Episode 53 - Animal Personhood

Transcript

David: 0:06

Hi, I'm David Peña-Guzmán,

Ellie: 0:08

I'm Ellie Anderson. Welcome to Overthink

David: 0:11

the podcast where two friends

Ellie: 0:13

who are also professors,

David: 0:15

put philosophy in dialogue with the everyday

Ellie: 0:18

because ideas are within everyone's reach.

David: 0:30

Ellie, I am currently involved in a lawsuit, a lawsuit about animal rights. I'm not suing anybody personally in my personal life.

Ellie: 0:39

You're not suing your parents for giving birth to you the way that one guy did in the antinatalism episode that we discussed.

David: 0:45

Most definitely not because I don't think I would get a lot of money out of my parents. That's the only reason I'm not an antinatalist legal activist. No, but I am involved in this lawsuit involving animal rights that focuses on an elephant. An elephant named Happy who is currently at the Bronx Zoo and who, we are arguing, me and the other people who are involved in this legal endeavor, should be granted freedom. Should be released from the shackles of captivity.

Ellie: 1:20

Have you met Happy?

David: 1:21

I have never met Happy.

Ellie: 1:23

You're just a benevolent stranger.

David: 1:25

I'm just like a representative from a distance.

Ellie: 1:28

I really want to know why you think that Happy should get let out, but before we do that, I'm also curious, David, how did you get involved in this lawsuit with this elephant that you don't even know?

David: 1:38

Yeah. It's not like the most common thing for like philosophers to be involved in legal disputes. But the story here, this is like the behind the scenes. I attended a conference a few years ago in Atlanta, Georgia, where we went to graduate school. It was a, a conference at Emory University. And it was a conference on animal rights. One of the keynote speakers is a man by the name of Steven Wise, who is a law professor. And also the founder of this group called the Nonhuman Rights Project, which is a nonprofit that devotes itself to bringing lawsuits to court on behalf of animals. And Stephen Wise was there to talk about the concept of animal personhood, because at the time he had another lawsuit going this time involving chimpanzees. Now I was there with a bunch of colleagues from Canada. At the time I was a postdoc at Laurentian University, and one of my colleagues after the conference asked Steven what philosophers like us could do to get involved in the fight for animal liberation.

Ellie: 2:49

Specifically this chimp case, or just in general?

David: 2:52

No, this particular case involving chimpanzees and Steven said, well, you know what? Our lawsuit is about this philosophical concept, which is the concept of personhood. And so maybe philosophers are particularly well positioned to play a role in the lawsuit. So he said, "Why don't you write an amicus brief, which is what is known as a friend of the court brief, which essentially means that an expert writes a professional opinion and then they submit that as testimony to the court and the court considers that testimony when, uh, you know, making a final judgment. And as a result of this happenstance interaction, we put together a group of 13 philosophers and wrote this amicus brief that we then published as a book, which is entitled, Chimpanzee Rights: The Philosophers' Brief, and it came out in 2019. So it's now been a couple of years.

Ellie: 3:50

Okay. So there was this other lawsuit, the one about chimps, even before the one that was about an elephant. And what is the lawsuit arguing?

David: 4:00

Essentially, both lawsuits make the argument that the animals in question meet the conditions for legal personhood. And that means that Happy, the elephant in the second one, and Tommy and Kiko, the chimpanzees involved in the first one, should be legally recognized as persons with fundamental rights, including the right to bodily liberty. And therefore they ought to be freed from captivity. That's really the bottomline.

Ellie: 4:31

So in the Happy cases about releasing Happy from the Bronx Zoo, is it about releasing Tommy and Kiko from a zoo?

David: 4:38

No. The case with Tommy and Kiko was based on the fact that they were kept captive by private citizens in the state of New York. These like guys who just like owned a chimpanzee and had it like in their backyard.

Ellie: 4:52

Or owned two chimpanzees?

David: 4:54

Well, it was two different groups of people. So it was one guy who owned one chimpanzee in their house, keeping it literally in like a concrete cage and another guy who runs this kind of sketchy roadside zoo that is not very good and kind of run down.

Ellie: 5:13

Is it that one guy from Tiger King?

David: 5:15

No, it's not the guy from Tiger King, but you know, like it, it falls in the same category of these like roadside zoos that are not really accredited in the right way. This is, this is a whole other debate, but it's related because one of the chimpanzees was in one of these places. Terrible, terrible places.

Ellie: 5:31

I see. Okay. Living in a concrete cage obviously seems pretty crappy. I'm surprised it even got to the level of a lawsuit, right? That seems like a case for animal welfare. So why was this such a big deal? Is it just that the animals are suffering? And so they should be released from their suffering?

