John Adenitire and Raffael Fasel join me on Sentientism episode 241. Find our Sentientism conversation on the Sentientism YouTube here and on the Sentientism podcast here.
 

Raffael Fasel is University Assistant Professor in Public Law at the Cambridge Law Faculty and Fellow of Jesus College. He specialises in public law, with a particular interest in constitutional theory, human rights law, and animal rights law. Raffael is co-founder and co-director of the Cambridge Centre for Animal Rights Law @CCARL_charity.

John Adenitire is a Senior Lecturer in the School of Law at Queen Mary University London  @QMUL  and a Co-Director of the Forum on Decentering the Human. He is also a trustee of  @HumanistsUK . John’s research is primarily focused on Public Law, Legal Theory, and Comparative Constitutional Law, with distinct specialisations in conscientious exemptions and including non-human animals in constitutional law.

Together, they are the co-authors of “Animals and the Constitution: Towards Sentience-Based Constitutionalism.”

In Sentientist Conversations we talk about the most important questions: “what’s real?”, “who matters?” and “how can we make a better future?”

Sentientism answers those questions with “evidence, reason & compassion for all sentient beings.” In addition to the YouTube and Spotify above the audio is on our Podcast here on Apple & here on all the other platforms.

00:00 Clips

RF: “Constitutions are anthropocentric, right? They are centred around human interests and they privilege human interests… 98% of all governed sentient beings in the UK are non-human animals.”

JW: “The yelp of a puppy or a cow resisting being dragged into a slaughterhouse or a wild animal following its migration pattern or an animal following a choice test where it, in an embodied way, expresses a preference. Those are political expressions. Those can be reflected through representatives but even through direct processes as well.”

JA: “We will go from a use paradigm, that’s how they are considered, to a co-citizen or co-subject or co-fellow earthling.”

00:57 Welcome

John’s first Sentientist Conversation, episode 7.

03:30 John and Raffael Intros

06:33 What Are Constitutions and Why Are They Important?

Maneesha Deckha, Jane Kotzman, Josh Milburn, Michael Dorf Sentientism episodes and our Sentientist Law playlist.

RF: “…Constitutions are the most fundamental legal documents… the apex documents that a legal system has… that contain its most fundamental principles…”

“…very difficult to amend those principles and indeed some constitutions don’t even allow the amendment of certain very fundamental things like democracy or human rights.”

“…the most important legal tools that exist if we’re interested in in doing anything, including improving the lives of animals.”

 “They intersect with political philosophy. What should states be doing to improve animals lives?”

“Amazing work… legal theory of animal rights… Habeus Corpus legal cases… to have chimpanzees and elephants and other animals recognised as fundamental rights holders.”

“But, in our view, too few people have looked at the most fundamental of legal documents [the constitution] and how it can be rethought in a way that gives due concern… to all sentient beings.”

“…Rather than seeing the constitution as the top I actually prefer to see it as the foundation on which everything in the legal system is built.”

“…constitutions in most parts of the world are documents…. but one other thing that we do in the book is to look at constitutional principles which are not always documented… implied principles such as democracy, the rule of law… protection of fundamental rights, the principle of proportionality…”

“Some of these constitutional principles… are not even explicitly mentioned in some constitutions but they nevertheless are so core, so important…”

What are constitutions based on or grounded in?

RF: “There’s a great plurality, but if you boil it down to its essence, you’ll find that constitutions are anthropocentric… They are centred around human interests and they privilege human interests.”

“…democratic constitutions… you have a broader range of human interests… If you look at more monarchical systems, then it’s a smaller range…”

“…but regardless of which type of constitution you look at they are human centric documents, human centric practices… excluding all non-human animals from fundamental rights… excluding all non-humans from the protections of democracy.”

“Animals aren’t considered part of the people that get to have their interests represented in a parliament”

“…Legal personhood, for instance, that although, is open to being extended to non-human entities in principle, tend to only be applied to human beings or at best to corporations that ultimately serve human interests.”

“…in all constitutions around the world… animals are property or what’s sometimes called property plus… don’t, in a strict sense, treat animals as ownable things… like a table or a laptop or a bike or a book…  but… they’re not recognised as legal persons either.”

“…effectively they’re still being treated as things with some very minimal welfare protections at best.”

