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At the end of the latest Law Talk, Professors Epstein and Yoo (not atypically) disagree. Prof. Epstein appeared to have based his view on the topic on an assumption that is widely held, rarely stated, and that logically leads to shocking conclusions.
The subject was legal action proposing that an ape be recognised as enjoying certain ‘human rights’. Prof. Epstein suggested he’d be willing to entertain the idea when the chimpanzee could argue its own case. This suggests that the rights attach to the creature as a result of its intellectual (and communicative) abilities.
Prof. Yoo wisely noted that this was a category error: that a human enjoys human rights because he or she is a human, not because he or she can act like a human (my words rather than his). A human baby, he noted, is entitled to human rights although such a child could not represent him or herself in a court.
In certain philosophical and scientific circles it is an article of faith that rights attach to intelligence, even though many of the same people deny that measures of intelligence have any value. This leads to weird — and, in my view, evil — hierarchies of rights-holders of the kind promoted by ‘ethicist’ Peter Singer, wherein an intelligent dog has more rights than a newborn baby, especially if the latter is intellectually disabled.
The problem with Singer’s view — aside from the evil outcomes it facilitates — is that it is logically unassailable … If, that is, you accept the premise that our rights are based on intelligence.
Thought experiment: if the space aliens that Professor Yoo mentioned in the podcast were to appear tomorrow and they were our equals or superiors in intellect, how would we be obliged to regard them? Automatically embrace them in the spirit of personhood? Should they be granted the full range of ‘human’ rights or negotiated with to develop a set of reciprocal, enumerated rights?
It’s far more likely that we’ll have to deal with these issues closer to home. In the Robert Heinlein short story ‘Jerry Was a Man’ ‘enhanced’ chimpanzees, capable of speech, have been developed to perform menial tasks. A court finds that they entitled to human rights.
Likewise, machine intelligence may one day reach the stage of being comparable with that of humans. If they possess self-awareness (or such a reasonable facsimile of self-awareness that we are unable to tell the difference), would they no longer be property but persons?