April 26, 2014

"In his animal-law classes, Wise told me, he has his students consider the actual case of a 4-month-old anencephalic baby..."

"... that is, a child born without a complete brain. Her brain stem allows her to breathe and digest, but she has no consciousness or sentience. No feelings or awareness whatsoever. He asks the class why we can’t do anything we want with such a child, even eat her."
“We’re all instantly repelled by that, of course,” Wise said. When he asked his students that question, they “get all tied up in knots and say things like ‘because she has a soul’ or ‘all life is sacred.’ I say: ‘I’m sorry, we’re not talking about any characteristics here. It’s that she has the form of a human being.’ Now I’m not saying that a court or legislature can’t say that just having a human form is in and of itself a sufficient condition for rights. I’m simply saying that it’s irrational. . . . Why is a human individual with no cognitive abilities whatsoever a legal person with rights, while cognitively complex beings such as Tommy [the chimpanzee], or a dolphin, or an orca are things with no rights at all?”
The link goes to a NYT Magazine article by Charles Siebert titled "Should a Chimp Be Able to Sue Its Owner?" I'm sure the part I've excerpted will cause many readers to want to talk about abortion.  The line — from law professor Steven Wise — "I’m not saying that a court or legislature can’t say that just having a human form is in and of itself a sufficient condition for rights" — seems to raise the topic without saying the word. It's a strangely twisted sentence, especially coming from a law professor who is highlighting the demands he makes on his students to think and speak precisely and clearly.

"I’m not saying that a court or legislature can’t say that just having a human form is in and of itself a sufficient condition for rights." There are 2 obvious negatives in that sentence and a few more fillips of semi-negation ("just," "in and of itself," and "sufficient"). The repetition of "to say" is also strange: I'm not saying that other people can't say. That's not the same as: I'm saying that other people can say. What is he saying?

He's almost not saying anything, but to almost not say anything in such a complicated way suggests an effort at avoiding saying something. What he's saying is not-saying. He's notsaying — and I intend to coin the verb notsaying — something about abortion. I suspect this is because he knows the abortion puzzle-piece fits here in the discourse and he needs to put up the "Here Be Dragons" sign.



For the record, the word "abortion" never appears in the article. And I would like to stress, as I have before, that opinions about abortion often rely on the unseen quality of what is destroyed. Wise's classroom discussion triggers the intense moral intuition the students have about the visible form of a baby, and I want to tie that to the strangely self-indulgent numbing of that intuition that occurs when the same form is unseen because it is unborn.

43 comments:

Paco Wové said...

"Irrational" and "arbitrary" are two different things. Arbitrary rules are not ipso facto irrational.

Oso Negro said...

Count on the legal class to start us down the slippery slope to mainstreaming cannibalism. Hey, why not, it's just another ancient cultural practice that may be irrelevant and too constraining for contemporary sensibilities.

Bob Boyd said...

Its not irrational because where do you draw the line? The Nazis were drawing the line at a much higher cognitive level.
And we don't have perfect knowledge of what the inner world of any individual is like. It is rational to error on the side of giving all humans rights and there is not much down side to doing so. There is a much greater down side risk to trying to draw a line somewhere that may prove to be in error or will almost certainly be redrawn at some point.
Also, the animals mentioned do have some legal and political protections.

Renee said...

There is a recent show on NOVA "Inside Animal Minds" on the intelligence of animals. A lot of what we think is intelligence is more of mimicking behaviors that they expect from us. They really are not that smart.


The child has to be something. It's human being. What else would it be?

The professor is placing characteristics on its form as well describing its cognitive ability.

Paco Wové said...

"where do you draw the line?"

"Offspring of human parents" seems like a pretty bright line to me.

Paco Wové said...

"Irrational", for instance, would be the CDC's reaction to e-cigarettes (link courtesy commenter Fernandinande).

EDH said...

"Why is a human individual with no cognitive abilities whatsoever a legal person with rights, while cognitively complex beings such as Tommy [the chimpanzee], or a dolphin, or an orca are things with no rights at all?”

The link goes to a NYT Magazine article by Charles Siebert titled "Should a Chimp Be Able to Sue Its Owner?"


Humans have rights; animals are given legal protections by humans.

If an animal has standing to sue a human, it can sue another animal or be sued by a human (other than in rem). Otherwise, wouldn't you have myriad equal protection and due process issues?

How would that work-out in nature?

richard mcenroe said...

abortion hell, this clown is auditioning for a job on the IPABs...

Goddess of the Classroom said...

I refuse the premise that one's humanity is determined by his or her intelligence. A being with human DNA is a human.

traditionalguy said...

