Dr. Kimmerer's Talk

Author of the KU common book, Dr. Kimmerer spoke to students at the University of Kansas this past week.

More than two thousand community members attended Dr. Robin Wall Kimmerer’s presentation hosted by the Hall Center for the Humanities. Kimmerer, a scientist and member of the Potawatomi Nation, wrote this year’s KU Common Book, Braiding Sweetgrass: Indigenous Wisdom, Scientific Knowledge, and the Teachings of Plants.

During her presentation, Kimmerer elaborated on an ethical framework governing human conduct towards nature, a central idea in her book. Based on values such as respect, justice, and restoration, Kimmerer argued that humanity’s relationship toward all beings must be based on reciprocity and minimization of harm, emphasizing a “kincentric” perspective.

“We are all members of a democracy…where everyone gets a say, where all of the world's intelligences come together for the thriving continuity of the living world,” Kimmerer said.

As I listened to her, I thought of Kimmerer’s biocentric view and its implications in the law.

According to the Due Process Clause in the Fifth Amendment, “No person shall ... be deprived of life, liberty, or property, without due process of law.”

As I argued in my last column, an important question in the interpretation of the Constitution is one’s definition of personhood. When Gouverneur Morris wrote “We the people,” the distinction between “people” and “person” was strained. Many persons, such as slaves, were not people because “people” referred to active participants in the political process, professor Akhil Reed Amar of Yale Law School wrote in his book America’s Constitution: A Biography.

Times have changed, and our definitions of people and persons have become ever more inclusive, as the late Justice Ruth Bader Ginsburg said. It extended to minorities and, controversially, corporations. So, can it also accommodate animals? 

It depends on our ethical framework. For an argument based on Thomas Hobbes’ social contract, animals must renounce some rights to coexist within society. But because duties imply rights, animals must be prepared to protect the rights of other members in a society. Animals must also consent and understand the repercussions of their tacit consent.

On the other hand, on what basis do we abridge the notion of rights on animals? Is it that it dehumanizes and demotes us to equal footing with animals, even though we are scientifically animals? Is it that it dismantles human exceptionalism and dominion? Animals, like humans, feel pain. They are intelligent and autonomous — in diverse ways. They are socially complex. By arbitrarily excluding them from personhood, we are discriminating and engaging in a form of speciesism.

To be sure, both arguments have merit. Animals cannot vote or hold office. They cannot execute duties or follow prescribed laws. However, excluding them from personhood based on duty is capricious. 

Some humans, such as comatose and disabled persons and infants, cannot perform all legal obligations. Even so, we do not demote them; we accommodate them as we strive toward an egalitarian society. Infringing upon them based on ableist policies is morally abhorrent and unjust, but why is it seemingly justifiable when done to animals? 

Recognizing personhood in animals does not entail that we demote ourselves; it entails elevating them to a higher level. And it does not mean that they must have the same political and social rights as us.

One way to make the distinction is to draw on prima facie rights, rights that can be abridged in extenuating circumstances, weighted with human and non-human interests. As an example, while animals may have a prima facie right to life, if food is scarce and there are no practical ways for humans to eschew famine, “one may — as respectfully and humanely as possible — kill a being whose prima facie fight to life is not as strong as one’s own,” Pennsylvania State University professor Evelyn Pluhar said.

From a capability approach, professor Martha Nussbaum of The University of Chicago Law School argued animals need the right to life, bodily health and integrity and control of their environment, among others. While each framework achieves different results, all legal theories seek to harmonize the dichotomy between animals and humans.

Asked about her ethical framework, Kimmerer hesitated to ascribe her ideas to any one. It is a blend of virtue ethics, contractualism, deontology, and right-based frameworks, and it provides guidance, rather than prescription, for human conduct with nature. 

“If what we aspire to is justice for all, then let it be justice for all of Creation,” Kimmerer wrote in her book.

Is it just to exclude animals from personhood? Is it just to categorize most animals as property with little to no rights? 

I know where I stand. What about you?

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