From the vantage points of law and biology, Juris Zoology provides a comprehensive and realistic framework to objectively assess the role and significance of animals in American civil and criminal law. Confronting the defects of animal rights activism, Duckler examines animals in terms of their history, biology, social utility, economic effect, and aesthetic value, and offers a new and controversial voice to the national conversation on animals for lawyers, biologists, economists, sociologists, as well as scholars and professionals in animal-related fields.
From the vantage points of law and biology, Juris Zoology provides a comprehensive and realistic framework to objectively assess the role and significance of animals in American civil and criminal law. Confronting the defects of animal rights activism, Duckler examines animals in terms of their history, biology, social utility, economic effect, and aesthetic value, and offers a new and controversial voice to the national conversation on animals for lawyers, biologists, economists, sociologists, as well as scholars and professionals in animal-related fields.
"Because the public today tends to view science in terms of its tools, there is a subtle danger that biology students (who, after all, emerge from the public) will find it easy to confuse technology with science. Given the proper equipment and training, it is not difficult to make monoclonal antibodies. What is infinitely harder is to walk through the woods and decide, on the basis of your observations, against which antigens you should make monoclonal antibodies. Until you are able to make this decision, or perhaps more important, until you are willing to try, you will remain a technician instead of a biologist. To make the transition, however, you must acquire the mind-set of a naturalist. If you are successful in doing so, your apprenticeship is likely to end, for you will begin to apply your tools to the raw material of organismsâ lives to develop understanding."[2]
This book poses an intersection of two pursuits, law and biology, the juris of the enforcement and violation of social rules, and the zoology of the origination and termination of organic forms. From the vantage point of both disciplines, I have confronted the panoply of conflicts which arise by people interacting closely with animals, as well as by animals interacting closely among themselves in ways directly affecting people and their rules: As an evolutionary biologist, I have practiced law, and as a lawyer I have practiced biology â in both guises analyzing animal related issues by whatever light might be shed across the twin perspectives. To that end, Janovyâs classic reproach to biologists cited above â imploring them to sagely wield their technical tools when seeking to understand organisms at a deep level â resonates strongly for me in my twin vocations.
One entanglement of the legal and scientific worlds arises through curiosities cropping up within specific techniques lawyers use in their daily practice, techniques that have peculiar parallels with those employed via the scientific method. The odd formality of stating allegations in a pleading or motion is not that distant from the odd formulation of propositions in a hypothesis, both being awkward proposals of a thesis in its infancy which has not yet reached adulthood as a set of established facts. Similarly, the arrangement of rules of evidence and of civil and criminal procedures seems strangely close to the tricky structure and nested hierarchies of certain scientific protocols, tables, and charts.
Both rule sets swirl around the concepts of âmaterialityâ and ârelevanceâ, and both cleave closely to what is specifically useful in answering a dispute as opposed to what may simply be interesting in doing so. The artificial restrictions of certain variables in motions to strike, in limine, and to suppress and exclude used to circumscribe a particular issue of fact or law in a court proceeding have frequently seemed to me close thematic companions to the limiting variables employed in data collection and biostatistical analyses. The narrowing down from the first âaskâ of a plea or complaint to the final verdict of a fact finder is remarkably akin to the narrowing down from the broad proposal of a field study to the particular confidence level of a statistically significant set of data points.
Those parallels are something more than coincidence, and in recognition of those similarities in my cases and research, I have desired to invest them with meaning in my practice in both science and law. Doing so requires that I wisely use technique â Janovyâs âinfinitely harderâ task â and in the failures and successes encountered in that thornbush I have concluded that there is every reason to apply the tools of a scientist to develop a âlawyerâs mind-setâ about animal lives and deaths similar to Janovyâs admonishment regarding the mind-set of a naturalist.
One aim is for lawyers who litigate animal-related legal issues â in order to be good practitioners of such a peculiar art â to play the role of being good scientists as well, and not merely as scientific technicians. A lawyer-scientistâs task is to rigorously and carefully observe, and then rigorously and objectively analyze, the picayune aspects of organic life, death, utility, and value in the natural world, a world of which people and their various worldly possessions (the true objects of study for lawyers) are a critical component. Currently, that task seems unaccomplished.
