Whipping to win: Measured violence, delegated sovereignty and the privatised domination of non-human life

Chapter 8

Whipping to win

Measured violence, delegated sovereignty and the privatised domination of non-human life¹

Dinesh Joseph Wadiwel²

In August 2009 the Australian Racing Board responded to welfare concerns by introducing a range of regulatory measures pertaining to the use of whips in horse-related races, trials and trackwork.³ Clause AR137A of the Australian Rules of Racing were substantially redrafted, with the formal regulation to mandate the use of ‘padded whips,’ the introduction of rules regulating the number of times that a rider might use a whip on a horse in a race, and regulation of the way in which the rider should deliver the strike. In addition, the use of stock whips, as a means to force horses into the starting gates, was banned altogether. The rules were – at least prima facie – stricter in nature, offering more detail than the regulation that had previously governed the use of whips.⁴ In March of 2009, the Chairman of the ARB had commented of the introduction of the rules that:

These changes send a clear message that Australian Racing is fully attuned to contemporary community expectations. The need for change is clear and there was no point fiddling around at the edges. There is no point procrastinating where there is industry and public expectations that practices of the past are no longer condoned. Once we opened up the subject we were determined to do it properly.⁵

However, the new rules were not welcomed by all sections of the racing industry. An adverse response to the introduction of the 1 August rules was immediate, with jockeys mounting a strike campaign, refusing to race in planned race fixtures.⁶ The outcry was focused on the right of jockeys to exercise discretion in the use of the whip, particularly in the last portion of the race where it was argued that use of inducement was necessary to incentivise horses to hurry across the line. One commentator put forward that:

this is what happens if the ARB follows minority groups and doesn’t listen to the mainstream view. The jockeys should be allowed to go for broke in the last 100 m or we get the situation where some horses win that really shouldn’t be winning.⁷

The industrial action was finally resolved by the Australian Racing Board on 23 September 2009 when the Board compromised its position in favour of the racing industry. While regulation on the number of times horses could be whipped remained in place, there was agreement to allow riders’ discretion in the final 100 metres, where the regulations would allow riders to ‘go for broke.’ The revised regulations inserted the following: ‘in the final 100 metres of a race, official trial or jumpout, a rider may, subject to the other requirements of this rule, use his whip at his discretion.’8

There are a number of considerations at stake in understanding the implications of the Australian Racing Board whipping regulations for considering the effect of authorised violence upon race horses, and their implications for relationships between humans and animals. There has been consideration elsewhere of welfare and ethics in relation to the training and use of horses. Of note, there has been recent analysis of the utility of use of the whip within the context of horse racing which has gone a significant way in insubstantiating the usefulness of whip use for incentivising horses within the context of thoroughbred racing.⁹ There has also been some useful discussion on welfare and rights considerations in relationship to discipline training and ethics.¹⁰ However this chapter does not aim to evaluate the utility of whipping horses, nor explicitly the ethics of this practice; on the contrary, the chapter aims to understand the dynamics of this violence, and its relationship to human sovereignty over non-human animals. Specifically I discuss what the regulations mean for understanding the way in which whipping is organised and regulated towards animals; the biopolitical nature of that violence; the way in which that violence might be understood as based upon sovereign dominion; how it is that this sovereignty is stratified through a privatised right to inflict violence, and finally, how different forms of regulation of violent practices (both before and after the last 100 metres) situate law both inside and outside of violence. In this sense, this chapter aims to situate whipping within the context of sovereignty making; as a sign and message of human domination of non-human animals.

Biopolitics and whipping

Whipping is a regulated form of violence. Although whipping can kill, either directly or indirectly,¹¹ the whip is more clearly associated with life (painfully lived) than as an instrument of death.¹² It strikes the periphery of the body but does not aim to kill; on the contrary the regulation of whipping provides for a ‘careful violence’ that maintains life, while inflicting injury across a specified duration. Its capacity to effect changes in behaviour, without necessarily killing, is the key to its effectiveness. This capacity inherent in the practice and technique of whipping has informed some of its historical uses: in the institution of slavery, as a means of incentivisation, as a punishment, and, in the case of animals, as a fundamental tool of domestication and control.

