WHAT DO WE OWE ANIMALS?

By Raymond Wacks

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The Montréal Review, May 2024

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For most of human history our conceit has ordained that animals exist for us, to do with them as we please. We employ them for sport, entertainment, experiments, and work; their lives are crushed by inhumane methods of slaughter, transport, battery farming, and more.

Their legal status in most countries differs little from a chair or a table. They are regarded as property—to be owned, bought and sold, and disposed of at the whim of their owner. Nor are they generally considered ‘persons’ in the eyes of the law. These two perceptions constitute major obstacles to the recognition of the rights of animals and the effective protection against the misery many are compelled to endure.

Several jurisdictions have enacted anti-cruelty legislation to curtail the worst excesses of their maltreatment, and a number have laws or regulations calculated to promote greater compassion towards animals, principally in farming, scientific experimentation, and abattoirs. International and regional declarations, as well as constitutional pronouncements, purport to ameliorate their lives. Nevertheless, as a species, homo sapiens’ record leaves much to be desired. Despite the advances in the protection of human rights, animals continue to suffer at our hands in frequently atrocious conditions.

The limits of virtue

While many of us profess a concern for the welfare of non-human creatures, there is often an uncomfortable conflict between compassion, on the one hand, and the inevitable animal suffering, on the other. The conditions under which battery hens are kept, for example, are notoriously inhumane, yet those professing to care for their fellow beings will consume their meat and eggs with equanimity. This so-called ‘meat paradox’ or ‘omnivore’s akasia’1 is a classic illustration of the cognitive dissonance that pervades the subject of not only this, but many moral dilemmas which injustice spawns.

In the face of the cruelty of animal suffering, one must seek to avoid the triple sins of sanctimony, sententiousness, and sentimentalism. Equally, one should attempt to preserve a degree of detachment which is particularly difficult when the subject concerns the suffering inflicted on others, human or non-human. Anyone who has witnessed the horrors of the wildlife markets in China and elsewhere in Asia, or stepped inside a laboratory in which experiments are conducted on mammals, or observed videos depicting the maltreatment of animals in abattoirs would require a constitution of steel not to feel nauseated, distressed, and angry.

Relegating humans

It is occasionally asserted that concern for animals is misdirected, that it trivialises human suffering by its devotion to the alleviation of non-human privation. This notion seems to be driven by the idea that those who are engaged in animal rights or welfare activities either subordinate human to animal interests, or that they have a pathological indifference towards human beings. This is specious; if those who direct their compassion toward animals are to be charged with diminished sympathy for the plight of their fellow humans, their crime might instead be their ire and resentment at the treatment they inflict on their fellow non-humans. In fact, individuals involved in the animal welfare movement are frequently dedicated as well to the alleviation of suffering of oppressed or disadvantaged humans.2

Even if this were not so, our concern for animals is inseparable from our unease about the ravages we continue to inflict on our environment, and the consequences of this damage on all living things. In the case of the use of live animals in experiments, for instance, it is sometimes said that science is somehow value-neutral. This provides a convenient device by which scientists may be blinded from the suffering of animals and deny them subjective awareness and moral status. The macaque pictured on the cover of my book was bred in Mauritius, flown to Spain, and was photographed awaiting sale to a laboratory somewhere in Europe. Its fate is unknown.

Animal rights?

Rights occupy a central place in contemporary legal, moral, and political philosophy. Indeed, it is not unreasonable to suggest that the extravagant service which the concept is asked to perform has drained it of much of its meaning. Nevertheless, the welfare of non-humans is widely characterised as one of ‘animal rights’, indeed much of the literature employs this expression somewhat promiscuously without necessarily endorsing the view that granting animals rights is the most effective, or even, the most appropriate, means by which to advance the cause of protecting their interests.

Endowing animals with rights has become a battle cry intoned to advance the cause of animal wellbeing. This is patently a testament to the power of ‘rights talk’ which has come to ‘saturate’ a good deal of political discourse in general, at least in the West.3 The subject is, however, complex, and requires a consideration, not only of the concept of rights—moral and legal—but also the equally taxing problem of whether animals are capable of being right-holders at all.

