Redefining Democracy: How Constitutional Law Could Embrace All Sentient Life

And our guests today know where they think we should go. And that is to include animals, in fact, all sentient beings in the Constitution. And this notion is obviously fairly radical. And it's also in line, I think, with what most people actually think, that animals should not lie completely outside the law, and they should be in our foundational legal documents.

Though opinions may obviously differ as to exactly where they're place within the law is. But before we get to that, just let me take one moment to remind you to subscribe and like on YouTube or wherever you listen to podcasts and to listen to our other podcasts, The Hen Report and Rising Anxieties.

And now, let me introduce our guests. Raffael Fasel and John Adenitire are the authors of the soon to be released Animals and the Constitution: Towards Sentience Based Constitutionalism. Raffael is an assistant professor in public law at the University of Cambridge, a fellow of Jesus College, and co-director of the Cambridge Center for Animal Rights Law. In addition to Animals and the Constitution, he is the author of More Equal Than Others: Humans, and the Rights of Other Animals and co-author of Animal Rights Law.

John is a senior lecturer at Queen Mary University of London School of Law, and a co-director of the Forum on Decentering the Human, a interdisciplinary Research Center. He has published extensively on constitutional rights and animal rights and teaches, among other things, animal rights law at Queen Mary.

Welcome back, gentlemen.

[00:01:58] John Adenitire: Thank you very much.

[00:02:00] Raffael Fasel: Thanks for having us Mariann.

[00:02:01] Mariann Sullivan: I am excited to be diving into this both because I find all of this extremely intriguing and the book has so much in it that I feel like I have a million questions for you to try to sort out how to think about this issue, which I have never really considered before.

And I, I just wanna start as I think you do in the book with this very basic, but very big question, and I think in the United States right now, something we should all be thinking about a lot.

What is the purpose of a constitution, and where do they come from? How do they develop? They're a relatively recent phenomenon.

[00:02:36] Raffael Fasel: Absolutely. And so, we look at this question by going to the origins, the roots of certainly modern constitutions in the 18th century. You know, with the American constitution emerging at that time, and, you know, the French drafting several constitutions as well. And, and what you're seeing there is a, a certain type of constitution emerge.

It's a constitution, you know, sometimes called classic constitutionalism. It's a constitution that revolves around the idea of the hypothetical consent of the governed, right? You're moving away from a system of governance that is explained by a divine rite of kings, right?

A monarch that just, you know, happens to govern because supposedly they're ordained. We, we move away from that and we say, no, it's the governed who are supposed to decide the constitutional instrument that governs them. Right? And for a very long time we thought that, oh, you know, we've, we've devised constitutions that are quite legitimate. Certainly to the extent that they live up to this idea of hypothetical consent of the governed. But what John and I argue in our book is that the constitutions we have now, even the best constitutions around the world, they exclude many beings that are governed by constitutions, but don't have any say in what these constitutions look like.

And that, of course is, you know, sentient beings other than humans, namely, uh, you know, animals. And the point of our book is to explore what constitutions would look like if they gave due concern to all sentient beings that they govern.

[00:04:24] Mariann Sullivan: Yeah. And one of the points you make, and of course this is a point that's made frequently in moral philosophy when you talk about animals, is that it's not just animals. There are also many humans who obviously are governed by the constitution, but are not participants in any way. And even most of us, even if, you know, we vote and, and participated in some limited way in our government, are not really, uh, really deciding how we're being governed.

So it's not as radical an idea that a constitution should apply to everyone as it seems like.

[00:05:01] Raffael Fasel: Yes, that's exactly right. And, and the point you're making about there being persons who are excluded from, you know, the current constitutional structures is, is exactly right. And it's one that we draw out. We show that there are connections here because, you know, recall what I said about this hypothetical consent of the governed that is at the heart of constitutions as we know them. If you zero in here, this is consent of the governed. So this presupposes that you're the kind of rational, autonomous being that can give consent in the first place, right? So it requires a certain sort of a mental, sort of capacity that not everyone has. And indeed, as you point out, there's also some human beings who may have that, you know, mental capacity, but they are just not given the opportunity to participate in constitution making moments or, you know, constitutional amendments. So, uh, for all these reasons, we say, look, there's some connections here. There are human beings who are marginalized by the current way we think about constitutions. And of course then there are also animals who are excluded from these processes because many, if not all of them, too lack this capacity to rationalize constitutional norms and then consent to them, you know, in some formal way.

And that's why we think we need to move away from this, this model of constitutionalism and adopt what we call sentience based constitutionalism, which is more inclusive.

[00:06:31] Mariann Sullivan: Yeah. And clearly you're proposing fairly enormous shifts in what constitutions should be about. Before we actually get into that, I kind of have a preliminary question. Who is the audience for these suggestions? I mean, this feels, even to me, this feels like something that, you know, we can't just sit down and work on this, on getting this into the constitution.

Is this for constitutional scholars for debate or is it a toolkit for movement litigators in some way that can be used? Or for policy makers or, or just a source of inspiration for activists on this is where we should be headed, even though we're not yet? So how can the ideas in this book be useful in the here and now?

[00:07:14] John Adenitire: Yeah. When we started thinking about this book, one of our initial questions was, who are we writing this book for? And, um, this book has been published in a university press. So evidentially, at least from the outset, it is directed to a, primarily an academic audience, right?

Because that's the medium. If we wanted to engage directly with, I dunno, the members of the public, we would probably speak to the New York Times or some big, uh, big scale publication, not an academic one. Nevertheless, for us it was important that even though this, this book is published in a university press, that the language of it was so that anyone who was, uh, fairly well-informed and engaged in these issues could follow the arguments and could follow the analysis that we present. So we're trying not only to engage with an academic audience, but with a generalist audience. And of course, we are very interested in constitutional theory, as anyone who would approach the book will see that we draw from a range of legal practices, not just from our own domestic legal system like, uh, the UK where we are based, or from familiar ones like the US, but we try to take our legal examples and the practices from all over the world. And in fact, we, we often take examples even from the, uh, so-called Global South. We really want to reach as wider, uh, an audience as we can. But of course, we also have to rely on our own expertise, which is in constitutional law, constitutional theory. And we are of course also academics. So we try to reach as many people as, as possible through the medium that we have.

