Reasonableness, Murder And Modern Science Rem B. Edwards and Frank H. Marsh ur murder laws have been and now are designed to afford protection against killing to reasonable creatures. In a number of states, murder laws are so worded or so interpreted by the courts that they define "murder" as the killing of areasonable creature in being instead of as the killing of a human being. Even those states which define murder as the killing of a human being presuppose the importance of rationality, since their laws have their roots in the conceptual and legal tradition of English common law which accepted the Aristotelian definition of "man" as "a rational anitnal." Consider for a mornent the following laws and judicial decisions which still make it quite evident that the intent of the law is to afford protection against killing to reasonable creatures, all of which explicitly reaffirm the common law definition of murder. In Tennessee, the murder law (which is the common law definition in toto) reads: "If any person of sound memory and discretion, unlawfully kill any reasonable creature in being, and under the peace of the state, with malice aforethought, either express or implied, such person shall be guilty of murder."l In Michigan, "murder" has been judicially interpreted to mean: "Murder is where a person of' sound memory and discretion kills any reasonable creature in being, in the peace of the state, with malice aforethought, either expressed or implied."2 In Delaware, the murder law was judicially interpreted to cover the following: "Where a person of sound memory and discretion, unlawfully kills any reasonable creature in being with malice 24 aforethotrght, is guilty of murder."3 In Ir./ew Jerse), the corlrts have also explicitly interpreted murder to be killing a reasonable being with malice aforethought.a Many other states such as West Virginia, Vermont, Rhode Island, Pennsylvania, and North Carolina, affirm the common law definition of murder as the killing of a reasonable creature without explicitly stating the definition itself.5 Other states have kept the common lan definition but have inserted "human being" for "reasonable creature" in the definition of' "murder," but many of these states fbrmerlr. had murder laws which were so worded,6 and "human being" still implicitly' involves rationalin in the definition of "man" as "a rational animal." The issues which we wish to raise concerning reasonableness and murder are thus relevant to our entire legal tradition, either explicitly or implicitly. It has been and still is commonplace to assume nair,ell' that all human beings are reasonable creatures. It is also assumed that onl)' human beings are reasonable creatures. These two propositions are logically independent of' one another, and their truth is now open to serious challenge. We propose to develop such a chalREM B. EDWAftDS is the author o1[ Reason and Religion, and FRAI'{K H. MARSH is an attorney and candidate for the Ph.D. in Philosophy at the Uniuersity of Tennessee. Both haue contributed ideas to this paper, particularly the introduction; Edwards is the primary author of the f,rst section and Marsh of the second. t t lenge based largely upon recent developments in science and medical technology. Are all reasonable creatures in being men? It is 1'et to be determined whether the framers of those murder laws which explicitly afford protection against murder to "reasonable creatures" are to be commended for their farsightedness or condemned for their carelessness. Since this definition of "murder" includes all "reasonable" creatures and is not limited in its explicit wording to "human" creatures, it could presumably be applied if at some point in the future one of our citizens killed with premeditative malice a "reasonable" visitor from outer space. Since we are not confronted immediately with such visitors, however, there are problems enough with respect to the application of the law to current denizens of our states. ls it murder in Tennessee (and elsewhere) to kill a chimpanzee?7 In the past this question has been easily answered in the negative, for it has seemed so obvious that chimpanzees are not reasonable creatures. Of course, we have known all along that they possessed an acute problem-solving intelligence, brt this alone has not qualified them for classification as "reasonable creatures." We have in fact applied a m.uch stron.ger criterion than the weak one Darwin recognized, i.e., possession of an acute problem-solving intelligence, in excluding them from the class of'"reasonable creatures." What is this strong criterion, and does it really apply to chimpanzees? The strongest criterion for the correct application of the concept of "reasonable" to a living being is the ability to use a larrguage meaningfully'. The ability to use "real speech," Descartes claimed, "is the only certain sign of thought."s Even the potential for doing so is thought to suffice, for human infants cannot usuallv do this until around the age of l8 to 24 months; yet we do classify them as "reasonable beings" and recognize that willfully and maliciouslr killing a small infant who has not yet developed its potential for using language meaningfulll