The Feminist “Third Way”: Bypassing Animal Reform Law’s Personhood/Property Debate in Maneesha Deckha’s “Fifty Years of Taking Exception to Human Exceptionalism: The Feminist-Inspired Theoretical Diversification of Animal Law Amidst Enduring Themes”
By: Rachel De Graaf, Lewis & Clark Law School
For more on this topic, see Maneesha’s article in issue 46:1 of the Dalhousie Law Journal.
Maneesha Deckha’s “Fifty Years of Taking Exception to Human Exceptionalism: The Feminist-Inspired Theoretical Diversification of Animal Law Amidst Enduring Themes,”1 recently published in Dalhousie Law Journal’s special symposium volume 46(1), surveys the developmental course of Animal Reform Law (“ARL”) in English-speaking Canada over the past fifty years. Deckha elucidates the academic discourse that has grappled with formulating the most effective legal model to prompt positive change for animals. She demonstrates that recent feminist-inspired contributions have produced alternative legal frameworks that seek to displace human exceptionalism and anthropocentrism. The feminist contributions sidestep the personhood-property debate that is characteristic of earlier ARL discourse and carve out a “third way” that takes refuge in neither the personhood nor the property camp. This blog post summarizes these contributions.
The Personhood-Property Dilemma
The personhood-property debate has stalled momentum in ARL. Canadian law categorizes animals as property, and the personhood-property debate centres on whether reform should work within this categorization or seek to attain legal personhood for animals. Working within the property status would allow for welfarist changes aimed at improving the living conditions of animals. While such reforms are feasible in the current legal and political climate, they do not prevent new modes of animal oppression because they do not disrupt the current system. To eradicate this system of animal oppression, some ARL scholars have theorized that the law must change to view animals as rights-bearing legal subjects. That is, animals must obtain legal personhood. However, such a drastic change is unattainable in the current legal atmosphere.2 Focus on this personhood-property dilemma in ARL distracts from possible alternative paths to animal-friendly legal reform.
The Feminist “Third Way”
Over the last twenty years, feminist theory has featured heavily in ARL reactions to the personhood-property debate. A mix of liberal, ecofeminist, postcolonial, and posthumanist strands of feminist analysis have produced alternative paths toward animal-friendly legal reform. Deckha articulates such feminist contributions, which tackle head-on ARL’s concern with sameness arguments that favour honourary humans—namely apes, cetaceans, and elephants. Feminist scholars have attempted to erase human benchmarks, instead highlighting alternative principles that should underlie the legal framework that reflects, defines, and structures the relationship between animals and humans. These feminist models are predicated on theories of capabilities, human duties, and social membership. They are not interested in attaining personhood for animals, but rather attempt to avoid using the human sameness logic and anthropocentrism that colour the personhood-property conversation. Shifting focus away from what makes animals like humans opens the door to more inclusive reform.
I) Capabilities Theory
The capabilities approach seeks to observe human development and to foster human flourishing by enabling people to carry out the functions that are important to human beings, such as play, rest, and companionship. In the context of ARL, capabilities theory prompts the question: what do animals need to flourish and thrive? It is not a matter of which practices cause the least harm but of which conditions are conducive to a dignified life. The elements of a dignified life will vary from being to being and from individual to individual. The capabilities approach that emphasizes dignity does not assimilate dignity and rights, nor does it seek to disturb animals’ legal classification as property. In this way, it sidesteps the personhood-property debate.
Some feminist scholars have noted limits to the dignities approach to capabilities theory, instead proffering an approach focused on vulnerability. This vulnerability model, termed “Equal Protection of Animals,” borrows from the concept of American “Equal Protection,” which discourages drawing distinctions between individuals based on differences that do not impact governmental objectives. Here, vulnerability refers to the changing needs of individuals during their lifetime, and a legal system that accounts for such fluid needs would necessarily be oriented around providing concrete means of meeting these needs. The vulnerability model acknowledges that animals, like humans, can be harmed. It acknowledges that current legal norms enable humans to commodify animals, thereby exacerbating their vulnerable state. Furthermore, this approach declines to grant animals who have more human-like capacities greater protections. Rather, it posits that the law should account for the basic capabilities of all sentient beings, and in this way, it firmly integrates American “Equal Protection” into the capabilities model.
II) The Duties-Based Model
Other feminist scholars have theorized an end to animal exploitation not by emphasizing proposed animal rights, but by emphasizing humans’ duty to care for animals. Scholars who subscribe to this orientation hold that even if the property status of animals is abolished, animals will not necessarily be protected from human exploitation. Imposing positive duties on humans to respect animals’ autonomy would ensure more expansive protection. Such a conferral of duties would not require the legal recognition of animal personhood.
The duties-based model questions the basis of human assumptions that they can rightly and justifiably cause harm to animals. As a result, sameness arguments and human benchmarks fall to the wayside. Proponents of the duties-based model do not assume that sentience is a prerequisite for care, as do many proponents of the capabilities approach. Drawing such lines—and employing anthropocentric reasoning to determine which animals matter more—disregards the imbricated nature of life on earth and the diversity found therein.
III) The Labour Model and Social Membership
A rights-favouring pathway has emerged over the past decade. Some feminist scholars have avoided the personhood-property dilemma by focusing heavily on animal rights. They justify such rights by pointing to animals’ innate moral worth and the family and labour contributions that they make to society. Scholars first proposed social membership rights in the context of companion animals but have since extended them to animals used for labour, that is, animals used for farming and research. Recognizing animals used for labour as “workers” in a social sense could enable recognition of the rights that attend worker status, thereby fostering a cooperative mindset in humans.
Some are critical of the labour model due to its inseverable link to capitalism and the associated fixation on mass output. Additionally, some proponents of the social membership model are alive to the possibility that such reasoning may assume that animals used for labour consent to their position as labourers when, in reality, it is impossible to know whether or not they consent to this role. However, they maintain that certain animal labour may foster animals’ ability to flourish. They argue that labour rights would entitle animals to certain protections by addressing issues such as working conditions and life after retirement.
Deckha’s own postcolonial ecofeminist work in ARL casts a critical eye on the pride of place that the Canadian legal system gives to reason. The Canadian legal system employs the human benchmark of complex reasoning in order to dictate who deserves legal recognition and protection. Emphasizing reason so heavily makes it difficult to account for the diversity of animals. To counteract the exclusionary effects of such a benchmark, Deckha proposes the legal subjectivity of “beingness” for animals, which would provide protection by accounting for animals’ embodiment, vulnerability, and relationality. In her book, Animals as Legal Beings: Contesting Anthropocentric Legal Orders,3 Deckha expounds the alternative of beingness to personhood and property.
- Maneesha Deckha, “Fifty Years of Taking Exception to Human Exceptionalism: The Feminist-Inspired Theoretical Diversification of Animal Law Amidst Enduring Themes” (2023) 46:1 Dal LJ, online: <digitalcommons.schulichlaw.dal.ca/cgi/viewcontent.cgi?article=2220&context=dlj> [perma.cc/EHC2-U7UK].
- Will Kymlicka, “Social Membership: Animal Law Beyond the Property/Personhood Impasse” (2017) 40:1 Dal LJ 123, at 124-125, online:<digitalcommons.schulichlaw.dal.ca/cgi/viewcontent.cgi?article=2087&context=dlj> [perma.cc/8DHS-K839].
- Maneesha Deckha, Animals as Legal Beings: Contesting Anthropocentric Legal Orders (Toronto: University of Toronto Press, 2021).