[00:09:03] Mariann Sullivan: Yeah, I think that's great. In fact, on a very, very different level, I feel that that's what this podcast tries to do as well is kind of take some, you know, legal concepts that people are not necessarily that familiar with, if they're not lawyers or in your case, constitutional scholars and make them not exactly easy for people who've never studied this stuff, because there's always a lot that you're not familiar with, but at least understandable. Because I think so many people doing animal activism really like the need for that big picture of where are we going is so hard to find 'cause we're so far from it.

But it really helps people, I think, try to think through what is the next step. Before we go further, you pointed out classic constitutionalism obviously leaves out animals, but there are other theories of constitutionalism.

And can you just quickly go over where animals do appear in the constitutions of countries? 'Cause I've certainly heard of that happening, um, I think Germany is one. And why you find perhaps that that's a nice step forward, but not a very far step forward? If I'm characterizing you right.

[00:10:12] Raffael Fasel: You are, you are Mariann. So we have indeed seen a recent shift in constitutions around the world towards incorporating animals in one way or another. Now, not all constitutions have done so, but quite a few have. And what we do in the book is we take a close look at these, you know, provisions that are now included in constitutions in certainly a reasonably large number of countries, and we ask whether this actually does the trick, right? Does this actually now turn these constitutions into sentience based constitutions as, as we call them? And the answer is no. Because whilst it is, you know, a, a laudable trend, it doesn't go anywhere near where a sentience based constitution would have to be.

So let me give you some examples here. So, what you're seeing the most in constitutions is so-called competence norms. So constitutions basically just saying, okay, so it's for the states to, you know, legislate on animal welfare, the constitution doesn't set a standard as to, you know, what kind of provisions need to be set and what kind of protections animals need to receive.

It just says you, the state have the competence, or the federal government has to competence, right? So entirely neutral as to content. So not particularly helpful to animals.

[00:11:32] Mariann Sullivan: Though, actually, just let me say 'cause I like to appreciate anything, it's a step forward because animals didn't even exist before that.

[00:11:41] Raffael Fasel: It is true. So you now have the word animal appear in, in

[00:11:46] Mariann Sullivan: They exist.

[00:11:47] Raffael Fasel: So

[00:11:48] Mariann Sullivan: matter in some way.

[00:11:49] Raffael Fasel: That's true, in that sense, they are acknowledged. They, they exist, but there is no standard that is, is set as far as the protection that we should give them. Slightly better are constitutions that contain state objectives, as we call them.

So these are, you know, you refer to the German constitution. So the German constitution has a, a provision article 20A of the basic law, which says that mindful also of its responsibility towards future generations, the state shall protect the natural foundations of life and animals by legislation, uh, et cetera, et cetera. So it's now saying that we should be mindful of these foundations of life, right? The environment, animals. So the state should protect them as well as possible, but it's not setting out clearly how they ought to be protected. It's a mission statement, if you like. It's purely aspirational and whether or not the state then lives up to that is a separate matter.

And often, you know, you can not actually claim that, you know, it's not judiciary reviewable, essentially, right? So it is just a

[00:12:59] Mariann Sullivan: Right,

[00:12:59] Raffael Fasel: nice statement.

[00:13:01] Mariann Sullivan: Rather a wide range for interpretation there.

[00:13:04] Raffael Fasel: Absolutely. So they tend to be really vague statements. Basically, they sound very nice, but it's not quite clear what they mean, and they're not really enforceable. The most exciting type of provision that you're seeing in a handful of constitutions is a, a more detailed, sort of a level of protection that is required for animals.

So this, in some countries, this takes the form of a duty for citizens to respect animals. So India has a provision of this sort, or in my native Switzerland, we have animal dignity that is protected in the Constitution in Article 120 of the Constitution. So these are constitutions that go a bit further still and actually say, no, actually we need to respect, say the dignity or, or citizens need to be respectful of animals. So that's, that's quite exciting. But, what it doesn't really do is give animals the level of protection that they would or should receive under the type of constitution, the sentience based constitution, that we're imagining. And, and perhaps we can sort of, you know, explore in what respect we think they fall short now.

[00:14:08] John Adenitire: Yeah. Maybe to add to that, there, there is also a even more recent development, which I think adds to the picture that Raffael has been painting, which is, uh, provisions in especially Latin American constitutions like the one in Ecuador

[00:14:22] Raffael Fasel: Yeah.

[00:14:23] John Adenitire: Where constitutions protects the rights of nature. And courts, especially the Ecuadorian Constitutional Court has interpreted this to entail a protection for certain animals. In particular, wild animals have been found to have considerable sets of constitutional rights. But of course they get these rights from the protection of nature as a whole. I think this is even a, uh, more welcome development than say the, uh, the Swiss recognition of animal dignity. But again, there seems to be a caste here. There's on the one hand, uh, wild animals that have some extensive constitutional rights, whereas domestic animals have fewer, if any, constitutional rights. Think this falls way short of what we'd envision in a sentience based constitution. Yeah.

[00:15:19] Mariann Sullivan: But does symbolize for me to some extent, and I think this was born out in the well-known Estrellita case in Ecuador, that, you know, the decisions about wild animals, they're not easy, but they're a lot easier for a court to contemplate interpreting in a positive way than situations for domestic animal because of animals raised for food.

I mean, just the stakes... it's so hard to envision coming up with a provision that doesn't completely change the world. So I, I appreciate countries that have at least tried and, and I agree. Latin America seems like some of the most interesting thinking going on there. All right.

But let's get back to your theories, because I think one of the basic things that you wanted to talk about is what is constitutional worth and why is it sentience? Why is sentences the dividing line between who matters constitutionally and who doesn't?

