Dressing the sow and the legal subjectivation of the non-human animal

Chapter 7

Dressing the sow and the legal subjectivation of the non-human animal

Victoria Ridler

Introduction

Her crime was infanticide, and her punishment was not only hanging, but to have the same kind of wounds inflicted upon her as she had inflicted upon the child. One of the most striking elements of the process, however, was that she, the sow, was dressed in a man’s clothes for her execution in the public square.¹ This personification of the non-human animal as a subject of the law is troubling. Not simply because the sow was harmed or may have suffered in the process, but because in holding her accountable for her crimes (to a law she cannot know nor meaningfully participate in), the trial performs a legitimating function that renders the violence toward her as a necessary violence in the service of justice. Her trial took place in the Norman city of Falaise in 1386, and was an example of what are commonly described as the ‘animal trials’ that took place in Europe (predominantly) during the Middle Ages. The last criminal animal trial occurred in Switzerland in 1909, and since then the criminal prosecution of animals has been largely abandoned.² Rather than appearing as a defendant with the necessary mens rea to be tried and held accountable for their actions before the law, the non-human animal now appears either as an object of possession (relevant only in terms of the rights of its owner) or as the recipient of humanitarian concern through animal welfare or anti-cruelty legislation. Contemporary academic thought has shown a particular concern over this latter categorization, proposing that (some) non-human animals ought to be understood as subjects of the law rather than as property. This move from ‘property’ to ‘subject’ however brings its own difficulties – difficulties exemplified by the ways in which we might find the trial of the sow of Falaise troubling.

In the following chapter it will be argued that shifting the non-human animal from the category of property to that of the legal subject may be little more than a shift from claiming dominium in the non-human animal, to claiming imperium (the right to rule) over it. In the first section, ‘Man’s dominium,’ some of the arguments opposed to the categorisation of the non-human animal as ‘property’ are considered. As opposed to Gary Francione’s characterization of the difficulties presented by this categorization, it will be suggested that it is specifically property conceived of as dominium in another being, with its correlate assumption of a hierarchy of being, that offends against our moral sentiments. In the second section, ‘Man’s imperium,’ the theoretical move from a premise that animals are morally relevant to us (human animals) to the position that they ought to be subjects of our law is critically interrogated to suggest that the legal subjectivation of the non-human animal lacks the kinds justifications we can provide for the subjectivation of the human animal. As such, its subjectivation (and subjugation) sustains the kind of hierarchy of being we opposed in the category of property in the first place. In the third section, ‘On law and justice,’ the way in which law performs a legitimating function in which its performance is a rendering of ‘justice’ (its violence a ‘just violence’) I propose illustrates why the legal subjectivation of the non-human animal remains deeply troubling, even if compelling for pragmatic reasons. It is the very fusing of the concept of justice with law in this way that is captured by the trial of the sow of Falaise, and why, I would argue, the trial evokes such a strong sense of an injustice. In the final section, ‘On law and injustice,’ I advance an alternative way of thinking about the relationship between law and injustice in which we might have a legal response to the injustices done to the non-human animal, creatively engaging with existing legal categories to define a relationship in which we have legal duties towards the non-human animal without simultaneously claiming over them either dominium or imperium.

According to Gary Francione, ‘to take animal interests seriously … we have no choice but to accord animals one right: the right not to be treated as our property’3 Francione, like many, is concerned that the category of property will prevent us from adequately treating animals as morally relevant beings. His primary criticism is that the category of property conceives of animals in terms of the instrumental value they hold for their owners. Even given legislation that protects the welfare of animals, he finds that, in practice, the interests of the non-human animal become subordinated to that of the property owner or the interest of the human animal more generally.⁴ In legal terms, this subordination occurs by means of exemption clauses that allow for animal suffering where it is deemed ‘justified’ or ‘necessary’ for a human benefit. In some cases, this justification is provided by nothing more than the customary practices of an established industry that benefits from animal exploitation. Where the protection of animals from suffering at the hands of humans is qualified in such broad terms, we can understand the comparison Francione makes between such welfare laws in relation to non-human animals and those that had historically been in place in relation to human slavery, where:

Slave-welfare laws failed to establish any meaningful limit on the use of slaves, just as animal-welfare laws fail to establish any meaningful limit on our use of non-humans. There are powerful economic, legal, political, and social forces that militate against treating property as anything other than property.5

Francione’s argument is, in many regards, a pragmatic one asserting a causal relationship between the categorization of property and its practical effects upon our ability to attend to their interests. Because it proposes causal relationship, it also opens itself up to criticisms that look to other potential causal factors. It has been argued, for example, that the current difficulties in providing legal protection to the interests of non-human animals lies not with the categorization of the non-human animal as property per se, but either with the overly qualified nature of animal welfare legislation and/or with a lack of political will to enforce it.⁶

When we consider more closely the reasons Francione advances for why the category of property would have this effect, that is property’s instrumental quality, we find this kind of categorization in fact can sit (relatively) unproblematically with a multitude of other legal categorizations at the same time. The human animal is regularly engaged in forms of alienation from their bodies, their labour, or even personality traits such that these can all be conceived instrumentally in legal categories with beneficial interests accruing to other persons. As an employee, the human animal has the capacity to both be a recipient of legal rights against other persons whilst still having the law define who benefits from their labour. While these examples may be distinct from that of slavery (with a primary distinction being the perhaps more fictional that real addition of consent), what we might conclude at this stage is that the legal regulation of the instrumental value of something, in and of itself, does not entail a necessary exclusion of other legal forms of regulation that protect their interest.

