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The Rule of Law for All Sentient Animals

Published online by Cambridge University Press:  06 January 2022

John Adenitire
John Adenitire*
Affiliation:
QMUL School of Law, London, UK
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Abstract

This paper argues for a theory of the rule of law that is inclusive of sentient non-human animals. It critiques the rule of law theories of Fuller, Waldron, and Allan, by showing that their theories presuppose that the legal subject is a person who can be guided by legal norms. This unduly excludes non-human animals, as well as certain humans who do not have rational capacities. If we view the basic idea of the rule of law as restraining arbitrary power, then rule of law theories need to give an account of who can be a potential victim of such power. Non-human animals and humans, whether endowed with rational capacities or not, can all be victims of arbitrary power. So, we need a new rule of law theory which is inclusive of all sentient animals, humans and non-human alike. This paper sets out such an inclusive theory.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 35 , Issue 1 , February 2022 , pp. 1 - 30
Copyright
© The Author(s), 2022

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References

1. This critique has been made within the narrower context of constitutional theory by Jessica Eisen, “Animals in the constitutional state” (2017) 15:4 Int J Const Law 909 at 925.

2. The distinction between active and passive legal subjects employed in this paper overlaps with, but is not the same as, that used in Visa AJ Kurki, A Theory of Legal Personhood (Oxford University Press, 2019) at 123-24. The view employed here is that entities that are endorsed with legal rights are legal subjects. Sentience is not considered a sufficient condition for legal subject-hood, although it is a sufficient condition for moral subject-hood. It follows that legal systems that deny legal rights to sentient beings act immorally. Non-sentient entities, like corporations and charities, can be legal subjects. These views are explained further in part III.

3. This paper uses the term ‘basic idea’ interchangeably with ‘animating idea’ or ‘point’ of the rule of law. It uses it in the same way as Dworkin and Waldron to indicate the most abstract formulation of a concept, in this case the rule of law, which, once properly analysed by any particular theorist, results in different conceptions. ‘Basic idea’/‘animating idea’/‘point’ is therefore meant to capture the uncontroversial formulation of a particular concept which different theorists should be able to agree with. However, as this paper suggests, the basic idea of the rule of law adopted by several theorists is in fact highly contestable because it presupposes a certain kind of legal subject. On Dworkin’s use of this method see Ronald M Dworkin, Law’s Empire (Hart, 1998) at 93. On Waldron’s use see Jeremy Waldron, “Is the Rule of Law an Essentially Contested Concept (In Florida)?” (2002) 21:2 Law & Phil 137.

4. Brian Z Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge University Press, 2004). Tamanaha employs the distinction between formal and substantive accounts of legality but does not employ the procedural classification. The latter is one which Waldron has developed in Jeremy Waldron, “The Rule of Law and the Importance of Procedure” in James Fleming, ed, Getting to the Rule of Law (New York University Press, 2011). This distinction has been criticised by among others John Gardner, “The Supposed Formality of the Rule of Law” in Law as a Leap of Faith (Oxford University Press, 2012) 1.

5. Joseph Raz, “The Rule of Law and its Virtue” in The Authority of Law (Oxford University Press, 1979) ch 11; Joseph Raz, “The Law’s Own Virtue” (2019) 39:1 Oxford J Leg Stud 1; Tom Bingham, The Rule of Law, reprint ed (Penguin, 2011).

6. Some of these countries are Angola, Belarus, Democratic Republic of Congo, Iran, Madagascar, Mongolia, and Mozambique. This list was collated from the research of the Cambridge Centre for Animal Rights Law. See Raffael N Fasel & Sean C Butler, Animal Rights Law (Hart, forthcoming) at ch 1.

7. See discussion in part III.B and text accompanying n 44.

8. Alasdair Cochrane, Sentientist Politics: A Theory of Global Inter-Species Justice (Oxford University Press, 2018) at ch 2; Janneke Vink, The Open Society and Its Animals (Palgrave Macmillan, 2020) at ch 5.