[00:16:13] Raffael Fasel: So the, the approach we take is we focus on sentience, as you say, and we say that all sentient beings that are governed by a constitution, by which we mean sort of, uh, agents of the state have effective control over these beings, whether it's their bodies, their lives or their habitats, then they're governed by these constitutional systems. We focus here on sentient beings because we think there's sufficient agreement in both theory and practice around the need to protect sentient creatures because, you know, they have the capacity for what's sometimes called valenced experience. They can, you know, sort of feel things that are good or bad, beyond just pain and happiness, you know, very complex emotions depending on the animal. Like, you know, maybe grief, uh, for instance, which is really, really very interesting and many others as well. We are, however open to other frameworks. So, many folks focus on vulnerability, for instance, and they think potentially vulnerability is broader than just sentience, which just say sentience is a sufficient criterion.

[00:17:21] Mariann Sullivan: I think focusing on sentience is, is going far enough for, for, for this conversation for the moment and not having to go further. Though the whole word sentient has shifted, I think so much with all of the research regarding insects, and sea life as well. So sentient turns out to possibly, probably be a much broader category than perhaps you realized when you started thinking about this book.

[00:17:46] John Adenitire: In fact, uh, Rafael and I are working on another book at the moment, uh, an edited volume. One of our contributors has submitted an excellent paper on sentience in insects. And that many of the claims that we make regarding, let's call them charismatic animals, may well extend, given cer certain, uh, scientific developments, they may well extend to certain insects.

Bees, for example, have been shown to be very complex, not just only necessary for our, uh, our environment, for the survival of ecosystems, but also to be just very, very aware of their lives and, and to engage in all sorts of valence activities such as play, and so, so on

[00:18:33] Mariann Sullivan: And the, the dancing, like the bees come back to the hive and they dance, and then the other bees know where the flowers are. It is crazy. Uh, whatever, whatever you open. I mean, studying animals and animal law is just a constant series of Pandora's boxes that you are never gonna know. It just keeps expanding and becoming more complex, and it, it means that the world is so extraordinary and beautiful and we do such a very poor job at governing it.

Speaking of governing, what do you mean by by animals that are governed? Do you mean animals that are private property, do you include animals that are private property that are within the jurisdiction? So you basically mean all the animals in the jurisdiction. I mean, are there any who wouldn't be governed?

[00:19:19] Raffael Fasel: Yes, that's right. So certainly, you know, the sort of core cases here would be, you know, factory farmed animals clearly are governed by the state in the sense that the state creates a legal structure where these animals can be owned and, you know, used as resources, right? Animals used for, you know, experiments, companion animals. These are all clearly governed by constitutional systems. We have a discussion in the book where we talk about wild animals, certainly in very large states. You know, if you're thinking, I dunno, Canada or you know, Russia where there's wild animals that potentially, you know, state agents don't really, you know, govern in a strict sense.

So potentially they would not necessarily fall under, under our, uh, sort of definition of a governed being. But it's not necessarily sort of jurisdiction specific. So if you're thinking, you know, an occupied territory, for instance, that's outside the jurisdiction of a state. But if the state has effective control over the animals who live there, then they too would be governed, in our sense.

[00:20:21] Mariann Sullivan: Assuming that this extraordinary number of animals, and probably most types of animals, that, that keeps getting bigger and all the animals that are within the jurisdiction or are governed in some other way have constitutional worth. What does that mean? What concern is due to anybody with constitutional worth?

And now we're really getting into it.

[00:20:45] John Adenitire: Yeah. Constitutional worth is a way of recognizing the intrinsic value of these sentient beings. That translates in practical terms, in that the legitimacy of the Constitution depends, among other things, how this constitutional system treats these sentient beings in particular, if it re respects the intrinsic value and recognizes their rights. Both Raphael and I work within a broadly liberal framework. So we are proponents of rights based framework and we apply that to animal rights. So we think that this idea of due concern is, is one where the rights of sentient beings are respected. Of course, because we work within constitutional framework, uh, constitutions do not just reduce to rights. There are other things than rights in constitutions. And in fact, we explore in the book, constitutional principles, which go well beyond rights. Of course, we have a chapter, I think this is chapter three if I will remember, on constitutional rights, but we also have a chapter on proportionality, which is the chapter that really tests, uh, help us think about the clashes of,

[00:22:04] Mariann Sullivan: Yeah.

[00:22:04] John Adenitire: of rights. So I think an important consideration. We have a chapter on the rule of law, which is often thought to be a cardinal constitutional principle. Finally, we have a chapter on democracy or political participation. So of course, due concern means respecting the intrinsic worth and the rights of sentient being, but also means thinking about constitutional principles that go well beyond rights. And to see how these principles could be rethought, should be reshaped in order to serve the interests of these sentient beings.

[00:22:44] Mariann Sullivan: Yeah, well that seems to be the extraordinary contribution of the book because people have been talking about moral rights regarding animals for a long time. I mean, not that we've managed to, you know, achieve any, but that's the whole idea. We talk about them, we understand more and more about what that means and what they are and different theories, but the real point is to try to get constitutional rights or legal rights or some kind of rights. I feel like this question is a little out of place, but I would like to ask it here if that's okay, because I'm curious to know how do we determine what those rights should be?

How do we determine what's in an animal's best interest? I mean, obviously that is different for animals than for humans, even for humans who are disabled. We are humans as well, so it is much easier for us to intuit what would be in their best interest, but who decides what their interests are? I mean, obviously this is the reason, perhaps, that the world has fallen apart so badly on this because we can say whatever we like.

Oh, that's the way they want it. How do we legitimize the system that determines what animal's interests are?

[00:23:50] John Adenitire: Yeah, I'll take a first stab at the question and then I'll pass the more difficult part to Raffael

[00:23:56] Raffael Fasel: Thank you.

[00:23:57] John Adenitire: If I may. So I'll just take the part regarding the constitutional rights chapter or the fundamental rights chapter. And, you said something Mariann, about us not being the same as other animals.

