Legal Personhood and the Positive Rights of Wild Animals
“Why did I feed these animals against all advice? Because we live in the same place, because they were individuals, because they had relatives, experience, a past, and desires, because they were cold and hungry, because they hadn’t found enough to eat in the fall, because each had just one life.”
– Elizabeth Marshall Thomas (Kymlicka & Donaldson, 2011)
- 1 Introduction
- 2 At Least Some Nonhuman Animals Ought to be Recognized as Legal Persons
- 2.1 What is Legal Personhood?
- 2.2 Why Does Personhood Matter for Animals?
- 2.3 Currently Animals are Viewed as “Legal Things,” Under the Law
- 2.4 Animals Deserve to be Treated as Persons, Not Things, Under the Law
- 3 Standard View of Animal Rights Theory on the Rights of Wild Animals
- 4 A Non-Speciesist Approach to Personhood Demands Expansive Positive Rights for Wild Animals
- 5 Sovereignty and the Intermediate View of Intervention for Wild Animals
- 6 Conclusion
- 7 Bibliography
When you ask most ecologists about helping wild animals, they’ll tell you the same thing: it seems like a nice thing to do, but in the end, you’ll likely end up doing more harm than good. According to this narrative, wild animals exist within a delicate ecosystem, and human intervention inevitably leads to harmful unintended consequences…so don’t do it.
Like any reasonably ecologically literate person, Elizabeth Marshall Thomas was generally aware of those consequences. She knew that feeding the deer could lead them to become dependent on her. She knew it could lead to overpopulation. She even knew that it could disrupt the social relations among the local deer population or help spread disease. And yet, she went ahead and fed them anyway, because she recognized these animals as individuals whose lives and suffering mattered to them (Kymlicka & Donaldson, 2011). In the end, Thomas followed the deep-seated deontological intuition that you shouldn’t let someone starve to death right in front of you, regardless of what far-ranging consequences may ensue.
In doing so, Thomas challenged the standard moral dichotomy implicitly adopted by ecologists and our society at large: “Kantianism for humans, utilitarianism for animals.” (Nozick, 1974). This double standard is evidenced by the fact that most ecologists (like most people) would feed a starving human being, without giving much thought to the broader ecological consequences of their actions. In spite of the irrefutable evidence that feeding, clothing, sheltering, and otherwise caring for human beings has massive and far-reaching ecological implications, few would publicly argue that we should allow (or are morally obligated to allow) impoverished humans to die for the sake of the environment. Even in spite of the prevailing view that the human species is vastly overpopulated, few ecologists would support an intentional effort to allow human beings to starve for the greater good, and even fewer would be willing to sacrifice themselves or their loved ones for the cause.
Interestingly, the dominant approach among animal rights theorists (and the animal rights movement more broadly)—whose raison d’etre is to argue for the equal treatment of human and nonhuman animals—is to support this disparate treatment when it comes to helping wild animals (Kymlicka & Donaldson, 2011). On their view, the extent of our duties to wild animals is to leave them alone—nothing more and nothing less.
Perhaps one reason that proponents of animal rights adopt this view is that the implications of rights for wild animals are often employed as a reductio ad absurdum against animal rights in general. For example, critics have long argued that if we take animals’ right to life seriously, in the way we do for humans, then that gives rise to an implausibly vast host of corollary duties that go beyond merely protecting them from human beings. On this view, the implication that animals have the rights to be protected from hunger, disease, and predation (as humans do) shows the absurdity of the whole enterprise of animal rights. In this context, it is unsurprising that animal rights theorists have sought to lighten the burden of their already contentious arguments by distancing their theories from such obligations.
This paper, on the other hand, embraces the conclusion that wild animals are entitled to such extensive positive rights, and argues that a non-speciesist legal system demands the recognition and fulfillment of such rights under the law. Specifically, this paper seeks to show that the principle of equality/non-speciesism at the heart of arguments for the legal personhood of nonhuman animals—the holy grail of animal rights legal theory and practice—demands the recognition of personal, societal, and governmental legal obligations to protect animals from routine and “natural” threats to their lives and wellbeing.
