Vol. 17 No. 1 (January, 2007) pp.15-24
BRUTE FORCE: ANIMAL POLICE AND THE CHALLENGE OF CRUELTY, by Arnold Arluke. West Lafayette, IN: Purdue University Press, 2004. 170pp. Cloth $24.95. ISBN: 1557533504.
PEOPLE, PROPERTY, OR PETS? by Marc D. Hauser, Fiery Cushman, and Matthew Kamen, (eds). West Lafayette, IN: Purdue University Press, 2006. 230 pp. Cloth. $24.95. ISBN: 1557533806.
ANIMAL RIGHTS: CURRENT DEBATES AND NEW DIRECTIONS, by Cass R. Sunstein and Martha C. Nussbaum (eds). New York: Oxford University Press, 2004. 338 pp. Cloth. $29.95. ISBN: 0195152174. Paper (2005). $16.95/£9.99. ISBN: 0195305108.
Reviewed by Susan Hunter and Richard A. Brisbin, Jr., Department of Political Science, West Virginia University. Susan.Hunter [at] mail.wvu.edu, Richard.Brisbin [at] mail.wvu.edu.
In the decades since Peter Singer (1975) published a call for “animal liberation,” an extensive literature about the rights of animals has appeared (see Kistler 2000, 2004). Also, in state and local political contexts proposed legislation to define egregious animal cruelty as a felony, enforce dog breed bans, and regulate biomedical research employing animals has generated considerable political controversy. Much of the scholarship and political debate has focused on the status and humane treatment of companion animals or pets, with commercial animal husbandry and the management of wildlife and fisheries receiving less attention from political scientists and legal scholars. Additionally, almost all of the scholarly discussion of animals has exhibited a prescriptive bent.
PEOPLE, PROPERTY, OR PETS? is among a series of books published by Purdue University Press that address the meaning, status, and welfare of animals in contemporary America. It is a book that will guide the uninitiated reader interested in animal law and rights. ANIMAL RIGHTS contains chapters that provide more rigorously developed scholarly perspectives about the normative and legal dimensions of the status of animals. In contrast, BRUTE FORCE attends to the bureaucratic enforcement of animal protection laws
The volume edited by Marc Hauser, Fiery Cushman, and Matthew Kamen offers competing prescriptive assessments of the status of animals in sections entitled “Philosophy,” “Law,” Cognitive Science,” “Biomedical Research,” and “Animal Care.” This arrangement of essays, Hauser states in his preface, starts from the proposition “that questions concerning the legal status of animals start from questions concerning our obligations to other species” (p.xi). Although the essays in each section draw on the literature of diverse disciplines to define human obligations toward animals, each author reveals a concern about the legal [*16] constitution of animals – especially the question of whether animals are chattel property or whether they possess some modicum of rights. To examine these issues, in each section there are three or four short essays offering competing perspectives about human obligations to animals. Written by students in Hauser’s seminar in Evolutionary Ethics at Harvard University, they are followed by commentaries by academics from law (Gary Franchione), animal science (Temple Grandin), cognitive science (Lewis Petrinovich), and philosophy (Bernard Rollin).
These essays vary in quality, but overall they are very readable and provide an excellent overview of the many perspectives held about animals in the United States. Each section includes at least two pro animal essays, at least one dissenting essay, and a commentary. In section one, Ariel Simon, Derek Hass and Catie Louder provide the pro argument. All argue for a change in the moral status of animals. Hass argues for personhood, Simon presents a case for shades of gray rather than only categories of person or property, and Louder bases his argument on the consequences and lack of moral agency. In contrast, Neha Jadeja contends that animals must be property because we could not eat them or use them in research if they were given “personhood.” He further argues that animals do not have rights because they are not fully autonomous, but he offers little evidence for this claim. Bernard Rollin concludes this section by pointing out that animals are self-aware and feel pain, which are sufficient criteria for raising their moral status. He expects that increasing concern over animals will lead to improved laws, but argues that personhood is neither necessary nor likely.