And that's, that's absolutely true. And that sometimes we have difficulties in really understanding the interests that grant other animals protection. However, we are also animals. So in that constitutional rights chapter or fundemental rights chapter, we take the view that essentially, the same bill of rights, okay, that protects human interest, can also, if adequately interpreted, also be applied to protect animals because of course, there're commonality of interests and capacities that we have that we share with other animals. So in the chapter we talk about interest in life, in freedom, and freedom from torture or physical integrity, right? So these things, I think, all sentient beings, especially all sentient beings that we know of, okay, have, have an interest in these things.

And because constitutional, uh, fundamental rights protect these basic interests, then, we can assume safely, I think, that most sentient beings, if not all, have these shared interests. So to the extent that constitutional rights protect this interest, then we can use the same legal instrument, the same Bill of Rights to protect both human and animal rights.

And in fact, some animal rights advocates have actually tried that strategy. Constitutional scholars may know about the Tilikum case where some annual advocates try to protect, if I'm not mistaken, an orca through the constitutional prohibition of slavery. Now, of course, they were not successful, but I think there's a recognition that some of the interests that we have, and by we, I mean humans, are actually shared with other non-human animals.

[00:26:02] Mariann Sullivan: If I could just add the court in that case specifically rooted in a historical fact that that was a specific statute meant to apply to a specific situation, kind of avoiding the whole question of whether there was any analogy or was, anyway, by tying it to that historical fact of emancipation, the court kind of got out of that analysis.

[00:26:25] Raffael Fasel: Yep.

[00:26:25] John Adenitire: Indeed, indeed. There's another part of your question that I think is really worth asking and is the more difficult part, which is about how do we understand what interest animals have? And I think Raffael has thought much more about this issue than I have, so.

[00:26:40] Mariann Sullivan: Now, this is the part of the question that I, it's a little out of order from your book and I apologize for that.

[00:26:46] Raffael Fasel: It's a really important question, so you might as well take it here, because I think it, you know, it sort of, we basically discussed it in the democracy chapter of the book.

[00:26:54] Mariann Sullivan: Right,

[00:26:55] Raffael Fasel: You're

right. I think to ask the question now because it touches on all aspects of the book, of course.

Because all aspects of the book, essentially rely on, whether we can know to a certain extent or minimal extent, at least, what animals need, right? What their interests are. So, so I think it's really crucial. So the way we approach this, you know, is as John said, I think there is a sufficient overlap between interests that allows us at least to have a sort of presumption of, you know, knowing broadly what's going on, certainly with animals that are close to us from an evolutionary point of view. And in that, in fact, Frans DeWalder, a sort of famous primatologist who, uh, unfortunately passed away, you know, had some really interesting reflections on this where he basically said, the closer an animal is to you from evolutionary point of view, the more it makes sense to anthropomorphize, right? The more it makes sense to assume that behavior is probably based on sort of something similar going on in the organism than it is for an animal that is very far away from us from an evolutionary point of view. So it's not necessarily bad science, let's say, to that there are commonalities, there are parallels here, and we can take that as a starting point.

Now, the important thing, of course, is to not stop there and to not think that, oh, just because, you know, this behavior X of an animal seems to us to be, you know, reflecting pain, for instance. Therefore, it necessarily means the animal's in pain or vice versa. The animal's happy because they don't run off. Right. Well, maybe there's another explanation for that. Maybe the animal, you know, doesn't have that, you know, pattern. They don't run off because they sort of trying to hide the pain, but they still, you know, have pain. I'm thinking donkeys, for instance, or horses. Now, there are very interesting approaches in the scholarship that we draw on.

So, Sue Donaldson, for instance, a scholar based in Canada. She's argued for what she calls micro boards to help us find out better what is in an animal's interest. Uh, so she says there are naturally humans that an animal will trust more than others, and that potentially might have a, a better understanding of the animal's needs and interests.

So if you're thinking maybe of a person who has a companion animal and they are, you know, really familiar with what the animal sort of does on a daily basis, what's normal behavior, what's not normal behavior for that animal. That will be a really good person in most circumstances, to ask what do you think is in that animal's interest? And you even have to go beyond that. You know, Donaldson argues, and we adopt that in the book, you also need to give the animal opportunities to express, you know, their desires, right? Because obviously there's a problem of what's called adaptive preferences, right? So if you're just in an environment and you get used to it, you don't really know that there's alternatives out there.

It will seem like you're happy with the situation you're in now, but really you're not. Because in context, actually, you would've rather done something entirely different.

[00:29:58] Mariann Sullivan: We all see that in animal, like a dog who's been in a cage for five years doesn't wanna come outta the cage. Because we know dogs, we know, well, that's not real. That's something that has to be overcome.

[00:30:09] Raffael Fasel: Absolutely. So, so that's why actually in the book we emphasize this idea of participation, right? For us,, I think there are scholars who focus just on, we should consider animals interests. And that's important, but what that neglects, I think, is the problem of this becoming like a top-down thing, where it's humans sort of deciding what's in the interest of the animal without really giving the animals a choice in the matter, without allowing them to express their behavior in ways that are potentially, you know, unforeseen and, and surprising. And that's why we say animals need to participate as well in democratic systems, something we can talk about. But I guess it touches on the point as well about how do we even know what their interests are. Well, it is by giving them a voice, by giving them some agency in telling us what their interests are.

[00:31:01] Mariann Sullivan: Yeah, it's hard and, and it's hard to think about how this would happen. But you have, I'm not sure we can get into all the details, but you have laid out what you think is at least the beginning thoughts of a system by which we could put this into effect.

I'm just saying something that occurred to me because I always think that the whole concept of burden of proof and the way we use it in the law is undervalued when it comes to animals cause there is a certain point at which the burden shifts. You know, in any legal case, you put forward a certain amount of evidence.

It doesn't have to be absolute proof and then the burden shifts to the other side to disprove it. And I think that should be clearly always used when evaluating what an animal's needs are. Yes, as you say, it's hard to ever know for sure, but we all seem to be waiting until we know for sure, what we're supposed to do.