It isnât simply the marginal element of acting âscientificallyâ that is required, itâs also an investment into really using the substantive ingredients. An animal law attorney who actively neglects (or passively avoids) science-based reasoning about their caseâs furred or feathered subject imperils their clientsâ interests no differently than a real property attorney who maintains a blithe ignorance of plot maps, stake surveys, or drilling samples. In turn, an animal law attorney who actively neglects (or passively avoids) law-based reasoning and the specific procedural apparatus that affects the initiation, treatment, and outcome of their case disserves lawâs goals, and would be better off appreciating animals in some other discipline unburdened by lawâs rigors.
Laws about animals require curiosity about detail and technique aimed hard in both directions: at the perplexing form of a writ, warrant, or special verdict; at the necessary redundancy of certain allegations in a code-based pleading; at the archaic sub-sections to the exception to a century-old rule of evidence; at the artificial restriction of one category in a statute where other, alarmingly similar, categories lie unscathed â and at the same time at the peculiar suite of adaptations affecting locomotory skills in a horse; at the jumble of cultural-based terms dog breeders utilize in outlining specialty dog breed standards; at the archaic distinctions which define and delimit what counts as âsocializationâ in dog and cats; at the boggle of objective-yet-subjective nutritional requirements imposed on a rancherâs milk-producing cows.[3] All these coordinates and many more beside position themselves as variables in an equation far more complex than the superficial âlove and respect for animalsâ criterion presently deemed to be sufficient.
One imposing obstacle in the path toward being good scientists is that lawyers historically have had great incentives to be antagonistic to the cloak of objectivity which scientists are encouraged to drape over themselves; lawyers are often encouraged to be unscientific to prosper. Lawyers use rhetoric and persuasion to help others obtain or recover profits and to reduce or avoid losses; scientists do no such thing. Lawyers are approvingly paid by society for the private citizenâs use of their time and of their brains; scientists rarely so (and when it does occur it is considered distasteful). Lawyers tend to measure success or failure in the muddied vernacular of sports events, âwinningâ or âlosingâ a case or a point in a manner hardly distinct from scoring in a tournament; scientists, for their part, donât keep tally in that fashion as to what they might consider success or failure in testing a hypothesis or conducting an experiment.
Legal procedure and precedent, moreover, donât adhere to the scientific method, and prevailing in an argument can often be far more effective by a lawyerâs reliance on personality and stagecraft then on appeals to logic and rational analysis. Lawyers, in their dual role of advocates and performers, are hardly immune from subjectivity since subjectivity is a great tool in law. The history of American jurisprudence affirms it is lauded and acceptable that quite personal criteria be employed to achieve a clientâs goals and to deny an opponentâs victory. The lawyer, not the scientist, is the one expected to effectively frame issues along the path to a goal through eye-catching acts of pure persona, stepping behind or in front of (depending on how advantage might be gained) ever-shifting veils of personal preference, personal ambition, and personal benefit. The respective approaches are not easily reconcilable:
[L]awyers and scientists continue to see the world through very different lenses. Because
neither discipline will or should have to adopt the otherâs world view, they must reconcile
their differences. In practice, however, scientists are very often frustrated and disgusted
by their experience with the law. This is in part attributable to some lawyersâ failures
both to articulate clearly what their scientific needs are and to comprehend the science
and respect the scientists who enter the legal process. Lawyers too are very often
frustrated and disgusted by their experience with science. Many scientists fail to make
science manageable rather than magical, and some are willing to stretch science to
mystical heights for the right feeâŠThe law will never become a sophisticated consumer
of science until the lawyers and lawmakers become conversant in the language of science
and are comfortable in its culture. But science does not exist like a schoolhouse that can
be entered and exited as necessity requires. To be scientifically literate does not involve
memorizing the terms or supposed content of âscienceâ. Science is an approach or
methodology. It is a direction, not a destinationâŠIt is a rigorous and critical form of
analysis, one that seeks well-supported and parsimonious explanations for empirical
questions.[4]
Since emotional bonds easily form and are easily exploited between clients and the animals they own, as a consequence the practice of animal law then both heightens and degrades that distinction between the stagecraft of legal practice and the harsh light of scientific inquiry. I believe it should be otherwise. I believe that a more scientific approach, not a more lawyerly approach, to being the advocate in an animal case is beneficial. Encounters with clients, colleagues, jurists, and the public about pursuits of claims, defenses, decisions, and judgments in animal law cases, has exposed invocations of all manner of political and religious agendas in order to progress or impede an inquiry as to what a particular animal is, how it should be treated or disposed of, or what laws should apply to it. My dismay that those agendas disserve the task of understanding law, understanding science, and understanding animals, stirs me to attempt something better.
