Interspecific continuity of normative systems (the end of the paradigm of human exceptionalism)

After fifteen years observing a troop of western lowland gorillas (Gorilla gorilla) outside their natural habitat under human care we believe we can demonstrate that gorillas govern their behavior and social interactions by norms functionally equivalent to legal norms that pursue group stability and social peace maintenance and can be “translated” into concepts created for legal science. Consequently, we conclude that also in the legal sciences and, especially, in the juridicial-criminal science, the paradigm of human exceptionality must be overcome to open the doors to reflect on the possibility of establishing the paradigm of continuity between human and non-human normative systems.

Main Text: The social sciences respect the paradigm of human exceptionalism -of the essential difference between 23 human nature and animal nature-even when evolution is scientifically proven. Law is a product of human society, 24 however, our observations invite us to conclude that also in the legal sciences, and especially in legal-criminal science, 25 the paradigm of exceptionality must be overcome to open the doors to reflect on the possibility that similarities 26 between species transcend the biological and are projected through behaviour, so that regulatory models with common 27 elements can also be identified.

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Here we show how a troop of western lowland gorillas in captivity is governed by norms functionally equivalent to 29 legal norms and how these can be "translated" into concepts created for legal science. This not only advances the 30 understanding of the ethology of gorillas but also the functions of criminal law and punishment in our societies.

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Legal norms establish patterns of behaviour with a claim of generality and stability 1 and sanctions for its 32 infringement. They are intended to motivate action 2 and are coercively imposed by an external agent 1 . A legal 33 system is an orderly set of (legal) norms based on values with rules that regulate its internal functioning. Human 34 society is built with law and because of law (ubi societas, ubi ius) 3 and the question we raise is whether this is also 35 the case in non-human societies.

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A society is conformed by a set of individuals and interrelated social situations that form a heterogeneous set with 37 the capacity to coordinate beyond the individual actions and particular intentions of each member 4 and it is not 38 exclusive to the human species 5 . The type of society that can emanate from each species depends on the 39 characteristics of its habitat and its social development 6 . For a society to be constituted, the individuals who make it 40 up must possess minimum capacities: a communication system 7 , the ability to carry out prosocial behaviours 8,9 , a 41 sense of social regularity or justice 10,11,12 that manifests itself in behaviours such as respect for possession 13 or police 42 intervention 14 and, in addition, they must possess culture, defined as the transmission of information between 43 individuals that is not inherited through genes 15 However, during ad libitum observations, which are less regulated but more extensive, we have been able to observe 106 them (F3). Obviously, in no instances have the behaviours been conditioned, provoked or claimed by the keepers or 107 researchers, but rather they are completely spontaneous. 113 Based on the observations made throughout the ad libitum phase, we have described the observed behaviours 114 stating the regularization and the underlying rule, as well as the consequences derived from non-compliance and the 115 exceptions detected. Once the two variables (behaviour and consequence) have been identified, we carry out a 116 functional analysis -comparative between the normative system that we have described in our troop of gorillas and 117 the one generally accepted in relation to human societies-. This is to determine if the relationship between behaviour 118 and sanction observed can be functionally equivalent to the difference between a behaviour defined as a crime in a 119 penal precept and its corresponding penalty. This process has two moments that are interrelated. Thus, once the 120 expected behaviour (normative behaviour) has been stated, we apply a logical process of deduction to deduce the 121 norm of conduct and the underlying value from this normative behaviour. This logical process of deduction is 122 similar to the one used by the Criminal Doctrine to deduce from the criminal types (secondary norm) the normative 123 mandate contained in the primary norm and the value that the criminal precept tries to protect (protected legal right). infractions. The values that underlie the norms of behaviour detected can be a power, a privilege or an advantage.

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They serve, not only to guide the correct behavior, but also to determine the modality and severity of the sanction 175 that entails the breach of the norm.

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Such rules may consist of mandates -which oblige one to act in a certain way-or prohibitions -which require 177 refraining from acting-. We also find permits that authorize to infringe a mandate or a prohibition in a certain 182

Prohibitions and mandates Protection of life:
We can observe the absence of physical force to cause death. In this sense, life is a value, the most 184 important and untouchable.

