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May 2000
The 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 that 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 Kant’s moral theory, duty grounds morality and duties are discerned only through application of reason. On Kant’s moral battlefield, the proud flag of reason flies over the categorical imperative and all moral axioms 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 nonhuman.

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 characterized 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 serious discussions.

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.

Claiming Legitimacy
Even in our Western tradition we can find voices claiming legitimacy for the emotive in moral thought. David Hume, for example, claimed that the passions (emotions) were the fountainheads of all moral thought and that—try as we may—we 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 as 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 victim’s 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 of 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 author’s 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).


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