LEGAL RIGHTS FOR NON-HUMAN
ORGANISMS: SCIENCE FACT?
by Serri Miller
The weather bureau will
tell you what next Tuesday will be like, and the Rand Corporation
will tell you what the twenty-first century will be like. I don't
recommend that you turn to writers of fiction for such information.
It's none of their business. All they're trying to do is tell
you what they're like, and what you're like-what's going on-what
the weather is now, today, this moment, the rain, the sunlight,
look! Open your eyes; listen, listen. That is what the novelists
say. But they don't tell you what you will see and hear(1).
Two humans visit the Cincinnati
Zoo and see a Bonobo Chimpanzee sitting in its habitat. The chimpanzee
regards them steadily while digging in the turf with a stick.
"It's digging with a stick," Human One observes.
"It certainly is," Human Two agrees.
"That's some very intentional behavior," Human One
"Some literature says they're as smart as four-year-old
children. Maybe smarter."
The humans watch while the chimp unearths and eats a grub. They
leave the exhibit and walk for a few hundred yards, shelling
their peanuts. Human One stops his tracks with a peanut halfway
to his mouth. "Wait a minute. If that's true, is it right
to keep them in zoos?"
This question, and the natural follow-up questions of whether
it is "right" to eat chicken, "right" to
make shoes from cow hide, or "right" to kill zooplankton
in lakes, reflect classic philosophical quandaries about the
values that humans place upon non-human organisms. Current arguments
for legal recognition of non-human organisms reside everywhere
along a spectrum that begins at the mere presence of life and
extends into demonstrated self-awareness. At any given point
on this moral value spectrum, someone argues that the organism
has now attained a degree of moral value that justifies the organism's
interests affecting, on some level, humans' interests.
Over 45 years ago,
science fiction author and sometime political philosopher Robert
A. Heinlein posed similar questions in his juvenile fiction THE
STAR BEAST (first copyright 1954). In THE STAR BEAST, John Thomas
Stuart XI, a human teenager, keeps in his backyard a creature
he calls Lummox. Lummox looks "something like a rhinoceros,
something like a triceratops," sports eight stumpy legs,
and stands about seven feet high. Lummox can speak broken English,
but the characters debate whether Lummox has real intelligence
or whether he merely parrots human speech. Lummox has lived with
the Stuart family for several generations, passing by inheritance
from father to son.
One day, Lummox escapes the backyard and tours the town. The
townspeople bring property damage claims and criminal charges
against Stuart. Lummox's case comes to the attention of Earth's
Department of Spatial Affairs, which sends its representative
Sergei Greenberg to Stuart's hometown. Greenberg must determine
whether Lummox belongs to any extraterrestrial race that has
a treaty with Earth entitling its members to reciprocal legal
Greenberg initially determines that Lummox is ineligible for
legal status under Earth's treaties. He returns to the Department
of Spatial Affairs to attend to a more pressing matter: negotiations
with a heretofore-unknown extraterrestrial race called the Hroshii.
The Hroshii claim that Earth is holding one of its members hostage
and threaten to invade Earth if this Hroshia (singular) is not
returned. Because the Hroshii look nothing at all like Lummox,
the Department of Spatial Affairs flirts with an interstellar
incident until Spatial Affairs personnel identify Lummox as an
immature Hroshia. Spatial Affairs hastily recovers Lummox and
turns Lummox over to the Hroshii-but she (for Lummox is female
and in fact a Hroshii princess) refuses to return to her home
planet unless she receives assurances that she may to continue
her lifelong hobby: breeding and raising John Thomas Stuarts.
THE STAR BEAST does not pretend to be a legal text. However,
it asks surprisingly rich and timely questions about legal status
for non-human animals. Under Heinlein's framework, an organism
earns a sort of "strict scrutiny" when it displays
certain attributes and capabilities. THE STAR BEAST'S tests emerge
as follow: If an organism has a speech center, manipulative organs,
the capacity to write and keep records, and a certain intelligence,
the creature receives legal rights similar to those accorded
to humans. A close examination of Heinlein's xenological tests
reveals that these tests contemplate many of the same ethical
questions set forth by modern organism rights scholars.