9. Gary Francione, Animals, Property, and the Law (Temple University Press, 1995); Gary Francione & Anna Charlton, Animal Rights: The Abolitionist Approach (Exempla Press, 2015).

10. Steven Wise, Rattling the Cage: Toward Legal Rights for Animals, reprint ed (Da Capo Press, 2001).

11. David Bilchitz, “When is animal suffering ‘necessary’?” (2012) 27:1 Southern African Public Law 3.

12. Helen Proctor, “Animal Sentience: Where Are We and Where Are We Heading?” (2012) 2:4 Animals 628.

13. It should be noted that Fuller refers to his own account as a procedural account. Lon L Fuller, The Morality of Law, revised ed (Yale University Press, 1977) at 96–97. However, by contrast to Waldron’s account, his does not specifically focus on legal procedures which regulate the workings of courts. It is perhaps for this reason that his account is usually designated as a formal one in the literature.

14. Ibid at 106 [emphasis added].

15. Ibid at 162–63 [emphasis added].

16. See Kurki, supra note 2 and part III, below.

17. Fuller, supra note 13 at 39. See also Kristen Rundle, “Fuller’s Internal Morality of Law” (2016) 11:9 Philosophy Compass 499 at 500.

18. Fuller, supra note 13 at 39–41. ‘Sufficiently’ because Fuller recognises that the rule of law is an ideal which can withstand non-perfect compliance. Indeed, there may be instances in which perfect compliance with the rule of law may not be at all desirable. His preferred solution to the ‘grudge informer’ case was in fact the enactment of legislation which retroactively criminalised informing on family members to the Nazi regime. See Lon L Fuller, “Positivism and Fidelity to Law: A Reply to Professor Hart” (1958) 71:4 Harv L Rev 630.

19. The Wiener Holocaust Library, “Disabled people—The Holocaust Explained”, online: https://www.theholocaustexplained.org/life-in-nazi-occupied-europe/oppression/disabled.

20. Delmas has powerfully shown that all major accounts of legal obligation lead to the view that all citizens need to resist state injustice, even when directed only to other citizens. Candice Delmas, A Duty to Resist: When Disobedience Should Be Uncivil (Oxford University Press, 2018).

21. Waldron, supra note 4. On whether Fuller is also a procedural theorist, see Fuller, supra note 13.

22. Waldron, supra note 4 at 13.

23. Waldron, supra note 4 at 6.

24. Ibid .

25. The powers of this body are set in Criminal Justice and Court Services Act 2000 (UK), c II.

26. Waldron, supra note 4 at 15.

27. Ibid at 16. This view is also articulated in Jeremy Waldron, “How Law Protects Dignity” (2012) 71:1 Cambridge LJ 200.

28. Ibid at 210 [emphasis added]. Waldron uses similar language in Waldron, supra note 4 at 16. However, there he substitutes ‘individual’ to ‘human individual.’ While the qualifier ‘rabid’ to ‘animal’ theoretically leaves open the possibility that non-rabid animals could be included into his account, the context of his work, especially the emphasis on self-application of legal norms, shows that all entities not capable of self-application of legal norms (i.e., passive legal subjects) are excluded from his account.

29. TRS Allan, “The Rule of Law” in David Dyzenhaus & Malcolm Thorburn, eds, Philosophical Foundations of Constitutional Law (Oxford University Press, 2016) at 201. His account draws chiefly on Dworkin, supra note 3.

30. Allan, supra note 29 at 203.

31. Ibid at 204.

32. Allan sets these out in ibid at Art III–IV. A more complete account of the implications of the rule of law for other principles of constitutionalism are fully explored by Allan in TRS Allan, The Sovereignty of Law: Freedom, Constitution, And Common Law (Oxford University Press, 2015).

33. Allan, supra note 29 at 205. Simmonds’ view is fully set out in Nigel Simmonds, Law as a Moral Idea (Oxford University Press, 2008).