David: 5:47

Well, no, in fact, that's, what's really interesting about both of these lawsuits that neither of them makes an appeal to animal welfare. So, a lot of animal rights activism that we're used to it's about the suffering of animals, right? Like, treat them well. Don't make them suffer. But here, what is at stake is actually the status of these animals as legal persons, which means that even if they're being treated like kings and queens, it's still wrong to imprison them because as persons, they have a right to be free. So it's not about welfare. It's about freedom.

Ellie: 6:23

We gotta dive in to what is this question of personhood? It seems pretty different from the animal welfare debates we're used to. Today, we're talking about animal personhood.

David: 6:35

Should the law recognize animals as persons?

Ellie: 6:39

What exactly does it mean to be a person, and how do we decide who counts as one?

David: 6:43

And how would our relations to animals change if a court decided to extend personhood to other species?

Ellie: 6:56

Humans are obviously animals and the lines between us and other animals are often blurred. Nonetheless, philosophers have spent millennia distinguishing us from animals by concocting all sorts of arguments for human superiority, some of which I said in the last episode, I kind of agree with, but certainly not all.

David: 7:17

Uh, no, but I mean, millennia is right because this goes back all the way to the ancient world. For instance, many ancient Greek philosophers would systematically distinguish human reason from animal instinct. And there's this letter written by Seneca.

Ellie: 7:32

Love Seneca's letters.

David: 7:34

Yes, the best. And it's entitled On Instinct in Animals. And in this letter, Seneca says that what differentiates humans from animals is that we have been abandoned by nature. He uses a Latin term, "dejectus."

Ellie: 7:49

That's so much more negative than I thought it was going to be.

David: 7:51

Oh, yeah, no, no. He, well, it's negative and it's positive because he believes that nature gave all the other animals a ton of resources to defend themselves. They have claws. They have really good eyes. They have sharp teeth and they are governed by instinct. And we, by contrast, we have squat. Like, we have nothing of the things that animals were given by nature, but our saving grace is that we have the faculty of reason. So we can think about things and plan and outsmart the world. That's how we survive.

Ellie: 8:27

Interesting. Okay. So, it ends up being like humans are dejected, but actually that means we're better than non-human animals.

David: 8:36

Yeah, that's exactly the point that we have very few instincts and that makes us superior to the animals. So it's a, it's a contrast between instinct and intelligence.

Ellie: 8:46

Hm. So unsurprisingly, lots of arguments in the ancient Greek and Roman world for the superiority of humans to animals. You just mentioned one, which is Seneca, but I think there's an equally influential, if not more influential approach to animals that you see a lot today, which is less about animal instinct and more about animals as automata, which maybe is ultimately the same thing, this idea that animals run on instincts in a machine like way. And that really starts in what? Would we say Renaissance, enlightenment, probably.

David: 9:19

Yeah, I would say late Renaissance, 17th century. I mean, the usual suspect here and the whipping boy of a lot of critical animal studies literature is the French philosopher. Descartes? Yes. Like he's the bad boy with his theory of the animal as machine,

Ellie: 9:35

Any anytime you say whipping boy, it's going to be Descartes in philosophy.

David: 9:39

Well, Descartes or Plato, depending on what you're, what you're whipping about.

Ellie: 9:45

Okay. So Descartes has this idea famously of the animal as machine.

David: 9:49

Yeah. And actually Descartes' theory about the animal as machine became one of the leading defenses for the vivisection movement, for the notion that you can do these very aggressive, invasive experiments on animals. And it's because of, you know, opening up a duck or opening up a cat is just like cracking open a clock or, some other mechanical contraption. And one thing that few people know outside of the animal studies world is that Descartes would do these public demonstrations of vivisection, where he would literally cut up animals precisely as a way of proving that they are machines. And so he was like, "Look, I cut it up and it didn't even protest with human language. Therefore it's a machine!" And Descartes was obviously a very influential thinker. And one of his students by the name of Malebranche also reiterated this view of the animal as lacking all the capacities for feeling and for emotion and for sensation. What's really interesting about Malebranche is that he, he actually makes the argument not on scientific grounds, but on theological grounds. So, Malebranche makes the argument that pain is God's punishment for the fall. So, because we ate the apple of sin, God marked us with the possibility of pain. Right? You find this in the Bible.

Ellie: 11:19

Yeah. Yeah, in Genesis.

David: 11:21

But guess who didn't eat the apple? Yeah.

Ellie: 11:25

The mother effing snake that gave it to Eve.

David: 11:28

Yes. This snake and animals more generally. So Malebranche says, "Look, animals did not commit original sin and God who is infinitely just would not punish them with the capacity for pain." And so based on this theological reading, he draws the conclusion that animals feel nothing. And, uh, I want to read you a quote from his book, The Search after Truth, where he lays this out.