Why do constitutions focus on humans?

“…Why are constitutions so anthropocentric?… constitutions are made by humans”

“…some will say… it makes no sense to extend concepts like constitutionalism to animals… because ultimately this is a human endeavour…”

JW: “…there’s one idea about constitutions which is they’re there for the benefit of those who can participate… that’s partly what you’re challenging.”

RF: “…at least we’re trying to say participation needs to be understood much more broadly… there’s a very narrow way in which you can approach constitutions… those who are involved in making the constitutions… vote on a constitutional referendum… The constitution is supposed to serve their interests because they’re the makers of the constitution…”

“…That’s much too narrow because it excludes a whole range of human beings who never have the ability to participate in constitution making and changing… maybe they live in a system like the United States that doesn’t have amendments to the constitution very often… so you may just never have the chance.”

“Even if you do have the chance, maybe you lack the abilities… the capacity to exercise a right to vote… because you’re suffering… some severe mental disability or maybe you’re way too young.”

“I have two babies at home that are not able to participate in a constitution making process… to exclude them from the scope of protection of constitutions is very problematic… because they are still governed by the constitutional framework.”

“Babies, people with severe mental difficulties, animals too…just because they can’t participate in that constitution making process… doesn’t mean that they’re not governed by constitutions… they’re governed much more intrusively than many human beings… Therefore, we should give due concern to their interests.”

Pericles boasting about his democracy, completely unconcerned with how many were excluded from it. The legitimacy gap.

RF: “…let’s look at what was once considered a paradigmatic example of democracy… Athenian democracy”

JW: “Some people still think it is now!”

RF: “It was maybe the first system… that had a sort of direct involvement of citizens in the democratic process… I don’t want to underestimate the importance of that.”

“But what we show there is that… only around 12% of people living in Athens at the time were indeed included in this process… if you were a woman… a slave… even a man who was not old enough… you were not a citizen that counted for democratic purposes. You were not part of the demos.”

“Models of democracy…UK… German democracy… a paradigmatic example that’s doing things really well. If you take a step back, you may find that there’s some real legitimacy problems.”

“These documents, these constitutions, these practices apply to a whole lot of beings that don’t have a say in… what the rules look like.”

“…we run some numbers in the UK… we try to show how, if you count all the sentient beings… you will find that 98% of all governed sentient beings in the UK are non-human animals… It’s only 2% that are actually human sentient beings.”

“…you can extrapolate that to any other… constitutions are entirely anthropocentric… they exclude 98%… it’s even worse than the Athenian democracy… which excluded 88% and then of course all the sentient animals as well… there’s a gap here that we need to address.”

JW: “It’s so easy to look back into history and to judge… useful to imagine future generations looking back at us now… and then having that freshness of mind to drive change forward more strongly…”

“Although I do find it frustrating that there seems to be a trope amongst public intellectuals today to say future generations will condemn us for X while those people still do X.”

“…it’s a really powerful idea… to take us out of our own current context and to think more in a utopian and a more principled way… realistic utopianism.”

21:03 Why Include Sentient Beings and Who Is Sentient?

JA: “…at a minimum, sentient beings should be included within the constitutional circle… And by sentient beings, we mean beings that have valenced experiences… subjective experiences that can be either bad or good”

A future book: “…robot rights, rights of nature and animal rights… we are acutely aware that others also include, for example, nature within the moral circle… cosmological… theistic worldviews…”

“…we don’t want to outright reject these alternatives but… at the minimum a constitution has to pay due concern to sentient beings.”

JW: “…a sentient being… can be impacted in a way that matters to them… things go well or badly for them. That’s what being governed by something means… is you can be impacted and therefore you should be included?”

JA: “Absolutely. We don’t delve too much into the moral theories but our view is that sentient beings are inherently valuable. They experience their own wellbeing. Life can go better or worse for them. So, at a minimum, they have their own interests and their interests matter for them not just for the purposes of others.”

“…there is huge debate about who counts as a sentient being… even within the animal kingdom.”

The Jeff Sebo Sentientism episodes (one and two) and whether insects are sentient.

JA: “…the back of the envelope calculation that we did in relation to the UK does not include insects as possible sentient beings. So, the legitimacy gap would even expand more radically if we if we were to consider them.”

