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Suppose humans are living in conjunction with several intelligent and communicative species of animals, dogs and cats for example. These animals might be legally considered people; being held accountable for their crimes, paying taxes, etc. Suppose then, that a new animal, whose intelligence and potential for communication is unknown, commits a crime, or interacts with the legal system in some other way.

How might the legal system of this hypothetical multi-species society determine whether or not the new animal was, legally, a person?

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    $\begingroup$ That's a difficult question, because what is known as "western legal system" would not likely be formed in this world. $\endgroup$ – Alexander Sep 26 '18 at 18:51
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    $\begingroup$ Are we assuming it would (and why)? Historical evidence indicates that social and legal structures strongly prefer to find justifications for denying rights (and even “personhood”) rather than granting them, even in allegedly liberal systems. Women, Africans, non-landowners, other ethnic minorities, gays, non-Christians, people who weren’t born here, etc., etc. For how hard we have (and arguably continue) to work to deny groups of humans rights on specious grounds, I find it highly implausible that we’d be granting personhood to intelligent cats or whatever. $\endgroup$ – HopelessN00b Sep 26 '18 at 22:14
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    $\begingroup$ like @HopelessN00b, i find it highly implausible too...some studies indicate that dolphins may be more intelligent than humans....yet they are slaughtered by the thousands with nets and actively fished and eaten in some areas... so humans would not likely give a legal status to an animal, even if it was a nuclear physicist. $\endgroup$ – Reed -SE is a Fish on Dry Land Sep 26 '18 at 23:46
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    $\begingroup$ I found this in the VTC queue, but neither of the votes (POB and OT:TSB) make sense. This is a concise, clear question not based on a single story and the answer must obviously be one that works. Maybe only a U.S. attorney can answer it, but that's not a reason to close. Heck, start with the laws governing mental competency for standing trial and see if you can prove a talking owl deserves rights. And to all of you whining about plausibility. Jeez, the world is full of activists. Start thinking like the ACLU. I'm voting to leave this open. $\endgroup$ – JBH Sep 27 '18 at 0:19
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    $\begingroup$ Richard and HopelessN00b, I agree that in our current cultural context, granting animals personhood would be politically and culturally impossible, and difficult in any culture in our lineage, which "western legal system," implies. However, I think humanity could suffer culturally humbling events outside of the scope of this question that could both explain the emergence of high intelligence in animals and predispose humanity more favorable toward legally recognizing them as people. $\endgroup$ – Irving Washington Sep 27 '18 at 0:19
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The main issue here is not if this new animal should be considered a person, but if it is capable of knowing what they did was a crime.

If they are able to understand what crime is, then they should be punished and treated like any other person and (by default) be considered a person. If they are not able to understand, then they should still be contained in some way so that they are no longer a danger to themselves or others.

In the US at least, there are laws governing cases where the defendant may not be able to understand what they did was a crime, such as the defendant being insane, very young, or otherwise mentally unfit to stand trial or be considered responsible for their actions.

This new animal would likely have sessions with forensic psychologists in order to judge how mentally fit they are. The psychologists' medical report would be used by the judge to determine if the defendant is intelligent/sane enough to even stand trial, and by the jury to determine if the defendant is guilty of the crime or not.

If considered fit enough to stand trial, a guilty verdict would mean the new animal receives a full punishment, but also shows that they deserve to be considered a person. A not-guilty verdict could still mean that they deserve to be a person, but are simply insane and should go to your world's equivalent of a psychiatric hospital.