Section two takes a legal perspective and questions whether animals could or should be granted legal rights. Alex Pollen and David Hambrick argue in their essays that animals should be given at least some rights. Pollen points out that possession of rights does not depend upon cognitive ability and that any criterion for possessing rights that we use for humans would be shared by at least some animals. This implies that animals share sufficient characteristics with humans to have a similar set of rights. Hambrick sees legal rights as procedural tools which are the only way in which animals can be protected and therefore argues that these rights must be extended to animals. As with the other sections, there is a dissenting essay. Ian Tomb argues against rights for animals because they do not live in moral communities. Moral communities provide the basis for rights and extend these rights to their members, he argues. Communities can ban any behavior they regard as immoral, so animals can be protected if humans in their moral communities want to extend that protection. Helene Landemore, in this section, quite correctly points out the problems incurred by giving animals rights or even declaring them persons. She notes that regardless of legal changes, humans will continue to make decisions for and about animals. She concludes by arguing for passive rights for animals and moral obligations imposed upon humans. Gary Francione concludes this section by arguing that exploitation of animals is not morally justifiable because they are “persons” rather than resources. He uses the term “person” to indicate creatures with [*17] morally significant interests, and further argues that humans have created false conflicts between human and animal interests to justify our actions. His fairly radical conclusion is that if we take animal interests seriously we have to, as he says, “put our vegetables where our mouths are and start acting on the moral principles we profess to accept.”
Authors in section three base their arguments on cognitive science and ask whether animals have cognitive capacities. Two students provide arguments for cognitive abilities, one dissents, and an academic scholar provides the summary essay. Fiery Cushman and Robbie Silverman offer the pro cognitive ability arguments. Cushman contends that animals feel pain and experience empathy so have a moral sense. However only primates can sense moral rights and wrongs and so are the only animals deserving rights. Silverman writes that all animals are self-aware and have desires and goals. This argument suggests that all animals that experience consciousness should have rights. The dissenter, Justin Junge contends that animals do not have abstract thought, therefore cannot suffer. Suffering to Junge requires memories of pain suffered, an awareness that can be incurred, and a desire to avoid pain. Without this capacity to suffer, animals do not need to be protected. Lewis Petrinovich takes an evolutionary perspective. He argues that it is logical to protect the interests of humans over other species, but humans who accept pets also accept moral responsibilities toward those pets. This argument does not require any cognitive capabilities on the part of animals but juxtaposes cognitive ability with moral sense in humans.
Section four takes a biomedical perspective. Frances Chen argues that experiments on animals are morally repugnant, provide certain pain for only potential long-term benefit, often involve flawed research designs, and are used when alternatives are available. Experiments are morally wrong and unnecessary. Jonathan Flombaum contends that we cannot have property rights in genetic structure. We all own our own genetic structure and we believe all organisms own their own genetic structure in that same sense. This does not mean we cannot kill and/or eat animals but that we do not have the right to affect genetic structure. Lisa Guttentag provides one of the dissenting essays in this section, contending that animals lack consciousness of pain and empathy so cannot suffer. She argues that we need animal research and thus contends research is humane because the animals do not suffer. Virginia Vance agrees that animals do not suffer in the way humans do and are not autonomous, so there is no moral problem with using them in experiments. Vance further argues that animals benefit from research and suggests a cost benefit analysis should be used to ensure that research does provide sufficient benefit. Andrew Rowan summarizes the arguments and contends that changing the status of animals would not solve the problem. There is no funding for research to measure stress and distress in animals; there is no US Department of Agriculture (USDA) guide for measuring stress or pain; and it is impossible to evaluate these costs to animals used in research. Rowan concludes that we could certainly reduce our use of animals, but there are no conclusive data to indicate that we must. [*18] This section is perhaps the most troubling, because the arguments for or against using animals in research appear to provide factual arguments: either animals feel pain or they do not. As Rowan notes, there is no evidence to fully support either argument. None of the writers use veterinary evidence, which increasingly suggests that animals feel pain in levels comparable to humans.
The essays in section five are based on personal experiences of farmers and veterinarians and are more pragmatic than previous sections. Matt Kamen expresses concern over the economic impacts of changing the status of animals from property to something else. Animals are food, he argues. Human morality may require that we ban practices that are particularly cruel but we should look as ourselves as predators and animals as prey – a status that does not require property designation. Rianna Stefanakis and Allen Yancy offer veterinary perspectives. Stefanakis contends that animals feel pain comparable to humans and thus should have rights commensurable with their feelings. She advocates guardianship to protect animal rights. Yancy pays little attention to the question of pain and argues against personhood for animals and in favor of biomedical research, which he claims is needed. If animals were considered persons, Yancy contends, there could be legal repercussions for veterinarians. He does not oppose extending third party standing to sue on behalf of animals but says that it cannot include harm such as mice being fed live to snakes. Temple Grandin begins her summary by pointing out that animals do not understand the concept of property, so they are not abused by being considered property. However, Grandin argues that animals do experience fear and pain so need protection. We need to change human attitudes about animals, and as Grandin notes, if changing rhetoric also changes human attitudes and behaviors, we should consider it.
