Kurki (2021) on Legal Personhood for Animals

 Visa Kurki, “Legal Personhood and Animal Rights.” Journal of Animal Ethics 11(1): 47-62, Spring 2021.

• The Nonhuman Rights Project (along with others) seeks to have animals in the US “given” legal rights; this approach has not yet succeeded in the US. (There has been a significant victory in Argentina, however.)

• The goal of having a court declare animals to be legal persons via writs for habeas corpus means that such cases hold high stakes for the judges involved.

• The high judicial stakes might pose a problem for improving the conditions under which animals live. Judges are generally not all that willing to go well beyond existing precedents, especially if the departure could imply sweeping changes, such as forbidding the keeping of companion animals like dogs and cats. A better framing for those seeking to improve the conditions under which animals are confined might be: animals already possess rights, and the question is whether in some cases those rights should encompass habeas corpus.

• Kurki pushes back against the view that a focus on improved animal welfare is in opposition to the provision of rights to animals, in part because of ambiguities in the use of the term "rights.". [Our blog has done something similar.] 

• Kurki also pushes back against the notion that only legal persons possess rights. Though not currently considered to be legal persons, animals already possess some “incidents” of the bundle of rights that typically come with personhood (pages 52-53). That is, Kurki supports (both here and in his open access 2019 book) a "bundle" theory of legal personhood, in which there are many potential sticks of rights, but that in any specific instance, only a subset of those sticks might be provided. Anti-cruelty laws indicate that animals already possess some sticks in the rights bundle.

• The notion that a being can only possess legal rights if that being is capable of bearing legal duties is misguided, as the case of human infants indicates, but a version of that reasoning has been adopted by a court in arguing against legal personhood for the chimpanzee Tommy (page 54).

• Animals can be granted habeas corpus rights without there being some uncontrolled revolution that would force people to stop having pets, for instance. Kurki endorses making this case to courts, instead of asking them to undo millennia of perceived precedents with far-reaching consequences: "What if the stakes in the habeas corpus trials are not whether animals should be included in the community of legal right-holders, but rather whether certain animals should receive the right to personal freedom, protected by habeas corpus [page 55]?"

• Kurki's approach is paralleled by the well-known concurring opinion (pdf here) by Judge Fahey in the Tommy (the chimpanzee) case. 

Liebman (2022) on US Animal Law

Matthew Liebman, “Key Animal Law in the United States.” Chapter 33, pages 436-448, in Routledge Handbook of Animal Welfare, Andrew Knight, Clive Phillips, and Paula Sparks, editors, Routledge, 2022. 

• Early legal protections for animals were aimed at securing human property and preventing a brutalization of human society.

• Most US laws on animal protection are state (via the “police power”) and local. The federal laws rely (for Constitutional imprimatur) upon the Commerce Clause, so transport and slaughter are the main areas addressed.

• Animals in US law are property (or, for wild animals, potential property), essentially “things”; but…

• …if someone intentionally kills your pet dog, do they only need to compensate you for the dog’s “market value”?

• But "every state has an anticruelty law, which limits how owners can treat their animals, at least in some limited contexts. This protection sets animals apart as a unique form of property: no other form of property receives legal protections based on its own interests [p. 438]."

• The federal Animal Welfare Act (1966): sets minimum care standards for some research animals, pets, and bred animals; dogs and primates get some special protection.

• The federal “28 Hour Law” (1873): animals in transport must have a food-water-exercise break every 28 hours; chickens and turkeys are not covered by this law.

• Humane Slaughter Act (1958, 1973): requires animals to be stunned before slaughter; chickens, the most commonly slaughtered land animal, are not covered.

• The federal Endangered Species Act (1973): offers protections to animal and plant species ruled to be threatened or endangered.

• Preventing Animal Cruelty and Torture Act (2019): makes some types of animal abuse federal felonies.

• Custody disputes and companion animals: the interests of the animals might receive attention from the court.

• Anti-cruelty laws are based on the notion that some animals are sentient. Nonetheless, there might be legal consequences from explicit declarations of animal sentience in the law. The legislature of the state of Oregon has made such a declaration. This declaration, however, was insufficient to give a horse named Justice the opportunity to sue his human abuser for damages -- the lead attorney for Justice was Matthew Liebman, the author of the article we are outlining here.

• The Nonhuman Rights Project has tried to bring habeas corpus actions in the name of their clients, captive elephants and chimpanzees. So far these legal actions have not been successful, though some individual judges have been sympathetic.

