture

Tim Smith

Monday, December 2, 2019 -- 3:33 AM

Entropy...maybe. Time...not

Entropy...maybe. Time...not so much. I would share a story with you. Would you listen?

Can an animal or a plant, even, tell stories? That also is a good criteria from which to extend rights. In fact, it, unfortunately, is the most common.

Harold G. Neuman's picture

Harold G. Neuman

Saturday, December 7, 2019 -- 12:36 PM

I think, in the last rational

I think, in the last rational (?) analysis I can think of, the notion of extending rights to animals might turn on what we think about primary consciousness (that found in some higher animals) vs. higher-level consciousness (that shown by humans). These are terms of art posed by the late Gerald Edelman in some of his writings. By way of illustrating my point, I will excerpt here a portion of one of my recent efforts concerning the 'mystery' of consciousness:

...Explaining Consciousness

It is a tall order, I think. The so-called explanations I have read are, well, book length. Although they have been conceived and prepared by scholarly minds and have (mostly) withstood the trials-by-fire of peer review, the fact of the matter is this. Quite a lot is known ABOUT consciousness, whereas efforts to explain it have fallen short of the goal. It is obvious, for example, that human consciousness gives rise to capacities, abilities and capabilities unseen in other life forms: they are able to cope well enough with their realities but have not the imagination or ingenuity to use abstraction. The human advantage entails not only dealing with the things which ARE but also visualizing those that might BE. Consciousness is the totality of circumstances emanating from the human mind. That is my short explanation, which is, of course, also inadequate...

I have no quarrel with being kind to animals. There are no reasons why we should not. But we ought not impart to them the same sort of bill of rights which we afford ourselves, just because they have no ability to argue their own case. There are better uses to be made of our system of laws, and our limited view of morality.

Ginkgo's picture


Sunday, December 15, 2019 -- 3:33 AM

If we imagine our brain as a

If we imagine our brain as a black box, an input will enter and the correspondent output will exit. In animals, that process might be more straigh-forward, yet they are able to respond to stimuli just as we do.
I think that what makes us human different is that we can question that same process of thoughts.
What is happening inside our black box right now? Is it really something WE are thinking, or just an input-output mechanism? Are these then concious thoughts?
We are trying to analyze our thinking process by using that same element as a tool. It’s like the uroboros, a loop. Even now, when I am thinking about how I think, I have no real way of knowing if the questioning of my thinking process was just part of it or I somehow managed to escape that loop.
I believe we humans can escape that loop: by reflecting (which the initial trigger was is still something I don’t know) we start rearranging our thinking circuits and develop, as we shape our vision of reality, unavoidable subjective, and keep asking questions.

Tim Smith's picture

Tim Smith

Tuesday, December 17, 2019 -- 3:11 AM

Hmm... but it isn't a black

Hmm... but it isn't a black box. But suppose it were? OK. Let's do this?

You are a black box. Nice to meet you.

I am your input. Thanks for that output.

Hmm... we are more than one black box.

Ok now we have these conscious thoughts? ... these inputs and outputs. Hmm... I am with you. We can not escape a loop. In fact, its kind of worse.

We can not control the output.

Here's a book that has been very fundamental to my thinking about the initial trigger that you are asking about. In fact here's a bunch.

Sync - by Steven Strogatz. Read it and find your trigger. But don't think it has an answer. It's deep inside you and can't find its purpose without a little crazy in the making.

Joe LeDoux just put the best book out on how you got here... The Deep History of Ourselves. He doesn't appreciate will in human thought... but he pretty much appreciates the best thinking other than that.

I like Dan Dennett's From Bacteria to Bach and Back but he certainly doesn't appreciate will. His Elbow Room is fun but bosh.

Last book... Behave by Robert Sapolsky. This one is tricky and taught me something about will, but it leaves a lot on the table.

You are not a black box Ginkgo. Being a box is enough to extend rights however if the outputs don't match the inputs every time.

I'd like to know what you are reading that got you in these Strange Loops. I think we can get out of them but it is a deathly task.