The paper is structured as follows: first, I will review the concept of and arguments for legal personhood; second, I will briefly review the prevailing (restrictive) theory regarding the specific duties to wild animals that flow from the recognition of legal personhood; third, I will argue against the prevailing theory, in favor of expansive positive legal obligations (e.g. healthcare, food, shelter, protection etc.) for wild animals—and in doing so—I will cover issues including: resolving conflicts of rights; utilitarian arguments against intervention in the wild; and the short-term and long-term implications of accepting the “expansive” view. Finally, I will elaborate on an intermediate theory (advanced by Donaldson and Kymlicka) that allows for limited positive obligations to help wild animals, and argue why this view is inferior to the expansive approach.
At Least Some Nonhuman Animals Ought to be Recognized as Legal Persons
What is Legal Personhood?
There are many different accounts of the precise meaning and significance of “legal personhood.” For the purpose of this paper, I will largely borrow from the view of Steven Wise, one of the foremost scholars and practitioners of animal rights law. On this view, an individual (or other entity) is a “legal person” if their interests are recognized under the law, and are recognized for that individual’s own sake.1I recognize that this definition excludes entities like corporations, which are recognized as persons under the law, but the general symbolic significance of personhood is best captured by this definition. Recognizing someone’s legal personhood is to recognize that they have inherent value under the law; and to recognize that a fundamental goal of the legal and social order is to further their interests. This is in contrast to “legal things” whose interests are not recognized under the law, or are solely recognized as instrumentally valuable for the sake of advancing legal persons’ interests. Additionally, on this view, only legal persons are capable of possessing legal rights. Thus, to recognize that a given individual has a legal right is to implicitly acknowledge that that individual’s interests are recognized as inherently valuable under the law.
Why Does Personhood Matter for Animals?
For many, all this discussion of “personhood” and “legal rights” appears to be purely a matter of semantics. Worse still, there are whole schools of jurisprudence centered on the idea that this language is positively harmful or inhibiting to marginalized groups (Project, n.d.). In response to such concerns, it should first be noted that this paper largely rests on the assumption that rights are important or useful for humans, which if true, strongly suggests that they are important for nonhumans as well. That being said, there are at least three substantive arguments for why we should expect legal rights and/or person to lead to enormous benefits for animals.
First, as a practical matter, even if “legal personhood” or “rights” are just words, for now, they are words that are used as prerequisites for accessing the judicial system and successfully lobbying for certain forms of treatment. Attempts to overhaul or abandon the entire institution of legal rights, which may plausibly be the best long-term strategy for marginalized groups as a whole, seem overly ambitious for the animal rights movement to take on alone, since the movement is particularly under-resourced and should likely be focusing maximal resources on directly fighting for animals. (Additionally, the unpopularity of the animal rights movement also makes it a poor vehicle for advancing such a fundamental change to our legal framework.)
Second, while recognizing that the critique of rights raises complex empirical questions with non-obvious answers, this paper adopts the dominant view among critical race theorists and feminist legal theorists: that there is ample historical evidence supporting the importance of rights in advancing the interests of marginalized groups (Project, n.d.). The historic importance is best described by Patricia Williams: “For the historically disempowered, the conferring of rights is symbolic of all the denied aspects of their humanity: rights imply a respect that places one in the referential range of self and others, that elevates one’s status from human body to social being.” (Project, n.d.) In other words, personhood connotes a crucial symbolic recognition that your life matters for its own sake, not just for others’ benefit; that your interests must be taken seriously into account in legal/political decisions; and that you are a member of the moral community. Accordingly, this paper posits that, as a factual matter, recognizing animals as legal persons would have powerful effects on society’s conception and treatment of animals that go far beyond the technical legal tools that would formally become available to them as a result of such a designation.
Finally, it is worth considering that institutional animal abusers’ vociferous opposition to recognizing legal rights and/or personhood is further evidence of the significance of such a change.
Currently Animals are Viewed as “Legal Things,” Under the Law
Today, nonhuman animals are viewed as legal things in virtually all legal jurisdictions. They are treated as property. They don’t possess rights, they are solely the objects of rights. SeaWorld, for example, has the right to own their orcas, hold them captive, and force them to perform for profit.
Since animals have no rights, and no personhood, it is exceedingly difficult to advance their interests in a court of law. Without the right to sue (i.e. to have a human representative/guardian to sue on their behalf), typically the only way to advance their interests in court is through indirect arguments that invoke human interests as the underlying nature of the case. For instance, in a particularly obscene example, to utilize the Animal Welfare Act for animals’ benefit, animal protection groups often have to show that some human plaintiff’s “aesthetic interest” in seeing animals happy and healthy justifies the court’s decision to evaluate whether animal cruelty is taking place, and to provide a remedy (Sunstein, n.d.). In other words, under the current legal framework, an animal’s interest in not being tortured is not enough of a reason for a court’s stepping in to prevent it—it is only because human beings don’t like seeing tortured animals that such a case can ever see the light of day.