This man postulates that diminished brain power makes one into a non-human, not to mention into a non-animal. How very Nazi of him.

In the latest Crack Emcee wars against unconscious racism of whites, the key issue has been whether the African American skin color takes away a man's acceptance as human. The slavery culture had declared Black men were not acceptable as humans because of diminished brains.

When will we get over that old Propaganda? But declaring animals to be equal to humans is a confusing unreality thrown into the mix.


A version of the non-human declaration has always been used as a justification for mistreating African Americans, Chinese, Mexicans, Jews, or other races...they are not human like we are.

tim maguire said...

There are many bright lines that must be drawn somewhere; if it happens that the particular place where you draw the line must be arbitrary, then it is. That doesn't change the fundamental fact tnat you need a line.

When it comes to humans, which way do you want to err? Do you want to err on the side giving some non-humans human rights? Or do you err on the side of denying human rights to some humans?

In the case of abortion, we've obviously erred on the side of denying humanity to some humans. But once you can see the person, even people soft on infanticide have difficulty throwing it in the garbage (or the oven).

Bill, Republic of Texas said...

So called intellectuals are dumb as shit. That includes educated idiots who think this is interesting.

jr565 said...

Why don't we give chimps human rights? Are chimps covered under our constitution or billl of rights? There's your answer.

Anglelyne said...

Paco Wové: "Irrational" and "arbitrary" are two different things. Arbitrary rules are not ipso facto irrational.

Yeah, that "irrational" annoyed me, too. Choosing "state of cognitive development" as the primary standard of value and basis of ethical decision is no more inherently "rational" than choosing other criteria. But that sort of glib misuse of "rational" and "irrational" is indicative of how ingrained and unquestioned certain kinds of utilitarian assumptions are for (most?) people nowadays. Therefore no surprise that the students "get all tied up in knots" and are unable to articulate their objections.

TMink said...

Some dear friends of mine had a child born without a complete brain. The docs said the same things about her. She is quite visually impaired and has great difficulty walking without falling.

She graduated from college last year.

Trey

Saint Croix said...

I got so mad at this SInger acolyte that I went off on a rant, about what a monster he is. Ugh ugh ugh ugh! Anyway, I deleted that, as I delete a lot of what I say. Over 10% of my output is deleted, by me.

My emotions get the better of me, all the time. Or I'm too vulgar. Or I'm too mean. Or I'm helping people go to hell. Or I'm too stupid, the ol' stupid deletion.

Anyway, I finally calmed down enough to actually read what Althouse had to say.

He's almost not saying anything, but to almost not say anything in such a complicated way suggests an effort at avoiding saying something. What he's saying is not-saying. He's notsaying — and I intend to coin the verb notsaying — something about abortion.

Brilliant!

For the record, the word "abortion" never appears in the article. And I would like to stress, as I have before, that opinions about abortion often rely on the unseen quality of what is destroyed.

John Hart Ely talks about this in his famous law review article. Ely is pro-choice. And yet he talks about "the psychological phenomenon that keeps bombardiers sane--the fact that it is somehow easier to 'terminate' those you cannot see."

I think this is perhaps why religious people tend to be the pro-lifers. We're comfortable with the concept of the unseen. Secular people want to focus on women. We can see women. They are here, now, in front of us.

This divide between the secular and the religious, the seen and the unseen, is fundamental to our fight over abortion. Too many secular people think that because we cannot see the unborn, they do not exist. It's like religious people are just imagining them.

Sometimes secular people will try to argue that recognizing the unborn is an establishment of religion. It's a religious idea. We can't see them!

But of course to not see a baby inside the uterus does not mean she is not there. It might mean a lot of repression, denial, and avoidance on our part.

I've always approached abortion in a secular way. I am earthy to a fault. But this insight, referenced by Althouse, taken from the Nicene Creed, an insight I hear in church every Sunday now, was a key insight for me.

Althouse has inspired the focus, the title, the introduction of my book, a book I've been trying to write for 20 years. I am indebted to her. I could not have done it without her (or God, but that's another story).

cubanbob said...

EDH summed it up correctly: humans have rights and animals have protections. Any other premise leads to absurd conclusions.

If the ability to suffer confers rights then we have to confer some inherent rights to any creature that can suffer and that would encompass every form of animal life. Imagine prey suing predators. Chickens as an example are certainly capable of suffering. Indeed they also have personalities and some level of cognition. Therefore the roasted chicken I bought at Costco in principal should have the right to sue Costco along with my wife and I and our dog who ate the chicken. That chicken if left to its own devices would eat a variety of foods including insects and insects have nervous systems which makes them in turn capable of suffering. So in the blizzaro legal construct world of the animal rights people the bugs have standing to sue the chicken that ate it and in turn the chicken has the right to sue the people and animal that ate it along with the people that killed and sold it. It's has been demonstrated that plants are capable of suffering so logically it flows that plants could sue herbivores for pain and suffering.

