© 1975-1979, 2008 Robert A. Freitas Jr. All Rights Reserved.

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

26.3.2  Legal Standards of Personhood

The whole idea of treating the extraterrestrial visitor to our world as an animal may seem outrageous to many at first, but this is the letter, if not the spirit, of the law.²¹³⁰ We’ve seen that human beings have often been denied the elementary status of personhood. (It should come as no surprise that in the 13th century, a law was passed in England proclaiming humans of the Jewish faith to be "men ferae naturae, protected by a quasi-forest law. Like the roe and the deer, they form an order apart."³⁶¹⁵) Can we seriously expect better for aliens?

What is man? More broadly, what characteristics set persons apart from all other entities?^819,3623 Ultimately, and in a legal sense, who we choose to give standing in our system of law is a basic policy decision. That is, to whom do we, as a society, want to give legal rights to? Assuming we have decided that it is a good policy to grant ETs personhood (as it was a good policy for blacks, women, children, and Jews), what is the best way to implement this policy?

The question is not an easy one (it has been debated for centuries³⁶¹⁸), primarily because the law has never had the occasion to devise a precise definition of "person." When pressed, modern jurists must admit they don’t know what a person really is. For example, the usual definition of person is "human being." But in light of modern technology this is wholly inadequate. Is a human with a pacemaker a "human being"? How about someone with two artificial legs and an artificial kidney? And what shall we say of the decapitated head maintained by artificial blood and electronic artificial neural circuitry, perched atop a powerful humanoid robotic body? Or full human clones or androids?³⁶¹⁹ How much human biology must be present to qualify as a person?

The human genome is no better a measure of personhood. Each human has perhaps 30,000 distinct gene loci, and a great deal of variation can occur at each site. Geneticists estimate that each of us carries about a dozen lethal recessive defective genes which, if paired with themselves (as in a clone), would cause instant death. And studies have shown that about 1% of all newborns have more or less than the normal 46 human chromosomes. Since none of us has a "perfect" genome, how far from the "average" genome should we draw the line of personhood? Should we include people with cystic fibrosis, PKU, or sickle cell anemia? How about Down's Syndrome mongoloids? Or E trisomic elves (malformed skull, webbed toes, crumpled ears, club foot, elfin head shape, simian creases in the palms of the hands)? Under current law even the most grossly deformed infant is considered a person, so where do we draw the line in the case of ETs?

If biological form is a poor measure of personhood, what about feeling? Jeremy Bentham once suggested that the ability to feel pain should be the touchstone of legal rights.³⁵⁶¹ John W. Campbell, Jr. asserted that it was emotionality that made men human.¹³⁶² Both of these definitions fail because they sweep too wide. It is generally accepted that most mammals feel pain, and most are emotional to varying degrees due to the presence of the limbic structure in the brain, the hallmark of their evolution. Surely the titmouse and the bunny rabbit are not legal persons?

Rationality, by itself, is likewise insufficient, to qualify an entity for personhood. Dolphins and whales, elephants, dogs, pigs and many other animals are able to demonstrate surprisingly high intelligence in certain situations. The early belief that animals cannot reason is now widely rejected -- yet the law still doesn’t consider them legal persons. Yet infants and viable fetuses, drugged people, and the insane or the retarded are all considered persons, even though their mental faculties may be negligible or nonexistent. About all we can say is that some degree of intelligence is perhaps a necessary, but not sufficient, condition for personhood.

Possession and utilization of technology is not good enough either. Chimpanzees have long been known to use sticks, leaves ant other objects as tools for feeding, cleaning, and bedmaking, and to make tools, such as when one chimp piled several boxes atop one another to construct a staircase to reach a banana fastened to the roof of its cage. Even high technology (e.g., starships) cannot conclusively establish either intelligence or personhood. A race of ant-like group-mind creatures could conceivably develop a complex technology without any single member possessing independent intelligence. The concept of individuality lies closer to the heart of personality.

One characteristic which may be very important to all legal persons is the ability to communicate.⁶¹³ Science fiction writers have often seized upon this characteristic in determining the legal rights of ETs. For instance, from a story by Philip Jose Farmer we have:

Terrestrial law maintained that the illegal killing of any member of a species capable of verbal symbolism was murder.³⁵⁶³

Or, from one of Robert Heinlein’s novels, the "Cygnus Decision":

Beings possessed of speech and manipulation must be presumed to be sentient and therefore to have innate human rights, unless conclusively proved otherwise.³⁰⁰⁷

Despite the fact that chimpanzees have demonstrated the ability to manipulate linguistic symbols,^3004,3624 few animals other than man have can do this. All animals can communicate in one way or another, but only a handful can manipulate abstract symbols that represent intangibles. Of course, in all such definitions we must avoid such terms as "speech" in favor of "communication." That is, we must avoid sensory chauvinism -- it is easy to imagine a race of highly sentient but mute electrosensitive or osmic aliens who use nonsonic "speech" to talk among themselves.

