If the interests of animals are properly embedded in the democratic process…the laws adopted by a society are less likely to infringe their fundamental interests.
1822 is a date we lovers of justice and animals should all have tattooed on our hearts. Because 1822 was the year Richard Martin MP won for animals an important protection which was also a right: the right – for their own sake – not to be gratuitously harmed.
A 19th Century Irishman who fought more than 100 duels with sword and pistol – and obviously survived them all! – seems a most improbable man to put forward as father of the modern Animal Rights movement. But the small snowball he set in motion has just kept on rolling and rolling for the last 200 years, and growing into what we hope will soon become an avalanche.
For Martin it was who introduced a new Act to prevent the cruel and improper Treatment of Cattle, which made it an offence, punishable by fines up to five pounds or two months imprisonment, to “beat, abuse, or ill-treat any horse, mare, gelding, mule, ass, ox, cow, heifer, steer, sheep or other cattle.”
Up until ‘Martin’s Law’ was passed, it was the animal’s owner who was considered wronged by any harm done to the beast, not the poor animal itself. The animal had no greater status than a table or a chair, so harm inflicted on it was simply damage to the owner’s property. Martin’s Law changed that.
The prolific and accomplished duellist followed up his great legislative achievement by personally bringing the first prosecution under the new Act. The criminal – a fruit seller. The crime – beating a donkey. When the MP led the donkey into the courtroom to exhibit its injuries to judge and jury, he provoked a storm of publicity. Political cartoons appeared depicting him with donkey’s ears. Instead of being praised for his unusual-for-the-times passion for animal protection, he was publicly ridiculed.
Before another two years were out, this remarkable man was instrumental in founding the SPCA – later the RSPCA – the very first animal protection organisation in the world, prompting the birth of similar groups in Scotland, Ireland, the USA, Australia and New Zealand. Only welfarism as yet, but animal advocacy began to spread around the world.
But that was 200 years ago. So where is Animal Rights today?
Well, because human society and its treatment of nonhuman animals is still, it goes without saying, regulated by law, changes in the law are what we continue to wrangle for in our pursuit of Rights for Animals. And laws that win new rights and protections for our nonhuman cousins have really gathered pace in the last decade.
But when, just to take one example, badgers – a ‘protected’ species – are being slain in their thousands year upon year supposedly to safeguard other animals, dairy cattle – which later farmers will send to their deaths in the slaughterhouse – there is clearly still a very long way to go.
So what if we didn’t need to change the law concerning animals at all? What if nonhuman animals had the right to have their interests properly taken into account before any human proposals were cemented into law?
Well, we just may have an exciting new way forward for Animal Rights, a way that could sweep aside the drawbacks inherent in all the various AR theories to date: it is the principle of political theory called the “all-affected.”
“The interests of animals are affected – often devastatingly – by collective decisions and, therefore, they, or – more speciﬁcally – their representatives, have a democratic right to have some say in the making of those decisions” says Professor Robert Garner.
If I can beg your patience a little further? To appreciate just how promising this approach could be, we need a super-quick run-through of Animal Rights in the past 40 years or so. Animal Rights is, as it always has been, dependent on two disciplines:
Philosophy, which deliberates on human perceptions of nonhuman animals, and their status relative to us.
And Law, which regulates that status.
I am neither a philosopher or a lawyer, so forgive my lack of expertise, simplifications of a complex subject, and any glaring omissions in my brief summary. This is a personal view, not by any means a definitive account of Animal Rights.
One of the first and most influential in recent years to grab hold of Richard Martin’s snowball and give it an energetic push down the mountain was Australian philosopher Peter Singer. He famously shook things up in the 1970s with his book Animal Liberation. His approach to Animal Rights was based on two principles:
- The separation of ‘human’ from ‘animal’ is illogical and arbitrary – there is far more difference between a great ape and an oyster than there is between a human and a great ape
- The utilitarian philosophy of Jeremy Bentham that ethics and morality are dictated by what will achieve “the greatest good of the greatest number”
It necessarily follows from his first principle that nonhumans must not be excluded from that “greatest number” for whom it is our moral duty to obtain “the greatest good”.
The problem with this approach to Animal Rights is that if it can be established (by humans, nonhumans having no say) that the greatest good can only be achieved for the greatest number by the use of animals, even if this means inflicting pain upon them or causing them to die, then such actions are justified. Singer for example condones the use of animals where ‘necessary’ in medical research – a position I for one totally reject.