JW: “… doesn’t draw boundaries around particular… species or maybe even substrates… it’s the capacity for sentience…”

RF: “There’s one caveat…all sentient beings are in principle our baseline but… the book… focuses on only those sentient beings that are governed by a constitution.”

“…if a constitution’s legitimacy was based on how it catered for all sentient beings, including those that it doesn’t necessarily govern, then that would be too wide ranging… not sufficiently practicable.”

“So we focus on sentient beings that are governed… those exercising public powers… So state officials broadly have effective control over the life, the body or the habitat of a given sentient being.”

“…the Russian state… there’s no chance they’ll have effective control over a wild species somewhere in Siberia… And therefore, the Russian state’s legitimacy would not depend on that wild… individual or population”

JW: “It’s not saying… just non-human animals within our homes or factories or labs. It would extend out to wild animals where those habitats are governed effectively by the bodies that are beholden to the constitution.”

RF: “We want to leave it open intentionally… there is ongoing debate over the extent to which wild animals can even be truly considered wild in an age of the climate catastrophe where humans have such a vast impact”

“There’s folks like Martha Nussbaum who argue that there’s no such thing anymore as a wild animal in the world.”

JW: “…could you say that’s analogous to a human-centred national constitution which might have some regard for global humanity through international aid and foreign policy… but it wouldn’t be directly beholden to non-citizens?”

RF: “…because we focus on effective control, it’s basically a concept that we’re taking from international law where if you’re thinking of countries that occupy another country, they can have effective control over the occupied territory without those people being citizens”

“So, in our framework the occupied animals… would be governed even though they’re not citizens”

“…it’s still nation states that will call the shots on the international plane and therefore we think they’re the most relevant entities to be focusing on.”

30:15 What Protections Do Constitutions Provide?

JW: “… what sort of protections do the constitutions provide… we’re very familiar with this sort of messy space of saying you care but not really doing anything about it or giving someone a tokenistic sort of protection which doesn’t really help them very much.”

JA: “…there are a handful of states and quasi states like the EU that have constitutional recognitions of animals… protection for animals explicitly in their documents.”

“… clauses that say animals need to be protected or the dignity of animals, like in Switzerland, has to be recognised or the state has a mandate to legislate animal welfare laws, animal protection laws…”

“There are some existing provisions which are of a welfarist type… at the constitutional level.”

“There is also a more recent trend of some recognition of some fundamental rights at the constitutional level… through the rights of nature paradigm… Ecuador and some other Latin American countries recognise nature as a subject of rights… animals, because they are considered part of nature sometimes benefit from that protection.”

“…in Ecuador… wild animals have been recognised as having constitutional rights such as the right not to be hunted or not to be taken away from their natural habitats.”

“…in India, there was some discussion at a constitutional level whether some animals had certain fundamental rights… some Indian courts recognise the right for birds to fly based on some constitutional provisions.”

“…there is something out there in some jurisdictions but we think it doesn’t go far enough.”

JW: “I get quite frustrated when I see a lot of progress on rights for nature… that governments and people would be totally comfortable granting rights to a river or a rock or a tree or an ecosystem but can’t bring themselves to grant rights to obviously sentient beings like fishes and pigs… but what you’re implying is actually that can be a really positive aspect for non-human sentient animals as well because they can be productively drawn into the rights for nature question?”

RF: “…you have to look at each and every example to see exactly what’s going on. Who’s being protected? Is this really a right or not? And who’s the holder of the right and does it actually serve more a human community than the natural entity.”

“The problem with rights of nature, if you’re an animal rights thinker, is that a lot of rights of nature developments are very much focused on a collective entity… an ecosystem of a given river or… part of a mountain.”

“If you’re an individual animal that contributes to that ecosystem, great. You might benefit from the rights of nature. If, on the other hand, you’re an animal that’s considered invasive and you’re considered to be harmful to that ecosystem, then things don’t look quite as bright for you.”

“…because rights of nature tend to be focused on collective entities, not individual entities, individuals can lose out big time.”

“…in Ecuador… a case called Estrellita where a woolly monkey… a member of a wild species was kept as a pet and the constitutional court found that wild animals are part of nature. So therefore, they’re protected through the rights of nature granted in the constitution.”

