26.3.1 - Alien Animals

Xenology: An Introduction to the Scientific Study of Extraterrestrial Life, Intelligence, and Civilization

First Edition

Robert A. Freitas Jr., Xenology: An Introduction to the Scientific Study of Extraterrestrial Life, Intelligence, and Civilization, First Edition, Xenology Research Institute, Sacramento, CA, 1979; http://www.xenology.info/Xeno.htm

In a Direct Contact or Surprise Contact scenario, alien beings would actually come into physical (and hence juridical) contact with human society. The question then arises as to what place such creatures would have in our legal systems, and whether or not they would have any rights or responsibilities under our law. Of course, one might question how any extraterrestrial visitor to our planet could have any rights at all. The ET is not a member of our society, our species, or even our world. And, loosely speaking, these three qualifications are the most fundamental bases for justice under modern human law.

The history of the scope of protection and legal rights in general is most illuminating. In The Descent of Man (1871), Charles Darwin pointed out that among primitive tribal states it was widely accepted behavior to commit what we would regard today as rather serious crimes (robbery, murder) against strangers or innocent travelers. As an example, he cited the "North-American Indian...[who] is well-pleased with himself and honored by others, when he scalps a man of another tribe. ... In a rude state of civilization the robbery of strangers is generally considered as honorable."³⁶¹²

The tales of Homer tell us that Odysseus, returning home after the Trojan Wars, summarily executed at least a dozen of his slave girls for suspected "misbehavior" during his absence. At that time, slave girls were regarded as mere property with no rights whatsoever. As one legal commentator put it, "the disposal of property was...a matter of expediency, not of right and wrong."³⁶¹³ In early Roman times, prior to the introduction of Justinian law, a father retained jus vitae necisque -- the right of life and death -- over his children. Male parents could banish or execute their children, or sell them into slavery.³⁶¹⁴ Children (nonadult humans) thus were not legal persons, in our modern understanding of the term.

More recently, certain other classes of humans have had less than complete rights under American law. For instance, in the well-known Dred Scott v. Sanford 60 U.S. (19 How.) 396 (1856) decision, Supreme Court Justice Roger B. Taney spoke for the, majority when he wrote that blacks were "a subordinate and inferior class of beings, who had been subjugated by the dominant race." In Baily v. Poindexter's Ex'r 56 Va. (14 Gratt.) 132 (1858) a Virginia court articulated this position with even greater clarity: "So far as civil rights and relations are concerned, the slave is not a person but a thing." Hence, little more than a century ago in this country, human beings of a particular race were deemed nonpersons (and therefore mere property) in the eyes of the law.

Over the years the status of personhood has gradually been extended to include blacks, women, children, Indians, aliens (foreigners), and prisoners, and in most recent times has come to signify any "human being." But it should be remembered that in each instance it was a long, hard uphill battle to extend rights to any new class of entities.⁷¹⁵ It will be no different in the case of the extraterrestrial.

Furthermore, our Constitution and most of our laws, codes, treaties and statutes afford fundamental rights only to "persons." Nonpersons, such as animals, trees, rocks and machines,^{3617,1750,3622} have no rights and are treated as property. Property may not bring legal actions on its own behalf, although the human owner of property may do so to recover his own losses.³⁶¹⁶ (Private groups and governmental authorities can also initiate lawsuits against an owner for misuse of his property, such as in nuisance or animal cruelty cases, but the reparation rarely flows to the benefit of the property itself.) All persons physically present within the borders of the United States are protected by the Bill of Rights; animals, however, are not.³⁶²⁰ The distinction between animals and persons is thus of critical importance.*

The strict legal definition of "animal" is: "Any living being, not a human, endowed with the power of voluntary motion." The ET is clearly not a member of the species Homo sapiens, and is therefore nonhuman by definition. He does, however, appear capable of voluntary motion. Hence, a rebuttable presumption of animalhood will arise; the ET will be considered a legal animal by default.

There are several kinds of legal animals. Under Roman law all animals were considered ferae naturae (wild animals) -- they were regarded as common property having no owner. As the law developed, and animals began to play more important roles in society, the courts created a second class, domitae naturae (domesticated animals). These were further subdivided into "generous" (of commercial value to man -- cows, sheep, and other herbivores) and those of "base nature" (animals not useful for work -- household dogs, cats, etc.).⁷¹¹ Domestic animals can be the subject of ownership, and therefore can be estrays (a kind of wandering property). Estrays may be impounded as public nuisances and destroyed after 3 days if no owner makes a claim.

Owning a domestic ET may entail a variety of legal risks if there is injury to third parties or property, depending upon whether the animal had any "known dangerous propensities" or not. If not, and if the owner had no knowledge of the potentially harmful character of the alien being, then in most U.S. jurisdictions he can only be held liable as negligent if he failed to use due care in restraining the creature’s activities. To paraphrase an old legal adage: "Every extraterrestrial is entitled to one free bite." On the other hand, if the ET has some "known dangerous propensity" then the owner would be held strictly liable for all harm to persons or property caused by the alien. The animal need not be vicious for this rule to apply -- if the ET is known to have a propensity for some normally harmless act which, in a certain instance, does cause harm for some reason, the owner will be held strictly liable for all damages suffered by injured parties.

If the alien visitor is to be regarded as an animal, he will undoubtedly be classified as ferae naturae, no proof of tameness or ownership being evident. A wild animal running loose on private property may be hunted, captured or killed, and thus reduced to personal possession (unless classified as an "endangered species"). Such an animal on federal lands is subject to the Department of the Interior’s Fish and Wildlife Commission; on state lands, it is subject to the state’s Department of Fish and Game. Either authority may declare a "special season on said game," (e.g., RCM §26-135 in Montana) or the departments themselves may destroy the animal causing damage to property. Individuals in possession of a wild animal are generally strictly liable for any damage they cause, but there is one major and important exception. Where wild animals are kept under a public duty, negligence on the part of the keeper must be shown. This exception applies to zoos, common carriers, and presumably to incarcerated ETs (if they escape).

Even if the extraterrestrial is somehow regarded as being tame, his position is not much improved. The fact that, animal cruelty laws exist in virtually all states⁷¹⁰ does not alter the creature’s basic rightlessness.³⁶⁰¹ For instance, a surgical operation, even though it produces the most intense pain and suffering, may be justifiable and noncriminal if the operation is necessary to make the animal useful to man. So the castration of a young horse or bull is not considered to fall within the rules prohibiting cruelty to animals. And most cruelty statutes traditionally exclude invertebrate animals (e.g., Cruelty to Animals Act of 1876, Great Britian). If the ET resembles a cross between a sea scorpion and a grasshopper, he will have no legal protection whatsoever.

* The "guardianship model" recently proposed by Joyce S. Tischler would grant each nonhuman "rights consistent with its interests". Members of other species would not have equal rights with humans (they could be more or less) but would be "entitled to equal consideration based on their individual characteristics, their interest in life and their corollary interests in food, care, and maintenance."²⁷⁰⁸