Civilized people versus everyone else

Paradoxically, recognizing the singular position of humankind as associated with the Anthropocene label means we must question this special position. We remember that it was not long ago that a different line was drawn between “them” and “us,” say between us the “civilized people” and them the “savages.”

For instance, between 1879 and 1935, the population of Basel was entertained with so-called “Völkerschauen” (ethnological expositions, but literally “people shows”) at Basel Zoo. In these presentations, non-Europeans were shown wearing traditional clothing in front of crafted huts, with their tools, etc. At the time, these shows drew more visitors to the zoo than the animals did. The organizers of the “Völkerschauen” were usually animal dealers and zoo directors. The showcased people were often recruited from Sudan, the same region where most African zoo and circus animals were captured. The organizers made sure that the exhibited individuals couldn’t speak any European languages so that verbal communication between visitors and exhibits was impossible. Births and babies were welcomed as major attractions. The newspaper Basler Nachrichten of June 18, 1887 reported: “In front of their huts, several brown figures crouch half-naked, strongly reminiscent of ape species in their physical development, in this environment and this drapery.”

This leisure pursuit of not so long ago is just one example of the European public placing “savages” on a par with wild animals rather than humans.

Shifting the legal limits?

A reappraisal of the “Völkerschauen reveals not only the perceived gap between Europeans and “primitive” people eighty years ago, but also illustrates how dynamically our concept of human dignity has developed in recent decades. A public exhibition of humans like this would be unthinkable in Europe today; it would be prohibited by law or declared in violation of human rights by the courts. This leads us to the most important juridical element that cements the legal divide and the associated legal hierarchy, namely juridical rights: human beings are granted rights, animals are not.

Dare we hope and expect that in another eighty years we will recall with the same disconcertment a historical practice of captivity and killing of animals in zoos, circuses, slaughterhouses and experimental laboratories, a practice that would have been banned for violating the liberties and rights of animals? This would require the recognition of the subjective rights of animals. Subjective rights, because of their excessive substance, and in particular the indeterminacy of obligations resulting from them, offer greater protection than the concrete and selective obligations under the objective right regarding animal welfare now established by law.

Animal rights can be constituted as a juridical figure in accordance with the system. We should remember that not only indigenous peoples (some individuals of whom were displayed at Basel Zoo), but also the unpropertied, women, children, foreigners, and so on were originally not considered legally competent. Over time, however, the rights community has been extended in stages. Seen in this light, against the backdrop of the volatility of the human-animal boundary, non-human living beings in principle could be recognized as “(legal) persons.” However, this step raises new questions. Which animals would they be: all sentient animals? Only apes and marine mammals? And what rights do they have to be granted: protection against torture, a right to life?

Legalizing violence against animals

In Western industrialized societies, industrialized production has made animal-derived foods ridiculously cheap. The average spending by a European household for food in 2012 was only 13 percent, while in the 1950s one-third to a half of household income was spent on food. Average European consumers demand cheap products with certain characteristics. For example, in Switzerland (as in other European countries), the male chicks of laying hens are killed immediately after hatching because they are not marketable for meat. Ruedi Zweifel, director of Aviforum, the center of excellence of the Swiss poultry industry in Zollikofen, says, “The visual aspect is decisive […] The carcass of today’s roosters does not meet consumers’ expectations. It is not heart-shaped, but pointed.” (Markus Hofmann, “Das kurze Leben der Legehenne,” Neue Zürcher Zeitung, March 23, 2013) Newly hatched Swiss cockerels are usually “homogenized,” in other words shredded, which is expressly permitted by the Swiss Animal Protection Ordinance, one of the strictest regulations in the world. The same happens in Germany, according to the relevant EU regulation under the heading “Immediate maceration of the entire animal.” In this country, 50 million cockerels are shredded every year. The chick homogenization regulation is just one of the examples of how the law enables and consolidates the exploitation, discrimination, and culling of animals. [1]

 Liberating animals by legal means

Conversely, the law also has the potential to help combat and stop the exploitation, discrimination and culling of animals. The welfare of animals, their needs and possibly their rights are not only a matter of social justice, but also of global justice. The key challenges we face when dealing with animals are global in nature: sustainability, climate, species extinction, poverty and malnutrition – all of them global problems. The animal-processing industry (food and pharmaceuticals) is a global one. Trade in animals and animal products is global. For example, one state cannot single-handedly improve standards for cage rearing or for animal testing because the affected industries can evade strict regulation by relocating. If individual states try to keep these economically relevant industries in the country by means of an appealing legal environment, there is a danger of a downward spiral of standards at the expense of animal welfare. Ultimately, international law influences the national options for animal-related measures. The World Trade Organization (WTO) free trade agreements restrict the possibility of import bans on goods manufactured in ways that are cruel to animals. For example, the WTO arbitration panel recently declared certain aspects of the EU import ban on sealskin products to be unlawful, so the EU needs to adapt these regulations. The consequence of all this is that legal rules to improve animal welfare will only be effective if they have global validity.

Parallel drivers of legal developments

The evolution of law depends not only upon actual content, but also on other factors and actors. Even at this level, parallels between human and animal protection can be discovered and possibly used in legal policies. Drivers of legal developments are, firstly, non-material factors: ideals, beliefs and principles, as well as interests, preferences, habits and, finally, scientific knowledge. Secondly, there are the material factors: economic incentives, path dependence, interdependence, globalization and location competition. The key actors are the legislative institutions (for international law, primarily national governments), civil society and industry. Today, it is commonplace that reforms can only be realized through the joint effort of these groups of actors. 

The Anthropocene and the animal turn

Freedom and rights didn’t just appear from nowhere, nor were they given freely to the underprivileged by the elite. Instead, respect for human rights was fought and won by the disenfranchised and the enslaved themselves by building on the intellectual groundwork of philosophers, state theorists and legal scholars – against the establishment and the ruling culture. Of course, animal rights are different in that they can never be claimed by those affected themselves with legal arguments, but the same applies to children and most oppressed groups of people as well; they are usually dependent on professional support.

In order not to reinvent the wheel, the animal rights debate should take up the arguments already formulated with regard to human rights and, if necessary, adapt them. Sociological and economic conditions, the factors for success and the development inhibitors of human rights discourse and human rights practice should also be taken into account. The risks, but also the opportunities of the animal welfare and animal rights movement could thus be more accurately explored and contrasted with the obvious destructive power of the human species.

[1] Editor’s note: A new technology could make the killing of male chicks unnecessary in the future. When it will be useable in German hatcheries is currently not clear, but politicians are aiming for 1 January 2019 (as of May 2018).