Three other bases for personality are frequently asserted in the literature, all of which have a certain measure of validity in the context of extraterrestrial rights. The first of these, suggested by physicist G.J. Whitrow, is timebinding:

It seems that all animals except man live in a continual present. Unlike animals, man has a sense not only of the past but also of the future. We now have abundant evidence that our sense of these temporal distinctions is one of the most important mental faculties distinguishing men from all other living creatures.¹⁸⁴⁷

Whitrow then goes on to point out that the burial practices of Neanderthal and earlier humanlike creatures in our ancestry show that these beings were timebinding too and, therefore, presumably entitled to be considered as persons. The evidence on chimpanzees and other animals is unclear on this point, but it does not seem likely that human society would wish to bestow the rights and responsibilities of personhood upon any sentient being that had no conception of past or future.

The second oft-cited basis for personhood is self-reference, self-awareness or "self-consciousness." For instance, philosopher Joseph Margolis of Temple University writes that:

Persons may be roughly distinguished as sentient beings capable of the use of language and of self-reference; they are normally embodied in specimens of Homo sapiens but may, in principle, be embodied in electronic gear or, as Martians or dolphins or chimpanzees, the evidence permitting, in other biological forms.³⁵⁶²

According to Michael Tooley, research scholar at the Australian National University, an organism is a person, possessing a serious right to life, when it is able to conceptualize about its own "self as a continuing subject of experiences and other mental states."³⁵⁶⁰ Elsewhere, Tooley applies his reasoning directly to the question of ETs:

What properties would an extraterrestrial being have to possess in order to be a person? The answer I have offered here is that it would have to be a conscious being possessing both the capacity for self-consciousness and the capacity for having desires about its continued existence. ... Intelligence is not essential to the concept of a person. ... An extraterrestrial being need not be alive [in the biological sense] in order to count as a person. There might be conditions under which we would attribute consciousness, self-consciousness and a desire for continued existence to robots that had been manufactured by some extraterrestrial intelligence, even though the robots in question had no capacity to repair or reproduce themselves.¹⁹⁴⁰

A similar test was proposed in 1953 by the French writer Jean Bruller. In his own words:

In nature, a small difference in quantity can produce a total change in quality. For instance, when heating water, you can add more and more calories without the water changing its state. And then, at a given moment, one single degree is enough for it to pass from the liquid state to the gaseous one. Is not that what has occurred with our forebears' intelligence? The difference between the Neanderthal man’s intelligence and a great ape’s can't have been much in the way of quantity. But it made a vast difference to their relationship to nature: the animal continued to submit to it; man suddenly started to question it. Now, in order to question there must be two of you -- the one who questions, and the one who is questioned. Intimately bound up with nature, the animal cannot question it. The animal is one with nature, while man and nature make two. To pass from passive consciousness to questioning consciousness, there had to be that schism, that divorce, there had to be that wrenching away from nature. Is not that precisely the borderline? Animal before the wrench, man after it? De-natured animals, that’s what we are.¹⁵⁵³

The Bruller Test, then, would require that the ET demonstrate some form of self awareness before it could receive the protection of our laws. (See also Green²¹⁶³ and Silverberg.²¹⁷⁶)

The third major basis for personhood that has appeared in the literature is grounded in the capacity for ethical behavior. Dr. Roland Puccetti, Professor of Philosophy at the University of Singapore, has proposed that we should equate "legal-persons" with "moral persons." Says he: "Persons are always moral agents and vice versa."⁷¹ The Puccetti Test thus asks the following of the extraterrestrial: Can he take a moral attitude? Alternatively, is he capable of making moral judgements? If so, if he possesses some system of ethics, Puccetti would classify him as a moral and legal person and extend the rights and responsibilities of our laws to him. A similar suggestion has been made by John Rawls in his book A Theory of Justice:

Moral persons are entitled to equal justice. Moral persons are distinguished by two features: first they are capable of having a conception of their good; and second they are capable of having a sense of justice, a normally effective desire to apply and to act upon the principles of justice.²⁵⁸⁴

In conclusion, then, there are four major qualities which xenologists believe may adequately characterize a "person":

1. Symbolic communication;

2. Time binding;

3. Self-awareness; and

4. Ethical behavior.

The author would like to toss his hat into the ring with his own definition of legal personality. It is a three-part test which incorporates most of the important aspects of the above. To be considered a legal person, an extraterrestrial being must demonstrate the following intellectual characteristics:

1. Temporal Relativity -- "there are other times, than now";

2. Spatial Relativity -- "there are other places than here"; and

3. Sociocultural Relativity -- "there are other societies than mine."

The first requirement ensures that the alien will view itself as temporally distinct from the environment,⁵⁰ and so will have some notion of causation and consequences of acts. The second requirement ensures that the ET sees itself as physically distinct from the environment, with an awareness of self, individuality, and therefore of the selves of others. Such a being should have that degree of empathy necessary or an understanding of legal systems. The third requirement guarantees that the creature will have some concept of cultures generally, rather than merely of his own. This should lead to the social and ethical relativism needed for alien beings to live together in peace and harmony. Individuals who can conceive of no other mode of social ordering than their own are "barbarians," wholly unable to understand the diversity of human society, and therefore should not be entitled to the rights and responsibilities of human law. Since all three requirements by their very nature embrace conceptions of the abstract and the external, and since all sentient beings will be able to communicate in some fashion, possession of all three characteristics should ensure that all beings classified as legal persons are also capable of symbolic communication.

Last updated on 6 December 2008