This torture controls the delivery of pain carefully. Strokes of the whip are inflicted to space and regulate intensities of sensation. Regulation is important here. This is reflected in historical uses of the whip by humans against other humans, where regulation occurred through a variety of different means, and where tight regulation of the practice improved its efficacy. A space of potential regulation was the implement of torture itself; the Romans, for example, varied the instrument of torture, from the flagellum (a scourge made of ox leather and frequently knotted with ceramic of metal), to the scutica (a whip with parchment thongs) to the ferula (a flat leather strap);13 English penal flogging is usually associated with the infamous cat’o’nine tails, but a lighter five-tailed whip was reserved for boys in the Royal Navy, referred to as the ‘boy pussy.’ Aside from regulating the instrument that was used, flogging has also relied on an ability to control duration by spacing the delivery and number of strokes. Regulation of the number of strokes, its intensity and spacing, ensured that the pain delivered was measured and spaced to appropriately endure, and simultaneously as a protection from the unplanned or hasty exit into death of the prisoner. This governing logic applied to whipping probably lay behind the Judaic regulation on the use of the whip, restricting the number of lashes to no more than 40,¹⁴ and almost certainly informed the modern uses of flogging as part of the penal and military disciplinary system within the British Empire, where whipping was carefully measured and closely monitored by administrative and judicial authority. This latter regulated form of whipping was further enhanced in its precision by the use of medical expertise at the scene of judicial and military flogging, in order to monitor and determine the fitness of the prisoner to endure further torments:

No one who has ever witnessed a military flogging can think of it without horror; nor can any member of a liberal profession have a more odious duty imposed upon him than falls to the lot of the surgeon on such occasions – namely, to judge how much pain and laceration a human being can bear without endangering his life.¹⁵

The function of this medical expertise is to exercise ‘care,’ albeit not in a traditional sense. Care in this context is twisted with the temporal requirement of duration to produce a horrific form of violence; a violence that painfully attacks the periphery and promises only to endure, almost deliberately stopping short of, side stepping, any unplanned intervention by death.¹⁶

As gruesome as a history of the whip may be in relation to its use by humans against other humans, there is also a parallel and interconnected history of human use of the whip against animals as a systematic and pervasive instrument of continuing control. The capacity of the whip to inflict suffering over living beings and provide an incentive for compliance means that it has had continuing utility as an instrument of domination over the living. As such, the whip is a symbol of slavery, whether over human or non-human animals. Indeed, it is reasonable to not differentiate between the use of the whip within the context of animal ‘domestication’ and its use within the context of human slavery, since these two experiences of domination are largely similar and interconnected, with the exception of the variation between species in question. Certainly Tim Ingold reminds us that ‘in those societies of the ancient world in which slavery was the dominant relation of production, the parallel between the domestic animal and the slave appears to have been self evident.’17 Whipping, after all, is designed to make a sentient and resistant being compliant:

Consider the slave-driver, whip in hand, compelling his slave to toil through the brute infliction of severe pain. Clearly the autonomy of the in this situation to act according to his own volition is very serious curtailed. Does this mean that the slave responds in a purely mechanical way to the stroke of the whip? Far from it. For when we speak of the application of force in this kind of situation, we impute to the recipient powers of resistance-powers which the infliction of pain is specifically intended to break down. That is to say, the use of force is predicated on the assumption that the slave is a being with the capacity to act and suffer, and in that sense a person. And when we say that the master causes the slave to work, the causation is personal, not mechanical: it lies in the social relation between master and slave, which is clearly one of domination. In fact, the original connotation of ‘force’ was precisely that of action intentionally directed against the resistance of another sentient being.¹⁸

The fact that whipping non-human animals may be tolerable within contemporary human societies, indeed treated as somehow benign, and not as a technique of social domination, arguably intensifies its horror. Violence that lacks signification as violence silences suffering; it veils the utility of that violence in maintaining the scaffolding of domination. This productive silencing of violence props up social practices and relationships, and presents them as apparently civil and peaceable. Pain here is either not considered an effect or, sometimes simultaneously, considered present but not worthy of consideration. The peculiar revulsion that accompanies the whipping of animals is the perception that some non-humans are less susceptible to suffering due to a dulled or non-existent sensitivity to pain (a ‘thick hide’) or that this suffering is not as significant as that experienced or potentially experienced by humans (that is, in the balancing act, humans matter more). It is notable that both these arguments circulated in some form in the 2009 Australian jockey strike. For example, the argument was put that horses did not feel the pain associated with the whip in the race (‘I don’t know whether even the horses are too worried about it because like a long-distance runner they go through a pain barrier and I think probably at the end of the race they don’t really feel the whip’19) and that the use of the whip to assist with steering meant that regulation of whipping would pose a danger to jockey safety (in other words human safety, and continued enjoyment of animal use, trump consideration of suffering experienced by the animal). Leaving aside the accuracy of these claims – that is, whether horses suffer, or whether this suffering matters – the question of whether violence occurs, who gets to inflict it and on what terms, remains obscured. As I shall argue below, making sense of this requires us to challenge our right to decide in the first place: that is, to put human sovereignty under the spotlight.