34. Allan, supra note 29 at 219.

35. See the various contributions in Barbara Arneil & Nancy J Hirschmann, eds, Disability and Political Theory (Cambridge University Press, 2016); Jonathan Todres & Shani M King, eds, The Oxford Handbook of Children’s Rights Law (Oxford University Press, 2020).

36. Perhaps the best known in the consequentialist tradition is Peter Singer, Animal Liberation, 2nd ed (Pimlico, 1995). Well known examples in the deontological tradition include Tom Regan, The Case for Animal Rights, revised ed (University of California Press, 2004); Christine M Korsgaard, Fellow Creatures: Our Obligations to the Other Animals (Oxford University Press, 2018). An eminent exponent of the neo-Aristotelian tradition is Martha C Nussbaum, Frontiers of Justice: Disability, Nationality, Species Membership (Belknap Press, 2006). Chartier has developed a natural law account in Gary Chartier, “Natural Law and Animal Rights” (2010) 23:1 Can JL & Jur 33. The political turn has been championed by Robert Garner & Siobhan O’Sullivan, eds, The Political Turn in Animal Ethics (Rowman & Littlefield International, 2016); Sue Donaldson & Will Kymlicka, Zoopolis: A Political Theory of Animal Rights (Oxford University Press, 2013); Cochrane, supra note 8. This paper does not claim that these authors define sentience in the exact same way.

37. Regan, supra note 36; Korsgaard, supra note 36.

38. While the law of some countries, such as Azerbaijan, provides that “animals do not constitute tangible property,” the same provision still applies the law applicable to tangible property to non-human animals as a default. See Art 135.3 Civil Code (Azerbaijan). The same strategy is adopted by the law of other countries, such as Moldova, where it is said that “Animals are not considered things.” Nevertheless, the same law establishes that “With regard to animals, provisions regulating things shall apply, save for cases provided by law.” See Art 287 Civil Code 2002 (Moldova).

39. Treaty on the Functioning of the European Union, Belgium, France, Italy, Luxembourg, the Netherlands, and West Germany, 25 March 1957, Art 13 (entered into force 1 January 1958). While the EU Treaty is an international law treaty, its provisions are directly enforceable under the national law of all its member states.

40. Art 898.1 CCQ.

41. Art 1 Law 1774 (Columbia, 2016).

42. Art 2 Law 20380 on the Protection of Animals 2009 (Chile).

43. Long title to the Animal Welfare Act 1999 (NZ).

44. Animal Welfare Act 1992 (Austl), 2019/32, s 4A.

45. According to Fasel and Butler, 77% of UN member states have some forms of law protecting non-human animals. See Fasel & Butler, supra note 6 at ch 1.

46. There is only protection for non-human animals used for research purposes. See Art 2 Guidance on Kind Treatment of Laboratory Animals by Ministry of Science & Technology of the People’s Republic of China, No. 398, State Scientific & Technological Commission 2006.

47. US Humane Methods of Slaughter Act § 1902 (1958).

48. HLA Hart, “Legal Rights” in Essays on Bentham (Oxford University Press, 1982) at 172. See also NE Simmonds, “Rights at the Cutting Edge” in A Debate Over Rights (Oxford University Press, 2000).

49. People ex rel Nonhuman Rights Project, Inc v Lavery, [2014] 124 AD 3d [Lavery].

50. This is the view endorsed by Richard L Cupp, “Cognitively Impaired Humans, Intelligent Animals, and Legal Personhood” (2017) 69:2 Fla L Rev 465.

51. Saskia Stucki, “Towards a Theory of Legal Animal Rights: Simple and Fundamental Rights” (2020) 40:3 Oxford J Leg Stud 533 at 542.