The fact that animals’ fundamental interests can typically be protected only through these indirect and tenuous arguments means that, most of the time, their interests are not protected at all. Cases are won or lost based on irrelevant facts like how many times the human plaintiff went to visit the tortured animal, how much they cared about the tortured animal, and whether they intend to return to see the tortured animal. With that in mind, it shouldn’t be surprising that the prevailing legal regime is an unmitigated disaster for nonhuman animals.
Animals Deserve to be Treated as Persons, Not Things, Under the Law
Speciesism and Personhood
Before turning to the legal arguments in favor of nonhuman personhood, it is necessary to elucidate the concept of speciesism, why we must reject it, and how rejecting speciesism should impact the treatment of animals. The fallacy of speciesism occurs when we take identical interests and treat them differently solely based on species-membership. Speciesism is wrong because differences in treatment should be tied to rationally related, morally relevant, characteristics (“Justice for All: Including Animal Rights in Social Justice Activism,” 2015a); and species membership, on it’s own, has no moral relevance.
Rejecting speciesism is the natural extension of the elementary-school maxim “it doesn’t matter what you look like, but only who you are on the inside.” Just like racism, sexism, and classism, speciesism focuses on one morally arbitrary characteristic: species, and uses that to justify inequality. Lukas Gloor, a researcher at the Foundational Research Institute, clarifies that rejecting speciesism does not mean that “flies, humans, carrots and pigs” have to be treated the same. It just means “that the same interests, or interests of the same strength, should be taken into account to the same extent, regardless of the species-membership of the individuals concerned.” (“Justice for All: Including Animal Rights in Social Justice Activism,” 2015b). For example, humans benefit a lot from being able to drive cars, but chimpanzees do not. Thus, a legal regime that protects the right to drive for humans, but recognizes no such right for chimpanzees is not speciesist at all. Humans have different interests than chimpanzees in this respect and we should treat them differently. But when it comes to legal personhood and basic legal rights to life and freedom, there are no relevant differences to justify excluding chimpanzees, or any other sentient individuals.
Historically, humans have invoked characteristics like “rationality” or “moral reciprocity” to assert their superior claim to fundamental rights, but this does not stand up to scrutiny. Peter Singer and others have famously dismantled such claims through what has come to be known as the “argument from species overlap.”2Also known as “the argument from marginal cases.” Simply put, we don’t think you can kill a human being just because they’re cognitively impaired; we recognize that any human being that can think and feel is deserving of basic rights, regardless of how rational they are. Therefore, if we take our opposition to arbitrary discrimination seriously and reject speciesism, then we should not deny this same respect to nonhuman animals.
The Legal Arguments
The Arguments From Liberty
On Steven Wise’s view, arguments for personhood fall into two categories: “arguments from liberty” and “arguments from equality.” Arguments from liberty take a foundational approach to legal personhood. They seek to identify the foundational sufficient conditions for legal personhood and argue that the individual(s) in question possesses those sufficient characteristic(s).
Currently, the prevailing view is that humanness is the only sufficient (and thus, necessary) condition for legal personhood3Strictly speaking, this doesn’t include entities like ships and corporations whose personhood is a “legal fiction” designed to represent the interests of human owners., but as noted previously, membership in the species Homo sapiens is a morally arbitrary and untenable legal criterion for conferring or denying an individual’s fundamental legal rights. Wise illustrates the absurdity by asking us how the law would respond if a band of Neanderthals descended from a hidden mountain village tomorrow. It’s hard to imagine our legal system would treat them as property—as legal things without rights. Clearly, if they could themselves ask for personhood in our own language, as science suggests they could (Hogenboom, 2013), then we would (and should) grant it to them. It’s obvious that we shouldn’t leave their legal rights up to a taxonomic classification dependent on the dimensions of their “nasal complexes” (“Were Neanderthals a sub-species of modern humans? New research says no,” n.d.) (one of the most recent feuds in the long standing debate about whether Neanderthals are a subspecies of human being or a different species altogether). Thus, it appears that humanness is, at best4There are other arguments that show that humanness should not even be considered a sufficient condition for legal personhood. For example, there is little reason to think that a human born without a brain has interests that ought to be considered by society, any more than other non-sentient objects., not the only sufficient condition for personhood.