• Animal cruelty laws generally must address several dimensions: What animals are covered? (Insects?; wild animals?; fish?); What conduct is proscribed? (Acts of omission?); What conduct is permitted? (Standard factory farm cruelties are typically exempt); and, What sanctions are applied? (Ban offenders from owning animals?) 

• Some states and localities in the  US ban animals (or some subset of animals) in circuses; some states ban testing of cosmetics on animals; and, some states ban stores that sell pets.

• “…animal laws in the United States still assume that animals are exploitable resources that humans are allowed to use [p. 447].”

Rowan, D'Silva, Duncan, and Palmer (2021) on Animal Sentience

Andrew N. Rowan, Joyce M. D'Silva, Ian J. H. Duncan, and Nicholas Palmer, “Animal Sentience: History, Science, and Politics.” Animal Sentience 31(1), 2021

• “…the lot of animals has worsened considerably since Bentham penned his famous phrase.”

• Cambridge Declaration on Consciousness (2012, pdf): humans are not special when it comes to consciousness! Birds, for instance, demonstrate consciousness.

• The best evidence is that all mammals, all birds, and many other species (like octopuses) possess the neural/physical capacity for consciousness, and they also demonstrate intentional behavior.

• Milestones include Ruth Harrison and her book, Animal Machines (1964); the Brambell Report (1965, pdf) (a report on farmed animal welfare prepared for the British government); and the formation of the British advocacy group Compassion in World Farming (1967).

• In assessing animal welfare, one of the difficulties involves measuring feelings and their intensity -- though clearly subjective feelings are central to wellbeing.

• One way to discern animal welfare is to offer animals two (or more) options, and see which one they choose -- a revealed preference approach. The next step is to gauge the strength of the preference, perhaps by altering the "price" (in effort, say) that animals are willing to pay to take their preferred option. 

• The “Five Freedoms” are well-known and widely adopted guidelines for animal welfare, growing out of the Brambell Report, where the focus was on livestock. 

• "Of all the stimuli or states of suffering in animal agriculture, pain is probably responsible for a bigger reduction in welfare than any other... [p. 6]." Bad flooring generates a lot of pain in farm animals.

• Other sources of pain include difficult social interactions in crowded settings, surgeries conducted without anesthesia, and fast-growth-related problems. Boredom also can harm animal welfare.

• Traditionally, examinations of animal welfare have focused on suffering, but pleasure also is important. 

• Animal sentience is now explicitly recognized in legal documents in many parts of the world, including in the EU, Colombia, and the post-Brexit UK.

• The Animal Protection Index (available at https://api.worldanimalprotection.org/) encapsulates country-level information on the legislative protections for animals.

Still Earlier Singer: A Book Review, 1973

Peter Singer's Animal Liberation grew out of book review he wrote for The New York Review of Books in 1973, a full fifty years ago. Here is a bullet-point summentary of that review; I am using the reprinted version of the review, pages 11-30 in Why Vegan?, Penguin Books – Great Ideas, 2020. The book reviewed was Animals, Men and Morals, edited by Stanley and Roslind Godlovitch and John Harris.

• “…a demand that we cease to regard the exploitation of other animals as natural and inevitable, and that, instead, we see it as a continuing moral outrage [pp. 11-12].”

• Bentham gets a look in (which now (2023) is more-or-less obligatory)!: ‘The question is not, Can they reason? Nor Can they talk? But, Can they suffer?’

• Do animals suffer? (People seem to want to believe that the answer is no.) But animal physiology and behavior seems to suggest the capacity for suffering -- which also is pretty much all that we have to go on when we consider whether other human beings are capable of suffering. (The capacity of our commonly farmed animals to suffer is not now contested, really. Controversy continues with respect to bivalves and insects.)

• Singer is frequently associated with the word “speciesism” (a parallel, for example, to sexism and racism). But he is always careful to indicate, as he does in this book review, that the term originates with Richard Ryder, not with Singer himself.

• The paradox of animal experimentation: the animals we experiment upon need to be like us (so that we can learn something about ourselves from the experiments) but also not like us (so we can justify the cruel experiments that we would not allow upon humans).

• “Man may always have killed other species for food, but he has never exploited them so ruthlessly as he does today [p. 27].”

• Some of the worst abuses of farm animals: veal, battery cages, maiming and removing body parts without anesthesia

• Will people change their behavior? (Fifty years later, the answer is still no, for the most part.)

