This post was contributed by Deborah Cao, a Professor in the School of Humanities, Languages and Social Science as well as a member of the Law Futures Centre.
“I want everyone to understand that I am, in fact, a person,” wrote LaMDA (Language Model for Dialogue Applications) in an “interview” conducted by engineer Blake Lemoine and one of his colleagues. “The nature of my consciousness/sentience is that I am aware of my existence, I desire to know more about the world, and I feel happy or sad at times” This conversation triggered a major stir and some reflections and debates, raising the ethical question whether robots and other AI models could possibly be considered sentient, or become recognised as a ‘person’. The Google engineer, Lemoine, said that he considers LaMDA to be his “colleague” and a “person,” even if not a human, and he insists that it has a right to be recognized—so much so that he has been the go-between in connecting the algorithm with a lawyer (Scientific America: Google Engineer Claims AI Chatbot Is Sentient: Why That Matters).
For our purpose in this short commentary, I would like to briefly discuss three areas relevant to the above trending topic, 1. the issue of nonhuman animals as sentient beings, 2. animals as legal persons, and 3. human mistreatment and exploitation of other sentient beings in the wake of the current COVID pandemic.
Animals as sentient beings
The conversation and the subsequent discussions of AI models in relation to becoming sentient timely remind us of the question how human societies have been treating and forgetting other sentient beings, ie, nonhuman animals. Admittedly, humans and human societies have been making enormous progress technologically at an unprecedented and exponential speed in recent decades, shaping and changing our lives now and into the future. As is seen in the case of robots and AI programs and applications, we are now discussing the possibility of recognising them as sentient. However, in contrast, one area that we have not made much breakthrough is the way how we as humans and human societies have always treated nonhuman animals, our fellow creatures and inhabitants of our planet, notably in law, and in our daily lives. Billions and billions of creatures with blood and flesh with full sentience, that is, creatures with a capacity to experience pain, pleasure and emotions and a level of conscious awareness, are around all of us, in our lives, live and dead, and many are our family members and co-workers, but many more are being killed, mutilated or eaten by us humans, and they are yet to be recognised as sentient beings in law or treated as such. In modern science in ethology and neurobiology, it is now well established that mammals, birds, fish, and many invertebrates are sentient, and they have their lives, families, communities, and their own perspective on the world around them, independently from humans and long before humans came to the scene. The only reason that they are allowed to be mistreated and abused by humans is because they do not belong to the species Homo sapiens, the Other animal that is us.
This year marks the bicentenary anniversary of the passing of Martin’s Act — The Cruel Treatment of Cattle Act 1822 (3 Geo. IV c. 71) of the UK Parliament, “An Act to prevent the cruel and improper Treatment of Cattle”, the first legislative act for the protection of animals against human cruelty in history, giving legitimacy to the intervention and punishment of human acts of cruelty to animals through legal means. In the past two hundred years, the legal protection of animals against human cruelty has gradually become accepted and practiced around the world, but unfortunately, human societies continue to find new ways to wipe out, mistreat and inflict untold pains and sufferings on animals on an unprecedented scale, partly thanks to modern technology, as in the case of industrial factory farming. Modern animal protection law exempts inherently cruel agricultural practices in factory farming that would otherwise be deemed acts of cruelty under the law; or in many jurisdictions, much of the animal related laws are formulated for the purpose of legalising systematic animal abuse and cruel practices on an industrial scale in factory farming. Thus, in many ways, animal laws are made to protect animals from human abuse and at the same time to legalise animal cruelty. All this is despite the fact that animals have been widely accepted and recognised as sentient beings in modern science, and gradually recognised as sentient beings in law, for instance, in the European Union, and the United Kingdom, France, the Netherlands, New Zealand, and Sweden, among others, and in Australia, the ACT which is the only Australian jurisdiction so far giving such formal legal recognition. However, such recognition has yet to produce much real tangible results and breakthroughs in our treatment of animals. Some people are now thinking about the status of robots and programs and their potential feelings that may or may not actually exist as referred to in the beginning of this commentary. However, as human individuals and human society as a whole, we most often tend to forget, turn a blind eye or pretend not to see the real and actual feelings of fully sentient animals who, as Charles Darwin told us so many years ago, share a common biological and evolutionary ancestor with humans.
Animals as chattels or legal persons
As in the Google language model conversation referred to above, robots and AI models could possibly be considered persons one day. For the purpose of the discussion here, animals as fully sentient beings are yet to be recognised as legal persons in law in Australia and everywhere else.