Jo Frederiks. All Are Individuals

To argue that animals have, or ought to have, rights is to say that such rights are against us—humans or human institutions. Unlike us, who have rights against other humans, they cannot have rights against other animals. Until we appeared on the scene, they did not need rights; their welfare was not dependent on human conduct. The argument in support of animal rights may therefore be about our duties towards animals. But the literature bristles with debate about whether the protection animals receive in law or through regulation generates genuine rights. If so, what is the extent of these rights? Are they rights against the world (so-called real rights or rights in rem), or are they personal rights (rights in personam) against specific individuals (e.g. a farmer or the owner of a pet)? This question is rarely asked. Nor, regrettably, is there much clarity or consistency in the use of the term ‘right’ in the vast literature on the subject.

It is often claimed that such rights may be derived from legislative or regulatory provisions that protect the welfare of animals. This is founded on the proposition that statutes that impose a duty on persons not to inflict cruelty on animals (with their normal sanctions for violation) could be said to confer on animals a legal right to humane (i.e., non-cruel) treatment. At the very least, it suggests that non-humans have intrinsic, rather than merely instrumental, value justifying their legislative defence. It does not, however, constitute legal status as a matter of law.

Human rights

Some go further and suggest that there is no logical reason why animals should not be accorded some of the rights enjoyed by humans. This may seem perverse; surely human rights are for humans. On what possible grounds can non-humans be candidates for the granting of rights that belong exclusively to humans? The very idea appears oxymoronic, or perhaps a misguided Utopian or Procrustean exercise that cannot be taken seriously.

But there is a growing movement which perceives the human rights of animals to be associated with the wider protection of marginalised minorities and which also seeks to demonstrate the connection between violence against humans to that which we inflict on animals. Indeed, it is remarked that genocidal propaganda frequently dehumanises victims by branding them non-human: rats, cockroaches, monkeys, vermin, and so on.

When we ask why it is that only humans enjoy these rights, we receive the tautological response: because they are human. A second question then arises: what is it about a human that gives us this benefit? While it is evidently the case that, unlike animals, we have certain characteristics, capacities, and needs that animals seem to lack, a conspicuous element is personhood.

The fundamental enquiry is what, apart from our humanity, distinguishes us sufficiently from other sentient animals whose vulnerability to pain and suffering resembles our own in non-trivial respects so as to deny them the protection of human rights. It is not enough to invoke the tautology mentioned above. Yes, human rights are for humans, but that petitio principii only generates the question what is ‘human?’ Are there, in other words, characteristics of our humanness that avoid the stigma of ‘speciesism’ which justify this ethical apartheid?

Biological difference merely asserts, without explaining, why the classification homo sapiens should govern the rights we enjoy. And an essentialist quest for a litmus test of ‘human’, as generally undertaken by naturalists, is no less question-begging. It typically deploys a suite of allegedly distinctive features that only humans possess: rationality, personhood, moral agency, dignity.

But not all humans satisfy these criteria; marginal cases such as the mentally ill, comatose, and infants need to be distinguished from, say, an intelligent chimpanzee. The strategy then switches to the element of potentiality; human beings may, it is contended, fall short of these sorts of benchmarks, but they have the potential to do so, or they usually do. This manoeuvre cannot entirely eradicate the stain of speciesism for can we be sure that there is some empirically demonstrable feature or capacity all and only humans possesswhich is a relevant basis for recognising human rights?

It is not, I think, unreasonable to conclude that the pursuit of a distinctive human characteristic is futile. Moreover, even if a credible yardstick were somehow unearthed, it would be likely to be highly tendentious since its primary intention would unavoidably be to establish an ethical barrier between humans and animals. Progress in this endeavour needs to identify what we share with animals, rather than what distinguishes us from them. In whatever way this common disposition is to be designated, the most obvious feature we have in common is our sentient vulnerabilities and needs: a susceptibility to pain, suffering, and death, and a need for food and shelter.

