From artificial intelligence to the unhappy elephant, the legal question of who is a person approaches the reckoning

Glad that the elephant story is sad. She is currently a resident of the Bronx Zoo in the US, where the Inhuman Rights Project (a civil rights organization) claims she is at risk of illegal detention. Activists sought a subpoena on Happy’s behalf to demand that she be transferred to an elephant sanctuary.

Historically, this ancient right providing recourse to an unlawfully detained person was restricted to humans. A New York court earlier decided to exclude non-human animals. So if the courts want to find Happi’s favour, they must first agree that she is a legal person.

It was that question that made its way to the New York Court of Appeals, which delivered its ruling on June 14. And by a 5-2 majority, the judges sided with the Bronx Zoo. Chief Justice Defuri held that Happy was not a person for the purposes of a subpoena, and the suit was dismissed. As a scholar who specializes in the idea of ​​legal personality, I’m not convinced by their reasoning.

DiFiore first discussed what it means to be a person. She did not argue that Happy is an intelligent, independent and emotionally aware person. These are the things that many academic lawyers consider sufficient for character, suggesting that Happy could benefit from the freedom protected by a habeas corpus. But Defori rejected this conclusion, stating that the habeas corpus “protects the right to liberty of human beings because they are human beings with certain fundamental rights to liberty recognized by law.” Simply put, whether a person is happy is irrelevant, because even if he is, he is not human.

This may seem logical, but it has nothing to do with the legal authority DiFiore used to back up its conclusions. On just two pages, she referred to Article 1, Section 6 of the New York State Constitution claiming to “[t]The right of persons deprived of their liberty to challenge before the courts the legality of their detention.” There is no mention of humans here at all.

Her second reason, on page ten, supports the view that you must be able to understand and take on duties in order to get right. This makes sense, and is based on the idea that we, as members of society, are all bound by a social contract. My right not to be attacked implies a duty on your part not to be assaulted. But, of course, we give rights to those who are not able to understand duties – newborns are one example.

The third reason follows the so-called slippery slope argument. If the appeals court recognizes the rights of elephants, it will soon be inundated with claims for the rights of all kinds of animals. This fragmented approach, it has been said, can destabilize society. This may be a practical reason for denying Happe’s right to liberty by habeas corpus, but it is not a moral reason. The whole goal of the right to liberty is to protect individuals from the oppression of the majority, which is itself linked to the moral principle of equality. So that DiFiore prioritizes the stability of the status quo is baffling.

The habeas corpus is known to have originated in ancient Roman civil law.
Andrea Izzotti/Shutterstock

Likewise, a piecemeal approach is not necessarily bad. Courts analyze each case on a daily basis, particularly in human rights cases where individual rights must be weighed against the interests of the state. Indeed, it is seen by many legal experts as a strength, as it allows courts to address grievances arising from loopholes in legislation—to determine when similar cases should be dealt with, and to distinguish when it is important to do so.

Today’s problem

Defori reveals in her final paragraph on page 17 that she does not have a conceptual problem with the granting of rights to non-human beings, but sees that it is a problem for the state government to solve it through legislation. This is a position that US courts have adopted in the past, using it to deny whales and dolphins the right to compensation for disturbances caused by marine sonar.

The problem with this excuse is that legislatures have repeatedly failed to pass legislation to address the problem. As long as they continue to ignore this issue, happy animals and other conscious animals still suffer from inadequate protection for their interests because they are still seen as possessions. This is something most people accept as a bad thing. For example, in a 2017 survey of 2,000 pet owners in the UK, 90% said their pet was a member of the family rather than property. Living with animals allows us to see how they feel as something that gives them a special status. By refusing to bring the law into line with this, the courts fail to address the apparent deficiency.

Ginger cat peeking out of the window.
Forming close relationships with animals tends to give people a deeper perspective on sensation in non-humans.
Konstantin Aksenov / Shutterstock

This is a problem that will become more pressing. Recently, a former software engineer at Google announced his belief that LaMDA – an artificial intelligence they worked with – had gained consciousness. Although Google disputed this, the rights claims (including the claim of personality) made by LaMDA in these texts raise serious issues, such as whether it is ethical to perform certain types of research, such as trying to ascertain whether LaMDA feels sentimental And how, without first obtaining her consent.

If this abstract issue is a concern, there are specific legal issues that may emerge from conscious AI. Far from being problems for the future, courts in the UK, US and Australia have already considered whether AI could be an inventor for patenting purposes, Lord Hodge – the UK’s deputy chief justice – said in a 2019 lecture that there is no A conceptual problem in legal personality recognition of artificial intelligence.

So why should we anticipate the rights of conscious AI in the future while ignoring the plight of beings we know to be conscious and whose interests are damaged daily? By claiming that this problem is best solved by legislation, the New York Court of Appeals simultaneously accepted and deferred the ethical issue before it.

This position is untenable. The courts will not be able to hide from him forever. It is time for them to impose the hand of the Legislative Council.

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