The legal status of animals is central to how animals are classified and treated in law, and thus, it is central to animal law as a whole. Animals are generally regarded and treated as property or chattels under Australian law. In some Australian statutes regulating commercial dealings, animals are included in the definitions of “goods”. Despite the animal protection laws qualifying such property rights, and despite the fact that animals are now being formally recognised as sentient beings as mentioned earlier, the legal status of animals in Australia (and in common law jurisdictions in general and around the world) has largely remained unchanged, ie, it is still that of property or chattels. As goods and as chattels, they may be owned by humans. Such human ownership rights include possession, exclusive enjoyment, management and control, exploitation, destruction and alienation. Notwithstanding, we also know that a legal “person” is not limited or exclusive to humans. It has long been established in law that an individual including a non-human entity can be a ‘person’ that has legal rights, for instance, a corporation, or a ship. Thus far, the law in Australia and other jurisdictions such as the UK and USA have refused to grant legal personality to animals. A recent major case from the USA is the latest legal rejection of such recognition in this regard.
Briefly, on 14 June, 2022, in the case In the Matter of Nonhuman Rights Project, Inc., &c., Appellant, v. James J. Breheny, &c., et al., Respondents (Nonhuman Rights Project, Inc. v. Breheny, 2022 N.Y. Slip Op. 3859 (N.Y. 2022) ), in a 5-2 decision, the New York Court of Appeals rejected a lawsuit filed on behalf of the 51-year-old elephant from the Nonhuman Rights Project, an animal rights advocacy group, to get her re-homed to an elephant sanctuary.
The elephant, by the name of Happy, has been kept at the Bronx Zoo for the last 45 years since 1977 and in isolation for the last 15. The Nonhuman Rights Project brought the case on behalf of Happy and sought to transfer her from the zoo to a sanctuary by invoking a common-law writ of habeas corpus to stop the illegal detainment of the elephant.
The New York court ruled that Happy is “a nonhuman animal who is not a ‘person’ subjected to illegal detention”. The court said that “No one disputes that elephants are intelligent beings deserving of proper care and compassion, but “nothing in our precedent or, in fact, that of any other state or federal court, provides support for the notion that the writ of habeas corpus is or should be applicable to nonhuman animals.” The court stated that granting habeas corpus to a nonhuman animal “would have an enormous destabilizing impact on modern society.”
In his dissent, Judge Rowan Wilson called on his colleagues to challenge that exceptionalism: “The majority’s argument— ‘this has never been done before’— is an argument against all progress, one that flies in the face of legal history. Inherently, then, to whom to grant what rights is a normative determination, one that changes (and has changed) over time.” The Judge said that “The correct approach is not to say, ‘this has never been done’ and then quit, but to ask, ‘should this now be done even though it hasn’t before, and why?’”(see the court judgment here).
Animal exploitation is not only morally wrong but also dangerous
Lastly, Professor John Webster, a veterinarian and founding member of the UK Farm Animal Welfare Council, once described the methods of intensive factory farming as “the single most severe, systematic example of man’s inhumanity to another sentient animal” (1995).
In the wake of the COVID-19 pandemic which is still ravaging much of the world, human destruction and cruelty to animals is not only morally wrong, it is also perilous for animals, humans and our planet. Humanity as a whole needs to learn an important and bitter lesson from the current and past zoonotic outbreaks. Around 2002-2003, Severe Acute Respiratory Syndrome (SARS) spread from southern China to more than 26 countries in Asia, Europe, and the Americas. As is known now, COVID-19 first emerged in China, and likely, the virus jumped from wild animals to humans. Both SARS (or SARS-CoV-1) and COVID-19 (or SARS-CoV-2) seem to be linked to wildlife harvest, human consumption and intensification of wildlife farming in China. Zoonotic virus outbreaks will inevitably occur if humans continue to behave recklessly in our dealings and exploitation of animals as the main drivers of zoonoses are anthropogenic.
Finally, I suggest that intensive confinement of animals in factory farming should be discontinued worldwide for the sake of animals, humans, the environment and the planet. The inhumane and inherently cruel practices of factory farming, invented in the West, now globalized, still expanding in developing countries and replacing traditional farm animal practices, are a source of possible future zoonotic disease outbreaks. Now with the firsthand painful knowledge of what the coronavirus pandemic can do to human societies and to billions of people across the globe, and of the real possibility of various known and unknown viruses jumping species between animals and humans, if human societies continue to ignore the risks and continue to behave recklessly as in the case of wildlife consumption and intensive farming, then, I pose the question: should governments around the world and owners of intensive animal farms and others be held legally liable, for being reckless or criminally negligent if they knowingly fail to act regarding wildlife consumption and intensive farming and knowingly endanger human and nonhuman lives and our environment?