“But with regard to domesticated animals, they came to a very different conclusion and effectively said, ‘Oh, it’s still fine to go on to raise and kill animals for food because they’re not wild animals. They’re domesticated animals.’”

“…that judgment gives with one hand and takes away with the other… it’s now enshrined in a constitutional court ruling that domesticated animals, it’s fine for them to be raised and slaughtered and eaten… and indeed many other purposes too.”

JW: “…if I see rights as a tool for protecting things that need to be protected. And environmental destruction, biodiversity, loss, polluting a river, these are generally bad things for the sentient beings. So, let’s use rights to protect the nature… I can sort of see that… But the ultimate underpinning of those rights, for me, comes back to the interests of the sentient beings that are ultimately impacted.”

“Whereas, if you grant rights to a river intrinsically as some sort of being, I’m not sure what that right is ultimately grounded in because I don’t think the river has any interests in their own right.”

38:52 What Rights Should Constitutions Provide?

JA: “one way to overcome, I’m sure it will not be satisfactory to you because of your naturalistic worldview and also to me because of my naturalistic worldview, is that under some cosmologies, rivers, other components of nature are actually sentient beings… they have feelings and they are they understood to be deities or quasi deities…”

JW: “…which in that context is actually part of a sentiocentric moral stance. It’s just that you and I might disagree with the attribution of sentience in that case.”

JA: “…existing constitutional rights should be extended to all sentient animals… we don’t necessarily need a different bill of rights from bills of human rights to protect the interests of sentient animals because we share many of the same interests and capacities…”

“…there are certain features of the practice of fundamental rights that can help us envision this idealistic, utopic extension of fundamental rights. And one of them is exactly this expansion of who counts as a subject of rights…”

“…the history of the United States… first, white men that own property and then, over the course of time… non-property owning white men… not white men… some women… were brought into this circle of rights holders.”

“…the progressive expansionism of rights holders… is one of those things that we use to tie in the ideal, the utopic, to the realism of rights because it’s based on the history of fundamental rights that over the course of history they have been expanded and none of those expansions required a separate bill of rights or a different set of rights.”

“…that’s not to say that we share… exactly all the same interests or capacities.”

“…certain rights may be interpreted more expansively for… animals than for humans… there are certain kinds of aquatic animals like salmon that have a vital interest in living without borders… moving freely across borders because they have migratory patterns…”

“…even though we all benefit from the same fundamental rights, this doesn’t mean necessarily that all rights holders have exactly the same rights.”

“But this is again grounded in existing a human rights practice… everyone has the right to vote or… some have a right to abortion but not every single person… will be able to be able to use that right.”

JW: “…some do suggest separate bills of rights for animals… they want to craft it around the needs and interests of non-human animals… But I’m also very nervous that it opens the door for ethical inconsistency and slippage back into instrumentalisation… humans have the serious rights and then non-human animals have these things we’re calling rights but aren’t quite so serious. So… in terms of intellectual clarity and cleanliness but also just in ethical coherence I much prefer the idea of having an integrated set.”

“…I did this amateur thought experiment a long while ago of taking Universal Declaration of Human Rights and rewriting it as the Universal Declaration of Sentient Rights… I was really surprised at how easy it was…”

“…there are some rights where you think, okay, that clearly isn’t relevant to most non-human animals, but it doesn’t matter, it can still be in this coherent rights statement.”

“There were others where you initially thought… that’s not relevant to non-human animals. But then when you think a bit deeper… hold on, maybe it could be… rights to education… there are different forms of education that happen within non-human animal families.”

“…when you get to the most basic ones for humans… those seem to be the ones that were most generously and most broadly shared across sentientity as well.”

JA: “…we do focus on three fundamental rights: right to life, right to freedom and right to bodily and mental integrity, otherwise known as the right against torture and degrading treatment.”

“… we had several other rights that we had considered, but we had to cut down… one right I was particularly interested in is freedom of thought or freedom of conscience. That could also be applied to animals, at least some animals in some circumstances.”

Luna the dog claims the right to a belly rub!

