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From  Issue
4 August 2002
Legally Blind: The Case For Granting Animals Legal Rights

By Dr. Steve Best - sbest1@elp.rr.com 

In corrupt social systems such as the U.S., the relationship between law and ethics is rarely parallel. Laws exist to protect the powerful rather than the powerless, and ethics serve as an alibi for wrongdoing and evil. Thus, what is ethically right is not typically embodied in law, and what is legal rarely seems moral. In fact the real scandal about the U.S. government is what is perfectly legal.

A dramatic case in point is the antiquated laws regarding animals. In a society that parades as humane, compassionate, and the beacon of civilization, billions of animals are killed each year for the most trivial reasons. The laws relating to the contemporary treatment of animals derive from ancient times when both people and animals were held as common slaves. The legal distinction between a person and property goes back at least to Roman society: free men were subjects with rights, whereas women, children, slaves, and animals were considered objects and property. The arbitrary viewpoints that reduced human beings to slaves and property have been overturned, but there has not yet been widespread recognition that the theories justifying the exploitation of animals are just as arbitrary and wrong and that the same logic that freed human slaves ought to emancipate nonhuman slaves.

Karl Marx observed that strange things happen in the “topsy-turvy” world of capitalism where marketplace values trump human or moral values. He saw capitalist society as structured around a process of “commodity fetishization” whereby the characteristics of subject and object are reversed: living beings are defined as inanimate property, and property and money become animated subjects more sacred than life. Only from this distorted viewpoint does it make sense to speak of Animal Liberation Front property destruction as “terrorism,” and the everyday killing of animal industries as routine “business.”

From a legal standpoint, the problem of animal exploitation is 3-fold: what animal “protection” laws exist are still weak, they are poorly enforced, and they do not apply to animal exploitation industries that enjoy full legal rights to confining, torturing, experimenting on, and killing billions of animals every year. The root cause of these problems is that animals are still regarded as property, and are hardly differentiated from physical objects. Despite monumental revolutions in science beginning in the 16th century, and in philosophy in the 19th and 20th centuries, both of which challenged core tenets of the Christian-Greek worldview, the basic legal framework dealing with animals has remained untouched and for all intents and purposes animal law is still Roman law. The theological and philosophical foundations informing the Western legal framework are outmoded and untenable.

For present purposes, I characterize Western thought as deeply flawed by 4 key, interrelated fallacies. In the first fallacy, essentialism, human and nonhuman animals are denied a changing, evolving nature and instead are assigned a static essence or being. Specifically, humans are defined as rational, linguistic, technological beings made in the image of God, whereas nonhuman animals are defined as beings without minds or souls, as mere creatures of instinct, appetite, and sensation. Second, the fallacy of rationalism states that the entire cosmos is infused with a rational nature that reflects the mind of God. The world is orderly and a product of divine design. Mind or soul is the essence of human beings too, unlike animals who are mere creatures of sensation. Thus, the third fallacy of dualism holds that reason and language capacities sharply delineate human beings from animals. We have one essence, they have another; moral and legal considerations belong only to the human realm, and human beings have no direct obligations of any kind to animals. The fourth fallacy of teleology claims that behind the law-governed and rational nature of the universe lies a purposeful scheme where every order of life is arranged in a hierarchical “Great Chain of Being” that ranges from the most simple and imperfect to the most complex and perfect. Because animals are inferior to human beings, their purpose of animals is to serve human needs, and we can use them as we see fit. As Aristotle put it, “Plants exist for the sake of animals, just as animals exist for the sake of men.”

From the Presocratics and the Stoics to the medievalists and the moderns, we find the same basic framework that is now widely recognized as but a reflection of the prejudices and fictions of ancient times. On the whole, Western philosophy has badly misunderstood human and animal natures: it created a dualistic division where there is only an evolutionary continuum, it attributed too much reason to human animals and too little to nonhuman animals, it imagined a purposeful universe that relegates animals to a desert of non-moral and legal status, and it enthrones human beings at the reign of life.

Animal rights cannot be institutionalized in the legal realm until the fallacies emanating from traditional religion, philosophy, and science are thoroughly discredited and abandoned. Postmodern theories have debunked Western metaphysics, but they have not influenced mainstream legal circles. Nor have they been adequately applied to animal issues, and postmodernists are as speciesist as anyone else.

More significant developments have emerged from the fields of philosophy (animal rights theories), science (cognitive ethology, the study of animal emotions and intelligence), and law itself (through the works of Gary Francione, Steven Wise, and others). The changes in science are especially important, for they have provided abundant proof that animals are far more like us, and far more complex, than we dared imagine. The data comes from physiology and anatomy that identifies structural similarities between human beings and animals, from genetics that discerns our close evolutionary relationships with other primates, from field studies that shed light on animal behaviors and have showed many animals too are tool makers and users, from biology that reveals similar a chemical make-up to human and nonhuman animal brains and emotions, and from various behavioral experiments that demonstrate animals possess a remarkable range of mental and communication abilities.