A core understanding of law, science, and animals begins with understanding evolution by natural selection as the crucial and distinctive force by which animals and humans have come to be. It is a process which informs the origins and trajectories of all three areas of inquiry, and from which even non-scientific social concepts such as âlawâ, âreasonâ, âvalueâ and, the subject/object distinction, all ultimately are derived. A grasp of how evolution works leads to a grasp of the immense pre historical foundations from which humans developed, which in turn founds appreciation for historical foundations on which law then developed. Evolution is a powerful tool for both lawyer and scientist to use in their joint goal of unearthing exactly where the laws affecting animals have been buried and in what form they have been exhumed. As evolution by natural selection has inexorably âengineeredâ people to behave in ways radically distinct from all other animals, then the reasons why law treats animals differently than people can be disinterred from a complex mixture of pre historic and historic events.
An application of legal rules, economic principles, biological concepts, and pre historical and historical observations on âwhat animals areâ, posited from the stance of a practicing scientist, demands the acknowledgement that animals are legally separate objects from human beings. Many contest that point, and, wishing it otherwise, large swaths of the public actively seek to re-cast animals into the legal equivalents of persons. They do so by rejecting and subverting aspects of animals as legal mechanisms, market goods, organisms evolved in tandem with human communities, and carefully selected personal properties owned, controlled, and utilized by people for critical social reasons. In embracing animals as objects, rules regarding property, contract, and tort can solve the unique puzzles that animals and their ownership regularly create. Across nearly three thousand animal law cases, it has become clear to me that there is a huge benefit to resisting immersion in the enticing bath of guilt, religious belief, and childhood fantasy in which we all wallow to some extent about animals â a tub of half-truths and prejudices that can distract the bather from acknowledging colder but more crucial truths.
To that end, know that there is a specter haunting the major themes of this book â the specter of animal rights activism â and that I aspire to exorcise that ghost. It posits animals as personal subjects of âselfâ, as analogues of people, and is propounded by a bevy of highly intelligent, yet emotive, morally judgmental, and politically-motivated thinkers. My purge of those propositions starts and ends with the recognition of animals as animate items fashioned by natural selection to in fact not be our equals at all, but instead to be elaborate pieces of the natural world with which humans have long engaged, and currently engage, in a plethora of intricate use-based relationships. While effective control and realistic valuation of animals likely needs to be better addressed in the law than it has been so far, their foundational status need not be transformed at all.
Animal rights advocates take serious issue with such a stance, and rail against treating animals as objects or as property.[5] That position, however, is enmeshed in a normative and moralistic view of the universe, not a descriptive and scientific one â a âhow things ought to beâ argument for change, as opposed to a âhow things actually areâ description for analysis. In certain spheres of life there is nothing wrong whatsoever with espousing change via moral judgments; religious and charitable organizations, for example, are commended, not reviled, for postulating possible worlds in which animals and humans act in idealistic tandem or as stand-ins for each other. No one blinks when businesspeople decide which relationships to foster and which to avoid based on moral judgments they may make about the use of animals: business decisions and business morality are phenomena which, unremarkably, are closely linked, and a corporationâs proclamation that itâs products donât harm animals is invariably proudly broadcast, not privately suppressed.
The legal profession, on the other hand, steps poorly when it applies moral criteria to analyzing interactions with animals; the selection of a lawyerâs clients or a caseâs subjects is presumed to at least begin by transcending decisions affected by personal mores. Lawyers are not just urged, but professionally obligated, to employ a quasi-scientific filter in that selection, the apertures for which developed from, and are subsequently regulated by, democratically-derived ideals and concepts, including and especially that lawyers are supposed to work from foundational principles concerning equal access to justice for all.