JW: “there’s this statement of the five freedoms that’s often talked about in the context of animal agriculture… it talks about freedom from distress and pain and discomfort… freedom to express natural behaviours… it feels quite progressive and generous in a sense because, from a naive reading of those five freedoms, I don’t think you could farm animals and be compliant. But actually, it’s interpreted in a way that enables animal agriculture… It’s justifying and framing in the context of use. So, there is this sort of insidious slippage or… starting from a good intent and then ending up back where we started…”

RF: “If you accept that sentient beings have intrinsic moral worth, then you need to, in our view, adopt a rights based framework, a deontological framework that does not allow the interests or certainly the basic interests of these animals to be traded off against… human interests… or the interests of… the common good… without certain very strict limits…”

“Nozick… encapsulated this as… utilitarianism for animals and Kantianism for people… we think it should be Kantianism for animals as well.”

“Only Kantianism, or the non-instrumentalisation principle, takes seriously the fact that sentient beings have intrinsic moral value. They have interests that are worth protecting for their own sakes regardless of what you might achieve by violating these interests.”

“…the whole human rights framework… is based on a rejection of the idea that we can approach humans in this utilitarian way where it’s fine to torture someone as long as you can find the person who has hid the bomb…”

“Under human rights law, you can never torture someone, whatever the gains may be, that you would get from torturing them. And we think animals should be approached in the same way because of sentience.”

Peter Singer’s utilitarianism and his uncertainty about whether killing a sentient being is intrinsically wrong. Singer’s Sentientism episodes (one and two).

JW “…you’re a being, but what matters about you is your sentience. And if that sentience is measured on some sort of scale from outside… goes up, that’s a good thing. If it goes down, that’s a bad thing. But if you’re killed painlessly… the scale doesn’t move up or down. So, the sentience bucket… we don’t really care… There’s that distinction between caring about the sentience of a sentient being and caring about the sentient being in their own right and their perspective, their interests, their values… their aspirations.”

“It’s probably not technically… utilitarian versus Kantian, but there’s something about respecting the individual being because they are a being.”

JA: “…we write within the liberal tradition so maybe this really explains why we focus on the individual…”

“…individualism… the value of the individual, not of just their capacities or their interests or whatever, but the individual is the basic unit of political concern and moral concern.”

“…we have been inspired by a lot of critical scholarship like that of Maneesha Deckha who are rightly very critical of the history of liberalism…”

“…definitely we are not consequentialists or utilitarians in the Peter Singer way.”

JW: “…part of the criticism of liberalism is because of its history of only picking out a certain subset of powerful individuals to privilege in that liberalism. And your version of liberalism is addressing exactly that problem and saying everybody should be counted as a valid individual… that in a sense maybe fixes liberalism… in the same way as it fixes constitutionalism?”

“… there are some aspects of collectives or systemic or relational interactions that would still challenge that… but what you’re doing addresses that core challenge to liberalism – which is making sure that everybody gets counted”

RF: “…we look at the critical tradition… are we maybe being too anthropocentric by still using concepts like constitutionalism and liberalism… and rights?”

“…why don’t we do away with it all together and build something new from scratch?”

“…it’s a category error to think that just because the history of something is flawed that the thing in itself is necessarily flawed too”

“…the right to vote isn’t inherently flawed… nor are concepts like constitutionalism and democracy and rights more broadly… It’s just that they haven’t been interpreted inclusively enough”

“…the second worry that I have with the critical animal studies approach is a strategic one. I’m really not sure that revolution is necessarily the better way to go than reform”

“…we a) don’t really know if there’s a better alternative out there and whether it will work and, b) maybe because of path dependency, we’re kind of stuck with the tools we have right now.”

“…we can approach a judge and say to them please extend to animals status XY that I have developed… and think it’s amazing… perhaps it is… but it’s not a concept that the judges are used to at all. Maybe they don’t even know what it means.”

“Whereas if you go to them and say… ‘you know what legal personhood is, you’ve already given it to a company, so you might as well give it to this animate entity.’”

58:52 Trade-offs and Proportionality

JW: “the caricaturish criticism of rights is that they’re inflexible and uncompromising and can lead to some extremely unintuitive situations when you do have conflicts… a rights approach… does allow space for dealing with that stuff. It doesn’t just shut the door and say ‘I’m sorry rights can never be violated.’… sometimes it’s the right thing to do to violate someone’s rights.”

JA: “…with some very limited exceptions, like the right to torture, rights are not absolute and there are sometimes trade-offs… or compromises that have to be made… sometimes it is justified to infringe someone’s rights.”

