Emotive in Animal Rights Discourse
By Thomas G. Kelch
In our Western way of thinking, rationality and cool
deliberation are the talismans of truth, the holy grail of all sensible
arguments. The emotive is dangerous, feminine and irrational,
an enemy of veracity, an evil to be avoided at all costs. And so it
is in the discussion of animal rights issues in moral philosophy and
the law. Most serious academic and legal writers on animal rights shun
discussions of compassion and caring and empathy, and trade instead
exclusively in rational argument and cold logic. Indeed, such writers
often premise their discussions with self-commendation on the fact
their positions do not originate in passion, but solely in the dry
and ordered realm of reason.
In moral thought, the schism between the emotive (for present purposes,
compassion, caring and empathy), and the rational may be credited to
the late 18th century German philosopher Immanuel Kant. In Kants
moral theory, duty grounds morality and duties are discerned only through
application of reason. On Kants moral battlefield, the proud
flag of reason flies over the categorical imperative and all moral
worthy of respect. Emotions and feelings hold no ground. In our current
legal system, the situation is no different; the emotive holds no sway
on issues of rights, whether the subject of discussion is human or
Fear and Dichotomy
There is reason, I suppose, to be shy about claiming that animals
should be holders of rights because, "I feel empathy towards animals,"
or "I am a compassionate person." The reason, of course,
is the fear that one will not be taken seriously, that one will be
as a fuzzy sentimentalist whose arguments are not worthy of consideration.
But apart from these political considerations, is it really necessary
that serious discussion of animal rights issues be divorced from the
feelings of compassion, caring and empathy that are, for most of us,
among the reasons we believe that animals are holders of moral rights
and should be holders of legal rights?
What is our fear of the emotive? It is, I believe, that in Western thought,
reason and emotion are perceived as dichotomous and mutually exclusive.
Reason is dispassionate, self legitimating and objective. This is the
proper stuff of arguments, be they about animal rights or any other
issue. The path of emotion, on the other hand, is rife with peril. Emotions
are dangerous outbursts of rage, jealousy and the like. They are uncontrolled,
subjective and prejudiced. Thoughts of this nature should not permeate
I do not believe this polarized view of reason and the emotions is accurate.
Reason itself can lead us astray. We may, though applying reason, be
unduly credulous or skeptical. We may inappropriately accept authority
as fact. Moreover, emotions are not typically uncontrolled outbursts
of rage or malevolence; rather, they are ordinarily the much more dull
and diffuse feelings that are the inevitable background to each instant
of our lives. Is it even possible to separate reason from emotion? Is
it not the case that in all of our activities, whether they involve
the application of reason or not, there is some element of emotion?
Indeed, I must have some emotion to be motivated to do anything. Reason
is inert. It is emotion that moves us. It is in a subtle mixture of
reason and emotion that we live our lives. They coexist in our crania
and cannot be separated as wheat from chaff.
Even in our Western tradition we can find voices claiming legitimacy
for the emotive in moral thought. David Hume, for example, claimed
the passions (emotions) were the fountainheads of all moral thought
and thattry as we maywe cannot ascertain through reason
the truth of any moral proposition. In fact, for Hume there is an innate
moral sense that determines our perceptions of vice and virtue in the
world. Arthur Schopenhauer too saw compassion, something he viewed
an element of human nature itself, as the root of morality. Morality,
then, is felt, not judged.
Outside of this tradition there are others who hold that there is a
place for the emotive in moral discourse. Most prominent are feminists.
Though feminist thought tends to be inimical to traditional concepts
of rights (though not all feminist thinkers eschew talk of "rights"),
it is a basic tenet of feminism that compassion, caring and empathy
are foundations of the moral world.
But surely the emotive should not be a part of the law and our notion
of rights. Here, at least, we must be governed solely by reason. Again,
I think we are misled. Emotion already plays a part in the law. When
we provide for victims rights, we are expressing our compassion for
the victims loss. When we speak of retribution as a ground for
criminal penalties we are expressing our anger and indignation toward
the perpetrator. We reduce penalties for crimes committed as a result
of overheated emotions and mental disturbance. Even in property law
we protect emotional attachments when we provide for special sorts
remedies for loss of or damage to family heirlooms.
This list could be expanded, but it is sufficient to note that the emotive
already plays a part in our law. And so it should be when we speak of
issues of moral and legal rights for animals. It is normal for us to
feel compassion for animals and empathy for their suffering. Somehow,
through evolution or rearing or a combination of the two, these feelings
are a normal part of human nature that cannot be separately compartmentalized
from our capacity to reason. This is not to say that we should reject
reason. Rather, we must recognize that the emotive cannot be parsed
out from reason and that our emotions can be legitimate grounds for
moral and legal arguments. Thus, in the area of animal rights, our emotions,
our feelings of compassion, caring and empathy, should count as genuine
reasons for granting moral and legal rights to animals.
Thomas G. Kelch is a professor of law at Whittier Law School
in Costa Mesa, California. This article is based, in part, on a more
detailed treatment of this issue in the authors article, "The
Role of the Rational and the Emotive in a Theory of Animal Rights" in
27 Boston College Environmental Affairs Law Review 1 (2000).