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Elephants Are People Too

close-up photograph of elephant in the wild

37 years ago, the daughter of a Pakistani dictator was gifted a 1-year-old Asian Elephant calf named Kaavan. Kaavan ended up in Marghazar Zoo, a run-down facility in Islamabad. He had one elephant companion; a female named Saheli. When Saheli died in 2012, Kavaan spent days in his enclosure with her dead body before she was finally removed. Elephants are known to experience grief in response to the death of their companions. Since then, Kaavan has spent all of his time apart from other elephants, earning him the nickname “the loneliest elephant.” He has spent much of his existence in chains. With the help of animal rescue organization Four Paws International and Free the Wild, the animal welfare organization started by pop legend Cher, Kaavan has been freed from the zoo at which he was held captive and is now in an elephant sanctuary.

Kaavan was granted freedom from Marghazar Zoo as a result of a decision made by a high court in Pakistan. Chief Justice Athar Minallah began his opinion with a reflection about COVID-19. He notes that for the first time in memorable human history, human beings are confined to small spaces, restricted from interacting with friends and family, and limited in their range of autonomous choices. He argues that perhaps our own confinement provides us with an ideal opportunity to reflect on the ways in which we treat non-human animals, creatures who also enjoy social relationships, space to move freely, and a range of options when it comes to how, where, and with whom they will spend their time. In his ruling, Chief Justice Minallah poses the following question,

“Has nature forced the human race to go into ‘captivity’ so as make it realize its dependence for survival on other beings possessed with a similar gift, i.e., life? Is it an opportunity for humans to introspect and relate to the pain and distress suffered by other living beings, animal species, when they are subjugated and kept in captivity and denied the conditions and habitats created for their survival by the Creator, merely for momentary entertainment?”

Elephants are complex creatures who live rich social lives. They are highly intelligent and have excellent capacities for memory. Like all social beings, elephants thrive when they are in one another’s company. They flourish when they are able to do the things that elephants do when left unmolested. Humans have long benefitted from treating non-human animals as things, as instruments for human pleasure. We eat them, we conduct research on them, we hunt them for fun, and we force them to entertain us even when doing so is contrary to their own interests. Justice Minallah suggests that now is a moment, long overdue, at which we can start to view non-human animals with empathy and compassion, especially in cases in which their cognitive architecture is so similar to our own.

The court’s ruling on Kaavan’s case provided the conditions under which he was freed, but the question remained: to where and how does one transport a 5-ton pachyderm? Stunningly, the answer turned out to be: 4,000 miles away, to Kulen Prom Tep Wildlife Sanctuary in Cambodia — by plane. The Sanctuary is over 30,000 acres — space that Kaavan will get to explore with many other elephants.

Meanwhile, at the Bronx Zoo in the United States, a 49-year-old Asian Elephant named Happy is confined under similar conditions. Happy has been at the Bronx Zoo for 42 years. For the last decade, he has been held apart from other elephants in a one-acre enclosure. The Zoo insists that Happy is treated humanely. The Non-Human Rights Project, an animal advocacy group led by attorney Steven Wise that is dedicated to securing legal rights for non-human animals, disagrees. In recent years, the NhRP has also secured habeas corpus hearings for Hercules and Leo, the first non-human animals to be granted such a hearing. Though the judge in that case did not grant that the chimpanzees were legal persons, he affirmed the basic moral idea behind the movement. Judge Fahey wrote,

“The issue whether a nonhuman animal has a fundamental right to liberty protected by the writ of habeas corpus is profound and far-reaching. It speaks to our relationship with all the life around us. Ultimately, we will not be able to ignore it. While it may be arguable that a chimpanzee is not a “person,” there is no doubt that it is not merely a thing.”

The NhRP has argued that Happy is being unlawfully imprisoned at the zoo. The central issue at play in the case for freeing Happy is whether he is a person with rights to habeas corpus protection. A person has a right to bodily autonomy which carries with it a right not to be unfairly imprisoned or held against their will. So, for example, if a person has been detained or imprisoned and they believe that they have been put in that position unlawfully, they have a right to file a habeas corpus brief with the court in an attempt to be released from confinement. The argument is that, like people, non-human animals, or, at least, some non-human animals, have the same right to bodily autonomy and the same entitlement to protection against unlawful imprisonment as human beings do.

