Non-Human Intelligences II: Existing Law

Last week we started the conversation about non-human intelligences, mostly by examining the historical reasons why humans have been treated differently by the legal system for pretty much as long as it’s existed. We also looked at some of the philosophical problems involved in coming up with some kind of bright-line rule for deciding what gets counted as a person and what doesn’t.

This time we’re going to look at some of the law that would probably get a workout if a non-human ever sued for the violation of its alleged civil rights (or someone brought suit on its behalf).

Before we start, we’ll again set the parameters of the problem we’re examining. A fictional legislature could, in its wisdom, simply pass a law granting various rights to, e.g, Kryptonians, at least as far as the Constitution would allow. Or a constitutional amendment could be ratified that says Kryptonians count as people for all legal purposes. Thing is, it’s all well and good to pass a law giving a certain species (e.g. Kryptonians) status as persons, but what if the legislature or the constitutional convention wanted to draft a more all-encompassing rule so they wouldn’t have to do it every time we ran across a new intelligent species? Then we’re back to square one. So that’s not the issue here. The issue here is whether there is a judicially workable way to include non-human intelligences in our concept of a person without invoking the political branches, i.e. the executive and the legislature.

I. The Constitution

The Constitution you say? Doesn’t say anything at all about human beings as such, does it?

Well, no, not directly, but section one of the Fifteenth Amendment reads “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”

This Amendment, along with the Fourteenth, forms the core of federal anti-discrimination legislation and jurisprudence focused on race, at least with respect to voting. The Commerce Power is frequently invoked for things like employment discrimination, gender discrimination, etc., but race is recognized as a sort of “uber-protected” class by virtue of it actually appearing in the Constitution while aside from gender in the Nineteenth Amendment, most other classes simply do not.

So if Superman were not assumed to have been born in Kansas, as is the case in a number of continuities, and if, for example, someone were to refuse him service at a public accommodation or otherwise discriminate against him by virtue of his not being human, he would potentially have a viable suit suit under 42 U.S.C. § 1983, the federal statute which creates a private cause of action for such situations. If that happened, his attorney would probably bring up the Fourteenth and Fifteenth Amendments, arguing that denying Superman the status of a person, in addition to just being kind of silly, would constitute a violation of those provisions of the Constitution.

How? Well “race,” as a term, is generally thought of has having to do with the classification of humans into more-or-less distinct populations or groups, at least partly on the basis of genealogy and/or geography. There are genetic differences between “racial” groups, but the definitions are pretty fuzzy around the edges and work much better in describing population groups than in sorting individuals. “Race” is, in short, a wildly controversial term which some people argue is entirely socially constructed and others argue is at least somewhat biological.

If there’s one thing the Supreme Court generally doesn’t like doing, it’s handing down official legal definitions for socially controversial terms when there is any way to avoid it, so it’s a good bet that the Court would air some of these arguments and then basically ignore them to come up with as broad and uncontroversial a definition as it can. Which could very well be something along the lines of “genetic ancestry,” i.e., we aren’t going to discriminate against you or deprive you of civil rights because of who your parents were or weren’t. And under that definition, the presumption would be towards granting civil rights to non-human intelligences, at least for biologicals. Exactly how this would play out for the various categories of non-human intelligences, and how the standard would be applied to groups as well as individuals, will be discussed next time. But if it is established, as it may well be, that “race” is not limited to “the human race,” pretty much the entire weight of federal racial anti-discrimination statutes comes into play.

II. Federal statutes

We’ve already mentioned § 1983, which permits private citizens to sue for alleged violations of their civil rights. But it is important to understand that all federal anti-discrimination laws, from the Civil Rights Act to the ADA, are not blanket prohibitions against anything that looks discriminatory. We have already discussed the fact that the ADA would not require an employer to give the Hulk a customer service job, as there is no way to reasonably accommodate his tendency to level the building every time someone pisses him off. Similarly, a non-human would not be able to use racial anti-discrimination statutes to gain an advantage over other citizens.

When a plaintiff brings a discrimination lawsuit, he has to prove that he is being discriminated against on the basis of his membership in a protected class, in this case for being non-human. If the defendant can demonstrate to the fact-finder’s satisfaction that the alleged discrimination is actually on some other basis, one which is not prohibited, then the claim fails. For example, if a woman is fired and alleges that it’s because she was a woman, but the employer brings in evidence that she was stealing from the till, the gender discrimination claim is probably going to fail (unless she can show that men who stole were treated differently). Similarly, if a non-human claims that he was not hired because he isn’t human, but the employer points out that the job posting requires a qualification that the non-human doesn’t have, that case is also going to fail.