Recognising rights

If animals are to be considered right-holders, it is reasonably straightforward to distinguish the sorts of human rights that are especially beneficial, even crucial. They would need to include the right to life, bodily integrity, and freedom from torture, from cruelty, freedom of movement, and perhaps the right to family life. The right to food, shelter, and medical treatment would seem to be necessary to domesticated animals. The quest for the inclusion of political and certain procedural rights (especially habeas corpus) continues in the courts of various jurisdictions.

The principal obstacle to legal recognition of animal rights has been the aversion to granting them or their putative representatives locus standi to appear before any tribunal. Cases brought on behalf of cetaceans (whales, dolphins, and porpoises), a chimpanzee, orcas, and a macaque, based on diverse causes of action, have failed because of an unwillingness to accept that these creatures had legal standing to sue. Lawyers have therefore looked to the writ of habeas corpus as an instrument by which to assert the rights or interests of animals. It requires those holding the person to produce its physical presence in court.

Yet the record of judicial readiness to grant the petition in a number of jurisdictions (mainly in the United States and Latin America) has been, with some exceptions, disappointing. The first attempt by the Non-human Rights Project (NhRP) in the US involved a caged chimpanzee called Tommy. The judges denied the habeas corpus petition on the ground that there was no precedent supporting the notion that an animal could be regarded as a ‘person’. It proceeded on the (arguable) assumption that rights are a correlative of duties; since Tommy was incapable of bearing duties, he could not have rights. Nevertheless, on appeal one of the judges conceded that even though neither human infants nor comatose adults are capable of bearing duties, they are not deprived of rights. Efforts to extend legal rights to chimpanzees are thus understandable; some day they may even succeed.4

The simplest way to eliminate, or at least to circumvent, this stumbling block is, I suggest, to legislate it away by enacting a statutory tort that unambiguously endows animals the right—through their representatives—to bring proceedings for injunctions, damages, and other appropriate legal remedies.

Animals as citizens

Almost every action we take touches the lives of other creatures. The decision to build a highway, hospital, or housing inevitably affects animals, birds, and other inhabitants of the planet. The activities, decisions, and attitudes of humans have a direct impact upon their wellbeing. The depredation of the environment—greenhouse gases, air and water pollution, habitat loss, poaching—the list goes on, is merely one aspect of the consequences our lives have on theirs. The situation in war-torn Sudan, Ukraine, and Gaza has left many stranded or abused animals in dire conditions without food, water, or proper care.

It therefore makes perfect sense to broaden the debate to embrace a political approach to the subject of animal welfare. The idea that animals are—or ought to be—members of the political community is an imaginative and ambitious one that seeks to demonstrate how the question of animal wellbeing is a political rather than an exclusively ethical one.5 In the same way as humans exist in a nation state which constitutes an ‘ethical community’, it envisages a ‘relational’ model of citizenship by which domesticated animals are treated as full citizens, animals in the wild as occupying separate sovereign communities, and ‘liminal opportunistic animals’ who live among us as migrants or denizens.6

The problem, of course, is that this well-intentioned scheme represents an idealised picture of the world. It presumes a society with institutions both suited to and capable of adopting policies that recognise the status of animals as members of the community. It proceeds on the questionable assumption that the social and political structure, with what I have called morally sound institutions,7 is genuinely sensitive to the needs of animals

Authoritarianism, poverty, populism, and corruption undermine or extinguish the prospects for animals to be regarded as members, let alone citizens, of their societies. Anyone who has visited a live animal market, or seen images of puppies crammed in cages for sale as meat, or of elephants and rhinos violently killed for their tusks or horns, must recognise the gap between Western conceptions of animal justice and the cruel reality of life in many parts of the world.

Opposing rights

The pursuit of limited rights for animals extrapolated from welfare legislation, mentioned above, encounters predictable resistance from a number of quarters. Some are a consequence of an express or implied attitude or perspective such as a humancentric view of animals and, indeed, the world; others consist in the hostility towards the very concept of rights and, in particular, animal rights. They include philosophical, political, pragmatic, and legal objections.

