The recent trial of Canadian activist Anita Krajnc highlights the moral incongruities of the law’s classification of animals as property.
A truck stops at a traffic island on a sweltering hot summer’s day. It is crammed with sensitive individuals whose only ‘crime’ was to be born into the wrong skins. They are suffering severe distress from dehydration and overheating and may have been transported in these insufferable conditions for up to 36 hours without food or water. They will all soon die terrifying, painful deaths in an industrial killing factory so that their bodies can be hacked up into pieces and sold as frivolous commodities for the fleeting pleasures of consumers. As the truck stops at the traffic lights, a woman provides water to these prisoners through the vents on the sides of the truck, wishing to alleviate their suffering and draw attention to their plight. This may well have been the only flicker of compassion that these poor souls had experienced in their short, wretched lives.
If you were an alien observing these events, who would you assume would be subject to prosecution in a society whose criminal justice system was actually based on the principles of justice? The person(s) who put these sensitive individuals on the truck in the first place? The truck driver? The individuals operating and running the killing factory? The members of the public creating the demand for such atrocities? In recent criminal proceedings in Canada, the Crown decided that the real villain of this piece was the woman who provided the thirsty with water.
The woman in question was Anita Krajnc. The individuals she was providing water to were pigs destined to the aptly-named Fearman’s Pork Inc. slaughterhouse just outside of Toronto. Krajnc is a member of Toronto Pig Save, an animal rights group committed to raising awareness of animal suffering through ‘bearing witness’ to animals in the final moments of their lives.
Krajnc was charged with “mischief”, an offence under Canada’s criminal code which one is liable for if one “obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property”. The property in question was the pigs. The Crown argued that Krajnc gave the pigs an “unknown liquid” which could potentially have contaminated the food supply and, in doing so against the wishes of the pigs’ lawful owners and possessors, she was interfering with the use, enjoyment or operation of their property.
At trial, the defence argued, inter alia, that Krajnc had acted for the ‘public good’, using this as a springboard for wider debate about human exploitation of other animals. Expert evidence was adduced on pig intelligence, the environmental impacts of meat consumption and the adverse health consequences arising from pig flesh consumption. In the spirit of civil rights movements of the past, Krajnc’s legal team used their platform not merely to address the judge, but also to communicate with other activists and the broader public about the unjust treatment of animals in human society. The seeming double-standard of punishing an act of compassion whilst permitting the violent abuse of animals was highlighted by Toronto Pig Save, both inside and outside of the court.
Another interesting argument from the defence was that the pigs should not be regarded as legal property but rather as “persons” under the law, entitled to have their most basic and fundamental interests protected as rights. Krajnc argued that treating sentient individuals such as pigs as mere property “no different than a toaster” was the focal issue of the matter for her: to lump conscious beings into the same legal category as inanimate objects can only serve to sanction systematic violence against them.
Krajnc was acquitted on the grounds that there was no evidence that she had interfered with property. Whilst Justice David Harris explicitly rejected the defence’s claim that pigs should be regarded as legal persons (“By law in Canada, pigs are not persons. They are property”), he noted that the giving of water did not amount to interference: “Protesters had given water to pigs before. The driver was aware of this. The slaughterhouse was aware of this. Despite this, the slaughterhouse had never refused to accept a load of pigs for that reason”.
Krajnc evaded criminal sanction on a technicality. The ruling did not, predictably, affect the substantive classification of animals before the law. Moreover, as her own defence team speculate, the judgement still leaves the door open for similar prosecutions against activists in the future. Nevertheless, the Krajnc defence’s arguments shine a spotlight on an often unexamined, but highly significant, issue: the legal classification of animals as chattel property.
Animals as Things
The subordinate status of animals in the law can be traced back to the origins of the Western legal system itself. The Roman Code of Justinian prescribed a tripartite division of the world into ‘persons’, ‘things’ and ‘actions’ — and animals fell squarely into the ‘things’ category. Persons are the subjects of the law and have the capacity to bear rights and duties. Things are the objects of the law: they may be owned, sold, exchanged, modified and destroyed by legal persons. They cannot possess any rights.