Ellie: 11:57

While you find it, can I just say that this is like the most horrifying conclusion for what seems like a pretty sweet argument at first it's like, "Oh God, wouldn't punish animals for the error that humans committed." And then it's like, "And this means I am going to put them out on a display table in front of tons of people and cut them in two in front of you. And then be like, oh, they're not screaming. So they must not feel any pain."

David: 12:20

But, I mean, this is consistent with scripture, right? Because the animals then become resources for, for the recently fallen humans. Right. They're there for people to feed themselves.

Ellie: 12:32

They're under our dominion.

David: 12:33

That's exactly right. And so it's not an illogical or even like a minoritarian reading of scripture. It's just,

Ellie: 12:40

a terrifying one.

David: 12:42

Yes, I, especially in retrospect, but I suspect it was already terrifying at the time, but here's the quote where he makes his commitments to animals' lack of all feeling very explicit. He says, "Animals eat without pleasure. They cry without pain. They grow without knowing it. They desire nothing. They fear nothing. They know nothing. And if they act in a manner demonstrating intelligence, it is because God made them to protect themselves. He formed their bodies in such a manner. They mechanically and fearlessly, avoid everything capable of destroying them." End quote.

Ellie: 13:23

What.

David: 13:24

Yeah.

Ellie: 13:24

What! That is a bonkers quote.

David: 13:27

So, they don't feel anything. They know nothing. And if they show any semblance of intelligent behavior, it's just an illusion based on the operation of instincts.

Ellie: 13:40

Okay. This actually kind of reminds me of those two New York Times scientists in our last episode, who talked about the octopus, Heidi, not dreaming and just having muscle twitches. But in any case, another thing I'm thinking about is did they never meet a lobster because lobsters scream if you put them into a pot of boiling water.

David: 13:58

Yes. And I mean, Switzerland recently banned lobster boiling, not too long ago, precisely for that reason.

Ellie: 14:05

You're up on all the lawsuits and all the animal news, David.

David: 14:09

I know you didn't know I'm a legal activist when it comes to animal? Nah, no, but I think we need to bring this back to the, to the question of personhood, which is what we're supposed to be talking about. I don't know how we get distracted into all these deviations.

Ellie: 14:24

We're talking about how the animal's a machine from Malebranche which means it's not a person. So tell us about the personhood.

David: 14:30

No, you're right. I mean, this history is in fact relevant because it exposes the hidden prejudices, I would say, that we hold about animals and those prejudices are the reason that, as we argue in these lawsuits, we tend to mistakenly assume that only humans can be persons. When in reality, if we want to be technical and in the law, you always want to be technical, to be a person from a legal perspective, really only means to be a rights holder or a rights bearer. It means not to be a thing that can be bought and sold.

Ellie: 15:08

That strikes me as a really important point, because I think you're absolutely right. That the way we use "human" and "person" in ordinary language often conflates the two. But this suggests that not only are the two, two different concepts, even if humans do count as persons, they're not what we mean when we say person, but also that our assumption that it's only humans who can count as persons is itself, potentially unfounded.

David: 15:33

Yeah. And I mean, I would say, not just potentially, it is unfounded and part of the problem here really is how limited our legal systems are when it comes to classifying things. So one of the points that Steven Wise makes in his book Unlocking the Cage, which lays out the legal theory behind these lawsuits about animal personhood, is that the ontology of the law is really poor insofar as it only allows the recognition of two categories. So things can only be one of two things. You can be a person, which means that you have rights. You cannot be bought, you can not be sold. You can not be destroyed. Or, you can be a thing. And that means that yes, you can be bought and sold and destroyed without repercussions because you don't have any rights. And the problem here is that animals have historically occupied this kind of weird middle ground where they are not recognized as persons, again, because of these prejudices, but they're obviously not things, right. Like they're not like a computer or like a table or like a chair because they're sentient beings.

Ellie: 16:45

They're not a machine. Take that, Malebranche.

David: 16:48

Yeah, exactly. And so part of the problem that animal rights advocates phase is how do we get protection for animals when legally animals are in fact recognized as things. They're, they're recognized as property.

Ellie: 17:04

And I also wonder how much of that actually traces back to the legacy of the enlightenment, given that a lot of our laws originate there. Right? And so this sense that even though it's not Malebranche or Descartes who wrote the laws that treat animals as things, their concept of the machine in 17th century France helps pave the way for this dichotomous approach that we have today, between persons and things such that animals get placed on the things side of things. The things side of things.

David: 17:36

There are thing things. Yes. They are thing things, and not person things. No, but I think you're exactly correct. And so what these lawsuits try to do is they try to move, in one case, two chimpanzees, in another case, one elephant from one end of this legal ontology over into the other one, but it's a really tricky argument to make.