We might also consider the way in which the capacity to have property in a sentient being lies at the very foundation of modern subjective rights. Possessive individualism – ownership of oneself and one’s labour – was an essential element to early modern explanations of the nature of individual rights.⁷ Although the non-human animal was not conceived of as having the capacity for such self-possession by these early modern theorists, the influence of possessive individualism suggests that the category of property, in itself, has not been inimical to how rights for the human being have been conceived. Further, the potential application of self-ownership in relation to the non-human animal is no longer limited by these early conceptions of who or what has the requisite ‘will’ to be a ‘self-possessed’ being. Reflecting the belief in this self-possessive capacity, David Favre, for example, has argued that we can reform property rights such that animals have an equitable interest in their own property status. Although perhaps not assuming the same kind of property in oneself as envisioned by John Locke or other theorists of possessive individualism, Favre advances that the category of property in fact holds promise for an ethical account of the interests of the non-human animal in legal application. Specifically, Favre points to the distinction between having title in property and having an equitable interest in property, proposing that where the non-human animal can be conceived as having an equitable interest in themselves as property there arises the scope for the legal protection of those ‘interests.’8

Given that we seem to generally accept the compatibility of the legal regulation of a being in terms of its instrumental value for others along with legal regulation that protect the same beings ‘interests’ and ‘rights,’ and that the very capacity to have possession in a being has in fact been at the foundation of the modern conception of subjective rights, it would seem that Francione’s assertion of the incompatibility of a beings status as property with the protection of their interest may not be as persuasive as it first seems. However, I would suggest caution in ignoring the power of his analogy of the property status of animals with the property status once attributed to human slaves. The power of this analogy, I would argue, comes from a very basic premise that someone has the capacity to have dominium in, or over, another being, a premise which has found itself deeply implicated in certain notions of property ownership.

In his introduction to the law of property, written in 1757, William Blackstone began by speaking about the importance of the notion of property, or dominium, to Man in general, stating that:

There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.⁹

Dominium, in its Latin meaning and its application in the English legal tradition, was a word that signified both ‘property’ in something and Lordship. In Blackstone’s account, the ‘only true and solid foundation of man’s dominion over external things’ was the gift of all of the earth, and all non-human living things in it, from the Creator to man.¹⁰ This conception of property is one in which there is a direct relationship between things as property and those who have property in them. Property, in this sense, is a right in relation to the property itself: a right that has as its foundation a cosmology that presumes a hierarchy of being.11

This can be contrasted with another conception of property, a conception that ‘denotes not material things, but certain rights.’ Rights that concern not the relationship between an owner and a thing, but between ‘…the owner and other individuals in reference to the thing.’¹² This conception of property is relatively silent on the relationship between an owner and their possession per se. Instead it concerns a regulation of the kinds of benefits and uses an owner may draw from their property that others may not. What this silence means is that questions of what moral or legal duties we might owe to non-human animals themselves are not precluded from being addressed through other legally regulated relationships.

Distinguishing between these different notions of property highlights that it is property in which there is a conceived right to something in itself that is most offensive to our moral sentiments. This version of property, conceived of as dominium, is also the version that bears a great resemblance to the idea of a legal subject as the legal subject is the being over which a right to rule is claimed. A subject of the law is not just that person who receives legal ‘rights,’ but is also the person conceived of as subject to the law.

Man’s imperium

The transition from property to subject is often made seamlessly with little critical reflection upon the kind of relationship of power and right that legal subjectivity itself brings. This lack of critical reflection seems to be the result of the way in which rights (both moral and legal) are articulated in the language of ‘interests.’ According to this formulation, if: (a) non-human animals have morally significant attributes and interests, and (b) non-human animals are ‘moral persons’ (or persons who are of moral relevance), then; (c) they therefore ought to have rights to protect those interests. Further, if the non-human animal ought to have legally protected rights, then, (d) they should be considered legal subjects. Thus the legal subjectivation of the non-human animal is justified by the premise that they possess certain morally relevant interests or attributes. According to Francione, for example, ‘… to say that a being is a person is merely to say that the being has morally significant interests.’¹³ Stephen Wise takes this further into the territory of jurisprudence when he argues that (certain) non-human animals must be recognised as legal persons such that their morally significant attributes can be adequately protected in law.¹⁴ In this literature a legal ‘person’ remains indistinguished from a legal ‘subject.’