By Sam Hawke
In October 2011, the animal rights organisation People for the Ethical Treatment for Animals (PETA) filed a constitutional lawsuit alleging that the marine entertainment chain Seaworld was violating the Thirteenth Amendment of the US Bill of Rights, the right against slavery and involuntary servitude. The enslaved individuals were five orcas, Tilikum, Katina, Corky, Kasatka and Ulises, bound, like so many others, to a life of performance and spectacle in a marine prison. The case was decided on the 9th February this year, with the District Judge holding that the Thirteenth Amendment applied solely to humans and that the claimants lacked legal standing anyhow.
Much of the media and internet commentary has condemned the case as a frivolous waste of time and money. Whales are not people, it may be claimed, and at any rate you can’t enslave something like a whale. Even more damning are claims as to the insult and ridicule of any seeming equivalence between the struggle of black slaves for freedom and a cetacean anti-slavery movement.
Aside from these familiar qualms with animal rights theory, there are a number of interesting constitutional questions. For one, there remains the standard debate over the interpretive approach taken to the US Constitution. Certainly, the ‘originalist’ view championed by Supreme Court Justice Antonin Scalia and others – that the constitution is (very crudely put) whatever the framers thought it was – is unlikely to deliver any animal liberationist results. We might note, however, that the same could be said for black people or women, other groups deliberately excluded from constitutional citizenship by the framers US citizens are supposed to worship so avidly. Taking the more evolutive interpretive approach advocated by legal-liberals such as Ronald Dworkin, the court’s reasoning in Tilikum appears glaringly question-begging: much of the textual evidence adduced to support the claim that the Bill of Rights serves humans alone, such as President Lincoln’s Emancipation Proclamation of 1863, refers not to humans but to persons. The reference of the term ‘persons’ being more a matter of morality than biology, the judge appears to have assumed the very thing he was purporting to prove. It may well be that you can’t construct a political-moral theory of animal rights that plausibly fits with US constitutional law and practice as a whole – what Dworkin would suggest we must do if we want to fight for constitutional animal rights – but this wasn’t even attempted.
Whilst I intend to return to these constitutional issues at a later date, my intention is not to explore them here. Instead, I want to discuss Sue Donaldson and Will Kymlicka’s book, published last year, Zoopolis: A Political Theory of Animal Rights. For it lays out a vision of our relationship to animals that may enable us to decide questions of this kind. I don’t intend to lay out a case for animal rights, although where I stand on the issue is obvious, but rather present the key innovations of Donaldson and Kymlicka’s book for their interest to anyone, whether animal rights-respecting or otherwise.
Central to the book, as the title suggests, is a vision of mixed animal-human society in which all citizens and denizens enjoy equal rights and duties of various kinds. In addition to this, we are invited to consider (to paraphrase John Rawls’ final work on international justice, The Law of Peoples) a law of animal-human peoples determining the rights and duties of sovereign communities, whether those communities are exclusively animal or mixed animal-human. A theory of animal-human polities is presented, claiming rights for domesticated animals on the basis of their equal citizenship within our communities, rights for wild animals forming distinct independent communities with territory over which they are sovereign, and rights for so-called ‘liminal’ or ‘denizen’ animals who choose to live at the margins of our communities but not independent of them, such as foxes or racoons. Donaldson and Kymlicka oppose both the claims of speciesists that citizenship and international justice are exclusively human affairs, and the claims of some animal rights theorists that our ultimate goal should be the liberation of animal life from relations with humanity entirely.
Animal rights theory has thus far focused very heavily on negative rights, such as the right to life or the right against torture. This is unsurprising, even laudable. As Donaldson and Kymlicka recount in their opening chapter, the domination, enslavement, torture, and murder of animals by humans has, if anything, expanded in scope and intensified in horror over the last thirty years. The single largest source of all animal killing and suffering – farming, intensive or otherwise – continues to grow to meet new markets and challenges in the developed and developing world. World meat production has tripled since 1980, with 56 billion animals killed every year, and farming practices grow ever more appalling and pervasive. The disgusting institution of ‘mega-dairies’ may be spreading from the US to the UK, for example, whilst the pinnacle of ‘progressive’ political change remains incrementally improving the conditions of animals condemned to die for human consumption whilst happily accepting the totalising, exploitative use of animals in general. As the authors accept, the state of animal rights across the world remains ‘an eternal Treblinka’, a voracious mechanised system of seemingly endless animal enslavement, torture, and death. It is difficult enough to garner even theoretical support for its opposition; attempting to expand the frontiers of this opposition may be, as some have stated, a task suited only to a far less evil world than our own.
But this task the authors undertake. This is obviously for its theoretical interest, which is enormous, but also for their view that the animal rights movement – which they not implausibly view as thus far a near-total failure – can only be invigorated and expanded through a re-envisioning of its frontiers. The central approach of the book is the application of fairly well-understood concepts in political theory – sovereignty, citizenship, and colonisation, for example – and applying them wholesale to our relations with animals.