Areas of legal practice in which a moral treaty would be imposed on its practitioners would be abhorrent in any other respect. Consider the alarm raised in our legal system, for instance, were it learnt that lawyers in aviation law had bound themselves to only represent âgoodâ pilots as opposed to âbadâ ones, or that all landlord-tenant attorneys had made a group pact assuring that only ânobleâ landlords were assisted, while âevilâ ones were left to their own devices without representation. At the very least, the principles of equal access to justice and of equal protection of laws would seem heavily degraded by such an arrangement.
Yet in the realm of litigating animal cases, moral judgments about who are to be helped and who are to be hindered have permeated the practice. The earnest feeling among many law school animal law programs and graduates is that attorneys should represent only those who would âprotectâ animals, not those who might exploit, manipulate, confine, alter, or destroy them. Animal breeders, animal hoarders, animal eaters, animal hunters, and animal wearers are frequently shunned from consideration or from obtaining legal assistance by an agenda of âpromoting animal welfareâ. This restriction of exposure to differing viewpoints unfortunately weakens the richness of legal inquiry, drains value accumulated by embracing divergent approaches, and cuts short important questions to be resolved about human-animal relationships:
The ecocentrist helpfully asks, Is therapeutic culling of âmanagement speciesâ
(especially ungulates such as deer or elk) ecologically obligatory, regardless of whether
anyone desires to pull the trigger? The biocentrist inquires, Is nonsubsistence hunting
compatible with respecting an animal as a fellow âteleological center of lifeâ pursuing its
own evolved good? The virtue theorist wonders, What traits of character are cultivated
by sport and trophy hunting, and do these contribute to the best shared life? Do humans
have predatory instincts that are most healthily expressed through hunting? Is hunting
essential to a healthy relationship with the land, as Aldo Leopold believed? The
deontological rights theorist inquires, Do other animals have rights; that is might their
interests as we perceive them override any direct benefits they might offer humans as
prey? The feminist ethicist of care asks, Does hunting affect our ability to care for
animals; indeed, are we genuinely capable of caring about beings with whom we have
no sustained relationship? The utilitarian questions, Should all sentient animalsâ
preferences or interests as we perceive them, including our own, have equal weight
when we evaluate consequences? Can human preferences for hunting, if nonbasic,
justifiably trump basic animal interests in life, liberty, and bodily integrity?[6]
A large component of the equal access to justice for which those voices speak, the access to which animal breeders, hoarders, hunters, ranchers, and the like are entitled, is not just equal access to consideration, but equal access to reasonable justifications, in particular to that which can be gleaned from scientifically valid bases of information about where pre historical and historical relationships between animals and humans have led us.[7] As those voices reveal, wide avenues of explanation are open to the tolerant as to how the breeding, hoarding, eating, and hunting of animals are in many ways actions as respectful or protective of animals as would be their buffering from interference or their âliberationâ into the wild.
Much of that dialogue starts with realistically grasping the object role that animals play and have played in human societies. The enlightenment possible from that exchange flows from the revelation that the breeding, buying, selling, capturing, altering, repairing, and disposing of animals arenât automatically abusive practices. While it is easy to concur with a generic concern about protecting animals from intentional abuse, the lawyer-scientist should pause hard at accepting claims to locate support for expanding that concern into the territory of rights via the scientific evidence regarding animal behavior and life in captivity and in the wild.
Some advocatesâ claims that animals are âhealthierâ and have âricher emotional and social livesâ in natural environments have been well explored and found to have some scientific basis.[8] An unblinking readiness to inextricably link animal abuse or behavioral abnormalities to animalsâ placement in artificial environments, however, stretches that concept far too thin intellectually. Many animal rights advocates inexcusably disregard what detailed scientific evidence on animals in the wild and in captivity actually describes; the raw emotional appeal of life âin the wildâ being the preferable alternative often turns out to be in fact dismantled, not supported, by modern field studies in those areas.
