Animal Rights and the Property Problem: A Response to Davy

Josh C. Gellers

University of North Florida

I applaud Ben Davy for approaching the animal rights issue from an unusual angle. Most theories of animal rights are under-inclusive and logically incoherent—they apply to domesticated pets but not wild animals, mammals but not insects, those who feel pain but not those without a nervous system, etc. While rights of nature theorizing continues to develop in intellectually exciting ways thanks to creative jurisprudence and scholarship, the animal rights literature has remained stale for decades. Occasionally innovative interventions (i.e., Bradshaw’s conception of animals as property owners) are habitually drowned out by the hegemonic focus on using science to prove animals possess human-like qualities (see the work of the Sentience Institute and the Nonhuman Rights Project), an agenda alleged to offer the strongest possible basis for anointing them legitimate rights bearers. Yet, I find Davy’s direction ultimately unsatisfying for reasons specified below. My response proceeds down two paths—one that questions the merits of the assumptions upon which ecological emancipation is based and one that accepts those assumptions but demonstrates how the concept is flawed, nonetheless.

First, the very idea that nature or animals or other nonhumans amount to “mere things” instead of persons is a decidedly Western social construction. This legacy of René Descartes separates the entire cognizable world into subjects worthy of moral concern and objects devoid of moral significance that can be owned as property. But other cultures take a broader view that does not rely on such rigid ontological distinctions. For instance, the Lakota treat certain natural entities as kin and Confucian virtue ethics counsels that nonhumans may be morally meaningful because of the role they play in human relationships. Thus, for many non-Western societies there is no clean line between persons and things. Accepting the plurality of ontologies that exists renders any discussion about property suspect (or at least only applicable to some cultural contexts). Further, as David Gunkel notes, there are some types of nonhumans, such as robots, that pose a direct challenge to binary categorization altogether. What do we do there?

Second, supposing we accept the Western view that something is either a person or a thing (and only things can be property), there are still issues with the suggestion that the emancipation of (admittedly only some) animals triggers compensation and/or reparations. To begin, the very notion of compensation for expropriation reifies the subordinate moral status that this proposed solution is intended to overcome. Granting former property owners a monetary award implies that they deserve to be made whole because they have “lost” something. But this suggestion ignores the legitimacy of the manner in which the property was initially obtained and interprets ecological emancipation as a kind of harm suffered by the property owners. As Davy rightfully notes, the abolition of slavery in the United States did not result in universal compensation for slave owners, as Black people were no longer considered “articles of merchandise” but rather rights bearing natural persons. (As a side note, ecological emancipation would not constitute a regulatory taking because, at least in terms of the author’s hypothetical Mammalian Act, the government would not be seizing private property for public use.) The reparations side of the equation presents some difficulties as well, as it is unclear what just remuneration for mammals might involve. Extending reparations would be morally appropriate, but it would require knowing what mammalian interests are and how they could be fulfilled so as to provide corrective justice. At present, scholars remained divided over how to define interests and what role interests should play in determining the moral status of nonhumans (see indicative examples by Becca Franks et. al and Katie McShane).

Animal rights theorizing is in desperate need of novel thinking. Davy leads us in this direction by introducing some practical issues associated with liberating members of the more-than-human world from their anthropogenic shackles. But the idea of ecological emancipation and its attendant concerns with compensation and reparations may not be adequate for the emergence of a moral mission that traverses national and societal boundaries. More hope resides in the nascent movement to recognize animals as part of nature, as envisioned by Brian Favre and observed recently in Panama and Ecuador, which moves closer towards realizing an ontologically complex and cross-culturally resonant basis for the extension of moral and legal rights to nonhumans. Given the severity of the climate crisis, the ongoing biodiversity crisis, and the existential crisis posed by emerging technologies, humanity needs to recalibrate its moral compass if we wish to co-create a more benevolent future for the Earth and all its vulnerable inhabitants.

Joshua C. Gellers is a Professor at the University of North Florida.

Suggested Citation: Joshua C. Gellers, ‘Animal Rights and the Property Problem: A Response to Davy’, IACL-AIDC Blog (22 February 2024) Animal Rights and the Property Problem: A Response to Davy — IACL-IADC Blog (blog-iacl-aidc.org)