TALKING ANIMALS, LAW, PHILOSOPHY-AND BEYOND

Raffael Fasel
unpublished
Introduction In his recent book, the primatologist Frans de Waal asks if we are "smart enough to know how smart animals are." 1 He explains that the history of ethology is replete with examples of unsuccessful attempts to determine whether other animals possess featuresself-awareness, language, culture, and so onwhich we humans deem to be particularly valuable. Self-awareness is a case in point. In one study, three elephants were tested on their ability to recognise themselves in mirrors.
more » ... s in mirrors. Primates, dolphins, and other animals generally believed to be "smart" had already passed the so-called "mirror test" that is often used as a benchmark for consciousness. In the mirror test, subjects are marked somewhere on their body, and then expected to investigate the mark on their own body rather than that of their mirror image. At first, none of the three elephants displayed the anticipated behaviour. As it turned out, the humans studying the elephants had used mirrors that were too smalland, on top of that, inaccessible to the pachyderms' trunks. 2 Once the design of the experiment had been improved, one of the elephants successfully passed the test. The two other test subjects failed to inspect the marked parts of their bodies, but instead used the mirror to analyse other, non-marked parts. 3 Can we conclude from this study that the first pachyderm is self-aware while his two fellow elephants are not? For de Waal, the issue with the mirror test, as well as with similar tests which aim to identify human-like traits in animals, is that they are often insufficiently adapted to the unique natures of the beings under investigation. The mirror test, for instance, is based on visual self-recognition, which works well with human beings, for whom the sense of sight is essential. 4 For animals that primarily use different 4 senses than vision, on the other hand, the test is ill-suited. Dogs, for instance, rely largely on olfaction and hearing, and have thus far not been able to pass the test. 5 For this reason, such tests are particularly prone to yield false negativesthereby playing to existing prejudices about the inabilities of other animals. This is not to say that studying the cognition and behaviour of other animals is a futile endeavour. As de Waal points out, the key consists in "trying to understand [animals] on their own terms", rather than on human terms. 6 Tests like the mirror test usually say more about the unfeathered bipeds conducting them than about their animal "subjects". In particular, these tests bespeak the human urge to determine which (if any) features make members of the human species special, and which (if any) features they share with other earthlings. This urge has become particularly prominent since an event we can refer to as the grounding of humanity. Humanity became grounded in a "merely" earthly existence with its inclusion in the Linnaean taxonomy and its subjection to the studies of other naturalists. These naturalists examined the human being as one among many animals, thereby effectively stripping it of the special ontological status many believed it to possess. The intellectual importance of this eventwhich is, in many ways, still ongoingcan hardly be overestimated. Long-standing claims about the superiority of human beings who, created in the image of God, were all supposed to be equally endowed with an immortal soul, seemed to be losing their appeal. With the almost exponential growth of knowledge about nature in the Enlightenment, it became increasingly difficult to defend the claim that humans were exceptional. The boundary between them and other animals was called into question from within, as naturalists were debating whether they should classify newly discovered tribes as human or non-human. And it was challenged from without, through the discovery of orang-utans and other primates which many suspected might belong to the human species. 7
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