That begs the question: what are the other sufficient conditions for legal personhood? Steven Wise and Gary Francione have offered two of the most popular alternative foundations, both of which expand the current realm of legal persons to include at least some nonhuman animals.
Wise identifies autonomy5Wise argues that autonomy is a complex concept that can be demonstrated by a mosaic of the following characteristics: “the possession of an autobiographical self, episodic memory, self-determination, self-consciousness, self-knowing, self-agency, referential and intentional communication, empathy, a working memory, language, metacognition, numerosity, and material, social and symbolic culture, their ability to plan, engage in mental time travel, intentional action, sequential learning, mediational learning, mental state modeling, visual perspective-taking, cross-modal perception, their ability to understand cause-and-effect, the experiences of others, to imagine, imitate, engage in deferred imitation, emulate, to innovate and to make and use tools.” (“Memorandum-of-Law-Tommy-Case.pdf,” n.d.) as a sufficient condition for personhood. His view of common law precedent suggests that our legal system, at its core (and the writ of habeas corpus in particular) is designed to protect the interests of autonomous and self-determining beings. Wise has marshalled overwhelming evidence from the world’s leading ethologists and neuroscientists proving that many nonhuman animals, including chimpanzees, dolphins, orcas, and elephants, possess the cognitive capacities for autonomy and self-determination.
Francione, on the other hand, takes a much more radical view, and identifies sentience (Francione, n.d.) (the ability to feel), as the only necessary and sufficient condition for moral consideration, and thus, for legal personhood. He argues that Wise’s autonomy theory suffers from the same moral arbitrariness as the “humanness” standard. For Francione, the ability to engage in metacognition or use symbolic language has no bearing on whether someone deserves to be part of our legal and moral community, and to have their interests count for their own sake. While Francione’s legal position lacks precedential support and practical appeal (after all, it includes nearly the entire animal kingdom as legal persons), it seems that his theoretical case is on much firmer ground. As stated previously, a non-arbitrary moral or legal system should recognize that all individuals who can feel or experience the world should have their interests respected and accounted for, for their own sakes.
The Argument from Equality
Conveniently, Wise’s “argument from equality” is compatible with either a sentience based or an autonomy-based standard. The argument from equality takes a comparative, rather than a foundational approach to arguing for nonhuman personhood. Here, Wise essentially uses the aforementioned “argument from species overlap” (“The argument from species overlap – Animal Ethics,” n.d.) to make the legal case for personhood in legal terms. The argument starts with the legal principle of equality: that equal interests demand equal treatment under the law. Therefore, a being is entitled to legal personhood if they are the same (in all morally relevant ways) as other beings who already have legal personhood. Since even severely cognitively impaired human beings have legal personhood, the argument goes, so should a vast number of nonhuman animals that have equal or superior cognitive abilities.6In response to this argument, a New York State appellate court held that individuals should be afforded rights on the basis of what is normal for their species. This argument, the Argument from Species Normality (ASN) is flawed for at least four reasons: (1) The ASN arbitrarily chooses species as the relevant category of moral analysis and violates the principle of moral individualism; (2) The ASN cannot explain why we should not grant inappropriate rights (e.g. the right to drive) to incompetent humans; (3) The ASN cannot explain why we ascribe rights without duties, instead of duties without rights (to incompetent humans); (4) The ASN restricts the rights of exceptional members of a species.
Standard View of Animal Rights Theory on the Rights of Wild Animals
Thus far, I have attempted to make the case for nonhuman legal personhood, but even if we are convinced that they deserve it, we are still left with the difficult task of identifying what that entails. Even if we assume that only Wise’s autonomous self-determining beings (chimpanzees, elephants, etc.) have legal rights, enormous questions remain about what rights they are owed by society, especially with regards to wild animals.
The dominant view among animal rights theorists is that the legal obligations of human society to wild animals ought to be: (1) to leave them alone; and (2) to provide redress when we’ve harmed them. This means that the goals of legal personhood for wild animals are (1) to prohibit their enslavement, torture, and slaughter; and (2) to relocate captive animals, from zoos, aquariums, laboratories, etc., to “sanctuaries” where they can live out the remainder of their lives and enjoy extensive legal rights to healthcare, mobility, food, water, shelter, protection from predators etc. (unless they can “safely” be released into the wild).
