UTILITARIANISM6 Jeremy Bentham, the founder of legal positivism, propounded the utilitarianism theory7 on the basis of antagonism of pleasure and pain. While extending the scope of the theory to Non- Humans, Bentham recognized the existence of extension of rights to Non-Humans which were previously considered the exclusive domain of human being. |
Bentham stated that “The question is not, Can they reason? Nor can they talk? But, Can they suffer?"8 Such rationality of suffering has also been endorsed by Charles Darwin.9 And John Stuart Mill by drawing an analogy to rights of children.10 According to Bentham, The limits of jurisprudential consideration of rights extend only to those being possessing sentience i.e. capacity to feel pleasure and pain or what he termed as the “insuperable line” rather than extending to others on the basis of intelligence or rationality because the focus on intelligence or rationality would consequently exclude many humans from the purview of rights, for example infants and the mentally disabled. On the basis of such theory, Peter singer propounded the principle of “equal consideration of interests"11which states that while evaluating righteousness of an action, one must take into account all the affected interests and weigh those interests equally. Singer did not confine the interests to human beings but included Non-humans in the sphere of right-holders by extension of interests to them. According to singer, if a being suffers there is no moral argument for refusing to take that suffering into consideration, irrespective of the nature of the being. The Benthamian and singer’s analysis clearly illustrates that motivating principle behind ethical utilitarianism is that of equality, which is not an objective state of affairs (sameness between subjects) but as a rule prescribing conduct, as in, the taking into account of interests of all affected. The only prerequisite is that of capacity of suffering. |
Historically, philosophers have been adamant to deny rights to animals as could be evinced from a long range of philosophers, the most prominent of which was Descartes who stated in a letter to Henry More in 1647: |
” My prime argument for stating that brutes are devoid of reason, is that, . . . it has never yet been observed that an animal has arrived at such a degree of perfection as to make use of a true language; for the word is the sole sign and the only certain mark of the presence of thought hidden and wrapped up in the body; now all men, the most stupid and the most foolish, those even who are deprived of the organs of speech, make use of signs, whereas the brutes never do anything of the kind; which may be taken for the true distinction between man and brute." |
On the basis of thesis of Descartes, a contemporary philosopher of Descartes, Fontenelle proposed that animals being devoid of reason are also devoid of any capability to feel and experience pain. Such conclusion is unpersuasive on the basis of three grounds: Firstly, by identifying language as the true criteria of reason and thereby pain, Descartes effectively removed Unborn children from the purview of pain, although contrary evidence has been established scientifically.12 Secondly, by usage of such criteria, an attempt is made to provide a tool for objective assessment of pain. On the contrary, Pain is a subjective sensory and emotional experience that requires recognition of a stimulus as unpleasant.13 an objective criteria deprives pain of its fundamental psychological construct which can be present even in the absence of physical stimuli, as seen in phantom limb pain in Human beings.14 Thirdly, Fontenellian thesis misconstrues cognitive abilities as prerequisite of sentience. Cognition refers to the mental action or processes by which animals perceive, process and store information and the capacity to reason.15 Cognition is not actually condition necessary for sentience, and it can be established independently. For example, a computer and a non-human animal may both be able to perform the same complex task without presence of any cognition. 16 Studies have demonstrated that non-mammalian animals without a cerebral cortex can feel emotions and pain.17 Neurological evidence suggests that even in mammals the basic emotions are not dependant on the large cortex which is termed as a tool for processing complex cognitive abilities of Human beings. Rather, the evidence proves that emotions are generated from the subcortical internal brain regions, which are found to be similar across species.18 In any case, Evidence establishes that cognitive abilities are present in whales. A study showed that if a sperm whale wants to see-hear-feel any past experience, his huge computer brain can reprogram it and run it again. His huge computer gives him a reliving, as if with a three-dimensional sound-color-taste-emotion re-experiencing motion picture. After thus reviewing the original experience, the whale “can set up the model of the way he would like to run it the next time, reprogram his computer, run it off, and see how well it works."19 A capacity for humor and playfulness is generally associated with high human intelligence And Cognition; whales and dolphins, too, conspicuously exhibit playful and humorous behavior20 which evinces their cognitive ability. Fourthly, the use of language in Descartes’ analysis refers to the language which could be understood by Human beings. But why is there a need for whales to communicate with Human beings? Why the capacity to feel pain on the part of dolphin is judged on the parameters of Human understanding? The whale has a brain that in some instances is six times larger than that of human beings and its neocortex is more convoluted.21 Whales have developed language among themselves that appears to include abstruse mathematical poetry.22They have also developed interspecies communication with dolphins.23 Whales are the most specialized of all mammals, maybe even more than Human beings24 except on certain counts such as ability to speed up global warming, capability of violence etc. present in the Human beings. Whales are sentient, they are intelligent and they have their own community.25 The failure of Human beings to converse with whales is a matter more of our own limitation than of theirs.26 The notion that animals are devoid of reason because they have not learned to communicate with us is arbitrarily under inclusive. |
Lastly, the understanding of Human beings of the arbitrary concept of pain is limited as it is a psychological construct.27 If we apply the concept of solipsism28 to pain, then we are faced with the question of determination and characterisation of that other person’s feeling as pain. The most significant obstruction is presented by our inability to have a direct access to such feeling or sensation. The only way even we can understand that other person is feeling pain is through the other’s distinctive bodily movements, sounds and cries. Even after that we do not know that the movement experienced by the other is “pain” in the context that we understand it. Human psychology suffers from the inability to know another’s subjective thoughts, despite the seemingly advantage of shared language and our ability to speak it. For instance, humans are subject to false reporting of their own emotions.Therefore, it could be stated that assessment of the state of mind, for instance pain, by the field of psychology is more a matter of assumptions than stating a fact.29 Therefore, the thesis of Fontenelle suggesting that we could not be sure that animals feel pain becomes inconclusive as the same analogy can be drawn to a Human Being experiencing pain. Hence, such faulty premise must not be used for assessing whether animals, and for the purpose of this article, whales feel pain or not. |
