Animals as Vulnerable Subjects: Beyond Interest-Convergence, Hierarchy, and Property

by Ani B. Satz

Image via Pixabay

Human relations with domestic animals—companion, factory farm, and laboratory animals—are based on contradiction. We coddle them, eat them, leave our estates to them, experiment on them, buy them designer collars and clothes, wear them, risk our lives for them, and abandon and kill them. These contradictions are entrenched in a sprawling body of law regulating human use of animals as property.

Animals receive legal protections only when their interests align with human interests. Consider the following examples. Animals are not slaughtered prior to being “rendered insensible” because of the cruelty involved as well as the reduced hazard for slaughterhouse workers, efficiency in processing, and economic gains associated with decreased bruising of flesh foods. Downed pigs and sheep (animals too sick to stand) are not dragged or hauled to slaughter unless an inspector deems them fit for human consumption. Animals in laboratories are entitled to enough shelter and food to keep them alive to facilitate research. Companion animals are protected against cruelty in every state because of a desire to prevent harm to them as well as the value humans place on their relationships with them and the link between animal cruelty and violence against humans.

Derrick Bell famously described this phenomenon—of a privileged group providing legal protections to a disadvantaged group when it supports the interests of the privileged—as interest-convergence. Bell argued in the context of desegregation that whites opposed segregation “not simply [because of] the immorality of racial inequality, but [because of] . . . the economic and political advances at home and abroad that would follow abandonment of segregation.” Whites knew that desegregation would aid U.S. foreign policy, black soldier morale in the wake of World War II, and the economic development of the South. When the interests of whites and blacks diverged, the reach of Brown v. Board of Education and school desegregation was limited. In 1977, a mere twenty-three years after Brown, the U.S. Supreme Court held that segregation could be justified if it was not intentional or condoned by the school. This decision undermined busing plans vital to the implementation of Brown, and desegregated schools began to re-segregate, black students faced higher rates of suspension and expulsion than white students, and school districts witnessed white flight from integrated schools as well as a dearth of black teachers and

Animal laws are also the product of interest-convergence. Despite their nomenclature, animal welfare and anti-cruelty statutes protect human as well as animal interests. The problem with providing animal protections in this manner is that when human and animal interests conflict, animal protections are reduced or eliminated to facilitate human use of animals. Even one of the most basic animal interests— avoiding suffering—is ignored. Animals are anally shocked to death, drowned, suffocated, or gassed, so as not to damage their furs for fashion garments; subject to invasive experiments without appropriate pain relief or sedation to prevent drug interference with experimental results; tethered on short leads without sufficient shelter, food, or water for the entirety of their lives as guard animals; and intensively confined in dark, windowless warehouses for efficient meat production after being routinely castrated, de-beaked, and de-toed without anesthesia.

In the animal law context, interest-convergence gives rise to a problem I term “legal gerrymandering for human interest.” Legal gerrymandering is when the natural baseline for the legal protection of animals—premised on their inherent capacities—is redrawn to facilitate human use of animals. When human and nonhuman animal interests diverge, all protections for animals are placed in jeopardy. Unlike protections for other disadvantaged groups, there is no constitutional or other legal floor guarding the basic liberties of animals. For example, dogs are protected under state animal anti-cruelty statutes based on their capacity to suffer. Due to their scientific and educational utility, however, dogs who are not pets are routinely intensively confined and suffer invasive experiments in both laboratory and medical training contexts.

In addition to undermining fundamental protections for animals, legal gerrymandering creates inconsistencies. Animals with the same capacities, often within the same species or legal class, are treated differently. These inconsistencies undermine the form and function of animal laws, making it difficult for owners, users, and advocates of animals alike to understand the legal boundaries of human behaviors affecting animals.

Since legal gerrymandering alters the baseline upon which animal protections are premised, the problems it creates are not easily remedied. Interest divergence requires refocusing existing law on enforcing the interests of a protected, disadvantaged group. For example, in the desegregation context, Bell argues against the backdrop of civil rights legislation that there is a need to refocus social and political institutions on the right to education. As a result of legal gerrymandering to benefit humans, however, there is no baseline of rights for animals upon which to refocus. In order to address the damage of legal gerrymandering, it is necessary to reestablish fundamental legal protections for animals based on their inherent capacities.

Various scholars recognize that animal welfare laws do not adequately protect animals and propose frameworks to offer more meaningful protections. Such scholarly efforts are unable to overcome significant problems, however. First, under rights- and interests- based approaches, a hierarchy problem arises: Due to the higher capacities of humans, their rights or interests in using animals will always trump those of animals, even with regard to avoiding suffering in some contexts. Second, existing scholarship is entrenched in a paralyzing debate about whether categorizing animals as “persons” instead of “property” will improve their legal protections.

