[Editor’s Note: In this installment of I•CONnect’s Article Review Series, Rajesh K. Reddy reviews Jessica Eisen’s article Animals in the Constitutional State, which appears in the current issue of I•CON. Eisen’s full article is available for free here.]
—Rajesh K. Reddy, Interim Director, Animal Law LL.M. Program, Lewis & Clark Law School
It is no longer a given that animals should be invisible to constitutional law. Indeed, their interests are currently contemplated in the constitutional frameworks of at least eight countries. The existence of animal legal protections at the constitutional level may strike some scholars as curious, even counterintuitive given the historical understanding of constitutions as guarantors of human rights and human interests, including the interest in chattel property, a legal category into which animals still fall. But society’s growing appreciation of animal sentience, part and parcel of the recent “animal turn,” has produced a more nuanced view regarding animals’ intrinsic moral status and thus helped to reshape this paradigm. In charting the emergence and development of these constitutional considerations, Jessica Eisen’s “Animals in the Constitutional State” contributes to the growing discourse around the ability of traditional theories of constitutionalism to contemplate the interests of animals before proposing an alternative framework grounded in the ideal of protecting the state’s most vulnerable members.
Before advancing this vulnerability-based paradigm, Eisen first surveys existing constitutional animal protections in Switzerland, India, Brazil, Slovenia, Germany, Luxembourg, Austria, and Egypt. Eisen not only deconstructs these provisions themselves but also tracks the histories of their enactment and analyzes judicial determinations that have limited, refined, and in some instances expanded their scope. The purpose of this assessment is to identify and isolate the ethical and cultural values that led to the creation of these novel provisions. To this end, Eisen proposes five categories: human experientialism, or the human interests in advancing animal protections, such as ensuring their existence for future generations; animal experientialism, anchored in the recognition of animal sentience and the attendant desire to prevent suffering; deontology; human virtue; and minority oppression, which seeks to curtail the economic utilization of animals by minority groups. While Eisen treats these as distinct categories, she emphasizes how more than one value often serves as the inspiration for animals protections. For instance, as an example of Islamic-inspired deontology, Eisen points to Article 45 of Egypt’s constitution, which reads that the state shall provide for “the kind treatment of animals.” In her discussion of the article’s enactment, Eisen is careful to observe that the provision also enjoyed the support of advocates concerned with the link between human and animal violence, the argument being that by curtailing violence against animals, violence against humans would also witness a decline. As such, Egypt’s provision also proves to be buttressed by human experientialist concerns. Time and again, what Eisen reveals to readers unfamiliar with the nascent field of animal law are the overlapping, and oftentimes competing, interests that drive animal protection laws.