Non-Human Rights: The Drawbacks of Legal Subjectivity

Contemporary human-animal relations are characterised by unprecedented rates of animal cruelty, exploitation, instrumentalization, suffering, slaughter and extinction— all of which are continuing to rise alongside the ongoing anthropocentric pursuit of economic growth and development. The sheer magnitude of nonhuman animals that are killed by animal-use industries each year (the food industry alone kills more than 286,172 animals per minute) is made more disturbing by the normative methods employed by these industries.  For example, standard agricultural practices that are legally sanctioned in Australia include mutilation in the form of tail-docking, beak trimming, branding, teeth clipping, slicing off pieces of skin, desexing, castration and de-horning without local anaesthetic or pain relief. Additionally, it is legally acceptable for farm animals to be permanently confined in sheds and cages without access to natural light or space to lie down, to be artificially inseminated, robbed of their children and mothers, and to be continually subjected to the forced administration of antibiotics. Legal subjectivity plays a role in facilitating these mass-scale injustices by classifying nonhuman animals as mere legal ‘property’. 

Subjectivity can be theorised as a conceptual scheme that involves making a categorical ‘person/nonperson distinction’ to rationalise the classification of entities as either subjects or objects of the law. This subject/object dichotomy creates entrenched moral hierarchies of worth by dictating which lives are worthy of legal visibility and significance and thus, which entities have access to legal rights and their correlative protection. Everyone outside of the subject classification is damned to the legal category of ‘property’, to be used for the benefit of those who meet the anthropocentric criteria of ‘subject’. In light of this, the animal rights project seeks to enhance protection and respect for nonhuman animals thorough the abolishment of their property status and legal recognition of their fundamental rights. It pursues these aims through calls to recognise animals as legal persons and thus, as capable of being subjects to which legal rights attach and can be enforced.

Although this approach has laudable intentions, extending humanistic personhood status to nonhuman animals falls short of disrupting the problematic anthropocentric assumptions imbedded within the classical rights paradigm and Western jurisprudence more broadly, as it fails to accept nonhuman animals on nonhuman terms. Legal personhood is grounded in human exceptionalism and necessarily relies upon a construction of the nonhuman animal as humanity’s ‘Other’. This Othering perpetuates cultural narratives around humanness as ‘morally valuable’ and animality as ‘inferior’, generating self-legitimising notions of human superiority in respect of fabricated human-animal differences. As such, attempting to extend legal subjectivity to nonhuman animals reinforces anthropocentric species hierarchies by advantaging cognitively proximate animals deemed ‘human-enough’ (such as primates), and reinforcing exclusion of the vast majority deemed less ‘human-like’ (particularly those most vulnerable to industry exploitation such as farm and laboratory animals) from the realm of personhood.

In seeking widespread animal justice, the drawbacks of legal subjectivity reveal an urgent need for us to turn our minds to more meaningful foundations for rights-attribution that radically reconceptualise human-animal relations and address the problematic power-asymmetries entrenched within law.