Who Has Rights?

AI? Dogs? Pigeons?

1

What entitles someone, or something, to the status of a rights holder? I have just published an essay on this topic, with special reference to AI, in the Humanist Review of AI, which you can find here: https://humanistreview.ai/issue-1/sunstein-ai-rights/

That essay is part of a longer project on the holders of rights - on who holds rights, and which ones, and why. Here are a few edited excerpts from the essay, with a few additional remarks.

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Does AI have rights? Will it ever? I suggest that the answer depends on the answer to another question: Is AI capable of experiencing emotions, such as sadness, pleasure, regret, anxiety, joy and distress?

If AI lacks emotions, I urge, it lacks moral rights, and it should not be entitled to legal rights, either. But if and when AI has emotions, it has moral rights, and it should be entitled to legal rights as well. I shall be arguing that the capacity to experience emotions is a necessary and sufficient condition for the enjoyment of rights.

I recognize that a focus on emotions is contested and that some people will not accept it. In this context, there is no fact of the matter; the question of whether and when AI has rights is not an empirical one, subject to verification. One of my goals here is essentially to present a kind of picture and to hope that you will find it congenial.

Other pictures might be presented, emphasizing (for example) a capacity for self-awareness, a capacity to reason, or an ability to store memories, and I will sketch some of those pictures as well. My hope is that you will not find those other pictures so congenial. If the other pictures do seem preferable, there is not much, I fear, that can be said in response, except perhaps that those other pictures fit poorly, or not so well, with people’s firm judgments, and with your own judgments, about closely related matters.

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For orientation, let us go back to 1780, when the founder of utilitarianism, Jeremy Bentham, wrote one of the most important footnotes in the history of political philosophy. Here is the core of it:

The day may come, when the rest of the animal creation may acquire those rights which never could have been withholden from them but by the hand of tyranny. The French have already discovered that the blackness of the skin is no reason why a human being should be abandoned without redress to the caprice of a tormentor. It may come one day to be recognized that the number of the legs, the villousity of the skin, or the termination of the os sacrum are reasons equally insufficient for abandoning a sensitive being to the same fate. What else is it that should trace the insuperable line? Is it the faculty of reason or, perhaps, the faculty of discourse? But a full-grown horse or dog is beyond comparison a more rational, as well as a more conversable animal than an infant of a day, or a week, or even a month old. But suppose the case were otherwise, what would it avail? The question is not, “Can they reason?” nor, “Can they talk?” but, “Can they suffer?”

What bearing might this have on AI? Bentham was claiming that an ability to reason or talk is not a necessary condition for rights. If horses or dogs could not reason or talk, they would nonetheless be entitled to rights, so long as they are capable of suffering. Bentham also believed that the capacity to suffer is a sufficient condition for rights. A cat that suffers is entitled to rights, at least of certain kinds. It is also plausible to think that an ability to reason and talk is not a sufficient condition for rights.

My MacBook Air is certainly able to talk, at least in some sense, and it might be fair to say that it can reason as well, though we would need an account of what it means to reason to say for sure. But those capacities do not give it rights. (I am aware that this point is contested.)

Of course it is true, with respect to animals or AI, that one might simply embrace speciesism. On one view: Human beings matter, but other entities do not, even if they can suffer. Or human beings matter, but other entities matter much less, even if they can suffer. (That sounds like self-dealing, plain and simple.) Or human beings matter, and nonhuman animals matter, but AI does not matter, even if it can suffer.

But what is the ground on which one embraces speciesism of any kind? How can one do that without simply stamping one’s feet? (I do not mean that as a rhetorical question. I mean it as an invitation.)

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As a utilitarian (and indeed as the founder of utilitarianism), Bentham focused on pain and pleasure. There should be widespread agreement that if a potential holder of rights, such as AI, is like a rock or a piece of paper, it is a matter of moral indifference to us. A rock cannot enjoy life, and it cannot feel pain. In my view, we owe no duties to it (though admittedly, people who believe in “deep ecology” or similar ideas might not agree). Still, we can put some pressure on Bentham’s brisk discussion. When Bentham says that suffering is “the question,” what does he mean, exactly? Why is that the question?

Let me propose this amendment to Bentham’s famous claim: “the question is not, ‘Can they reason?’ nor, ‘Can they talk?’ Nor, ‘Can they suffer?’ Nor, ‘Are they similar to us?’ But, ‘Can they experience emotions, and what emotions can they experience?’”

That amendment is at once crucial and friendly. With it, we might conclude that even if a potential holder of rights cannot suffer, it is entitled to protection if it can experience other emotions, such as pleasure, joy, boredom or rapture. This is not what Bentham said, but it is a broadly Benthamite position insofar as it emphasizes the ability to have good or bad experiences.

That position also has implications for AI. If AI can mimic emotions, as it now can, it is entitled to exactly nothing in the way of rights. If AI can mimic a sense of self, it does not have rights for that reason. If AI seeks to protect itself, it does not have rights, any more than an airplane, also capable of self-protection, has rights. But if and when AI actually does feel emotions—pleasure, pain, joy, sadness—it is entitled to rights.

What rights? That is a different question. At a minimum, a right to be free from cruelty and abuse. And of course, human beings retain what might be the most fundamental right of all: The right to self-defense.