Take the retention and breeding of elephants in captivity as an example. An ever-increasing set of zoological research articles in professional academic journals demonstrate well that habitat loss and habitat fragmentation have operated to expose dying, isolated populations of elephants in the African wild to vastly greater sources of pain and torment than any zookeeper could possibly inflict.[9] A significant body of literature in turn indicates that captive breeding programs for elephants are not just necessary adjuncts to, but truly the only realistic methodological option for, elephant habitat protection; and that zoos not only do not turn the vast majority of captive elephants into zombie-like supplicants or walking pathological disasters, but actually provide them greater physiological health benefits, more enriching behavioral experiences, and longer life spans than would currently be obtainable for them in the wild.[10] Advocates cannot in good faith look to âthe scientific evidenceâ to lambast elephant captivity because the actual scientific evidence does not help that effort.
Restraint from unblinkingly adopting such a position allows a healthier acceptance of the role people play and have played in the natural world, a recognition that the advocate mind-set should be more open to. The role is not necessarily richer in the amorphous sense of greater ârespectâ for animals or of finding greater moral âworthâ of animals â rather, throughout the course of evolutionary time the role has been one of humans being involved participants in the biological landscape in which the evolved adaptations of complex sociality and language have propelled us on a path fundamentally distinct from animals. A richness develops from embracing our participation at all levels as self-formed subjects â sometimes wresting, and sometimes failing to wrest, control of animals as immediate and long-term environmental objects. That role doesnât propose we are âaboveâ animals, or ânot animals anymoreâ since both propositions are empirically untrue. It is a stance that instead accommodates where we fit evolutionarily within a tangled network of other biological organisms around us. Critiques of humans as exploiters, in discounting our integral inclusion in food webs as being the exploited as well, miss out on that richness:
Our teeth, alimentary system, metabolism bear it out: neither carnivore, nor herbivore,
nor frugivore, nor granivore, we are all these at once. To get by on a diet of any one of
these is to be either painfully stressed and malnourished or preoccupied with
substitutions and additives. To willfully âbeâ an herbivore â i.e., a vegetarian â is a
special arrogance masquerading as ethicsâŠTo harvest any food is to kill living beings.
This realization has become painful to us because of our lack of a philosophy of death as
part of life and because in industrial societies we pay someone else to do the killing.
Such a philosophy would include not only the moral necessity of killing, as the source of
life, but recognition that we too are food.[11]
In recognizing ourselves as the eaten as well as the eaters, the manipulated as well as the manipulators, the captives as well as those capturing, pathways to understanding open up to us, not just cultural and historical paths, but ones hewn from far more ancient track ways carved by forays into anthropology and evolutionary biology. In one light, this book is a treatise since it examines âlawsâ of the scientific, social, and legal varieties. In another, it is something of a construction manual since it builds an argument from ground floor to skylight as to why animals are objects. For the biologist who seeks a better grasp on laws about animals and for the lawyer who seeks a better grasp on laws about biology, this work assembles several steps toward accomplishing both tasks.
Chapter 1 sets out the basic apparatus by which questions and answers are suitably collected, tools which scientists and lawyers both require for building strong and useful arguments. Chapter 2 digs into history and then into pre history with those tools to carve out foundations for an origin story of animals as objects, of law as a record of social agreements, and of morals as a fruit of the conjunction of law and language. Chapter 3 constructs a framework around competing ways of defining animals, and then ponders the viable and unviable uses supported by those definitions. Chapter 4 considers those uses to craft arguments about animals as properties having owners and as owned objects requiring attempts at control in ways effective and ineffective. Chapter 5 grapples with economic principles and practices which help identify bargained and transactional realities imposed upon interactions between humans and animals, the results of which then allow us to construct useful value schemes. Chapter 6 hones in specifically on the problems and promises raised by zoos, facilities where the exotic animals within them as specially held objects amplify relationship difficulties with people. Chapter 7 disentangles concepts of animal and human intent, spots key distinctions emanating from the concepts of culpability and provocation and promotes objectification as a valuable concept. Finally, Chapter 8 confronts head on the myth of animal ârightsâ in light of the strengths of human rights, hard won concepts contingent on identifying that crucial separation of humans and animals by the evolutionarily-driven phenomenon of language.
[1] RubĂĄiyĂĄt of Omar KhayyĂĄm, Quatrain XXXIV.
[2] Janovy, John. On becoming a biologist. U of Nebraska Press, 1996.
[3] See, e.g., Berleant-Schiller, Riva, and Eugenia Shanklin. The Keeping of Animals: Adaptation and Social Relations in Livestock Producing Communities. Totowa, NJ: Allanheld, Osmun, 1983
[4] Faigman, David L. Legal alchemy: The use and misuse of science in the law. Macmillan, 2000. pp. preface xiii, 203-204.