Following quickly on Singer’s heels, Tom Regan gave the snowball another hearty shove with his book “The Case for Animal Rights”. His was a very different argument. He proposed that if animals are ‘subject-of-a-life’ as unquestionably humans are, then their value lies in more than just their usefulness to humans.
“Such an individual has inherent value independent of its utility for others. Because of this inherent value, a subject-of-a-life has rights to protect this value and not to be harmed. Other subjects have a duty to respect these rights.”¹
It seems a promising approach until you realise how high he set the bar for non-human animals to be worthy of consideration as ‘subject-of-a-life’, strangely, higher than is set for human beings.
The Big Stumbling Block – Species Criteria
For Regan, to be ‘subjects-of-a-life ‘ nonhumans must have “beliefs, desires, memory, feelings, self-consciousness, an emotional life, a sense of their own future, an ability to initiate action to pursue their goals, and an existence that is logically independent of being useful to anyone else’s interests” – his criteria any species must fulfil.
Humans all have rights independent of Regan’s requirements: newborn infants, certain disabled people, elderly people with failing mental and physical health – none of these could fulfil his criteria, but their rights are nevertheless guaranteed.
He is said not to be speciesist but so many species would be left by the wayside. Would the honey bee, for instance, reach Regan’s bar? Does the honey bee have ‘an emotional life’ and ‘beliefs’? And who decides? Humans of course. When it comes to nonhuman animals, Regan limits those supposedly deserving of rights to ‘normally mental mammals over a year old, several species of birds, and possibly fish’.
Apart from the few wild animals that qualify, certain farmed animals – cows, pigs and sheep – could benefit from his approach. But not calves, piglets or lambs, and very probably not (in spite of what we now know of their intelligence and complex emotional and social life) hens. Certainly not the millions of day-old chicks that drop off the conveyor belt into the grinder.
The criteria he has set would leave billions of animals, and a very large slice indeed of the estimated 8.7 million species on the planet without rights.
In the here and now, animal advocates fall broadly speaking into two camps: the abolitionists and the welfarists. The foremost spokesperson for Abolitionism is Professor Gary Francione. As a lawyer with a background in philosophy the Prof is peculiarly well qualified, one would think, to set out the ideal path for the AR ‘snowball’ to travel.
Abolitionism is based upon the philosophical premise that all animals, human and nonhuman, have the basic moral right not to be treated as the property of others. Therefore any human use of nonhumans is unjustifiable, just as human slavery is unjustifiable. All animals exist for their own purposes, not others. The moral baseline is veganism.
The battle for Abolitionism is legal as well as philosophical since in law, with a few notable exceptions, such as in a limited way in France², the status of nonhuman animals is still that of property. And most laws that relate to animals simply protect their welfare to a greater or lesser degree – without changing their status.
So how to get that legal status changed?
Two ways the status of nonhumans can be changed:
- By governmental legislation
- In the law courts. If a change in status can be established in a court of law, a legal precedent is set which would subsequently apply to all similar cases.
There are heroes for animals like Steven Wise of the Nonhuman Animal Rights Project in the US, and the Association of Professional Lawyers for Animal Rights (AFADA) in Argentina, toiling tirelessly to get that status change from property to person accepted in a court of law.
It’s a tough battle, less like giving the AR snowball a gentle nudge on its way, much more like pushing an elephant up a mountain. And once again there is a major problem. We are back to the dreaded Species Criteria. Bringing a case to court, a lawyer has to limit him/herself to a particular client or clients on whose behalf he/she is pleading. And we’d be crazy to think a judge would grant personhood to, say, a silkworm, let alone to the entire animal kingdom. The right client has to be chosen.
So what are the criteria by which a lawyer selects a client that has the best chance of success in court? The NhRP’s current plaintiffs are “members of species who have been scientifically proven to be self-aware and autonomous: currently, great apes, elephants, dolphins, and whales.”
This list of the species that qualify is even more meager than Regan’s. The idea, of course, is to ‘get a foot in the door’ for one species, which would pave the way for others. But I’m guessing it will be a long long while before science decides silkworms are self-aware and autonomous, the first hurdle they need to jump if their advocates are to pursue this particular route to legal rights.
