Chapter 12 Potpourri of the Predicates of Change

• Library: Pet Law & Custody: Establishing a Worthy & Equitable Jurisprudence for the Evolving Family (ABA) (2017 Ed.)

Chapter 12 Potpourri of the Predicates of Change

"The fact that man knows right from wrong proves his intellectual superiority

to the other creatures; but the fact that he can do wrong proves his moral inferiority to any creatures that cannot."

—Mark Twain

In the first chapter, it was stated that companion animals, rather than being consistently viewed as property, may instead be viewed as having legal status based upon a continuum between property and person, now called "the continuum." It was also suggested that the reason for this shift was that companion animals typically have a greater relational value than commercial value. In this chapter, we will explore some of the antecedents of this cultural shift.

CHARLES DARWIN

At the end of the 19th century, Charles Darwin offered his theory of evolution. He emphasized three principles: (1) serviceable habits, wherein emotional expression could be hereditary; (2) antithesis, an expression in opposition to a useful one; and (3) actions of the nervous system of the body. Darwin promoted the idea of the adaptive use of emotions and identified the universal emotions of anger, happiness, sadness, disgust, fear, and surprise, emphasizing that the difference between species is actually a difference in degree, not kind. This idea is now called evolutionary continuity.¹

FREUD AND JUNG

Following the turn of the same century, Sigmund Freud advocated that humans have a conscious and unconscious mind; an id, ego, and superego; life and death instincts; and defense mechanisms.² He also famously said, "In the small matters trust the mind, in the large ones the heart." Carl Jung, Freud's Viennese contemporary, developed personality archetypes³ that became the basis of the Myers-Briggs Type Indicator personality test popular among lawyers today. Jung also advanced the idea of a collective unconscious and had considerable influence on dream interpretation and symbolization.⁴

B. F. SKINNER

In stark contrast to Freud and Jung and their work on the inner workings of the mind, B. F. Skinner investigated an idea called operant conditioning.⁵ Skinner advocated that human and animal behaviors could be shaped by positive and negative reinforcement.

NEUROSCIENCE

The United States has embraced and funded the Brain Research through Advancing Innovative Neurotechnologies (BRAIN).⁶ This research is predicated on the belief that our brain is the source of thoughts, emotions, perceptions, actions, and memories.

Through neuroscience, we are gaining a comprehensive understanding about what our brains are like in action, including how brain circuits utilize neurons and how brain systems are distributed and affect behavior. One of the goals of the BRAIN initiative is to utilize rigorous theory and statistical models to produce a new conceptual foundation for understanding the biological basis of mental processes. A correlate to this idea is to discover how dynamic patterns of neural activity become cognition, emotion, perception, and action.

Functional magnetic resonance imaging is a method that enables scientists to observe brain activity and learn about neural circuitry by detecting changes in blood flow.⁷ Neuroscientists have revealed that both humans and dogs have neurons that light up when they hear the voices of their own species in a brain region that is sensitive to emotional expressions.⁸ This groundbreaking work suggests that both humans and dogs use "acoustic parameters" to interpret the feelings in a sound.⁹

ANIMAL EMOTIONS

We understand that animals have emotions because people we trust, including Jane Goodall, told us they do. Jane Goodall witnessed chimpanzees appearing dazed after their infants died and mothers carrying the dead bodies of their young. Sea lions, geese, bears, and moose react strongly to the death of a loved one.¹⁰ Dr. Marc Bekoff, an evolutionary biologist and ecologist, has emphasized the sheer number of articles that have been published on this subject, including, "Joy in Rats," "Grief in Elephants," and "Empathy in Mice."¹¹ Bekoff suggests that the important question is not whether animals have emotions but why they evolved. Reminding us that all mammals share neuroanatomical structures associated with emotions, including the amygdala and neurochemical pathways in the limbic system, Bekoff suggested that the burden of proof be placed on the shoulders of those who assert that other mammals lack emotional expression.¹²

SENTIENCE

While it was long believed that animals lacked consciousness¹³ and were irrational, modern science is only beginning to suggest the opposite. The American Animal Hospital Association, the second-largest veterinary organization in the United States, recently recognized that animals have sentience, or effectively, feelings.¹⁴ This determination was viewed as groundbreaking.