The conclusion of this text is that the challenge for lawmakers is to bring policy into accord with public sentiments. Whether granting personhood or rights to animals will improve their lot is not clear from these essays. A few of the writers appear unconcerned about the welfare of animals, but most agree that animals feel pain, experience fear, and deserve some protection. Public sentiment is in favor of improved animal welfare legislation, but public sentiment also supports eating animals, using them in biomedical research, and using them for entertainment. The challenge really seems to be to balance human and animal interests while retaining public support.
Cass Sunstein and Martha Nussbaum’s ANIMAL RIGHTS also is a collection of essays. The authors include academic animal rights scholars and distinguished law, philosophy, and animal behavior professors. Pitched toward a more academic audience, the book is divided into two sections. Part I covers the current debates, while Part II focuses on new directions.
In Part I, chapters by Gary Francione and Richard Epstein offer contrasting views on the issue of animals as property. Francione refers to our moral schizophrenia in supporting animal welfare laws while allowing the raising [*19] and slaughter of millions of animals every year under horrendous conditions. He contends that their status as property allows such treatment and the economic interests and even human pleasure will always win out over the interests of non-persons. Epstein counters that animals are indeed property. They are assets that have allowed human progress. He also argues that many animals are better off due to human ownership. Although we could treat animals better than we do, it can only be under the aegis of protection of a lesser species rather than on the basis of parity with humans. Epstein concludes that we should provide greater protection to social animals than to non-social animals because social animals suffer from the loss of interaction with others of their own and other species.
Richard Posner agrees with Epstein that freedom would not benefit most animals, and also agrees with the concept of separating animals into categories that determine the degree to which they receive protection. Steven Wise suggests that the level of autonomy, using a precautionary principle because we do not really know the degree to which animals could be autonomous, should be used to place animals into categories that offer different levels of rights. Lesley Rogers and Gisela Kaplan write in the same vein, agreeing that science does not give us sufficient information to draw the line accurately. Rather than categories of rights, they argue that animals could be placed in the same category as minor children, requiring owners to protect and provide care for their charges. Peter Singer agrees that certain categories of animals should have rights, but sentience, which gives animals interests, should be the dividing line between those animals with rights and those without. Singer includes all animals in his discussion.
Cora Diamond, on the other hand, feels that we really only want to give rights to animals we care about. It is the personal relationship to an animal or species that provides the impetus for rights discussions. She argues that our feelings are important, and they should be the guide. James Rachels seems to agree, contending that general consensus should be our best guide to legislation.
In this section, authors discussed autonomy, ability to feel pain, sentience, and the human/animal relationship as potential criteria for giving rights or personhood to animals. There is a general agreement that all animals are not equal, but they do not all agree that animals deserve rights or personhood. Steven Wise and Gary Francione seem to argue for a classification akin to personhood for some species. However, others contend that we simply need to provide greater protection to some animals, while continuing their classification as property.
In Part II, David Wolfson and Mariann Sullivan discuss the dichotomy between farm animals and pets and point out that ninety eight percent of all animals still need basic protection, particularly in the US and Canada. This mirrors Francione’s arguments in Part I. Wolfson and Sullivan, however argue for extending basic protections to farm animals rather than giving rights or personhood to any group of animals. This is an incremental approach that is also taken by David Favre and Cass Sunstein. Favre says we should not demand radical change but should consider political reality. He contends [*20] that laws and property are human constructs so can be adjusted. Indeed, he argues, current animal laws prove that some rights and property status can co-exist. He suggests, as did Rogers and Kaplan in Part I, that animals could be considered self-owned as children are, while having guardians appointed to protect their interests. These guardians could sue for damages on behalf of a harmed animal. Sunstein makes a very similar argument but takes it further. His argument is that current laws are basically symbolic because they are rarely enforced. Because no one has standing to sue under current animal welfare laws, this is something that Congress should address. He points out that Congress has given legal standing to corporations, and they can also do so for animals. This would also assist the USDA which lacks the resources to investigate and prosecute even cases over which they currently have jurisdiction.
Catherine MacKinnon takes a very different approach, one that is based on the oppression of women in history. She asks why animals should measure up to human standards before they count, and argues that this has been the problem for women as well. Women are not “like men,” nor are animals “like humans.” She does not offer any solutions to this dilemma.
Elizabeth Anderson compares the arguments from animal welfare, animal rights, and environmentalism. Animal welfare proponents use capacity to suffer as their benchmark and provide arguments based largely upon sympathy. Animal rights advocates use capacity for subjecthood as their benchmark and base their arguments on respect for animals. Environmentalists use the stability of the ecosystem as the basis for protecting species and rely upon an awe of nature in their arguments. These are often conflicting values. Anderson suggests a rational attitude theory of value and a balancing of the three perspectives. She alone among these writers suggests that rights come with responsibilities and compares a rat in the house that does not attempt to accommodate the interests of humans, to the dog that accepts responsibility for following human rules. Rats, in her argument, may have a right to not be tortured but do not have a right to live in the house.
