I want to begin by making two statements, one at a time. And I’m going to ask you all, if you don’t mind, to raise your hand if you agree.
So here’s the first one. Ready? Animals should be treated humanely. I can barely see it, but it looks like lots of hands going up. OK, thanks. You can put your hands down.
Here is the second one. Animals should not be made to suffer unnecessarily. Thank you. It seems like most people agree.
And I would bet that if I ventured outside and put those statements to passersby, I would likely find that most people out there agree, too. It’s not really surprising, is it? More than half of the households in North America have companion animals, and most of us are very upset when we hear the occasional story in the news about some horrible act that’s been done to a dog, or a cat, or other animal.
And the law codifies this perspective, which is to say that virtually every jurisdiction in North America has laws that say animals should be treated humanely, animals should not be made to suffer unnecessarily. And those laws are useless. They do nothing, and they in no way protect animals from human-caused suffering, in any meaningful way, I should say.
So, I thought what I would talk about is why that’s the case and why it’s time to re-evaluate our relationship with other animals and the emerging field of animal rights law, that is doing just that.
So, let’s say that I wasn’t really here because I cared about doing this talk, but because my child has a heart problem and is in need of a transplant to save her life, and I wanted access to a large group of people whom I could discreetly look over, while I was doing this talk, to see who among you looks nice, and healthy, and strong, and when this event ends, I were to kidnap one of you, whisk you away to a secret surgery, where I could remove your heart to be donated to my child.
It’s nothing personal, you all seem very nice, but I don’t love you as much as I love my child, and your heart is necessary for her survival. Would that be morally or legally justifiable? Certainly not.
Well, you’re using your heart. No other person can claim any moral or legal right to it, no matter how compelling the reason. Among legal equals, it’s absurd to use the word “necessary” in this context, and we just don’t do it. But it’s different when it comes to animals. When we see that laws protect animals from unnecessary suffering, they seem superficially impressive, but it doesn’t take long and you don’t have to be a lawyer to figure out that, if the law prohibits causing unnecessary suffering, it creates a corollary, meaning it permits us to cause necessary suffering.
What is necessary suffering? Well, we write the laws, we enforce the laws, we interpret them. It turns out it’s necessary for an animal to suffer whenever we say so. So our laws prohibit gratuitous suffering, the kind that’s caused sheerly by what we might call wicked intent. But as soon as there’s a human purpose, and really almost any purpose will do, that suffering is necessary and protected. And it’s been that way for a really long time.
Remember philosopher John Locke? Can you think back to the 17th century? So, he conceived of the notions of property that are now central to our legal system, in part because he was trying to find a way to allocate competing human interests in animals and other “natural resources” in a principled way, and of course, back then, nobody thought of animal interests as one of those principles to consider. So, in a system of laws that grew to esteem property rights, animals became property, and humans became property owners. And so it remains.
And a central rule of property is that an owner can use her thing however she sees fit and do whatever she wants with her things, so long as she doesn’t use that thing to hurt somebody else. But the thing itself has no rights. So, this idea that animals are things that serve our purposes, that they are our property, has been really powerful, it has entrenched, and it now facilitates the systematic suffering of billions — with a B — of animals every year in North America, in a variety of industries.
So, I’m going to give you just one example. In the Canadian agriculture industry alone, every year, 700 million animals are intensively confined, are mutilated in a variety of very painful procedures without anesthetic. They’re living in their own waste. Many of them are sick and diseased, with broken bones and open wounds. They’re beaten, electrocuted. You know, when you see them traveling in those trucks on the highway, on the way to slaughter, for many of them, that’s the first time they’ve ever been outside in their lives. And they’re so depleted that several million of them arrive every year at the slaughterhouse already dead.
Then there’s research, and fashion, and entertainment, and sports. So, for every story that we hear in the news about some terrible act of violence having been done to an individual animal, there is an industrial counterpart where that violence is normalized and multiplied by hundreds, or thousands or millions of times. So, it’s the institutional imperative that is such a big problem for animals today. And Chomsky has discussed this in other contexts, how even really good people can do really bad things, when institutions demand it.
So, in the animal context, industry has embedded practices that would be considered monstrous if they were done to our own pet dog, even if sometimes those practices are carried out by people who love their own dogs and are otherwise kind and admirable people. That’s why another part of the problem is the laws focused on cruelty to animals. That’s always how you hear a wrong described, right? When you want to object to something done to an animal, you say it’s cruel. But cruelty is the wrong word, because it connotes a malevolent intent, doesn’t it? Causing harm for harm’s sake. And that’s rarely the case. The people who engage in this institutional violence may be desensitized, or profit-driven or desperate, as in the case of some agricultural workers, but they’re rarely motivated sheerly by wicked intent.
In fact, in some cases, the intent can be quite noble. Imagine two people coming home from work at the end of the day. One of them had a horrible day, he’s in a terrible mood, and his dog will not stop barking. He has a blowtorch in the garage. So he restrains his dog on her leash, goes out and gets the blowtorch, comes back and burns the dog.