But even if the plaintiff proves his case, the defendant may raise a variety of defenses, including the argument that the discrimination is precisely on the basis of the plaintiff’s being a member of a protected class because the members of that class are somehow incapable of doing what the situation requires. It’s okay to not hire Anthony Hopkins to play Othello. Dude’s not black. Likewise, it’s okay not to hire a black guy to play a white character. And a non-human wouldn’t win a suit alleging that he was prohibited from donating to the local blood bank, because it would have absolutely no use for whatever passes for blood in non-human bodies. Similarly, an aquatic entity would have a hard time convincing courts to extend the ADA to require the installation of facilities to permit swimmers to access public buildings.

Note that judges and juries aren’t stupid. Just because an employer or other alleged discriminator can come up with some reason why the subject action is permissible doesn’t mean that he’s going to win. The courts regularly see through pretenses, and there is a general privilege of substance over form throughout the judicial system these days. So yes, it may be that the non-human does not have a high school diploma, which your job theoretically requires, but if he’s smart enough to build his own starship and fly here from heaven knows where, he’s probably smart enough to man that phone, as it were.

III. A Word About Animal Rights

One area of the law which would not provide much guidance is the area of animal rights, particularly past attempts to involve animals in the legal system. Animals are, for good or ill, property. Domestic animals are owned by their respective owners, and wild animals are not owned by anyone until they are taken captive, though there are statutes in most countries restricting the legality of capturing at least some kinds of animals (endangered species, etc.) Animals have no rights before the law, and if one is killed, the only available remedy is the cash value of the animal, and even that can be hard to establish in the case of domestic pets. While it’s true that there have been attempts to bring non-humans to the witness stand (usually talking parrots who were alleged to have overheard and repeated important evidence), those cases do not provide much guidance, not least because as far as we know such attempts have been unsuccessful. The better way to view those cases is as an attempt to introduce evidence akin to a tape recorder than as an attempt to put a competent witness on the stand. (Besides, wouldn’t a talking parrot’s testimony be hearsay anyway?)

Furthermore, relatively few animal rights supporters would put animals on precisely the same legal footing as people (e.g. consider trial by jury, the right to an education, and the 13th Amendment). Also, in the comic book world, the non-human intelligent beings are not only significantly smarter than even the most intelligent animals, they also tend to be powerful enough to effectively demand equal legal treatment. Frankly, that changes the political reality in a way that would no doubt motivate a comic book judge to try very hard to accommodate non-human intelligences. The judiciary should not be controlled by politics but neither can it afford to be blind to it. This fact, along with the preference for substance over form, would likely strongly influence how courts handled non-human intelligences. We’ll discuss more of these issues, like precisely how the law is likely to treat each of the major categories of non-human intelligences, in a later post, and animal rights in particular will likely appear in our discussion of artificial intelligences.

IV. Conclusion

There’s far more that can be said here, and depending on how things go, there might be another post like this one before we start looking at specific examples. But thus far, we’ve aired a possible constitutional argument for classifying non-human intelligences as persons, touched very briefly on the limits of some anti-discrimination laws, and at least mentioned the issue of the way animals are treated by the law. Again, more to come.

22 responses to “Non-Human Intelligences II: Existing Law

  1. Hm. This may be territory where you don’t want to go, but might there be applicable cases from less-enlightened times/places when certain groups, slaves being an obvious example, weren’t considered “as” human as the majority of the population?

    Emancipation law for children also sounds potentially related, here, since the request is very similar at the end of the day.

    • Actually for a good deal of slave owning periods it was admitted that the slaves were in fact human. Slaves in the Roman Republic weren’t treated the same as slaves in pre-Roman Sparta (though it still wasn’t anything close to what we would call acceptable).

  2. Three out of five Kryptonians encountered in the Superman movieverse were literally enemy aliens: Zod and his friends. Would this be likely to affect the status of Superman, Supergirl, and any other Kryptonians? Would the courts treat them as citizens of a hostile power?

    • Kal-El and Kara are both refugees, and Kal-El is the adopted child of Jonathan and Martha Kent, which I think would make him a US citizen. And Zod, Non, and Ursa were not state actors; they were exiled criminals who escaped captivity and acted on their own. So there is no “hostile power” here, particularly since the Kryptonian state no longer exists. True, Zod sought to create a nation with himself as monarch, but since he never actually succeeded in conquering Krypton, neither Kal-El nor Kara could be considered his subject. Particularly in the light of Zod’s documented declaration of hostility against Jor-El and his heirs. By Zod’s own testimony, Superman is his enemy.