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    $\begingroup$ great answer. Different species are essentially treated as different races in real world. Emergence of new species is like discovery (or branching) of a new race. $\endgroup$ – Bald Bear Sep 26 '18 at 19:17
  • $\begingroup$ Thank you, I think this answer points me toward a convergence of forensic psychology and animal psychology, and the possible challenges a forensic psychologist would face in this arguably expanded role (what questions the psychologist would ask, and how). I still wonder, however, if the determination of the animal's personhood would not be better addressed by it's own process, preceding and ultimately independent of the criminal proceedings. Perhaps a separate, multi-species panel would be better suited for determining personhood? $\endgroup$ – Irving Washington Sep 26 '18 at 22:10
  • $\begingroup$ @IrvingWashington: Yeah, psychology(with help from linguistics) is definitely your best bet for determining if a species should be considered persons, since personhood is something that has to be defined by the society rather than by hard science. If pure intelligence was enough to be a person, then you'd quickly run into the problem of either having to give personhood to particularly smart computers, or remove personhood from particularly dumb individuals. $\endgroup$ – Giter Sep 27 '18 at 15:26
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You can look to the history of racial personhood for some insights

Throughout history, some groups were given lesser statuses in society as a result of perceived shortcomings. They were even sometimes referred to as animals because of the belief that they were less intelligent. Such an occurrence could definitely take place in your world.

For example, whichever society is more advanced at a given time may see the less advanced society (whether it be animal or human) as inferior and draw the incorrect conclusion that the lack of comparable progress is a consequence of intelligence difference even if intelligence is comparable. This may lead to poor treatment of the less advanced society.

As members of that less advanced are incorporated into the more advanced one, it will become apparent that the intelligence is not different on aggregate and people may advocate for equality for those persons. Perhaps it is a slow process with multiple steps (like in the case of the American 3/5 compromise) or one large movement brings the group to person status. Even then, there will likely be some people (or even institutions) who don't see the other species as a person (or at least an equal person) for whatever reason. This could be something worth exploring to add depth to the world.

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    $\begingroup$ Thank you. The wider cultural resistance to a newly expanded definition of personhood is an important perspective, and you're right that there is rich history to draw from along those metaphorical lines. $\endgroup$ – Irving Washington Sep 26 '18 at 22:15
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They would not. Such a declaration of personhood would occur long before this individual committed a crime.

The judicial system is an internal system, managed inside a group such as a nation. It does not come alone. With this concept of finding people guilty and punishing them comes the concept that you can't do whatever you want to your neighbor. You can't kill them just because they played their stereo loudly. Well, you may have the physical capacity to do so, but the group says "No. You don't go around killing people that way." Instead, you say "We have a system of justice that will take care of this vile loud stereo player for you."

So the idea of some alternate intelligent creature getting held responsible for their actions comes hand in hand with said alternate intelligent creature binding themselves to not take justice into their own hands (or claws, or whatever). It's two halves of the same contract.

That process happens more slowly, and should be rather cemented in place long before a trial has to question whether they are a person or not.

The exception to this would be a monumentally extravagant situation, such as if this alternate intelligence wiped out a city block or two. In such cases, people may not accept the "the law will take care of this" if the law says the creature gets off scott free because they weren't a person. In such cases, there would be a large number of emergency meetings to deducde what to do with this creature.

The content of these meetings would be incredibly event-specific, so its hard to expand on what they would look like. Emotions, forensics, politics. Everything would play a part.

For an example of what the slow methodical process might look like, I highly recommend Bicentennial Man (a.k.a. The Positronic Man). Book or movie, both do a good job of demonstrating what the bureaucracy might look like.

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    $\begingroup$ Been in the (I think) US courts already - google for "great ape personhood" ... or to keep it on topic, ask a Librarian ... Oook... just don't use the M-word when you do :) $\endgroup$ – ivanivan Sep 27 '18 at 2:48
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Western legal tradition has no method of determining personhood, except by legislative fiat. A law is passed, or an amendment is added to a constitution.

Thus, one would need some political movement that advocated for the legal personhood of a non-human animal. Hopefully the animal's not too tasty, because this could easily require decades of activism.

Recently PETA tried something like this in the United States, and their arguments were thoroughly rejected. Presumably your animal might be sapient, and could make its own arguments, which whatever their merits were might be enough to sway... I imagine judges and senators might be impressed with a talking wallaby or whatever.

