Rochelle Duhaime Animal Law ... animal rights ... animal welfare.

These are seemingly innocuous words at first reading, but in reality, they are deeply divisive words.

Such has always been the case throughout history as humankind grappled with other "might-versus-right" issues, such as slavery, emancipation, the labor movement and more in the contexts of the then-current cultural and anthropological forces of the times. The law, of course, as both agent of change and reactive to change, as either expressive of societal mores or, as more commonly referenced - as the extant norms, must sway to these winds, albeit ever so slowly.

Dillard Carter, ADLFA thoughtful piece by professor Dillard Carter1, Empathy with Animals: A litmus test for legal person-hood?, 19 Animal Law Review 1 (2012), summarized by the editors of the law journal Animal Law (published by the Center for Animal Law Studies, Lewis and Clark Law School at Portland, Oregon), as follows:

"This is one of the fundamental questions that frame the study
of animal law: To what extent should nonhuman animals be
considered legal persons? Of course, this question presupposes
that we share or can arrive at a common and stable conception
of legal personhood. In fact, there are a variety of conceptions of
legal personhood. This Introduction will explore one in particular
and, in the process, question the extent to which simply being
born Homo sapiens satisfies the potentially complex and
demanding requirements of being a legal person. This argument
will lead us to reframe animal law a bit and question
whether we protect animals by focusing on their status or
whether we are better off focusing on the status of human and
not so much who we are but who, as legal persons that constitute
legalities, we ought to be."

While recognising the lines in the sand around animal sentience, the legal status of animals, and legal person hood, the author shifts the discussion to a slightly more uncomfortable footing. He offers a paradigm shift in the model and invites the reader to reflect instead on human legal status and a consequential access to legal status based on merit. Merit, in his professed view, to be synonymous with empathy; empathy as being explicitly necessary for survival of the species in the larger environmental context. And, to loop back to animal rights, empathy as expressly being the capacity to emote for the most vulnerable in that larger environmental context of «shared vulnerability»: those beings without protection under the law.

From his article:

"Can a society of purely self-regarding persons comprise a state and occupy institutions, which recognize and respond to universal vulnerability, when the persons themselves cannot?”

"“An ideal legal system ... could not arbitrarily draw a line between humans and animals....”

Are these standard issue entries you would need for all my inputs to have a homogenized «look-and-feel»? "

Under his design, the legal system and set of normative rules are adequate. However, access to the law would be limited to persons of empathy the «ideal legal persons», who in turn would of course change the traditional legal system into an «ideal legal system».


The article is thought provoking, well researched and referenced and the premise is at first blush more inclusive than the more divisive legal arguments usually put forth by legal scholars. These thoughts did cross my mind though, what if there are few empathetic «ideal legal persons»? Is today's insanely consumerism culture (the antithesis of empathy) irreversible? I think not. And thank you Professor Dillard for taking my mind on a journey to match the feelings in my heart.



  • NOTE 1: Visiting Scholar, Vulnerability and Human Condition Initiative, Feminism and Legal Theory Project, Emory University School of Law.