Orcas, Dolphins, and Whales: non-human persons and animal rights

With few exceptions, most cultures put homo sapiens at the center or the apex of creation. Humans, it is generally believed, are distinguished from other animals by our self-awareness and our ability to use tools, to think, reason, and construct meaning and representations about life. The Abrahamic religious traditions are most notable in their anthropocentric vision of human purpose in creation; and although the metaphysics and teleology are sometimes challenged by advances in science and technology, the fact remains that human beings remain the paradigmatic case against which other animals or even artificial intelligence is measured. As a Muslim and a theist, I avow my belief in the unique status of humans; however, as someone who also believes in science and is keenly attuned to the environment, I have a great love for nature and the animal world, and a great desire to protect them.

It is with this, then, that I want to propose to put ethics before metaphysics in considering the moral status of what legal scholars and ethicists call “non-human persons.” In particular, I want to look at cetacean intelligence of orcas, dolphins, and whales to understand the way in which we might classify them as non-human persons which would be given certain rights and protections. Doing so, I argue, would enable us to collapse the bifurcations that influences much of Western thought thereby ushering in a more holistic, ecological and relational approach to ethics and being.

To begin with, I would like to make a distinction clear: I am not claiming that orcas, for example, are morally equivalent to humans, but I am suggesting that we ought to be more cautious with regard to understanding our place in the animal world as a whole, particularly as it relates to the precariousness of life itself. My argument below follows philosophical and ethical reasoning, though this might also be understood in the context of religious texts. The story of Yunus (aka Jonah) and the whale is found in both the Bible and the Qur’an. In short, Yunus felt discouraged that the people of Nineveh did not heed his call to worship God, and so he left in anger. Being cast into the sea, followed by being swallowed by the whale, was ostensibly punishment for his loss of hope and leaving the city without God’s permission; though on another level the exegetical scholars point to the fact of his supplication “O Lord! There is no god but you: Glory to you: I was indeed wrong” (Qur’an 21:87) as instructive of submitting to God’s will and the significance of humility. Indeed, the Qur’an goes on to say elsewhere: “Had he not been of those who exalt God, he would certainly have remained inside the whale until the Day of Resurrection.” (Qur’an 37:143-144). The whale, on this reading, is integral to the Abrahamic worldview insofar as it is the manifestation of God’s power and dominion over creation, as well as his lesson to human beings to remain humble.

It is this same humility that, theist or not, we may all agree is an honorable quality to embody. It brings me back to the topic at hand and the spirit with which I seek to approach it. Such an approach might very well still claim humans as the central figures (as in the

Abrahamic faiths) but it would also widen the moral circle to account for the place, and the rights, of animals. To be sure, there exist Judaic and Christian interpretations that take into account animal welfare; likewise, an Islamic conception of animal rights and of general animal welfare highlights the ways in which religious traditions and perspectives have, for centuries prior to our own, maintained that animals have a special category and a relationship to God and which therefore, according to the Islamic perspective, accords them certain rights under the sharia.

I will set aside the religious perspectives for now in order to focus on the philosophical accounts captured in current discourse about human and animal rights. First, whereas human is a biological category, in law and ethics, the category of person entails certain duties or rights, such as the right not to be harmed or killed without a very good reason. On this understanding, humans and persons are not necessarily synonymous, and there can be non-human persons. In legal terminology, a person is that which is endowed with rights, duties, and protections. Professor I. Glenn Cohen, my mentor this year during my student fellowship at the Petrie-Flom Center, discusses the significance of this nuance in his recent TED talk in Cambridge, Massachusetts in which he argues that we ought to take a person-centric, not a species-centric, conception of how to approach morality. Doing so would not necessarily make a radical difference in moral standing by which, for example, AI would have all of the same rights as humans—but neither would it mean that we would discount rights altogether for non-human persons.

Instead of AI, I wish instead to examine cetacean intelligence. I encourage everyone to watch the BBC’s Blue Planet 2 to get an unprecedented look into the lives of orcas, dolphins, and whales. A short 2-minute clip will suffice to show the ways in which orcas communicate and cooperate in intricate ways. What we see here is but a small glimpse into the lives that have fascinated scientists for many decades. Scientists have long been curious about the intelligence of orcas, dolphins, and whales and have studied their behavior and their brains. The more we learn about their intelligence the more it becomes apparent that it is unethical to keep them in zoos and aquariums. Thomas White, a philosopher at Loyola Marymount University in Redondo Beach, California, made the argument that dolphins are what philosophers call “non-human persons,” which I outlined above: they are alive, aware of their environment, and possess emotions; “they also seem to have personalities, exhibit self-controlled behavior, and treat others appropriately, even ethically.”

Not every animal or AI is a person, but depending on how we define the criteria, the species might be wider or narrower; either way, we are more attuned to the complexity of the moral world around us. A fuller moral vision would account for the capacities of personhood and whether such entities possess it. This might be AI and it might be killer whales, but it would most certainly mean that non-humans are encircled within our sphere of being in much the way that many Native American peoples approach animals, the land, and the environment. As the anthropologist Peter Whiteley argues in his Aeon essay, The Fire Burns Yet,

“Learning from this way of being in the world will require serious attention to Native perspectives: not just as a prop for some Western-conceived environmentalism that marshals the same old metaphysics in new bottles, but with a goal of refiguring the culture-nature, mind-body split that dominates much of Western thought. Such splits tend to reduce nature, including the human body, to physical forms and processes. According to this world-view, only human beings have minds. Nature is thus deprived of intrinsic sentience or conscious intentions: without those, or with only a token acknowledgement of their existence—such as a concern for animal suffering in animal rights—there can be no genuine ethics in human relations with other species. And upon our dualist metaphysics is built a whole scheme of global practices—political, economic, medical, even religious—that, notwithstanding its benefits, is the underlying cause of the present global environmental crisis. This is why I believe that refiguring our world-view is a prerequisite to solving, or at least ameliorating that crisis.”

The way in which Native communities view the natural world relationally and in conversation rather than as a force to be dominated offers a constructive way to understand our place in it on a different moral scale. It allows us a way of approaching the world not from the purview of Western cosmologies in which nature is outside of us—as something objectified or controlled—but rather positions us in a harmonious state with animals, an ideal notably embodied by by the Nastilane story
. Pre-Islamic Arabic poetry, among many other cultures, also proclaimed the sanctity of animals and their importance of everyday life.

In the studies of cetacean intelligence examining social cognition and behavioural strategies, scientific research suggest that individuality, consciousness, self-awareness, is no longer a unique human property. It seems that whales and dolphins might have rich “human-like” cultures and societies. Popular literature notwithstanding, no scientist is equating cetaceans with humans, however, the research into the complex social behaviors and cognitive skills again raises the question not only about how vastly different brain structure can give rise to a myriad of behavioural similarities including: social play, complex alliance relationships, cooperative hunting, complex vocalizations, etc. but also raises the question about the kind of relationship we ought to have with these majestic animals. Orcas may not be humans, but evidence is mounting that they are non-human persons, thus endowed with rights and protections. Perhaps we can learn from the Native communities’ way of being in the world and in so doing learn not only about orcas, but learn from them too.