An essay defending the status quo in the animal rights debate.
|Many advocates of animal rights attempt to divorce the notion of personhood from the notion of legal rights. These thinkers instead attempt to justify animal rights with some other criteria that the animals possess in common. For example, philosopher Tom Regan defends the rights of animals on the basis that they are “experiencing subjects of life” (Regan, 144) while Peter Singer claims the animal’s capacity to suffer is the criterion which determines whether it has rights or not. I suspect that these alternative methods of justifying rights stem from the recognition that animals are probably not persons in the same way that humans are persons.
However, I believe personhood is inseparable from rights because personhood is a sufficient condition for possessing rights; that is, if one is a person, then he necessarily has rights as well (though the reverse may not be true). This intimate relationship can be best illustrated by clarifying the notion of personhood, which is a rather muddy concept to begin with. A major reason behind the elusive nature of personhood is that the word “person” itself is equivocal. In the context of the animal rights debate, I believe the word “person” has two meanings: person in the moral sense, and person in the legal sense. By a person in the moral sense, I mean some being who can be wronged by the actions of others. In contrast, a legal “person” is someone who possesses certain inviolable rights. Furthermore, the legal and moral interpretations of the word “person” are not necessarily equivalent to each other, since morality and law also do not completely overlap. Immoral activities are not necessarily illegal- a good example would be saying mean things to someone else. And neither are illegal activities necessarily immoral, as the seat belt laws demonstrate.
So what do the moral and legal interpretations of personhood entail? To start with the moral interpretation, I have already stated that a moral “person” is some entity who is capable of being wronged. I give this definition because if a being cannot be wronged in any way, then it does not matter how one treats that being. However, a person in the moral sense is in the exact opposite situation; it is an entity possessing moral worth and thus demands morally acceptable treatment.
It also seems that a being must first be able to recognize a self distinct from its environment and be aware of its experiences, before it can be wronged. Conversely, if an entity has no conception of self, and is aware of nothing except momentary sensations, then it also has no explicit interests that can be violated. These observations are only obvious, since there must first be a “self” that is aware of what is happening to it before that “self” can be wronged. After all, one can only wrong someone, and not just something.
To clarify terms, let us call this nebulous distinction between someone and something, “subjective consciousness”- which includes, among other things, a sense of self and awareness of experience. Subjective consciousness should be contrasted with sentience, which is just the ability to sense and react to stimuli without really understanding the situation. But now the question arises, how do we know whether a being has subjective consciousness or not, and thus be able to categorize it as either a moral “person” or a moral “non-person”? To make the issue more vivid, imagine that an extra-terrestrial suddenly landed on Earth. What test would we use to determine if the alien is a moral person or not?
It appears that there is not one clear criterion that demonstrates the presence of subjective consciousness. But there are certain characteristics that seem central to the concept of moral personhood. Philosopher Mary A. Warren suggests that an entity possesses moral personhood when it has the following six traits: sentience, emotions, reason, the capacity to communicate, self-awareness, and agency, or conscious control of its actions (Warren, 76). Warren argues that these six characteristics are not the only ones relevant to moral personhood, but that they seem to be the most essential requirements of being a person. Furthermore, Warren states that all six of these secondary characteristics are not absolutely essential to forming a fully developed subjective consciousness. One can still be a full moral “person” while missing, say emotions, or maybe language. As an example, Warren cites the character Spock from Star Trek, who has all of the six requisite traits except emotionality, but still is undoubtedly a full moral person (76). However, it does seem true that the fewer of Warren’s six characteristics an organism exhibits, the less plausible it is to consider that entity as a moral person.
This brings us to the question: if we adopt Warren’s system of identifying moral personhood, where exactly lies the boundary between moral persons and non-persons? Is there a threshold of a certain number of criteria that must be satisfied before an organism possesses moral personhood? To address this issue, it may be helpful to consider our previous definition of a moral person as someone who can be wronged. It seems being wronged entails having some interest that is violated- and the more interests that are violated, the greater the injustice. For example, if a criminal rode away with my car, thus violating my interest in maintaining my property, then this is still a lesser wrong than if he had murdered me during this robbery, in effect violating both my property rights and my interest in continuing to live.
But if the wrongness of an action corresponds to the extent that interests were violated, then one’s capacity to be wronged would also depend on the degree of interests that he holds. And when one’s capacity to be wronged varies, one’s moral personhood would also vary with it, since the two conceptions are linked by definition. This leads to the interesting conclusion that moral personhood may come in degrees, and is not a yes or no proposition.