"And now abating in his flurry, the whale once more rolled out into view; surging from side to side; spasmodically dilating and contracting his spout-hole, with sharp, cracking, agonized respirations. At last, gush after gush of clotted red gore, as if it had been the purple lees of red wine, shot into the frighted air; andfalling back again, ran dripping down his motionless flanks into the sea. “30 |
In the above stated words Melville described the death of a whale in Moby Dick (1851). Even in exclusion of the literary aspect of such description, Evidence has suggested that whales feel pain in the similar manner as described above. |
Warshall observes that when whales are harpooned and dying, their whistles change dramatically to low monotones which in the natural course “are beautiful bird-like sounds with trills and arpeggios, glissandos and sitar-like bends in the notes."31 An analogy can be drawn of this change to change in the voice of Human beings from speaking to crying. Although, tear ducts are absent in whales, moaning as observed by warshall is an indication of suffering.32The moot question is the extent of such suffering. Whether they are able to feel pain at a greater degree that we may not be able to fathom? It could be answered in affirmative in light of their superior intelligence and wider range of skin sensations recorded by their complex cerebral cortex.33 The Capacity to suffer such pain thereby consequently brings whales into the sphere of right-holders and entitles them to an inherent right to life. |
Top DARWINIAN NARCISSISM34 “Man in his arrogance thinks of himself a great work, worthy the interposition of a deity. more humble and, I believe, true to consider him created from animals.” 35 |
Despite the wisdom of Charles Darwin, Human beings have focused on granting an exceptional status to themselves i.e. Human Exceptionalism36 and practicing Speciesism.37 Such Practice demonstrates tendency to use biological classification of species Homo Sapiens as basis of Legal conception. However, I believe that although biological sciences must inform legal conceptions, Species discrimination cannot be the sole basis of Determination of rights of Non Humans in general and whales in particular. |
The attribution of rights is not a matter of biological correspondence. “Person” is a legal “term of art.” 38 It is not equivalent with “human being,” but designates an entity with the capacity for legal rights. Therefore, it is within the realm of legal imagination to entitle even a supernatural thing to legal rights and thereby consequently grant it the status of legal person.39 While elaborating upon the concept of legal persons,40 Salmond states that the conception of personality beyond the class of human beings is one of the most noteworthy feats of the legal imagination 41 which must be construed liberally. The conception of personhood may also be narrower than human beings. Human Slaves were outside the sphere of right-holders in USA prior to the ratification of the Thirteenth Amendment to the United States Constitution in 1865. 42 Slaves, although they were human beings, were not persons in the eyes of law but mere negotium or a thing. Married women were also once considered the property of their husbands, and before marriage were often considered family property in the eyes of law. Rather than considering them as ‘persons’, they were treated as ‘things’ and “denied the full array of rights accorded to their fathers, brothers, uncles, and male cousins.”43 The conception of personhood has also been interpreted in the past to include an entity qualitatively different from a human being. A recent ruling by an Indian court in Mohd. Salim v. State of Uttarakhand recognized River Ganga and river Yamuna as legal persons with fundamental rights.44 In another Judgment, learned Single Judge of Allahabad High Court of India held that a Hindu deity can sue as a pauper45 in line with a previous judgment of a pre-independence Indian court.46 New Zealand’s Wanganui River Iwi has been recently designated as a legal person that owns its riverbed through an agreement between the indigenous peoples of New Zealand and the Crown.47 Sikh’s sacred text, Guru Granth Sahib, has also been designated as a legal person. 48. Such judicial precedent evinces that gist of personhood has never been the criteria of Being human rather focus has been given whether they “count.”49As to who counts under the system of law, the dictating factor is not the practices of the past because if that was allowed to be the determinative factor, then received practices could serve as their own continued justification and new groups could not invoke rights once denied. Rather while evaluating over who counts in the legal system, it is to be noted that human history shows an ever-expanding circle of moral concern. At one stage, people from another tribe were outside that circle. In recent times, women, as well as people of other races and religions, were excluded from the circle, but now they are all accepted inside most societies in the developed world. The next stage is the beginnings of acceptance of non-human animals such as whales into the circle.50 The Species Problem In the first edition of Systema Naturae, Carl Linnaeus proposed a Hierarchical classification system which provided species as basal units of classification. As species are the fundamental units of classification, there is a basic need of an unambiguous definition of species. For Instance, we need such definitions in order to study speciation events. After all, such events cannot take place unless a new and distinct species has evolved. However, no consensus could be observed on such definition as no system of devising such definition has been proven adequate and conclusive. Such “Species problem” has resulted in multiple ways of articulating species that divide up biodiversity in different and inconsistent ways. The species problem was first encountered by Aristotle who interpreted the Greek term eidos (species) in three different ways.51 Two thousand years later, Darwin enunciated such problem as follows: "How various are the ideas that enter into the minds of naturalists when speaking of species. With some, resemblance is the reigning idea & descent goes for little; with others descent is the infallible criterion; with others resemblance goes for almost nothing, & Creation is everything; with other sterility in crossedforms is an unfailing test, whilst with others it is regarded of no value. “52 Richard Mayden while further elaborating such problem presented the empirical figures that at least 22 systems of determining species are currently in use.53 This