There has been progress in the legal field in terms of punishing wanton acts of cruelty to domestic animals, as more and more states make animal cruelty a felony crime. But these laws apply mainly to domestic animals and exist more to thwart the harm done to humans than to animals themselves (as it is widely understood that violence to animals can quickly lead to violence to humans themselves). Initiated by PETA and other organizations, recently there have been reforms of the treatment of farmed animals used by the suppliers of major fast food chains such as McDonald’s, Burger King, and Wendy’s. “Humane killing” laws are better enforced and cage sizes are bigger, but of course every year in the U.S. alone 10 billion farmed animals still are tortured in the factory farms and meet gratuitous and violent deaths in the nation’s slaughterhouses.

Animals are still property, and the property “owners” – whether scientists in a laboratory; agribusiness CEOs on the factory farm; or the management of rodeos, circuses, and zoos -- have every right to do what they wish to animal bodies. The legal rationale are two-fold: any act causing animal suffering is acceptable so long as it is part of a “tradition” of animal exploitation and/or has some “rational” purpose such as making profit or “disciplining” an animal. Thus, while the burning or beating of a cat or dog is a felony crime in many states, this is so because it has no redeemable utilitarian function for society, not because it is an intrinsic wrong. Where animals are property, the property rights of individual animal “owners” trump public moral concerns, such as voiced by animal advocacy groups, and many a just battle has been lost in the courts through an exploiter’s appeal to “ownership” rights over animals.

The hellish reality of animal existence cannot fundamentally change until we create a seismic cultural shift that replaces the notion of animals as property with a radically alternative concept, such as animals as persons. Human beings have no monopoly on the concept of person, which entails qualities such as sentience, having preferences and desires, and the ability to remember or project ideas into the future. Personhood is the driving force behind The Great Ape Project, supported by animal activists such as Peter Singer and Steven Wise. The Great Ape Project is rooted in the premise that apes are as complex as human children and if children are persons so too are apes. The idea is that once our closest animal relatives acquire fundamental rights and the status of personhood, other animals can follow. A more general change that could grant substantive moral and legal status to all animals rather than just apes would be a shift from animals as object to animals as subjects, where it is understood that both a necessary and sufficient condition of moral and legal rights is merely to be sentient and have elementary preferences, such as avoiding pain and remaining alive.

Certainly the laws are not consistent. It is a flagrant contradiction to grant a severely impaired human being personhood but deny it to a more intelligent and aware ape, or any other complex animal. If entities such as corporations can be considered as a “person” in the courts, it shouldn’t be too far a stretch to treat an animal as such. Moreover, Western history is rife with bizarre cases of prosecuting and punishing animals for “crimes” such as eating crops, thereby assuming they are persons responsible for their actions when convenient, while regarding them nonetheless as unthinking objects.

Hopeful signs of change are unfolding. The Great Ape Project is educating a worldwide audience about the minds of our closest evolutionary relatives. Steven Wise’s book Rattling the Cage: Toward Legal Rights For Animals (2000) widely publicized the cause of legal personhood for great apes, as his new book Drawing the Line: Science and the Case For Animal Rights (2002) extends the argument to other animals. In large part because of Wise’s lead, “Animal Rights and the Law” courses are taught at universities such as Harvard, Yale, Georgetown, and dozens of other law schools. Thousands of lawyers are already practicing some form of animal law, representing their unique clientele who can neither speak for themselves nor pay their legal fees and are always innocent. The campaign sparked by In Defense of Animals to declare human beings the “guardians” not “owners” of animals and to change legal language accordingly is being implemented in communities across the U.S.

Increasingly, courts are awarding animal guardians not only market “property value” for animals wrongfully injured or killed by another party, but also additional damages for loss of companionship or emotional distress, signaling a belief that animals are more than commodities. Wise and others expect cases litigating the rights of great apes and other animals to be coming to courtrooms soon. This augurs an intense struggle over social perceptions of nonhuman animals and fundamental changes in society as a whole as human beings increasingly will be able to represent the interests of exploited animals and sue on their behalf.

Sundry speciesists declare legal personhood for animals “a dangerous idea” and a slippery slope toward nonsense like bacteria rights, as animal exploitation industries fear their bloodletting may become limited or banned. Such hyperbolic reactions can be expected amidst creaking paradigm shifts. Caricatures and self-interests aside, the movement to abolish the property status of animals, and to secure them basic moral and legal rights, above all the right to bodily integrity, is one of the most important struggles of the contemporary period.

We are today at a similar stage in moral debate as we were over a century ago with the moral and legal status of blacks. In both cases, there is a movement to expand moral boundaries, to abolish a form of slavery, and to overcome entrenched prejudices. The law always has changed with evolving social norms, and it currently is in the midst of dramatic transformation. Animal rights stands not only to liberate animals, but the human mind itself as it begins to enter the next stage in its moral evolution.

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