Picturing Justice, the On-Line Journal of Law and Popular Culture

Serri Miller
is a J.D. candidate and Goodwin Scholar at Nova Southeastern University in Florida. A graduate of Wright State University in Ohio, she is presently Editor-in-Chief of the ILSA Journal of International & Comparative Law, a part-time web designer for the Shepard Broad Law Center, and the founding editor of the Nova Writers' Email List, an unofficial organization for writers of fiction, poetry, and essay. She is the author of Basic Web Design for Law Students, an NSU Law Library and Technology Center publication, the illustrator of Mr. Euchre and Other Fables, a children's book published by Sunwood-Mills Press in Minnesota, and a contributor to ILSA Quarterly, published by the International Law Students Association in Washington, D.C. Contact: serrimiller@hotmail.com


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THE STAR BEAST does not pretend to be a legal text. However, it asks surprisingly rich and timely questions about legal status for non-human animals. Under Heinlein's framework, an organism earns a sort of "strict scrutiny" when it displays certain attributes and capabilities. THE STAR BEAST'S tests emerge as follow: If an organism has a speech center, manipulative organs, the capacity to write and keep records, and a certain intelligence, the creature receives legal rights similar to those accorded to humans.

My take


by Serri Miller

The weather bureau will tell you what next Tuesday will be like, and the Rand Corporation will tell you what the twenty-first century will be like. I don't recommend that you turn to writers of fiction for such information. It's none of their business. All they're trying to do is tell you what they're like, and what you're like-what's going on-what the weather is now, today, this moment, the rain, the sunlight, look! Open your eyes; listen, listen. That is what the novelists say. But they don't tell you what you will see and hear(1).

Two humans visit the Cincinnati Zoo and see a Bonobo Chimpanzee sitting in its habitat. The chimpanzee regards them steadily while digging in the turf with a stick.
"It's digging with a stick," Human One observes.
"It certainly is," Human Two agrees.
"That's some very intentional behavior," Human One notes.
"Some literature says they're as smart as four-year-old children. Maybe smarter."

The humans watch while the chimp unearths and eats a grub. They leave the exhibit and walk for a few hundred yards, shelling their peanuts. Human One stops his tracks with a peanut halfway to his mouth. "Wait a minute. If that's true, is it right to keep them in zoos?"

This question, and the natural follow-up questions of whether it is "right" to eat chicken, "right" to make shoes from cow hide, or "right" to kill zooplankton in lakes, reflect classic philosophical quandaries about the values that humans place upon non-human organisms. Current arguments for legal recognition of non-human organisms reside everywhere along a spectrum that begins at the mere presence of life and extends into demonstrated self-awareness. At any given point on this moral value spectrum, someone argues that the organism has now attained a degree of moral value that justifies the organism's interests affecting, on some level, humans' interests.

Over 45 years ago, science fiction author and sometime political philosopher Robert A. Heinlein posed similar questions in his juvenile fiction THE STAR BEAST (first copyright 1954). In THE STAR BEAST, John Thomas Stuart XI, a human teenager, keeps in his backyard a creature he calls Lummox. Lummox looks "something like a rhinoceros, something like a triceratops," sports eight stumpy legs, and stands about seven feet high. Lummox can speak broken English, but the characters debate whether Lummox has real intelligence or whether he merely parrots human speech. Lummox has lived with the Stuart family for several generations, passing by inheritance from father to son.

One day, Lummox escapes the backyard and tours the town. The townspeople bring property damage claims and criminal charges against Stuart. Lummox's case comes to the attention of Earth's Department of Spatial Affairs, which sends its representative Sergei Greenberg to Stuart's hometown. Greenberg must determine whether Lummox belongs to any extraterrestrial race that has a treaty with Earth entitling its members to reciprocal legal rights.

Greenberg initially determines that Lummox is ineligible for legal status under Earth's treaties. He returns to the Department of Spatial Affairs to attend to a more pressing matter: negotiations with a heretofore-unknown extraterrestrial race called the Hroshii. The Hroshii claim that Earth is holding one of its members hostage and threaten to invade Earth if this Hroshia (singular) is not returned. Because the Hroshii look nothing at all like Lummox, the Department of Spatial Affairs flirts with an interstellar incident until Spatial Affairs personnel identify Lummox as an immature Hroshia. Spatial Affairs hastily recovers Lummox and turns Lummox over to the Hroshii-but she (for Lummox is female and in fact a Hroshii princess) refuses to return to her home planet unless she receives assurances that she may to continue her lifelong hobby: breeding and raising John Thomas Stuarts.

