Maneesha Deckha, Animals as Legal Beings: Contesting Anthropocentric Legal Orders, University of Toronto Press, 2021
Angela Fernandez
University of Toronto
Toronto, ON
Animals as Legal Beings is a new and important monograph-length treatment on the inadequacies of both a property and a personhood approach to the legal status of nonhuman animals. In line with decades of literature arguing for the abolishment of the property status of animals, Professor Maneesha Deckha, Professor and Lansdowne Chair in Law at the University of Victoria, British Columbia, Canada, adds a novel twist: personhood, the typically preferred alternative to a property status for nonhuman animals, is not a good option. Why? Deckha argues that personhood is too anthropocentric and too embedded in problematic Western liberal humanist traditions to work for nonhuman animals. Drawing on a truly impressive wealth of scholarship in feminist and post-colonial studies, as well as animal care ethics, Deckha posits a new legal category better able to protect animals from exploitation: beingness.
The first chapter of the book sets out the “legal welfarist” logic animating federal anti-cruelty law in Canada. For those familiar with the work of Gary Francione, the argument here will be familiar, namely, that welfarist approaches to improving the situation of nonhuman animals will inevitably be inadequate because nonhuman animals will never win when their interests are balanced against the interests humans have in their exploitation (Francione 1995). Like many anti-cruelty statutes in the United States, the Canadian Criminal Code prohibits causing “unnecessary” pain, suffering or injury to an animal. Like Francione, Deckha argues that the Criminal Code provisions have been interpreted in a narrow way and applied to “socially deviant acts and not what mainstream society considers socially acceptable animal (ab)use” (51). Deckha provides an excellent history of the 1998–2000 (failed) attempt to move animals out of the property section of the Criminal Code (see pp. 56–60), along with the litany of other failed attempts until an amendment that more-or-less left the provisions as they were but increased the fines and penalties available passed successfully in 2008 (60–67). It covers the 2016 attempt by Liberal MP Nathaniel Erskine-Smith, whose Private Member Bill failed on its second reading and (some) parts of that Bill, which were taken up in separate successful laws such as a ban on the import of shark fins. This discussion also includes the widely celebrated ban on captive cetaceans, as well as a more obscure loophole relating to bestiality created by an off-beat 2016 Supreme Court of Canada decision (67–71). Lesli Bisgould’s Animals and the Law was published in 2011, before a number of these developments, and so Deckha’s chapter provides a helpful update (Bisgould 2011). It would be perfect for use in a Canadian animal law class, especially one where the instructor would like to familiarize students with the Francione perspective. Deckha adds to it the point that in addition to a problematic property framing, many animal cruelty laws also have a colonizing function insofar as they have often been adopted “to cultivate ‘civilized’ and virtuous character among so-called lower classes and racialized groups” (44). The well-supported conclusion here is that “animal suffering [is usually] actionable only in an extremely narrow set of circumstances”: where “majoritarian sensibilities” support it (75).
The second chapter sets out what is wrong with personhood, arguing against those, like Steven Wise and the Nonhuman Rights Project, who would mobilize the concept to better protect nonhuman animals. Given the choice between property and personhood, personhood is the better choice, Deckha writes; however, it cannot be used because it promotes “the problematic liberal humanist affinities” (87) that have not worked well for vulnerable classes of humans and are unlikely to work for the even more vulnerable classes of nonhumans. The issue is that “personhood was reserved for an elite sector of humanity: white, able-bodied, cisgender heterosexual men of property” (88). Even if some nonhuman animals can make it in, by proving that they are “human-enough” (88), e.g. chimpanzees, elephants, or cetaceans, this route “inevitably highlights the differences and putative inferiority of the excluded animals … as well as the included animals[’] .. residual embodied non-humanness” (89). In other words, they are included but not on their own terms. This strategy intensifies existing hierarchies (93). In Cary Wolf’s terms, the approach might work for the “humanized animals” but not those who are at the bottom, the “animalized animals” (93). Deckha writes: “And it is the latter category into which most animals (consider farmed animals and trawled fish) are placed” (93). She continues, “[e]fforts to personify some animals will thus necessarily accent the thingness of other beings … pushing them deeper into the realm of property/thing” (94). This is all very persuasive and thought-provoking and might be helpfully used in an animal law course after reading Wise’s work or watching the documentary Unlocking the Cage (2013) and familiarizing students with the personhood approach.
