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Ethical Treatment of Animals (July 2015): Legal and Political Setting

By Walter Hogan and Eric Owen

Legal and Political Setting

Legal scholars and political scientists have studied the successes and failures of animal rights issues in courtrooms and legislative chambers.  Advocacy organizations can achieve some progress outside the legal arena, but judicial decisions and legislation provide strong evidence for the direction of a movement.  Animal Law and the Courts: A Reader by Taimie Bryant, Rebecca Huss, and David Cassuto is a casebook for courses on animal law, which the authors note are now being offered at 90 percent of law schools.  Each of seven topical chapters begins with one or two judicial opinions, followed by expert commentary.  While animal companions are becoming increasingly valued by their human owners, the property status of animals severely limits what can be done to help those owned by others.  Issues such as no-pets clauses by landlords, the owner’s duty to provide veterinary care, and estate planning for care beyond the owner’s death are covered.

Animal Welfare, edited by Sylvia Engdahl, offers a basic introduction to animal law, following the format of Greenhaven’s “Issues on Trial” series.  It reviews four recent controversial cases before the U.S. Supreme Court and other high courts.  Each section has a brief introduction and several articles featuring some primary texts and expert commentary from different sides of the issue.  Joan Schaffner’s An Introduction to Animals and the Law is an outstanding survey of the topic for general readers.  After thoroughly covering the American legal landscape, the author also provides comparison with the animal laws of other countries.  Finally, Schaffner explores obstacles such as the lack of funding for enforcement, and recommends a course of action, including granting greater status in law to animals.  Gary Francione, the well-known legal scholar and animal advocate, would go much further in that direction, as indicated by the title of his Animals as Persons.  Francione argues that animals never will be freed from exploitation by humans until they are legally recognized as nonhuman persons with substantial rights.

Scholars from other disciplines have developed inclusive concepts to bring animals within the scope of human institutional concern.  Cary Wolfe applies the theories of Foucault and Derrida to the human/animal binary, and calls for an extension of biopolitical analysis to incorporate animals as another significant population in Before the Law: Humans and Other Animals in a Biopolitical Frame.  Political scientist Kimberly Smith’s Governing Animals investigates the status of animals in modern democracies, noting the tendency to extend moral concern to some animals, while supporting massive exploitation of others.  She sees social relationships between humans and animals as the key to advancing animal welfare.

Several political scientists have surveyed the major philosophical arguments for better treatment of animals, and suggested which of those arguments seem practicable within the actual political environment.  Robert Garner has authored and edited a number of books on this topic.  In Animal Ethics, he clearly and concisely outlines the theories of utilitarians, rights advocates, feminists, and others, then investigates the efficacy of each approach in reducing animal exploitation.  Garner sees value in each approach, advocating a holistic strategy with an end goal somewhere between welfare (insufficient) and absolutist-rights, which he regards as “utopian.”  In his later work, A Theory of Justice for Animals, Garner continues to seek the most politically feasible avenues for animal protection, surveying recent discourse by Alasdair Cochrane, Martha Nussbaum, and others to update his analysis.

Alasdair Cochrane’s An Introduction to Animals and Political Theory evaluates the most prominent political philosophies in terms of their differing prospects for achieving advancements in animal protection.  Cochrane concludes that liberalism and utilitarianism offer the most valuable contributions to the cause.  A different and creative approach to animal politics can be found in Zoopolis: A Political Theory of Animal Rights, by Sue Donaldson and Will Kymlicka.  The authors suggest that the reason why animal welfare enjoys public popularity, while animal rights remains a nonstarter, is that the latter topic stresses the negative rights of animals (not to be harmed) without articulating “positive relational duties” humans might adopt toward animals.  Donaldson and Kymlicka identify three communities of animals with which humans have different relations and duties.  Besides the expected domesticated and wild categories, they identify a “liminal” community of uninvited animal life that hangs about human settlements—crows, raccoons, and other such denizens.

Works Cited