Legal Aspects of Personhood: a Closer Look at the African Elephant

Considering how much evidence that I present for the possibility that sperm whales are our peers, it might come as a surprise to learn that I have been against every attempt I’ve seen, to date, to extend the legal definition of personhood to nonhumans. These have all tried to loosen the non-anthropomorphic properties that we would universally expect in a person and, as such, it sets up the expected legal precedence of failure. That, in turn, inhibits those who observe those actual properties in animals, and may wish to make their own challenge using a conventional understanding of what it is to be a person. In the hope of preventing further failures, let me give an example of the type of case I would support.

Since we have far more data on terrestrial animals than aquatic ones, some of the best cases might be expected from among the very smartest animals on land. You should only pick one animal per challenge, not a chocolate box full of them. The terrestrial genus I would pick is the African elephant.

Some evidence is worth mentioning in our argument, but not worth lingering on, because it is not yet conclusive. The persistent doodling by wild elephants in Africa lead to the idea of training Asian elephants to paint. Art may be one of the defining features of humanity, but the idea that some elephants strive for it has yet to be tested by science. There are also plenty of anecdotes that attest to their high intelligence but, unlike Asian elephants, none have been tested under repeatable conditions. As such, these are also worth mentioning, but only in passing. Events such as how, after first checking the entire perimeter, a herd worked as a team to bring down a tree boarding an electric fence, then escaped through the breach. It has also been shown that they have the compassion to look after their sick and distressed. However moving you may feel such incidence or evidence, they will never be sufficient to prove that African elephants are people.

Likewise, its easy to get distracted by events that have the feel that they could deliver such proof, but never quite cross that line. Tippi, a young girl with an preternatural ability to read the mood of animals, felt a fully grown African elephant her spiritual brother. If you watch them interact below, you should note that African elephants are not semi-domesticated like the Asian elephant, and can’t be trained. If he accidentally knocks her off balance when he stands up with her on his back, she would be very badly injured in the fall. These actions require extraordinary voluntary cooperation, and the careful application of high intelligence and kinetic foresight. You should also keep in mind that African bulls are twice the weight of Asian cows, with which you are most likely to be directly familiar (they tend to be the only type of elephant in most zoos).

However, none of this can form the meat of the case. Here is how I would present the main body of the argument…

I would open the case for personhood with a one-off event such as a famous funereal gathering after the death of a conservationist who had helped rehabilitate rouge elephants to the wild. This involved two different herds choosing to travel for half a day, then spending a couple more days together outside his home. To reinforce the power of such an incident, I would include a detour through legal history.

To be guilty of a crime, a person needs to have the mental capacity to understand his actions. In the United States, there is a long-running debate as to whether a person can receive the capital penalty for murder if they have an IQ below 70. No one believes this is the border of whether a human is a person or not, but a much higher standard to see if they are in that subgroup of people that understand the permanence of death. If they don’t, it is acknowledged that you couldn’t expect that, beyond all reasonable doubt, they comprehended exactly how dire the consequences of their actions were… Now let us return to those elephants.

Those gathering elephants (or similar example of your careful choice) were testing that higher-category-of-personhood, given how far out of their way they traveled to honour their fallen benefactor. However, because of the nature of any single event we would need more evidence. We must show that science backs that possibility.

Like a handful of other animals, we frequently observe elephants morning their dead, but they also do the same by the bones of their long dead ancestors. And, no, this is not a random association with bones, nor a general interest in elephant bones, but specifically those of their ancestors, as attested by genetic testing. The problem to emphasise is how they could make that implied association between those bones and the elephants they had known in life without concept of the permanence of death. If that is what is happening, then it suggests a higher understanding than some vague idea that death is bad.

The more you look into the evidence, the more interesting the case for  personhood in, at least some, African elephants appears, and the more difficult alternative explanations seem. My hope is that one such example becomes overwhelming before the repeated failures of less rigorous legal challenges create an insuperable barrier of case precedent failure beyond remedy of science.

PS I believe it worthy to seek rights for animals below this cognitive category but please don’t do so by degrading the bounds that define the non-anthropomorphic properties of a person.

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