A. The "Speech Center" Test
Modern organism rights arguments provide two justifications for
Heinlein's speech center requirement. First, a speech center
can indicate a high level of physical evolution. An argument
for animal rights based on evolution assumes that the animal
at the top of the evolutionary scale got there because it is
a "fitter" form of animal. The argument assumes that
holding the "fittest" position on the evolutionary
scale bestows intrinsic moral value, and the organisms that achieve
this high status earn legal recognition.
Second, a speech center can indicate that the organism understands
and uses symbolic language. "Language," as compared
to mere "communication," indicates an ability to agree
upon, use, and understand abstract symbols. The argument that
symbol use should lead to increased moral value only works if
one assumes that a hoot, growl, chirp, or roar communicates information
but does not embody symbols that require translation or interpretation.
Scholars counterargue, however, that linguistic ability need
not exist at a level where humans can understand it. "Why,"
they ask, "should animals have evolved an ability to
indicate anything to human beings? Is it not enough that they
may be able to communicate adequately with their own species?"(2) Heinlein agrees. "Assuming that
an [extraterrestrial] is stupid because he can't speak our language
well is like assuming that an Italian is illiterate because he
speaks broken English."(3)
B. The "Manipulative Organs" Test
Like the speech center test, a "manipulative organs"
test places moral value on a high degree of physical evolution.
An across-the-board application of this test, however, extends
high moral value to any creature that can manipulate its environment.
It would grant legal rights, for example, to a bower bird, which
builds nests and decorates them with twigs, shells, and stones.
It would also grant legal rights to a beetle that can lift and
carry small objects. Such an interpretation makes little sense,
because it fails to fit Heinlein's proposed system under which
some organisms merely deserve humane protection and others receive
legal rights. Therefore, Heinlein must have designed this test
to reflect some cognitive ability.
The use of cognition as a justification assigning high moral
value to certain organisms becomes even more compelling when
the organism in question appears to use a tool, i.e., selects
a specific intermediary object to accomplish something the organism
apparently understands that it cannot do with its body alone.
"Self-awareness, as represented by second-order volitions,
is a necessary and sufficient criterion for perceiving (and therefore
presumably valuing) the . . . interests of liberty and autonomy."(4)
C. The "Writing and Record Keeping" Test
Heinlein's writing and record keeping test translates to demonstrated
self-awareness. An organism that keeps records indicates by such
action that it knows "I existed yesterday, I exist today,
and I am aware that there will be a tomorrow." Given that
no other known species on modern Earth writes or keeps records,
one might assume that writing and record-keeping are purely human
pursuits. However, record-keeping need not logically include
writing. Even humans have oral history traditions. Organisms
that communicate among themselves could have oral traditions
also. Until humans learn these organisms' language, humans could
not properly apply this test.
D. The "Relative Intelligence Quotient on a Human Scale"(5)Test
Heinlein's inquiry into a "relative intelligence quotient"
finds several analogs in modern arguments for animal standing.
First, a primate's well-developed brain supports the "evolution
equals moral value" argument by indicating a high capacity
for measurable intelligence. Second, presuming that Heinlein
had a standard Stanford-Binet intelligence test in mind, the
organism's short-term memory, verbal skills, quantitative reasoning
skills, and abstract reasoning skills would all support its bid
for high moral value based on cognition. The speed and quality
of such reasoning constitutes "intelligence." Similar
arguments cite organisms' ability to learn as proper evidence
of a moral value that deserves an attendant legal right.
Before applying Heinlein's tests to a species of organism, one
must eliminate the problem of low-level function in individual
organisms. Thomas Kelch's concept of "deliberate rationality"
addresses the problem neatly, resolving the current paradox inherent
in the fact that many humans believe it is acceptable to behead
breathing, walking, pecking chickens but unacceptable to behead
breathing comatose humans. Kelch's test applies a given species
as a whole. If the species displays capacity for "deliberate
rationality" as a generalizable characteristic, each individual
of that species will be accorded, at minimum, legal rights consummate
with the species' capability to understand its own interests.