is murder. It is not sufficient that a living being merely be able to "parrot" the sounds of a human language for it to be correctly classified as "reasonable." We do not think that it is murder willfully to kill parrots, parakeets, mynah birds, talking bulldogs, etc., for we do not recognize them as reasonable beings. What they lack, despite their Reasonableness, Murder and Modern Science ability to imitate human sounds, is (1) the ability to correlate conventionalized symbols (as opposed to natural calls and cries) with their denotated objects and to generalize their usage beyond the context of their initial introduction, (2) the ability to combine groups of those symbols into sentences constructed according to conventionalized rules to syntax and to construct novel meaningful combinations, and (3) the ability to communicate with other language-users to make their meanings, intentions, and desires known and to facilitate symbolic communication for its own delightful sake or as a means of achieving their goals or satisfying their intentions and desires. A.y living thing whrch can learn and use conventionalized symbols in these three ways may be correctly said to have the ability to use a language and to be a reasonable being. This is not being offered as a minimal definition of "language," for any creature with such linguistic facilities will be a clear-cut user of language. or the greater part of human histor/, we have assumed that only members of the human species are reasonable beings in the aforesaid sense. We have known, of course, that some members of our species do not fulfill the definition, for there have always been profoundly retarded humans who did nor satisfy any of our three criteria for language and reasonableness. As late as ten years zgo, this assumption was virtually unchalleneeable, for all attempts to teach a uerbal language to even our closest animal relatives, the chimpanzees, were abysmal failures. Within the past ten years, however, researchers have discovered that it is quite possible to teach graphic and gestural languages to chimpanzees. Paucity of imagination alone prior to that time forced researchers to equate language itself with uerbal language. Within the past "Is the chimpanzee who can articulate an awa,reness of his ou)n identity . ., and communicate in depth with people and with others of his ou)n hind, not a reasonable creature in being?" 25 decade, however, a number of non-verbal languages have been successfully taught to chimpanzees, who have learned to communicate quite admirably with their human mentors by means of such non-verbal langllage systems and which do satisf,v our three criteria. For example, at the Yerkes Regional Primate Research Center at Emory University in Atlanta, Ga., chimpanzees have been taught a complex computerized language;e at the University of Califbrnia, Santa Barbara, other chimpanzees have mastered a graphic language system based on plastic block symbols;10 and at the Universities of'Nevada and Oklahoma, chim panzees have been taught a language. system which they' now trse to talk to humans and even to one another, and which is actually used by' innumerable human beings f unctioning in human society-the American Sign Language for the deaf.l1 This latter achievement is particularly important lor our present pllrposes. Do we or do we not recognize deaf persons as reasonable beings? i\lany of them are certainll, unable to learn and use auerbal language, but deaf-mutes do successfulll' use a gestu"ral Tanguage-the same language which many chimpanzees are now able to use. E,ven Descartes recognized the gestural speech of.tl-re deaf as an instance of "real speech."l2 We are thtrs forced to face the following dilemma: either such deaf persons are not reasonable beings and it is not murder willfully to kill thern; or chirnpanzees are reasonable beir-rgs, and it is murder to kill them. Er,en those chimpanzees which have not actually' learned strch symbolic languages have the potential f.or learning them, and this alone is sufficient for recognizing a newll'-born human infant whose umbilical cord has been severed as a reasonable creature in being, c.zpable of being murdered. We do not know as yet what the upper limit of the developrnent of linguistic reasonableness in chimpanzees is. We do know that the)' can match the linguistic skills of a two-and-a-half to three-year-old human child. Even if the skills of a five year old turn out to be their maximum, it would seem that our murder laws would still apply to them, for our laws do not say or presuppose that murder involves the killing of a highly reasonable creatllre in being. And we should be very careful about introducing such adjectives as "highly" lest we exclude our own children from coverage by the law, and perhaps even ourselves if the standards are set high enough ! 