By Dr. Steve Best -
[email protected]
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,
the 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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