Aside from that, under the prevailing views, it is likely that the only appropriate positive duties to wild animals are (1) to restore habitats destroyed by humans, and (2) to create institutions (park rangers, environmental regulations, etc.) to prevent further violations of their negative rights by human beings. Donaldson and Kymlicka summarize this dominant view of the animal rights movement in Zoopolis.
“In the classical model of [animal rights theory], there is only one acceptable relationship to animals: treating animals ethically means leaving them alone, not interfering with their negative rights to life and liberty…Their basic injunction is that humans should stop directly harming wild animals, and then leave them alone…Thus Tom Regan summed up our duty to wild animals in terms of ‘letting animals be’. Similarly, Peter Singer says that given the complexities of intervention in nature, we ‘do enough if we eliminate our own unnecessary killing and cruelty towards other animals’ and that ‘we should leave them alone as much as we possibly can.’ And Gary Francione argues that our duty to wild animals ‘does not necessarily mean that we have moral or legal obligations to render them aid or to intervene to prevent harm from coming to them’ and indeed he too suggests that ‘we should simply leave them alone.’” (Kymlicka & Donaldson, 2011).
A Non-Speciesist Approach to Personhood Demands Expansive Positive Rights for Wild Animals
Francione suggests that a legal regime that doesn’t recognize positive rights for wild animals is appropriate, not speciesist, and analogous to how our legal system treats human beings. To support this point, he notes that the law imposes no obligation on individuals to save others’ lives, even when they can do it at no personal risk and without any serious inconvenience. But by focusing on individual legal obligations, as opposed to societal/governmental legal obligations, Francione ignores the vast range of positive legal rights recognized by the majority of the world’s governments. The International Covenant on Economic Social and Cultural Rights, ratified by over 160 countries, recognizes the rights to food, water, housing, and the “highest attainable standard of health.” In the United States, there are numerous positive statutory rights to various forms of welfare: emergency medical services, food assistance, cash assistance, housing subsidies, etc. Additionally, the negative rights that Francione is myopically focused on are only enjoyed to the extent that we have robust positive rights to protection by law enforcement and a functioning judicial system.
If we assume that human beings are entitled to this wide range of positive legal rights then advocating a laissez-faire approach for all wild animals is presumptively speciesist and a prima facie violation of the legal principle of equality outlined above. Nonhuman animals have the same interests in life, food, water, shelter, and health that humans do, and the legal system should recognize that by affording them expansive positive legal rights.
Conflicts of Rights
One of the most obvious objections to the legal framework outlined above is that it is theoretically impossible in light of the inevitable conflicts of rights that arise between animals. After all, the wolf’s right to food directly and inevitably conflicts with the deer’s right to life. Aside from the particularly thorny problem of predation, there are innumerable other conflicts posed by scarce resources and population dynamics.
While this objection appears superficially deadly to the whole enterprise of rights for wild animals, it is quite easy to dispense with. Conflicts of rights are not unique to wild animals; they are an inevitable and wholly familiar part of our human-centric legal regime, which is replete with various legal doctrines and policy tools that directly address such conflicts. Tort law and regulatory regimes are both designed to address the inevitable fact that our rights constantly and necessarily conflict with each other. One’s right to drive endangers another’s right to life. One’s right to pollute conflicts with another’s right to health. The fact that our rights inevitably come into conflict does not mean that those rights do not exist. They simply must be balanced against each other in a way that maximizes social benefit, and we should strive to create a world where these rights are fulfilled to the greatest degree possible.
Would Recognizing These Rights Do More Harm than Good?
While animal rights theorists have tried to emphasize that we have no moral or legal obligations to help animals in the wild, it is clear that there is a more significant concern that is motivating their reasoning. As Donaldson and Kymlicka point out, the main point “is not that intervention is merely optional, but that intervention is positively harmful” and should be discouraged.