I applaud their efforts and don’t wish to sound unduly pessimistic, but short of turning the entire world vegan, it is unclear how in practical terms Prof Francione is going to achieve his Abolitionist goal.
Certain animal charities such as PETA, Animal Aid, Viva, also advocate total non-use of animals for human purposes. But where out-and-out Abolitionists are at odds with them, is their pursuit at the same time of incremental welfare improvements to reduce the suffering of animals alive now.
It could be – and is – argued that campaigning for greater protections is a distraction from the goal of Animal Rights. Or worse, counter-productive, allowing the public to believe they can keep right on using animals, as long as it is done ‘humanely’. Abolitionists certainly think so and reject single issue campaigns. But that’s an argument we won’t get into just at the moment!
And the majority of other animal charities like ASPCA, HSUS and the RSPCA make no bones about their purely welfarist agenda.
There is absolutely no doubt that nearly all the exploitation and abuse, legal or illegal, humans inflict on nonhumans is in the service of the great capitalist god Profit. When it comes to lining their pockets humans have no regard for the rights of animals. So the answer is simple – bring down capitalism.
Or is it? Personally, I can’t see the overthrow of capitalism stopping people wanting to eat meat and cheese, use leather or wear fur. Isn’t it likely, or at least possible, that today’s capitalist factory farms would be tomorrow’s communist or socialist state-run operations?
Finally, the good news!
At last we come to Professor Garner’s exciting new paper “Animals and democratic theory: Beyond an anthropocentric account” published in Contemporary Political Theory less than two months ago. Even the title whets the appetite!
The Prof bases his thesis on the ‘all-affected principle’, already current in political theory. It goes like this: in a democracy, the interests of every sentient being affected by legislation must be considered. And those who clearly cannot speak for themselves must have their rights represented by those who can.
“A democratic polity should take account of animal interests, not because a substantial number of humans wish to see greater protection afforded to animals, but rather because animals themselves have a democratic right to have their interests represented in the political process.”
So exactly why should we believe Garner’s new political theory could do better for animals than what has gone before?
- Firstly, because it removes disputable questions of morality, ethics, and humanity (humaneness) from the equation. Under this principle Animal Rights is a purely political matter. You don’t have to believe it immoral to exclude nonhumans from democracy – it’s enough that it’s undemocratic.
- Secondly – and I think this is huge – because it sweeps away all those contentious species criteria we were talking about. Here there are no criteria to fulfil, except that of sentience alone.
So no longer does AR depend upon humans deciding whether an animal is ‘intelligent enough’ or has a ‘sufficiently complex emotional life’. A life need only be sentient. And that, says Professor Marc Bekoff, author of a Universal Declaration on Animal Sentience³, is now beyond dispute:
“After 2,500 studies, it’s time to declare animal sentience is proven.”
Not so very long ago black people and women, though most certainly affected by the collective decisions of their society, were entirely excluded from the democratic process. They battled hard for their rights, their vote, their say.
Because the ‘all-affected’ principle is surely the very heartbeat of Democracy.
To get general acceptance for Professor Garner’s new approach to AR, to help turn that snowball into an avalanche, please share widely!
You can read his complete paper here
Check out CASJ (Centre for Animals & Social Justice) who commissioned his work, and whose aim is to achieve:
• an overarching legal/political status for animals
• the institutional representation of animals’ interests within Government
• a government strategy and targets to improve animal protection
¹Subject-of-a-life – Blackwell Dictionary of Western Philosophy
²What France’s New Animal Rights Law Actually Means For Animals – The Dodo. This change in French law “only applies to pets or wild animals tamed or held in captivity. The sentience of wild animals, meanwhile, is not recognized.”
³A Universal Declaration on Animal Sentience – Psychology Today
Footnote: The EU already implements something approaching Prof Garner’s thesis.
An amendment to the constitutional basis of the EU, the Treaty of Lisbon, which came into effect on 1st December 2009, now includes this principle and made it a binding condition to pay full regard to the welfare requirements of animals when formulating and implementing policies in relevant areas.This puts animal welfare on an equal footing with other key principles such as: gender equality, social protection, human health, combat of discrimination, sustainable development, consumer protection and data protection.”
There are three Animal Movements – Armory of the Revolution
The Case for Animal Rights – Wiki
Animal Rights – Wiki