Stepping Back From The Precipice: Should We Be Seeking To Protect “Every Living Creature"?

On May 13, 2002, an Illinois appellate court took the extraordinary step of declaring a factual allegiance to one of the broadest definitions of "animal" to be found in any cruelty law in the nation. At the time, the state's Humane Care For Animals Act (510 ILCS 70) defined "animal" as "every living creature, domestic or wild, but does not include man". Section 16(c)(1). Subsequent to challenge, an Illinois review court, in People v. Shanklin, 769 N.E. 2d 547 (Ill. App. 2002), then actually applied the definition to a criminal defendant's acts of cruelty to an animal "regardless of the type of animal", a step that seems to mark an appropriate point at which the animal welfare movement, being largely responsible for implementing such a definition in the first place, may now wish to momentarily pause and reconsider what such a holding does to both its goals and its progress towards them.

Shanklin seems to have set a path for applying quasi-scientific terminology that brooks no logical obstacle to protecting each and every ant and worm within the geographical boundaries of the entire state of Illinois. In a world in which trial courts are now unblinkingly upholding cruelty convictions for killing a goldfish (State v. Garcia, 3 Misc. 3d 699, 777 N.Y.S. 2d 846 (2004 N.Y. slip op.)), the time seems overripe for imposing some self-restraint in effectuating workable animal welfare, restraint that may be made meaningful by starting with a bracing dose of biological reality.

Since a good way to confront law bordering on the nonsensical is simply with more law that has some slightly greater modicum of sense, there could not be a more perfect bedtime story to illustrate to lawyers the looming anxieties that Shanklin brings to animal welfare's dreams than LeBlanc v. Hayes, 827 So. 2d 611 (La. App. 2002). LeBlanc embodies within its four short pages nearly every specter that Shanklin both too casually presupposes and too blithely ignores.

The case's protagonist, LeBlanc, is a hunter who uses hunting dogs to hunt and kill rabbits. Its antagonist, Hayes, is a farmer who uses bait fish to trap and kill crawfish which he farms on his crawfish farm in order to sell to people to eat. Hunter LeBlanc hunts near Farmer Hayes' farm. When Hayes utilizes some poison to kill the ants that are ruining the bait fish that he uses to kill his crawfish, LeBlanc's dog, who comes on to the farm and eats the poison-laced fish, dies as a result. The tort case, in which LeBlanc sues Hayes for the untimely loss of his dog, calmly details an orgy of death that puts even the grittiest Sopranos episode to shame: Hayes is deliberately killing ants, fish, and crayfish, and indirectly both killing dogs and protecting rabbits. LeBlanc is deliberately killing rabbits, and indirectly both killing fish and protecting dogs. Hayes' crayfish and LeBlanc's dogs are deliberately killing fish and inadvertently killing ants, while the dogs in particular are also deliberately killing rabbits. No creature comes out completely unscathed, especially the poor ants and rabbits, the welfare of which no one (in this case anyway) seems to give a whit about by any measure.

In brooding over the particular variety of poison that Hayes used, the Court's specific legal holdings in LeBlanc ignore the majority of animals altogether, and instead seek to reconcile concerns for the landowner's property interests with those of harm to the physical environment. The case's facts, however, trumpet our society's recognition and acceptance of an unshakable truth: that all sorts of animals die on a regular basis for all sorts of biological, social, and cultural reasons, not the least of which is that we need them to. That animals die and that humans work – often eagerly – to kill them are historical and prehistorical facts of life on which Shanklin turns its back but which LeBlanc dourly accepts. Any animal's life is, naturally, a vicious one. Farmers farm them; hunters hunt them; people eat them; toxins invade them; hunger shadows them; their physical environment strains them; their organic environment exploits them; and other animals predate them. The natural world is, by definition and by necessity, a world in which life terminates, and the careless and intentional acts of other living things in trying to keep their own selves alive are regularly the cause. Regardless of the "cruel" nature of their acts or not, humans are part of the natural world, and laws such as the one that Shanklin champions – a law that effectively prohibits all intentional killing whatsoever – are unsophisticated fantasies that deny the very real role which humans have evolved from and into, participate in, require to exist, and are defined by as "living creatures" themselves.

In distinction, the social role that humans have artificially carved out for themselves – in tempering their physical need to live off the lives of others with their moral need to feel somewhat responsible for doing so – is as the owners of all other creatures. Human societies have developed to the point they are at today by treating non-human "things" as personal properties to be possessed, conveyed, utilized, and controlled, and have granted themselves (both in their public guise as the state and in their private guise as individuals), a variety of technical property rights in animals specifically for each person to respect and enforce against the other. A third case, also decided in the same year as Shanklin and LeBlanc, Johnson v. Center for Animal Care and Control, Inc., 192 Misc. 2d 210, 745 N.Y.S.2d 890 (2002 N.Y. slip op.), quoted the U.S. Supreme Court in accepting the animals-as-property designation, with no apology or compunction, as a historically necessary state of affairs:

