Friday, February 10, 2012

Orca's Revenge

Mr. Gillette, you are treading on dangerous ground in joining the crusade against full rights for killer whales.  Consider yourself warned:

Leaving aside the danger that Orcas will now hunt you down to the ends of the earth, I think your reasoning is also mistaken.  You say "the only logical stopping point to PETA's argument would be that no animals could be kept by anyone for any purpose." I disagree.

I think it's possible, though not easy, to draw some lines here. Start with the obvious: there are significant differences between a termite and a killer whale, particularly in their mental capabilities and complexity. This is why we smile when children use magnifying glasses to blow up ants but frown when they hit the dog with a baseball bat. Dogs are much more like us than ants, and anyone who treats them the same is probably a psychopath.

Taking it further, it's arguable that some animals share the qualities that we think make human beings entitled to special protection under the law. Among these qualities are sentience, intelligence, and ability to experience complex emotions (including negative ones like suffering and depression). Some philosophers, such as Peter Singer, argue that many of the higher mammals do share these qualities, and that our enslavement of them is therefore unethical and frankly barbaric.

To take the principle to its ultimate extreme, imagine that earth is visited by sentient extra-terrestrials. On one hand, they meet our loose legal definition of "animal": all non-human animals. But would it be constitutional to enslave them, even if they could protest and articulate arguments in English as to their suffering? That's frankly unfathomable. (Come to think of it, the movie and TV show "Alien Nation" took up some of these issues. I recommend it.)

So I don't think that "humanness" alone can be sole determinant of whether the 13th amendment prevents a life-form's enslavement. Then what is? This is where it gets sticky. One nominee would be "sentience," but not all humans are sentient (e.g., infants and mentally disabled people may not be sentient).

For me, there's a pretty slick resolution to this. A species is entitled to equal protection under the law if at least one of its members is able to petition, in a language that we can translate and understand, for protection under the law. This covers the "Alien Nation" situation, and it skirts the issue of non-sentient humans.

In other words, we're waiting for Caesar.


  1. The question I was trying to pose was whether PETA's argument for why orcas (but not, apparently, the other animals at Sea World) were entitled to protection under the 13th Amendment. The definition that you suggest for 13th Amendment protection isn't one that PETA would accept because it would mean that the orcas would still lose. PETA isn't waiting for Caesar, in their view Tarzan's sidekick Cheetah is good enough.

  2. It's not clear from the Order precisely what the contours of this argument were, but my point was that it's not necessarily true that PETA's argument for rights for some non-humans would require rights for all non-humans. A principled line can be drawn. I drew it in one place, and obviously PETA would draw it somewhere else. But I don't think the slippery slope argument works here.

  3. The slippery slope argument always works. Always.


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