Animals as citizens

Chapter IV of Democratie voor dieren, by Erno Eskens (transleted by Rik Schraag).

When humans are born, they immediately have the status of citizen. Parents do not have to demonstrate that their newborn baby is entitled to protection rights and positive rights. Every human being is automatically granted these rights, some when they are born and some when they reach a particular age. They can only lose some of these rights when it has been demonstrated that they have severe shortcomings, e.g. because s/he has broken the law, become demented or fallen into a coma. Even so, it is not straightforward to deny anyone these rights. First of all, a court must assess the gravity of the situation. Citizens can only lose rights such as the ability to handle one’s own financial matters or travel freely after certain legal proceedings.
The revocation of rights does not take place without a struggle; procedures must be followed first. The inability to exercise particular rights has to be demonstrated beyond reasonable doubt. The court will only be able to revoke certain rights when all doubt has been removed. This still leaves citizens or their representatives the possibility to appeal against the court’s verdict. In my opinion, the entire mechanism of well-considered exclusion from legal rights may be applied equally to animals (or any imaginable living beings, including extraterrestrial life forms).
Before we exclude animals from any rights, we must assume they are entitled to all civil rights. In cases in which we have no knowledge of the nature of the animal in question – let’s assume for convenience’s sake that they are concealed behind a veil of ignorance – we should consider them as full citizens. If there is any occasion to do so, we can subsequently take certain civil rights away from them by following the relevant procedures. As with human beings, this exclusion from rights should be done through legal proceedings. When withholding rights, the court should base its decision on the letter of the law as well as an evaluation of the factual situation of the animals. It should be possible to withhold civil rights from animals if it is plausibly demonstrated to the court that the animal in question does not have any interest in certain civil rights and is incapable of exercising these rights. Curtailment of civil rights may only be possible if this has been clearly demonstrated.
Behind the ‘veil of ignorance’ (a concept by the American philosopher John Rawls which I am using in a slightly different meaning79), all living created in equal circumstances should be treated equally. Subsequently, the court will evaluate whether rights and obligations can be withheld from a particular creature. Here as well, the principle of equality applies: equal properties should result in equal rights and obligations for all living beings. If you find yourself in an equal situation and have properties that are equivalent to that of another living being, you should have the same rights. But the reverse also applies: when we take away the veil of ignorance and discover unequal properties, we can retract related rights and obligations. We can exclude animals from certain rights and obligations if they find themselves in unequal circumstances.
So how does this work in actual practice? Let’s assume a new animal has been created in a laboratory by means of synthetic biology, genetic modification or old-fashioned crossbreeding. This is not a speculative concept: new species or variants are created virtually on a daily basis.80 Or let’s assume that we discover new and unknown animal species in the South American jungle. This also happens on a daily basis. Or let’s look afresh at animals we know, so that they also appear as new species to us. In all of these scenarios, we would allow the ‘new’ animal be entitled to all civil laws and obligations for a moment. Subsequently, we should evaluate whether any excess rights and obligations have been granted.
If relevant natural interests and/or the inability to enjoy a right are lacking, we can take away rights and obligations from animals. Let’s assume, for instance, that the new animal is incapable of experiencing pain. In that case, we could exclude the animal from the right to freedom from torture. One could also withhold freedom rights from an animal if it does not seem to have any properties that indicate it has any interest in freedom. One might take away the right to habitat and property protection from animals that do not have a fixed nest or hole and that do not use any tools. If it is demonstrated that an animal has limited cognitive faculties, the right to be elected as a member of political organisations might also be withheld. One might also exempt ‘new’ animals from the obligation to uphold the law if they do not have the ability to do so. Rights and obligations can be voided if there is no evidence that the animal in question notices the difference between having and not having these rights or obligations.