multiplicity of species concepts is a genuine problem in that different ways of conceiving species divide biodiversity in different and inconsistent ways. What counts as a species under one concept may not count as a species under another. thus, whether a group of organisms counts as a species depends on which system is used.54 Whenever shift is made from one concept to other, the results of such change are often striking. A recent study55 concluded that shift from other concepts to Phylogenetic concept resulted in a 300% increase in fungus species, a 146% increase in plant species, a 137% increase among reptile species, an 88% increase among bird species, an 87% increase among mammals, a 259% increase in lichen species, and a 77% increase among arthropods. They also observed that there was a 50% decrease in mollusc species. Overall, there was an increase of 48.7% in number of species. If there is a fundamental problem regarding the definition of species, the how can such faulty basis be used to deny rights to Non Humans? Additionally, In order to restrict rights on the basis of species classification, one needs to establish why the sphere of rights is restricted only on the basis of species and not expanded on the basis of Genera, order, class or family. This question enhances in case of whales with whom Human beings share the class Mammalia. The answer to such question has witnessed a lot of variation, but still a fundamental argument lies in the possession of soul, genesis of which could be traced back to Descartes. Descartes divided the living things of the world in two categories: brutes which function like machine and the Human beings possessing soul. However, such Classification is fundamentally wrong since most of the activities attributed to soul by various religions and medieval and ancient philosophers have been now associated with functions of the brain. Therefore, the attribution on rights on the basis of Species is heuristic at best which exists to support the claim of Human Exceptionalism. Evolutionary interpretation of species Before Darwin, The doctrine of Special creation was predominantly used to explain the existence of Living things. It propounded that all living beings are the result of creation of god and therefore the species were also considered to be immutable. It was stated that living things are so complex and yet so adaptive that such creation cannot be without an elaborate design and purpose. The Design and the creation consequently led to the existence of a designer or creator i.e. God. such theory was no better than Ancient Greek myth of autochthony: "Compress a dirty shirt in the mouth of a pot containing some grain. After about twenty days a ferment coming from the dirty shirt combines with the effluvium from the wheat, the grains of which are turned into mice. “56 The Hierarchical system of classification as proposed by Naturalist Carl Linnaeus57 provided a scientific outlook to such doctrine. It divided the facts of structure into fewest possible general propositions.58 It supported the works of various contemporary biologists that living things can be divided into groups on the basis of distinct characteristics of the groups. However, Darwin rejected the idea of a particular trait constituting a group and proposed that Classification consists in grouping being to their actual relationship, i.e., their consanguinity, or descent from common stocks.59 Darwin emphasized that various categories of classification (adaptive, reproductive, rudimentary, inadaptive, and embryological characters) are mutually conflicting and states that all of these features can be explained by descent with modification i.e. The differences are result of gradual process of evolution which created distinct varieties in a population and thereby new species. 60 The Darwinian Theory propounds that there is no species essence and therefore, species are not natural kinds but just are result of evolution. Such point could be further established by reference to great similarities between different species and even amongst different orders. For Instance, great similarity is observed between Human Beings and Apes61 and also by the evidence of substantial degree of variation among organism of the same species. Therefore, Reliance on Biological criteria of species, which in itself cannot be defined properly, for the purpose of determining personhood clearly reflects an attempt to violate the fundamental principle of equality and Justice : Likes are to be treated alike. Furthermore, such criteria has no standing to be the criteria for being the basis of attribution of rights as there seems to be no logical connection between conferment of rights and the Species. Therefore, such criteria must not be taken into account while evaluating the eligibility of whales for the basic right to life. Top THEORY OF SOCIAL CONTRACT There is a general consensus amongst friends and foes of animal rights that the Social contract theory, which is an inspiration of the ideals of freedom and democracy, negates the rights of the Animal in general. Tom Regan, one of the most celebrated animal rights philosopher has also adopted such common (mis) interpretation.62However, such interpretation is fallacious on four grounds: 1) Personhood is not dependant on Rationality of the recipient of the contract. 2) Personhood vis-a-vis leviathan, 3) Theory of social contract recognizes inherent natural rights, 4) Personhood is not dependent upon ability to bear societal responsibilities. |
Personhood is not dependant on Rationality of the recipient of the contract. |
John Rawls contractarianism is used as basis for attempting to establish the pre requisite of rationality to Moral personhood.63 Rawls theory is based upon the original position and the veil of ignorance64 He states that a just organization of society can only be achieved through contracting on principals by agents who have been denied certain knowledge about themselves. Such knowledge is kept away from them through the veil of ignorance and the contractors who have been denied such knowledge are said to be in the original position. The object of such denial of knowledge is to remove any subjective influence of the contractors on the principle they are contracting upon and to eradicate any possibility of the contractors skewing the principals for their own benefit as opposed to the collective benefit of the society. The rational agents, who are the occupants of the original position, are thereby construed to be in possession of general knowledge of sociology, psychology and so on but they are deprived of the knowledge of particular facts about themselves. On the basis of such rationality of the framers of the contract, pre requisite of rationality is added to the recipients of the contract in the following manner: |
A1: The framers of the contract are rational. |
A2: The framers of the contract are responsible for framing the contract and the principles of morality embedded therein. |
A3: therefore, only rational agents are subject to the contract and the principles of morality embedded therein. A4: only those who are subjected to the contract are entitled to rights specified in the contract. |
A5: Animals are not rational. |