And, and until then we can do whatever we want. At least that's the way it's argued to us. Anyway, that was neither here nor there. I just wanted to say it because I did wanna get back to another topic 'cause this is another, uh, pet topic of mine, so to speak. And since virtually nothing we do to animals nowadays is necessary, it's hard to argue that any of it, virtually any of it is necessary. If animals are protected from unnecessary suffering and death, which they actually already are, at least in every jurisdiction in the United States and probably in many places around the world. Do they need any more complex set of rights or is the rights that were thought out 150 years ago actually get it right?

[00:32:37] John Adenitire: Yeah, this is a very interesting question actually. Um, Rafael and I have had the discussion because we both shared a student that was writing on this very topic, whether existing legal provisions that protect animals from unnecessary suffering, maybe that's all that is needed. I think this is a very interesting question, and in fact, this student that we shared is writing a PhD on this very topic.

So I cannot assume to, to know the complexity of how to go about answering the whole of that question. But nevertheless, I think this idea of unnecessary suffering, prohibition of unnecessary suffering sits within a particular tradition, the animal welfare tradition, which still allows animals to be considered as use, okay? To be exploited, right?

So it is a, it is a use paradigm. So you can use animals as long as you don't inflict unnecessary suffering. And yes, we can perhaps try to extend this idea of what is necessary, what is not unnecessary. But here, even within this paradigm, we are not, if we stay within this paradigm, we are not confronting that it is nevertheless an exploitative paradigm, right? So personally, I think I would want to, even if we could change the word by still remaining within this paradigm, I think we'll still fall short of sentience based constitutionalism, which is, which doesn't, conceptualize animals as objects to be used, but as a, as intrinsically or inherently valuable, right?

So that's why we move towards a, a rights based framework. I think that's how I would answer that question. This is not to say, of course, that the, the unnecessary suffering could be interpreted to be much more demanding than it is now.

[00:34:30] Raffael Fasel: If I can come in here, I think it's just, you know, perhaps the best and most glaring example of how proportionality isn't applied properly to animals, right? And the book goes into some, you know, detail about the different ways in which proportionality should be rethought so as to protect animals' interests better.

I'll just, you know, give you another random example I came across the other day. So we went to the botanical gardens here in Cambridge and my mom was asking whether we could bring our dog along. And I looked into it and I saw that actually the botanical gardens don't allow dogs except assistance dogs, which they need to legally. And I was sort of thinking about this in, in terms of proportionality because clearly what's going on here is there's something disproportionate going on. Right. Most likely the justification for this ban is something like the gardens don't want, you know, sort of dog fouling, effectively. But there are much less intrusive means to, you know, sort of prevent that problem than banning dogs from entering altogether.

You can have, you know, sort of dog bins, you know, plenty of dog bins around. You can have maybe staff members, you know, reminding people to pick up, you know, after their dogs. There are much more proportionate ways of, um, sort of handling this problem than just an outright ban. And it's maybe just, you know, a sort of tiny example.

But there are, uh, so many different ways in which we treat animals in ways that we would never treat humans, because we don't think that this basic, this fundamental constitutional principle of proportionality, we just don't think it applies to animals at all. We can just, you know, have this really sort of not particularly well thought out measure apply to them, this ban, whereas there's much better options out there that would be much more accommodating of their interest taking into account that dogs share public spaces with us, and indeed other animals too. So that's just another example to show that there's plenty of those around. And in virtually all cases, the animals' interests lose out because they're not factored in sufficiently.

[00:36:29] Mariann Sullivan: Yeah, and I, I would like to take a step back actually, because I had promised you we were going to reach the topic of proportionality, which obviously is hugely important. And when you start talking about rights, inevitably they're going to come into conflict and inevitably, if you don't figure out how you're going to fix that, people are just gonna give you a trillion examples of how this wouldn't work.

And, and if it's just two rigid sets of rights, it's not going to work. So, yeah. And these are two terms, which you probably are very familiar with, proportionality and non instrumentalization, which the rest of us are not at all familiar with, but I think they're important concepts in constitutional law.

So can you just take a step back, now that you've given us this example of, um, how proportionality isn't being used in, in this very specific way? And tell us how they apply in, you know, more generally, especially when we're thinking about how a constitution would work without just set setting up a bunch of rights that don't make any sense in the context of everybody else's rights.

[00:37:32] John Adenitire: Yeah, these terms that you have talked about, non-instrumentalization and proportionality, I think follow very naturally from what we were talking about earlier, in terms of unnecessary suffering. So one paradigm that we have is the use paradigm where animals are inevitably considered as instruments that can be exploited, that can be used for our own purposes. And sometimes we forget the teaching of moral theory, or at least some strand of moral theory that actually shows us that animals because they are sentient beings, have their own interests, have their own wellbeing, experience their own interests, experience their own one being. And so they are inherently valuable. And actually this, this idea of inherent value, it ties very well with, with the idea of rights. That it, it is beings that are inherently valuable, that are protected by rights. That is, that their value is not reducible to the value for others, but to the value for themselves. And we take this insight, which is a, I guess, a concious insight, broadly concious insight. Uh, and we use that to help us think about this proportionality, and the balancing of rights. Well, if animals remain within a, exploitation or use paradigm, then they wouldn't have rights in the first instance, okay?

They can just be used for whatever purposes we think are, are good or bad. But because as we argue at length in the, in the chapter, they are inherently valuable and they should be subjects of rights, then when we consider conflicts of rights, we need to keep in mind that these are, uh, this conflict arise when there are inherently valuable beings, when the interest of inherently beings come into conflict, right? Even if human rights come into conflict with the rights of animals, which they, they may well do, then just this understanding that we are talking about two sets of beings that are inherently valuable should really help us think through, uh, some of these very difficult cases.

