The new science of animal cognition is forcing countries to overhaul their laws

The law has not caught up to what we know about animal cognition.
The law has not caught up to what we know about animal cognition.
Image: AP Photo/Robert F. Bukaty
We may earn a commission from links on this page.

Hath not the lobster claws, organs, dimensions, senses, affections, passions; warmed and cooled by the same winter and summer as humans? If we boil it, does it not feel?

Swiss lawmakers, taking a cue from William Shakespeare and David Foster Wallace, have considered the lobster, and its ability to feel pain—and answered in the affirmativeAs of March 1, it will be illegal to boil lobsters alive, Swiss Info reported on Jan. 10. “Live crustaceans, including the lobster, may no longer be transported on ice or in ice water. Aquatic species must always be kept in their natural environment. Crustaceans must now be stunned before they are killed,” the new law provides.

The change is part of a broader set of Swiss rules grappling with the reality of animal consciousness. The new rules crack down on puppy farming, outlaw automatic devices that punish dogs for barking, and protect small, shy animals like guinea pigs by barring certain practices at pop-up, or temporary, petting zoos. Labs that use animals in scientific testing will also have to appoint animal welfare officers to ensure practices aren’t cruel.

The country has a history of being progressive on animal welfare issues. In 2008, Switzerland began requiring all prospective dog owners take a course in canine care before acquiring such a pet, and made it illegal to own just one guinea pig (they get lonely). Cats, horses, fish, goats and sheep each had a chapter devoted to them in 2005 Swiss animal protection legislation, which recognized that animals aren’t quite like other things we humans and our laws consider to be property.

But even as Switzerland provides animals with increasing legal protections, some animal advocates say the rights currently afforded to animals don’t go far enough. People for the Ethical Treatment of Animals in the UK issued a statement on the new Swiss lobster decision, saying it “is a small but powerful step” in the right direction, but that “killing lobsters by any method in order to eat them is cruel and unnecessary.” And Lauren Choplin of the non-profit Nonhuman Rights Project, which litigates for animals’ fundamental rights, told Quartz on Jan. 17, “in our view, the law hasn’t caught up to what we know about animal cognition, and it needs to.”

Indeed, our evolving understanding of animal consciousness suggests that we have some uncomfortable philosophical and legal work ahead.

Consciousness and conscience

The more we learn about animals, the more their consciousness weighs on the human conscience. On July 7, 2012, cognitive scientists, neuropharmacologists, neurophysiologists, neuroanatomists, and computational neuroscientists attending a conference on consciousness “in human and non-human animals” signed the Cambridge Declaration of Consciousness (pdf). It recognizes that, despite having very different brains and body structures, other species think, feel, and experience life in much the same way humans do. The evolutionary bases for sensation and emotions appear to have arisen in early insects and crustaceans, the scientists said. They declared the following:

The weight of evidence indicates that humans are not unique in possessing the neurological substrates that generate consciousness. Nonhuman animals, including all mammals and birds, and many other creatures, including octopuses, also possess these neurological substrates.

The scientific evidence of animal cognition puts humans in an awkward position. If nonhumans can think and feel and suffer pain, we ought to reconsider how we treat other creatures because the treatment reflects on us.

Perhaps because of the manner in which we kill and consume them, the lobster is a frequent subject of ethical debates about animal consciousness. When writer David Foster Wallace attended the Maine Lobster Festival back in 2004 (pdf), he found the matter of how we treat the giant sea insects impossible to ignore.

The lobster, after all, is our evolutionary elder. Lobster-like crustaceans have existed about 360 million years. That a lobster feels pain is evidenced by the fact that it won’t relax when boiled alive. Even in death, its carcass yields no flesh without a fight.

The anecdotal evidence is also backed by science. In 2013, a study published in the Journal of Experimental Biology electrically shocked crabs that entered two darkened rooms in a lit lab. The crabs, related to lobsters, avoided the dark rooms in subsequent tests—an indication that they had felt pain and preferred to not feel it again.

But what does it mean to be in pain—or just to be—when you are an ancient crustacean, with claws and a shell and a totally different kind of brain? Animal rights activists, scientists, writers, lawmakers, and philosophers are all trying to figure this out.