  3. Robert Woodhead

    Seems to me that a reasonable test is:

    If you can (a) demonstrate you are a conscious entity [for example, via a Turing Test] and (b) can demonstrate that you understand the meaning of the rights generally granted to human persons, then you should be considered a person under the law; also, if you are a member of a species whose adult members can typically demonstrate (a) and (b), then you are a person.

    Thus, a superintelligent mutant dolphin might be able to qualify as a person, even if most of his species would not. And a Kryptonian baby would be a person, because all the Kryptonian adults the courts have seen qualify as persons.

    The question of the personhood of the first known Kryptonian baby (referred to in court documents as CK, because he/she was underage) did, of course, result in lucrative billings to the lawyer arguing the case.

    • The Turing Test would hardly be infallible, nor is it even universally accepted. Aside from that you would have a heck of a time showing that you understand the concept of rights.

    • While an interesting approach, there are a number of problems with it.

      First, it is likely that we will have computer programs capable of passing the Turing test shortly (some are already coming surprising close). Yet, it is likely the first one that can pass a Turing test would not be sentient and sapient in the way we intend for humans. And even if it were, are we prepared to grant full legal status to a machine created by humans?

      Next, as was mentioned in the comments to part I, there are species with radically different phenotypes (ants and bees come to mind). It is entirely conceivable to encounter a species where certain phenotypes are fully intelligent, but others are not. Yet they would all be the same species. The test described would grant all of them equality with humans, which may not be advisable even if it made sense to grant it to the intelligent phenotypes.

      And finally, it is entirely possible to have an intelligent species that cannot pass the Turing test because we cannot communicate with it. This species could potentially be so different, yet fully intelligent, that communication would be nearly impossible or at least so convoluted as to cause them to fail the Turing test as it is understood today. It would even be possible to have a species that simply refuses to communicate with us for one reason or another and that would cause it to fail.

  4. So, for example, the High Evolutionary’s stable of evolved animals, displaying human intelligence and similar traits, would all be considered ‘people’ in the eyes of the court. Would they be accorded citizenship, then, based on where they were evolved, or what?

  5. On a slightly different note and complication, how would the law treat ex-human intelligences? How much would it matter that Will Payton, once he became Starman, was essentially an energy being rather than a normal human? Or someone like an astronaut whose physical body dies, but is now able to trasnfer his consciousness to inanimate objects and animate them?

  6. Or what happens when humans diverge into new species, such as Homo superior (mutants) or transhuman/posthuman intelligences created by future technologies? Would human rights be presumed to apply to offshoots of humanity? Perhaps in time the term “human” might come to apply to our genus rather than our species.

    To go the other way, what if we cloned Neanderthals (something that may actually be possible in the not-too-distant future)? Recent research suggests that Neanderthals did interbreed with humans, that there is Neanderthal DNA in some human populations, and that they were more intelligent than we used to think. A good case could be made for defining them as human. There have been a number of SF novels and stories upon this theme.

    • It might be interesting to clone a neanderthal and then watch it die from any number of airborne diseases that humans have become immune to and have scientists nod knowingly “so that’s what killed them”. Of course, until we perfect the artificial womb, we will need to find a woman willing to carry a neanderthal. They had pretty big heads, didn’t they? I hope she doesn’t mind getting a caesarian section. (During the procedure, scientists will wonder if the neanderthals didn’t die off because it got increasingly difficult for women to give birth to them.)

      I suppose it’s possible that we killed off the neanderthals. But, really, a modern human versus a neanderthal. Who’s going to win? Seriously.

    • Transhuman usually is used to mean using technology to improve humans. Unless those improvements went so far as to make them almost unrecognizable I doubt that would be an issue. As for posthumans…those are the hypothetical creatures that will be descended from humans but appreciably different. Though there are cases of species living in the same time as their evolved descendants I imagine a posthuman (whatever that might be) would exist many thousands of years later (at the least)*.

      *Which assumes humans will survive the next few millennia without some nuclear war, global catastrophe, asteroid strike wiping us all out.

  7. This makes me wonder, and this is a far larger topic that might get addressed ?, if the non-human could say something like “my race is recognised as intelligent according to galactic law”. Which means American law interacting with Galactic Law (although which galactic law body remains an open question depending on which universe/continuity you are in) – which is the more wider and future-topical point…

  8. Referring to s. II, I wonder how that would play out in Canada. Some Human Rights Tribunals have made decisions regarding protected groups that contradict previous decisions on the exact same case in provincial court. This recently happened in Quebec, you can read about it here:

    Based on this, protected groups of non-human intellegences might find similar decisions in their favour before Human Rights Tribunals even if they are not found so in court. But that’s just an interesting sidenote to this excellent series of posts!

  9. “Besides, wouldn’t a talking parrot’s testimony be hearsay anyway?”