In the book, we talked about the Nowsed case. I hope I'm pronouncing this correctly, which some may recall that. When, uh, the US troops withdrew from Afghanistan in a very hurried way, and rushed way, many people tried to flee the country through planes. Of course. And, one particular individual who was, uh, running an animal charity also tried to get some animals out of the country by using a, a private plane. Okay? And some people said, well, this is a horrific situation because now the rights of animals are prioritized over human rights. Okay? Maybe a human could have used, or some humans could have used that same flight and left the country and be safe. Now, of course, some people dispute this version of events, whether actually, uh, humans could have used that particular flight because of permissions or et cetera. Some, some technicalities that, uh, I can't well recall. But in any event, let's say that this is the case that actually some animals use flights that could have been left to some humans. Then of course, if we don't consider animals as entitled to rights in the first place, okay, we don't consider them as inherent valuable as having their interests matter, then of course our natural conclusion would be to say, well, humans should have had access to that flight and no animals should have been evacuated through those flights.

However, if we think that actually, you know, the constitutions and constitutional systems should pay due regard to the interest of both human and animals, then we enter into a much more complex sets of discussions.

Okay. Whose interests should prevail in this occasion? You know, whose life was most at danger? Were they humans or was it the animals? You know, in the book we have a lengthy discussion on this and we say, well, possibly it's the humans whose life was most in danger because, uh, especially humans that had participated with the US forces or with the allied, uh, western troops, you know, would, would be persecuted because of that. Whereas maybe animals, uh, most animals, especially animals that were in sanctuaries that didn't work with the troops, their life would be less at danger. Okay? So you see here, it is no longer about who gets automatic priority, but we have to give reasons to prioritize one sets of individuals over the others.

And we only have that if we shift from this use paradigm of animals to a paradigm where both sets of individuals are recognized exactly as individuals that are entitled to rights.

[00:42:26] Mariann Sullivan: And that case obviously is a difficult one that had many different considerations on both sides. But there really, when we're talking about the vast majority of the billions and billions of animals, it's not that difficult, is it?

[00:42:39] John Adenitire: Hmm.

[00:42:40] Mariann Sullivan: the, the weighing of these interests. So taking all of this into account, if fundamental rights were extended to animals and taking into account principles of proportionality and non-instrumentalization, would there be any domesticated animals?

Is that the world that you foresee? Would breeding animals for any purpose be, be permissible? Is is the whole world completely changed?

[00:43:03] John Adenitire: Well, factory farms would definitely not be permissible. In fact, farming for the purposes of food, especially in, in developed countries that have access to well planned vegan diets or supplementation, we don't see any proportionality. Of course, there are very difficult cases where humans don't have choices.

Right. They don't have access to,

[00:43:26] Mariann Sullivan: Right. We as vegans, we get asked about those cases all the time, so answer, answer it. If you're on a desert island and the only thing there is to eat is fish, can you eat it?

[00:43:38] John Adenitire: Well, uh, I, I guess so, but, uh, I, I guess then it raises a similar question. If you are on a stranded boat the only, only only thing left to eat is the flesh of a companion human on this boat would you be permitted to eat your companion human? Uh, and so I think this question doesn't make for good general principles, right?

Like super hard cases like this, extreme cases do not make for very good general principles.

[00:44:07] Mariann Sullivan: Let me just ask you though, do you think the fish question is different than the human companion question, or is it exactly the same?

[00:44:14] John Adenitire: Well, it is, of course not exactly the same, uh, because, I guess in the, in the, uh, human companion question, you have some kind of, uh, deep relationship with the other human on the boat. Presumably you have spent at least, uh, several days talking to each other, getting to know each other even if you were strangers.

Right? And this kind of, uh, relationships that we develop with others also have some kind of moral significance. With the fish, possibly these are not the same, but what is the same, at least on our framework, is that both of, of these individuals, the fish and the humans are individuals who cannot just be instrumentalized.

Their, their value is not just reducible to the value for the others. So we have to, in so far as possible, take into account their own interest. So of course, these situations are not exactly the same, but it is not as straightforward as some people would want us to think these are.

Yeah.

[00:45:14] Mariann Sullivan: Yeah. And we don't always have exactly the right answer, but we, we at least are willing to ask the question. So how does this work for animals living in the wild? One of the questions that's always asked is, do we have to protect prey from predators? And how do you answer that in the context of a constitutional framework?

Because the government actually has to protect animals. I mean, not just pass a law, but protect animals from certain harms as well under your framework. Is that right?

[00:45:39] John Adenitire: Mariann, you're asking too many difficult questions.

[00:45:44] Mariann Sullivan: Thank you.

[00:45:45] John Adenitire: Yes. No, no, of course. No, we, we, we thought about this of course. Uh, in the book. It's

[00:45:50] Mariann Sullivan: Believe me, everybody's gonna, I mean, we know we get asked these questions all the time. Like they, they love to ask 'em, not like, oh, how do we get rid of factory farming? Uh, you know, let's not talk about that. Let's talk about the desert island.

[00:46:02] John Adenitire: Yes, yes, of course. Uh, as, as Raffael said earlier, our framework looks at, um, animals that are governed and demand due concern. So protection of the basic interests of the rights of, of all animals. And this sometimes mean that the government needs to protect animals from other individuals, both humans and non-human animals as well. Now, this, this becomes very difficult in situations where the government doesn't actually have effective control over certain environments. Um, of course, Raffael talked about very wide landscapes or territories like, uh, say Canada or parts of Russia, where effectively there is no human activity, at least no direct human activity. So it would be hard for us to say that the government has effective control, uh, or that the state has effective control in these situations. But there are situations where the state does have effective control. So look at reservoirs or so to speak, zoos, of course, in sentience based constitutionalism, we wouldn't necessarily have, but conservation areas, right? where there is effective control by the government. So we say here that yes, the state, has a duty to protect animals from other animals and, and from themselves at least to make a reasonable effort, uh, in this regard. So if it's possible to provide, for example, faux meat to carnivorous animals in these areas, then the state may have a duty, a duty intervene.

[00:47:43] Mariann Sullivan: What about areas? I mean, not, like in Siberia or something, but just in like, like the woods. Uh, you know, animals kill each other and eat each other. And one of the things we always get accused of is just not being able to recognize that in a realistic way that, you know, that's nature.