“When humans have attempted to intervene in nature, the results have often been not just unintended, but perverse. Consider all the cases of deliberate species introductions that have resulted in serious ecological impacts, or the many allegedly scientific management techniques that have led to disaster…You can save a deer by scaring off a pack of wolves, that seems like a clear benefit, but what if the wolves starve? Or, what if they kill a younger, healthier deer over the next hill? Or, what if the deer that you have just rescued from a terrifying but quick death, will now slowly starve through a long, food-scarce winter, or suffer the effects of a prolonged wasting disease?” (Kymlicka & Donaldson, 2011)
Donaldson and Kymlicka, and the other animal rights theorists, are certainly right to be concerned. Natural systems are enormously complex and there is so much that we don’t know. It’s undeniable that under these conditions, it is almost always very uncertain whether our interventions would do more harm than good. But this is an important point: it is uncertain; for now, we can’t be confident that the effects will be positive or negative. This suggests that many staunch opponents of intervention in the wild are just as guilty of overconfidence (about what is best for the aggregate well being of individuals in an ecosystem) as the proponents of intervention they condemn.
We must resist the temptation to believe that “nature is wise” or benevolent. “Gulls peck out and eat the eyes of baby seals, leaving the blinded pups to die so they can feast on their remains. A shrew will paralyze his prey with venom so he can eat the helpless animal alive, bit by bit, for days.” (Reese, 2015). Sadly, there is a significant chance that suffering vastly exceeds happiness in nature, (Tomasik, 2015) and this should not be surprising. Natural selection pressure does not optimize for the wellbeing or happiness of animals, but only for reproduction and survival. Once we understand that, we must reject the idea that non-intervention is a superior choice by default.
Progressive Realization: Respecting the Positive Rights of Wild Animals Means Figuring Out How to Help and Trying Our Best
Human society is also immensely complicated and unpredictable, but we don’t just throw up our hands and do nothing. When human lives are at stake, we don’t allow uncertainty to excuse governments from doing their best to fulfill their human rights obligations.
A non-speciesist approach to the rights of wild animals ought to adopt an approach of “progressive realization” modeled off of the International Covenant on Economic Social and Cultural Rights (ICESCR). The “progressive realization” approach suggests that we can and should recognize positive rights of animals as legal rights even if they are aspirational, and not immediately achievable.
The ICESCR recognizes a legal obligation of societies to take “appropriate measures towards the full realization of economic, social and cultural rights to the maximum of their available resources.” (No., n.d.) Inherent to this approach is the recognition that some rights can only be achieved over a period of time, and that this achievement can be facilitated by legally binding governments to make “every effort” towards continuous improvement.
In the context of positive rights for wild animals, we should recognize that governments have a similar legal obligation to use a maximum of available resources to improve the lives of wild animals. Given that wild animal welfare is a new and unexplored field, researching possible interventions is the best way to fulfill this legal obligation in the short-term. Specifically, governments ought to commit to allocating a certain percentage of GDP to funding this research.
Wild animals deserve to have our best minds experimenting with ways to address the urgent suffering in the wild. We should strive to operate with the utmost caution and through small controllable studies just like we do in medical research (which involves another poorly understood and extraordinarily complex system, the human body). There may already be some promising interventions that could be implemented in the medium run, as pilot projects, without causing major disruptions to ecosystems (Reese, 2015). Jacy Reese makes the case for vaccination and contraception in Vox.
“One option is to give wild animals vaccines. We’ve done this before to manage some diseases that could potentially jump into the human population, such as rabies in populations of wild foxes. Although these interventions were undertaken for their potential benefit to humans, eliminating diseases in wild animals would presumably act as it has in human populations, allowing the animals to live healthier and happier lives.
Another potential way to improve wild animal welfare is to reduce population size. The issues of predation, illness, and starvation can be even worse with overpopulation. In these cases, we might be able to humanely reduce population numbers using contraceptives. In fact, this has already been tried on some wild horses and white-tailed deer. Fertility regulation might be used in conjunction with vaccination to help animals while preventing overpopulation that could affect individuals of different species in the ecosystem.” (Reese, 2015).
Reasonable minds could disagree about whether these particular interventions (or any intervention) are likely to help, but if we are serious about our rejection of speciesism and our commitment to the equal rights of nonhuman animals, then we can’t rest until we are certain that we have done everything in our power to reduce the everyday horrors of life in the wild. It may be hundreds of years before we gain the technical knowledge and ability to fully, or even partly, fulfill these positive rights, but by recognizing that governments have a legal obligation to progressively realize them, we can help to ensure that this aspiration becomes a reality. That is what a rejection of speciesism demands.