Species equality

To change the way we treat animals, we may first have to change the entire way we conceive of humans’ position in the world. The term “speciesism” was coined by writer and animal rights activist Richard Ryder in the 1970s. He argued in The Guardian in 2005 that the only moral position a human can hold is belief in equality of all species. Any being that feels pain, which is every live being he says, deserves humane treatment. Ryder wrote:

[Speciesism is] like racism or sexism, a prejudice based upon morally irrelevant physical differences. Since Darwin we have known we are human animals related to all the other animals through evolution; how, then, can we justify our almost total oppression of all the other species? All animal species can suffer pain and distress. Animals scream and writhe like us; their nervous systems are similar and contain the same biochemicals that we know are associated with the experience of pain in ourselves.

Humans, then, need to stop thinking the world revolves around them and consider the scientific evidence that people, here 300,000 years, are new to the Earth. Life has existed 3.5 billion years at least. What’s more, we’re not even necessarily the most advanced creatures on the planet—just the most powerful.

Diver, philosopher, and octopus researcher Peter Godfrey-Smith, of the City University of New York, explored octopus consciousness in his 2016 book Other Minds. He posits that octopuses evolved before humans. They seem to have been on Earth 1,000 times longer than us. Godfrey-Smith believes their intelligence is incomprehensible to us because it’s so different from our own, but not lesser. It’s as if evolution created (at least) two versions of the mind.

“An octopus is as different from a person physically as creatures can get,” naturalist Sy Montgomery, author of the 2015 book The Soul of an Octopus, told Quartz in October. “They have no bones, three hearts, blue blood, a beak like a parrot, venom like a snake’s. They can pour their baggy bodies through small openings; they can change color and shape; they can taste with their skin.” Yet, she says, she became “close friends” with a few wise cephalopods and has no doubt that they are conscious, perhaps much more so than humans.

Octopuses and cuttlefish in aquariums and oceans have shown wit and cleverness. They recognize, and distinguish between, friendly researchers and those that are mean. They’re curious and make jokes, coaxing humans to play and protesting human actions by spraying them with ink. They build cities. They hear infrasound. They are super skilled. They’re darlings.

But they’re also delicious. Which puts us in a pickle.

Moral quandary

Even those of us who claim to love other creatures—people like me—eat and wear and use animals. This hypocrisy reveals something disturbing about the nature of humanity: We will accommodate cruelty for our convenience.

The 18th-century philosopher Immanuel Kant recognized the way that our treatment of animals reflects upon us, despite his own belief that animals were mere things. He explains in his 1784 Lectures on Ethics:

If a man shoots his dog because the animal is no longer capable of service, he does not fail in his duty to the dog, for the dog cannot judge, but his act is inhuman and damages in himself that humanity which it is his duty to show towards mankind. If he is not to stifle his human feelings, he must practice kindness towards animals, for he who is cruel to animals becomes hard also in his dealings with men.

For those who see animals as equal to people, the stakes of our behavior are even higher. What does it say about us if we’re willing to imprison or hurt our companions and friends? How can I simultaneously adore my cat and pup and two dwarf goats, as well as my leather jacket and hamburgers? Accepting this distasteful ethical compromise because it’s aesthetically and gustatorily convenient to me is just one of many moral shortcuts I take every day.

That said, we all make moral calculations. The entry on The Moral Status of Animals in the Stanford Encyclopedia of Philosophy, written by feminist philosopher Lori Gruen, points out that absolutists demand we treat animals like humans. But that’s not the only moral choice, especially since foisting vegetarianism on people is also morally problematic. It prioritizes one set of values over another and limits the freedom of others.

Utilitarians take a more nuanced approach, arguing that meat-eating involves weighing competing interests. The moral significance of animal suffering in meat production, for example, is not necessarily an argument for vegetarianism. For a utilitarian thinker, if an animal lives well, dies painlessly, and is eaten by people who require the nourishment, eating it is morally justified. Similarly, in situations where economic, cultural, or climate conditions make vegetarianism impossible or inconceivable, killing and eating animals is justified. “The utilitarian position can thus avoid certain charges of cultural chauvinism and moralism, charges that the animal rights position apparently cannot avoid,” Gruen writes.

Legal lines

Laws too hobble along, making compromises and drawing strange, not-totally-morally-tenable distinctions. Legislation on animal rights won’t change fast, because status quo is actually what the law is always designed to maintain.