Ellie: 17:59

We've said that animals get treated as things by the American legal system rather than as persons. And so a question we might now raise is why have they not been thought of as persons? Perhaps the most influential philosopher on animals in general, Peter Singer, would say that this is because of what he calls speciesism and speciesism is a concept that singer develops in his also hugely influential book from 1975, Animal Liberation. He says, "We're used to hearing terms like racism and sexism. These involve unfair and damaging prejudices against certain groups that lead to us mistreating them. Singer says that we do a similar thing with non-human animals. We are speciesist. And what he means by speciesism is a prejudice in favor of the interests of members of our own species over those of other species. So, it's basically human exceptionalism, right? Treating humans as exceptional and is therefore having more value and being invested in the welfare of humans over and above the welfare of other species. And so we really allow the interest of humanity to override the sometimes greater interests of members of other species. One of the big examples Singer uses here is eating meat. So I want to talk about this one for a bit. Humans might have an interest in eating meat, perhaps it's considered delicious, or it has nutritional value. But the interest of animals in not being eaten is much more serious, right? For me to eat meat means to enjoy a tasty dish and to get protein, but to be eaten means to be killed. It also probably means you had a terrible quality of life before you were killed because of factory farming. And so Singer argues that speciesism is what permits us to weigh our interest in something like tasty protein over animals' interest, a much greater interest, in being alive. And this is similar for Singer to the racist logic that permitted white plantation owners to weigh their own interests, in say, turning a profit, a maximum profit, right on cotton above the interest in enslaved people to be free, to be safe, to be at liberty, really, to live their lives how they wish.

David: 20:36

Yeah. And I mean, with the meat eating example, there is a clear imbalance in the weight of the interest, right? Like I think our interest in a yummy snack does not compare. To an animal's interest in continuing to be alive. But Peter Singer also makes the argument that even when the interests are comparable, we are in the habit of completely disregarding the interest of other animals as genuine interests that should influence our decision making. So, for example, he says a broken leg in a cow. It's roughly the same as a broken leg in a human being. And we both have a comparable interest in not having our legs broken. So, it really draws our attention to all the ways in which animals have interests in pursuing pleasure in avoiding pain that because of our current commitment, not just to factory farming, he also talks about scientific research involving non-human animals as subjects, and because of our continued investment in these practices, which are solely for the sake of human comfort and some low-level human benefits, we just actively ignore the interest of other animals. And so we, we have to convince ourselves that what we do to these creatures is not as bad as it truly is.

Ellie: 21:59

Yeah, we decide on their behalf that we are sacrificing them for science. Apropos of the animal lab research, maybe this is like an unfair moment of levity, but one of my friends who incidentally went to undergrad and took a class with Peter Singer while at Princeton, where Singer teaches, does lab research on rats and one time had to transport the rats from one building to another, with a black bag over the cage so that the PETA advocates on campus wouldn't find him. And then one of the rats ended up out of the cage and in the bag and was just scrambling around in the bag. And my friend had to find a way to get the rat back into the cage without opening the bag.

David: 22:45

Without anybody noticing? Oh my god.

Ellie: 22:49

Yes. And I'm laughing because I mean, I don't, I don't know but.

David: 22:53

I don't know why.

Ellie: 22:55

Well, my friend, just, just to clarify, doesn't do research where they actually kill the rats. They do do brain surgery on the rats, but then they stay alive. Anyway.

David: 23:03

Well, I mean, but you know, that example of in this case, like putting a black cover over the cage that you're using to transport the rats is a really common thing that animal rights defenders, especially those that specialize in the ethics of animal research point out. And that is that a lot of laboratory, private and university ones, constantly hide what they do behind closed doors. So, it's just a question of visibility.

Ellie: 23:29

Well, speaking of hiding things from animal rights activists, I went to Peter Singer's apartment in New York for a party one time, uh, as a grad student. Yeah.

David: 23:39

I didn't know this? I mean, I've worked on animals and you never told me this

Ellie: 23:43

Well, it's because it was really random. Like it was really random that I went. It was just like a friend of a friend invited me to this party at Peter Singer's apartment, which was delightful.

David: 23:54

Did you know that ahead of time or you just showed up and it was like his house.

Ellie: 23:58

Oh no, no, no. I, I knew it. And I was like, "Oh my god, cool." It was a fellow really influential philosopher of animals, Lori Gruen's birthday party. And I roll in, again, grad student, I think I was like 25 at the time or something. I roll in with a leather purse and I realized the second I entered the threshold, like, oh my God, this is Peter Singer's apartment. I'm surrounded by philosophers who work on animal rights. So I stashed my leather purse in a coat closet. I just like hid it. And then when about the party.

David: 24:27

Oh my god. You're just like your friend with the hiding of the rats. Same thing. Do you still have that purse?

