An Issue about Legal Enforcement

Suppose non-human animals have moral standing.

This is obviously a controversial supposition. My point here is not to debate it, but to treat it as a given, arguendo. If you want to debate it, I'm glad to do so at another time and in another post.

My question—and it is genuinely a question—is: how might this moral standing be reflected in the legal order of a stateless society?

At present, the state plays the role of half-hearted trustee on behalf of some non-human animals. Obviously, its doing so involves the same sorts of risks that are involved in any purportedly protective action by the state.

In a stateless society, it is often, and plausibly, suggested, property rights might well help to ensure the preservation of natural treasures like the Grand Canyon. And, even in an anarchist community with markets, these property rights could perfectly well be common. Similarly, more narrowly “environmental” concerns—effectively, battery and trespass concerns—could be aptly addressed by means of tort law.

But a crucial component of regarding non-human animals as having moral standing is denying that they are anyone's property. Clearly, though, they are most unlikely to be able to vindicate their own claims in any legal system, which means that others will need to act on their behalf. But those owners cannot, ex hypothesi, be their owners. Who might they be?

It is easy enough to imagine particular people being acknowledged in a given community as the trustees of non-human animals in that community, able to act on their behalf. But it is also, unfortunately, easy to imagine problems unavoidably associated with this sort of arrangement.

The trustees' interests would not be automatically aligned with those of the non-human animals they were expected to serve. They might easily opt to use their roles as putative protectors of the animals to advance their own.

What sorts of constraints might be built into the trustee model? What alternative models might be available? Your insights are welcome.


Kevin Carson said…
Some disjointed observations...

1) From a being's possession of moral standing and a limited set of rights, it doesn't necessarily follow that it can't be property. For example, there were legal restrictions on how harshly a slave could be punished in the antebellum south (honored mainly in the breach, I grant, but they still serve at least as evience of a legal principle).

2) Nozick proposed that nonhuman animals, unlike humans, might be treated as means--but subject to the side-constraint that some minimum degree of necessity, subject to the law of proportionality, was required to justify harmful actions against them.

3)Tucker, a Stirnerite rather than a believer in natural law, didn't believe that the law of equal liberty applied even to humans who weren't capable of asserting and defending their rights in society at large. And a child incapable of surviving on its own was, in his estimation, the property ("labor product") of the mother, with no rights of its own.

But among full members of the society of equals, he set no higher authority over the individual's judgment as to what was legitimate self-defense. Therefore, any voluntary association of individuals could undertake any action they saw as necessary for their defense, subject only to the possibility that other voluntary associations might judge their action agressive after the fact and take actions of their own. And he argued, in a particular example, that a person's neighbors might judge that his abuse or neglect of his children carried the potential for spillover effects, and that it was in their self-interest to see that the child grew up into a competent human being capable of functioning as a member of the community.
Gary Chartier said…
Thanks, Kevin, for these characteristically thoughtful observations.

I think the point about slaves is apt; I suspect that I was trying to make a conceptual point do substantive work: the kind of moral standing for which I'd want to argue would in fact involve the view that non-human animals couldn't count as property. But this point needs more support than simply a bare claim about moral standing.

I would be inclined to suggest that there is at least a tension between the claims that (1) "S has moral standing" and (2) "S is P's property." But saying more than this would require more argumentation.

The analogy with Tucker's view of children is certainly interesting. I think it would harder, obviously, to make the case that it was in general in the self-interest of the members of a particular community to protect vulnerable non-humans; but presumably a Stirnerite would have no objection in principle to their taking the protection of this or that vulnerable non-human as an objective, there being (for a Stirnerite) no objective grounds for criticizing one choice of goals over another.

In any event, whether one is a Stirnerite or not, the question remains: just what mechanisms would it make the most sense to put in place if one wanted to protect the interests of non-humans? A property-based model creates incentives for people to take care of natural treasures and to avoid environmental pollution, etc. But, while a property-based model would obviously incentivize people to act against animals' interests, a trusteeship model could also lead to abuses.

The trustee model seems to be the most obvious, but it's also clear that it could go wrong in at least two ways. The trustee might use her position to act directly counter to the interest of an animal for which she was responsible (say, by giving control over it to a slaughterhouse). Or she might abuse her position by employing it to enrich herself in a way unrelated to the welfare of the animals (say, by blocking a construction project planned by a developer, purportedly in the interests of animals but in reality in order to obtain money from another developer).

I wonder if there are alternatives.
Mike Gogulski said…
Being a lot more concerned about humans than animals, I'll confess up front I haven't thought or read much about this, but one thing I apply here is the outlawry model.

Whatever the basis is for asserting that animals have some rights or are worthy of some defense, we should be able to recognize situations in which criminal abuse is taking place -- teenagers torturing a stray cat, for instance.

When such occur, I'll advance the idea that the abusers have made themselves outlaws, at least in immediate connection to the abuse itself, and therefore at least temporarily not eligible for the same defense we would accord to non-outlaws.

To get concrete, if I saw some teens torturing a cat, I'd try to stop them, perhaps even violently. I might hesitate before the point of killing them myself, but if a prospective vigilante came along and did begin making moves to kill them, I would not act to hinder the vigilante.

Having said that, it's an ugly model, and I'd prefer something with much brighter lines.
SocialPrinciple said…
In the interest of full disclosure, I'm a vegan who does believe that non-human animals have moral standing.

That said,

1) You mention, in your example of possible abuses, a trustee giving control over animal's interests to a slaughterhouse. I wonder if the alternative is a "advocate" model, where anyone could take the tort claims of non-human animals to an adjudicator. As the advocate wouldn't be a "property-holder" for the animal, they could not transfer their trustee role to an animal industry. It would then be the adjudicator's responsibility to ensure that the advocate is acting in the interests of the animals.

2) The analogy to child abuse seems useful. Whatever mechanism an anarchy developed to protect children (and the mentally handicapped, ect.) from abuse, would also be applicable to animals.

3) Without getting into the details here, I'm convinced by the large body of work arguing that moral standing and property status are incompatible. As I'm sure was the case with slavery, whatever restrictions are place on how one uses "sentient property" fail to give the protection required of a rights-holder(see Tom Regan or Gary Francione). The same could be said for being treated as a means. (I actually found Nozick's "Kantianism for humans, utilitarianism for animals" fairly arbitrary, as much as I appreciate his claim that killing animal for food likely does not justify whatever nominal benefits it gives to humans.)
quasibill said…
I'm not sure any sort of legal fiction is necessary - there are always standards that regulate the use of property, and I think the best analogy might tend to come from the pollution arena. A neighbor is allowed to burn wood, given a virtually Crusoe-like world. In NYC, however, it is unlikely to ever be acceptable for many reasons.

As others have mentioned, the externalities of mis-treating animals could easily be recognized by a society that is vigilant. Public nuisance common law principles could provide some basis for a private individual to vindicate a public interest against the use of property. Although I don't the issue of "moving to the nuisance" would be as much of an issue in an anarchist society.

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