City University of New York (CUNY) CUNY Academic Works Dissertations, Theses, and Capstone Projects CUNY Graduate Center 2-2021 Legal Purgatory: Why Some Animals are Neither Persons nor Property Sharisse Kanet The Graduate Center, City University of New York How does access to this work benefit ou?y Let us know! More information about this work at: https://academicworks.cuny.edu/gc_etds/4114 Discover additional works at: https://academicworks.cuny.edu This work is made publicly available by the City University of New York (CUNY). Contact: [email protected] LEGAL PURGATORY: WHY SOME ANIMALS ARE NEITHER PERSONS NOR PROPERTY by Sharisse Kanet A dissertation submitted to the Graduate Faculty in Philosophy in partial fulfillment of the requirements for the degree of Doctor of Philosophy, The City University of New York 2021 ©2020 SHARISSE KANET ALL RIGHTS RESERVED ii Legal Purgatory: Why Some Animals are Neither Persons nor Property by Sharisse Kanet This manuscript has been read and accepted for the Graduate Faculty in Philosophy in satisfaction of the dissertation requirement for the degree of Doctor of Philosophy. 09/06/2019 Steven Ross Chair of Examining Committee 09/06/2019 Nickolas Pappas Executive Officer Supervisory Committee: Steven Ross Jesse Prinz Peter Godfrey-Smith Lori Gruen THE CITY UNIVERSITY OF NEW YORK iii ABSTRACT Legal Purgatory: Why Some Animals are Neither Persons nor Property by Sharisse Kanet Advisor: Steven Ross All animals with non-borderline sentience are deserving of certain legal considerations independent of their use and relationship to human beings. That is, all sentient beings should have some rights. Given the current organization of the U.S. legal system, which divides all entities into property or persons, it is not surprising that animals are relegated to property status. I put forth a proposal to fix this whose central suggestion is that we create a third legal designation, legal patient, into which all non-person sentient animals (those which do not properly belong on either current category) would fit. These animals would receive certain limited rights, which would be implemented through legal structures already in place, such as those used in providing legal advocacy for children. iv ACKNOWLEDGEMENTS Thank you to my teachers and mentors who believed in this project, and to my committee members: Steven Ross, Peter Godfrey-Smith, and Jesse Prinz. My gratitude especially to Lori Gruen who made this work better through her thoughtful and thorough suggestions. Thank you to my mom, who did more proofreading than any sane person would, and to my husband for having faith that this would someday be completed and offering support throughout. I also owe a debt to all the lawyers I pestered over the course of the project, who were evenly split between thinking that the idea was ridiculous and wonderful. v Table of contents Chapter 1: Background and the Current State of Affairs 1 I. Introduction 1 II. Animal Treatment in Farms, Labs, and Zoos 5 III. Current Animal Protection Laws 11 IV. What to Expect in the Chapters Ahead 17 Chapter 2: Sentience matters – Animal Pain and Suffering 25 I. Nociception, Pain, and Identifying Sentience 27 A. Which Animals are Almost Certainly Sentient? 34 B. The Jury is Out on Some Animals… 37 II. Sentiocentrism: Why suffering is the right threshold 38 III. Defending Against Criticisms of Sentiocentrism 44 A. Sentiocentrism does not object to painless killing 44 B. It does not align with the values of Environmentalism 46 Chapter 3: Problematic Paradigms – Current Proposals for Addressing Animal Protections 50 I. An Animal Welfare View – Robert Garner 50 II. Animal Rights Views 57 A. Steven Wise 57 B. Gary Francione 61 III. Other Paradigms 61 A. Shelly Kagan 61 B. Sue Donaldson and Will Kymlicka 79 Chapter 4: Caught in the Middle – The Gray Space between Personhood and Property 71 I. Criminal and Civil Law 72 II. Persons vs. Property 73 III. Corporations & Fetuses as Legal Entities 76 IV. The Legal Status of Nonhuman Animals 82 A. Legislative Motivations: How We Got Here 83 B. Judicial Ambivalence: What are Animals and What Do They Deserve? 86 V. The Difference Between Protection and Right-Holding 89 VI. David Favre’s Equitable Self-Ownership 92 vi Chapter 5: Legal Patiency – Developing a New Category for Sentient Nonpersons 95 I. A Recap of the Discussion So far 95 II. Which Rights Should SNP’s Get? 97 III. Existing Legal Structures for Human Incompetents 103 IV. Incorporating SNP’s into that Structure 108 V. Bridging Welfare and Rights Views 112 Chapter 6: Application and Practice 117 I. Effects on our legal system 117 II. Reevaluating Animal Uses in Human Industry 121 III. Applications to Wild Animals 125 IV. Legally Incompetent Humans as SNP’s? 127 V. Case Studies 132 VI. Conclusion 138 References 140 vii Chapter 1: Background and the Current State of Affairs