When we re-examine Warren’s six criteria, we see that they are just another way of establishing the extent of interests held by the being, since the extent of an organism’s interests is determined by its level of consciousness. And if a being holds a more extensive set of interests, then it can also be wronged more grievously than another being with a comparatively narrower set of interests. For example, a merely sentient organism can only be wronged through the infliction of pain. In contrast, a full moral person with reason, agency, and the other requirements for subjective consciousness can be wronged in other ways, such confinement or the mere threat of bodily harm, since such actions violate the person’s interest in maintaining his liberty or being free from future anticipation of pain.
We can now understand why moral personhood comes in degrees. Different animals possess different proportions of Warren’s requirements for subjective consciousness. For example, most animals possess sentience since they can feel stimuli, particularly pain. A few animals, such as apes, also possess a modicum of reason and self-awareness. Chimpanzees have been observed to solve difficult problems, such as stacking boxes to reach a banana hanging from the ceiling, while gorillas can apparently identify their reflections in the mirror as images of themselves (McPhail, 178).
But if these animals possess different degrees of the requirements for subjective consciousness, then their capacity to be wronged also varies. And if their capacity to be wronged varies, then they also possess differing degrees of moral personhood. Certain animals, especially higher-order mammals such as apes or cetaceans, will have a greater degree of moral personhood than lower-order animals. However, our present scientific data seems to indicate that only healthy adult members of the species Homo sapiens possess all of the requirements for subjective consciousness, making them the only entities possessing full moral personhood. This is why it is much worse, morally speaking, to harm and violate the interests of a human being than an ape; and likewise, a more grievous moral fault to abuse an ape than a household dog. This does not mean, of course, that violating the interests of the dog is acceptable moral behavior, only that it is less wrong than harming a human being.
Moral personhood is just one interpretation of the word person. There is yet another interpretation relevant to our discussion, which is legal personhood. As discussed earlier, a person in the legal sense has certain inviolable rights. This is to be contrasted from moral personhood, which just means the being is capable of being wronged because it holds certain interests. While violating interests is merely a moral wrong, violating rights would be both an immoral and an unjust action.
This difference between interests and rights arise because of the contractual nature of rights. Rights can only be established in a society where the members can both recognize and respect the rights of other members. As philosopher Michael Fox explains, “Thus rights belong to beings because they are moral agents functioning within a community of which responsibility and accountability are central features and where they are acknowledged to be such” (Fox, 121). If the members of society do not have the capacity to ascribe rights to each other, then they cannot be said to have rights themselves. This is why rights are similar to contracts, in that a contract is valid only if those who signed it fulfill their obligation as stipulated in the contract. If the signer fails to uphold his obligation, then he is no longer entitled to anything promised to him in that contract. In the same way, if someone cannot fulfill his duty to respect the rights of others, then his own rights would also become null and void.
Our justice system reflects such a contractual conception of rights. We take away rights from those members of society who have demonstrated that they cannot recognize the rights of others. For example, we may take away the rights of liberty from thieves who cannot respect the property rights of others. Or more seriously, we may take away the right to life of a murderer who failed to respect that same right in other members of society. But our next question is, if rights are possessed only by those who can recognize the rights of others, then what determines this capacity to recognize other’s rights?
In response, it seems this capacity to respect the rights of others, which is the requirement for legal personhood, must also entail subjective consciousness. In other words, if one possesses subjective consciousness (and thereby is a full person in the moral sense) then he must be a legal person as well. Moral personhood is intimately connected to legal personhood because the required attributes of these two interpretations overlap. Only by possessing full subjective consciousness can one also respect other’s rights. A dog, for example, cannot respect the rights of the mailman because the dog cannot rationally control his instinctive urge to bite strangers. Similarly, a cat could not respect the right to life of a mouse- even if the mouse had such a right- because the cat cannot comprehend such an abstract notion. Thus, the cat does not possess rights. And neither does the mouse, since mice also lack the essential traits of subjective consciousness.
If we apply this test to all the various animals, it seems only humans have, without a doubt, inviolable rights, and thus by definition, legal personhood. This is because only humans exhibit subjective consciousness in the fullest sense, which enables us to respect the rights of others. Some may claim that according to this analysis, other animals with advanced cognitive abilities might also possess legal personhood. However, it is far from clear that such animals have a sufficiently high level of subjective consciousness, where they can actually recognize the rights of other persons and modify their own actions accordingly.