The chief disagreement, I think, should come not at the level of definition – it’s not a very interesting response to claim that those concepts are simply defined as applying to humans alone – but in whether the moral basis for extending those concepts to animals holds up. Those, such as me, who think that it does are then faced with more specific challenges and difficulties. What duties of assistance will we owe to sovereign animal communities, if any? With humanitarian aid and interventions now a given in respect of needy human communities, debate continues as to whether this entails the seemingly absurd claim that we’re be obligated to provide aid, or to even intervene militarily, to stop animals killing each other in the wild. (Some have claimed, in this regard, we would have at least one reason for finding a way of ‘curing’ carnivorous animals, although accepting that this may be countermanded by the evil that such genetic interventions may constitute.) To take another complex example, the book briefly considers increased political and legal representation for animals, tentatively advocating something like the fantastic system operating in the canton of Zurich, Switzerland, where a government-appointed Animal Advocate pursues animal rights and interests in court. But what might we want for sovereign animal communities in the international sphere? Some kind of trusteeship or mandate-style system at the UN, for example, with the representation and protection such mechanisms may afford? Or would this present once more the unbearable vestiges of colonialism and domination that humanity has inflicted on the animal world?
At the very least, we can see how differently Tilikum could have been decided, and its ramifications. As it is with humans, whether co-citizens or otherwise, enslavement is a monstrous evil. In this regard, Zoopolis adds little new to our understanding of animal rights against such treatment. But it becomes a different matter thereafter. For on banning cetacean slavery, we would be presented with further questions that Kymlicka and Donaldson hope to solve. Having captured and enslaved the orcas from the wild, does justice require their return? Or, for all the abuse they’ve faced, have they grown dependent on their human captors for happiness and survival? Might we then live with those orcas as part of mixed animal-human society, building a shared, cooperative life for each other in our (no doubt vigorously policed) territorial waters?
We may think of domesticated dogs, whose entry into the world is clearly a massive injustice. The ways in which they are bred, for one, engenders debilitating and excruciating genetic harms in early and later life, such that many animal rights advocates claim that justice requires ‘pet’ species to be slowly but surely made extinct through careful and sensitive birth control. But with their examination of the notions of dependency, disability, and citizenship in contemporary disability theory, Kymlicka and Donaldson pursue an alternative. Certainly, the original circumstances of animal-human relations may have been exceedingly unjust. But, they argue, there may be ways of reconstructing animal-human society that are just and egalitarian. For example, it may be that Tilikum and the other orcas need or perhaps want some kind of relationship with humans – part of their discussion of this issue involves an exciting engagement with the reality of animal choice, with the further claim that engagement of animals with humans need not all be a matter of human imposition and dictation. If animals are then citizens on this basis, it becomes incumbent on any society – any society that calls itself minimally democratic and liberal – to give those individuals political representation, to shape and alter society only in ways that respect and promote their rights and interests, and to treat them in ways compatible (and in promotion of) their equal citizenship with others. As with humans unable to express or act as political agents without the trust-based assistance of others, animals may pursue, with the help of their human co-citizens, a kind of ‘dependent agency’. They may achieve a means of expressing their interests, their subjective good, and (dependently) claim their democratic rights for themselves as equal citizens.
The book itself is wonderfully written, sufficiently clear and engaging for the general reader but all the while making arguments that will command the attention of any specialist of animal rights law and theory. For the non-specialist, it includes an excellent chapter on foundational issues of animal rights theory, largely independent of their main theses. This begins with their case for universal animal rights, alongside discussion of key debates within and across animal rights and environmental ethics. This includes, for example, the clash between ‘deep ecologists’ who claim animal population control measures are necessary for the preservation of the intrinsic value of natural ecosystems and animal rights theorists who maintain that the great intrinsic value of the environment fails nonetheless to justify the massive violations of rights that environment-friendly animal culling demands.
Their book is not without difficulties, of course. Much of their prescriptions for human relations with animals may remain, for some, unpalatably interventionist and assimilationist, leaving former human oppressors with the all–too-corruptible responsibility for animal care and assistance. Many not implausibly deem it impossible (at least in our world) for humans to live with animals in relations of justice and equal respect, and so may deem the book, at best, to be founded on a fundamental and pervasive error. At worst, they may see it as an irresponsible apology for the continuation of injustice and oppression. More philosophically, some have claimed that the book’s focus on national citizenship runs against the grain of developments in cosmopolitan theory, claiming that the requirements of international justice may be so much stronger than those presented by Donaldson and Kymlicka as to substantially break down the moral barriers that they erect between citizens and non-citizens.
As they acknowledge, their book tends to mix anecdote and scientific data in a way that some may find suspect rather than helpful. On the other hand, the scientific research they adduce to support many of their claims – such as the historic symbiosis and co-evolution of humans and dogs – are well-documented and powerfully employed. Moreover, the anecdotes they discuss are often highly engaging, even moving. Key to the book, in fact, is the urgent sense of animal individuality they evoke. Independently of its main claims, the book presents the powerful image that both humans and animals, in virtue of their distinct and recognisable individuality, constitute units of immeasurable, individual moral value. This, the locus of concern for rights, comprises what John Rawls called the ‘separateness of persons’, that the worth of the individual lives of each ‘clear-selvèd spark’ sanctions no exploitation or harm, but rather demands our care, respect, and, perhaps also, cooperative endeavour towards a shared future. (I’ve here adapted the words of the poet Gerard Manley Hopkins who, despite his appreciation for animal life, was ultimately a speciesist at heart – like so many, a commitment to speciesism was really the lense through which he understood and valued animal life.) Reading the book as a vegan, it reinvigorated my view of animal rights and political theory, presenting a compelling, if pretty utopian, picture of just and egalitarian animal-human relations. More importantly, perhaps, it better illuminated my own understanding of my relationship with animals close to me, Mortimer (dog) and Tadpole (cat).