Second person is a researcher, and she’s presently engaged in a study about the efficacy of various treatments on burns. And she’s returning home from a day at the laboratory where she has restrained several dogs and blowtorched them in pursuit of her study. The first person had no real purpose for burning his dog that way, and he might be charged with causing unnecessary suffering to the dog, but the second person not only won’t be charged, she will be protected by her institution, supported with public tax dollars, rewarded with professional recognition if her results get published. And the rest of us, if we ever hear about such things at all, will be assured that the experiment was humane, just as we are assured by agriculture industry spokespeople that all the things I described a moment ago are humane too.
So when industry gives us these assurances, we’d do well to ask ourselves: “What is their interest in having us believe that?” And we’d do well to consider the industry itself writes the voluntary codes of practice that govern most animals in industrial use, that there’s hardly any government oversight.
You know, I became involved in animal rights when I came across an image that disturbed me. And you know how it is: once you see things, there’s no unseeing them. So I felt compelled to learn more, and I learned how a cow becomes a steak, and how an elephant becomes a circus performer, and how a coyote becomes the trim on the hood of a coat. Those images are not offered to us, and those responsible for them go to great lengths to keep them from us, but they are there for the finding. And unless “humane” means “horrible” and “profitable,” there is nothing humane in those images. And nor are those images the result of a few rotten apples, which is the next assurance industry gives us on the occasions when their practices are exposed. It’s the normal routine practices of exploitation that are rotten.
So this has all been very bleak, but hang in, because this brings us to a new dimensions part of this talk. You see, we don’t treat animals badly because they’re property. We classify animals as property so that we can treat them badly. We don’t have to, we can do better, we can classify them differently. And the moral imperative to do so has been pressing for 150 years, since Darwin revolutionized our understanding about our place in the animal world with his theory of evolution. Darwin explained that you are all a bunch of animals, right? We’re all animals, more or less closely related to one another by virtue of our descent from different ancestors, or from common ancestors, and that animals differ from one another in degree, but not in kind. And this was revolutionary, because we’ve traditionally justified the differential treatment that we give to animals on the basis of some assumed categorical differences between us and them. “They don’t think, they don’t feel, they don’t communicate.” But Darwin discredited those assumptions, and they’ve been discredited much further still by various branches of natural science and applied science in the 15 decades since. And our laws have lost their factual premise.
So the moral implications of this evolution revolution have taken a long time to sink in, but no serious thinker disputes anymore that animals think, and feel, and communicate, that they are the subjects of a life. We’re starting to appreciate that animal life is much more like a web than the pyramid we’ve been used to drawing, that they are literally our kin.
Now, there are differences between humans and other animals, of course, just as there are differences between humans, right? We have this notion of human equality, but that’s not because we’re actually equal in our capacities or abilities. Think about it: some people are taller than others. Some people are more intelligent. Some people have nicer dispositions. We have different genders, and disabilities, and religions. Some people can compose operas. Some can’t sing a note. Some can win Olympic medals in hockey. Some can’t skate. So, we have many differences, but we have decided that none of those differences is morally relevant when it comes to protecting our fundamental interests, like our interests in living our own lives and not being hurt for somebody else’s purpose.
In another talk, we might explore whether human rights operate more in theory than in practice, but at least we are working on it, and that’s where animal rights theory comes along. It asks us to confront this question: what are the morally relevant differences between humans and other animals that make it acceptable for us to hurt them in ways that would never be acceptable to hurt one another? So as we wrestle with this question, the lack of a comfortable answer’s propelling the development of animal rights law, where we try to generate legal rights for animals by eroding their property status. You can think of a right as a barrier that exists between you and everybody who stands to benefit by hurting you or exploiting you. It’s what stands between me and you and stops me from taking your heart for someone I love more.
So, in animal rights law, we’re not trying to extend human rights to animals, as you sometimes hear. Nobody thinks animals should have the right to vote, or get married, or have a good education. It’s really about establishing the right to have their fundamental interests respected when we consider taking actions that will affect them. And that could mean changing their status from property to legal person. And if it seems strange to think of an animal as a legal person, consider that a whole array of inanimate constructs — corporations, churches, trusts, municipalities — are all legal persons; in that they have legally protected interests and they can go to court and advance them. And animals are the only sentient beings who aren’t.
So, it’s a long road to peaceful coexistence between humans and other animals, and that is partly because, even though all of us say we don’t want animals to suffer unnecessarily, most of us, wittingly or unwittingly, to some degree are users of animals or consumers of their various bits and pieces. And we’ve proved as a whole pretty reluctant to give up all the privileges that come with our superior legal status, but we’re starting to see things differently. The animal rights movement is gaining credibility and momentum, and laws are not fixed forever. Law is a social institution that is meant to evolve over time, as hearts and minds change. So, the law will begin to reflect our biological kinship with other animals, as soon as we decide we really want it to.