A common objection and, indeed, one of the objections that was raised by one of the justices at the most recent hearing on Happy’s case in front of the New York Supreme Court, Appellate Division, First Judicial Department is that if we grant that elephants and chimpanzees are legal persons, we’ll have to recognize that they have the other rights of persons — the right to vote, the right to bear arms, etc. This strikes many as both absurd and dangerous. In response to this concern Wise points out that there are many entities to which the courts have granted limited personhood status, including corporations. When the NhRP insists that Happy is a person in the limited sense that he has the right to bodily autonomy and should not be imprisoned unlawfully, they are not also insisting that elephants have the right to free speech or to the free exercise of religion, or any other such absurdities.

Another concern that was raised by more than one of the justices in Happy’s most recent hearing is that the question of elephant personhood shouldn’t be an issue for the courts to decide. The appropriate body to make that decision is the legislature. If that body wants to declare by statute that certain animals should be treated as persons, they are free to do so, but barring that, such dramatic action that has consequences that are so wide in scope would be judicial overreach. In response, Wise points out that a writ of habeas corpus is a measure of common law. The common law is established by judicial decisions and precedent rather than by statute. As such, the courts don’t need to, and indeed shouldn’t, keep Happy imprisoned until such time as Congress decides to pass legislation protecting these animals, which it is unlikely ever to do. For good reason, habeas corpus writs provide courts with the ability to quickly remove persons from unlawful detainment. Wise argues that they should take the opportunity to do so in Happy’s case.

These legal questions are intimately connected to critical moral questions. Do non-human animals have rights? The concerns posed by the court suggest a way of answering this question that is supported by various social contract theories. According to a basic version of this kind of theory, fully free humans come together to form a society with the understanding that it will be in everyone’s self-interest to give up some of their liberties in exchange for certain protections. The social structure of society is granted legitimacy by the fact that the rational people involved in the decision-making consented to it. The trouble is, not all sentient beings participated in constructing the contract. Non-human animals are entitled to rights and protections only if the decision-makers have agreed to such protections. According to this view, in our modern time, elephants and chimpanzees only have rights if legislatures pass statues granting them those rights.

One shortcoming of social contract theories is that they have no mechanism for ensuring protection of the vulnerable. If decision-makers don’t want to provide protections, at-risk populations are out of luck. This means that elephants and chimpanzees might remain unprotected, and it also might mean that oppressed groups like women and minorities who weren’t permitted to be involved in the original decision-making aren’t guaranteed protections either.

An alternative approach, and an approach consistent with the strategy of the Non-Human Rights project, is to insist that all sentient beings have ownership over their own bodies and, to the extent that they can exercise autonomy without harming others, should be allowed to do so. This approach respects the inherent dignity of all life. It recognizes that Happy should be released from captivity, not because it is the will of the people, but because Happy is not the kind of entity that ever should have been “kept”; Happy is a “who,” not an “it.”

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Moral Problems with Mink Production

photograph of mink fur

In a strange twist during a year that has seen more than its fair share of strange twists, a potential new threat in the fight against the coronavirus has emerged, this time in the form of a mutation in the virus found in minks. It has always been known that animals like mink are susceptible to some of the same kinds of respiratory diseases that affect humans, and that viruses can mutate when passed between different kinds of animals (it is speculated, after all, that the origin of coronavirus in humans originally came from bats). While there is reason to be optimistic that the mutation will not be too much of a problem for the development of a vaccine, the threat of a mutated version of the virus widely spreading to humans seems like the absolute last thing we need right now.

The mutated version of the virus was first discovered in Denmark, although a number of other major mink-producing countries (including Poland, France, Ireland, and the Netherlands) have reported the presence of COVID-19 in their minks, as well. As an early response, the Danish government imposed lockdowns in the relevant parts of the country, and attempted to force mink farmers to cull the country’s nearly 17 million minks that are farmed for their fur. This move has received considerable backlash: political opposition has challenged that the government has no legal right to force farmers to cull their mink herds, and the Danish agriculture minister stepped down as a result. Other governments are in the process of deciding which measures to take, although no clear plans of action have yet to emerge.

One aspect of this story that may have caught you off guard is the astonishing number of minks that could potentially need to be destroyed: in Denmark alone there are almost three minks for every human. While this number was never explicitly a secret, it wasn’t exactly well-known either, and after having been made public it has raised more than a few eyebrows of those concerned with animal welfare. While arguments against the raising of animals for their fur are not new, it is perhaps worth revisiting the topic in the face of this potential mass culling.

Typically in arguments like these one considers pros and cons, weighing reasons that have been provided in favor and those that oppose, and seeing which view is better supported by evidence and argument. When it comes to the question of whether minks should be farmed on a mass scale for fur production, however, the balance of moral reasons points pretty clearly against the practice.