C: Animals are not subjected to rights specified in the contract. |
The above stated logic fails on account of misconstruction of rawls Contractarianism. Rawls has divided the theory of distributive justice in two parts- |
Social Contract argument- the distribution of social and economic inequalities must be done in the manner so as to respect fair equality to opportunity and also in consonance with principle of granting greatest advantage to the least advantaged. Liberal equality or Equality of Opportunity- No one shall be construed to be in advantageous or disadvantageous position on the ground of natural chance or the contingency of social circumstances. If A has done nothing to deserve the possession of property P i.e. Property P is undeserved on the part of A, then A is not entitled to possession of such property. If A is not entitled to possession of Property P, then A is not entitled to whatever benefits may accrue from Property P. For Instance, Rawls argues that none should be born stunningly handsome or with an IQ of 180 as such qualities are undeserved on the part of that person as the person has not done anything to gain such advantage and accrual of benefit and the possession of such qualities is morally unjust. 65
The general conception of Rawls Contractarianism tends to evaluate both such principals individually. However, such evaluation is fallacious as not only liberal equality is compatible with Social contract but also a necessary tool of reinforcing the latter. It could be evinced from rawls description of Veil of ignorance: |
"No one knows his position in society, his class position or social status, nor does anyone know his fortune in the distribution of natural assets and liabilities, his intelligence, strength and the like. I shall even assume their own conception of good or their special psychological propensities. The principles ofjustice are chosen behind a veil of ignorance. No one shall be construed to be in advantageous or disadvantageous position on the ground of natural chance or the contingency of social circumstances. “66 |
The reference to natural chance and social conditions reflect the attitude of Rawls to establish a connection between Liberal equality and Social Contract. The convergence of Liberal equality and Social contract entails the negation of Prerequisite of rationality to personhood as follows: |
A1: A “thing” plays no role in deciding whether he or she is going to acquire rationality. The decision is of Nature’s. A2: Rationality is an undeserved property. |
A3: A person is not entitled to possession of and to accrue benefits of undeserved property. |
A4: Rationality is prerequisite to personhood. |
C: A person is not entitled to possession of and to accrue benefits of personhood. |
Therefore, Providing Prerequisite of rationality to personhood results in the absurd conclusion of no one being able to claim any rights as rights are the benefits of personhood. Therefore, Rationality cannot be construed to be a prerequisite of personhood to recipients of contract. Moreover, the concept of rationality of framers of contract must be hidden from such framers in order to achieve the principals establishing just organization of society which is not biased in favour of rational individuals. |
One might argue that John Rawls himself has stated that humans may have “duties of compassion and humanity” towards animals, but this does not mean granting them basic rights, let alone including them in the sphere of justice.67 Although, rawls makes such statements, They hold no value as they are not in consonance with the theory of justice proposed by Him. Additionally, it is evident that rawls himself is hesitating while making such claims as |
Additionally, the Rawls Contractarianism enforces the claim of animal rights and more particularly right to life of whales, by providing a strong claim against the speciesist argument that rights are the exclusive domain of Human beings. Establishing just organization of society is not possible unless the Particular fact that the framers of contract are Human beings is Hidden in the Original position from such framers. The Human beings play no part in achieving the status of Being Human. Therefore, such Human status thereby becomes Undeserved property of which no benefit can accrue to Human beings. If right over Rights is only granted to Human beings, then it becomes an advantage accruing from the Human status. As the Human status is morally arbitrary, according to Liberal equality, such benefit cannot be accrued to Human beings. It consequently follows as a corollary that rights are not within the exclusive domain of Human beings and can also be recognized in the Context of Non- Human Animals. |
Personhood vis-a-vis Leviathan |
The influential exponents of sociological jurisprudence such as Thomas Hobbes, John Locke, and Jean-Jacques Rousseau recognized the distinction between Person and citizen. The social contract theory speaks about creation not of a person but of a leviathan (An artificial man or Sovereign). Leviathan, the sole person originating from social contract is a mere abstraction, not a real person. Locke supported such interpretation as he recognized that no real person could be composed of rights of himself and duties to others. Rousseau stated that only a truly democratic social contract could create such an artificial man.69 Therefore, it could be stated that personhood is a wider concept than signatories of social contract. Personhood is an essential attribute to gain the status of latter because if there are no persons, then there will be no signatories to the social contract. Hence, All signatories are essentially persons, but not all persons are signatories. There can be persons who are not signatories either because they refuse to contract (For Instance, a person who has decided to live in isolation rather than in a society) or they cannot contract (For Instance, Whales). Being a signatory therefore cannot be presupposed to be a characteristic feature of Endowing Personhood. |
Theory of social contract recognizes inherent natural rights. |
The distinction between person and contractors, as illustrated before, is crucial in understanding the gradual progression of ascribing rights to various groups throughout history. In USA, Slaves were not considered as persons and they were not parties to the social contract through which the ideals of democracy, freedom, liberty and equality, which forms the core of US constitution. Nonetheless, such rights were gradually recognized in their context as their status changed from “things” to “Persons", as they possessed inherent natural rights, not dependent upon social contract. A similar pattern could be observed in the context of aliens, woman and other Non-Human entities of which rights have been recognized. It clearly illustrates that social contract is not the genesis of rights and whales, though not party to the social contract could be included in the sphere of right- Holders as they possess inherent natural rights, not dependant upon social contract. |