Some may object to this close association between legal and moral personhood by claiming infants and mentally handicapped humans, who do not possess subjective consciousness, are nevertheless recognized by society as legal persons. I agree completely with such an observation; however, I do not see how it conflicts with my earlier analysis. I only claimed that complete moral personhood, or subjective consciousness, is sufficient for legal personhood. However, I believe being a person in the moral sense is not necessary to be a person in the legal sense; that is one can still be a legal person without being a fully moral one. Infants and mentally handicapped human beings are perfect examples of this latter principle. Even though such member of Homo sapiens cannot recognize the rights of others, we still extend legal personhood to them, attributing to them inviolable rights that are respected by all members of society. And we choose to extend legal personhood to such beings because it is in our best interest to do so.
For example, all adult human beings were at one point infants, with only partial subjective consciousness. Therefore, it makes sense to recognize the rights of infants, who will in the future develop as full moral and legal persons. As for the mentally disabled, it is a distinct possibility for any normal human being that he may relapse into a similar state through some unfortunate accident. Therefore, it would be in the best interests of healthy humans to extend legal personhood to the retarded, if only to prevent abuse from happening to him (the healthy person) if he was to somehow become mentally disabled himself. Indeed, Fox has suggested that legal personhood must be extended to all members of the human species in order to prevent “systematic abuses of the dignity and rights of those designated as second-class citizens” (125). Fox suggests that it is in our best interest to recognize all human beings as legal persons since not doing so could lead down a slippery slope to “Nazi-like genocidal campaigns to eliminate “undesirables”…” (125)
However, in the case of non-human animals, I do not see an obviously good reason for extending legal personhood to them. Perhaps we are interested in the welfare of our pets or livestock, and wish to extend legal personhood to them to satisfy this whim. Or perhaps, we may feel certain higher-order mammals possess a sufficient degree of moral personhood so that we should extend legal personhood to them, even though their level of subjective consciousness is still not high enough to automatically qualify them as legal persons. There may be other reasons for extending legal personhood to animals that are not fullly persons in the moral sense. But the important thing is that complete moral personhood (subjective consciousness) is the only guarantee of legal personhood.
So what are the practical ramifications of our analysis? For one, not all animals are equal, at least in moral worth, since some have a greater capacity to be wronged than others. What cannot be denied, however, is that all animals exhibiting at least some of the requirements for subjective consciousness can be wronged to an extent. It would therefore be morally wrong to violate their interests, with the extent of the wrong depending on how much subjective consciousness the animal possesses. For certain higher-order animals such as apes or cetaceans, the moral wrong that occurs when they are harmed may be so grievous that some regulations to protect them may be warranted. After all, we do regulate behavior for no other reason than because it is morally offensive. Some examples of this include banning child pornography and broadcasts of violent TV shows during primetime. Passing laws to protect those animals whose cognitive abilities are closest to that of human beings- such as apes, dolphins, or elephants- would certainly be a step towards making our society morally decent.
Nevertheless, we should be mistaken to think such laws are needed because non-human animals have inalienable right as humans do. Such a conception of rights is flawed because only humans are capable of recognizing the rights of others, and thus, alone possess rights themselves. Non-human animals lack the full degree of subjective consciousness that is needed to be able to respect other’s rights, and are thus incapable of fulfilling the social contract from which rights originate. Therefore, it is useless to speak of “fighting for animal rights” or to represent certain animals’ interests in any legal forum. Non-human animals, as non-persons in the moral sense, can only receive legal protection if we decide it would be in our best interest to do so. Otherwise, harming them would fall in the same category as smoking, cursing, or spitting- not so trivial as to be morally acceptable, but also not so serious that the law must prohibit it.
Fox, Michael A. “The Moral Community.” Ethics in Practice. Ed. Hugh LaFollette.
Blackwell Publishing Ltd.: Oxford, 1997. 117-127)
McPhail, Euan. The Evolution of Consciousness. Oxford University Press:
New York, 1998.
Regan, Tom. “The Case for Animal Rights.” Ethics in Practice. Ed. Hugh LaFollette.
Blackwell Publishing Ltd.: Oxford, 1997. 140-146.
Warren, Mary A. “On the Moral and Legal Status of Abortion.” Ethics in Practice. Ed.
Hugh LaFollette. Blackwell Publishing Ltd.: Oxford, 1997. 72-82.