Law and the Question of the Animal

A Critical Jurisprudence

Yoriko Otomo, Edward Mussawir

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781135095284
• Edition: 1
• Topic: Diritto
• Subtopic: Teoria e pratica del diritto

This book addresses the problem of 'animal life' in terms that go beyond the usual extension of liberal rights to animals. The discourse of animal rights is one that increasingly occupies the political, ethical and intellectual terrain of modern society. But, although the question of the status of animals holds an important place within a range of civil, political and technological disciplines, the issue of rights in relation to animals usually rehearses the familiar perspectives of legal, moral and humanist philosophy. 'Animal law' is fast becoming a topic of significant contemporary interest and discussion. This burgeoning interest has not, however, been matched by renewed inquiry into the jurisprudential frames and methods for the treatment of animals in law, n or the philosophical issue of the 'human' and the 'animal' that lies at law's foundation. Responding to this interest, Law and the Question of the Animal: A Critical Jurisprudence brings together leading and emerging critical legal theorists to address the question of animality in relation to law's foundations, practices and traditions of thought. In so doing, it engages a surprisingly underdeveloped aspect of the moral philosophies of animal rights, namely their juridical register and existence. How does 'animal law' alter our juridical image of personality or personhood? How do the technologies of law intersect with the technologies that invent, create and manage animal life? And how might the ethical, ontological and ceremonial relation between humans and animals be linked to a common source or experience of law?

Chapter 1

Law’s animal

Ed Mussawir and Yoriko Otomo

What sparks the interest in the animal as a subject or object of legal knowledge in contemporary society? Do legal scholars today have the critical tools for addressing the kinds of dilemmas with which this field seemingly presents us? Is law able to take account of its care and control, construction and destruction of animal life? The apparent growing fascination with animal law as a discipline and a topic of legal study internationally is striking. Not only have recent decades seen significant and burgeoning legislative activity and reform with respect to the protection of animal welfare and ‘rights’, but it has also seen a parallel growth in the academic study of this same area. Animal law is taught at over 90 law schools in the United States and is also offered at law schools in Australia, Canada, China, Portugal, Israel, New Zealand and the United Kingdom, amongst others. In addition to this, there has also been, more recently, the appearance of a number of reference books internationally that take animal law for the first time as a point of scholarly cohesion.

This book introduces a somewhat different voice to the field. The reasons for this are substantive as well as procedural. First, while the field of animal law has grown largely in response to a wider animal rights movement broadly critical in orientation, the theoretical problematisation of law and rights themselves has not necessarily followed a sustained critical account. The theoretical focus of animal law scholarship seems therefore to have a narrow ideological starting point. Needing to convince its critics that the perspectives, needs and rights of animals are not peripheral to law’s remit and objective, its idiom has remained largely polemical and rhetorical while its agenda has been decidedly ‘reformist’, even when it purports only to describe dimensions to current legal structures and measures.

Two difficulties seem to follow from this. First, there is a difficulty in attending closely to the question of law in relation to the animal. Animal law scholarship which retains a largely reformist agenda tends to assume a common ideological starting point or at least a general ethical consensus about concern for the treatment of animals as the impetus for a resort to law and hence also the study of law in the field. In relation to this supposedly shared view, however, legal scholars can only seem to be the messengers of the more or less bad news of its non- or slow incorporation. There appears to be little interest in calling law itself into question as an instrument and artefact of social change and institution. Even less acknowledgement is given to the possibility that the kind of limitation which legal study in itself places on the moral philosophies of animal rights may be the occasion for a kind of theoretical creativity.

A second difficulty presents the other side to this equation. Not only is it difficult to account for the existence and meaning of law through its encounter with animals, it seems equally difficult to hold onto the ‘question of the animal’ in law with scholarly rigour and direction. The interest that animal law scholarship tends to maintain in the animal itself remains quite often simply prescriptive and advocatory. It isn’t hard to see why. Even putting aside the academic differences of those who contribute contemporarily to this field, it is challenging to write about the animal in law without adopting the speaking position of an advocate. Animals are taken as a group of beings who at the very least deserve better outcomes or better conditions of existence. And law is of course taken ambivalently: not only as one of the primary means through which present conditions of violence are legitimated, but as a tool for achieving better conditions and pursuing better outcomes for animals.