Thus, current law and scholarship fail to provide mechanisms to protect animals sufficiently and to avoid legal inconsistencies in their treatment. In this Article, I propose a new legal paradigm for the regulation of human interaction with domestic animals based on the principle of equal protection that “like beings should be treated alike” to resolve these problems: the Equal Protection of Animals (EPA) paradigm.  EPA combines the insights of vulnerability theorists with the equal protection principle and capability theory to create an approach that recognizes the equal claims of human and nonhuman animals to protections against suffering. To be clear, my paradigm does not invoke Equal Protection Clause arguments. Such arguments require that animals are recognized as persons, and I do not argue that the property status of animals should change.

EPA provides equal treatment of domestic animals with like capacities by recognizing that human and nonhuman animals have equal claims to realize certain basic capabilities. At a minimum, domestic animals must have the ability to intake necessary food and hydration, have necessary shelter and exercise and be able to engage in natural behaviors of movement, maintain bodily integrity (including avoiding pain inflicted on the body), and experience companionship. EPA requires that these basic capabilities of animals—human and nonhuman— are maximized within a given population, whether it be a family, university, city, or state. This entails a shift from the presumption that animals may be used for human purpose with some restrictions to a presumption against animal use absent justification. Animal use for human purpose is justified only if it also maximizes the enumerated basic capabilities for animals. This approach provides meaningful protections for animals and honors our moral obligations to them as vulnerable beings with the capacity to suffer. It also eschews legal inconsistencies by treating equally animals within legal and species categories as well as animals of different species with similar capacities.

In addition, EPA overcomes the hierarchy problem and moves past the debate over whether animals should be considered property. EPA seeks to maximize the basic capabilities of human and nonhuman animals within the same population. Thus, human claims to maximize basic capabilities cannot be valued above nonhuman animal claims for the same. Further, EPA directly considers animal capacities without regard to legal category, eliminating the need to recategorize animals as persons or as a special form of property to afford them greater protections. By focusing on sentient animals, or those with the capacity to suffer, the paradigm also avoids the practical difficulty of implementing theories that embrace a presumption against all animal use.To develop EPA, Part II discusses as a threshold matter arguments for the moral status of animals and why laws must protect animals. Applying aspects of Martha Fineman’s vulnerability thesis to nonhuman animals, it establishes a novel approach to the moral status of animals based on universal vulnerability to suffering. This approach has the advantage over other dominant approaches to grounding the moral status of animals because, combined with the equal protection framework developed later in the Article, it avoids the hierarchy problem of privileging human suffering over animal suffering. Thus, animal welfare laws should protect animals on two grounds: It is the stated purpose of the laws, and such protections follow from the moral status of animals as vulnerable subjects.

Parts III–V critique current animal welfare laws and proposed legal solutions. Part III argues that legal gerrymandering to benefit humans results in differential treatment of animals with the same capacities in three contexts: (1) the same legally-defined class, (2) the same species, and (3) across species. This Part discusses a particularly salient example of the effects of legal gerrymandering from the recent  litigation over “humane” treatment of factory farm animals, where agricultural industry expert testimony about animal capacities is given greater weight than independent scientific opinions. Part IV discusses the failure of humane labeling and other compromises to afford equal treatment of morally relevant animal capacities. Part V examines existing proposals for law reform, ranging from changing the legal status of animals from property to persons or “living property,” to a nondiscrimination approach that recognizes the right of all animals to noninterference.

Working from the premise that animals are vulnerable subjects, Part VI presents a new paradigm for the legal regulation of domestic animals: Equal Protection of Animals. EPA combines the equal protection principle and capability theory to allow domestic animals equal claims to certain basic capabilities. EPA is a nondiscrimination approach that creates a presumption against use of animals who have the capacity to suffer. Prior to developing EPA, this Part discusses the capability approaches of Martha Nussbaum and Amartya Sen. Sen’s approach is ultimately extended to the nonhuman animal context and used to inform the  proposed paradigm. This Part concludes by applying EPA to six basic capabilities: the ability to be fed, hydrated, sheltered, and “clothed” (maintain bodily integrity, including avoiding pain inflicted on the body); to exercise and to engage in natural behaviors; and to have companionship. Part VII addresses the implications of EPA for dominant social views and practices, the ability of the paradigm to address possible conflicts between human and nonhuman animal capabilities, and the changes to legal structures required by EPA.

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