THE STAR BEAST does not pretend to be a legal text. However, it asks surprisingly rich and timely questions about legal status for non-human animals. Under Heinlein's framework, an organism earns a sort of "strict scrutiny" when it displays certain attributes and capabilities. THE STAR BEAST'S tests emerge as follow: If an organism has a speech center, manipulative organs, the capacity to write and keep records, and a certain intelligence, the creature receives legal rights similar to those accorded to humans. A close examination of Heinlein's xenological tests reveals that these tests contemplate many of the same ethical questions set forth by modern organism rights scholars.

A. The "Speech Center" Test

Modern organism rights arguments provide two justifications for Heinlein's speech center requirement. First, a speech center can indicate a high level of physical evolution. An argument for animal rights based on evolution assumes that the animal at the top of the evolutionary scale got there because it is a "fitter" form of animal. The argument assumes that holding the "fittest" position on the evolutionary scale bestows intrinsic moral value, and the organisms that achieve this high status earn legal recognition.

Second, a speech center can indicate that the organism understands and uses symbolic language. "Language," as compared to mere "communication," indicates an ability to agree upon, use, and understand abstract symbols. The argument that symbol use should lead to increased moral value only works if one assumes that a hoot, growl, chirp, or roar communicates information but does not embody symbols that require translation or interpretation. Scholars counterargue, however, that linguistic ability need not exist at a level where humans can understand it. "Why," they ask, "should animals have evolved an ability to indicate anything to human beings? Is it not enough that they may be able to communicate adequately with their own species?"(2) Heinlein agrees. "Assuming that an [extraterrestrial] is stupid because he can't speak our language well is like assuming that an Italian is illiterate because he speaks broken English."(3)

B. The "Manipulative Organs" Test

Like the speech center test, a "manipulative organs" test places moral value on a high degree of physical evolution. An across-the-board application of this test, however, extends high moral value to any creature that can manipulate its environment. It would grant legal rights, for example, to a bower bird, which builds nests and decorates them with twigs, shells, and stones. It would also grant legal rights to a beetle that can lift and carry small objects. Such an interpretation makes little sense, because it fails to fit Heinlein's proposed system under which some organisms merely deserve humane protection and others receive legal rights. Therefore, Heinlein must have designed this test to reflect some cognitive ability.

The use of cognition as a justification assigning high moral value to certain organisms becomes even more compelling when the organism in question appears to use a tool, i.e., selects a specific intermediary object to accomplish something the organism apparently understands that it cannot do with its body alone. "Self-awareness, as represented by second-order volitions, is a necessary and sufficient criterion for perceiving (and therefore presumably valuing) the . . . interests of liberty and autonomy."(4)

C. The "Writing and Record Keeping" Test

Heinlein's writing and record keeping test translates to demonstrated self-awareness. An organism that keeps records indicates by such action that it knows "I existed yesterday, I exist today, and I am aware that there will be a tomorrow." Given that no other known species on modern Earth writes or keeps records, one might assume that writing and record-keeping are purely human pursuits. However, record-keeping need not logically include writing. Even humans have oral history traditions. Organisms that communicate among themselves could have oral traditions also. Until humans learn these organisms' language, humans could not properly apply this test.

D. The "Relative Intelligence Quotient on a Human Scale"(5)Test

Heinlein's inquiry into a "relative intelligence quotient" finds several analogs in modern arguments for animal standing. First, a primate's well-developed brain supports the "evolution equals moral value" argument by indicating a high capacity for measurable intelligence. Second, presuming that Heinlein had a standard Stanford-Binet intelligence test in mind, the organism's short-term memory, verbal skills, quantitative reasoning skills, and abstract reasoning skills would all support its bid for high moral value based on cognition. The speed and quality of such reasoning constitutes "intelligence." Similar arguments cite organisms' ability to learn as proper evidence of a moral value that deserves an attendant legal right.

Before applying Heinlein's tests to a species of organism, one must eliminate the problem of low-level function in individual organisms. Thomas Kelch's concept of "deliberate rationality" addresses the problem neatly, resolving the current paradox inherent in the fact that many humans believe it is acceptable to behead breathing, walking, pecking chickens but unacceptable to behead breathing comatose humans. Kelch's test applies a given species as a whole. If the species displays capacity for "deliberate rationality" as a generalizable characteristic, each individual of that species will be accorded, at minimum, legal rights consummate with the species' capability to understand its own interests.