Privatisation of sovereignty

I have elsewhere argued that human violence towards non-human animals must be understood as a form of sovereign domination.²⁰ Exploration of sovereignty provides an alternative to rights and welfare approaches, as it questions the fundamental assumption that humans have a right of domination over non-human animals, and establishes sovereignty recognition as a starting point for dialogue between human and non-human animal perspectives. There are a few notable examples of this approach. Robert Garner, for example, while not arguing explicitly for sovereign community, observes that ‘the vast majority of political theorists persist in seeing sovereignty as a human centred project,’²¹ and that ‘if humans have rights on the grounds that their capacities entitle them to self sovereignty, then so too must some non human animals.’²² Robert E. Goodin, Carole Pateman and Roy Pateman’s ‘Simian Sovereignty’ argues that forms of community self determination that follow from human declarations of rights extend to great apes, and that feasible alternatives for a ‘great ape homeland,’ including trusteeship arrangements which would allow great apes to live their life unfettered within a protected state.²³ Sue Donaldson and Will Kymlicka have recently proposed sovereignty rights for some animals, including rights to self determination and freedom from invasion for ‘wild’ animals.²⁴ Finally, it is worth noting that Jacques Derrida’s recently published lectures – entitled, in English, The Beast and the Sovereign – provide significant material problematising the conceptualisation of sovereignty and its relation to animality.²⁵

Sovereignty is usually associated with territory.²⁶ My own approach is not focused on understanding sovereignty as a right to territory per se, but recognising human domination of non-human animals as essentially a question of sovereignty, and allowing for the possibility of animals possessing a radical right to sovereignty. Allowing for this would open an engagement with humans that can never be reduced or limited to rights tied to human utility, such as the right not to experience ‘unnecessary suffering.’ Adopting this approach shifts the tone of critical analysis of human relationships with animals. For example, we should try to understand the way in which welfare functions, not as a means to reduce the suffering of animals, but, on the contrary, a means of governing violence to ensure continuing human domination of non-human animal life. Violence in this sense must always be understood as a technique to maximise human utility and guarantee continuing sovereign rights.27 I have argued, following Foucault, that power relations might be understood through the logic of war, with sovereignty and law an attempt to fix in place an economy that guarantees a continuing plunder, through apparently benign civil apparatuses.²⁸ A facet of this sovereign domination is its apparent imperceptibility: arrangements of violent domination are so ingrained and intricate that they appear as natural, given, ever present. This is how it is that the slaughter of billions of animals becomes everyday, hidden from concern and occurs within the guise of a civil peaceability.

Conceptualising human sovereignty over non-human animals requires us to observe different characteristics in the nature of that dominion than we would for an analysis of the sovereignty of the State. importantly, sovereignty here cannot be understood as centralised within a state apparatus, but is dispersed at a micropolitical level as a manifest and situated form of domination. As such, human sovereignty over animals does not conform to the Hobbesian model of centralisation and monopolisation of violent means. An example of the way in which human sovereignty over animals might operate differently is provided by Achille Mbembe, in his discussion of the ‘privatisation’ of the means of government in On the Postcolony. Examining the operation of force and sovereignty in post colonial zones, Mbembe observes a rationality of rule that diffuses armed conflict into the locales of the everyday life of citizens.²⁹ In the States studied by Mbembe, he observes that there is ‘an increase in resources and labour devoted to war, a rise in the number of disputes settled by violence, a growth in banditry, and numerous forms of the privatization of lawful violence.’³⁰ Here the State delegates authorities to use violence, which allows for a diffusion or ‘fractionation’³¹ in the agents coercion, creating a framework of ‘indirect private government’³² away from a centralised apparatus to numerous privatised entities:

functions supposed to be public, and obligations that flow from sovereignty, are increasingly performed by private contractors for private ends. Soldiers and policemen live off the inhabitants; officials supposed to perform administrative tasks sell the public service required and pocket what they get.³³

Private terror goes unpunished: as Mbembe remarks, ‘no one is prosecuted for anything.’³⁴