Rationality Revisited: A Critique of Kymlicka and Donaldson's Animal Legal Subjectivity

In their 2011 book Zoopolis Sue Donaldson and Will Kymlicka present their political theory of animal rights. In a recent essay, Animals and the Frontiers of Citizenship, the authors respond to the main criticisms of that theory. They argue that when we think about animal protection, we do so from a presupposed relationship between man and animal: for example, how can we improve animal welfare within the meat industry. When animals take part in our society however, we ought, according to the authors, to recognise them as such and think about how we can enter into a relationship with animals that is mutually beneficial. They believe this is possible by granting domesticated animals citizenship, including the corresponding civil rights that citizenship entails. Their main argument supporting this thesis is that domesticated animals are fully dependent on humans in their everyday life, and therefore share a society with them. On these grounds they deserve to be fully recognised as an integral member of that society, and consequently they deserve civil rights. However noble I think the authors’ project is, in this essay I will criticise one of their presuppositions: that animals are subjects of law, or the mere idea that it is possible for them to possess rights, since, as the authors indicate, citizenship is a collection of civil rights. Traditionally, legal subjectivity entails the possibility to possess legal rights and duties. According to Kymlicka and Donaldson we can clearly identify certain rights and duties that rest on domesticated animals. Therefore we ought to recognise them as the legal subjects they are. However, the Supreme Court of the State of New York recently ruled, in a matter concerning animal legal subjectivity, that in order to posses a duty one has to be able to reflect upon it, a capacity animals would lack. Therefore they cannot be considered to be subjects of law. The authors would however argue that this traditional conception of legal subjectivity, as grounded in reason, is inadequate because it does not cover the entire range of human diversity. If we were to use the traditional conception, children and persons with disabilities would not be considered as legal subjects. However, in practice, they are considered as such. An adequate conception of legal subjectivity would then also allow for it to be attributed to domesticated animals. However, as I will show, the traditional conception does cover the entire range of human diversity, as it is not grounded in the factual exercise of reason but the principle capacity to reflect reasonably. This is a fundamental distinction the authors fail to recognise and which is made apparent by recent human rights conventions, such as The UN Convention on the Rights of Persons with Disabilities.
Keywords animal rights  legal theory  disability theory  legal subjectivity  Kymlicka  Donaldson  animal legal subjectivity
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