Ellie: 24:34

I was mortified. No, it was one of those like cheap Florentine leather purses that you buy when you're studying abroad in Italy, because they seem really fancy and then they just like fall apart at a certain point. Cause you've got it from a kiosk outside the duomo.

David: 24:46

That was really specific. I thought you were gonna be like, no, I changed my mind and I no longer buy leather purses ever since I went to Peter Singer's house.

Ellie: 24:55

No, because here's the thing David, like, you're a, vegetarian, I eat meat. So I'm, yeah, at least as of the recording of this episode,

David: 25:02

Yeah. You're a,

Ellie: 25:03

I have put my, I have put my interests in tasty protein over the interest of animal lives.

David: 25:09

Yeah. And so according to Peter Singer, if we agree with his reasoning, you are as bad as the racist and the sexist.

Ellie: 25:17

Yeah. My first instinct is to disagree with that. Although obviously that's probably at least in part a defense mechanism. I think I have a lot more to think about on this topic. So, I don't want to defend my eating meat, but I do think that there is potentially a problem between creating an analogy between the way we treat other species and racism and sexism.

David: 25:39

Yeah. And there are, I mean, there are two ways of cashing out that argument. There is a speciesist way of articulating it and then a non-speciesist way of articulating because you could easily imagine somebody saying, "Look, humans really are superior to other animals. So we rightfully have a higher status when it comes to morality and ethics. And so on this view, you cannot analogize speciesism to racism and sexism because speciesism is in fact well-grounded. It is justified." And then there is a non-speciesist way to make that argument, which is simply to recognize that the dynamics of oppression that are at work in human animal relations are not exactly the same and in fact, maybe disanalogous in philosophically relevant and important ways to the dynamics of oppression that we find in connection to gender, to race, to disability. And because historically, women, people with disabilities, uh, people of color have been dehumanized precisely by being animalized making those analogies is dangerous terrain. And so you just need to be really careful about what you mean by the claim that they are analogous.

Ellie: 26:58

Yeah. And I think Singer's view is that anytime you talk about the wrongs of something like racism or sexism, his views on disability we'll leave aside because they're extremely problematic. He's been very vilified by the community of disability scholars,

David: 27:13

And I think rightly so, to be honest,

Ellie: 27:16

but at least when it comes to racism and sexism, we recognize that humans have certain capacities that we all share and therefore we deserve equal treatment because of those capacities. And this capacities approach is one that a lot of people that hold either of the two positions that you mentioned a moment ago, David, would share. People who think that humans are superior to non-human animals often point to capacities that humans have and that animals don't. For Singer, any being with the capacity to suffer should be counted as having interests and therefore has a moral status. But other philosophers might draw the line elsewhere. Right? It might not be the capacity for suffering. It might be the capacity for language or the capacity for developing a political community.

David: 28:03

No, you're right that the capacity for sentience is only one of the categories that has traction in moral theory, especially in theories of morality that are specifically applied to non-human animals. And in that book that I co-authored with 12 other, uh, professional philosophers, we talk about some of those other capacities that are typically used to justify human's unique status in the order of creation. And one of those capacities that appears over and over again is autonomy, which is simply the power to act voluntarily or to control our own behavior in light of our preferences or goals. And so the idea here is that only humans act freely and self determined. So it's the classical debate between autonomy and heteronomy, whether you are ruled by yourself or whether you are ruled by something external to yourself. And when we talk about, for example, chimpanzees and elephants, we point to scientific research showing that these animals are indeed autonomous creatures. Not only do they have what Singer calls sentience, they also have something that goes beyond that precisely because they set their own goals and they pursue them. So, you know, in the book we talk about chimpanzee behavior, chimpanzee culture quite extensively. And by now, I think there's a lot of evidence showing that chimpanzees do have a capacity for autonomy. They set their own goals. They pursue them even when it means holding in check their own instincts in the moment, so exercising an element of self control. We know that they have norms that they abide by communally, including norms of reciprocity and fairness. And we also know that they recognize each other's intentions and often will even work collectively in order to achieve their goals. And so all of this adds up to a pretty clear and strong case for chimpanzee autonomy.

Ellie: 30:09

Well, that's super interesting. I wonder whether a difficulty might be how we would even know that the chimps are setting goals and evaluations to begin with, right? Because part of the problem is that chimps don't have a spoken language and much of the way that we as humans know about our own goals and those of others is through communicating them in language. So, the fact that animals lack what humans would consider a language is for some evidence that they lack a key capacity for personhood. So, recognizing the capacity for for autonomy might depend on their exercising, the capacity of language.