26 Are all men reasonable creatures in being? It is tirne now to examine the premise that all men are reasonable creatures in being. Are all "human beings," as we understand the central notion of that term, reasonable creatures in being? Are there not some cases u'ithin a medical context that offer little room, if anr , for debating the question as to whether some dimension of rationality still exists in the patient? If so, it would seem that some valid exceptions could be offered to the criminal statutes on homicide being discussed here. For example, there are presentl\. "existing" in institutes provided for the retarded in all states, "beings" who simply vegetate. These "beings" cannot speak or communicate with others. They cannot move voluntarily, cannot feed themselr.,es. cannot sit up, and have no control over their bou'els and bladders. They simply lie in one position Llntil moved by an attendant. In most instances, thel'are unable to respond to the presence of heat or cold stimuli, or manif'est any discernable au'areness of light. One could plausibly argLre that these beings represent a very primitive form of'biological life within a human bodr,'. Ther definitel)' are not reasonable creatures. An even rnore primitive f orm of biological life exists in many irreversibly comatose patients where a patient exists without any functional brain cortex and is permanently deprived of his capacitl' for using langtrage. It is the absence of' cerebral function that provides the legitimacy of the brain-function approach to defining death.l3 Ger"reralh, in these cases, the patient's o'existence" is totalll, dependent on artificial life-support measures; however, in some instances a patient might spontaneously breathe, but this is the extent of his self-supportive f unctions. Are these beings, tl-re profoundly retarded and the irreversibly comatose patients, reasonable creatures in beins? And is the chirnpanzee lvho can articulate an awareness of his own identity, express a sense of joy and pain, and communicate in depth with people and with others of his own kind, not a reasonable creature in being? Because the law does at times question the utility and applicability of certain legal terminologies and redefines these terms to comply with contemporary needs, it is not unrealistic to suppose a negative application, at some time in the future, of the homicidal statute in question to the termination of a profoundly retarded being's life, or the life of an irreversibly comatose being. It would seem that most philosophical, as well as normative, definitions of "rationality" preclude the "beings" in our two examples from identification as "reasonable creatures in being" and would possibly include the chimpanzees in question. We can, perhaps, better understand the inclusion of the words "reasonable creatllre" in defining who can be a victim of homicide, by briefly' looking at the historical origin of their use. In doing this, we will see a continuing acceptance of the implication that simplr being born as Homo sapiens confers "rationalitr " and status as a "reasonable creature in being," though in fact, the intended use of'"rationalitr'" is the other way around. Prior to the fourteenth century, the ancient law was consistent in holding that anyone who procured the abortion of an u.nborn child by any means u'as guiltv of murder if'there was, at the time, a living fetus in utero. Obviously there were religious or,'ertones to the court's reasoning and up Lrntil the middle of the fourteenth centurv the term "reasonable creature in being" was not emplored.. However, the law began to recognlze an lnconslstency in its position on murderthat since there could be no homicide without a living htrman being as the victim, the killing of an unborn child cotrld not be murder, but instead, needed to be redefined as another crime. Thus, in order for murder to be applied, it became necessan for the fetus to be born alive and exist indeper-rdentlr as a "reasonable creature in being."la The fettrs born alive then became the "reasonable creatLlre in being" capable of being murdered. -fhe basic motivating factor underlying the use of"'reasonable creature" was to underscore the Aristotelian concept of man as a "rational animal." and to provide for "rationality" as the separatins element to be used in distinguishing man frorn animal. Whether or not man was ln ever\ instance a "reasonable creature" at birth \\'as not considered. The implication of man as a "reasonable creature in being" begins at the onset of' life and continues until death occurs in the traditional sense. This implication, with the unfolding of'the psychological and physiological ftrnctions of'the brain, is only now beine questioned. After the initial definition of-a "reasonable creature in being" in the fourteenth century, the courts continued to struggle with determining the exact time H,hen the status of "human being" was established. This struggle was strictly confined to the newborn fetus and its ability to survive independently from its mother and not to Reasonableness, Murder and Modern Science any reconsideration of the implicatior-r that be ins Homo sapiens carried with it "rationalitl'." Br midnineteenth century the English cases had not reached uniformity on whether breathine, herart action, severance of cord, established the status of "human being" for the purpose <-rf tl-re lau' of homicide. In American Jurisprudent:e, mally states adopted into their criminal codes the sarne definition of murder given by Lord Coke in l,ngland, except that in England