Animals as Legal Beings: Contesting Anthropocentric Legal Orders

In 2022, the high court for the state of New York heard a case alleging that an Elephant named Happy should be able to challenge her captivity in the Bronx Zoo. It was a watershed moment in animal law for an animal to have the right to contest her detention squarely before a court of last resort, and although a majority of the court ultimately held that Happy was not a "person" entitled to challenge her confinement, the case has attracted international attention and two judges on the court wrote powerful dissents (Marceau & Fernandez, 2022). Judge Rivera went so far as to say that "a gilded cage is still a cage" and to summarize what she viewed as a missed opportunity by a majority of the court: "We are here presented with an opportunity to affirm our own humanity by committing ourselves to the promise of freedom for a living being with the characteristics displayed by Happy" (Nonhuman Rts. Project, Inc. v. Breheny, 2022).In Animals as Legal Beings, leading critical animal studies scholar Maneesha Deckha provides an important critique of the reasoning underlying this dissent and the approach to litigating that it represents. Deckha cautions against prioritizing or celebrating the human-like traits and characteristics of nonhumans, astutely pointing readers to the considerable colonial and liberal baggage underlying some such thinking. Deckha's book promises in the subtitle to contest "anthropocentric legal orders," including those approaches to animal law that emphasize a duality between those beings who are closest to humans and others who are not. Such approaches to litigation, she argues, center the human, define the nonhuman by their proximity to human persons, and in the process overlook and deny the value of animality.Once exposed to Deckha's carefully researched and far-reaching thinking, it becomes difficult to overlook the anthropocentrism that underlies many arguments in support of greater animal rights. For example, in assuring readers that granting Happy rights would not release the flood gates of animal litigation, Judge Rivera was quick to explain that rights would only apply to those animals "with advanced cognitive skills, who display self-determinative behavior" (Nonhuman Rts. Project, Inc. v. Breheny, 2022, at 630–631). There are constant assurances from lawyers and judges, Deckha points out, that the law ought to only bother with (or should at least start with) the most human-like animals. But this reification of advanced cognitive skills or other human capacities is, according to Deckha, part of the "social construction and ongoing cultural maintenance of the human animal divide" (p. 6). Deckha is not the first to make this point, but her eloquent analysis is more detailed than prior writers in this area, and her claim that such advocacy could do more harm than good is the kind of provocation that is necessary for a still nascent field like animal law.According to this line of thought, it is time to move beyond the artificial binaries that have long defined the field of animal law. The traditional approach to animal law has been to recognize that animals will either be relegated to the status of property, with no rights beyond a sofa, or celebrated as legal persons. Deckha is not simply critical of existing legal orders but rather uses her own legal expertise to develop a "new legal subjectivity for animals oriented toward respecting animals for what they are—rather than for their proximity to idealized versions of humanness" (p. 6). The legal status that Deckha proposes is what she calls "beingness." Deckha has emerged as a highly respected legal scholar, in part, because of her characteristically exhaustive research and carefully defined claims. Her exposition of the meaning of beingness as a new legal status is no exception, and this book engages with a vast range of academic literature, including legal scholarship, postcolonialism, humanism, and feminism. Navigating the five substantive chapters of this book is not a light read, but the payoff is a framework for understanding nonhumans as beings deserving of legal status on their own terms, rather than linked to their human-like traits.To make her case, Deckha proceeds in two parts. First, she spends three chapters unpacking what is wrong with both the property and the personhood legal paradigms. In the second half of the book, she makes the affirmative case for her new form of legal status that will, she claims, "undercut the traditional account" of who deserves protection under the law (p. 121). The critique of the property status of animals is thorough and well done, but breaks less new ground than other parts of the book. Here, building on the work of scholars like Gary Francione, Deckha forces her reader to revisit familiar ideas such as the notion that "property is inherently exploitive" (p. 121). The book also provides a foundation for better appreciating some of the critiques of carceral logics that have emerged in the animal studies field (Gruen & Marceau, 2022). Scholars and lawyers have defended the use of criminal prosecutions as a central feature of animal law, but Deckha emphasizes the way that the animal cruelty laws have been written and enforced in a colonizing manner (p. 44). Quite often, she points out, the laws exempt from criminal opprobrium conduct that is profitable or enjoyed by dominant culture (p. 75). By contrast, the law enforces prohibitions on certain uses of animals as a means of civilizing certain cultures. In this way, animal fighting or sexual contact with an animal is criminalized and vigorously pursued. By contrast, sexual contact done for profit (semen extraction or artificial insemination, for example), is celebrated as efficient and necessary rather than cast as felonious.Deckha's critique of legal arguments that center personhood is likely to become a canonic reading in animal law, whether one agrees or disagrees with her conclusions. Other scholars, including Will Kymlicka and Claire Kim, among others, have taken aim at the human-centered nature of a personhood debate. Yet Deckha's work here is uniquely deliberate and deserves to be treated as a field-marking critique both for its depth and the originality of the literature drawn upon to substantiate the critiques. Deckha challenges the notion that rejecting a property conception of animals leads inexorably to the conclusion that animals must be regarded as legal persons (p. 86). In fact, she worries that by arguing for personhood for those who are sufficiently similar to humans (what she calls the "sameness