The social contract theorists explicitly follow such line of interpretation. Hobbes stated that social contract does not entail endowment of rights, rather he proposed that social contract requires giving up almost all of our rights except right to life. The rights are exchanged for duties that we owe to others through the mechanism of law created by the contract and the security achieved through the creation of sovereign. 70 |
Rousseau also expressly recognized natural rights by stating that “Man is born free, and everywhere he is in chains."71 Such chains, as per Rousseau were created by the social contract and were formed with our consent i.e. self imposed. Locke stated that such exchange for rights takes place for acquisition of laws, the executive power needed to enforce the laws, and judges to adjudicate disputes.72 In light of such interpretation, it is clear that social contract is not related to acquisition of rights but to giving up such rights for acquisition of a duty to abide by the legal principles. |
Personhood is not dependent upon ability to bear societal responsibilities. |
Negation of Prerequisite of Ability to bear societal responsibilities for Personhood is of great importance as such prerequisite will exclude several categories of Human beings from the purview of rights, for Instance, Human fetus, Infants, insane people, Mentally disabled persons. Such categories of persons are not capable of bearing societal responsibilities but they are nonetheless construed as persons bearing rights.73 Additionally, Such societal responsibilities can only be related to a “thing” only after such thing is included in the society i.e. recognized as persons. In other words, Personhood is not dependant upon ability to bear societal responsibilities, rather ability to bear societal responsibilities is dependant upon Personhood. |
In conclusion, the social contract theory does not rule out the personhood of Whales. Rather the rawls contractarianism extends support for recognizing the right to life of whales. |
Top LOCKE’S JURISPRUDENTIAL CONCEPT OF PERSONHOOD John Locke defined personhood capable of ascribing rights as “thinking intelligent being that has reason and reflection and can consider itself as itself, the same thinking thing in different times and places; which it does only by a consciousness which is inseparable from thinking. “74 Locke’s view, though influential, is generally considered to be vague. His definition, to provide a more explicit breakdown of core capacities, has been further expounded into emotions, linguistic mastery, sentience, rationality, reflective self-awareness i.e. awareness of ourselves as “selves” and reciprocity.75 Although, such explicit breakdown of capacities is illustrative, it must not be considered exhaustive. Furthermore, as humans acquire such capacities not at birth but by age, fulfillment of all such capacities is not a prerequisite for personhood.76 Although there is no definite criteria for establishing fulfillment of how many capacities would entitle a thing to be considered as a person, Jurisprudential opinion weighs towards fulfillment of multiple i.e. more than one capacity to be a strong evidence of personhood.77 However, if a “thing” satisfies all such requirements, then there could be no doubt regarding its personhood.78 |
As stated before, Whales possess linguistic ability and Capacity of suffering. Additionally, Rationality and Morality can be inferred in whales since they do not direct their ‘echolocation clicks at a social partners ears’ in the knowledge that it would ‘incapacitate the recipient’s ability to forage for some time, and quite likely cause permanent damage’.79In another study, Orcas ( killer whales) passed the Mirror recognition test,80 by exhibiting behavior indicating expectation of having an altered appearance after being marked- A definite indication of their understanding that the image in mirror is of themselves.81 Such study has conclusively proven Self awareness among the whales. various emotions have also been attributed to whales. Rosa, an experienced orca researcher, reported that two male orcas were exhibiting grief after the body of an older female was found dead, who was believed to be their mother. Such observation was made in light of the fact that in mid-November 1990, the two sons swam together but without contact with any other orcas, visiting again and again the places that their mother had passed in the last few days of her life.82 Other emotions proposed for whales include parental love, as exhibited by orcas83 and Humor.84 Given the evidence that whales are emotional, self-aware, sentient beings who have beliefs and desires, whales satisfy the requirements of Locke’s Jurisprudential conception of personhood. |
Top KANTIAN CONCEPTION OF PERSONHOOD Immanuel Kant defines Personhood in terms of rationality and autonomy. Kant proposed that persons must only be treated as ends in themselves rather than treating them as mere means85 and he enshrined this idea in one of his formulations of the Categorical Imperative, the Formula of Humanity, which states “So act that you always treat humanity, whether in your own person or in the person of any other, always at the same time as an end, never merely as a means.”86 |
However, Kant defines humanity only in reference to those who possess certain attributes (rationality and autonomy). As established before, scientific studies have established that whales possess rationality. The other criteria i.e. autonomy, however, presents a unique problem. Scientific studies indicate that it has to be defined in terms of autonomous behavior as autonomy is not a tangible thing which could be assessed independently. Stephen king, while providing a scientific assessment of autonomy defines it as behavior that reflects a choice and is not based upon reflexes, innate behaviors or on any conventional categories of learning such as conditioning, discrimination learning or concept formation. Instead, Autonomous behavior implies that the individual is directing the behavior based on some non-observable internal cognitive process.87 The science community has almost unanimously agreed that behaviour of whales indicate such autonomy. There is a compelling argument that some cetacean species such as whales exhibit “culture”, specifically “information or behavior - shared by a population or subpopulation - which is acquired from conspecifics through some form of social learning.”88 It is demonstrated by Sperm whales possessing a sophisticated system of ‘codas’ or rhythmic clicks, while orcas use a range of altruistic ‘alarm calls’ and ‘greeting calls’.89 Orcas use ‘dialects that are unique to their family group only’, and which they pass down through ‘maternal lines’ so as to ‘promote group cohesion and cultural identity’.90 Sperm whales also demonstrate Moral system as they always avoid directing their echolocation clicks at their social partners ears because it might cause a significant and in some cases permanent damage to the recipient.91 Such behaviour coupled with high cognitive abilities of whales as demonstrated by their evolved lingual developments, group living, brain capacities for thinking and storage of memories as noted before clearly points towards autonomy of whales. |