Until the 19th Century, animals were treated by Western legal systems as no different to inanimate objects. The only legal limitations that were placed on their treatment related to the protection of the rights of persons, for example, there were laws against killing or taking animals owned by others.
On the one hand, this instrumental legal status of animals reflected the needs of farmers in agrarian society to ensure that they would be the primary beneficiaries of any profit from the animals they possessed. On the other, it can be linked to dominant moral narratives in antiquity and the medieval period which appealed to divine providence to justify human domination and ownership of the other creatures. Thinkers such as Aristotle and Aquinas asserted that God designed the universe hierarchically with ‘non-rational’ animals existing to serve ‘rational’ humans. These ideas percolate into the modern legal discourse via the writings of the political theorist John Locke and legal commentator William Blackstone, who justified the legal ownership of animals on theological grounds. ‘[T]he only true and solid foundation of man’s domination over eternal things’ Blackstone wrote, is the granting of dominion over the other animals by ‘the all-bountiful creator’.
The property status of animals was also given a secular twist in the modern era, with philosophers such as Kant arguing that the duties of morality only apply to rational beings who can determine their own goals. Non-rational creatures, of which he considered all non-humans to be, cannot determine their own ends and consequently ‘only have relative value as means and therefore (are) called things’. Kant thus believed that humans had no direct moral duties to animals.
Animals as Sentient Beings
In the late 18th Century English law reformer Jeremy Bentham decried that ‘Other animals, which, on account of their interests having been neglected by the insensibility of the ancient jurists, stand degraded into the class of things.’ He pointed out that animals, unlike inanimate objects, are conscious creatures who experience pleasure and pain. Their lack of ‘rationality’ is not grounds for ignoring their interests: “a full-grown horse or dog is beyond comparison a more rational, as well as a more conversable animal, than an (human) infant of a day, or a week, or even a month, old.” But in any event: “the question is not, Can they reason? nor, Can they talk? but, Can they suffer?”
By the 19th Century, such increased attention to the moral salience of animal sentience set in motion the promulgation of anti-cruelty laws across the Western world over the next 200 years. The obvious moral absurdity of lumping sentient animals together with chairs, cars and toasters has led to many jurisdictions overturning the classification of animals as mere things. This happened in Austria in 1988, Germany in 1990, Poland in 1997, France in 1999, Switzerland in 2002, Moldovia in 2002, and New Zealand in 2015 to give a few examples. At the EU level, animals are recognised as ‘sentient beings’ and as such ‘full regard’ should be paid to their welfare requirements in the formation of Union policies.
Some legal scholars have suggested that animals in many jurisdictions now occupy a ‘third space’ between the traditional categories of persons and things: ‘Living Property’ or ‘Sentient Property’. Thus, animals may still be bought, sold and traded as chattel by humans but they are distinct from inanimate objects in so far as humans owe them direct legal duties to treat them in accordance with welfare laws.
The bedrock of contemporary animal welfare protection is the prohibition on causing “unnecessary suffering”. Such prohibitions do not ban all causing of suffering to animals: causing animals to suffer is standardly permitted if in doing so a “legitimate purpose” is pursued and the amount of suffering is “proportionate” to that purpose. In practice, this balancing act has been interpreted by the Courts (and reinforced through legislation) as permitting the infliction of vast suffering on animals in factory farms, slaughterhouses, research labs, circuses and other systems of institutional exploitation to satisfy the most trivial and fleeting of human interests.