Let’s consider some of the reasons against. In a recent letter to Science, three scientists from some of the largest mink-producing countries outline some key reasons why mink production should stop: in addition to the potential to transmit diseases harmful to humans, the conditions for raising mink are typically inhumane, with “minks showing signs of fearfulness, self-mutilation, infanticide, and breeding difficulties.” On top of all that, there is the environmental impact the comes along with any mass animal farming operation: the letter cites that “the climate footprint of producing 1 kg of mink fur is 5 times as high as the footprint of producing 1 kg of wool.”

So here are some arguments against: potential to harm humans with mutated viruses, cruelty to the animals, and damage to the environment. Are there reasons in favor?  Economic reasons come to mind: there is a demand for mink pelts, and so we might think that farmers should be able to supply them. Indeed, culling a country’s entire population of minks would have significant economic effects: the world’s largest fur auction house, Kopenhagen Fur, is reporting to be shutting down in the wake of the Danish government’s culling order, with the potential for an additional 3,000 jobs being lost in the case of a collapse of the mink industry. Certainly, then, the livelihood of mink farmers is at least one factor to be concerned with.

How one weighs these reasons will depend on how much one thinks that minks are animals worthy of moral consideration. If, for instance, one is concerned that mass fur farming is cruel to animals that ought not be treated cruelly, then even though putting an end to mink farming would harm those who make it their livelihood, this might seem like a minor concern when thinking about the overall benefits of ending an inhumane industry. This is not to say that the concerns of mink farmers should be completely ignored – the Danish government, for example, is currently considering a financial rescue package for mink farmers – but rather that, all things considered, the benefits of ending the practice seem to outweigh the harms.

There is, however, another moral problem in the vicinity: given that we currently are not sure how harmful the mutated version of the virus is, should we, in fact, kill millions of minks as a precaution? Recall that one of the reasons against farming minks in the first place was that it is inhumane: presumably, it is wrong to cause animals unnecessary suffering, and there is ample evidence that mass farming practices cause such suffering. However, if we think that these animals have some moral value, then that is also a factor to take into consideration when deciding whether they should be culled.

In trying to figure out what the best course of action in this case is there are clearly scientific questions that need to be addressed. As we saw above, it’s not clear whether the mutated version of the virus is dangerous, or whether it would interfere with the production of an effective vaccine, and so it is not clear whether at this point there is enough evidence to warrant a mass culling of minks. However, one might think that it is best to err towards caution: given the damage that the coronavirus has already caused, it might be best not to take any chances of it getting even further out of control. On the other hand, it is known that viruses mutating is common, and so even if all the minks are destroyed then that’s far from a guarantee that there will be no further mutations in the future. The mere threat of mutation, then, may not be a good reason to kill millions of animals.

At the same time, some animal rights groups have stated that the mass culling of the existing minks that are farmed for their fur would be the best course of action if it would put an end to the farming of minks in the future. For instance, Humane Society International stated that while there “was never going to be a happy ending for the 60 million mink exploited for fur annually” that “stopping breeding them altogether would be the best way to prevent animals suffering in the future for the fickle whims of fashion.” Culling minks could not only prevent future harm to humans, but also potentially put an end to an industry that would otherwise cause much more harm to animals in the future.

This is not an easy moral problem to solve. Regardless of what decision is ultimately made, though, this development in the ongoing coronavirus saga has at least shed light on a moral issue that is worthy of additional consideration.

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The Endangered ‘Endangered Species Act’

close-up photograph of black-footed ferret

On August 12th, officials in the Trump Administration announced a set of deregulatory measures aimed at loosening the protections of the Endangered Species Act. Signed into law by President Nixon in 1973, the ESA not only prohibits the sale and/or transportation of species on the ‘endangered’ list kept by the U.S. Fish and Wildlife Service, but also requires all federal agencies to coordinate their activities with the FWS and other regulatory commissions “to ensure that actions they authorize, fund, or carry out are not likely to jeopardize the continued existence of any listed species or result in the destruction or adverse modification of designated critical habitat of such species.” While the ESA currently protects over 1600 plant and animal species, and has been credited with preventing the extinction of the American bald eagle, the California condor, the humpback whale, the black-footed ferret, and the grizzly bear (among others), the roll-backs proposed by the White House may soon prevent the ESA from being applied in a manner that is, at all, effective.