I realise that my proposal to think in terms of ‘exclusion of rights’ will rub many advocates of animal rights the wrong way. Their objective is precisely to look for ways to include animals in the judicial system. Accordingly, they are continuously looking for relevant properties in animals. This is why the Australian philosopher Peter Singer places so much interest in the capability of suffering. The American philosopher Tom Regan does all he can to demonstrate that animals are the ‘subject of a life’, i.e. they have expectations and are able to remember previous experiences. The American thinker Martha Nussbaum points to the abilities and potential of animals, while others focus on their needs, specific behaviour, mental capacity, memory, affection and so on. Various criteria are used for the inclusion of animals in our judicial system. While I sympathise with the commitment of these philosophers, my view is that the burden of evidence should lie with the excluding person or organisation. Animals should only be excluded from a right or an obligation if there is evidence that this is necessary. This evidence should have a legal basis and must be demonstrated before a court. If the burden of evidence is lacking or the legislation does not provide clarity, the animal should be given the benefit of the doubt. This procedure would be more in agreement with the spirit of our legislation.
That said, my proposal is not an uncommon one. In legislation, the burden of evidence typically lies with the excluding person or body. In criminal justice, for instance, people are considered innocent until proven guilty. Their freedom rights can only be withheld if they are found guilty. Why should we use another system for animals? Why should we bar them from rights in advance and subsequently — perhaps — grant them rights again? The excluding party should be able to clearly demonstrate that the animal is not eligible for a particular right. The fact that an animal has no interest in a right is in itself insufficient reason to withhold this right. It should be demonstrated that the animal is aggrieved if it retains this right, or that this right constitutes a grave violation of the interests of other animals (including man).
The advantage of the strategy of exclusion that I am proposing here is that both legislators and courts will have to be involved in the exclusion of animals from legal rights. This should result in better treatment of animals. Legislators are forced to define actionable exclusion criteria, and the court will be able to interpret and apply these criteria in actual practice. This will force legislators to evaluate the interests of animals, while courts are given more opportunities for satisfying our basic sense of justice where animals are concerned. The use of a scenario in which animals are initially full citizens will make it possible to consider all curtailment of rights as disputable decisions. This curtailment can then be brought before the court for evaluation.
My proposal implies that people should be able to take matters to court on behalf of animals. Here, we see an analogy with the existing legislation regarding ’those unable to give informed consent’. This concerns people who are incapable of expressing their wishes, typically because they are too ill to do so or otherwise incapacitated. Friends, relatives and other parties can go to court to voice the alleged wishes of the individual in question. As far as I am concerned, this should be possible in the case of animals as well. The parties involved should be able to act as representatives of animals and express their wishes in court.
Currently, the voice of animals is not heard in court to the extent it should be. Citizens, and even animal protection organisations, are even unable to take legal action on behalf of animals. Animals do not form a party in our current legal system. Only human beings are offered the right to have their interests represented in court. Only they have claimable rights. Consequently, in actual practice, animal protectionists can only take matters to court if they themselves, as individual or organisation, have any demonstrable interest in the situation of animals. Their proper interests should be at stake. This means animal rights organisation currently have to resort to all sorts of legal tricks. People who hurt animals, they have to argue, damage ’the interests of our organisation’, because they act in against ’the objectives of our organisation as defined in our statutes’. The court will then evaluate whether the organisation has been done grave injustice. Needless to say, these organisations are far from concerned with a violation of their own interests. They are concerned with the interests of animals proper.
Why should the interests of animals not play a leading role in court? Why should a judge seriously evaluate the interests of a child in a divorce case, but not the interests of a dog involved in the same proceedings? Why should the interests of the dog not matter? And why should the dog itself not indicate with whom it wants to live if it expresses a clear preference? If the animal clearly shows signs of fear of, or aggression against, one of either persons, but not in relation to the other, would it not be asking too much to take this fact into consideration in the verdict to whom the animal is granted? Currently, the dog has no proper interests from a legal point of view, and is therefore not offered any choice. The animal is not a ‘legal subject’, to use an elegant term. That is to say, it has no vision on life and therefore no right to arrange its life according to its own discretion.
The interests of animals would be served if courts were to look into the wishes of animals and citizens were offered the possibility to defend the wishes and interests of animals. Anyone who looks out on a paddock where a lonely and neglected horse resides should be able to take matters to court to have the owner of that horse condemned. In that case, the court would not have to evaluate beforehand whether the citizen has an interest; initially, it should consider the status of the horse. After all, the animal will matter, while the identity of the defender of the animal, be it a government body, its owner or a chance passer-by, will be less relevant. It should not be possible that the interests of animals are unnecessarily violated because the person who files a case is ‘inadmissible’. Our legislation should be amended in such a way that citizens who object to a violation of animal rights can take matters to court themselves on behalf of the animals if the Public Prosecutor does not take any legal action within a fixed timeframe.
As things stand, courts can only evaluate whether the circumstances in which animals are kept meet the minimal legal requirements. Courts are not allowed to go any further. They are not allowed to protect animals from misery that is evident, but just so happens to be excluded from legislation. In fact, courts are not allowed to evaluate the interests of animals at all. After all, the legislation implies that animals do not have any interests upon which rights rest. This situation is not only harmful to animals, but also unnecessarily limits the options for judges. They should be offered the opportunity to seriously consider the interests of the animals themselves. Judges should have the possibility to evaluate whether the exclusion from a right can withstand criticism. The identity of the individual or organisation that asks the court to put a stop to unnecessary animal suffering really should not matter all that much. It is more important that courts are able to verify whether the animal concerned is rightly or wrongly excluded from particular rights.

Using a scenario in which animals are granted all citizen rights as a starting point, any violation or limitation of these rights will become verifiable and legally disputable. Needless to say, jurisprudence will come about quickly, so that it won’t be necessary to take legal action for each individual animal. After a certain period of time, it will surely become clear in which situations animals can be considered ‘equal cases’, so that it is no longer necessary to engage in legal battle over each individual case. It goes without saying that this is important to keepers of animals. Added to which, the latter are provided with the opportunity to oppose senseless and exaggerated (positive) animal rights. After all, they — just like any other citizen — can petition the court to weigh the interests of their animals against their interests as keeper of the animals. In this way, they too can resort to democratic procedures to secure their interests to the fullest extent.