The third step in Deckha’s argument is the turn towards “being” as the post-anthropocentric legal ontology that would follow, first, the abolition of a property status, and, second, a turn away from personhood. Here is where things get a bit controversial. The promise in the book is that the new subjectivity, “being,” will be more animal-centered or animal-friendly (8, 9), “better respect animals” (123), and will not “bear the imprint of either liberal humanism or anthropocentrism” (9). However, even getting out of the gate, many people will hear in “being” not a distancing from the Western liberal humanist philosophical tradition but a pretty direct connection to it given the centrality of the term “being” in Martin Heidegger’s famous (and notoriously challenging) work Being and Time. This is an exceedingly human exceptionalist text, given the lofty attributes of Dasein such as an apprehension of self that includes things like self-reflexivity regarding death and the pondering of one’s own existence (Wheeler 2011). This would, one would think, make it an extremely un-animal-friendly category, since even if other animals are gifted/afflicted with this same kind of consciousness, we have precious few ways to know about it. Hence, for those who spent time as I did as an undergraduate being tortured by this text, Deckha has an up-hill battle it terms of changing the connotation of the term. And so she launches in, as she puts it, “with apologies to Martin Heidegger” (121). It quickly becomes evident that Deckha means something very different than Heidegger or any of the other dead white male philosophers one would encounter in traditional mainstream philosophical study. Rather than the disembodied, independently autonomous and rational subject of the standard Western philosophical texts like Being and Time, Deckha’s “being” is embodied, relational, and vulnerable (see chart positioning these opposites, 122). She writes about each of these qualities in turn, drawing on a the work of a wonderful array of feminist thinkers, for example, Jennifer Nedelsky on relationality (127–30). Deckha also engages with Lori Gruen’s theory of “entangled empathy” (100–101). I found the discussion of vulnerability, specifically comparing the more liberal approaches of Martha Fineman and Ani Satz, as compared against Judith Butler, particularly rich and informative (see 130–41). Given her reconceptualization of the term, filling it with content that one would not necessarily expect to see, I rather thought Deckha should make the same move as Heidegger did in Being and Time and capitalize her sense of being. This would demarcate it from other ways in which the word is used, specifically in laws relating to nonhuman animals.
The example I have in mind here, one that Deckha surprisingly does not discuss, is the 2015 revision to the Civil Code of Quebec, which adopted the following provision: “[a]nimals are not things. They are sentient beings and have biological needs” (art. 898.1, https://elois.caij.qc.ca/CCQ-1991/ article898.1). It was inspired by France’s recognition of nonhuman animals as “living beings endowed with sensibility” adopted the same year (Boyd 2017, 29). At first blush, the Quebec law would seem to be exactly the kind of change Deckha is recommending, namely, abolishing the “thing” status for nonhuman animals and endowing them with a “being” designation and so would not be “a complete novelty in Canadian law” (123). However, the Quebec provision is located in the book of the Civil Code on property (biens), which implicitly signals that even though nonhuman animals are recognized as sentient and “not things,” they are still property. In case that was too subtle, the provision also explicitly states that the recognition of sentience and biological needs does not change any other laws “concerning property [that] nonetheless apply to animals.” The Quebec example is important I think not just because Deckha is centrally focused on Canada but also because it shows that it is not the use of the term itself that will do all the work here. As Deckha herself says, “[a] change in legal subjectivity would not magically erase the culturally precarious status most animals bear” (173). Deckha’s concept of Beingness (and here is where the capital would be used to good effect) would signal this; small-b being in Quebec and France is used in a way that does nothing to interfere with the instrumental use and commodification of animals and animal products. The same is true of other civilian jurisdictions, which have adopted provisions in their civil codes setting out that nonhuman animals are “not things” (Austria and Germany) or “not objects” (Switzerland), and they use a similar proviso or disclaimer regarding any other laws relating to property (see Eisen and Stilt 2017, paras. 18–25, Germany; 26–35 Switzerland; 42–45 Austria). Deckha is clear that “beingness is meant to replace property, not coexist with it” (155).
Is being or Being less anthropocentric? Again, I think it depends a great deal on how you hear it, specifically, do you hear an implicit “human”? In that respect, “being” is actually quite similar to “person” insofar as one might think first and foremost “human being” (in which case most nonhuman animals are never going to make it) or one may immediately think “empty vessel in which any number of rights may or may not be poured,” i.e. the neutral entity-like legal person or “cluster” concept (Nafine 2009, Kurki 2020). You would think that judges will hear primarily the second vessel meaning, but they will not if they are being presented with evidence about the complex social and emotional lives of specific nonhuman animals and, generally, to emphasize how much like humans they are that they deserve a right like habeas corpus, which protects a person from unlawful detainment, the strategy of the Nonhuman Rights Project litigation. It is difficult, and a bit confusing, to ask these judges to think about person in the human sense and person in the neutral vessel sense at the same time. If they yes to the latter, they will easily be taken as having said yes to the former, when that is likely not what they want. And so, they say no to everything.
