If Animals Sued Humankind, Would They Win?

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A thousand years ago in Basra, a group of thinkers wrote a strange story: the animals take human beings to court and ask, "why do you imagine that we are your property?" The human defence is the very one we still use today — reason belongs to us, and therefore the world is ours. But is that defence really sound, or do we win only because we are both the judge and the accused in this case?

In the middle of the tenth century, in Basra, there worked a community of thinkers who had made a principle of concealing their names. They called themselves the Ikhwan al-Safa, the Brethren of Purity. They left behind an encyclopaedia made up of fifty-two epistles: numbers, musical intervals, the movement of the stars, the rules of logic, the descent of the soul into the body and its rise again. Among those fifty-two texts, one resembles none of the others. It is neither a textbook nor a treatise. It is a court record. Its subject is the case the animals bring against humankind, and the place where the case is heard is the court of the king of the jinn.

The scene is set like this. In the middle of the Green Sea, somewhere near the equator, lies the island of Sa'un. Its ruler is Biwarasp the Wise, king of the jinn; the text presents him as a sovereign who is just, generous, a refuge for the stranger. A ship breaks apart in a storm and human beings are cast up on this island. The island is fertile; they stay, they settle, they sow and reap. And then they lay hands on the island's older inhabitants. Ropes go around necks, loads onto backs, pens are built, gates are closed. The animals, who had roamed freely on those plains since the time of their ancestors, one day speak among themselves and resolve to choose a delegation and come before the king. Something happens that is rarely found in the history of literature: the animals take the plaintiff's seat, and the human being takes the chair of the accused.

The mule speaks first. It describes the iron forced into its mouth, the loads piled on its back beyond what it can carry, the whip that comes when it slows; and being fed not when its belly is empty but when its work is done. The ox and the donkey describe a working day that begins before sunrise and ends in the dark. The ram speaks less of its wool being taken every year than of the thing that waits for it at the end. The camel speaks of thirst, the elephant of chains, the hare of being chased for sport. Then the bee takes the floor and lays out the finest point in the whole case: it made its honey for its own young, not to be given to anyone. When a human being comes and takes it, he is not accepting a gift; he is emptying out a property. The parrot is left for last, and it imitates the sentences human beings use to explain their own superiority; heard from its beak, those sentences ring a little strangely.

The human side makes its defence in an orderly way, not a scattered one. Learned men of every nation rise in turn and build the same skeleton of argument: we are the masters, you are the servants. As proof they point to their upright posture, the gripping power of their fingers, speech, reasoning, the arts they practise, the cities they have built. They recall the trust that the sacred texts placed in humankind. Then they come to the proof they rely on most: your meat, your milk, your wool, your strength serve us; and if the existence of one thing serves another, then it was created for that other's sake.

The animals' answer cuts that last proof straight through the middle. Benefit is no proof of ownership. The lion, too, eats human beings; does that mean the human being was created for the lion? The mosquito feeds on human blood; does the human being become the mosquito's property? They object to the matter of upright posture as well, but not with pride — with an inventory: our bodies are born complete. Our fur is on our backs, our weapons are on our faces, we find our way with no one to show it to us, and we run within a short time of coming into the world. The human infant, meanwhile, is born the most helpless of all living creatures; for years it must be carried, clothed, fed. Your arts, then, are the product not of your superiority but of your deficiency. You invented weaving because you had no fur, the house because you had no shelter, the weapon because you had no teeth. And with that same ingenuity you also invented the bit, the whip, the cage and the butcher's hook; these did not exist in nature, they arrived with you.

The most striking thing about this trial is perhaps not what the two sides say, but who sits on the bench. The judge is neither human nor animal. He is a jinni; a third intelligence, outside both parties, bound to the interest of neither. The writers in Basra can hardly have chosen this by accident. The hearing lasts for days, the court disperses, and Biwarasp does not announce his verdict that day.

The ground of the argument in Basra was this: are we doing the animal an injustice, and if so, how great an injustice. Seven centuries later, in Europe, the defence made an entirely different move. It stopped debating the degree of the injustice and opened up for debate the very existence of the plaintiff.

In sixteen thirty-seven, in Holland, Descartes published his Discours de la méthode, the Discourse on the Method. In the fifth part of the book he describes the animal body, from beginning to end, as a mechanism: the heart is a pump, the vessels are pipes, the nerves are pull-cords, and the muscles are bellows that swell and shorten as fluid flows through them. This description did not startle the people of his day the way it startles us. In Descartes' youth there were water-driven grotto machines in the royal gardens of France, at Saint-Germain-en-Laye: when a visitor stepped on a certain stone, figures playing instruments would begin to move, a goddess would hide herself, a sea god would come forward. And the clock towers of the cities demonstrated daily that a gear and a spring, without knowing what they were doing, could produce an unerring order.

From this Descartes draws two criteria. The first is language, though not in the sense of making sounds. A machine makes sounds too; touch it and it may cry out. What distinguishes us is that the one in front of you can arrange words afresh so as to reply appropriately to everything you say. The second is the difference between doing something through knowledge and doing it through the arrangement of one's organs. A clock keeps time better than we do, but the clock has no notion that there is such a thing as time. For Descartes the animal is like this: an automaton made by nature, far surpassing every device that has come from human hands.

