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John Adenitire, The Rule of Law for All Sentient Animals, 35 Can. J.L. & Juris. 1 (2022).

Those wanting to brush up on “the rule of law,” recall the differences amongst leading rule of law theorists, or consider the equality implications of classic definitions of what the rule of law is and is said to protect, need only consult John Adenitire’s The Rule of Law for All Sentient Animals published last year in the Canadian Journal of Law & Jurisprudence. In it, Adenitire argues that prevailing accounts of the rule of law are exclusionary of beings with “lesser” rational capacities (both human and nonhuman), and he charts a more inclusive path. Through these contributions, Adenitire also convinces his reader as to the need for any rule of law theory to explicitly protect animals.

In a single article, Adenitire concisely illuminates key rule of law theories—formal, procedural, substantive—through focusing on their exposition by influential proponents. Adenitire takes Lon Fuller, Jeremy Waldron, and T.R.S. Allan as illustrative theorists of the formal, procedural, and substantive iterations respectively. Adenitire’s intent is to show how each excludes animals from their purview by privileging what he terms “active legal subjects” (P. 1), understood as those able to apprehend and adhere to the law and those who can be sanctioned for any violations.

Adenitire notes that such privileging relates to how the rule of law is conceptualized to begin with, typically as an undercurrent to a legal system where human subjects are able to be guided by the law in their actions. A primary catalyst of such conceptualizations is the moral desire to protect human dignity. (Pp. 7, 10-11.) Yet, this preferred conceptualization forgets about “passive legal subjects” (P. 3), those who aren’t able to grasp what the law says or follow its dictates at the requisite presumed rational level. Both humans with as yet undeveloped or atypical cognitive abilities and non-human animals fall into this category.

Adenitire claims that an exclusion of passive legal subjects cannot be justified if we agree that the central preoccupation of the rule of law is (1) to curb arbitrary power (whether exercised by public or private actors), which certainly burdens the lives of animals, and (2) to help the victims of such power, a status for which sentient animals clearly qualify. (P. 2.) He explains that the benefit of the rule of law in the human realm, no matter if theorized through the formal, procedural, or substantive account, is not compromised by framing the rule of law through this “arbitrary power” axis and thus extending its protective remit to nonhuman animals. To the contrary, including animals would better respect rule of law ideals that object to arbitrary power no matter which convention version (formal, procedural, substantive) is preferred. (P. 4.) Adenitire proficiently summarizes each account to show how their principal terms can feasibly apply to “passive legal subjects,” including non-human animals.

Adenitire’s argument connects with current debates about whether human rights and equality are imperilled if courts or legislatures recognize animal rights. Some believe that human dignity is compromised by seeing dignity in nonhuman others or otherwise valuing such beings to a greater extent than the law current does. This “dehumanization of humans by elevating animals” concern is a misguided view that has nonetheless vexed fundamental rights litigation for animals, as Adenitire discusses.1 (Pp. 17-18.)

In challenging the taken-for-granted premise that the rule of law is tethered to human agency, responsibility, and dignity, Adenitire asks us to rethink our commitment to human rights like equality and dignity in more inclusive ways. (Pp. 17-18.) Instead of continuing to valorize active legal subjects and tolerate human passive legal subjects on the basis of the latter’s human dignity, Adenitire offers sentience as a better “foundation” for the type of being the rule of law should protect. (P. 18.) Sentience (or “the capacity to subjectively experience reality and, consequently, the capacity to experience things as beneficial or harmful” [P. 13]) is what qualifies (sentient) animals to advance justice-based claims vis-à-vis humans and to matter morally to us.

Although not part of his central argument regarding the need to create “an inclusive rule of law” (P. 18), Adenitire observes that a substantive vision of the rule of law will help animals the most. (Pp. 3, 23, 26, 29.) It is this account that would call for the invalidation of food systems and other industries predicated on animals as tradeable and killable commodities. Adenitire refrains from advocating for one vision over another, but emphasizes that those who promote substantive accounts of the rule of law—including all substantive equality advocates and most readers here—cannot continue to ignore animals if they see animals as “subjects of morality and justice.” (P. 13.)

It is no answer to counter that animals do not presently qualify as legal subjects, Adenitire notes. Subjecthood for animals, Adenitire believes, is properly based on existing legal recognition of animal sentience (however symbolic or weak) and in the identification of certain anti-cruelty protections as rights-conferring for animals (again, despite how weak and distant from fundamental rights to life and bodily integrity anti-cruelty protections are). (Pp. 15-16.)

It is not clear that Adenitire has to prove animals’ existing legal subjecthood to make the rule of law extension to animals compelling, especially on a substantive account. One could also question Adenitire’s exclusion of non-sentient animals and probe his acknowledgement that humans and animals ultimately do not need equal treatment even after anthropocentric premises are removed from rule of law accounts. (Pp. 13, 18.) Whether such baselines for the argument enact their own unjustified exclusions and limit our vision for what the rule of law protects is an open question. We can also, of course, wonder about the further valorization of the rule of law for animals or anyone, given the concept’s colonial entrenchment.

But these are all (important) questions for another day. The immense value in Adenitire’s work lies in how it shows us a sustainable connection between the foundational concept of the rule of law and questions of animal justice. Readers will be enriched by how he reviews the leading accounts of the concept of the rule of law, highlighting their exclusionary reason-based premises, and through his compelling alternative for each account, where he details the level of legal protection that would flow under each account. With this work, Adenitire also constructively adds to the growing number of pathways that scholars and advocates are pursuing to create legal systems that are much more responsive to animals.

Amidst catastrophic animal-based food systems and other industries occasioning unfathomable suffering and biodiversity loss, Adenitire gives us a very helpful nutshell with the conceptual tools to understand for ourselves and explain to others why “a legal system cannot be indifferent to the well-being of non-human animals” (P. 4)—if we believe in the rule of law.

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  1. As I have recently argued, it was the downfall of the Nonhuman Rights Project’s recent milestone hearing at the New York Court of Appeals concerning Happy, a female elephant living by herself at the Bronx Zoo.
Cite as: Maneesha Deckha, Excluding Animals: A Rule of Law Violation, JOTWELL (June 1, 2023) (reviewing John Adenitire, The Rule of Law for All Sentient Animals, 35 Can. J.L. & Juris. 1 (2022)), https://equality.jotwell.com/excluding-animals-a-rule-of-law-violation/.