David: 30:43

I, myself reject that view because I think you can interpret people's behavior as goal oriented without necessarily communicating with them, thrilling, which you can see it in their behavior. Nonetheless, I think your point is well taken that some people might believe that, but even if we go in that direction, you know, we could say some chimpanzees have learned American Sign Language. Um, you know, so they, they do have a capacity for language. Although I have to say that the research on chimpanzees and ASL is somewhat controversial among animal cognition experts. But yeah, the worry about language is always there. When you do research about animals.

Ellie: 31:24

Okay. So, even if there's research is wrong and chimps have not learned ASL. I guess one question is whether they might have the capacity to learn or to develop a language in the future, right. Because we're talking about capacities, not whether they actually have the thing, right. In this case, language.

David: 31:45

Well, that's actually really, really difficult, because it all depends what we mean when we talk about having a capacity without actually having the thing in question. Of course it could mean that you don't currently have the thing, but you could have it in the future as you just noted. Right. But how far in the future are we talking about? For instance, if you think about it from the standpoint of the species, chimpanzees in the abstract could develop something like human language if you just give them enough evolutionary time, right. Give them a couple of million years. And who knows, maybe you'll have a chimpanzee typing away, you know, on a typewriter and eventually on a computer, but that's the standpoint of the species and deep evolutionary time. But from the standpoint of the individual, that's not possible. So when we talk about capacities, what we're talking about are capacities that can be reasonably expected to be attained by members of the species in their own lifetime. So, if some members of a species show that they can actually produce the thing, then we can say that the species as a whole has the capacity for it, because some have actually produced the thing. But the point that I'm making here is that you have to have the proof in the pudding, at least in some members of the species, before you can attribute the whole thing to the species as a whole.

Ellie: 33:15

Because otherwise you could say that our primate ancestors a million years ago had the capacity for large scale societies and therefore should be treated as persons in the way that we are treated as persons.

David: 33:27

Yeah. Yeah.

Ellie: 33:28

And I don't know that that's a claim, even, even when we were indistinct from other animals.

David: 33:32

Yeah. No, that's right. And I mean, if that's looking backwards, but you could make the same claim looking forwards, you know, who knows what humans will be in 15 million years. So, maybe they will develop the capacity for telepathy. Are we going to say that we currently have the capacity for telepathy? You know, like it doesn't, it doesn't really make a lot of sense.

Ellie: 33:52

That is fascinating. Learning moment. Capacity, different from potentiality in these contexts. And, you know, leaving aside language, one thing that I hear a lot from the philosophers that I work on in my conversations, you know, with the German idealists and existentialists.

David: 34:10

Dead white men.

Ellie: 34:12

Yeah. So one thing you hear a lot from these folks is that what is distinctively human is the capacity for reflective self-awareness. The ability to recognize yourself as a self or as an actor within a given environment. Not just reasoning, not just feeling, but recognizing that you are reasoning and feeling. So this is, I think, really a common claim for humanists is that this is what humans have that non-human animals don't.

David: 34:43

Yes. And as with any other capacity that is used in this manner, the question becomes, how exactly are we defining that term? And what kind of evidence are we willing to accept in the case of other animals, at least in principle, as proof that they also meet that category. So there's a lot of research in the field of animal studies about self-awareness and reflective self-awareness and connection to other animals. Think about, for example, the very famous mirror self-recognition test that many animals have passed. Chimpanzees have passed it. Elephants have passed it. Birds have passed it. Cetaceans have passed it. And you know, that test is often interpreted as evidence that animals recognize themselves in their own reflection. So, there's a kind of literal reflective self-awareness there. Now, whether they recognize themselves as recognizing themselves, that's a whole other level. But then the question is, why do we need to put the bar so high and for what? You know, do we really need that for something like moral status?

Ellie: 35:55

Ah, I see. Yeah. Cause I do think that this kind of reflective self-awareness is pretty different from seeing yourself as an organism in a mirror. Even though I do think that it's embodied.

David: 36:05

And recognizing yourself, not just seeing yourself, but recognizing that it is you.

Ellie: 36:10

Exactly, but I hear your point that it might not even actually matter for moral status. So I guess then it might be worth mentioning the biggie here. And the biggie is one that we've already mentioned a bit and that is reason. Maybe animals have capacities for pain. Right? Take that, Melbranche, again. Language, autonomy, and maybe even self-awareness. But Aristotle and the gang.

David: 36:37

The gang.

Ellie: 36:39

The other folks, I'm talking. I'm, I'm hearing from them. I'm hearing

David: 36:41

The entire canon of Western philosophy also known as "the gang."

Ellie: 36:47

Yes. Aristotle and the gang are going to say that animals don't have rationality. And that reason is just for the humans among us. So what might you say to someone who would reserve rationality for humans?