Cognition doesn't offer much of a solution to the problem either. Insects have very small brains nevertheless ants, bees and termites are capable of some rather sophisticated cognition and communication. And engage in warfare thus inflicting suffering on other insects that are also capable of suffering and cognition. Who gets sue whom in animal warfare? Also do bees get to sue humans for depriving them of food by taking their honey? Do bees get to sue humans for not being compensated for their work in pollinating plants that are consumed by humans? Or humans suing termites for property damage? Or termites and ants get to sue humans for the suffering caused to them by exterminators?

So it's back to assigning arbitrary and indeed capricious levels of what level of suffering and cognition is the threshold for legal standing in terms of rights. Once again we are back to EDH's comment that humans have rights and with those rights the obligation to confer protections to non-human life.

damikesc said...

Given that an animal is incapable of honoring others rights, this professor is a fucking moron.

n.n said...

He's arguing for a right to terminate or eviscerate unproductive lifeforms, from conception to death. The counterargument is faith based, which people who deny their faith will be forced to reject on principle.

Human dignity is an article of faith. Most people distinguish between human and animal dignity. Some people recognize animal dignity. Some people recognize human dignity. Some people even recognize the dignity of plants and simpler forms of life.

Intrinsic value is an article of faith. Most people treat human life as a commodity, interchangeable and disposable, from conception to death. Only force is sufficient to prevent them from running amuck.

This philosophical debate goes far beyond abortion/murder, and will necessarily determine the reconciliation process which people undertake to peacefully coexist in a society of peers. In the past, this type of debate was settled with tremendous bloodletting. Hopefully, people will acknowledge their faith, adopt a suitable religion (i.e. moral philosophy), and choose a less violent path.

cubanbob said...

He's almost not saying anything, but to almost not say anything in such a complicated way suggests an effort at avoiding saying something. What he's saying is not-saying. He's notsaying — and I intend to coin the verb notsaying — something about abortion."

Althouse and St Croix pointed out the obvious sub text which is abortion. And by ignoring the unseen giving all rights to the seen and offering no protections to the unseen we are back to relative levels of suffering and cognition. The article quotes the comparison of an anencephalic baby with a chimp and positing that the chimp has a higher level of cognition than the baby. While it's true in this particularly extreme example the chimp does exhibit higher levels of cognition than the baby nevertheless the baby is stil capable of suffering and with that independent of any inherent rights the baby has due to its humanity it's still due protection from suffering. The Animal Rights movement by stressing animals have rights due to their ability to suffer have inadvertently confered the same rights ( in reality obligations) to human fetuses. Animals can suffer thus conferring them with rights which impose an obligation on humans to not cause them suffering thus treating them like humans which requires no stretch of the imagination to treat anachephalic babies and human fetuses as beings with rights and imposing on fully formed humans the obligation to not cause them suffering. While I doubt that is the point they are trying to make it is the point they are making.

rhhardin said...

People are wired to respond to cuteness, as are animal mothers, but with varying ideas of cuteness.

As to being human, you learn to be human.

Chiefly because people respond as if you're human, and gradually you take on what they respond to. Someday you'll do it yourself.

Dogs learn something of a compromise between dog and human.

The wiring isn't all there. They can't stabilize the language without a helper.

You have a soul if you have relations to others.

Compare "He has no soul."

Dogs get souls, most of them.

rhhardin said...

Arbitrary makes free.

Deirdre Mundy said...

The 'Why can't we eat her' question has an easy answer that doesn't bring rights into it at all:

Because eating other humans puts you at much higher risk for prion diseases.

I can't believe none of his students brought up the practical reasons for the ban on cannibalism.

We also don;t feed ground up cattle to cows, for the same reason.

There-- a totally non-irrational, non-religious objection to his thought experiment.

tim in vermont said...

"In my dissertation and my other early studies, I told people short stories in which a person does something disgusting or disrespectful that was perfectly harmless (for example, a family cooks and eats its dog, after the dog was killed by a car). I was trying to pit the emotion of disgust against reasoning about harm and individual rights.

I found that disgust won in nearly all groups I studied (in Brazil, India, and the United States), except for groups of politically liberal college students, particularly Americans, who overrode their disgust and said that people have a right to do whatever they want, as long as they don't hurt anyone else."

http://edge.org/conversation/moral-psychology-and-the-misunderstanding-of-religion

Smilin' Jack said...