Early Peter Singer: Preface to Animal Liberation (1975)

We now have almost 50 years later Peter Singer, in the form of Animal Liberation Now. But maybe there is something to be said for a short glance at the original. The version I am using is a reprint of the original preface, pages 1-10 in Why Vegan?, Penguin Books – Great Ideas, 2020.

• “This book is about the tyranny of human over non-human animals [p. 1].”

• “The struggle against this tyranny is a struggle as important as any of the moral and social issues that have been fought over in recent years [p. 1].”

• The moral issue at stake has nothing to do with being an animal lover; the argument concerns “reason, not emotion [p. 5].” Portraying activists as “animal lovers” is a method of excluding animal welfare from serious moral or political consideration.

• The crux of the matter: the rational and moral imperative to provide “equal consideration of interests [p. 3]” to animals and to humans...

• ...and that means all animals: “When the United States Defense Department finds that its use of beagles to test lethal gases has evoked a howl of protest and offers to use rats instead, I am not appeased [p. 4].”

• “I ask you to recognize that your attitudes to members of other species are a form of prejudice no less objectionable than prejudice about a person’s race or sex [pp. 6-7].”

• The animals themselves cannot organize, cannot voice a protest.

• Many people (including meat eaters) are beneficiaries of the current system, so they are hard to persuade.

• Another prejudice is the unexamined view that concerns with animal suffering are trivial in a world where many humans suffer.

• The unfortunate near necessity of using the term animal to refer to only refer to non-human animals, which seems to support a notion of difference between humans and the rest of the animal kingdom. (Singer was writing before the coining of the useful word "anymal!")

• The wastefulness of animal agriculture, feeding billions of farm animals who then we eat, instead of cutting out the middle anymal. (This resource-intensive approach to feeding humans is one of the main reasons that plant-based meat (and dairy and egg) alternatives will eventually out-compete the morally-unacceptable industrial farms.) 

Cornish et al. (2020) on Animal Welfare Labels

Amelia Rose Cornish, Donnel Briley, Bethany Jessica Wilson, David Raubenheimer, David Schlosberg, Paul Damien McGreevy, “The Price of Good Welfare: Does Informing Consumers About What On-Package Labels Mean for Animal Welfare Influence Their Purchase Intentions?” Appetite 148: 104577, 2020. 

•  Most people care about the welfare of the animals that we eat  

• It's even possible that people think that more “humane” products taste better 

• The “Heuristic-Systematic Model,” a version of System 1 and System 2 (Thinking, Fast and Slow); System 1 decision making might mean you just buy what you always have bought 

• Food labels can be confusing; there's “…a proliferation of new and unfamiliar on-package labels [p. 2]” Are industry-provided labels reliable? 

• Online survey with some 1600 Australian respondents, almost ¾ female 

• The respondents are asked about their purchase intentions for meat and eggs, given different labels and prices; some of the labels provide more detailed information about animal welfare than the others

• The purchase intention questions are followed up by an “animal attitude” survey 

• Young people and females are more sympathetic to animals 

• Older people (and males) think the current level of farm animal welfare is better than what other age groups think -- and interest in buying higher welfare products wanes as views of current welfare improve 

• Lower income people are less likely to buy (more expensive) higher welfare meat 

• People who grew up in the city, and highly educated people, are more likely to buy the higher welfare versions 

• The main result: more detailed label info leads to an increased intention to purchase higher welfare products 

Lades and Nova (2022) on the Ethics of Nudging Folks Away from Meat

Leonhard Lades and Federica Nova, “Ethical Considerations when Using Behavioural Insights to Reduce People’s Meat Consumption.” University College Dublin, Geary WP2022/09, October 25, 2022 (pdf). 

• Food choices depend on the choice architecture, so nudge-style, demand-side policies like instituting plant-based meals as defaults can reduce meat consumption

• Examples of food nudges include: vegan or vegetarian defaults; positioning of plant-based items at compelling locations; providing “sustainability” labels; and conveying information about growing low-meat social norms 

• Nudges sometimes present ethical questions; the authors recommend using the FORGOOD method to systematically consider potential ethical issues 

• FORGOOD: Fairness (distributional impacts); Openness (avoiding manipulation, with graphic warning labels or very persuasive defaults as examples of nudge-style policies that could  be ethically problematic); Respect (for autonomy, freedom of choice, non-stigmatization…); Goals (overcoming internalities? externalities?); Opinions (public acceptability, before or after the nudge?); Options (policy alternatives to nudges); and, Delegation (can choice architects use their power wisely?)

• "In short, the paper suggests that choice architects should apply behavioural interventions to reduce meat consumption only when these interventions are FORGOOD [p. 14]."