Sovereignty and the Intermediate View of Intervention for Wild Animals
In Zoopolis, Donaldson and Kymlicka argue for an intermediate view in between the standard position of non-intervention and the expansive view of positive rights articulated above. While they are clearly concerned about human fallibility and the risk of iatrogenic harms, their objection to intervention rests on something deeper. Interestingly, they agree that “if the only objection were fallibility, then we could at least be starting with small-scale pilot projects.” (Kymlicka & Donaldson, 2011).
For them, “legislating a universal duty of human intervention” in wild animal populations threatens the autonomy and self-determination of wild animal communities. On this view, we should not attempt to alleviate suffering caused by routine horrors of life in the wild (predation, starvation, disease etc.) because “they are defining features of the context within which wild animal communities exist; they frame the challenges to which wild animals must respond both individually and collectively, and the evidence suggests that they respond competently.” (Kymlicka & Donaldson, 2011). Moreover they argue that wild animals “vote with their feet” and “insofar as they exhibit no inclination to join into society with us, we must respect them as forming their own sovereign communities.” (Kymlicka & Donaldson, 2011).
Unlike the standard view of non-intervention, Donaldson and Kymlicka’s position recognizes that under certain extreme conditions, coordinated large-scale intervention may promote the autonomy of wild animals. They identify three sufficient conditions for intervening in others’ sovereign territories: (1) overwhelming catastrophe (e.g. natural disaster, pandemic, etc.), (2) community disintegration, and (3) a request for external assistance. For example, if human intervention could “halt an aggressive and systemic new bacterium which is about to invade and devastate an ecosystem” or blast a meteor out of the sky before it wipes out a forest, a large-scale intervention would be appropriate.
Donaldson and Kymlicka’s view depends on many problematic assumptions. Firstly, the idea that wild animals “respond competently” to the threats posed by nature reflects either an implausibly rosy view of life in the wild, or a speciesist view of what a successful community of wild animals should look like. For most species of animals, maintaining a “stable population” depends on the fact that most individuals will not “respond competently” to the pressures of survival. It depends on the fact that the vast majority of their mothers’ children will die painful deaths before they reach reproductive maturity; that they will be disemboweled while fully conscious, that they will be eaten from the inside out by parasites, and that they will slowly starve or freeze to death. The individuals who do “respond competently” and survive until adulthood will spend much of their waking life hungry, cold, and afraid for their lives (Tomasik, 2015).
Now, perhaps they mean to say that the community as a whole “responds competently” by maintaining a stable population, but this is a speciesist view of success—one that disregards the rights and interests of individuals and focuses on the abstraction of a “healthy population” or ecosystem. It is speciesist because we would never say that a human community was “responding competently” in analogous circumstances.
Another fundamental flaw of the sovereignty approach is that it accepts a false dichotomy between human and nonhuman animal societies and is reflective of the speciesist thinking that divides the world into “us” (humans) and “them” (all other animals). In other words, the deer have as much of a claim against the wolves for invading their sovereign territory as they would against human beings; and the warblers have an equally valid claim against the cowbirds for invading their nests (Thrift & Virata, 2013). The idea that wild animals are all part of some united community simply has no basis in fact and plays into the harmful notion of a separation between humans and all other animals. Admittedly, there are many examples of cooperation and symbiosis in nature, but there are just as many relationships that are competitive, parasitic, and deadly. In the human context, we would call such relationships abusive, tragic, and violent. To the extent that we would ever refer to an analogous network of human relationships as a “community,” we would recognize it as a community at war with itself and in desperate need of help. It is not clear that sovereignty has any meaning in the context of such a community.
Nevertheless, even if we think such sovereignty exists, the routine circumstance of life in wild animal communities is itself an overwhelming catastrophe that should qualify for humanitarian assistance and supersede any sovereignty concerns. A catastrophe should not need to manifest as a rare existential threat (meteor, disease, etc.) to the community in order to override sovereignty. Again, in the human context, the mere fact that a country’s population level was stable would not absolve us from our duties to intervene to stop routine and systematic fundamental rights violations.
Kymlicka and Donaldson’s recognition that a “request for external assistance” can legitimize and justify intervention, suggests another way of defeating their sovereignty concerns. Since wild animals don’t have the ability to ask for our help, we arguably have an obligation to act in the way we think they would ask us to, if they could.