Wise's classroom discussion triggers the intense moral intuition the students have about the visible form of a baby, and I want to tie that to the strangely self-indulgent numbing of that intuition that occurs when the same form is unseen because it is unborn.

For the first month or two a chimp embryo is indistinguishable from a human embryo...err, I mean "baby."

Char Char Binks said...

The child doesn't just have the FORM of a human, but IS human through and through. The claim to human rights, IMHO, rests on three things: Being alive, being a separate entity, and being human. The child is a live, separate, human entity, fulfilling all conditions necessary to have rights. My hair is human, but it's neither alive (past the root) nor a separate entity. If it's cut off from me, it becomes separate, and it's still human, but it's not alive, and it has no rights, although I may have rights to it. Sentience should have no bearing on rights; If I were in a deep sleep, or drugged enough, or beaten unconscious, I probably wouldn't be sentient enough to articulate a claim to human rights, but I would still have them.

ken in sc said...

We have animal hospitals set up and manned by humans. There are no human hospitals set up by animals. I will grant animals rights when they start granting humans rights. For example, when cougars and bears stop eating people.

BTW, if there are dogs in heaven, it will be because God loves us and knows we love dogs. IMHO.

Saint Croix said...

Here are photographs of elephants and sharks and other...

animals in the womb.

Amazing, I think.

Fred Drinkwater said...

Tim in Vermont quotes:
"disgust won in nearly all groups I studied (in Brazil, India, and the United States), except for groups of politically liberal college students, particularly Americans, who overrode their disgust and said that people have a right to do whatever they want, as long as they don't hurt anyone else."

I don't think that's a question of rights. It's a question of what lines should be drawn by the legal and law enforcement systems, vs. the lines that a society composed of reacting individuals can draw.
Drawing lines with the legal system result in the inevitable unintended consequences being backed by government force. Reasonably governed society should not resort to that unless truly necessary.
There's an old aphorism to the effect that you should not back a law unless you are willing to personally throw your own grandmother in prison for violating it.

Ralph Hyatt said...

" Choosing "state of cognitive development" as the primary standard of value and basis of ethical decision is no more inherently "rational" than choosing other criteria."

Exactly, it is totally arbitrary, indicative of the fact that the person choosing it considers themselves to be at a high standard of cognitive development and the epitome of humanity.

If you are a fast sprinter why not choose sprinting ability as the primary standard of value and only behave ethically towards humans and animals that are fast sprinters?

As others have noted once we determine that cognitive ability determines humanity its a pretty short step to declaring that people with IQs of 85 are less human than those with IQs of 115.

tioedong . said...

Back in 1986, I read an article of medical ethics that posited "criteria for personhood" that would negate personhood for most of my Mentally disabled patients (retarded, senile, brain damaged, autistic). I wrote a local philosopher and commented that doesn't this mean that these folks could be used for experimentation or killed for organ donation, and he said yes, logically you are right. He then added that in modern Philosophy, not only is there a question if these folks have rights, but there is a question why ANYONE has rights.
The answer, of course, is that such rights are "self evident" and "endowed by the creator".
Take god out, and you end up with a society that where experts could decide who could live.
And our elites are making us gallop to that brave new world of eugenics, where they, not "bronze age religious ideas" would be the judge of human dignity.
Of course, they put these ideas in sweety nicey words, but beware the elephant in the room: Money...

Saint Croix said...

Exactly, it is totally arbitrary, indicative of the fact that the person choosing it considers themselves to be at a high standard of cognitive development and the epitome of humanity.

Yes. And it's weird that the "smart" people don't realize that intelligence might not be the only criteria once the dehumanization project is unleashed.

We've been down this road before. How is it not familiar?

And all of this is built on Roe v. Wade. Our Ivy League intellectuals opened this door, when they claimed not to know what a human being is.

n.n said...

This brings back the recent case where a pregnant, brain-dead woman was released from life support, and the father pleaded for their baby to die with its mother, while the court granted his wish over the unalienable right of his child.

Anyway, it seems that once settled issues are never actually settled. They are merely shunted or ignored until they are resurrected with another generation.

n.n said...

Saint Croix:

Yeah, it is a clump of cells. And yet, it so much more. Or perhaps that's just a figment of our collective imaginations.

Well, until I know otherwise, I will assume that the answer is self-evident, and act accordingly. I perceive myself. I perceive others. I will grant them the same benefit of the doubt.

Wow. I think we have entered the surreal zone, and I don't think I like it.

Quaestor said...

Why don't we give chimps human rights? Are chimps covered under our constitution or bill of rights? There's your answer.