    Depends on whether it was offered to prove the truth of the matter asserted. For example, if offered to prove that a person was in the room where the parrot was (which we know because the parrot is reproducing his voice and/or his speech patterns), then it seems clearly admissible.

    • Though I’m not familiar with case history concerning parrots I imagine it would be far too unreliable to be introduced as evidence. Besides, it would be entirely possible for someone else to speak in the same manner as the accused before the trial and taint the evidence.

      • Sorry, I should have said “clearly not hearsay,” rather than “clearly admissible.” I’m not familiar with case history on parrots, either, and I have no idea how reliable they are.

  10. The animal rights bit sounds very unfortunate for the Ninja Turtles. Perhaps that’s why they live in the sewers and avoid the general population.

  11. I feel as though the field of linguistics would have something instructive to add.
    I don’t think it’s at all unreasonable to say that language is what separates human beings from animals: It’s true that some animals such as chimpanzees can be taught rudimentary language skills, but there’s a very fundamental difference. Animals are able to think and feel, and they are able to communicate their desires and the state of the world around them… but that is all; even when taught a language that humans can understand, they cannot make conversation, because they are only able to think, and thus only able to communicate, in the concrete, the here-and-now. Only human beings, of all the species on planet Earth currently, are able to think and communicate in abstract terms: No chimpanzee or dolphin would be able to conceptualize something like “there is not a giraffe next to me”, or “it must be sunny in London right now”, and communicate that concept.
    So while I can’t say I would know how to fairly test for it, I believe that a very reasonable and comprehensive bar to set would be that an entity should be able to conceptualize and communicate abstract concepts, or be a member of a species characterized by such an ability. Even though there are some humans who, through disability or injury or what have you, are unable to think or communicate in that way, they’re still members of the human race, and humanity is characterized by that ability. Likewise, a sentient alien would have that ability, and similarly qualify, and a superintelligent dolphin or whatever could qualify without forcing all dolphins to qualify, because their species is not characterized by that ability – that one would be the exception rather than the rule. A sufficiently-advanced AI would also be able to think abstractly – Even one which they can’t feel emotions, such as for example Data from Star Trek; it seems reasonable to say that he was definitely a person even without them. But computers are not a /species/, so non-AI computers would not need to qualify for personhood even if there exist AIs which would. And if the AIs were able to replicate and what have you in a sufficiently “organic” way as to be able to be considered to be a “technological organism”, such as the Transformers, then they ought to be able to be defined as a “species” in a sufficiently useful way that brain-damaged Transformers would be able to still be people in the same way that brain-damaged humans are.

  12. Regarding language as an indication of personhood, consider the following: many different species, parrots, chimps, dolphins, even dogs, have learned to understand human language and some of them can even speak it to a certain extent; have humans learned any native animal languages so far? (without using technological means to hear and/or translate them)

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  14. There’s an angle I’ve been thinking about lately that makes this even more complicated is the question. For the sake of simplicity, let’s assume the simplest case for personhood for a non-human intelligence: one race of reasonably human-like aliens arrives, not so advanced as to completely overturn current human institutions and enough like us that they are clearly sentient by our definitions and that integration would be possible (both unlikely assumptions, but bear with me). The United States decides we want to grant them personhood and potentially allow immigration; as such federal statute and possibly a constitutional amendment are passed granting them full personhood equivalent to human beings. (Think “Alien Nation,” if you need a reference point.)

    What, then, about the human-centricity of our laws (particularly those regarding health and safety)? Because these laws invariably apply to homo sapiens, we don’t generally notice how human-centric they are. Let’s say arsenic is a necessary dietary nutrient for the aliens. Suddenly you’re going to have to change FDA regulations saying “you cannot sell food with more than X ppm of arsenic.” Or say your aliens reach mental and emotional maturity only after 50 solar years, or after 8 – either would merit changes in driving age, age of consent, or age of competence to enter a contract. Or let’s say the visual apparatus of our aliens is not damaged by high-intensity UV light – should occupational safety laws require them to wear eye protection when welding? Or in comic book terms, should Superman be required to obey helmet/seatbelt laws when the worst car or bicycle accident would leave him without a scratch?

    There’s a correlary question which actually doesn’t cause too much problem, at least in terms of US law, which is the question of how you could justify differential laws while avoiding the spectre of second-class citizenship. Based on the recognized classifications under existing Equal Protection Clause jurisprudence, non-human intelligent aliens would be an obvious case for the application of intermediate scrutiny, with the aliens constituting a quasi-suspect class for whom differential treatment is appropriate, but only where based on real, fact-based differences (in fact, the justification for applying IS would arguably be stronger than it is for the existing quasi-suspect classifications of gender or legitimacy).

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