Responding to some of these challenges in the ethical and technical relation of law to animal life, this book attempts to introduce an alternative voice within the growing field of animal law: a voice that offers a departure from the polemics of animal rights and engages with law relating to animals and the question of the animal in law at a critical, creative and theoretical nexus. The aim is to begin to return the discourse of animal rights to jurisprudence, to the technical and theoretical discipline of right and to the thought of law. It is also to deepen the scholarships and practices of critique that are embedded in law’s relation to the non-human animal. Drawing upon the texts and practices of law and the resources of a critique of humanism in the contemporary humanities, the contributors to this book respond to the problem of what it might mean to return ‘animal rights’ discourse to the technical language and discipline of rights: jurisprudence. In doing so, this collection of works addresses a surprisingly underdeveloped aspect to the moral philosophies of animal rights, namely their juridical register and existence. How does ‘animal law’ alter our juridical image of personality or personhood? How do the technologies of law intersect with the technologies that invent, create and manage animal life? And how might the ethical, ontological and ceremonial relation between humans and animals be linked to a common source or experience of law?

Each of the chapters in this book offer new lenses through which to approach the question of the animal in law. Central to all of these approaches is an attention to the ethical and philosophical relation between human and animal and to how this relation might be framed in and as a problem of law. Through this, new light is cast on certain familiar coordinates in jurisprudence: the subject and object of rights, the legal person, the sacred and profane, jurisdiction and territory, normativity, representation; all of which become remarkably reshaped in the presence of the animal.

The chapters also bring to our attention neglected, forgotten, critical or alternative lines of inquiry aimed at situating the animal in relation to its more marginal legal statuses: nomad, machine, chimera, protagonist, modification, meat, etc. The responses are also populated with animals themselves. There are chimpanzees, horses, sheep, pigs, ducks, mice, dogs, spidergoats and buffalo. Magical, mechanical, dangerous, wild, domestic, invented, beloved: these are the subjects of the contributors’ ruminations. We have chosen to collect these contributions in relation to three central themes addressing the non-human animal. These themes are respectively the genres, the cases and the habitats of law’s animal.

Genres

The first three chapters of this book each address the ‘genre’ of animals. ‘Genre’ concerns the question of origins. It turns one’s attention to problems of reproduction, gender, representation and generation where law marks the genealogies, heritages and lineages (whether pure or mixed) of various kinds of being. The fact that humans are a species of animal or that human and animal share a common ancestor has more than a purely biological and evolutionary implication but one that also calls into question the origins of juridical thought and the most basic presuppositions of jurisprudence. In jurisprudence the question of genre is concerned less with animal taxonomies than it is with the elements and institutions of a form of juridical ‘life’. It speaks in at least two directions: it concerns on the one hand the fidelity to lineages and roots, to gender and type, house and family; on the other hand it refers to technology and praxis; the creation, invention and manipulation of apparatuses and institutions of living beings. One example that traverses both these facets is the juridical technology of the ‘person’: an element scrutinised by a number of authors in this book. It is true that animal rights discourse makes all kinds of use of the legal category of the person, but from the perspective of the ‘genre’ of animals in jurisprudence, the legal person as a juridical artefact appears to have a much narrower purpose and to conceal a much more fundamental secret.

Connal Parsley begins the critique of the ‘person’ in this collection by turning to the medium of cinema. He does so in order to diagnose and decode a central problem in the contemporary intellectual habits of legal, ethical and moral thought in relation to animals: the problem of its representation in images. Parsley brings together two key textual sources for this project – the Armenian film Border and the philosophies of Giorgio Agamben and Roberto Esposito on the question of biopolitics and the juridical structure of the ‘person’. The combination of these analyses brings some startling observations to the fore. First, man and animal no longer simply appear as they typically have in Western thought under what can be called the category or structure of the ‘person’; a structure which allows both the valuing and devaluing of the animal (like the human) as subject or object of rights. Rather, this structure is shown to be the very product of representation itself which Parsley argues is fundamentally ‘anthropogenic’. In Border, the viewer is under an impression that the sequence of scenes and visions in the film may be projected from the perspective of one of the animals (a buffalo who is in the setting of Armenian–Azerbaijani conflict). However, Parsley shows that the same fiction which cinema invents and allows to persist at the heart of the image in order for it to work is also a blind spot within the juridical imagination when it confronts the problem of animal rights. The film does not reveal an animal as the authentic ‘subject’ of the gaze or as the possible subject of rights, instead, the nature of representation itself reveals an abeyant subject onto which the fiction of the person is grafted as a presupposition. Thus, for Parsley the question of the animal cannot be answered other than in and through the very technologies of the image that capture a ‘living being’ and over which we perhaps seem to have less creative control or understanding in legal thought than in cinematography.