We're not in charge of nature. Do, do you feel the government has any role in, in governing whether a wolf kills a deer? Not, not in Siberia, but just, you know, a wolf might kill a deer like down the road from me. It's

[00:48:12] John Adenitire: we have,

[00:48:13] Mariann Sullivan: not that unusual.

[00:48:14] John Adenitire: Yeah, we have to recognize that the way in which government usually governs is through general laws. And so uh, governments for the most part actually rely on self-regulation. That is there is a particular statute prescribing or prohibiting a certain cause of conduct, say, uh, killing. Okay. And then for the most part, the government relies on individuals to self-apply these norms to, to their own behavior. Now with animals, this is going to be extremely tricky, you know,

[00:48:46] Mariann Sullivan: Yeah,

[00:48:46] John Adenitire: in many cases, impossible, in, in fact, the vast majority of cases, impossible. So again, we have to recognize these difficulties in enforcement, and also we also have to recognize that in certain situations we may do more harm than good.

[00:49:05] Mariann Sullivan: absolutely.

[00:49:05] John Adenitire: when we intervene in, in the natural environment, based on presuppositions that we hold that may not actually turn out to be good or correct, then we may in fact, do more harm than good. But say that there are many times in which humans, not just governments, but even private individuals, can take really easy steps to prevent the killing of one animal from the other.

Uh, when, you know, not much harm can be foreseen by this activity. Say for example, putting bells on cats, you know, sometimes cats go out and prey on other birds, but it may be that just by being alerted by this bell that is on the neck of a cat, the bird is able to escape. Anyway, these are very, very tough questions. Uh, but I think there are all sorts of considerations that sometimes militate in favor of state intervention and sometimes militate against,

[00:50:01] Mariann Sullivan: Exactly. Yeah.

[00:50:02] John Adenitire: State interventions. I think the important point is thing that these questions, they're not trivial, and importantly, they don't show that our effort to think of animals as beings endowed with inherent value is obviously wrong.

They're just really hard questions. That's, that's all. Yeah.

[00:50:19] Mariann Sullivan: Right. I think it's really important the, the way you have approached them. There aren't necessarily these perfect answers for the perfect world and how to do this, but that doesn't mean we shouldn't do it at all 'cause there are huge, huge answers to things that can be addressed by the law and should be addressed by the law. It really started me thinking as I was reading the book that the United States Constitution and I, I googled this so I know it's different in other countries because I dunno anything about the constitutions of other countries.

I don't know enough about ours. It doesn't really provide for positive rights or govern the relations between individuals except I think the one exception is the 13th Amendment prohibiting slavery. But it really, the United States Constitution really just sets up what the government can do and can't do, I think mostly, but state constitutions in the United States and every state has a constitution and nobody studies them. They're a mess. But there they are. There's 50 constitutions saying all sorts of interesting things that are not that hard to amend. And it seems like that's a really interesting area for a possibility for activism going forward.

That was a speech, it wasn't a question. If you wanna, if you wanna add anything on, it's fine, but I know you aren't specifically focused on the issues of the United States.

[00:51:38] Raffael Fasel: The first thing I wanna add there, Mariann, after conversation we just had, I never wanna share a boat with John. I've just learned that, but, but

[00:51:48] Mariann Sullivan: Well keep that in mind.

[00:51:49] Raffael Fasel: More to your point. More to your point. I think that's exactly right. So state level constitutions, perhaps precisely because there isn't that much attention on them, can be much more sort of, you know, fruitful areas for improvement and reform amendment. I can think of an example here in the Swiss context.

So similar sort of federal system to the US where, uh, an organization called Sentient Politics and I, I sort of helped them draft the initiative, brought a ballot initiative, trying to amend the, the state's constitution or, or cantons as they're called in Switzerland. And it basically said, look, you've already got a bill of rights for humans in your, in your state constitution. Why don't we add a few rights for animals? And specifically the proposal was for non-human primates to also have a, a right to life and to mental and bodily integrity because these indeed are rights that are already, uh, you know, guaranteed for human primates. And the initiative was launched, um, and the citizens of the state could vote on it.

Now, it was turned down in the end. Only about a quarter of all citizens voted for it. But, you know, looking at it differently, a quarter of all citizens of that state thought that non-human primates should have fundamental rights. And indeed there was, you know, sort of a media sort of reports on it across the country and indeed abroad as well.

So, so I agree with you. They can be really good

opportunities.

[00:53:15] Mariann Sullivan: There was media on the Animal Law podcast because I had Charlotte Blattner on to talk about it.

[00:53:19] Raffael Fasel: Perfect. The perfect person for it.

[00:53:23] Mariann Sullivan: Yeah, and you know, the fact that things don't work, like if, if you're worried about things not working the first time, you don't get into animal rights work. And interestingly, I don't know whether you're aware of this, it's not really a rights kind of proposal, but the first ballot initiative, and it's a rights proposal if you look at it a certain way, that limited the use of the gestation crate for pigs in the United States is in the Florida constitution.

It's not a statute.

[00:53:48] Raffael Fasel: Yes.

[00:53:48] Mariann Sullivan: I just think that's kind of interesting. Um, alright. I have a million more hard questions to ask you, but we're gonna have to tie this up. But I wanna get to this final topic because obviously these ideas are probably not going to be put into law in the near future. So how do they inform how advocates should think about their activism in the here and the now?

Is there an incremental approach here, or is this all or nothing?

[00:54:15] John Adenitire: So we think of the book as a roadmap for a realistic utopia.

[00:54:21] Mariann Sullivan: I love that phrase.

[00:54:23] John Adenitire: Yeah. We want, we realize that there are certain asks that we are making that are never gonna happen right now, but we know that we can get there at some point and we want to show that are already seeds in current practices and current ideas that if watered well, you know, can sprout or can flourish and can bring us closer to sentience-based constitutionalism. So, I, I think when, uh, based on what you were saying earlier, that sometimes, uh, activists look at the here and now, what is right in front of them and that sometimes may lead them not to consider the, the bigger picture, the direction that they want to go in the future. And I think this book really takes that step back 'cause we of course have the luxury of, you know, uh, academic jobs where this is what we are paid to do, to think about the bigger picture.