Although the measures have been marketed as “improvements to the implementing regulations” that will help to “increase transparency and effectiveness and bring the administration of the Act into the 21st century,” conservationists have pointed out three key areas of concern. Firstly, new species that will henceforth be added to the ‘threatened’ list (one step down from ‘endangered’ status) will no longer be automatically given the same protections given to species already on the endangered list. Until now, the difference between ‘threatened’ and ‘endangered’ status was essentially just a way to indicate the species population without implying a difference of response, but this weakening will now allow for a difference in behavior. Instead, ‘threatened’ species will not warrant the same level of heightened concern. While Secretary of the Interior David Bernhardt defended this move on the grounds of promoting efficiency, explaining that  “[a]n effectively administered Act ensures more resources can go where they will do the most good: on-the-ground conservation,” the proposed amendments to the ESA do not include any additional protections requiring would-be funding for ‘threatened’ species to be diverted to ‘endangered’ species. In practice, it seems far more likely that ‘threatened’ species will not be taken as seriously as they currently are – which will inevitably lead to more of them eventually making their way onto the ‘endangered’ list.

Opponents of the ESA argue, however, that the ‘endangered’ list has been padded with faulty data. Robert Gordon, a senior official in the Interior department, has argued that much of the ESA has been “federally funded fiction” that wrongly listed species as ‘endangered,’ despite their actual numbers in the wild. In a 2018 report, Gordon argued that 18 of the 40 species heralded as having “recovered” as a result of the ESA were never actually endangered to begin with and that it is simply impossible for the ESA to accomplish its stated goals. Some might argue that these numbers indicate the pressing import of conservation measures, rather than a mandate to loosen them. 

A second concern about the Trump Administration’s roll-backs surrounds the ambiguity of the phrase, “foreseeable future.” At present, the ESA defines an ‘endangered species’ as one “in danger of extinction throughout all or a significant portion of its range,” whereas a ‘threatened species’ is one that “is likely to become endangered within the foreseeable future.” Whereas, historically, “foreseeable future” has been interpreted in broad terms, the new guidelines explicitly indicate that, “The term foreseeable future extends only so far into the future as the Services can reasonably determine that both the future threats and the species’ responses to those threats are likely…. The Services need not identify the foreseeable future in terms of a specific period of time.” By requiring these assessments to be made on a “case-by-case basis” for each species, the administration not only casts doubt on its concerns for administrative efficiency, but subtly allows regulators to potentially ignore the far-reaching effects of systemic issues related to global climate change. 

Finally, and perhaps most notably, the proposed changes to the ESA delete the phrase “without reference to possible economic or other impacts of such determination” from the Act’s implementation guidelines when considering whether to add a new species to the protected list, effectively allowing human business interests to be weighed on equal footing with the concerns of the endangered forms of life the ESA is designed to protect. Although it adds some language that sounds like a buffer for animal-welfare concerns (in that said economic information can be considered “as long as such information does not influence the listing determination” of a species), it seems like a strange move to explicitly weaken the Act while at the same time applying apparent, though less strict, reinforcement elsewhere. This is especially true given Secretary of Commerce Wilbur Ross’ comments about how “[t]he revisions finalized with this rulemaking fit squarely within the President’s mandate of easing the regulatory burden on the American public, without sacrificing our species’ protection and recovery goals.” The corporate preference evident in the final draft of the ESA edits lays bare its essence as a public relations patina, instead of the substantive wall of protection for endangered species it was designed to be.

Such a PR move is necessary; a poll from July of last year indicated that four out of five Americans support the Endangered Species Act and only one out of ten oppose it. Despite rampant disagreement about the existential threat of climate change, Americans are unified in their support of preserving animal species. Nevertheless, as Brett Hartl, government-affairs director for the Washington D.C.-based Center for Biological Diversity, said “These changes tip the scales way in favour of industry. They threaten to undermine the last 40 years of progress.” It is not hard to imagine how interests of particular creatures or species – whether in the foreseeable future or beyond – could be discounted when weighed against the possibility of increased profits for larger corporations.

Which means, these deregulatory measures from the Trump Administration are not only concerning in their implications for the government’s continued preference for short-term financial gains over long-term existential stability in the face of climate change, but they pose significant risks for the communities of currently-living creatures threatened and endangered by the actions of human agents. As Christine Korsgaard explains in her recent book Fellow Creatures: Our Obligations to the Other Animals, groups of creatures have value for at least two reasons: firstly, because every individual creature in the species (every token of the type) has particular interests that matter (8.7.1). But secondly, and more broadly, a collection of agents with individual goods of their own constitutes a community that has a shared good of its own (11.6.4). Korsgaard uses the example of a public park with a baseball diamond or an open-air theater as an “essentially shared good” – as something that not only happens to be good for individuals with different-but-overlapping interests, but as something which is only good insofar as it allows for the community to participate in something together (like a baseball game or the performance of a play). Applying this concept to habitats and animal communities, Korsgaard says, “When a species of animals becomes extinct in a given area because of human activities, it is a sure sign that we have been harmful to the point of fatal to those animals’ communities.”