Piyel Haldar continues the interrogation of legal personality in its relation to the genre of animal life in ‘Witness demeanour as real evidence: mechanistic philosophy of bodies without minds’. The inquiry moves here from the critique of representation to the problem of expression in the persona of the witness. Haldar explores both the technological and the theological dimensions of the person, the persona or mask of juridical existence, and the way it operates through the sign of truth in testimony and the body of the witness. This leads the analysis back to some neglected historical meditations on the relation of man and animal, reason and materiality, essence and substance, noetic experience and raw affect, pure thought and pure mechanism in the philosophical description of living beings particularly in seventeenth- and eighteenth-century French philosophers Descartes and La Mettrie. What difference is there for example between man and machine, man and animal? The questions place an interesting new emphasis on the laws of evidence, where the expression of truth still seems mediated by the impression of a body that is affected involuntarily, like an animal, the mask of appearances removed. For Haldar this involuntary affectivity does not just concern the signs and symbolic slippages of unconscious life, but the very being and office of the witness. He shows that the idea of masklessness rests on a particular link between genre and the heritage of the person: a link which moves us from Roman law where the purpose of the persona, the ritual mask, was to ‘[assimilate] the identity of an individual’s ancestor portraits (the imagines)’, toward its moral and metaphysical character in Christian and modern thought, where the person is effectively orphaned, laid bare in a witness that ‘cannot help itself’. Haldar invites a turn in legal and animal studies to the same materialist gesture with which La Mettrie managed to empty the Cartesian cogito of one of its crucial features: the purely psychological substrate of the person.

The theme of the genre of law in its encounter with the animal is taken up a third time by Cressida Limon in ‘Inventing animals’. The question here is the relation between the technological and genetic reproduction of animal life. Limon traces this question not through the problematic of the ‘person’ but through the context of relatively recent legal controversies concerning the patentability of ‘life’. The critique of the doctrinal and discursive background to these controversies addresses two under-represented concerns in the literature: the genre of man and animal and the gender implicit in the juridical register of invention. The claims to intellectual property over certain living products of biotechnology in recent decades invoke not just a moral and political reaction but also reveal a problem at the heart of the juridical presentation of the issues themselves. In particular they reveal a difficulty in adequately accounting for the heritage, origin and generation of life according to law where such life may also be subject to technical protection as an inventive step in the existing ‘state of the art’. Here the idea that animals are capable of being owned whereas the ‘human being’ is supposed to have an inherent dignity removing its biology from the realm of property, dominates and severely distorts the picture. The real difficulty, Limon shows, arises instead in relation to law’s inquiry into the origins of filiation and its account of the very gender of inventing/reproducing. Thus, while courts have tended to validate patent claims over certain organisms and even animals such as the ‘OncoMouse’ – a cancer-prone mouse designed for use in medical research – which at one level represent an element of technical innovation, a problem arises over the limits of such claims when that form of monopoly is said to extend not just to the animal/innovation itself, but to all of its offspring. The origin of the status and genre of the animal in law here finds itself uniquely elicited as well as uniquely obscured.

Cases

From the problem of ‘genre’ (the origin and filiation of animal life) to the singular instances and encounters of animals before the law, the chapters composing the middle section of the collection are marked by cases. No doubt cases form the texture to many dominant traditions of legal knowledge including most notably the common law tradition. Central to any attention to ‘cases’ is an understanding of the limits of law and the limits of judgment. The case understood in this sense is not just a particular instance of general rules but is itself a suspension of universals, where one finds more minor beings lurking within finite decidable relations. Animals emerge from the case then with a definite and peculiar sense that is not easily subsumed under dominant forms of knowledge or meta-narratives. In fact it may be jurisprudence as a tradition and discipline which seems singularly attuned to the case and its disruption of the discourse of universals: a challenge which the chapters here attempt to address through varying means.

Our first is a chapter which draws out certain cases not in fact from the common law tradition but the civil law. In ‘Chimpanzees in court: what difference does it make?’, Ciméa Bevilaqua offers an ethnographic account of two legal cases in which the categorisation of animals as things is under challenge: an application for habeas corpus filed in Brazil on behalf of two female chimpanzees, and the acknowledgement of legal personhood to a male chimpanzee in Austria. By focusing closely on what appears on the file of these cases, Bevilaqua offers a unique perspective and avenue of critique, both in terms of the reasoning that affects courts faced with the presence of animal ‘litigants’ and in relation to an increasingly strategic litigious practice of animal rights activism. For Bevilaqua the procedural narrative of each of the cases provides a rich source of analysis. The courts in both instances show a remarkable commitment to the procedural form of law in the face of the otherwise extraordinary applications made in the name of animals. Thus, in the Brazilian case the Superior Court of Justice dismissed the action only for lack of jurisdiction to deal with habeas corpus applications when the beneficiary is not in the custody of a public authority, and in the Austrian case because the applicant did not fulfil the conditions required to be appointed a legal guardian, not because he was a chimpanzee, but rather because, inter alia, he was not ‘mentally handicapped’. These moves only serve for Bevilaqua to highlight the deeper problem of the status of the animal which the courts are in effect choosing to avoid, one which would touch on the ethnography of the legal construction of person and thing.