Rational thought and logic, prized in legal frameworks, are not divisible from emotions; instead, the rational mind and emotions work together.¹⁵ Emotions are integral to reason and logic, as reflected by evidence that emotions promote the brain's ability to create somatic markers, thereby helping the individual keep multiple facts in the mind for analytical purposes. Emotions also enable us to use storytelling, a method of communicating that has emotional resonance, as a vehicle for effective communications. Jaak Panksepp identified the four core emotions as fear, anger/rage, panic/separation anxiety, and seeking.¹⁶

ANIMALS AS DEFENDANTS

From the 13th to the 20th centuries, domesticated and wild animals were defendants in legal actions where they were granted full judicial formalities, including access to a lawyer. According to historical records, sentences for guilty animal defendants included being buried alive, hanged, or mutilated. In one case, a murderous pig was hanged, but her six piglets were spared.¹⁷ A judge, bailiff, and hangman might all be present in both secular and ecclesiastical trials.¹⁸

It is interesting to speculate about why these trials were held and how the guilt or innocence of animals was determined. Finding an animal guilty of violent acts might suggest that the animal was able to think, feel, and act intentionally. If humans in previous centuries believed that non-human animals had free will, formed intentions, or should be held accountable for their actions, these ideas would be in sharp contrast to those advanced by Rene Descartes,¹⁹ a 17th-century philosopher. He advocated that animals were more like machines. From a Cartesian viewpoint, it would be irrational to punish animals.

There is now scientific evidence leading to an entirely different theory of the world because of neuroscience and genetics. We could speculate that our legal precedents today would be quite different if someone with Descartes's intellect could both have understood modern neuroscience and have articulated the continuum of cognitive abilities and emotional qualities across species.

Did the animal defendants of yesteryear have something in common with the dangerous dog defendants of today? What is interesting about our use of the provocation standard for dogs in both dangerous dog and civil proceedings is that the burden to prove provocation typically falls to the defendant. An animal behaviorist might agree that provocation is impacted by the dog's temperament and the circumstances of an event. This is called a motivational analysis. Another way to approach the same subject is to wonder what an intentional act by a dog would look like. If animals think and feel, why do so many humans want to pretend they are like inanimate objects?

PERSONHOOD

What is the meaning of "person"? Would an IBM computer named Watson, who many agree can not only think but outthink some humans, qualify? A human is a type of person, as is a ship and a corporation. In the Uniform Law Commission Family Law Arbitration Act,²⁰ "person" is defined as "an individual, estate, business or nonprofit entity, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal entity."

Labeling a ship as a person and not an animal seems illogical. A principal argument used to advance animal law has centered on the fact that laws are applied differently to persons and property, otherwise known as things.²¹ Although persons are not equivalent to humans, cultural expressions add to confusion about misidentification of species when personhood advocacy is encouraged for nonhuman animals, most notably in recent years for chimpanzees. None believe that all persons, including ships and the family cat, should have the right to vote.

HUMAN PROPERTY

While some resent animals moving away from the type of property conceptions articulated in the often-quoted and strangely worded U.S. Supreme Court decision in Sentell v. New Orleans Carrollton Railroad Co.,²² it appears that while animals are moving in the direction of personhood, an aspect of what was uniquely human is moving in the direction of property. This concept is perhaps best articulated in a popular book where a cell was extracted from a woman with cervical cancer, without her permission, and a cell line grown from it that became known to scientists all over the world as HeLa.²³

Perhaps the most famous case in the country addressing whether human body parts may be treated as property is Moore v. Regents of the University of California.²⁴ Moore brought an action against the university based upon the legal claims of lack of informed consent, breach of fiduciary duty, and conversion with regard to his doctor's use of his cancer cells to develop a cell line that was commercialized. The court ruled that Moore had discarded his...