Law scholar Gary Francione suggests that these balancing acts are heavily skewed in favour of the human, in part because of the property status of animals:
‘As far as the law is concerned, it is as if we were resolving a conflict between a person and a lamp, or some other piece of personal property. The winner of the dispute is predetermined by the way in which the conflict is set up in the first place’
Even if it is true that, in many jurisdictions, the classification of animals as mere things has been repealed, the property status of animals is nevertheless going to significantly limit the progress that can be made on improving their welfare. This is because property in primarily conceptualised as possessing instrumental value: its worth is whatever value its property owner assigns it. When one considers the imperatives of capitalism to maximise ‘economic efficiency’ and profits, the mushrooming of factory farming over the past 70 years makes perfect sense. The logic of commodification is starkly articulated in an industry magazine for hog farming:
“Forget that the pig is an animal. Treat him just as a machine in a factory. Schedule treatments like you would lubrication. Breeding season like the first step in an assembly line. And marketing like the delivery of finished goods.”
This line of thinking and mode of organising is of course precisely what led to the suffering witnessed at the Toronto Pig Save vigil: the pigs were crammed into the truck because that was what was most economically efficient. The lives of commodified beings come cheap.
It is because of these structural impediments (both conceptual and material) that have led some, including Krajnc and her defence team, to argue that what is needed for effective protection of animals is a shift away from treating animals as property and toward the recognition of animal personhood.
Animals as Persons
The concept of animal personhood might seem like an oxymoron to many people outside the law. But as lawyers know, the concept of a ‘person’ has a wider meaning in the law: it signifies an entity with the capacity to bear legal rights and/or duties. Not all persons are human in the law: in various jurisdictions corporations, churches, municipalities, ships, Hindu idols, Sikh holy books and rivers have been identified as persons with certain rights. Conversely, not all humans have historically been recognised as persons before the law. The most obvious example of course is chattel slaves, but in many other contexts children, women (indeed, it was not until 1929 that women were fully recognised as persons in Canada!), serfs, colonial subjects, vagabonds, the cognitively impaired, indentured servants and others have, at least for certain issues been denied the status of persons. Who constitutes ‘law’s persons’ is a question of policy and principle, not biology.
The principle advantage, from the perspective of the animal protection movement, of moving towards animal personhood is that it shifts the emphasis from animals as objects to animals as subjects before the law: it underscores that they are somebodies not somethings and court cases will be able to be brought directly in the names of animals. Moreover, it provides the basis for protecting the most basic and fundamental interests of animals as rights. The current bedrock of animal welfare law is the notion of ‘unnecessary suffering’. As noted earlier, in determining whether suffering is necessary or unnecessary, the courts engage in a balancing exercise in which they weigh up the interests of the animal vs human interests. This is a weak protection: the most basic and fundamental animal interests can be overridden whenever the benefits that accrue to humans are regarded as significant or wide-felt enough. Fundamental rights, such as those contained in human rights instruments, exist precisely to serve as ‘trumps’, ‘side-constraints’ or ‘fire-walls’ to limit such utilitarian calculations and place a protective shield around the rights-holder against being sacrificed in pursuit of the overall good. Such strong forms of normative protection are particularly germane in the context of unequal power relationships, such as those between humans and animals.
There are already a number of efforts afoot to promote this paradigm shift. In 1993, the Great Ape Project was founded to advocate for fundamental legal rights for non-human great apes. In 2010, an international symposium of legal theorists, scientists and philosophers issued a ‘Declaration of Rights for Cetaceans’ which affirmed the status of cetaceans (dolphins and whales) as ‘persons’ with the rights to ‘life, liberty and wellbeing’. Five years later India’s Ministry of Environment and Forests outlawed the use of dolphins in aquatic theme parks (a move recently followed by France), declaring that ‘dolphins should be seen as “non-human persons” and as such should have their own specific rights’.
A group occupying a central space in promoting animal legal personhood is the US. based civil rights organisation the Nonhuman Rights Project (NhRP), which has been litigating on behalf of captive chimpanzees in New York State, claiming that they are unlawfully detained persons. The NhRP have rellied on an ancient common law writ known as habeas corpus which requires that a captive’s jailor must come before the court and explain why their act of imprisonment is legally justifiable.