However, while basing his argument upon autonomy, Kant did not intend nor has any interpretation of his work pointed towards accepting a scientific understanding of Autonomy.92 Rather the Kant focused on such conception of autonomy which has been now referred as Rational autonomy93 or autonomy within liberal theories. Rational autonomy essentially revolves around possession of Meta cognitive abilities, notably the Second order desires. A first order desire is a desire for anything other than a desire; a second order desire is a desire for a desire. 94 The distinction between first and second order desires enables the person to actually be the self-ruler. By assessing his first order desire through objective rationality, a person gains the advantage of not being a slave to his own first order desires but deciding what truly he desires. In such a way, the person can be free from complete domination of his instincts, passions and emotions. Kant conceptualized such Autonomy and placed it in the exclusive domain of Human beings. Thereby the animal ethics were placed outside the realm of rights and of justice.In John Rawls’ words, humans may have “duties of compassion and humanity” towards animals, but this does not mean granting them basic rights, let alone including them in the sphere of justice.95 Such conceptualization led him to believe that right over rights are to be restricted to Homo Sapiens in exclusion to other Animals. Kant expressed such position as: |
“The fact that the human being can have the representation “I” raises him infinitely above all the other beings on earth. By this he is a person.... that is, a being altogether different in rank and dignityfrom things, such as irrational animals, with which one may deal and dispose at one’s discretion. “96 |
A Critic of Kantian Autonomy |
Kantian perception of autonomy fails on five grounds. First, such perception creates an objective criterion of rationality, completely detached from the social structure influencing the decision maker and by painting the decision maker in such atomistic fashion, providing absolutely no defense against oppression, indoctrination and paternalism.97 |
Second, rational autonomy has seen a general trend of capacity underlying the concept of autonomy. In other words, it is considered that revising the desires is an objective good in itself and must be construed as the only and very important tool of having a meaningful life. However, such conception is clearly violative of the inherent right of liberty98 which includes to a large extent non- interference by outside forces. Although, Revising is an important tool to have a meaningful life, why should it be considered as a prerequisite of it? This argument gains validity especially in those cases where the first and second order desires lead to same conclusion. For instance, I have a first order desire to drink vodka. Then I assess such desire through rationality in second order desire and still I find that the desire about my desire to drink directs me to drinking vodka. Then if an individual or a whale for example stops at the first order desire but achieves the same consequence, then why should the trend of capacities stop them from being placed on the same pedestal on which I am placed? |
Third, Such conceptualization fails on account of empirical data. If such autonomy has to be the basis of personhood consistently then most of human beings would not also qualify for personhood as such desire about desires is not always present even when a human being makes a decision.99 |
Fourth, it is to be understood that there is an significant distinction between legal understanding of a subject (Law time) and scientific understanding of a subject (Science time). Generally the law time lags behind the science time. But the law has a maj or role to play balancing the protection of individual and public interests in avoiding the perils, while not holding back, these scientific developments. Immanuel Kant was a jurist of 18th century. Although Science was starting to make great leaps during his life, it had not reached such a deep understanding about whales and generally in regards with the animals as it has in the present. Therefore, we must understand the inherent disadvantage of Kant of not even knowing, let alone understanding, the majestic behaviour and cognitive abilities of the whale. In light of such disadvantage, he could not assess the capability of animals to be right holders properly and consequently his understanding of Autonomy has become nugatory. |
Lastly, the Kantianism tends to focus on methodological perfectionism. It seeks to constitute rational revision as objectively good even though the first order desire satisfies the individual. Kant fails to give reason for focusing more on the rational revision than on satisfaction or pleasure of the individual. Though it carries prudential value, why should it be mandatory? It is perfectly acceptable to live one’s life in an impulsive, intuitive or instinctual manner, without using the rational revision constantly or even never using such revision, if that is possible. |
Modern understanding of Autonomy |
In light of grave failure of Kantianism concept of autonomy, it must not be used for determining personhood of a “thing.” In order to replace such definition, Tom regan has proposed an alternate formulation by providing the concept of preference autonomy. It involves “the ability to act in pursuit of [one’] own goals."100 By such conception, he focuses more on satisfaction of the individual as previously used by Bentham in utilitarianism. Although, quite apt, such definition is faulty as it tends to widen the scope of autonomy too far. It equalizes all first order desires and can be used to take into account all types of desires- for instance, those of infants. Widening the net of autonomy to such extent is injurious to the concept of autonomy itself as some desires are not worthy of protection under a right to make personal choices. Moreover, preference autonomy cannot provide any guidance as to when can paternalism be considered as legitimate. In my opinion, an adequate definition of Autonomy has to be sensitive about such legitimacy. |
Although preference autonomy fails to provide an adequate definition of autonomy, it lays down a strong basis for it. I propose that the too much extensive definition of autonomy can be curtailed by providing additional criterion. The first additional requirement is control over oneself. The second criterion is the ability to take care of of oneself. Both these criteria cumulatively depict an ability of the individual to pursue his own subjective good. I refer to good in the sense of in line with the individual’s Morality and values and also in the sense of Materialistic good. A conflict between these two concepts has to be determined by the individual by assessing how much relative weight is accorded to these concepts by the Individual. These requirements vary in proportion among people. They are to be learned and not something to be born with. Such learning involves both internal cognitive process of the individual as well as support by external factors such as society and government. |