No animals want to be eaten alive, or to be sick, or cold, or hungry. Upon sincere introspection, it seems clear that animals, as individuals, would ask for food and safety if they could speak—I would. Kymlicka and Donaldson’s idea that animals “vote with their feet” against intervention seems profoundly confused. That fact that wolves aren’t walking into Manhattan tells us nothing about whether they would want us to help keep them warm, safe, and healthy.
Zoopolis offers one other acceptable mode of helping wild animals, which seems to call into question their broader sovereignty-based argument against intervention. They note that humans who have special relationships with individual animals can freely attempt to help them without undermining their autonomy. They give the example of Elizabeth Marshall Thomas, quoted at the beginning of this paper, who decides to feed the deer in her backyard; and they point to wildlife photographer Hope Ryden who rescued beavers from starvation
“Ryden is not legislating a universal duty of human intervention in beaver food cycles. Rather, she is in a very specific relationship to particular beavers: she knows them very well, and can understand that her actions are unlikely to have catastrophic spillover effects. Moreover, she has a duty of care that has been activated by her relationship with the beavers, including the many benefits she has drawn from this relationship” (Kymlicka & Donaldson, 2011).
Here, it seems that Kymlicka and Donaldson are trying to explain away these compassionate relationships with animals in a way that doesn’t undermine their broader aversion to intervention, but their explanation reveals a number of problems. First off, it is not clear that they can meaningfully approve of Ryden’s conduct without also approving of the universal principle that all humans can/should help wild animals they have relationships with (which presumably could lead to significant levels intervention). Second, “knowing someone well” is morally irrelevant when it comes to the decision to save them from starving to death. And lastly, even if knowing someone well is morally relevant, that just begs the question of whether we should try to forge such relationships with wild animals in the first place.
This last point may prove fatal to their whole framework, because if we accept that helping animals we have relationships with is good or even obligatory, it is hard to argue against forming such relationships altogether. And once we accept that forming relationships with wild animals is a legitimate option for individuals, then presumably, it is a legitimate option for multiple individuals to coordinate their efforts of relationship building and ultimately, their efforts of helping them. This seemingly opens the door to large-scale interventions by human society as a whole.
In this paper, I have sought to show that helping wild animals is not merely acceptable or desirable, but that it is a moral obligation necessitated by the rejection of speciesism; and that recognizing the legal personhood of nonhuman animals demands a recognition of expansive positive legal rights for wild animals. While these rights are not immediately achievable, they ought to be recognized and progressively realized as quickly as possible. In the short-term we ought to act cautiously and devote substantial resources to researching ways to reduce the immense suffering of wild animals, so that one day we can begin to implement large-scale changes that reliably and comprehensively improve life for wild animals.
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|↑1||I recognize that this definition excludes entities like corporations, which are recognized as persons under the law, but the general symbolic significance of personhood is best captured by this definition.|
|↑2||Also known as “the argument from marginal cases.”|
|↑3||Strictly speaking, this doesn’t include entities like ships and corporations whose personhood is a “legal fiction” designed to represent the interests of human owners.|
|↑4||There are other arguments that show that humanness should not even be considered a sufficient condition for legal personhood. For example, there is little reason to think that a human born without a brain has interests that ought to be considered by society, any more than other non-sentient objects.|
|↑5||Wise argues that autonomy is a complex concept that can be demonstrated by a mosaic of the following characteristics: “the possession of an autobiographical self, episodic memory, self-determination, self-consciousness, self-knowing, self-agency, referential and intentional communication, empathy, a working memory, language, metacognition, numerosity, and material, social and symbolic culture, their ability to plan, engage in mental time travel, intentional action, sequential learning, mediational learning, mental state modeling, visual perspective-taking, cross-modal perception, their ability to understand cause-and-effect, the experiences of others, to imagine, imitate, engage in deferred imitation, emulate, to innovate and to make and use tools.”|
|↑6||In response to this argument, a New York State appellate court held that individuals should be afforded rights on the basis of what is normal for their species. This argument, the Argument from Species Normality (ASN) is flawed for at least four reasons: (1) The ASN arbitrarily chooses species as the relevant category of moral analysis and violates the principle of moral individualism; (2) The ASN cannot explain why we should not grant inappropriate rights (e.g. the right to drive) to incompetent humans; (3) The ASN cannot explain why we ascribe rights without duties, instead of duties without rights (to incompetent humans); (4) The ASN restricts the rights of exceptional members of a species.|