The final chapter by Martha Nussbaum also compares perspectives: the contractarian view presented by John Rawls, the utilitarian approach of Peter Singer, and the capabilities approach used by Wise and others. She concludes that the capabilities approach is the most useful in deciding how to treat animals. She contends that we are not obligated to care for all animals – just those under our control – but that all animals should be treated with dignity. Her conclusions are that it is not necessary to mistreat even research and food animals, we need national laws to require that all animals be treated with dignity, and that international accords are also needed to require respectful treatment of all animals.
Although this book is largely philosophical in its treatment of the legal and moral status of animals, several chapters do discuss political and legal changes that could drastically improve the lives of animals without giving them rights or personhood. The book acknowledges that human interests, sympathies, and needs must be taken [*21] into account. This is a book political decision makers should read. It concludes with a short bibliographic essay that provides further guidance to those wishing to pursue issues in greater depth.
In contrast to the normative and prescriptive arguments that predominate in the Hauser, Cushman, and Kamen and the Sunstein and Nussbaum volumes, Arnold Arluke’s BRUTE FORCE offers an ethnographic study of the enforcement of animal law. It therefore addresses what Sunstein calls the “enforcement gap” or the difference between the intentions and the implementation of animal rights and animal protection laws. Based on six months of interviews and observations, it provides a “thick description” of how Massachusetts humane officers enforce animal control and animal cruelty laws. Although Arluke does not reference the literature on street-level bureaucracy or local politics and only occasionally compares his findings to the literature on policing, his account of “animal police” indicates striking similarities – and a few key differences – between the humane officers and other street-level regulators.
Arluke’s first chapter focuses on the ambivalent status of humane officers. He describes how humane officers, caught between public perceptions of as “dogcatchers” and as “do-gooders,” have developed two different roles. Some officers adopt a police-oriented role. They treat their duties as “just a job” that they attempt to conduct like professional police. Checking their emotions, they practice their tasks much in the mode of law enforcement oriented urban police. Other officers consider their job to be a mission. They want to help animals through the application of humane standards of care. Most therefore display emotional reactions to the abuse of animals. Complicating these roles, Arluke finds that many officers switch between them as they practice their profession. Arluke also reports that humane officers try to differentiate themselves from animal control workers – traditional dogcatchers and shelter personnel without law enforcement powers. As Arluke observes, agencies seem to appreciate both types of officers and feel both to be important.
In the second chapter Arluke describes humane officers’ duties as largely responding to “fire alarms.” Although photographs illustrate officers conducting “patrol” style inspections of pet stores and ox pulls, most of this chapter relates how dispatchers alert officers to cruelty or abuse and how the officers respond. As in the general literature on policing, dispatchers’ attitudes, operating procedures, and interpretations of the public’s reports of cruelty have important influence on decisions to send officers with different role perceptions to address the different kinds of complaints. However, officers find that many of the complaints are “stretched” or exaggerated by dispatchers. The result is that – as with police in general – many responses to calls do not turn up evidence of legal violations, and many calls were about neighborhood disputes, sanitation problems, or other matters properly in the jurisdiction of other agencies. Arluke also notes that dispatchers generally know which officers are more likely to attempt to deal with those exaggerated calls in a way that aids animals. [*22]
Arluke then discusses how role perceptions influence how officers evaluate and act upon calls. Because of the imprecision of animal cruelty and abuse law, as with policing in general, animal officers have enormous discretion. Because of their experience and perception of their role, they effectively make policy by adopting personalized standard operational responses to categories of events. To determine a course of action, they learn to “read” the condition of animals and the behavior of their owners or controllers. They develop sensitivity to a suspect’s attitudes toward animals and the care of property, thus allowing them to categorize the moral character of the suspect. The officers additionally regard both animals and persons with suspicion, in part because they fear violent responses. Then they try to categorize the extent of law breaking and make a choice about arrests, seizures, or warnings.