the act of nrr-rrcler is committed "under the king's peace," where here it is committed under the peace of the state.15 [n coming to a decision as to when a child becontes a "reasonable creature in being," a -['ettnessee court ruled that a child must be born alive ancl have an independent circulation establishecl.l6 This decision is fbllowed in those jurisdictions still using Lord Coke's definition of'mttrder. "While the careful in meaning of haae paid the critical creature."' courts haue been interpreting the the phrase .. . they little attention to words 'reasonable While the courts have been caref ul in interpreting the meaning o{'the phrase "reasonuble creature in being," the accent has been on "in being" and they haue paid little attention to the critical it,ord.r "reasonable creature." The broad implication of' their meaning, as discussed, has gone for the most part virtually unchallenged; however', the groundwork fbr challenging the implication, at least scientifically, is now being laid by our new approaches to the dimensions of' rationalitr'. American courts have examir-red the ('()ncept of what it is to be a "reasonable creatrrre" in apparently only two cases.rT These cases \\'ere decided over a century zgo, and thclugh the court in both cases extended the meaning ol a "reasonable creature in being" to incltrde a slar e, a lunatic, or idiot, it does not go Llnnoticed that an irreconcilable inconsistency in the court's reasoning was also created that contintres with Lrs today-excusing the mentall1' def'ective f'rom criminal responsibility because of the absence o{. the element of rationality, while at the same tinre protecting the mentally defective as "reasonable creatures in being." 27 "The law is notoriously slow to moae or to change." In the Mississippi case of State v.Jones, tried in 182 I , the defendant Jones was charged with murder in the killing of a slave.18 The court was confronted with the question: Was a slave a reasonable creature in being such that he could be murdered? While ruling that in some respects slaves were considered as chattels, the court held that they were also considered in other respects as men. The court did not define or explain in what respects that slaves were considered as men, but simply reasoned that since a slave could be held responsible for homicide-the law viewirg them as rational beings capable of committing a crime-they can be victims of murder as rational beings, thus, they are included within the definition of a "reasonable creature in being."ts If the court had stopped here, the inconsistqncy to follow would not have emerged, and perhaps in time the criminal code would have been amended or modified to provide for a clearer definitive meaning of a "reasonable creature in being." However, apparently employing the same defective reasoning, the court extended the meaning of "reasonable creatllre" to include lunatics, idiots, and unchaste women. The latter (unchaste women) apparently provided protection to the prostitute and unfaithful wife. The only other case applicable to the question being discussed is the Texas case of Perryman v. State, which concurs with the Mississippi opinion.2o The legal inconsistency is obvious. A slave can be charged with murder because he is a rational being, and thus he can be murdered because he is a rational being. Howeuer, a mentally defectiue person can be murdered because he is a rational or "reasonable creature," bltt he cannot be charged with murder because he is not a rational being. The law, beginning with the reports of Lord Coke's First Institute of the Laws of England, allows that only t.hose persons who have not a want or defect of will are capable of committing a crime. This theory of responsibility has been kept intact to the present day as a viable legal doctrine. Hart 28 writes that in most contexts, the expression "he is responsible for his actions" is employed to assert that a person has certain normal capacities which society associates with its concept of rationality. The capacities in question are those of understanding, reasoning, and control of conduct. They constitute the most important criteria of moral responsibility.2l Thus, the law on one hand established that the mentally defective is not a rational being in order to excuse his criminal responsibility, and yet, on the other hand, allows through implication that he is a "reasonable creature ir-r being" and can be rnurdered. est we go so far that our discussion be misinterpreted as calling for the death of an "idiot," or a profbundly retarded child because he is no longer a "reasonable creature in being," we must return to the original thesis and intent of this paper. Are all men reasonable creatures in being; and, are all reasonable creatures in being T.n? It would seem that with. a proper examination of the terms "reasonable" and "rational" a termination of a profbundly retarded child's life or the life of an irreversibly comatose patient under our murder statutes would not be murder, while the killing of the educable chimpanzee discussed in Section I could be considered murder. The law is notoriously slow to move or to change; however, this fact has its meritorious moments as