The Expanding Circle of Dignity: Unifying Animal Rights and Ecosystem Protection in the Law

• Author: Andrew Long
• Pages: 425-447

425

Chapter 17:

The Expanding Circle of

Dignity: Unifying Animal

Rights and Ecosystem

Protection in the Law

Andrew Long

I. From Dominion Over Nature to the Land Ethic .................................428

II. Social Norms and Law: e Land Ethic’s Challenge to Property ..........433

A. Socio-Legal Evolution ..................................................................434

B. Environmental Law: Anthropocentrism, Politics, and Systems .....437

C. Animal Rights: Protecting the Dignity of Sentient Beings ............443

D. A Cooperative Approach and Realizing the Land Ethic Ideals.......445

Conclusion ................................................................................................... 447

What most unites environmental and animal law also separates

them from all other areas of law. Both address the huma n rela-

tionship with non-human nature in a way that expresses (or,

at least, implies) a particular normative view about the direction in which

changes to that relationship should move. Both are relatively new areas of law

and, as such, often struggle to carve their policy space out of (and against the

resistance of) preexisting property law. Property law has regulated human

interaction with nature for centuries, although it generally focuses on the

relationships among humans with rega rd to specic pieces of nature. In so

doing, it tends to support (if not explicitly embrace) a normative view of the

human relationship to non-human nature that is at odds with key objectives

of both environmental and animal law.

In practice, environmental law and animal law overlap. In some cases

involving wild anima ls, they may be nea rly identical in eect. Perhaps there

is no clearer evidence of this reality than the acknowledgement that “anima l

rights attorneys recognized that the body of law built by the environmental

426 What Can Animal Law Learn From Environmental Law?

movement provided eect ive tools to protect wildlife” and, therefore, such

attorneys have used environmental laws to protect animals.1 e two areas of

law overlap in that many environmental laws protect animals or their habitat,

and many actions to protect anima ls advance environmental law priorities.2

us, their goa ls also overlap to the extent that a nimal protection advances

both ethical treatment of animals and environmental protection. is point

highlights that, at least in many wildlife examples, the two areas of law focus

on dierent parts of the same issue, and may seek to reach essentia lly the

same practical result.

Animal law and environmental law also share common ground in that,

in a broad sense, they respond to essential ly the sa me historical circum-

stances and preex isting laws. Stated broadly, each area seeks to change the

social norms governing the human relationship with nature.3 In importa nt

respects, the land ethic articulated by Aldo Leopold provides an overarching

vision of this transformation that encompasses the goa ls of both environ-

mental and animal law.4

In e Land Ethic, Aldo Leopold was among the rst Americans to oer a

complete vision of transformation from the historically rooted social norms

underlying the human relationship with nature to a new set of morally rel-

evant principles grounded in ecology.5 It begins w ith a sentence describing

Odysseus hanging his slave girls—mere property to him—to make an argu-

ment that was a lso noted by Darwin and others: the social conception of

1. Joyce Tischler, e History of Animal Law: Part I (1972-1987), 1 S. J. A L.  P’ 1 (2008).

2. See, e.g., Tamie L. Bryant, Similarity or Dierence as a Basis for Justice: Must Animals Be Like Humans

to Be Legally Protected From Humans?, 70 L. & C. P. 207, 210 (2007) (describing the

Endangered Species Act as an animal protection statute).

3. By no means do I mean to imply that humans are not a part of the natural world. e word “nature”

and similar terms, as William Cronon poignantly observed, “will always be contested terrain.” William

Cronon, Introduction: In Search of Nature, in U G: T R N

23, 52 (William Cronon ed., 1995). is chapter inevitably wades into that contest, as it concerns

two types of norm entrepreneurs seeking to change the social conception of nature. It does so delib-

erately, however, and does not intend to skew the discussion with any particular loaded concept of

nature. Instead, the term is used in the broad sense. See Keith H. Hirokawa, Dealing With Uncommon

Ground: e Place of Legal Constructivism in the Social Construction of Nature, 21 V. E. L.J. 387,

389 n.2 (1996) (“For matters of simplicity, this essay treats as interchangeable the terms ‘nature’ and

‘environment,’ and intends to include a wide array of concepts within those terms. When discussing

‘nature,’ it is important to recognize the vague and amorphous meaning of that term.”).

4. See text accompanying footnotes 27-29 infra.

5. J. Baird Callicott, e Land Aesthetic, in C   S C A: I

 C E (J. Baird Callicott ed., 1987) (describing the essay as “the rst self-conscious,

sustained, and systematic attempt in modern Western literature to develop an ethical theory which

would include the whole of terrestrial nature and terrestrial nature as a whole within the purview of

morals”). Leopold does not discuss the ocean or aquatic systems, but there is no logical reason that

these parts of the natural world would be excluded, although “the land” would surely be an odd term

to describe the ocean.