David: 37:00

So I think there are two ways of addressing this question. The first one is to do exactly what I just did with your earlier articulation of self-awareness, which is to say, look. Okay. If you raise the bar high enough in your definition of rationality, who knows, maybe you will exclude a lot of, most, or all non-human animals, but you will also exclude a lot of humans. I mean, you, children won't meet the bar, right, for like high-end rationality. Does that mean that children are not entitled to moral respect? Because here we're talking about animal ethics, right? We're talking about status, moral status. And so you can always raise the bar, but at some point you have to ask the question of whether there is actually an objective connection between the capacity you're talking about and the thing that you are trying to get out of that capacity, in this case, moral worth. And I just don't think there's much of a connection between the two, or at least there doesn't need to be. It would be like if I say, "Well, Ellie, you know, only humans make baba ghanoush." Like, yeah, that's probably right. I've never seen an animal make baba ghanoush, but what's the connection between that and moral status. And so that's one way to think about it. The other one is just, is just to like battle it out on empirical grounds and to say, look, animals are a lot smarter than you realize. And they do have rationality. And this argument might be easier with some animals. I think it's really easy with elephants. I think it's extremely easy with non-human primates. You know, when we know that these animals have fantastic memories, we know they have imagination. We know they understand causal relationships and can make logical inferences. Over the last few decades, there's been a bunch of stuff about logic and even mathematics in other animals. So, so the idea that only humans have reason strikes me as really antiquated and not only in connection to these hyper cerebralized animals like elephants and chimpanzees.

Ellie: 39:11

Like Kiko and Happy? Happy was elephant?

David: 39:14

Yeah, Happy was the elephant, Kiko and Tommy were the chimpanzees, but other animals too. I would include birds. I would include fish.

Ellie: 39:22

Goldie!

David: 39:23

Who's Goldie?

Ellie: 39:24

Just like a generic fish in your household aquarium.

David: 39:29

Oh, I did not, is that like a Max or like Fido? The universal dog?

Ellie: 39:33

Exactly.

David: 39:34

And you know, even pushing it down the totem pole of animality, there's been a ton of research recently about intelligence and consciousness in insects. So I think Aristotle and the gang really have too much of a fetish for rationality.

Ellie: 39:52

The cockroaches in your house might be doing calculus.

David: 39:55

I don't know about that, Ellie, but I, you know, there's a reason why they're the only ones who are going to survive a nuclear Holocaust. And it's because they're all mathematical geniuses.

Ellie: 40:20

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David: 40:31

Um, we've said that many of the capacities that we associate with personhood are ones that animals or I, some animals, let's say half, not just humans, it seems then that there is a case to be made for acknowledging animal personhood, which would mean giving animals personhood in the legal sense of the term. Recognizing that they are on the person rather than the thing side of that legal divide.

Ellie: 41:03

Okay. So what would happen if we did this?

David: 41:07

If we gave personhood to other animals, you mean?

Ellie: 41:10

Yeah.

David: 41:11

So, this is a really important question because some people do wonder what this would mean, you know, does this mean that all animals would suddenly have all the rights that we enjoy? Um, and so for instance, like suddenly does Happy have a right to vote or, you know, does Happy get to run for precedent when they are 45 years old? And I think that's a false concern. That's not really grounded in the reality of, of legal personhood, were it to be recognized by the courts. And one of the things that me and my collaborators have been extremely, extremely clear about is the following: personhood only entails two fundamental rights.

The right to life: 41:59

you cannot be murdered.

And the right to bodily freedom: 42:02

you cannot be kept captive against your will. That's it. Those are the rights associated with personhood. All the other rights that we possess, they're not rights that we possessed by virtue of being legal persons. They're rights that we possess by virtue of being other things like citizens of a country. And that's not the same thing, you know, for instance, like, I'm obviously a person. I want people to know that from a legal standpoint, I am not a thing, but I myself cannot vote or run for president in this country because I am not a US citizen.

Ellie: 42:41

Also, presidential age 35, not 45. So you technically would be, yeah, you would be eligible. I just Googled it because I was like, not a hundred percent sure.

David: 42:49

Oh my God. I'm so, I'm so silly!

Ellie: 42:51

45 sounded right to me, but then I was like, I'm just going to go ahead and fact check that? It's actually 35. So I'm silly too, David, but, okay, so you, you do meet the age requirement, but you don't meet the citizenship requirement.

David: 43:04

Or the natural born. Don't you have to be like a natural born citizen? You cannot have naturalized? Because this was the whole debate about Ted Cruz, who is Canadian. People were like, if he wins the Republican nomination,

Ellie: 43:18

Ted Cruz is Canadian?

David: 43:20

Isn't he? No, I just Googled it and the first search result from NPR: "Is Ted Cruz allowed to run since he was born in Canada?" So this was a whole constitutional crisis that,

Ellie: 43:32

Canada produced Ted Cruz. Why didn't I know this?

