Law’s animal
Chapter 1
Law’s animal
Ed Mussawir and Yoriko Otomo
What sparks the interest in the animal as a subject or object of legal knowledge in contemporary society? Do legal scholars today have the critical tools for addressing the kinds of dilemmas with which this field seemingly presents us? Is law able to take account of its care and control, construction and destruction of animal life? The apparent growing fascination with animal law as a discipline and a topic of legal study internationally is striking. Not only have recent decades seen significant and burgeoning legislative activity and reform with respect to the protection of animal welfare and ‘rights’, but it has also seen a parallel growth in the academic study of this same area. Animal law is taught at over 90 law schools in the United States and is also offered at law schools in Australia, Canada, China, Portugal, Israel, New Zealand and the United Kingdom, amongst others. In addition to this, there has also been, more recently, the appearance of a number of reference books internationally that take animal law for the first time as a point of scholarly cohesion.
This book introduces a somewhat different voice to the field. The reasons for this are substantive as well as procedural. First, while the field of animal law has grown largely in response to a wider animal rights movement broadly critical in orientation, the theoretical problematisation of law and rights themselves has not necessarily followed a sustained critical account. The theoretical focus of animal law scholarship seems therefore to have a narrow ideological starting point. Needing to convince its critics that the perspectives, needs and rights of animals are not peripheral to law’s remit and objective, its idiom has remained largely polemical and rhetorical while its agenda has been decidedly ‘reformist’, even when it purports only to describe dimensions to current legal structures and measures.
Two difficulties seem to follow from this. First, there is a difficulty in attending closely to the question of law in relation to the animal. Animal law scholarship which retains a largely reformist agenda tends to assume a common ideological starting point or at least a general ethical consensus about concern for the treatment of animals as the impetus for a resort to law and hence also the study of law in the field. In relation to this supposedly shared view, however, legal scholars can only seem to be the messengers of the more or less bad news of its non- or slow incorporation. There appears to be little interest in calling law itself into question as an instrument and artefact of social change and institution. Even less acknowledgement is given to the possibility that the kind of limitation which legal study in itself places on the moral philosophies of animal rights may be the occasion for a kind of theoretical creativity.
A second difficulty presents the other side to this equation. Not only is it difficult to account for the existence and meaning of law through its encounter with animals, it seems equally difficult to hold onto the ‘question of the animal’ in law with scholarly rigour and direction. The interest that animal law scholarship tends to maintain in the animal itself remains quite often simply prescriptive and advocatory. It isn’t hard to see why. Even putting aside the academic differences of those who contribute contemporarily to this field, it is challenging to write about the animal in law without adopting the speaking position of an advocate. Animals are taken as a group of beings who at the very least deserve better outcomes or better conditions of existence. And law is of course taken ambivalently: not only as one of the primary means through which present conditions of violence are legitimated, but as a tool for achieving better conditions and pursuing better outcomes for animals.
Responding to some of these challenges in the ethical and technical relation of law to animal life, this book attempts to introduce an alternative voice within the growing field of animal law: a voice that offers a departure from the polemics of animal rights and engages with law relating to animals and the question of the animal in law at a critical, creative and theoretical nexus. The aim is to begin to return the discourse of animal rights to jurisprudence, to the technical and theoretical discipline of right and to the thought of law. It is also to deepen the scholarships and practices of critique that are embedded in law’s relation to the non-human animal. Drawing upon the texts and practices of law and the resources of a critique of humanism in the contemporary humanities, the contributors to this book respond to the problem of what it might mean to return ‘animal rights’ discourse to the technical language and discipline of rights: jurisprudence. In doing so, this collection of works addresses a surprisingly underdeveloped aspect to the moral philosophies of animal rights, namely their juridical register and existence. How does ‘animal law’ alter our juridical image of personality or personhood? How do the technologies of law intersect with the technologies that invent, create and manage animal life? And how might the ethical, ontological and ceremonial relation between humans and animals be linked to a common source or experience of law?
Each of the chapters in this book offer new lenses through which to approach the question of the animal in law. Central to all of these approaches is an attention to the ethical and philosophical relation between human and animal and to how this relation might be framed in and as a problem of law. Through this, new light is cast on certain familiar coordinates in jurisprudence: the subject and object of rights, the legal person, the sacred and profane, jurisdiction and territory, normativity, representation; all of which become remarkably reshaped in the presence of the animal.
The chapters also bring to our attention neglected, forgotten, critical or alternative lines of inquiry aimed at situating the animal in relation to its more marginal legal statuses: nomad, machine, chimera, protagonist, modification, meat, etc. The responses are also populated with animals themselves. There are chimpanzees, horses, sheep, pigs, ducks, mice, dogs, spidergoats and buffalo. Magical, mechanical, dangerous, wild, domestic, invented, beloved: these are the subjects of the contributors’ ruminations. We have chosen to collect these contributions in relation to three central themes addressing the non-human animal. These themes are respectively the genres, the cases and the habitats of law’s animal.
Genres
The first three chapters of this book each address the ‘genre’ of animals. ‘Genre’ concerns the question of origins. It turns one’s attention to problems of reproduction, gender, representation and generation where law marks the genealogies, heritages and lineages (whether pure or mixed) of various kinds of being. The fact that humans are a species of animal or that human and animal share a common ancestor has more than a purely biological and evolutionary implication but one that also calls into question the origins of juridical thought and the most basic presuppositions of jurisprudence. In jurisprudence the question of genre is concerned less with animal taxonomies than it is with the elements and institutions of a form of juridical ‘life’. It speaks in at least two directions: it concerns on the one hand the fidelity to lineages and roots, to gender and type, house and family; on the other hand it refers to technology and praxis; the creation, invention and manipulation of apparatuses and institutions of living beings. One example that traverses both these facets is the juridical technology of the ‘person’: an element scrutinised by a number of authors in this book. It is true that animal rights discourse makes all kinds of use of the legal category of the person, but from the perspective of the ‘genre’ of animals in jurisprudence, the legal person as a juridical artefact appears to have a much narrower purpose and to conceal a much more fundamental secret.
Connal Parsley begins the critique of the ‘person’ in this collection by turning to the medium of cinema. He does so in order to diagnose and decode a central problem in the contemporary intellectual habits of legal, ethical and moral thought in relation to animals: the problem of its representation in images. Parsley brings together two key textual sources for this project – the Armenian film Border