well as its negative moments. Even if our courts should decide by arbitrary fiat that our mlrrder laws do cover the profoundly retarded and the comatose human and do not cover the chim panzee, the theoretical and moral issues concerning "rationality" which we have raised in this paper would still remain to be resolved. The law is moving to digest, interpret, and spew forth again legal guidelines for what is happening within the new and exciting bio-ethical field. Only recently have we begun to re-examine such terms as "death," o'corpse," and "when life begins"; and to re-define these terms in law prompted by changes in science and medical technology and new social needs created thereby. We are calling fbr a corresponding reexamination of the meaning and scope of the crucial concept of "reasonable creature." We also call for a recognition of the fact that any law which prof-esses explicitly or implicitll'to give legal protection against murder to severely retarded human beings as "reasonable creatures" must also give equal protection to chimpanzees with equal or superior functional abilities. 1. See: Tennessee Code Annotated, (Indianapolis: Bobbs-Merrill Co., Inc.). Chapter 24, Section 39-2401. 2. See: People v. Potter,5 Michigan Reports l, Michigan Statutes 28-248. 3. See: State v. Jones, l8 Delaware 573. 4. See: 7 New Jersey Laws, 220. 5. In West Virginia, the court in State v. Dodds,54 West Virginia 289 states that "the general definition of the section does nor touch the common law distinction between murder and manslaughter." ln Vermont, the court inState v.Blair,53 Vermont 37 states "that the section has not altered the common law definition of murder," Statute 53-2301. In Rhode Island, in State v. Hattuay,52 Rhode Island 492, it is affirmed that "Statute does not change the crime of murder as it existed at common Iaw but merely provides for degrees." In Pennsylvania, the case of Commonwealth v. Exler,253 Pa, 155 states "that since the statute does not define murder, the word must be taken in its common law sense." See also Commonwealth v. Dorazio. In North Carolina, the court in State v. Ph1ne, 124 N.C. 847 states "that statutes where murder is divided into two degrees have not taken away any ingredients of murder at common law." Where a state's legal tradition is based upon common law, unless a statute expressly modifies the common law or is so interpreted by the courts to do so, the common law in question continues to prevail when applicable. 6. For example, the Georgia Iaw now reads: "Murder is the unlawful killing of a human being, in the peace of'the state by a person of sound memory and discretion with malice aforethought, either expressed or implied." Georgia Code 5-26-10. 7. The argument of this paper applies to all the great apes, parricularly the gorilla which seems to have even grearer linguistic porenrial than the chimpanzee. See Peter Swy'nne et al., "Almost Human", Neusweeh, Vol. 89, March 7, 1977, pp.70-73. For simplicity of exposition, we have concentrated on the chimp, though the basic pattern of argumentation may extend even to porpoises. 8. Reproduced in Tom Regan and Peter Singer, Animal Rights and Human Obligations (Englewood Cliffs: Prentice-Hall, Inc., 1976), p. 66. Reasonableness, Murder and Modern Science Notes 9. Details may be found in: Emily and Ola D'Aulaire, "The Ape that'Talks'with People," The Reader's Digest, Vol. 107, Oct. 1975, pp. 94-98. See also Duane M. Rumbaugh, ed.,Language Learning by a Chimpanzee: the Lana Projecl (New York: Academic Press, 1977). 10. See: David Premack, "Language in Chimpanzee?" Science,Yol. 172, May 22, 197 I , pp. 808-822; and Ann James Premack and David Premack, "Teaching Language to an Ape," Scientif.c American, Yol. 227, Oct. 1972, pp. 92-99. I l. See: R. Allen Gardner and Beatrice T. Gardner, "Teaching Sign Language to a Chimpanzee," Science,Yol.165, Aug. 15, 1969, pp. 664-672; Roger S. Fouts, "Acquisition and Testing of Gestural Signs in Four Young Chimpanzees," Science, Vol. 180, 1973, pp. 978-980; Peter Jenkins, "Teaching Chimpanzees to Communicate," in Regan and Singer, Animal Rights and Human Obligations, pp. 85-92; and Eugene Linden, Apes, Men, and Language (New York: E. P. Dutton & Co., 1974). 12. Regan and Singer,p. 63. 13. Institute of Society, Ethics and the Life Sciences, Task Force on Death and Dying. "Refinements in Criteria for the Determination of Death." Journal of the American Medical Association 221 $uly 3,1972),48-53. 14. 40 American Law Reports, Third Series 446 (Rochester, New York: The Lawyers Co-operatrve Publishing Company). 15. J. H. Thomas, Esquire, A Systematic Arrangement of Lord Coke's First Institute of the Laws of England,Yol. [II, Paternoster-Row, London, S. Brookes. 16. See Morgan v. State, 148 Tennessee Reports 417, Nashville, Rich Printing Company. 17. See State v.Jones, I Mississippi Reports 83, Printed at Courier & Journal Office, Natchez, Miss. and Perryman v. State,36 Texas Reports 321, St. Louis, Mo., The Gilbert Book Cornpany. 18. See State v.Jonrs, Supra, p. 83. 19. Ibid., p. 84. 20. See Perryman v. State, supra, p. 322. 21. H. L. A. Hart, Punishment and ResponsiDillt1 (New York: Oxford University' Press, 1968), pp. 2l l-30.