This post is part of our symposium on the Law and Political Economy of Meat.
The legal and political economy of agriculture is connected to one of the deepest and widest shortcomings of current United States law: our denial of basic legal standing to more than 99% of our population. In particular, we currently classify nonhuman animals as legal objects, without the capacity for legal rights. This legal classification supports systematic neglect, exploitation, and extermination of animals, furthering practices such as deforestation, factory farming, and the wildlife trade that harm humans and nonhumans alike.
Many people seem to assume that the law protects nonhumans in the United States, but unfortunately, this assumption is mistaken. There are few if any meaningful legal protections for most animals, and there is little if any enforcement of the laws that exist. For instance, the Animal Welfare Act, the main federal animal welfare law in the United States, exempts farmed animals, who represent about 98% of all captive animals in the country. As a result, while some animals, such as companion animals, enjoy limited protections, other animals mostly do not.
Many state laws exempt farmed animals as well. In some cases, anticruelty laws are written broadly enough that many actors, ranging from police to judges, have discretion about how to apply them. In other cases, anticruelty laws are written specifically to exempt customary farming practices. If one company forces animals to live in cages so small that the animals are unable to stand up, turn around, or perform natural behaviors, then anticruelty laws might apply. But if enough other companies do the same, then anticruelty laws will not apply.
A deeper, related problem is that nonhuman animals in the United States are classified as legal objects. In our legal system, you can either be a legal person, with the capacity for rights, or a legal object, without the capacity for rights. And at present, whereas we classify humans (and stand-ins for human interests such as corporations) as legal persons, we classify nonhumans as legal objects. This means that, while our options for using the law to protect humans are expansive, our options for using the law to protect nonhumans are limited.
In particular, since nonhumans are classified as legal objects, laws protecting nonhumans are like laws protecting statues. When we have a public interest in them, we use the law to protect them for that reason. But beyond that, we use the law to protect our right to use them as we see fit. This is part of why some states have “ag-gag” laws that prevent people from recording footage of animal abuse in farms. This is also part of why animal abuse can be so hard to legally address:
The “owner” is both the abuser and the only person seen as having legal standing on this matter.
What humans do to other animals with these legal freedoms is heartbreaking. For instance, about 10 billion animals live and die on factory farms in the United States each year. We breed most of these animals to grow as big as possible as quickly as possible. We separate them from their families. We mutilate them without anesthesia. We confine them in cramped, stressful, toxic facilities. We transport them in hot trucks without rest, food, or water. And we slaughter them in industrialized slaughterhouses that prioritize efficiency over well-being.
Similarly, when the interests and needs of humans and wild animals appear to conflict, humans often label wild animals as “pests,” “predators,” or “invasive species” and “cull” them as a first resort. Indeed, not only do we often kill wild animals unnecessarily, but we even “gamify” this violence by turning it into a contest, tournament, or fun family activity. While killing wild animals might sometimes be necessary for self-defense, other-defense, euthanasia, or other such reasons, both the extent and the nature of this violence are clearly unnecessary.
I believe that we have a responsibility to reduce and repair the harms that humanity is causing to other animals, and I also believe that changing the basic legal status of animals is an important part of this work. Of course, this is not to say that changing the basic legal status of animals is necessary or sufficient to achieve positive change. At the same time, given how easy it is to exploit or exterminate “objects” in a liberal, capitalist political economy, changing the basic legal status of animals will make positive change easier to achieve, and vice versa.
If we want to change the basic legal status of animals by classifying them as legal subjects rather than as legal objects, then we have two general options. First, we can maintain the binary distinction between legal persons and legal objects, but we can classify nonhuman animals as legal persons, with the capacity for rights, rather than as legal objects, without the capacity for rights. Second, we can disrupt the binary distinction between legal persons and legal objects, by creating a new legal category, such as the category of “sentient being,” for nonhuman animals.
These strategies have complementary virtues. On one hand, the benefit of the personhood approach is that it preserves the relative simplicity and egalitarianism of our current legal framework. At present, we rightly hold that all humans are legal persons, with rights that protect our individual needs, no matter how talented or intelligent we happen to be and no matter what social or biological categories we happen to occupy. If we apply this framework consistently, then we can extend legal standing to animals without amending our framework at all.
On the other hand, the cost of the personhood approach is that classifying nonhumans as legal persons might be hard to do in the short term. For example, the Nonhuman Rights Project promotes nonhuman personhood in part by filing habeas corpus lawsuits on behalf of chimpanzees, elephants, and other captive animals. But while the Nonhuman Rights Project tends to have much stronger legal arguments than the opposition, they have yet to win a case, seemingly because the idea of nonhuman personhood seems so strange to many people.
Conversely, the benefit of the sentient being approach is that classifying nonhumans as sentient beings might be easier to do in the short term. Indeed, some governments are already doing exactly this. For example, in 2017 Mexico City ratified a new constitution that classifies nonhuman animals as sentient beings to whom we have legal duties. The French Parliament, the provincial government of Quebec, the Congress of Colombia, and other governments have passed similar laws, extending legal status to animals in theory if not always in practice.
On the other hand, the cost of the sentient being approach is that it makes our legal framework more complex and hierarchical. For example, what does it mean to be a sentient being under the law? Can you have legal rights for your own sake or not? Are people entitled to buy and sell you as property, and to harm and kill you unnecessarily for food or sport, or not? Is there a risk that, having created a new, middle-ground legal category for nonhumans, we might place some humans in this category as well? Either way, is this framework good enough for nonhumans?
While I currently prefer the personhood approach over the sentient being approach overall, I think that both are promising and that, either way, we should support both at present on strategic grounds. When we advocate for nonhuman personhood, we shift the center of debate, making the sentient being approach appear moderate in comparison. And when we implement the sentient being approach (and create a legal infrastructure for considering animals more), we shift the goal posts, making the personhood approach appear more moderate than it did before.
Fortunately, things are starting to change. For instance, in 2018, when the New York Court of Appeals declined to hear a case from the Nonhuman Rights Project (for which I co-authored an amicus brief), Judge Fahey nevertheless wrote an opinion affirming that “the issue whether a nonhuman animal has a fundamental right to liberty protected by the writ of habeas corpus is profound and far-reaching. … Ultimately, we will not be able to ignore it. While it may be arguable that a chimpanzee is not a ‘person,’ there is no doubt that it is not merely a thing (7).”
Meanwhile, some city, state, and federal policy-makers are working to expand legal protections for nonhuman animals. For example, in 2019, New York City established an Office of Animal Welfare and passed a series of bills banning foie gras, preventing the trafficking of wild birds, improving working conditions for carriage horses, and more. The city has also advocated for wild animal welfare, implemented Meatless Mondays at public schools, committed to eliminating purchases of processed meat and reducing purchases of beef by 50%, and more.
While we might not know exactly what legal status animals should have, we do know what kind of legal status they should not have. Our current practice of classifying nonhuman animals as legal objects on the basis of nothing more than species membership is arbitrary and unacceptable. The more we move away from our current, deeply exclusionary legal framework and towards more inclusive alternatives, the more we can learn which alternative is best and how to implement it. We owe it to humans and nonhumans alike to start that work now.
Photo Credit: Tsaag Valren – Own work, CC BY-SA 4.0, https://commons.wikimedia.org/w/index.php?curid=62699239