Finally, Arluke depicts how officers’ conception of their role affects the decision to penalize for law breaking. Rookies are more aggressive, the police-oriented are more hardened, and the do-gooders often file charges even when the likelihood of successful prosecution is minimal. In non-malicious and borderline cruelty cases police-oriented officers often warn suspects, but the officers also report a cynical expectation that the suspect will not change his behavior toward an animal. Threats of arrest also occur, but arrest is confined to the most serious abuses and confrontations with suspects. The reason the officers reserve arrests is that they have learned prosecutors, magistrates, and trial judges often do not take animal abuse seriously. The officers’ experience reduced charges, mild penalties, continuances, and nolle pros decisions that enhances their cynicism toward the courts and reduces their desire to spend time on less serious cases of animal abuse. Do-gooders argue that the time and money abusers must expend responding to chages constitutes at least a small punishment. But regardless of their role conception, officers find an emotional reward in saving animals from abuse by means of education or threat even when no conviction occurs.
Arluke’s book consequently offers a crucial perspective that is ignored in the prescriptive calls for animal rights. If humane officers face status and bureaucratic conditions and hold role perceptions that circumscribe their enforcement efforts, and if other law enforcement personnel undercut their efforts to enforce existing animal cruelty laws, what can the definition of animals as rights-bearers really achieve? Arluke’s book implies that, without political support, budgetary resources, clear legal authority, and commitment by a range of law enforcement professionals, legalization of animal rights will be more symbolic than genuine policy mandating humane treatment of animals.
Although these volumes represent the current state of animal law research, they indicate a need for sociolegal and more politically attentive scholarship. As with the essays in PEOPLE, PROPERTY, OR PETS? and ANIMAL RIGHTS, discussion retains a prescriptive focus on the determination of legal status of animals. Even if they sometimes rely on experimental studies of animal cognition, these discussions [*23] are largely philosophical and jurisprudential. Although in many instances the essays offer noteworthy arguments about the status of animals that policymakers need to consider in the formulation of animal law and regulation, the clear implication is that the current regime fails to do justice to either animals or humans.
But, what is the contemporary practice of animal law? Why is the law apparently in need of reform? Despite its limitations, BRUTE FORCE points toward the need for empirical inquiry into an array of questions, including placement of animal issues on the policy agenda (but see Finsen and Finsen 1994; Jasper and Nelkin 1992); the politics of the formulation of animal laws (but see Allen 2005; Hunter and Brisbin 2006), policing of animals and their owners, and adjudication of disputes about animals (but see Tauber 2006). Additionally, because these topics have generated theory and empirical inquiry in other policy arenas, animal law can be readily compared to the carload of other studies of political and sociolegal behavior, conceptions of rights, interest group activity, legislation, policing, crime reporting, adjudication, and legal and political institutional development. In a nation in which dogs and cats reside in a majority of homes (American Veterinary Medical Association 2002), most people eat the products of commercial animal husbandry, and recreational hunting is an enterprise with major economic consequences, such comparisons might reveal much about whether animal law is similar to general American political practices or a unique arena of law and regulation.
Allen, Mahalley D. 2005. “Laying Down the Law? Interest Group Influence on State Adoption of Animal Cruelty Felony Laws.” 22 POLICY STUDIES JOURNAL 443-457.
American Veterinary Medical Association. 2002. U.S. PET OWNERSHIP AND DEMOGRAPHICS SOURCEBOOK. Schaumberg, IL: American Veterinary Medical Association.
Finsen, Lawrence and Susan Finsen. 1994. THE ANIMAL RIGHTS MOVEMENT IN AMERICA: FROM COMPASSION TO RESPECT. New York: Twayne Publishers.
Hunter, Susan, and Richard A. Brisbin, Jr. 2006. “Animal Welfare Laws and State Politics: What Puts a Bite in the Law?” Paper presented at the Western Political Science Association meeting, Albuquerque, NM.
Jasper, James M., and Dorothy Nelkin. 1992. THE ANIMAL RIGHTS CRUSADE: THE GROWTH OF A MORAL PROTEST. New York: The Free Press.
Kistler, John M. 2000. ANIMAL RIGHTS: A SUBJECT GUIDE, BIBLIOGRAPHY, AND INTERNET COMPANION. Westport, CT: Greenwood Press.
Kistler, John M. 2004. ANIMALS ARE THE ISSUE: LIBRARY RESOURCES ON ANIMAL ISSUES. New York: Haworth Information Press.
Singer, Peter. 1975. ANIMAL LIBERATION: A NEW ETHIC FOR OUR TREATMENT OF ANIMALS. New York: Random House. [*24]
Tauber, Steven. 2006. “The Impact of Animal Activist Group Litigation on the Outcome of Animal Welfare Cases Decided in the U.S. District Courts, 1970-2005.” Paper presented at the Law and Society Association meeting, Baltimore, MD.
© Copyright 2007 by the author, Susan Hunter and Richard A. Brisbin, Jr.