It is still early days for the NhRP, and they have not won any of their cases, but nevertheless they have engendered at least four positive changes. First, like Toronto Pig Save, they have successfully garnered media and public attention towards the plight of animals and the complicity of our current legal arrangements in their suffering. Second, they have shifted the discourse in the legal academy about the case for animal personhood: just a few years ago, the idea would have been near universally derided, now there is at least a genuine debate about the merits of extending personhood to other animals. Third, although the NhPR has had no rulings in its favour, their last case involved a sympathetic judgement, indicating shifting attitudes in at least some of the judiciary:
“The similarities between chimpanzees and humans inspire the empathy felt for a beloved pet. Efforts to extend legal rights to chimpanzees are thus understandable; some day they may even succeed. Courts, however, are slow to embrace change, and occasionally seem reluctant to engage in broader, more inclusive interpretations of the law… As Justice Kennedy aptly observed… ‘times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress’.”
And finally, the NhRP has inspired similar litigation strategies around the world including in Argentina where, last November, following litigation modeled on the NhRP legal strategy, an Argentinian judge made legal history by granting haebeas corpus relief to Cecilia, a chimpanzee detained at Mendoza zoo. In granting the writ, Judge Maria Alejandra Mauricio held that chimpanzees are legal persons possessing fundamental rights and not ‘objects to be exposed like a work of art created by humans’. Cecilia was subsequently released and transferred to a chimpanzee sanctuary in Brazil.
These instances obviously only represent the very early stages of attempts to move towards animal personhood. Some might object that the animals who have been identified as potential candidates for personhood are the small number of species such as great apes and cetaceans that are regarded as having ‘human-like intelligence’. Rather than challenging the arbitrary moral hierarchies that humans construct, the fixation on a small number of ‘almost human’ species reinforces the notion that a being’s moral worth and intelligence is determined by its cognitive proximity to human beings. However, it is clear that such interventions are tactics aimed at targeting the weakest links in the speciesist chain: exposing forms of animal exploitation that reveal the greatest double standards and creating openings for more equalitarian and inclusive directions in the future. To use the metaphor of NhRP president Steven Wise, these strategies are aimed at removing the first bricks in the great legal wall that separates humans from the rest of sentient creation.
Be the Change
Some might see groups like Toronto Pig Save and the Nonhuman Rights Project as mischief-makers. I think a better way of seeing them, to use Martin Luther King’s phrase, is as ‘nonviolent gadflies’ creating ‘the kind of tension in society’ that is necessary so that individuals can ‘rise from the bondage of myths and half-truths to the unfettered realm of creative analysis and objective appraisal’. When it comes to nonhuman animals, society suffers from a profound moral dissonance. On the one hand, our legal systems claim to protect animals against ‘unnecessary suffering’ but permit profound suffering through the confinement, insemination, mutation, transportation and killing of billions of animals every year in order to satisfy trivial human interests. Legislators claim to value animals, but our legal systems place them in a category best suited in inanimate objects. We claim to care about animals whilst paying others to inflict huge suffering on them. We love dogs but treat animals that are equally ‘intelligent’ (even on an anthropocentric measure) appallingly.
Toronto Pig Save and the NhRP have both creatively engaged the law in order to bring these tensions to the surface. Whilst their work is critical, it is clear that meaningful change will not come about primarily through the law. The law is primarily a reactive institution: it reflects and upholds the moral norms and economic relations in society. As ethicist Christine Korsgaard puts it ‘Their (animals) legal status as property is the direct correlate of their moral status as mere means”. If we want real change in society, if we want other sentient creatures to cease to be treated like inanimate objects, we are going to have to stop paying for them to be treated so, and build an effective social movement that campaigns for their rights. There would have been no pigs in the slaughter trucks were the public not creating the demand. There would be no chimpanzees in zoos or dolphins and whales in aquariums were people not paying the entrance fees. In fact, as millions of vegans are proving every day, there is no need to fund any exploitation of animals to live decent, richly fulfilling lives. The law has a role to play, but change begins with us.