Ed Mussawir continues the procedural inquiry into jurisprudence’s encounter with the animal in ‘The jurisprudential meaning of the animal: a critique of the subject of rights in the laws of scienter and negligence’. The object of Mussawir’s inquiry is the unique meaning that animals take on in the text of law and in cases of jurisprudence. This question directs him to the civil liability for damage caused by animals and the distinct difference between two competing common law actions: scienter and negligence. Exploring the oddly pragmatic meanings that things acquire in jurisprudence and in fiction, Mussawir shows that the significant disappearance of the animal from the text of law is a somewhat overlooked phenomenon. The abolishment in modern jurisprudence of the action of scienter for example – in which a person is held liable for having kept a dangerous animal – and the framing of liability for animals under the more inclusive general law of negligence, seems to deprive the animal of one of its essentially legal meanings and statuses. Under scienter the animal appears as more than just one dangerous accident or circumstance over which a person should take reasonable care, but the very element that legally defines the wrongfulness of the act. Mussawir attempts to allow the meaning of the animal to emerge here under a distinctively jurisprudential sense appearing as a singular and ‘sober’ perspective.

Victoria Ridler is similarly concerned with the status of the non-human animal before the law. In ‘Dressing the sow and the legal subjectivation of the non-human animal’, Ridler begins with an historical situation: the enigmatic case of animal trials in Europe in the Middle Ages. For the modern mind, these trials seem to dramatise the plausibility and implausibility of recognising lawful relations with animals. As historical cases in Western law, the trials also reveal an unresolvable tension: on the one hand, Ridler argues, they reveal a violence and injustice that is immediately palpable – dressed up as humans, the animals seem to us cruelly unsuspecting of the ‘justice’ which is to meet them – yet on the other hand, they provide rare instances of a form of legal prudence in relation to animals, affording strict procedural rights to non-human beings accused of wrong. After examining the contemporary arguments that the non-human animal ought to have moral relevance for humans through recognition as a subject of rights, Ridler critiques the positivity in such theories of justice as simply recouping the pre-existing hierarchies (of dominium and imperium of human over non-human animals). Any attempt to theorise the legal subjectivity of animals in a universalising discourse must therefore be met with a word of caution. Ridler encourages an approach that would at least hold the peculiar ‘injustice’ of the animal trial in mind.

The last ‘case’ analysed in this section is a more contemporary case of lawfully ritualised violence. Dinesh Wadiwel in ‘Whipping to win: measured violence, delegated sovereignty and the privatised domination of non-human life’ critiques the discourses of animal welfare surrounding changes in Australia to horseracing regulations. The regulations which implemented restrictions on when and how often a jockey may whip their horse during a race in 2009 was introduced largely in the name of welfare protection and to bring the industry up to conformity with community standards. Wadiwel however reveals the inconsistencies in the narrative of ‘progressivism’. He reads whipping instead as a broader trope of sovereignty, violent domination and inequality in the position of human and non-human animals, the regulation of which, rather than overturning or mollifying this relation, only heightens and confirms it. Wadiwel notes that welfare itself functions ‘not as a means to reduce the suffering of animals, but, on the contrary, a means of governing’. The lack of regulation which meets the jockey in the last 100 metres of the race – a legitimate ‘free for all’ – doesn’t quite seem as horrifying as the metred, measured and managed infliction of violence preceding it.

Habitats

The third and final section of this book focuses on the lawful space of the animal. The problem of spatiality and habitat raises in jurisprudence the possibility of addressing the relation of the animal to grounds, the earth and the co-existence and relation of li...

Table of contents

• Cover
• Halftitle
• Title
• Copyright
• Contents
• Notes on contributors
• Acknowledgements
• Series editor’s preface
• 1 Law’s animal
• 2 The animal protagonist: Representing ‘the animal’ in law and cinema
• 3 Witness demeanour as real evidence: Mechanistic philosophy of bodies without minds
• 4 Inventing animals
• 5 Chimpanzees in court: What difference does it make?
• 6 The jurisprudential meaning of the animal: A critique of the subject of rights in the laws of scienter and negligence
• 7 Dressing the sow and the legal subjectivation of the non-human animal
• 8 Whipping to win: Measured violence, delegated sovereignty and the privatised domination of non-human life
• 9 Law in the marketplace
• 10 The normativity of an animal atmosphere
• 11 Species, scarcity and the secular state
• References
• Index