There’s a growing body of work that explores the contours of nonhuman animals and law. Just to illustrate, see previous Jotwell posts in Jurisprudence (here and here) and in Legal History. Maneesha Deckha’s article, “Vulnerability, Equality, and Animals”, brings that body of literature squarely into engagement with equality theory.
I read everything Professor Deckha writes: not because I am always on board with where her analysis takes her, but because I’m always left asking questions I hadn’t thought through before. This piece is yet one more illustration of her ability to connect unexpected dots; to press on boundaries that had not been explicitly articulated before; and to draw the reader in.
Deckha’s claim is straightforward: vulnerability discourse provides a more fruitful avenue to advance non-human animals’ interests in the law because it avoids some of the conventional traps of equality discourse. In setting up the context, Deckha adeptly presents a taxonomy and summary of traditional animal equality arguments. On the one side, she presents Peter Singer’s approach which takes as a foundation equal consideration of interests. On the other hand, she points to Tom Regan who bases his position on rights that take as their foundation the presence of an exalted set of traits. These kinds of sameness arguments have obvious limits in the legal context, where legal scholars, legislators, and courts have been slow to accept (or perhaps more accurately have not accepted) claims that nonhuman animals are “equal to” their human companions.
And so begins Deckha’s turn to vulnerability as a motivating force for advancing the legal claims of non-human animals. Deckha pays due tribute to Martha Fineman’s work. Among other contributions, Deckha’s piece provides a succinct review of the bridge from vulnerability theory as applied to humans to the starting ground where it might be extended (and boundaries pressed) to include non-human animals within its analytical frame. This extension of the literature matters because it makes non-human animals meaningful subjects of legal protection; not because of their proximity to (or sameness to) humans but rather because they live vulnerable and precarious lives. Anthropomorphizing, be gone.
The thick contribution Deckha makes in the piece is to unveil an analysis of the legal landscape for animals through the lens of vulnerability and to address head on potential criticisms of that analysis. Deckha provides a case study driven from the dissenting opinion in Reece v. City of Edmonton (2011 ABCA 238, 513 AR 177). Reece focused on the well-being of an elephant, Lucy, living in the Edmonton Valley Zoo without a companion. The heart of the claim was a dispute about whether Lucy should be moved to an elephant sanctuary in Tennessee where she would have a companion. Deckha uses the Chief Justice’s dissent as a model of how insights about animal vulnerability can inform legal decision-making with the result that non-human animals, and Lucy in this particular instance, are treated as “relational being[s] in a sanctuary rather than .. visual object[s] of commercial attraction subject to an oppressive human gaze and detailed control and surveillance …” (p. 68-69).
Deckha does not shy away from the hard question: “how can real and transgressive change happen for animals through a legal system that is deeply entrenched in the liberal humanist tradition” (p. 69)? This is, of course, part of the broader inquiry into whether law offers the potential for transformation that many equality-minded (vulnerability-minded?) scholars care about.
While our answer(s) to that question remain a work-in-progress, my recommendation on this article does not. This is a piece worth reading.