“However, we have to make sure that we are not slipping from the Kantianism… recognising the inherent value of sentient beings… to a situation just where anything goes as long as the consequences are worth it… we still have to value the individual. It’s still a rights-based framework.”

“…when the US and the US allies withdrew from Afghanistan, many humans were trying to flee the country… apparently there was one flight… that was used to evacuate some animals… and part of the media frenzy was that this flight could have perhaps been used to evacuate other humans.”

“…there seems to be a conflict here between prioritising the rights of humans to flee from the country to flee from the Taliban or prioritising the lives of animals to also be in a safer zone”

“…because of our framework, we cannot say, ‘oh, of course, humans should be prioritised under all circumstances just because they’re humans.’ We have to give reasons why one set of beings has to be prioritised because both of them… both humans and non-humans under a sentience-based constitution have to be considered as inherently valuable.”

“…we have to give impartial reasons… for making a decision… maybe… that plane should have been used for some humans, not because humans should be automatically prioritised, but because the humans were at imminent risk of persecution because of their participation with the regime…. whereas animals… wouldn’t necessarily be persecuted for their participation with the US… the more imminent threat threat to life was to humans rather than to animals.”

“… if there were 100 flights… as an example, reserved for humans, then why couldn’t at least one be reserved for non-human animals?”

“…what we are trying to do is to give… impartial reasons that don’t necessarily automatically privilege one group of beings over others.”

JW: “… you are granting equal rights to the entities involved, which for many people will seem like a deeply radical step, but there is absolutely space there for recognising the particularity of their situations, their interests, the context, the potential consequences, but without slipping into a consequentialist or utilitarian frame… it’s still within an equal rights framework – but you can still make proportional differentiation around those decisions to come to… a better choice.”

RF: “…the reason why we’re drawn to this framework is this is how human rights already works around the world… judges are engaging in those kinds of proportionality tests… on a daily basis… I’m sure as we’re speaking now there’s at least 20,000 judges doing a proportionality analysis of some case that’s before them…”

“… most human rights are qualified rights… relative rights, not absolute rights.”

“…this is a framework that judges already know how to use, so hopefully quite easily they could apply it in a context where animals rights conflict with human rights too.”

JW: “And you would admit openly that there are going to be some situations where there is no clear answer or there’s no good right answer… no one owes us easy ethics”

RF: “…that’s what we need judges for.”

01:06:18 Rule of Law

JW: “… are we going to see non-human animals in court, in the dock or in the witness stand?”

JA: “One strand of scholarship says that the rule of law really is about enabling government by law, government through law. So that individuals are able to plan their lives – because law has to be clear, has to be prospective. People have to know what their legal rights and legal duties are so that they can plan their lives according to the law and live by law. And government then is subject to the law.”

“…everyone knows what the rules are and they can decide whether or not to break them… and they apply to everybody.”

“… there’s another strand of scholarship which we think is much more fruitful… the rule of law is a way to fight against or to prevent arbitrary power… power that is unconstrained, that has no accountability mechanism.”

“… we privilege the second way of thinking because, under the first way, the rule of law only protects beings that are able to plan their lives… Certain humans, they’re not able to plan. And so, the rule of law gives no benefit, no protection… to them… for example people with severe cognitive disabilities, children…”

“However, if we change our perspective on what the rule of law is, if it’s about preventing arbitrary power without accountability… all sorts of beings are subject to arbitrary power… also non-human animals and humans such as children or those with severe cognitive disabilities that cannot speak or reason or go to court.”

“…we’re trying to… reorientate our conception of what the rule of law is so that it is more inclusive… it can be more demanding… but on the very minimum it requires that the law has to clearly authorise intrusive action or violent action towards animals.”

“But on the more demanding side, it requires that animals and their fundamental rights be protected.”

JW: “…that initial framing of rule of law, it excludes many beings that shouldn’t be excluded. But is it true that it’s also… value neutral? That you could have some absolutely terrible laws that, as long as they’re published and consistently applied… it be absolutely fine – whereas your conception explicitly is including this protection from arbitrary power… [that] isn’t necessarily hardcoded into the more formal abstract version?”