Here one has to be careful, because Descartes himself was more cautious than his students. In a letter of sixteen forty-nine to the English thinker Henry More he says it plainly: he is speaking of thought, not of sensation; and in so far as sensation depends on a bodily organ, he denies it to no animal. In the same letter he goes further, writing that in his view it cannot be proved that there is thought in animals, but neither can it be proved that there is none, because the human mind cannot reach inside them. That sentence, written in the last year of his life, is not a claim. It is an admission that he does not know.

Those who came after did not carry that caution with them. It was a period in which the method was less attractive than the conclusion. One of the memoirists of the Port-Royal circle records that living animals were cut open and examined there, and that the sounds they made were received as the sound of an organ pipe or of a stretched spring. According to Fontenelle, the philosopher Malebranche kicked a pregnant dog that had brushed against his leg, and when the man beside him recoiled, answered: don't you know that it feels nothing at all? The story itself is an anecdote, but the mentality it describes is a mentality on the record.

Put in the language of the courtroom, this is the strongest strategy the defence can find. Easier than proving that you are in the right is proving that there is no one across from you. If the scream is the noise of a spring, there is no pain; if there is no pain, there is no victim; if there is no victim, the case is dismissed.

The sharpest answer to this defence within its own century came from Voltaire. In the article on animals in his Philosophical Dictionary he describes a dog that has lost its master: searching every room, pacing restlessly, and at last finding him and showing its joy with its whole body. Then he asks his question: to the man who nails this dog to a table and cuts it open alive — what are those nerves, the very same as your own, there for? To feel nothing?

The machine defence lost its standing in that century, but it did not disappear; it only changed clothes. Today nobody says, in the crude form, that an animal does not feel. What is said is this: we cannot really know what is going on inside it. The strangeness of that sentence is that it works in one direction only. The same we cannot know is never raised about the person at the next desk.

In seventeen eighty-nine, in England, a philosopher of law broke this closed circle with a footnote. In the last chapter of Jeremy Bentham's An Introduction to the Principles of Morals and Legislation, squeezed in at the bottom of a page, there are a few lines.

Bentham begins by showing the inconsistency of the criteria. A full-grown horse or dog is, beyond comparison, a more rational and more communicable creature than an infant of a day or a week old. So if reason and speech are taken as the measure, that measure does not fall where it is wanted; it leaves the infant outside and the horse inside. Then he writes the famous sentence: the question is not, can they reason, nor is it, can they talk; the question is, can they suffer. And right beside it he sets a comparison: the blackness of the skin can be no reason for abandoning a human being to the whim of a tormentor. He was writing this in a world where slavery was still legal.

What Bentham did, technically, was to shift the boundary. Until then the circle of morality had been drawn according to capacity: what can a being do, can it reason, can it speak, can it make a promise. Bentham drew the circle according to vulnerability: what can be done to that being. The first criterion takes in the strong. The second takes in the one who suffers.

Bentham's own limits are worth stating, in the interest of honesty. He went on eating meat, and argued that a painless death did no wrong to the animal; his reasoning was that the animal does not anticipate its death in advance, and that the end awaiting it in nature is usually far worse. Whether that calculation is correct still sits at the very centre of the debate today — but the ledger in which the account was opened is his.

In those same years, in Königsberg, Kant was arriving somewhere else entirely. In his view we have no direct duties toward animals, because duty arises only toward rational beings who are ends in themselves. Cruelty to an animal is wrong all the same, but only indirectly: it dulls the capacity for pity within a person and hardens them toward other people as well. The whipped animal, in other words, is not a victim — it is a wound opening in the character of the one wielding the whip. Schopenhauer could not stomach this view; he said that Kant's conception of morality treated the animal as a thing, and wrote that European philosophy had a great deal to learn from Asian thought on this question.

In the twentieth century the footnote turned into a programme. In nineteen seventy, Richard Ryder gave a name to an attitude that mirrors the structure of racism: speciesism — discounting a being's interests simply because it belongs to another species. In nineteen seventy-five Peter Singer's Animal Liberation appeared; Singer argued not that animals should be granted human rights, but that where pain and pleasure are concerned, an equal interest should be given equal weight. In nineteen eighty-three Tom Regan went further: some animals are the subject of a life — they have memories, expectations, preferences and a future of their own; and a being like that cannot be a mere instrument for someone else's purposes.

Meanwhile, the question was also being worked on in laboratories. Researchers measured how widespread pain receptors are among vertebrates; how fish, once harmed, do not merely flee but alter their behaviour for days afterwards; and how that alteration reverses when painkillers are administered. In twenty twelve, neuroscientists gathered at Cambridge signed a declaration on consciousness: the neural structures that generate consciousness are found not only in humans but in all mammals, in birds, and in certain other creatures such as the octopus. A similar declaration published in New York in twenty twenty-four pushed the boundary wider still, stating that the scientific grounding is strong for birds and mammals, and that the possibility of conscious experience must be taken seriously for reptiles, fish, cephalopods, crustaceans, and even insects.