Applying Heinlein's tests to the Cincinnati Zoo's Bonobo chimpanzee
produces interesting results. First, does the chimpanzee have
a speech center? It hoots, grunts, growls, and screeches, but
it does not produce human speech. However, several primates across
the United States reportedly possess and use American Sign Language
vocabularies. Research also reveals that some Bonobo chimpanzees
can "comprehend simple sentences and simple syntactic
structures"(6). If Bonobo chimpanzees
can communicate with sign language and comprehend speech, and
if those abilities are a normal characteristic of the species,
Kelch's deliberate rationality test extends those characteristics
to this chimpanzee and the chimpanzee could arguably pass the
speech center test based on its ability to use and understand
The chimpanzee's human-type digital hands unquestionably pass
the manipulative organs test. A chimpanzee uses its hands to
grasp and hold objects. This particular chimpanzee used a stick
to dig in the ground and produce grubs. Although it passes this
test, it fails the record-keeping test (as far as we know). So
finally we ask, "what is the chimpanzee's quotient relative
to a human's?"
Although primate researchers may delight in claiming that primates
are nearly as smart as humans, actual IQ test information is
not available at a level of specificity that accurately compensates
for environmental variables between humans and primates. Because
Heinlein does not propose a standard for relative intelligence,
one cannot conclude whether the chimpanzee fails or passes this
test. If, however, philosophers would assign moral to cognitive
ability identical in kind, if not degree, to that of a human,
the chimpanzee stands a good chance of passing this test.
Of Heinlein's four xenological tests for assigning legal rights
to organisms, all of which encompass modern philosophical justifications
for assigning moral value to the organism being tested, the Bonobo
chimpanzee passes two, fails one, and might pass the third depending
on the moral value assigned to cognitive capability. Such a result
weighs in favor of assigning legal rights to the Bonobo chimpanzee.
At the very least, such a result invites further study to determine
whether the Bonobo chimpanzee could pass all the xenological
tests if the tests were modified to accommodate modern scientific
and behavioral study methodology.
When pursuing the worthy goal of seeking human-level legal rights
for non-human organisms, scholars, writers, and activists must
offer the legal community a concrete argument in favor of assigning
significant moral value to these organisms. Heinlein's xenological
tests encompass the key philosophical arguments presented in
law journals, academic reports, and organism rights advocacy
essays. Although they first appear in speculative fiction, and
although they would require some modification to apply to organism
rights advocacy, Heinlein's mid-century visions reflect much
of today's jurisprudential reality.
ROBERT A. HEINLEIN, THE STAR BEAST (1954).
Anthony D'Amato and Sudhir K. Chopra, Whales: Their Emerging
Right to Life, 85 AM. J. INT'L L. 21 (1991).
Stephen M. Wise, Hardly a Revolution -The Eligibility of Nonhuman
Animals for Dignity-Rights in a Liberal Democracy, 22 VT. L.
REV. 793 (1998).
Thomas G. Kelch, Toward a Non-Property Status for Animals, 6
N.Y.U. ENVTL. L.J. 531 (1998).
Rodger Kram, Inexpensive Load Carrying by Rhinoceros Beetles,
199 J. OF EXPERIMENTAL BIO., 609 (1996).
Michael D. Rivard, Toward a General Theory of Constitutional
Personhood: A Theory of Constitutional Personhood for Transgenic
Humanoid Species, 39 UCLA L. REV. 1425 (1992)
Scott Rifkin, The Evolution of Primate Intelligence (paper published
by the Harvard Undergraduate Society for Neuroscience) (1995),
American Psychological Association, Controversy Follows Psychological
Testing, APA MONITOR Vol. 30 No. 11 (Dec. 1999), available at
Enger McCartney-Smith, Comment, Can Nonhuman Animals Find Tort
Protection in a Human-Centered Common Law?, 4 ANIMAL L. 173 (1998).
Tara Meyer, Apes Use Sign Language to Communicate as People Do,
DETROIT NEWS, Dec. 15, 1997.
Mike Shupp, Ape Man and Analogs-40 Years of Hominid Models (paper
published by Dept. of Anthropology, Calif. St. Univ. Northridge),
(last visited April 29, 2001).
Daniel C. Dennett, The Role of Language in Intelligence, in THE
DARWIN COLLEGE LECTURES, Jean Khalfa ed., (1994).
URSULA K. LEGUIN, THE LEFT HAND OF DARKNESS (introduction) (27th
2. D'Amato and Chopra at 26.
3. THE STAR BEAST at 87.
4. Rivard at 1478.
5. THE STAR BEAST at 45.
6. S.L. Williams et al., Comprehension Skills of Language-Competent
and Nonlanguage-Competent Apes, 17 LANGUAGE & COMM. 301,
Posted March 27, 2002