logic," p. 93), the suffering of other animals will remain "legally invisible" (p. 87) and "cultural attitudes" about the appropriateness of subordinating animals will be reinforced (p. 93).The research and discussion in the first part of the book will be of interest to anyone looking to understand the present and historic legal landscape for animals, but the central innovation of the book is Deckha's effort to carve out a new legal category for animals as beings. The term "being"—though free from most (though perhaps not all) overt anthropocentric baggage—is not a self-executing law reform project (Fernandez, 2021). For the project to have practical impact, then, commentators and courts must both use the term "being" to indicate nonproperty status and use it in the nonanthropocentric way that Deckha prescribes. This is no small task; indeed, Deckha seems to acknowledge that changing the terminology will not "magically erase" the hurdles animals face in law and policy (p. 173). An animal could be called a being and still treated as property in the eyes of the law, or one could seek more advanced status for animals as beings in a manner that prioritizes their intelligence or autonomy. Moreover, as Deckha is quick to concede, animals have been recognized as beings in some countries, but this has had little material effect on the actual lives of animals.A challenge for any new legal concept in a system of precedent and within the conservative confines of human law is the very fact of its newness. Deckha recognizes that a new term will lack the familiarity and obvious function of a term like personhood. Yet the goal of divorcing animal law from both property and anthropocentrism is worthy, and Deckha's project unquestionably advances the discourse in legal studies by forcing readers to engage with postcolonial, feminist, and critical animal studies work, which are likely less familiar to many animal lawyers. The bulk of Part II of the book is an effort to define the constitutive elements of beingness, which Deckha defines as embodiment, relationality, and vulnerability, concepts that will be familiar to readers who have studied the ecofeminist critiques of animal rights work. The interaction of these critical terms is meant to facilitate a legal status wherein animals are regarded as deserving of respect and value for their own sake (because they are "breathing," she says at one point, seemingly breaking from the notion of pain or sentience as marking the insuperable line) and not solely in proportion to how similar they are to humans. (p. 96; urging a recognition of legal status that does not "bear the imprint of the hierarchical stratifications").As a longtime admirer of feminist philosopher and animal scholar Lori Gruen's work, I was naturally drawn to Deckha's conclusion. Gruen and others have cautioned against exalting reason and rationality as we evaluate or think about the ethics of our interactions with animals. Deckha takes this conceptual insight and calls for a practical "orientation in law" that recognizes them as relational and vulnerable beings (p. 117). In this way, her project is designed to "undercut the traditional notion of who counts in law" (p. 121). One might fairly ask whether this shift in terminology from person to being truly decenters the humans who enact, enforce, and judge laws. But a reader sympathetic to the arguments being made will no doubt respond that while a shift in terminology is not sufficient, it is necessary for legal progress given the concerns she raises with the dominant conceptions of personhood.One might also question whether reducing the comparisons to human beings will truly benefit nonhuman beings. Is it even possible to avoid the analogies and comparisons across species? Are the persons who write, enact, and enforce laws capable of imagining a legal system that radically decenters them? And if not, how will such a legal system emerge from them? Bénédicte Boisseron (2018) has posited that even analogies to slavery or anti-Black racism are inevitable and unavoidable when we consider the problem of animal treatment. Boisseron urges that instead of trying to eradicate these comparisons, more should be done to recognize their limits and to make such analogies more thoughtful and decolonized. Perhaps we ask too much if we hope for the system of human laws to stop analogizing to human capacities.On the other hand, Deckha would clarify that she never aspires to end all analogies, and she does not suggest that humans are nonrelational or not vulnerable. The book, instead, seeks to reorient the legal landscape away from its anthropocentric moorings. It is not a project in perfecting our vocabulary or legal systems. She is a realist, and her goals likely involve the long-term project of slowly dismantling colonial, human-centered advocacy.We would all benefit from meditating on the harms that flow from our instrumental analogies to humans. Advocacy that centers on sameness has created uncomfortable dissonance for those of us who support the work of organizations like the Nonhuman Rights Project. For example, I remember distinctly the first time I watched the award-winning film Unlocking the Cage, which documents the litigation of the Nonhuman Rights Project, and the uncomfortableness I felt when the film highlights the advocacy on behalf of a particular chimpanzee. The film's narrator starts by showing footage intended to shock the audience, including images of a chimpanzee engaging in martial arts with his "owner." The audience sneers along with the narrator at the ridiculousness of confining an animal for martial arts. Fast forward and the film takes one into the litigation strategy of the Nonhuman Rights Project, where we are shown images of the legal team watching intently as scientists demonstrate the capacity of chimpanzees to learn human sign language in a lab. Their ability to learn human sign language is the sort of legal fact, we are assured, that will help win these cases—they are just like us! This line of logic has always struck me as unhelpful because over the course of a few minutes the audience is provoked to laugh at the idea of a primate doing karate and then simultaneously celebrate the same species engaging in the unnatural act of human language. It is a legal whiplash that Deckha's project seeks to put behind us.We can't expect this book to fundamentally dismantle the anthropocentrism that dominates our legal system, but perhaps it will at least help expose these subtle ironies and incongruities that have tended to define some views of the personhood approach to legal advocacy.