Nonhuman Persons and The Slippery Slope
More about Gregory Berns’ article “Dogs Are People, Too“, which I wrote about earlier this week.
Berns has been getting quite a lot of pushback from various scientific and academic circles as a result of his fascinating study of dogs that suggests strong scientific evidence of their ability to experience positive emotions.
I don’t think the criticisms are valid; I think they’re rooted in fear that the more we understand the inner lives of nonhuman animals, the less justification we can give ourselves for exploiting them.
Berns writes:
The ability to experience positive emotions, like love and attachment, would mean that dogs have a level of sentience comparable to that of a human child. And this ability suggests a rethinking of how we treat dogs.
He argues that it’s time to consider dogs as “legal persons” so that they would be afforded additional protection against exploitation.
Puppy mills, laboratory dogs and dog racing would be banned for violating the basic right of self-determination of a person.
Berns says it may be many years before that actually happens, but within a few months from now, the Nonhuman Rights Project will be going to court on behalf of a chimpanzee or elephant who is being held in captivity. This will be a ground-breaking case in which we will argue that the scientific evidence is overwhelming that these animals are self-aware, have advanced levels of cognition, and that they demonstrate autonomy – i.e. that they know how they want to live their lives and are not just operating out of blind instinct. If the judge agrees, then it’s a short step to agreeing that this animal should be recognized as having certain fundamental legal rights relevant to her species. The criticisms all boil down to one basic concern: the Slippery Slope.
One day, dogs may be considered legal persons, too – with the legal right, for example, not to be killed at a so-called shelter that says it’s run out of space. That time is not yet – we don’t have the scientific evidence that we have with great apes, elephants and dolphins. But Berns’s study takes an important step in that direction.
I won’t go into the details of the criticisms I’ve seen of Berns’s work, but they all boil down to one basic concern: the Slippery Slope. In other words: “If we grant legal rights to a chimpanzee today, will you guys be back tomorrow with a cow? And will that lead to the end of the factory farming industry? And if we grant legal rights to a dog, will you be back tomorrow with a mouse? And will that be the end of vivisection? And then horse racing? And bull fighting? And the fur trade?”
The answer to all of that is that our argument is not about what happens to the fur industry or to any other industry at some future time; it’s about what happens to a particular self-aware, autonomous nonhuman animal (in this case a chimpanzee) who is being imprisoned today and who is being subjected today to horrific experiments or being forced to ride a bicycle for a TV commercial or a Las Vegas show stunt. And if the only response the abuser can come up with is that this may lead to stopping other animals from being abused at some future time, then that says quite a mouthful in itself.
In fact, this Slippery Slope argument is the same one that was used to try to stop American slaves from being recognized as “legal persons” with appropriate rights. It’s the same slippery slope that the famous judge Lord Mansfield had to confront when attorneys for the slave James Somerset went to court in London in 1772. Somerset had been brought to London from Virginia by his owner, Charles Steuart. He had escaped and been recaptured, and was now lying in chains on a ship that was about to leave for the sugar plantations of Jamaica. But a group of abolitionist attorneys stepped in and petitioned the High Court, using the writ of habeas corpus, demanding that Somerset be recognized as a legal person with appropriate rights to bodily liberty. They couldn’t prove that Somerset was subhuman, so they argued that granting him liberty would lead to the collapse of the sugar and cotton industries and the downfall of the Western economy.
Steuart’s attorneys couldn’t prove that Somerset was subhuman, so they argued that this was a dangerous slippery slope and that if Lord Mansfield set a precedent by granting him liberty, this would quickly lead to the collapse of the sugar and cotton industries in the American colonies – and the downfall of the Western economy.
Mansfield pleaded with both sides to resolve their differences out of court rather than forcing him to make a decision. But each side stood firm. And so the judge issued his ruling, saying that “though the heavens may fall” he had no choice but to conclude that slavery is “odious” and that Somerset had to be set free.
The Somerset case took place before even the Declaration of Independence, but it soon led to similar cases up and down the newly born United States. In the north, judges ruled mainly pro-freedom; in the south they didn’t. Several southern states even ruled that habeas corpus couldn’t be applied to slaves. (Those rulings are still on the books!) Eventually it took a civil war to settle the matter.
So yes, there is a slippery slope. And who knows where all this will lead? But that didn’t stop Lord Mansfield from doing what he knew was right. And it should not stop us from agreeing that the science is solid when it comes to great apes, elephants and dolphins – and that one day it may well be solid in relation to cows, pigs and dogs, too.
Berns’s study has provided important new evidence leading in that direction. And we may be approaching another of those seminal moments in history where another form of exploitation – be it in relation to women, children, human slaves or other nonhuman animals – becomes untenable.
If so, it will again be one of those seminal moments that people will look back on with bemusement that their grandparents could ever have imagined that such behavior was acceptable.