Most historians would agree that the Constitution and the Bill of Rights assume that rights are intrinsic to humanity (“endowed by their Creator” to put it deistic terms). The founding documents consist mostly of guarantees against the infringement of these inherent rights.

The silence regarding animal rights probably derives from the Enlightenment concept of animals as flesh-and-blood machines. If the Bill of Rights were drafted afresh today I suppose some nod toward animal welfare, if not outright animal rights, would be insisted upon in some quarters. The best counter-argument regarding animal rights in my opinion derives from the inability of animals to enter into agreements about the future. If science ever discovers an example of an animal that can understand and adhere to a simple contract, the the animal rights crowd might have a case.

BTW, I was taught several philosophy courses by Tom Regan, the Karl Marx of the animal rights movement. No matter what the subject at hand was... Nemachian ethics, G.E. Moore, aesthetics, whatever... ole Tom was bound to bring animal rights into the discussion. I never found his reasoning convincing. He used to taunt me with jibes like "Well, Neal, are you going horse-torturing this afternoon, as usual?"

Carnifex said...

How supposedly smart people get mixed up in a debate like this is beyond me. Here's my reply to the so called "proffessor". Since while we are not all clearly human in your mind, you must recognize that we are all clearly all animals. And as my rights as an animal to be free of human judgement, how about I kill and eat you instead?

Stupid fucks like this guy is why we have Zero in the white house.

Carnifex said...

Hah! With an iq of 144 does that make me the humanist human in the room?:)

CStanley said...

I just had to go recheck the text, and realized I've overlooked a clause:

We hold these truths to be self-evident, that all men are created equal though some are more equal than others, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

Zach said...

When he asked his students that question, they “get all tied up in knots and say things like ‘because she has a soul’ or ‘all life is sacred.’ I say: ‘I’m sorry, we’re not talking about any characteristics here. It’s that she has the form of a human being.’ Now I’m not saying that a court or legislature can’t say that just having a human form is in and of itself a sufficient condition for rights. I’m simply saying that it’s irrational. . . .

Something I'm often struck by in these "controversial bioethicist" articles is how much cleaner and simpler the straightforwardly religious position is to articulate, and how much more intuitively correct the answers it gives.

Murder and cannibalism are wrong, even when it's a stupid person.

It's a simple and obvious derivation if you start from first principles with "all humans are possessed with an immortal soul."

It's tricky and subtle to reach the same conclusion if you start from "humans are capable of reason" or a secular equivalent, and you keep getting bogged down in questions like whether the pig gets to vote on the morality of sausage.

Of course, there is a simple and expressive principle that can guide you in these ambiguous cases, even without the religious assumptions:

Bioethicists are always wrong.

n.n said...

Carnifex:

It's actually an important philosophical question with practical consequences. For one, we can assume that a clump of cells acquires its human character with the emergence of consciousness (i.e. from conception), and loses that peculiar character with its departure (i.e. "brain" death), even though the body remains behind as an unfilled vessel. The degrees or shades of variability have been sufficient cause for people to question the humanity of various individuals throughout their evolution from conception to death.

As for human-animal equivalence, their evidence of correlation does not establish equal causation. Human beings are afforded a presumption of dignity as a matter of faith or practical consequence (i.e. assertion), with an assumption of equal perception or through force, respectively. Short of either working principle, it seems reasonably to minimize violence perpetrated against other lifeforms. If for no other reason than moral individuals do not want to become characterized or captured by a behavioral antithesis (i.e. paradox).

sinz52 said...

If we ever do find life on other planets, we're going to have this problem in spades.

How intelligent does a creature have to be in order to have "unalienable rights?"

Suppose the dominant form of life on Sigma Draconis IV has advanced no further than Homo Habilis: It can flake a few chips off a rock to make a crude stone ax by instinct, but that's all.

Is that creature a person with unalienable rights?

The Bill of Rights in the U.S. Constitution states that "persons" have rights, but it never defines the term "person."

U.S. law defines "person" as a member of the species Homo Sapiens.

For all your science-fiction fans, that means that if Sarek of Vulcan, E.T., or Yoda landed right here in the U.S. in a spaceship, they would have NO RIGHTS under our Constitution. They would have the legal status of animals.

Obviously, all this is going to have to be rethought.

sinz52 said...

Zach,

the problem with your principle is that it's based on the ineffable and unverifiable. It's entirely subjective.

I'm not a Christian.

I don't believe in any "immortal soul." I think when you're dead, your brain ceases to function and you're dead.

Leit Bart said...

So I sued the bear that killed my dog. The bear's attorney ad litem let him default, so now I've got this huge money judgment. Any tips for how I can collect?

(H/T to the Dersh)