At their heart is the anthropocentrism whose morality assumes ‘man is the measure of all things’, and that rights accrue only to humans.8 It inescapably creates a species barrier outside of which non-humans reside. Generally labelled ‘speciesism’, it captures the arrogance of an anthropocentric standpoint’s assumption that criteria are required by which to determine what constitutes a ‘human’. This is obviously a major stumbling block that thwarts the moral and legal endeavour to confer rights on animals. A second obstacle is more pernicious; there is a strain of machismo that regards certain kinds of sympathy for animals to be a sign of faintheartedness.

A third hurdle is the commodification of animals. The proprietary relationship between humans and animals is deeply ingrained in our social and legal order. I own my pets; the farmer is the owner of his livestock, and so on. The situation has barely changed over the centuries. The world, according to the ancients, was divinely created for humans in a ‘Great Chain of Being’. This inevitably downgraded animals to non-humans which, in effect, meant property, an attitude that has pervaded legal thinking for a long time.

Fourthly, in certain quarters rights are regarded as intrinsically adversarial and antagonistic; they presume and perpetuate conflict between individuals. The argument is also sometimes made that animal rights are ‘excess baggage’9  or weapons of last resort.

Moral duty

Homo sapiens is a relative newcomer to the planet. We arrived only some 200,000 years ago. Gorillas, elephants, and rats predate us by between fifty or sixty-five million years. It is little more than a cliché to observe that we have wrought devastation upon the earth. While our achievements in several fields are prodigious, our relationship with non-human inhabitants has been far from inspiring. While we sanitise and ‘Disneyfy’ animals in nursery rhymes, cartoons, and animated films, we simultaneously subject them to appalling suffering. We pamper our pets while turning a blind eye to the atrocious treatment billions of creatures endure every day in factory farms, laboratories, abattoirs, and in the course of transporting them—usually to their death—in conditions of extreme cruelty.

The seemingly intractable challenge is to persuade the unconvinced—who cleave to an anthropocentric dogma that springs from cupidity, ignorance, indifference, or plain malevolence—that animals deserve justice in a world that denies the claims that humans reserve for themselves. Acknowledging that non-humans are members of our community must be the first step towards any effective attempt to arrest the atrocities to which they are exposed.

Where the domestic law of countries fails to advance the just treatment of animals, the same kind of pressure that is exerted on errant governments to observe human rights norms must be applied here. Compliance with existing international treaties and declarations of animal rights needs to be strongly enforced. We cannot shy away from the fact that the preponderance of animal rights campaigns, organisations, and literature is generated in the West. Anyone reading the countless books and articles on the subject will be struck by many of the authors’ assumptions of Western culture, social mores, and liberal democratic values. Regrettably, most animals do not live in these comparatively enlightened societies. This is not to say that their treatment is necessarily worse, but it frequently is.

When the casualties of injustice happen to a species other than our own, their cries are largely unheeded. Animals cannot speak. They cannot protest. They are at our mercy. Human hubris guarantees our dominance. Their lives, in the striking words of the Jewish writer, Isaac Bashevis Singer, are ‘an eternal Treblinka’.

A legal remedy

To redress the pain and suffering inflicted on animals—intentionally or negligently—my proposed statutory tort is founded on the unequal relationship between humans and non-humans. Nothing in the law can alter the nature of that hierarchy, any more than it does in the case of the relationship between what was once called master and servant, now employer and employee. The function of the law of tort in these circumstances is to reduce and regulate this imbalance so as to increase the prospect of fairness between the parties.

This achievement is vividly illustrated by the birth pangs of the common law tort of negligence. Prior to the seminal ruling of the House of Lords in Donoghue v Stevenson10 the law offered no means of obtaining compensation for damages caused negligently unless there was a contract. Lord Atkin’s trailblazing judgment drew on the biblical injunction to love your neighbour, he famously declared:

The rule that you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyer's question ‘Who is my neighbour?’ receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.11

While this dictum launched the new tort of negligence which transformed the common law forever, its moral underpinning has wider significance in respect of the notion of duty in general. The concept of ‘duty of care’ which is fundamental to the tort envisages a relationship or proximity between the parties. The judge did not, of course, intend his reference to ‘persons’ to apply to animals, but that does not weaken the utility of the conceptual nexus between tortfeasor and victim that offers an important foundation for the protection against harms inflicted on those who are our non-human ‘neighbours’.

