(This is the introduction to my talk at the Eastern APA, Baltimore, 29 October, 2013).
In their 2011 book Zoopolis: A Political Theory of Animal Rights, Sue Donaldson and Will Kymlicka argue that the traditional approach by philosophers to the question of animal rights, represented notably by Peter Singer, is not just problematic: it is thoroughly beside the point. It is not a lack of information about what animals are like that causes us to deny them rights. We know perfectly well that pigs have advanced neurophysiology, just as Nahuatl engaged in ritual human sacrifice never for a moment thought that what justified this practice was a difference in brain structure between the victim and the perpetrator.
The interesting philosophical question is thus perhaps not: What are animal minds like?, for the overwhelming scientific evidence shows that in significant respects animal minds are like human minds. We already know this, and it is only the crudest utilitarianism that seems to suppose that knowing more of this, or spreading the word to more people, will be sufficient to change human ideas about the moral status of animals. The interesting question might rather be: Why, when we know what animal minds are like, do we continue to treat them as if they existed across a wide ontological gap from human beings, with all the implications for moral status that this gap is supposed to entail? Here, the answer will not come from a deeper or more precise consideration of how animals in themselves are, in their anatomy or ethology, but rather from a consideration of the way they show up as salient in society, of the role they play as social actors. In other words, the question of animal rights is not one to be resolved by the accumulation of neurophysiological data, but rather by taking seriously the political dimensions of the question.
When we do this, as Donaldson and Kymlicka argue, what immediately becomes clear is a need to shift our focus from the negative rights of animals in general –to not have this or that done to them-- to the positive rights of certain animals, rights that emerge from their particular role in a trans-species social reality. Wild animals are sovereign in their domain, and it does not fall to us to regulate it or to care for their well-being (though today the need for global environmental policy calls into question the very notion of an independent, sovereign wilderness). Domestic animals by contrast, whether pets, livestock, entertainment animals, or others, are de facto members of the polis—indeed, while Kymlicka and Donaldson do not stress this point, historically speaking a persuasive case can be made that domestication was a key driving force in the emergence of human political institutions.
For most of human history, then, there were non-human beings that were members of particular societies; and there were human beings who were excluded from these societies (as barbarians, etc.). Membership in society has historically cut across species lines—different responsibilities toward different beings were determined not exclusively in terms of species membership, but also in terms of social role. In the past several decades, we find ourselves by contrast in a peculiar and perverse situation, in which non-human animals that are intimately a part of society are produced and slaughtered en masse without any broad recognition of society’s possible duties towards them, and, at the same time, philosophers spend most of their energy arguing that if we are to recognize such duties, these will flow from a recognition of the internal features and capacities of cows, pigs, and so on. But the argument is manifestly not working. Seeing a pig operate a joystick does not, for the most part, cure even the most consistent human beings of their weakness for bacon.
This impotence to persuade, again, may have something to do with the fact that the traditional animal-rights understanding of how we assign moral worth to other creatures is fundamentally misguided. We do not first consider what sort of being a given animal is by an investigation of its anatomy and behavior, and then deduce from these considerations a list of negative duties towards it. Rather, we come to have a cluster of negative and positive duties to different creatures as a result of the role they play in our social world.
If my account seems implausible, of how animals enter into our moral universe, this may be a local symptom of a much more general limitation in our thinking about the formation of our moral commitments. Consider the problem of guilt. There is a well-known alternative genealogy, associated in particular with Nietzsche, of the rational for punishment, according to which it is not simply retribution for a moral lapse, but rather something closer to ‘payback’, to a balancing of the cosmic books by the extraction of payment in flesh. The stuff about morally good or bad deeds as the ground of punitive behavior is, Nietzsche argues, a later accrual or afterthought. Nietzsche’s broadly anti-Christian genealogy was based on a somewhat idealized conception of the heroic virtue of the Greeks; a rather more cautious account of how the Greeks really differed from us in matters of guilt and punishment was attempted more recently by Bernard Williams. In his 1993 Shame and Necessity, Williams attempts to reveal the tenuous nature of the modern moral-philosophical conviction that punishment is ‘good’ to the extent that it responds to an agent's freely chosen moral transgression. Drawing inspiration from Nietzsche's philological examination of classical Greek conceptions of justice, Williams returns to the ancient tragedians and poets in order to reconstruct, with sympathy, a picture of the ethical self that was not, in his view, grounded in modern illusions about the autonomy of human action. Williams remained focused almost exclusively upon Greek attempts to make moral sense of interactions between human beings (and also to some extent between human beings and gods).
Now what I’d like to begin to do here is to attempt to combine the project of Kymlicka and Donaldson on the one hand with that of Williams on the other, and to show both how, by considering animals as our fellow zoa politika, we are able to better appreciate some aspects of Williams’s modified Nietzschean account of the origins of our concepts of guilt and punishment; and how, conversely, by thinking about the punishment of animals as exemplifying par excellence the deeper rationale and logic of punishment in general, we are better able to appreciate the claim that our relations with animals are through and through political.
I would like to go about this immense task by focusing, first of all, briefly, on the role of animals in scientific experiments in the Royal Society of London in the late 17th century; and, second and more extensively, on a rather obscure chapter in the history of legal institutions and jurisprudence, to wit: the legal trial and punishment of animals, which were a common occurrence in Europe from roughly the 12th to the 17th centuries.