The upshot rests in a strange place. What the mule of Basra had to say can now be measured. The existence of suffering is documented with a certainty unimaginable two hundred years ago. But evidence is not standing to sue. A being whose suffering has been proven still has nowhere to file a petition.

Other ways of living with that silence had been tried as well. In Istanbul, in Bursa, in the old cities of Anatolia, there are little stone houses carved into the walls of mosques, caravanserais, madrasas and fountains: bird palaces, complete with eaves, windows, sometimes even columns. It is architecture at the scale of a bird — something built into a wall for a bird, and not placed there as a display for anyone. In the records of charitable foundations one finds line items set aside for birdseed, and revenues left to buy meat for the street animals. In nineteen twenty-eight Ahmet Hâşim wrote about a place he saw in Bursa: the Gurabahane-i Laklakan, the house of forlorn storks. It was a place where storks with broken wings, unable to migrate, were cared for.

There is a clear foundation of ideas behind this behaviour. The Quran says that the animals walking the earth and the birds flying on their wings are communities just as humans are. The body of hadith tells of a person who drew water from a well for a thirsty dog and was forgiven, and of a person who shut a cat away and let it starve and was held to account for it. In Ibn Tufayl's Hayy ibn Yaqzan, the man on the island reorders his own eating as he matures; he turns to fallen fruit and to seeds that have already multiplied themselves, trying, as far as he can, to take nothing living out of the world.

But the registers of that same city hold another entry. In nineteen ten, the street dogs of Istanbul were rounded up and left on a bare rock in the Sea of Marmara — Sivriada, known in common speech as Hayırsızada, the island of no use. There was no water there, no shade, no food. Tens of thousands of animals died; by some accounts, when the wind blew from a certain direction the sound carried to the city. The hand that carved the bird palace and the hand that loaded that boat belong to the same culture. The issue is not hypocrisy but category: one was counted as a subject of compassion, the other as a line item of municipal administration. Which column an animal is written into determines what will be done to it.

In the last century, a handful of animals came very close to shifting that column. An organisation called the Nonhuman Rights Project petitioned the courts on behalf of large animals held in zoos; what it sought was neither damages nor punishment, but that old legal remedy demanding that a person deprived of liberty be brought before a judge. In June of twenty twenty-two, the New York Court of Appeals rejected one such petition, filed for Happy, an elephant at the Bronx Zoo, by a vote of five to two. The majority wrote that this remedy was open to persons, and that widening its scope would bring consequences impossible to calculate. The judge who wrote in dissent said that the conditions in which the elephant was held amounted to an injustice. In Argentina, two rulings went the other way: in Buenos Aires, the description nonhuman person was applied to Sandra, an orangutan, and in twenty sixteen, in Mendoza, a petition was granted for Cecilia, a chimpanzee, who was sent to a sanctuary in Brazil. In twenty twenty, in Pakistan, the Islamabad High Court, ruling on the case of Kaavan, an elephant kept in chains for years, grounded its decision in Islamic sources governing the treatment of animals and ordered the elephant released.

There is another line of development that proceeds without entering the debate over personhood at all. The European Union, in the thirteenth article of the Treaty of Lisbon, which came into force in two thousand nine, defined animals as sentient beings. In twenty twenty-two, the United Kingdom passed a sentience law covering octopuses and lobsters alongside vertebrates. In Turkey, the Animal Protection Law, number five thousand one hundred ninety-nine, adopted in two thousand four, was amended in twenty twenty-one to remove animals from the category of objects and property; acts of torture and killing were tied to prison sentences.

While all of this was happening, the scale of the case grew to a place never seen before in history. Today, around eighty billion land animals are slaughtered worldwide every year; the number taken from the water is so vast that no count by head is even kept — it is measured by weight. And yet, in the daily life of cities, none of this makes a sound. The slaughterhouse moved out of the city centre to the edge, then beyond the edge of town; it went into windowless buildings, and the trucks began moving at night. The silence on the plate is not the absence of a scream; it is distance. This may be the only working form the machine defence has left today: instead of saying the animal does not feel, keeping the place where it feels outside the field of vision.

The question of what that court in Basra decided finds its meaning here. Biwarasp ended the case in favour of the human beings. But it is worth looking at how he ended it. Not by refuting a single one of the things the mule, the ox, the ram and the bee had said. The final word from the human side was this: we are beings who will answer for what we do, a responsibility has been laid upon us, there is a test and there is a reckoning. The judge accepted that claim. Which means the reasoning behind the ruling was not that humanity is innocent, but that humanity is responsible. A verdict that reads like an acquittal and works like a sentence. Nearly everyone who reads the text notices the same thing: on every question of fact, the animals had won.

If the same case were brought today, we are the ones who would convene the court. The party writing the law, appointing the judge, choosing the expert witness and making the defence is one and the same party. No one can be the judge of their own case; that is precisely why, a thousand years ago in Basra, a jinn was seated on the bench. The only honest thing we have to put in the place of that third mind is the question we hear inside our own heads standing in front of a shelf at the market, or in the moment we sit down at the table. The record is closed and the judgment handed down; the only line left blank is the one that says how the responsibility is to be paid.

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