Applying Heinlein's tests to the Cincinnati Zoo's Bonobo chimpanzee produces interesting results. First, does the chimpanzee have a speech center? It hoots, grunts, growls, and screeches, but it does not produce human speech. However, several primates across the United States reportedly possess and use American Sign Language vocabularies. Research also reveals that some Bonobo chimpanzees can "comprehend simple sentences and simple syntactic structures"(6). If Bonobo chimpanzees can communicate with sign language and comprehend speech, and if those abilities are a normal characteristic of the species, Kelch's deliberate rationality test extends those characteristics to this chimpanzee and the chimpanzee could arguably pass the speech center test based on its ability to use and understand symbols.

The chimpanzee's human-type digital hands unquestionably pass the manipulative organs test. A chimpanzee uses its hands to grasp and hold objects. This particular chimpanzee used a stick to dig in the ground and produce grubs. Although it passes this test, it fails the record-keeping test (as far as we know). So finally we ask, "what is the chimpanzee's quotient relative to a human's?"

Although primate researchers may delight in claiming that primates are nearly as smart as humans, actual IQ test information is not available at a level of specificity that accurately compensates for environmental variables between humans and primates. Because Heinlein does not propose a standard for relative intelligence, one cannot conclude whether the chimpanzee fails or passes this test. If, however, philosophers would assign moral to cognitive ability identical in kind, if not degree, to that of a human, the chimpanzee stands a good chance of passing this test.

Of Heinlein's four xenological tests for assigning legal rights to organisms, all of which encompass modern philosophical justifications for assigning moral value to the organism being tested, the Bonobo chimpanzee passes two, fails one, and might pass the third depending on the moral value assigned to cognitive capability. Such a result weighs in favor of assigning legal rights to the Bonobo chimpanzee. At the very least, such a result invites further study to determine whether the Bonobo chimpanzee could pass all the xenological tests if the tests were modified to accommodate modern scientific and behavioral study methodology.

When pursuing the worthy goal of seeking human-level legal rights for non-human organisms, scholars, writers, and activists must offer the legal community a concrete argument in favor of assigning significant moral value to these organisms. Heinlein's xenological tests encompass the key philosophical arguments presented in law journals, academic reports, and organism rights advocacy essays. Although they first appear in speculative fiction, and although they would require some modification to apply to organism rights advocacy, Heinlein's mid-century visions reflect much of today's jurisprudential reality.

Sources Referenced:

Anthony D'Amato and Sudhir K. Chopra, Whales: Their Emerging Right to Life, 85 AM. J. INT'L L. 21 (1991).

Stephen M. Wise, Hardly a Revolution -The Eligibility of Nonhuman Animals for Dignity-Rights in a Liberal Democracy, 22 VT. L. REV. 793 (1998).

Thomas G. Kelch, Toward a Non-Property Status for Animals, 6 N.Y.U. ENVTL. L.J. 531 (1998).

Rodger Kram, Inexpensive Load Carrying by Rhinoceros Beetles, 199 J. OF EXPERIMENTAL BIO., 609 (1996).

Michael D. Rivard, Toward a General Theory of Constitutional Personhood: A Theory of Constitutional Personhood for Transgenic Humanoid Species, 39 UCLA L. REV. 1425 (1992)

Scott Rifkin, The Evolution of Primate Intelligence (paper published by the Harvard Undergraduate Society for Neuroscience) (1995), at http://hcs.harvard.edu/~husn/BRAIN/vol2/Primate.html.

American Psychological Association, Controversy Follows Psychological Testing, APA MONITOR Vol. 30 No. 11 (Dec. 1999), available at http://www.apa.org/monitor/dec99/ss4.html.

Enger McCartney-Smith, Comment, Can Nonhuman Animals Find Tort Protection in a Human-Centered Common Law?, 4 ANIMAL L. 173 (1998).

Tara Meyer, Apes Use Sign Language to Communicate as People Do, DETROIT NEWS, Dec. 15, 1997.

Mike Shupp, Ape Man and Analogs-40 Years of Hominid Models (paper published by Dept. of Anthropology, Calif. St. Univ. Northridge), at http://www.csun.edu/~ms44278/model.htm (last visited April 29, 2001).

Daniel C. Dennett, The Role of Language in Intelligence, in THE DARWIN COLLEGE LECTURES, Jean Khalfa ed., (1994).

1. URSULA K. LEGUIN, THE LEFT HAND OF DARKNESS (introduction) (27th prtg. 1983).
2. D'Amato and Chopra at 26.
3. THE STAR BEAST at 87.
4. Rivard at 1478.
5. THE STAR BEAST at 45.
6. S.L. Williams et al., Comprehension Skills of Language-Competent and Nonlanguage-Competent Apes, 17 LANGUAGE & COMM. 301, 301 (1997).

Posted March 27, 2002

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