In fiction, you might have some metaphysical gobbledygook device that just gives you an oracular answer. If western science has come to agree with that machine, it might itself be sufficient (assuming legislation has caught up). There exists no sound scientific basis for such a machine. There exists no sound theoretical basis for what constitutes sapience/personhood/sentience.

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One of the problems you face in this question is getting around the fundamental presumption of competence that is so deeply ingrained in you that you don't even notice it. Despite what a lot of other people have said in the various comments, human justice has never had a problem determining that for the most part humans are responsible for what they do. "Marginalized groups" would be ones who were perhaps excessively punished for what they did, or punished for things they did not do at all, but there's nowhere in history that a judicial system has ever had the slightest problem condemning a human for murder or something. Casual assumptions about humanity have been made since we are the only species that can really be expected to act "responsibly" for any common definition of that term.

Likewise, there's no justice system of significance anywhere in history that has treated animals as full individuals, because they can't be expected to be responsible for anything. If nothing else, even the very greatest animals we know show very little capacity for understanding what may happen a day or two from now if they act in a certain way today, which is a very important element of holding people responsible for lawbreaking, since only the very most basic, most brutal elements of law involve consequences immediate, large, and guaranteed.

I would suggest that the proper way of evaluating such a beast would be seeing to it that rights are matched to responsibilities. As humans, we have the right to not be murdered by other humans; we have the corresponding responsibility not to murder others. We have the right to security in our properties, and we have the corresponding responsibility to not steal from others. And so on. The question would be, is this individual capable of discharging the responsibilities associated with the rights we are considering giving them? Someone who is literally incapable of not hurting other people is not put in jail, they are institutionalized.

If they are not at all capable of handling the responsibilities, than while we may be forced to take certain actions in regards to their crimes, as we might put down a dog that violently killed a child, we would not necessarily consider them culpable. Suppose there was a species that was mostly like humans, but if you punch them in the grondar, it can be scientifically demonstrated that their forebrains are turned off and they violently attack anything in the area. They lack all ability to not do this. It doesn't matter if they train, or meditate, or whatever. If they get punched in the grondar, we can't hold them morally responsible for what happens next. Then again, perhaps they are supposed to be wearing their grondar-protectors and they left it off today, in which case, yes, they were capable of discharging their responsibilities and they failed, and now they are responsible for what happened.

The other side holds as well, too; non-human sentients can have both rights and responsibilities that we don't. Humans are not necessarily the pinnacle. The real human world already has exemptions for "fighting words" and "crimes of passion" (i.e., catching your mate mating with someone else), for which we will reduce the perceived culpability of someone for a violent action because of the provocations that we are ourselves quite vulnerable to, and it becomes unreasonable to expect the entire population to be able to uphold the responsibility of staying calm under those provocations. But perhaps Vulcans still are expected to be that calm. They may have some corresponding rights that humans do not. Or in a post-Singularity science fiction story, unmodified humans may not be held responsible for actions taken after interaction with a Class 3 or greater artificial intelligence, if such AIs are well-known to be able to play unaugmented humans like fiddles if they choose to. Some thought may deal with areas in which humans may already be not held responsible.

With some creativity, you may even come up with situations in which it isn't clear that humans are "deficient" per se, they just aren't responsible. For instance, perhaps sentient dogs could be punished for "disloyalty to the pack". Humans are not generally punished legally for this, because our loyalty relationships are much different than pack relationships; not necessarily worse, not necessarily better, just different. The sentient dogs may have rights and responsibilities that are simply meaningless for humans. By contrast, as we punish humans who promise to protect confidential information and fail to do so, perhaps the sentient dogs can only be cleared for security work whole packs at a time, because there is no way to have a sentient dog loyal to an abstract organization above their pack. etc.

One of the casual assumptions we make because everyone is human is precisely that the question is binary; are you competent or not? Human/adult or not? This makes sense in the human world, and is probably even a good idea to prevent the creation of distinctions where they don't really exist (i.e., racism, etc.) In a multi-species society, the question may be more granular than that. The question you may be asking may not be "is this creature a legal person?" but "is this creature capable of not doing the thing we're calling a crime?"