And so some courts draw fine lines over how much cruelty we can get away with: Eating animals is fine, say, but freezing them before they die, not so much. In Italy, the nation’s highest court ruled in July 2017 that keeping lobsters on ice before cooking them was cruel, even if they are boiled alive after and that’s arguably cruel too. “While [boiling] can be considered legal by recognizing that it is commonly used, the suffering caused by detaining the animals while they wait to be cooked cannot be justified in that way,” the judges wrote.

Lobster was altogether barred from menus in 2004 in the Italian town of Reggio Emilia. The town council revised a 1913 law updating how humans relate to animals. As a result, residents who kept birds were also required to ensure that the cages would be at least five times their wingspan—which is particularly notable because the town’s the capital of amateur bird-breeding in Italy. The dissenting member of the 22-person council, Marco Marziani, was offended. He said, “The idea of comparing the rights of an animal to that of human beings completely casts into the shadows the sacred role of human life.”

Fur fox sake

Most of the world may be on Marziani’s side for now. But change is undeniably afoot. Norway, for example, once the world’s premiere mink and fox fur producer, is getting out of the business. Lawmakers on Jan. 15 decided to phase out farming such pelts completely by 2025.

The country currently produces a million pelts a year and the industry employs about 400 people, generating around $46 million annually. “We’re shocked, shaken to the core,” Guri Wormdahl of the Norwegian Fur Breeders Association told The Guardian, noting that the nation’s 200 fur farms follow strict animal welfare rules.

“It’s not a very lucrative business in Norway,” countered Sveinung Fjose, a fur farming expert. “[Its loss] wouldn’t harm the Norwegian economy severely.” In 1939, there were 20,000 fur farms in Norway and the country was the world’s greatest fox and mink pelt producer. Now, China dominates the market, and in 2013 the Scandinavian country contributed only 1% of the world’s mink pelts and 3% of total global fox furs, according to a Norwegian government report.

Norway is following a trend. The Fur Free Alliance, an international coalition of 40 animal protection organizations, says that since 2004, bans on farming some species were introduced in the UK and Northern Ireland, Austria, Croatia, Bosnia and Herzegovina, the Netherlands, Slovenia, Republic of Macedonia, the regions of Wallonia and Brussels in Belgium, and the Brazilian state of Sao Paolo. Meanwhile, Switzerland, Germany, Italy, Denmark and Sweden are phasing out breeding all or some species for fur.

The coalition cites Fernand Etgen, Luxembourg’s Minister of Agriculture, who said in 2016, ”Animal welfare legislation requires profound reform because of what scientific advances had revealed about animals, and because of changes in how animals are viewed by human society.” It notes, too, that great fake fur is available today.

In a similar vein, big fashion designers, like Gucci and Michael Kors, are giving up on fur this year, opting for luxury faux. But as Marc Bain reported in Quartzy in December, the dead animal clothing industry is still alive and doing alright. In 2015, China generated nearly $17 billion with pelt sales, possibly because so much of its population lives in brutally cold regions. In warmer climes last year, fur-lined shoes, mules and flip-flops, were produced by everyone from Birkenstock to Gucci.

In another’s exoskeleton

Some philosophers believe the key to a truly cruelty-free world is more empathy for all creatures—whether or not they’re conscious or particularly brainy.

Gruen, for example, challenges the individualism central to most arguments for the moral status of animals. “Rather than identifying intrinsic or innate properties that non-humans share with humans, some feminists have argued instead that we ought to understand moral status in relational terms given that moral recognition is invariably a social practice,” she writes. In other words, because we are related to animals in an interdependent ecosystem, morality demands we recognize their status, regardless of an animal’s intelligence or the extent to which its skills are similar to, or different from, our own. She argues for “refining our empathetic imagination in order to improve our relationships with each other and other animals.”

Generating a sense of “entangled empathy” will set the human moral compass straight, and it doesn’t even require direct contact with animals. All it asks is that we try sometimes to sit in a cuttlefish’s shape-shifting skin or a lobster’s shell, to see that we need other creatures and act accordingly, as a family, if only distantly related to each other. “Even though it is challenging to understand what it is like to be another, and even though we are limited by our inevitable anthropocentric perspectives,” she writes, “being in respectful ethical relation involves attempting to understand and respond to another’s needs, interests, desires, vulnerabilities, hopes, and perspectives.”