Right? And here we want to think of, well. How could states or constitutional states become more legitimate for the vast majority of beings that actually are governed by constitutions? And so this book, of course, is mostly addressed to constitutional theories, constitutional scholars or activists that are interested in using constitutional law to bring about change. And so we want to speak to them and, and draw this roadmap of the ways in which current practices, current ideas could be watered and could be explored to bring about a better future for all sentient beings..

[00:55:57] Mariann Sullivan: You, you do mention a few groups. Uh, I think DXE is one the Non-Human Rights Project, Animals Rising, which I think it works primarily in the UK. Do you see these groups in particular as taking steps towards this world that you envision?

[00:56:13] John Adenitire: Well, some of these groups engage in litigation, trying to extend some of the rights that are, are already present and extend them to animals. So, for example, the Non-human Rights Project has been trying to extend the writ of habeus corpus to include protection for non-human animals, elephants, primate, et cetera. We talked about the Tillikum case, trying to extend the prohibition of slavery and to extend that to cover orcas.

[00:56:39] Mariann Sullivan: That was a PETA case. I just wanna give them credit there. Yeah.

[00:56:42] John Adenitire: of course. That was a PETA case. So there are already many of these groups that are using the seeds that we have available and they're trying to water them to bring about a, a better future. But of course, uh, they tend to focus on rights and the book, we show that there are other constitutional principles that they can draw on, such as proportionality principle, the rule of law as a constitutional principle, and democracy as well. So that there are other a avenues that they can also explore to bring about this, this sentience based constitution.

[00:57:17] Mariann Sullivan: So. I guess as my final question, I'm just gonna get back to, uh, where we really are, you know, I've been focusing a lot on the podcast talking about like immigration issue, you know, things in the here and now that relate to some extent of this crisis, this crisis that we're going through. And in our country, and I think in the world in general, the rule of law is considered not to be progressing, but at risk, like at serious risk. So is this the wrong time to think about these big pictures or is it exactly the right time to think about it? I guess you think it's the right time?

[00:57:55] John Adenitire: Well, we wrote the book and it was was published just a couple, couple months ago, so we thought that it was a good time. In fact, we started thinking about this book, if I'm not wrong, during the COVID Pandemic, which also saw unprecedented use of executive power. And so, you know, thinking about the rule of law, I think it's, it's, it's timeless. There's never a bad time to think about how the law can be used to further the interest of a more just world. And yes, of course, in, in the United States now, many think that, you know, the rule of law is under assault and probably for, for many good reasons. But the assaults to the rule of law are always present, always lurking, and especially animals have often been excluded from the ambit of the protection of the rule of law.

And we think that this is unjustified because we argue, at least in the book, that the essence of the rule of law is to protect individuals from arbitrary power. Of course, animals can be governed in arbitrary ways. So it is, is never late. Uh, it is never too early and it is never late to think about how the rule of law, and how the law more generally could be used to protect the basic interests of, of animals.

[00:59:14] Raffael Fasel: And maybe this is a, a, a sort of a, a good moment too, to think about the way we, we start the book, John. So we, we look at, uh, ancient Greece in the introduction and we talk about how, you know, in the year 430 BCE, there was Perecles who was basically trying to convince his fellow Athenian citizens that, you know, Athenian democracy is worth fighting for.

Really? And you know why? Because there's this unique system, right? And we've come to think of, you know, democracy. Um, indeed as this, you know, accomplishment, this, this huge achievement of, of humanity. But if you look closely at, you know, what Athenian democracy looked like, you'll see that, you know, women were excluded from it, slaves were excluded from it, indeed, even some, you know, Athenian males were excluded from it if they were born out of wedlock or if they, uh, you know, hadn't yet reached 18 years of, of their life, so adulthood. So they were all excluded and still we think there's something worth, um, sort of fighting for here.

It's a concept that, that has got something going for it, right? And we just think that it should be made much more inclusive. So, yes, is, is democracy, um, you know, in trouble in certain parts of the world? Certainly. Is the rule of law under threat? It certainly is, but if we take this bigger picture view over centuries, you know, democracy has waxed and waned, you know, the rule of law has waxed and waned, and I think they're really concepts worth fighting for.

As John said, we write in this liberal tradition and we think that there's something really valuable here. It's just a shame that there hasn't yet been extended to animals. So we need to think more broadly. In the same way as Athenian democracy was just focused on, you know, 10, 12% of the population, therefore was illegitimate. You know, so to our contemporary systems, illegitimate because they exclude, you know, even more, you know, sort of sentient beings now that, you know, they, they don't give the due concern they deserve. So, so we think their concept's worth, worth defending, and, and right now it is exactly the right moment because they're under threat.

[01:01:19] Mariann Sullivan: I, I totally agree. I, in trying to prepare for this interview and thinking about the contents of the book, and it, it really, I mean, it just. No matter what issue you're, you're thinking about, whether it's animals or seeing it in some other context, it just helps you think about why, why we have constitutions, what they mean.

And in looking at how they are failing, we also see how they're succeeding.

[01:01:46] John Adenitire: Hmm.

[01:01:47] Mariann Sullivan: and so thank you so much for writing it, and thank you so much for joining us today.

[01:01:52] John Adenitire: Thank you

[01:01:53] Raffael Fasel: very much, Marian.

[01:01:54] Mariann Sullivan: And thank you all for tuning in. Flock members you will receive this week's bonus content, which is a reading by Melanie Joy from her new novel, it's exciting, in your email next week. Thanks so much to Akber Khan and Vicki Beachler for their help in preparing this podcast. And please remember to subscribe and leave a comment on Apple Podcasts or your favorite pod catcher or on YouTube. And if you wish, of course, you can donate at ourhenhouse.org/support.