I. Introduction There is a growing agreement today that animals need more robust legal protection than they currently have. The past two centuries have seen both increased industrialization of animal use and exploitation and a slowly expanding popular concern for animal welfare. With the advent of factory farms, animal testing regulations for new products, exponential increases in the destruction of animal habitats, and so on, the situation for many animals, both domestic and wild, has been getting consistently worse, as they have been forced to pay the costs of the advancements of our modern society. The atrocities that animals under human care are currently subjected to are various and ubiquitous, from factory farms, to experimentation, to circuses, and so on. (For a review, see Beauchamp 2008.) Some of these uses of animals will be addressed in later chapters in so far as they provide examples of what changes may be necessitated by my proposal. Interestingly, the same abuses which have hurt so many have also brought issues of animal welfare to the forefront in a way they may have not been otherwise. Animal welfare legislation has been expanding in places like Norway, Germany, and Switzerland, to name just a few.1 Often times, these expansions recognize that animals have value beyond their mere instrumental value in their many present-day uses. For instance, Norway’s Animal Welfare Act states “Animals 1 This project is a work about US law; however, I will reference other countries from time to time when comparison seems useful. 1 have an intrinsic value which is irrespective of the usable value they may have for man. Animals shall be treated well and be protected from danger of unnecessary stress and strains.” (2011) In this country, some states have been making advances, for example California’s recent ban on battery cages, (The Times Editorial Board 2014) and the public appears to have begun a slow awakening to the horrors of animal cruelty inflicted on the millions and billions of mammals and birds we use for research, food, etc. This progress is heartening, and it is also insufficient. Even in countries like Norway, the ethics of animal treatment is phrased in terms of welfare, that is, in terms of improving the conditions of animals that we use, without a consideration of the underlying assumption that we may use them at all. Welfarists, such as Robert Garner, generally tend to focus on how we may use nonhuman animals without questioning whether we can use them. Another side of the debate is comprised of a varied group of people we may call animal rights activists, including Steven Wise and Gary Francione, who believe that certain animals should possess rights. What criteria make this determination, and therefore which animals get included, varies by thinker. The suggestion of giving animals rights is often accompanied by the claim that these animals should be made legal persons. Such animal rights activists are usually extraordinarily critical of animal welfare projects as perpetuating a broken system. As Tom Regan has said, “To reform injustice is to prolong injustice.” (Regan 2011, par. 3) Giving certain animals rights is a way to identify them as beings who are more than instrumentally valuable, and deserve consideration because of who they are, not how we feel about them. Other legal, philosophical, and political 2 theorists have offered suggestions, but these are either problematic for their own reasons or do not offer much by way of practical solutions. This gap can be better understood when we consider our insufficiently nuanced legal system. Our legal system acknowledges only two sorts of being: persons and property. The former are beings with rights and the latter are not. Currently all animals are legal property. Many thinkers have aimed to work on improving animals’ conditions within the confines of the property designation, trying to improve living conditions, slaughter methods, and so on. Others have argued for giving some animals the person designation. This would involve the abolition of certain animal-based practices in totem. My project aims to address this space from several angles. First, I will argue that there are fundamental flaws on both sides of this welfare/rights debate. In some ways, I think that even animal rights proponents are asking too little. In focusing on personhood for a small group of animals, as many of them do, they are leaving out many other creatures that require our moral attention. Animal welfarists are also asking too little in that they seem to ignore the important normative difference between being protected as property and having rights. Other proposals, such as Kagan’s, do nothing to address the legal questions at all. As I see it, these issues and others are all symptoms of a larger problem— the acceptance of a legal system with just the categories of persons and property.