Non-Human Intelligences I: Introduction

One of the most common questions we get is how the law would treat a genuinely non-human intelligence. Such characters appear with regularity in most of the major comics universes. The DC universe has Superman and various other Kryptonians as well as Gorilla Grodd, etc. Marvel has described entire galactic empires, including the Shi’ar and Skrull. Both universes include intelligent machines of various kinds.

This is a big subject, and as there is currently no law on the books which would directly answer this question, finding an answer is going to involve at least as much philosophy and history as it will law. But it is an important question, so we will consider it here.

This is likely to be the first in a series of posts. Most of the consideration of actual examples will be in later posts; this one attempts to set the stage for such questions by examining the reasons for and history of human beings’ rather unique status in the legal system.

I: Imago Dei

The American legal system is a common law jurisdiction. Technically, this means that we use precedent, i.e. judicial decisions, to create law in addition to the more traditional law-making powers, the executive and legislature. Common law legal systems are based on tradition as much as anything else, and the tradition in question is the English legal system. Early American judges made liberal use of English legal materials published prior to 1776 and treated decisions by English courts before that time as binding precedent. Though there are practically no situations where an American court would need to reference law created before 1776, as just about every issue which it is possible to conceive has been treated either by case law or statute since then, the opinions of English judges prior to Independence–or at minimum decisions prior to the arrival of English settlers in North America–are still technically valid law.  Generally speaking, state statutory codes will have a section explicitly recognizing this.

The reason we bring this up is because, for good or ill, the English legal system was created in a time where Christianity was the official state religion, where there being a state church meant a lot more than it does in many European countries that still have state churches. Christianity was so much a part of the culture that not only were major Christian beliefs like the existence of God and the nature of man pretty uncontroversial, but they actually played an active role in the legal system. Trial by ordeal was originally conceived as a way to permit God to reveal guilt or innocence. Really. People took that very seriously. It took centuries for the problems of this to become undeniable, and it was not until the Roman Catholic Church decreed in the Fourth Lateran Council that priests were no longer permitted to take place in such ordeals that the legal system had to scramble around for a new decision-making process.  They eventually came up with trial by jury, but it took almost 500 years before it resembled modern practice.

All of that by way of saying that until only a few centuries ago, everyone in England believed that humans were created in the image of God, the “imago Dei.” The doctrine continues to do an incredible amount of work in Christian theology, but it contributed to the legal system by giving an obvious justification for treating humans as different from animals. The very word “homicide” literally means “to kill a human being” in Latin. Murder is homicide with a particular intent, but killing a cow or dog can, by definition, never be murder, because there is no underlying homicide.

The doctrine itself does show up in American jurisprudence from time to time. A Texas court referenced it while upholding a Sunday law. McLeod v. State, 180 S.W. 117, 119 (Tex. Crim. App. 1915). It shows up in a discussion of the origin of natural rights in nineteenth-century Michigan. People v. Gallagher, 4 Mich. 244, 278 (1856) (Pratt, P. J., dissenting). It regularly shows up in cases discussing criminal sentencing. See, e.g., U.S. v. Carvajal, 2005 U.S. Dist. LEXIS 3076 (S.D.N.Y. 2005).

But these days it is almost always seen in the context of First Amendment establishment cases, which may lead one to ask what the point of this discussion is. Other cultures have come up with reasons for outlawing murder without and even before Christianity. Murder doesn’t seem to have been any less criminal in ancient Egypt or Babylon than in Jerusalem. Fair enough. But their justifications were just as religious. Heck, it is illegal to kill cows in most of India, not that cows are people as such, but it’s definitely a religion-based prohibition. Be all of that as it may, Christianity is undeniably the heritage of the West, particularly in the development of the legal system, and its effects are still with us. The fact of a distinction between humans and non-humans is well established, even if the justification is gone.

Because that justification is largely gone now, the doctrine of the imago Dei no longer does any real work in the legal system. Organized Christianity has been receding from its central position in Western culture for centuries, and the nineteenth century saw the birth and growth of legal positivism, which is the view that the law is simply what humans have made of it and does not appeal to any deeper, metaphysical truths. But the result of the theological doctrine remains: the law treats human beings as a different kind of thing from inanimate objects and other living creatures. This happens to line up pretty well with most people’s basic ethical intuitions, so it hasn’t received a lot of scrutiny. But if we were to discover a genuinely intelligent non-human entity, you can bet that the justification for limiting personhood and its attendant civil rights to human beings would immediately get a rehearing.

II. Coming Up With a Definition

Why not simply punt and give anything with intelligence full status as human? A lot of comic book and science fiction readers would probably prefer such a result. But things are not so simple as that. The entire discipline of anthropology is basically an attempt to answer the question “What makes us human?” Here, we are asking what it takes for a given being to be considered a person, i.e. to receive the same protections of the law as human people.

The sci-fi fan’s desire to grant personhood to all intelligences raises the question of just how intelligent a being has to get before it receives protection. I mean, dolphins are pretty smart, right? Why aren’t they people? And is it not conceivable that a smart dolphin or gorilla might not actually be smarter than a developmentally disabled human? If the standard we use to decide that someone is a person is intelligence, there does not appear to be a good reason why the human should be considered a person and the dolphin not.

And that, right there, is not only a major problem of anthropology but a huge issue for the legal system. Courts really do not like engaging in case-by-case analyses, as in addition to being an enormous pain in the neck, it is also immensely expensive and time-consuming. Courts are much better at applying bright-line rules, i.e figuring out how such a rule applies to particular sets of facts. Coming up with a bright-line rule for personhood means coming up with a definite bar above which you’re a person and below which you aren’t.

But even assuming we can come up with a rigorous, cross-species quantitative measurement of intelligence, which no one seriously suggests that we can do, we’re still going to have problems, because as soon as we embark on the project of limiting personhood to a defined set of measurable criteria, it is inevitable that people are going to try to use these criteria to exclude people they don’t like. Dehumanization is a big enough problem as it is without providing a handbook for it. Also, what about children and the elderly? There are plenty of criteria which would exclude both of them if we aren’t careful. So a list of criteria, particularly if those criteria are ranges rather than binary decisions, has the potential to be quite problematic.

This would be true of any criterion, not just intelligence. Tool use? Chimps do it. Language? Koko the gorilla is contended to have a vocabulary of about 2000 words. Religion? There are plenty of bizarre animal behaviors that, if interpreted as having religious significance, make about as much sense as a lot of human religious rituals would if you didn’t understand their content. Civilization? Ants and termites are certainly organized, even if their purpose seems pretty undirected.  Culture?  Various non-human primates pass on non-genetically-determined behaviors (such as tool-use) within their social group.

As it turns out, the doctrine of the imago Dei is actually pretty useful here, because it does provide a bright-line rule: if it’s biologically human, it’s a person. End of story. Doesn’t matter how disfigured, disabled, or hated a person is, they’re still a person. Heck, if we did discover a genuinely intelligent non-human, theologians the world over would be staying up late trying to figure out how to work them into existing doctrinal systems. This is actually a pretty common trope in science fiction stories.

But since religion isn’t really something we can use to come up with these kinds of rules anymore–the First Amendment would seem to prohibit it even if there were broad cultural consensus, which there isn’t–we need to find something else.

III: A Complex Problem.

Here, we close for the moment. We do not conclude anything yet, but we have set the stage for an attempt to come up with a legal definition of personhood which might include non-human intelligences but not dogs or radishes, without excluding the very young, very old, or developmentally disabled.

More to come. The next post will be about what existing law has to say on the subject, so save questions about that for next time!