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Protection of physical integrity and prohibition of aggression: In a second evaluation, physical integrity would also 186 be protected, in this case, by prohibiting the use of physical force against another individual. We will consider 187 "aggression" as any physical attack or use of physical force of one gorilla on another with the hand, foot, mouth or 188 using an object as a weapon. Previous studies show that aggression is not common among western lowland 189 gorillas 29,30 and neither is it common in our group. However, when a gorilla (active subject) assaults another (phase 190 1), the latter (passive subject) can respond with "request for help" (phase 2) or also violently ("punching", "pushing" sanctioning power it exercises, however, is not arbitrary, but it is subject to limits, so that if the sanction imposed is 262 disproportionate or does not derive from an infraction, the females react by protesting or even persecuting it. In 263 other words, the normative system of gorillas also contains norms that limit the exercise of social power to sanction, 264 a function that, in human societies, is attributed to criminal law.

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Sanctions system 266 We have already stated that the infringement of the norm that is generated in a situation-type can lead to a sanction 267 and that the social body that judges and sanctions is the silverback (social controller) and that the imposition of the 268 sanction is modulated according to certain criteria (permits, exemptions, aggravations) and the initiative of the 269 subject (complaint). The complaint, precisely, fulfils a double function: it sets in motion the "sanctioning process" 270 and it determines the severity of the sanction according to the intensity of the complaint.

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As for the criteria that govern the imposition of the sanction we can distinguish: circumstances that exempt from the 272 sanction, which in turn can be objective (self-defense) or subjective (minor -offspring) and circumstances that

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It is worth highlighting the parallels between the structure of the system of demanding criminal responsibility in 283 human legal systems and that described in the troop of gorillas analyzed: society has rules that, depending on values 284 (advantages, powers...) enunciate (situations-type) some guidelines of conduct (rules), the infringement of which 285 generates a sanction, which is proportional to the way in which the infringement is carried out and the damage that 286 has been caused. The complaint is not necessary when the silverback is the passive subject or when it is a fight, but, 287 when it occurs, it initiates the sanctioning action. Even so, in some cases (exemptions), the penalty is not imposed 40 , 288 either because the infringing conduct is allowed (causes of justification: self-defense or exercise of powers), or 289 because the acting subject is not required to adapt his behavior to the normative mandate (exclusion of culpability: 290 minors -offspring-).

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The western lowland gorillas troop that we have studied has a normative system that could even be qualified as 294 "proto-normative system", which breaks with the paradigm of human exceptionality in social systems. This system 295 structures the group by coercively imposing norms (mandates and prohibitions) that regulate individual behavior in 296 order to maintain social peace. To do this, it uses the threat of sanction (negative general prevention), sanctions 297 proportionate to the infraction committed (retribution) and acts on individuals so that they do not commit more 298 infractions in the future (special prevention). We have also found that there are exceptions to the imposition of the 299 penalty similar to what would be our causes of justification and our causes of exclusion from culpability and 300 circumstances that qualify it. In addition, the proto-system described contains rules that regulate the exercise of the 301 powers of social control and limit the social reaction to crime, giving the members of the group the ability to react to 302 arbitrariness and to limit the sanctioning power of the social controller.

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This systematic set of rules and sanctions works as the criminal-legal system would. It is a system because the 304 norms are coordinated with each other and has internal operating rules. And it is a normative system because the 305 guidelines of behaviour that must be known and obeyed by the individuals to whom they are addressed and all 306 individuals are subject to them. This similar regulatory system sets out punishable conduct, crimes and sanctions 307 (penalties) that correspond to the social controller, who exercises functions of the State in human society and whose 308 power is limited by the regulatory system itself, as also happens in human legal systems.

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Limiting the research to a single group of gorillas will require corroborating our conclusions with larger studies, 310 through ethograms that would give comparability to the research, to determine if they can be extended to the Gorilla 311 gorilla species as a whole. But, in any case, it can serve as proof of the need to put an end to old presumptions in 312 order to promote a new paradigm: that of the interspecific continuity of normative systems. 313 314