What this means, then, is that even if we grant that the economic interests of corporations and business owners are worth measuring against the interests of wildlife and ecosystems, we are obligated to consider both of Korsgaard’s levels in our calculations. It is not simply a matter of measuring a concern for a small set of animals against the financial interests of a multinational conglomerate, but rather the collective interest of the species against the collective interest of the corporation – a comparison which may threaten to actually come down in favor of the plants and animals on the FWA’s list (provided that existential concerns outweigh simple profits).

A number of state attorneys general (including those from California and Maine), as well as environmental groups, have already promised to challenge the Trump Administration’s revisions to the ESA in court. Time will tell whose interests will ultimately win out.

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Moral Standing and Human Monkeys

photograph of macaque's face in profile

Last month researchers significantly complicated how we conceive of the landscape of moral creatures. Scientists in China have created a monkey with a human brain gene, inserting it with a virus into eleven macaque monkeys. “The five survivors went through a series of tests, including MRI brain scans and memory tests. It turned out they didn’t have bigger brains than a control group of macaques, but they did perform better on short-term memory tasks. Their brains also developed over a longer period of time, which is typical of human brains.” The scientists articulated the aim of the study as observing the evolutionary process of the human brain, the research was meant to capture how our brains developed the way they did. The next stages will involve study of the genes associated with language learning.

Typically, ethicists and laymen alike have taken there to be something morally relevant about most humans that means that they ought to be treated in particular ways, and should treat others in particular ways. Humans are moral animals in the sense that they are the ones that can do wrong and be wronged. In other words, when a non-human predator kills and eats its dinner, they are harming but not wronging their prey. When humans kill something, this is a potentially morally-loaded behavior.

The moral standing of humans is a tense enough ethical question, it being notoriously difficult to find an intuitive property that could ground the moral package of rights and duties that we take most humans to have – that transforms humans into persons. Is it advanced cognitive capacities such as reason, or self-awareness, or the ability to direct their behavior self-consciously? Is it the complex ways they feel pain and pleasure? The sort of relationships they have with one another? The potential to develop into a being that has these properties? Their membership in the “advanced” species? Each of these standards misses some intuitions that many would find central to our moral understanding – children may be excluded, animals may be included too strongly, humans experiencing brain death or persistent vegetative states or advanced dementia may not be captured appropriately.

While much of the focus of discussions of moral standing attempts to figure out what is special about humans, it is difficult to ignore that many of the things that makes humans special are shared to varying degrees with non-human animals. Our tool-use, communication, intelligent and flexible responses to the environment, complex social structure, etc., can all be found across the animal kingdom in various forms. This is suggestive of duties or respect that we may owe to such animals, and animal ethics is a large and growing area of research.

Further, with the advances made in computer science, some philosophers suggest that we need to start thinking about treating artificial intelligence that we create with similar moral respect that we owe to non-human animals. So, while humans may be a model for moral consideration, concern, and responsibility, extending this framework to relevant beings in the world is nothing new.  

However, influencing creatures to give them the properties of humans is a significant step. While there may be ways of ethically treating some non-human animals in captivity (wildlife preserves?), keeping a creature with human capacities captive has long been viewed as morally reprehensible (a view that hopefully criminal justice systems will catch up with). Also, one major justification for experimenting on non-human animals is the benefit for humans – potential disease intervention, etc. This, however, is not the aim of these studies.

While there are those that consider it to be unethical to interfere with the basic capacities of non-human animals, the researchers have a two-pronged defense. First, apes are similar enough to humans that altering their genetic structure wouldn’t be a harm. Second, their test subjects are different enough that their research won’t succeed in making them sufficiently human to worry.  

An interesting result of the potential future of these experiments is that many creatures would have the moral status of “potential person”, which is relevant to some in the US’s abortion debate. If the research on primates continues as the researchers articulate, Tooley’s science fiction thought experiments from the 1970s and 80s about the potential to inject cats with the rationality of mature humans transitions from science fiction to scientific possibility, and attention to the standing of “potential person” will be relevant outside of the abortion debate.