[5] A professional publication on animals and the law, for instance, talks about âimproving the legal status and/or treatment of animals such that their interests and inherent worth are recognized and protectedâ, and chides those who would call them objects or property as not using âethically sensitive languageâ. See, Schaffner, J. An Introduction to Animals and the Law. at p. 5.
[6] McKenna, Erin, and Andrew Light, eds. Animal pragmatism: Rethinking human-nonhuman relationships. Indiana University Press, 2004. at p. 46.
[7] Clutton-Brock, J. Domesticated Animals From Early Times. Austin: University of Texas Press, 1981; Clutton-Brock, J. âOrigins of the Dog: Domestication and Early Historyâ at pp. 8-20 in The Domestic Dog. Serpell, J. (ed.). Cambridge: Cambridge University Press, 1995.
[8] Bekoff, Marc. The emotional lives of animals: A leading scientist explores animal joy, sorrow, and empathy-and why they matter. New World Library, 2008.
[9] See, e.g., Chase MJ, Schlossberg S, Griffin CR, Bouché PJ, Djene SW, Elkan PW, Ferreira S, Grossman F, Kohi EM, Landen K, Omondi P, Peltier A, Selier SA, Sutcliffe R. Continent-wide survey reveals massive decline in African savannah elephants. PeerJ. 2016 Aug 31;4:e2354.
[10] See, Veasey JS. Assessing the Psychological Priorities for Optimising Captive Asian Elephant (Elephas maximus) Welfare. Animals (Basel). 2019 Dec 23;10(1):39.; Bansiddhi P, Brown JL, Thitaram C. Welfare Assessment and Activities of Captive Elephants in Thailand. Animals (Basel). 2020 May 26;10(6):919; Hildebrandt TB, Hermes R, Saragusty J, Potier R, Schwammer HM, Balfanz F, Vielgrader H, Baker B, Bartels P, Göritz F. Enriching the captive elephant population genetic pool through artificial insemination with frozen-thawed semen collected in the wild. Theriogenology. 2012 Oct 1;78(6):1398-404.
[11] Shephard, P. The Only World Weâve Got. Sierra Club Books, San Francisco, 1996.
A fascinatingly informative, if sometimes dry, read, Dr Geordie Duckler's Juris Zoology takes readers through the nuances, fallacies, and difficulties faced by those who practice law, and those who are subjected to it, when it comes to animals. Written by someone who has both studied and practiced law pertaining to animals for decades, as well as the recipient of a Ph.D in biology, Duckler is perhaps one of the few people on earth with the education and professional background to write a study of this kind, and what a study it is.
There are many, easy statements to make about the animals we live with, work with, eat, and watch Nature documentaries about. "All creatures should be protected by the law!" is perhaps the simplest of these, but what Duckler does is reveal simple, blanket statements like this for the nightmare fallacies that they are. If all animals are protected, then how far down the scale do we count? When you give your dog a flea-bath, are you committing genocide and therefore legally responsible for the deaths of those insects? What about your dog when they catch a rabbit, are they now a murderer, and thus should charges be filed against them and a trial convened? If your dog does go to trial, who mounts their defense? Does the state or owner provide an attorney, or does the dog defend itself? When we say that those who are tried in the United States are to be judged by a jury of their peers, what constitutes a dog's peers? The rabbit hole gets twistier and more ludicrous the deeper you go.
This is, most assuredly, a simplification of a complex book and a complicated legal, moral, and ethical question that we should all grapple with at some level, but especially our lawyers and lawmakers. If nothing else, Duckler lays out in stark terms that there are no easy answers when it comes to protecting the natural world and those we share it with. The myriad delineations, conscious and unconscious, of which animals we deem worthy of legal protection or exclusion, the reasons we protect or exclude them, and the ways that we must justify those reasons, are as complex as they are varied. They are questions worth sitting with for a while, and certainly the kinds of things legal minds should not take flippantly.
Juris Zoology is perhaps not a book for the casual readers, but will be invaluable to legal scholars, animal rights activists, and those whose livelihoods depend on animal stock for years to come.