Inclusion of such additional requirements removes the loopholes of both Kantian autonomy and Preference Autonomy. The former fails to address the subjective nature of rationality which is resolved in the additional requirements. Moreover, one of the maj or critic of Kantianism is that it fails to take into account even some classes of humans into the sphere of right holders, for instance persons with cognitive disabilities. However, the additional requirements are sufficiently wide enough to involve persons with cognitive disabilities as they are often able to recognize there subjective good and act accordingly. It also removes the loopholes of preference autonomy as by recognizing the learning process through outside interference, it provides an effective tool to draw the line between autonomy and Paternalism. Additionally, the adoption of preference autonomy consequently gives rise to a question- How can we protect oneself from first order desires that are harmful to oneself? As the conception of subjective good is embedded in the additional requirements, it would consequently refuse the first-order desires which are contrary to the good of the agent. |
Whales and modern understanding of autonomy |
In a study conducted on dwarf minke whales- regarded as an undescribed sub-species of the northern minke whale in the Great Barrier Reef in Australia, it was observed that known adult females return on an annual basis to within meters of where they were previously seen. Known males have also been regularly seen together in a style which is similar to the ussion-fusion society of some dolphins. Overall, animals are reported to be remarkably inquisitive and sociable, and a range of repeated behaviors have been identified for them: bubble streaming and blasting; rolling over in the water, white belly up; jaw gapping and jaw clapping.101 Such Group living was also seen in false killer whales. Connor noted: |
“During the summer of 1977, 30 false killer whales (Pseudorca crassidens), uoated in the shallows of the dry Tortugas for 3 days... A large male in the centre of the group lay on his side, bleedingfrom his right ear. When a shark swam by, the whales uailed their tails. Individuals became agitated when people separated the whales to return them to deeper water but became calm once back in physical contact with other whales. Despite the risk of stranding and growing blisters from exposure to the sun, the group stayed together and did not leave until the male died on the third day ”102 |
Such studies illustrate the remarkably strong dependence of whales on group living. Some groups of whales have been identified as “most stable groups known among mammals.”103 Group living clearly demonstrates the presence of capacity in whales to take care of themselves by staying in a group in order to get more protection from any predators and also it illustrates their control of themselves. The latter can also be illustrated by capacity of self awareness present among whales as described before. The group living, particularly the second incident points towards ability of whales to pursue their goals. It is also reflected in their defence mechanism against any predators. Slow swimming belugas use sea ice as a camouflage to evade their predators whereas grey whales who had earned the nickname Devilfish during whaling times tend to destroy the vessels that attacked the whale or its calves or any of the its whales group member. When Pygmy sperm whales detect a predator, they defend themselves by releasing fecal material into the water and swirling around with their fins. The whales are undoubtedly banking on the assumption that cloud of feces will put off any predator’s appetite. In addition, in 1997, a group of scientists reported a unique defense mechanism of 9 sperm whales. These whales being attacked by a pod of killer whales fought back by arranging in a circular formation, with their heads pointed inwards and by using their tail fins to swipe at the predator. It clearly shows a goal in the mind of whales of survival and the action of circular formation in pursuance of such survival.104 As the whales satisfy the essential conditions of autonomy, they are entitled to personhood in Kantian conception. |
Top HUMAN COMMUNITY MEMBERSHIP The law is a derivative superstructure reflecting an underlying base of reality of Human community. As the concept of law itself is based on the conception of a mirror of Human community itself, it is imperative that Legal rights must also be construed in connection with The Human community. |
Reference to Human community suggests two essential requirements. First, Being a Human. However, this concept ultimately reduces itself to conception of legal rights only around the Species Homo Sapiens, a problem which has been previously resolved in part B. |
Secondly, it refers to the perception of a community. This requirement is not concerned with specific capacities which constitute personhood but speaks to acquiring the status of personhood through social interaction and recognition with other persons in a community. The ubuntu Philosophy has aptly described this concept as “A person becomes a person through other people."105 |
Membership in such community which entitles a “thing” to personhood is linked with having capabilities more than intelligence or sentience but less than bearing social duties and responsibilities. These capabilities might be biological or psychological. |
Psychological capabilities involve emotions, rationality and autonomy. As illustrated before, whales possess such traits. Biological traits such as possessing a central nervous system are synonymous with the species membership conception which has been dealt with in Part B. Therefore, it can be stated that whales satisfy Human community standard and are entitled to the recognition as persons. |
Top SIGNIFICANCE OF ARGUMENT The arguments advocating for right to life of whales begs an important question- why is the recognition of right to life of whales is of importance in present times? The answer lies in the rapidly changing International attitude towards whaling |
The conflict of conservationist (conservation of whales for ultimate exploitation by whaling industry) and preservationist (the whale as a beautiful object which should not be killed for any purpose) led to imposition of complete moratorium on commercial whaling.106 An important factor behind imposition of such moratorium is the Such Moratorium was imposed due to increase in Non-whaling nations107 in International Whaling commission (IWC).108 Such Moratorium was imposed in consonance with object of IWC given in preamble of International Convention For Regulation Of Whaling (ICRW)109 which stated “to provide for the proper conservation of whale stocks and thus make possible the orderly development of the whaling industry.” The Phrasing of this recital underlines the extent to which the profitability of the whaling industry had been relegated in importance: Henceforth, Preservation of whaling stock has to be given top priority for the secondary objective of enabling the whaling industry to develop in an orderly fashion. However, The major whaling nations such as japan have persistently argued against such ban for the promotion of their economic interests. |