JA: “… there are different levels of demandingness in your ideas of the rule of law. Some of them just say yes the law has to be there… but the law itself can be totally arbitrary. It can authorise… factory farms.”

“But… we think that… the law has to be accountable to justice as well. So, on our conception of justice, factory farms are unjust because they deprive animal sentient beings of their fundamental interests.”

JW: “So it can’t just be rule of any law. It has to be rule of a just law”

JW: The procedures of law: “Will we have non-human animals in court?”

JA: “We already do” The Estrellita case, the Non-human Rights Project work re: chimpanzees, elephants, dolphins. “… not literally, but at least symbolically they are in court because they are represented by lawyers”

“… We are already basing our procedural account of the rule of law on what was already going on in courts today. And so it’s not too much of a leap to demand that animals, for example, have standing. So they’re able to sue, to be represented in their own name rather than have to show that a harm that is caused to an animal causes indirect harm to a human and then it’s the human that has to go to court.”

01:13:25 Democracy

JW: “…democracy… I guess the anthropocentrism is built into the word… demoses tend to be about humans… are chickens and fishes going to be given the vote?… a sentiocracy of some sort?”

RF: “… the demos should be interpreted, more inclusively because… also those who don’t get to participate in the making of the rules can still be governed by those rules.”

“We don’t want a conception of democracy that is so narrow that it excludes not just animals but even most human beings who don’t actually participate formally in the making of the rules of the constitution.”

“… all governed sentient animals have an equal right to democratic participation…”

“[that] doesn’t mean that animals have to be treated the same as rational adult human beings… it doesn’t mean that animals are given formal democratic rights such as the right to run for office… No non-human animal is going to run for president anytime soon under our conception.”

“But… that does not mean that you cannot give animals an equal right to democratic participation. You just need to understand democratic participation in a broader sense.”

“…we draw on some terrific work that’s been done by political philosophers like Sue Donaldson… animals should be seen as political agents… they are participating… certainly for domesticated animals but some others too, in shared spaces… we should learn from them to see how their interests should shape those spaces”

“… dogs that are not allowed in a restaurant… or here in Cambridge, dogs are not allowed into colleges for no clear reason… if I came in with my dog here, the mere presence… of my dog here in college would question the norms of this space… it’s a political act”

“…or we have a wild deer… questioning, challenging some of those norms.”

“… there’s something political going on here… politics in an informal sense… It is not the running for office type politics. It is not the voting at the ballot box type politics that we think is reserved to paradigmatic human beings just because of the capacities they have. Maybe at some point in the future could be robots as well.”

“… because animals are informal political actors, we need to allow them to participate in the democratic rule making process in this broader sense.”

“Sue Donaldson suggests that we should create what she calls microboards… people who are particularly well placed to know what is in the interest of a given animal or a given set of animals… a good sort of owner of a companion animal… might be a sort of microboard to look to.”

“Maybe animal sanctuaries run by people who really know a certain group of animals really well. They’ve known them for years. To know exactly what these animals want…”

“… It is very easy to think you know what is in the interest of an animal but you don’t really… we’re human beings… we see through our human eyes and think through our human brains and we anthropomorphise whether we want to or not… that can be problematic for animals”

“… so the participation element puts a focus on giving animals a choice… there are choice tests that you can do with animals where you present them with a whole range of different choices and you give the animals an agency to decide what they want, telling you maybe something you didn’t even anticipate”

“… there should be a certain quota of sentient beings’ representatives… people sitting in parliament, a certain number of seats reserved for representatives of animals”

“… we think that animals should also have a more… direct democratic way in which they can participate… certain representatives of animals should be able to bring what are sometimes called a popular initiative or a ballot initiative to create laws that are in their interest or to veto laws that are being proposed in parliament…”

“… animals should be allowed to participate both indirectly through representatives in parliament but also directly through having representatives that are able to bring more direct proposals”

JW: “So that concept of political participation is broadened out to acknowledge that… the yelp of a puppy or a cow resisting being dragged into a slaughterhouse or a wild animal following its migration pattern or an animal following a choice test where it in an embodied way expresses a preference. Those are political expressions. Those can be reflected through representatives, hopefully acting in good faith, with the right checks and balances around them but even through direct processes as well.”