Deckha discusses the vessel or “cluster” concept of “person” (e.g. 86) but not as much as one would expect in a proposal recommending a shift away from personhood as the legal subjectivity for nonhuman animals. The focus on anthropocentrism suggests that she has more the human being sense of person in mind. Hence, the question of what gets lost by abandoning the vessel or cluster concept of person is not addressed, specifically the important question of whether beings or Beings will have rights. Deckha says that “being” should be as protective as personhood is, which suggests that nonhuman animals would have rights, not just the small-r nineteenth-century kind under (largely ineffective) animal welfare or anti-cruelty statutes, but also the Big-R twentieth-century sort that many animal advocates call for. However, if nonhuman animals are capable of being rights holders, then they would seem to be already legal persons in the second sense, whether or not we like the residual (and perhaps inevitable) anthropocentrism involved. If that is true, why give them a status that is likely to be interpreted as a “second-best category” (160)? I think it would be better to say that what they have is a species of legal personhood, a nonhuman “quasi” kind, which would make it clear that even if it is second-best they are eligible for rights, not just the ones that they already have but other better ones (see Fernandez 2019).
Successful rights of nature initiatives might come to de-anthropomorphize personhood itself, at least in the human being sense (Boyd 2017). In fact, they are already doing this, as we have seen with rivers around the world (in India, New Zealand, and Columbia), lakes (like the section of Lake Erie in Ohio), forests (in New Zealand and the Amazon rainforest), which have all become legal persons in recent years, not in the human sense but in the vessel or cluster sense of being able to bear rights (Samuel 2019). As this movement becomes more normalized and personhood develops for important but non-living and breathing entities, we may start learning to hear “person” in non-anthropocentric terms. The rights of nature movement has the potential to be good for nonhuman animals, who given their sentience will be seen as deserving a share of these rights and protections. They may even be seen as more deserving, since, as Deckha puts it, “living bodies are more vulnerable to violence, to intense pain and suffering and to death” (157) than the other candidates for personhood she discusses in the last chapter of the book (plants, artificially intelligent machines, bacteria, coral reefs, and rivers and lakes). In this discussion she acknowledges that sentience is problematic (e.g. a negative focus on suffering) (see 145–46, 152–53) but it is an important way to prioritize (if not rank) claims for the protection of the interests of a variety of entities.
Even if “being” does not come to replace “person” completely, Deckha’s argument, that we need to learn to include and respect nonhuman animals without occluding their nonhuman animality, i.e. accept them on their own terms, is an extremely important ethical argument. It will certainly help get us to a place where we can, as she elegantly writes, “value animals not as humanity’s Other but as beings of value that can exist outside of instrumental relationships with humans and other legal persons and be protected against instrumentalization and commodification” (25). I just would not like to see a surrender of the way in which nonhuman animals are still a kind of legal person, in the vessel sense, given the potential this has to help animals fit within an (admittedly pathological) legal system.
Angela Fernandez
University of Toronto
Toronto, ON
References
Bisgould, Lesli. 2011. Animals and the Law. Toronto: Irwin Press.
Boyd, David R. 2017. The Rights of Nature: A Legal Revolution That Could Save the World. Toronto: ECW Press.
Eisen, Jessica & Kristen Stilt. 2017. “Protection and Status of Animals.” In Max Planck Encyclopedia of Comparative Constitutional Law. Edited by Rainer Grote, Frauke Lachenmann & Rüdiger Wolfrum. Oxford: Oxford University Press. <http://oxcon.ouplaw.com/view/10.1093/law-mpeccol/law-mpeccol-e71?prd=MPECCOL>
Fernandez, Angela. “Not Quite Property, Not Quite Persons: A ‘Quasi’ Approach for Nonhuman Animals. 2019. Canadian Journal of Comparative and Contemporary Law 5: 155–232.
Francione, Gary L. 1995. Animals Property and the Law. Philadelphia: Temple University Press.
Kurki, Visa A.J. 2019. A Theory of Legal Personhood. Oxford, UK: Oxford University Press.
Naffine, Ngaire. 2009. Law’s Meanings of Life: Philosophy, Religion, Darwin, and the Legal Person. Oxford, UK; Portland, Or: Hart Publishing.
Samuel, Sigal. 2019. “Lake Erie now has legal rights, just like you.” Vox. February 26, 2019. <https://www.vox.com/future-perfect/2019/2/26/18241904/lakeerie-legal-rights-personhood-nature-environment-toledo-ohio?fbclid=IwAR3fsESix5Avz6wrcJAhqpaCMWVCML
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Wheeler, Michael. 2020. “Martin Heideggar.” In The Stanford Encyclopedia of Philosophy. Edited by Edward N. Zalta. <https://plato.stanford.edu/archives/fall2020/entries/heidegger/>
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