Despite the opposition of certain whaling nations, the Moratorium on commercial whaling is still operative today. However, such Moratorium, though an important step for preserving whales, is a weak protective measure. The Moratorium was accepted on the basis that it is temporary and subject to scientific review from time to time. The end to the moratorium is inherent in the imposition of the moratorium itself. It was further clarified in the global commons recommendation of World Conservation Strategy, an organization commissioned by the United Nations Environment Programme.110 The Moratorium until now is operative only on the basis of Favorable political attitude to such ban. |
It was hoped by Anthony D’Amato and Sudhir K. Chopra that such Favorable political attitude will eventually lead to An entitlement stage where the International community as a whole shall recognize the right to life of whales.111However, recent developments in international community suggest that such Favorable political attitude may change. First, there is an economic incentive in favour of whaling. Recent Economic turmoil caused due to great influx of refugees might become an incentive for nations who were whaling before the imposition of moratorium to start whaling again. Though whaling is not a lucrative industry as opposed to Automobile and the like, it has generated substantial revenue for the nations currently whaling. According to the most recent estimates, the sale of whale meat creates a 61 million dollar profit for the Japanese government every year.112 In addition, whale meat has found its way in other food items also. In 2005, a prominent whaling company in Norway named Karsten Ellingson launched a new product called, “Lofotburger.” This burger was made of 50% pork and 50% whale meat. 113 |
Second, North Atlantic Marine Mammal Commission (NAMMCO) permits Commercial Whaling. It is a separate organization which emphasizes to develop and follow a rational approach to marine mammal management, Conservation and study as stated in its preamble and the existence of which in itself threatens the authority of IWC. NAMMCO has again started to gain attention in the international community as its Council meetings have evidenced high degree of attendance.114 |
Third, change in attitude was seen in the response to Japan’s proposal. In continuation of its opposition to the Moratorium, Japan introduced a proposal titled “The Way Forward of the IWC” in the 67th IWC meeting of 2018 convened at brazil 115 for resumption of commercial whaling. Although Japan’s proposal was rejected, it evidenced the substantial refusal to continue the moratorium as 27 countries voted in favour of Japan’s proposal to resume commercial whaling.116 As a response to such refusal, Japan has announced that it will resume commercial whaling from July 2019 and will withdraw from IWC with effect from June 29, 2019.117 Although the decision has attracted severe criticism from various nations118, Japan has remained steadfast in its decision and it appears that it actually will resume commercial hunting of whales. |
In light of such factors, It is quite probable that commercial whaling might resume in a few years. However, such move will be catastrophic for the existence of whales. Such Majestic creature, though discussed by the scientific and international community frequently, has not been counted properly. IWC itself acknowledges that it has not been able to estimate the abundance of population of whales with scientific certainty.119 But there is a consensus that most of whales species are Highly endangered. Convention on the international trade in endangered species of wild flora and fauna has included 15 species of whales120 in appendix I121 and the IUCN red list also has recognized the status of various species of whales as Endangered.122 |
In the light of such precarious condition of whales, Recognition of right to life of whales and thereby protection of whales from whaling which would prevent their extinction has to be given immense importance in present times. |
Top CONCLUSION J. M. Coetzee imagines a professional philosopher in “The lives of animals” who states: “It is licit to kill animals because their lives are not as important to them as ours are to us.” In such manner, The philosopher legitimizes killing of animals on the basis of his own perception of Importance. Human beings tend to evaluate everything in accordance with importance attached to it through their perception. Vedic scholars123 characterized this problem as “Yatha Drishti, Tatha Srishti” i.e. your vision determines the world. In Kant’s opinion, the real world or noumenal world is always supplemented by the phenomenal world i.e. the world which we perceive through our senses. The constant observation of the world through human lenses has weakened the ability of human beings to reason and led to “Humanization” of earth. I do not mean to say Humanization in the context of occupation but in the context of our perception. For Instance, whenever we say “world population", it indicates population of All the human beings rather than population of all the living things. Whenever we hear “World News", it means news of Humans. Such Humanization has led Human beings to place Non-Humans on a lower pedestal than them. But why should the Human lens be used to evaluate the value of life of Non-Humans, particularly in case of whales who are sentient, intelligent, rational, emotional and social beings? One might argue that the Human beings possess a Normative plan for their life, a trajectory which they want to achieve. On the other hand, whales, though majestic creatures, are slaves of instinct and cycles or seasons. However, such view is fallacious as First, it must be understood that lives of many human beings have now been reduced to certain cycles. They wake up, they eat, they work from 9am to 5pm, they sleep and eventually they die. Such cycle is not very different from that of a whale. Second, possessing a normative plan for life makes the lives of Human beings different from whales but not superior. A Human being who does not make such a plan will definitely be considered inferior by us. But such inferiority is only based upon Human perception and is correct only because the subject of inferiority is a human being. But, why do whales be judged by such Human standards? Even if they do not make a plan, will something be missing from their life? For e.g. A, a Human being loves poetry and thus, he makes plans to attend poetry. On the other hand, a pig does not attend poetry. Is he missing something? Definitely not. Because, it is not relevant to him. Therefore, it is evident that Rights and right holders must not be judged from a Human perception focusing on Differences. Rather, they must be judged, as Tom Regan suggests, from the perspective of Similarities. Whales, just like Human beings, believe and feel things, want and prefer things, recall and expect things. And all such similarities point towards expanding the circle of right Holders to whales by the Tool of “Perception Expansion. ” It is the need of the hour that we remove our human bias through such expansion and understand what Isha Upanishad124 expressed centuries ago: |
‘No creature is superior to any other. Let no species encroach over the rights and privileges of other species.’125 |
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