"Property in dogs is of an imperfect or qualified nature and they may be subjected to peculiar and drastic police regulations by the state without depriving their owners of any federal right." Nicchia v. People of the State of New York, 254 U.S. 228, 231 (1920). Dogs hold their lives at the will of the legislature, are subject to the police power of the state, and ‘might be destroyed or otherwise dealt with, as in the judgment of the legislature is necessary for the protection of its citizens.' Sentell v. New Orleans & C.R. Co., 166 U.S. 698 (1897). Here, the defendant seeks only to neuter these animals. However, legislatively mandated actions of an even more drastic nature have been endorsed by our courts. Thus, a statute authorizing the destruction of all untagged dogs found outside their enclosures, even with notice of their ownership, was held to be a valid police regulation. Id. Blair v. DuMond, 280 A.D. 1021, 117 N.Y.S.2d 23 (3d Dept. 1952) (authorizing peace officer to kill on sight any dog at large in violation of a curfew order)."

As one reflection of the vast ability we have developed to manipulate and control large parts of our external environment, it is a truism that, not just dogs, but all animals hold their lives at the will of the legislature, are subject to the police power of the state, and might be destroyed or "dealt with as necessary" for the protection of the citizenry – ants, fish, and rabbits alike. A law that criminalizes the intentional destruction of "every living creature" would paralyze the most basic human social activities just as surely as a law that prohibits eating, or walking around, or sleeping indoors. It isn't just that applying the law of Shanklin to the facts of LeBlanc would have everybody in that sordid little affair in jail in an instant for the horrific murders of innumerable ants, fish, crawfish, rabbits, and dogs. It is not just the liberty rights and ownership rights of an unlucky few that would be impaired. It is the very industries of agriculture, hunting, farming, recreation, and construction on which humans like LeBlanc and Hayes themselves rely that would be eviscerated once we try to strain the microcosm of all social and biological relations that LeBlanc represents through the ridiculous sieve that Shanklin extends.

Even worse, true animal welfare (in the sense of the welfare of all animals) would be as retarded as it would be advanced by rigorous application of a rule such as in Shanklin: for each ant saved, some crawfish's next meal must be placed in jeopardy, and for each crawfish released from captivity in a pond, some dog must go hungry. Yes, the rule in Shanklin merely substitutes one animal's problem for another's. Yes, the rule in Shanklin turns a dangerously blind eye away from the relativistic nature of law, the fact that every law in some way impacts another, such that until we begin to select which animal should be more protected, the protection of all starts to sound as nonsensical as the protection of none. More importantly, however, is that the rule in Shanklin ignorantly casts its gaze away from our millennia-long agreed upon reliance on "owning" some pieces of the world to the exclusion of other pieces – and it does so at a legal price. Unless and until we commit to dismantling all of our property and contract laws as well, the protection of all animals both as property and as objects of contract saves "animals" only at the expense of destroying the concept of "welfare" itself.

The cognitive scientist Daniel Dennett, in his book "Kinds of Minds", dreamily imagined a "charmed circle" within which we might magically be able to place all creatures finally recognized to be deserving of our moral and legal protection. Welfare activists who embrace definitions such as that found in Shanklin, rather than deal with the messier and stickier divisions among animals proffered by evolutionary biology, do so because they want Dennett's charmed circle created and expanded – by being codified as law. Forget science; what is the harm, they muse, in simply legislating out an enormous circle that encompasses all entities, "every living creature" regardless of taxonomic type, or economic utility, or evolutionary history, or biological interaction?

Theodore Geisel, in his book "The Sneetches", has already answered one form of that question, and, a little less dreamily, explained the inherent absurdity in such an expansion: rules protecting "those with stars on their bellies" as well as "those with none upon thars" eventually reveals that the broadest type of protection is often no more than a trap for the logically inconsistent, a ruse in which none are protected and made free, but in which all are left exposed and immobilized instead.

The animal welfare movement's laudable goals include, patently enough, protecting the welfare of all animals. The movement's methods to reach those goals include the promulgation of legislation that penalizes the neglectful, the abusive, and the downright malicious. At the moment that in doing so legislation favorable to the welfare movement misapprehends the police power of the state and the protection of the citizenry, however, and then compounds problems by offending the biological understanding of "what an animal is", the methods begin to outstrip and disserve the goals. Ownership laws, respecting the value of a smallish amount of animal life at the expense and allowance of the destruction of most other animals, serves both nature and "animal welfare" better, including the nature of complex animal-environmental interactions and the welfare of humans.

People v. Shanklin, 769 N.E. 2d 547 (Ill. App. 2002)

State v. Garcia, 3 Misc. 3d 699, 777 N.Y.S. 2d 846 (2004 slip op.)

LeBlanc v. Hayes, 827 So. 2d 611 (La. App. 2002)

Johnson v. Center for Animal Care and Control, Inc., 192 Misc. 2d 210, 745 N.Y.S.2d 890 (2002 slip op.)