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  • $\begingroup$ Thank you Dorfle, this answer significantly expands and nuisances the spectrum of personhood by including intellects superior to humans, as well as pointing out the possibility of differing moral fundamentals between species. However, I don't understand how, "is this creature capable of not doing the thing we're calling a crime," is a sufficient metric. An intellectually normal bear is capable of not eating a hiker... is doing so therefore a crime? $\endgroup$ – Irving Washington Sep 27 '18 at 20:16
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Do unto others as you would have them do unto you.

In other words, test if the animal, when the roles are reversed, considers itself the victim of a crime.

Let's say our animal has committed the most heinous of crimes: jaywalking. We don't know, however, if this animal is able to understand the intention of traffic lights (or if it's even capable of distinguishing red from green).

But let's say we put this animal in the reverse role. Someone jaywalks in front of the animal, thus blocking the animal who has a green light.

If the animal gets upset at the jaywalker for jaywalking, the animal understands the illegal nature of jaywalking, and therefore can be convicted for jaywalking.

This creates an interesting dynamic: when an animal (of unproven intelligence) breaks a rule, it is therefore put on "probation".

  • If it does not try to uphold the rule when the animal is the victim in the interaction, then the animal clearly doesn't understand/acknowledge the rule in the first place and therefore cannot be found guilty.
  • If the animal is able to argue that it is the victim in an interaction, then it is inherently also capable of understanding that it is the perpetrator in this same interaction (with the roles reversed). Therefore, you've conclusively proven that the animal is capable of understanding right from wrong.
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    $\begingroup$ Would this mean that exhibitionists cannot be convicted of voyeurism or invasion of privacy? Or masochists of battery? Just because someone doesn't get annoyed by jaywalking or - heaven forbid - walking on the grass, doesn't make the action less illegal. Especially true when dealing with another species who may have an entirely different worldview or set of ethics! $\endgroup$ – Chronocidal Sep 27 '18 at 12:04
  • $\begingroup$ @Chronocidal: OP's question specifically focuses on preventing prosecuting creatures that are not able to comprehend a rule (which is where OP draws the line of "legally being a person"). I was not in any way suggesting that my answer is somehow applicable to humans in the real world today. $\endgroup$ – Flater Sep 27 '18 at 12:29
  • $\begingroup$ @Chronocidal: But to answer your question: I would indeed not punish an animal for not wearing clothes outside, if said animal already has a natural protection (fur) or does not understand the necessity of wearing clothing. Similarly, you can't prosecute a fly for invasion of privacy when flies simply do not understand the general concept of privacy to begin with. Street animals are also not jailed for walking on the grass even when there's a sign that forbids it - since animals cannot read. $\endgroup$ – Flater Sep 27 '18 at 12:31
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    $\begingroup$ But, you're trying to answer the "is this creature able to comprehend a rule?" question with "is this creature bothered by it?". A smarter-than-human creature may just not consider Jaywalking an issue, and thus not react to someone Jaywalking in front of it, even though it is both sentient and capable of comprehending the law. $\endgroup$ – Chronocidal Sep 27 '18 at 12:51
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    $\begingroup$ @flater I feel like there is a false dichotomy at play here. In a situation where the dog potentially understood that killing is wrong and could be reformed, depending on the circumstances, simply killing it may be as cruel and unusual as executing a human for manslaughter without trial. There would still be a need to determine the degree of the killer dog's personhood, which would be extremely difficult using the golden rule metric. $\endgroup$ – Irving Washington Sep 27 '18 at 19:56
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A more cynical view is that laws are not inherently moral, they are the rules a society enforces to ensure the status quo.

If the new species has existed and is now fighting for legal recognition then something has to change. Either the society no longer benefits from their exploitation or exclusion, or the new species brings something desirable into the mix.

A new species can be subject to laws and punishment without being a member of society with its rights and benefits. Maybe look at how countries have historically handled immigration and annexation, how new (and often despised) cultures eventually become the status quo.

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