David: 43:35

Yeah, no, but like Ted Cruz, also, he goes by Ted because he doesn't like his first name Raphael because it's too Latino. Like it, it's not white enough. So, he goes by Ted. Teddy.

Ellie: 43:47

Whoa.

David: 43:48

If I I ever meet him,

Ellie: 43:50

Yeah. You're only going to speak in Spanish to him?

David: 43:52

No, I'm only going to refer to him as Raphael. I mean, obviously I believe in calling people by the name that they choose, but in this case I will hold that I will hold that in abeyance,

Ellie: 44:02

Except for Raphael Cruz.

David: 44:04

Except for Rafa. And anyways, so again, from our deviations back to the subject of animal personhood,

Ellie: 44:14

We usually we run a pretty tight ship here on Overthink. Our deviations have a point.

David: 44:19

I'm not sure that this one did.

Ellie: 44:20

I'm not sure this one.

David: 44:23

Um,

Ellie: 44:24

This is a rare exception.

David: 44:26

But the point is that we don't need to worry about animals suddenly becoming Ted Cruz and running for president or trying to vote because the only rights that they would get, if they were recognized as legal

persons are those two: 44:38

the right to life and the right to be free.

Ellie: 44:42

Okay. But if we're giving the two core rights of personhood to animals, the right to live in the right to bodily freedom, it seems like one clear upshot would be that we would not be able to kill them for food. Is that right?

David: 44:54

Yeah, because you wouldn't be able to kill them, period. Cause it would be murder. Another upshot of this would be that animals would have that right to freedom, which means that, captive animals in a lab? Gone. Zoos? Gone. Arguably.

Ellie: 45:12

My friend transporting the rats from the lab. Guilty of kidnapping.

David: 45:15

Without the possibility of parole. Um, but yeah, you're right. That there, there are all these very practical implications because you obviously cannot give animals new rights that are not currently recognized without it literally changing the way we live, you know, rights must have weight.

Ellie: 45:35

What about pets then? Can people still have pets?

David: 45:39

Well, pets are really tricky because I'm not sure that I even have a clear position on whether or not having a pet is that kind of captivity, you know, whether a pet is captive in the same way that a zoo animal is or in the same way that a lab animal is. Or whether there's a kind of different relationship where they're part of the family, they have emotional and social bonds. And so, you know, especially when you think about dogs, for instance, the truth is that they have co-evolved with humans. So it's unclear what a free and natural existence outside of that relationship could mean for those animals. You know, with elephants, we can imagine it. With a dog, it doesn't make the same sense. So I don't know. That's my point here.

Ellie: 46:29

So I guess refrain from going around to neighbors' homes after animals get personhood and opening the door, singing "Who, let dogs out, U S A!"

David: 46:41

Oh, my God, Ellie.

Ellie: 46:43

I was waiting for that one. I was

David: 46:45

God, please. I cannot unhear that or unsee that I cannot unsee the image of your going door to door. Not because you care about the animals, which you've made painfully clear you don't. I know, I know you. I know I'm painting you in a bad light.

Ellie: 47:00

I do. They just don't want, they just don't elicit the same response as like a human person.

David: 47:05

I know. And so the idea that you would go door to door rallying for dogs' new rights, based on their newly found status of personhood is just so incoherent in my mind. I can't handle it.

Ellie: 47:19

But I think one thing I'm learning from hearing you talk about this is that giving animals personhood, it's going to involve me going to neighbors' doors, but it's not going to be the typical PETA animal rights approach that we're familiar with. Right? This isn't about treating animals nicely. It's actually not primarily about animal welfare. As you said, it's rather about treating them as autonomous agents.

David: 47:40

That's right and the importance of pointing that out is that I do think the animal rights movement has been pathetic in the etymological sense of the term. It has focused so much on pathos and animal suffering that it has not really considered other avenues for legal change. And I think the recognition of animals' personhood is one of those avenues that we've missed, just because we're so focused on trying to pass legislation, to make sure that we treat them nicely without asking the more fundamental question, which is whether we have the right to do the things that we're doing to them. Even if the animals lived a happy life.

Ellie: 48:24

Hmm. And so maybe that counsels a shift from feeling pity or sympathy towards animals and feeling respect. And that's something I find that comes a little bit more easily to me.

David: 48:41

We hope you enjoyed today's episode, please rate and review us on Apple Podcasts, Spotify, or wherever you listen to your podcast.

Ellie: 48:49

You can find us at overthinkpodcast.com, where you can email us with questions, feedback, or even request for life advice. You can also find us on Instagram and Twitter @overthink_pod. We want to thank our audio editor Aaron Morgan, as well as our production assistant Sunny Jeong-Eimer. Samuel Smith for the original music and Trevor Ames for our logo. And to our listeners, thanks so much for overthinking with us.