“… there might be an initial sticker shock where [people] think… this just can’t fit. But you make it very clear that it can… you can draw analogies to children’s representation within the political process… Wales, as an example, has a minister who represents future generations.”

01:21:41 How Would the World Change Under Sentientist Constitutions?

RF: “… certainly what is going to change is the main ways in which we currently exploit animals are going to disappear straight away with the push of that button… say goodbye to factory farms… say goodbye to animal use for production of medication, animals use for entertainment at least in most scenarios”

“The climate crisis is many things but it is also a major way of ignoring the interests of billions of sentient animals… once the sentientist democracy is operating… what kinds of decisions would be made?… rein in the use of fossil fuels…”

“I could see the world changing in many positive ways that we haven’t quite managed to do because we’ve been so focused only on our own human interests”

JA: “… more fundamentally, our relationship with other animals would have changed and if we press this button… go from a use paradigm (animals are instruments for us to use)… to a co-citizen or co-subject or co-fellow earthling paradigm.”

“…the main effect is really to move us towards a more legitimate political order…”

“…we are closing that legitimacy gap… it’s so wide in existing constitutions… we don’t say that no constitution is totally legitimate nowadays and that we should all go and act in a revolutionary way.”

“But we’re saying that… our reasons to pay allegiance to our constitutional orders is weaker than many of us acknowledge… there are so many people, and I use people intentionally, that are excluded… and not just animals. Also, human beings that are unjustly excluded”

“…if we pushed that button… and went into a sentience-based constitution tomorrow, then we will have a legal system or a constitutional system that really would be worth fighting for”

01:26:45 How Would a Sentientist Constitution Affect Human Sentients?

JW: “How do these ideas relate to modern conceptions of intra-human politics… different modes of economic organisation (state based to market based)… different political philosophies (centralisation, subsidiarisation, modes of organisation)… cultural conservatism and social conservatism… these different dimensions that run through politics today?”

JA: “I think our project is both conservative and progressive… Progressive because… what we are trying to do is to extend the legitimacy of constitutional orders to more beings… in this sense it is a deeply progressive work… many of the ways in which we use animals would need to be abolished… this project is really revolutionary… I wouldn’t say anti- capitalist but definitely anti-status quo.”

“… on the other hand, we’re trying to be… conservative with a small C… we still want to take liberalism seriously. We still want to take legal existing legal practice… so we base our progressive future in the current practices, in the current ideas.”

01:29:35 How Do We Make This Happen?

JW: “How do we make all this happen?… incrementalism… top down… UN level or regional level or national level… or could there be experimentation bottom up?”

RF: “…it’s all of the above… it’s going to take a whole range of different approaches… simultaneously alongside one another.”

“… in the animal space there’s a bit of a gap here. We all have our ideas… but have we actually done some empirical research on this?”

“… usually, people working on the ground are more familiar with their environments”

“… I haven’t seen too many approaches that are obviously wrong… Although, that said, I obviously favour the more rights-based approaches versus the welfarist approaches.”

“… even there there’s arguments saying welfare can be coined a right at the end of the day in a very thin sense… maybe, as long as we pile up a lot of these small thin rights maybe we’ll get to something a bit more robust after some time.”

JW: “… it’s obvious where some of the resistance will come from politically, corporates, entrenched interests, culturally, but what do you think publics around the world will think of these ideas in general?… Will there be a conservative backlash or is this tapping into a sort of latent compassion that people already feel for non-human sentient beings?”

JA: “Rafael and I are academics and I can talk about the reception we have in the academic world which is so far positive… We cannot talk about the public at large… we haven’t gone outside of universities yet…”

“…we want to use our own expertise to make the change that we can make… there are others that will use their own expertise whether it’s direct action… talking to people on the street or politicians or courts deciding cases…”

01:33:00 Follow John and Raffael

– John at QMUL

– @JohnAdenitire

– Raffael at Cambridge University

– @raffaelfasel

– Book: Animals and the Constitution

Thanks to Graham for the post-production and to Tarabella, Steven, Roy and Denise for helping to fund this episode via our Sentientism Patreon and our Ko-Fi page. You can do the same or help by picking out some Sentientism merch on Redbubble or buying our guests’ books at the Sentientism Bookshop. Sentientism is proud to now be part of the iRoar podcast network – go check out some of the other wonderful podcasts there.