52. See Joseph Raz, The Morality of Freedom (Oxford University Press, 1988) at 166.

53. Gopal Sreenivasan, “A Hybrid Theory of Claim-Rights” (2005) 25:2 Oxford J Leg Stud 257.

54. Wesley Newcomb Hohfeld, “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning” (1913) 23:1 Yale LJ 16 at 44; Wesley Newcomb Hohfeld, “Fundamental Legal Conceptions as Applied in Judicial Reasoning” (1917) 26:8 Yale LJ 710.

55. Matthew H Kramer, “Do Animals and Dead People Have Legal Rights?” (2001) 14:1 Can JL & Jur 29 at 42.

56. Cupp, supra note 50 at 507.

57. Ibid at 506 [emphasis in original].

58. Raffael N Fasel, “The Old ‘New’ Dignitarianism” (2019) 25:4 Res Publica 531 [emphasis in original].

59. Ibid at 545.

60. Ibid at 546.

61. Gardner explicitly defended this in Gardner, supra note 4.

62. This suggestion is in line with the view expressed in Robin West, “The Limits of Process” in James Fleming, ed, Getting to the Rule of Law (New York University Press, 2011). It is also in line with TRS Allan’s view already analysed in part II.C.

63. Scepticism for supremacy of any one particular branch of government was outlined in John Adenitire, “Who Should Give Effect to Conscientious Exemptions? The Case for Institutional Synergy” in John Adenitire, ed, Religious Beliefs and Conscientious Exemptions in a Liberal State (Hart, 2019).

64. Alan Greene, Permanent States of Emergency and the Rule of Law: Constitutions in an Age of Crisis (Hart, 2018).

65. Simmonds, supra note 33.

66. Leslie Rudloff, “Failure to Launch: The Lack of Implementation and Enforcement of the Animal Welfare Act” (2017) 67:1 Syracuse L Rev 173.

67. Joseph Raz, The Authority of Law: Essays on Law and Morality (Oxford University Press, 2009) at 211.

68. Waldron, supra note 4 at 6.

69. This is the approach championed by Wise, supra note 10. However, on Kurki’s understanding of legal personhood as a cluster concept which varies in degrees, this approach is somewhat misconceived as non-human animals already possess some ‘incidents’ (or aspects) of legal personhood through welfare laws. Kurki characterises Wise’s approach not as seeking legal personhood but as seeking additional legal rights for non-human animals. Kurki, supra note 2 at 119.

70. The public hearing can be watched online: https://www.youtube.com/watch?v=_X0BHUJWPwo&feature=youtu.be. The reasons for the decision can be found in the Court’s Communication n 3 [23 January 2020], online: https://www.corteconstitucional.gov.co/comunicados/Comunicado%20No.%2003%20del%2023%20de%20enero%20de%202020.pdf.

71. Animal Lovers Volunteer Association v Weinberger, 765 F (2d) 937 (9th Cir 1985).

72. This is advocated for by Sunstein in Cass R Sunstein, “Can Animals Sue?” in Cass R Sunstein & Martha Nussbaum, eds, Animal Rights: Current Debates and New Directions (Oxford University Press, 2005).

73. Note however that the RSPCA can only enforce these statutes because England and Wales recognise a right of private prosecution of criminal statutes. There are jurisdictions where this right does not exist.

74. Marco Springmann et al, “Health and nutritional aspects of sustainable diet strategies and their association with environmental impacts: a global modelling analysis with country-level detail” (2018) 2:10 The Lancet Planetary Health e451. The study compared a healthy vegan diet to other dietary patterns and found that it was the most effective in providing most nutrients while reducing premature mortality (reduction of 19% [95% CI 18–20] for the flexitarian diet to 22% [18–24] for the vegan diet).

75. Some of this is reviewed in Korsgaard, supra note 36 at ch 12.

76. See the work of the various moral philosophers from different traditions in supra note 36.

77. See supra notes 8 and 9.

78. Allan, supra note 29 at 204.

79. Some preliminary reflections were offered in John Adenitire, “Review of Sentientist Politics” (2019) 10:4 Jurisprudence 588.