The enactment of a tort that explicitly imposes a duty both to take care and extend care to animals would be transformative. It would ensure that courts are open to claims against individuals, and especially, institutions such as factory farms, laboratories, abattoirs, and transport companies engaged in activities that cause material harm or death to animals under their control.

This proposal is not a panacea. Nor is it likely to win the support of legislators in many countries. And even if an enlightened parliament were to adopt a measure along these lines, its effective implementation would depend on the readiness of courts to accept the gravity of the litigation, and deliver judgments that deters the use of cruel or painful practices.

We owe animals at least that.

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Raymond Wacks, professor emeritus of law and legal theory, is the author of seventeen books and editor of ten. Several of his works have been translated into more than a dozen languages. His publications include Personal Information: Privacy and the LawPrivacy and Media FreedomPrivacy: A Very Short IntroductionLaw: A Very Short Introduction; and Justice: A Beginner’s Guide. Among his most recent books are Protecting Personal Information: The Right to Privacy ReconsideredCOVID-19 and Public Policy in the Digital Age, and National Security in the New World Order: Government and the Technology of Information (with Andrea Monti). The sixth edition of his Understanding Jurisprudence: An Introduction to Legal Theory was published in 2021, as was The Rule of Law Under Fire? Earlier this year Routledge published his Animal Lives Matter: The Continuing Quest for Justice.

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1 ‘Akrasia’ refers to a situation, where one believes in a fact or value x, and yet acts against that fact or value, Elisa Aaltola, ‘The Meat Paradox, Omnivore’s Akrasia, and Animal Ethics’ (2019) 9 Animals 1125.

 

2 There is a strong connection between the feminist and the anti-vivisection campaigns of the nineteenth century in Britain. See O Banks, Faces of Feminism (Blackwell, 1986), 81–2, quoted in L Birke, Women, Feminism and Biology: The Feminist Challenge (Harvester, 1986) 120.

 

3 The metaphor is Nigel Biggar’s in his What’s Wrong with Rights? (Oxford University Press, 2020), 334. The West, he maintains, ‘need to get beyond whatever it is that is tying our tongues over duty and virtue. Right-talk is just not enough.’ Ibid.

 

4 Attempts have achieved greater success beyond the United States. Courts in India and Pakistan, for example, have demonstrated a striking willingness to entertain applications other than petitions for habeas corpus.

 

5 Sue Donaldson and Will Kymlicka, Zoopolis: A Political Theory of Animal Rights (Oxford University Press, 2011). See too Alisdair Cochrane, Should Animals Have Political Rights? (Polity Press, 2020).

 

6 Other approaches towards the protection of animals include ‘welfarism’ (that seeks to improve the wellbeing of creatures by more humane treatment), ‘new welfarism’ (which argues that it is acceptable to own or use animals provided they are treated compassionately), the ‘capabilities approach’ (that identifies the actual needs of animals which require recognition), and ‘abolitionism’ (which maintains that all uses of animals be prohibited). I consider each position in detail in Raymond Wacks, Animal Lives Matter: The Continuing Quest for Justice (Routledge, 2024).

 

7 Raymond Wacks, The Rule of Law Under Fire? (Hart Publishing, 2021).

 

8 For a classic example, see Richard A Posner, ‘Animal Rights: Legal, Philosophical, and Pragmatic Perspectives’ in Cass R Sunstein and Martha C Nussbaum, eds, Rights: Current Debates and New Directions (Oxford University Press, 2004), 51.

 

9 RG Frey, Interests and Rights: The Case against Animals (Clarendon Press, 1980).

 

10 [1932] AC 562 (HL). In response to a lawyer’s question, ‘who is my neighbour?’ Jesus in Luke 10:25-29, relates the parable of the Good Samaritan.

 

11 At 580 per Lord Atkin.

 

 

 

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