A European Charter of Fundamental Human Obligations

The effort to anchor animal rights in the European Charter of Fundamental Rights has gained relevance in light of the widespread commodification of animals within the EU’s market-driven integration process. While commendable in principle, incorporating animal rights into the Charter risks serving a largely symbolic function if it diverts attention from the more pressing task of reconfiguring what I take to be the six foundational institutions of private law in capitalist political economy: property, contract, corporation, tort, labor, and consumption. These institutions reinforce the binary between the human subject and the other-than-human object, a division that enables the commodification of non-human beings. Reconfiguring these institutions must go hand in hand with the adoption of a European Charter of Fundamental Human Obligations – one that articulates non-negotiable, non-commodifiable duties of human agents, both individual and collective, toward other-than-human life.

The commonality of the EU’s common market: a human “we”

Whatever else it is and might aspire to become, the point of collective action by the EU is first and foremost the enactment of an internal market. And while the phraseology of EU-law has shifted from referring to a “common” to an “internal” market, this should not blind us to the fact that integration into an internal market involves the claim that the market is common to all of us, that it is the expression of our unity – of what renders economic activity the articulation of what we hold in common. Obviously, this claim is not only contestable but continually contested, and in two ways. Indeed, I take it that politics in the EU turns on two questions. The first: does the operation of the internal market live up to the claim that it is a common market? The second: is the enactment of an internal market what we ultimately hold in common? The first of these questions is, as it were, the bread-and-butter politics of the EU, namely, the incessant efforts to regulate the market economy with a view to realizing the common values laid out in Article 2 of the TEU. The second points to a more fundamental and critical political question, namely, whether a capitalist market economy is what ultimately – even if not only – joins “us” together as a collective that would call itself European. This question resonates, amongst others, in the slogan “Another Europe is possible.”

The question about animal rights brings a new dimension into play with regard to both questions. For the referent of the commonality which straddles both questions is a human collective: the “we” that is invoked when seeking to realize or to contest the realization of a common market is a human collective situated in a natural environment rendered available for the realisation of human ends. This, roughly, is what we have called “collective self-legislation” as the core of authoritative lawmaking. As François Jullien notes, “the common is what we are a part of or in which we take part, which is shared out and in which we participate.” It is an originally political category to the extent that it is what allows us to belong to a community. The commonness of community has a variable extension, both in terms of what is held in common as well as who holds something in common. As a result, commonality is an ambiguous achievement: “if the common is what I share with others, it is also, due to this fact and following this dividing line (which stands as a line of demarcation), that which excludes all others.” In short, the common “is at once inclusive and exclusive.” Insofar as it seeks to articulate the commonality implies in the notion of collective agency, politics is a politics of setting and contesting the boundaries of the “we”.

A more-than-human “we”

Hitherto, the politics of the EU has focused largely on the process of setting and contesting the boundaries of what counts as the commonality of the internal market. While the contestation of the boundaries of the market involves a more radical questioning of the boundaries of collectivity, such contestation has largely focused on what defines “us”, a humancollective, as European. The largely unspoken and unthematised presupposition about what counts as the internal/external boundary of Europe is that it joins “us” to and separates “us” from other human collectives.

The question about animal rights shows that an EU politics of boundaries has been largely predicated on a more fundamental one: the boundary between society and nature. One would distort the operation of a European politics of boundaries if one were to suggest that the EU simply included humans and excluded nature; instead, nature is included as the object of legal relations between human subjects. The human subject/other-than-human object (S/O) binary operationalises the concept of law as a human collective located in a natural environment rendered available for the realisation of human ends. Notice that this disjunction also holds when the legal subject is a corporation or another fictive legal person, which, even if distinct from the human subjects who compose them, have human subjectivity and agency as their basis. Accordingly, the initiative to grant rights to other-than-human animals makes clear that inclusion of the other-than-human in EU-law is also, and constitutively, its exclusion from this legal order because it is included as the object of legal relations between human beings who aim to further their purposes.

Attributing rights to animals in, say, the Charter of Fundamental Rights of the European Union, destabilizes the S/O disjunction by shifting a class of other-than-humans that have fallen under the category of legal objects to the category of legal subjects. As such, those animals to which rights are granted become part of the collective: they are recognised as members of a European “we”, regardless of the differences between their rights and those accruing to human beings. Christopher Stone’s famous article, “Should Trees Have Standing?,” summarizes inclusion of the excluded by way of their recognition qua rights-holders as follows: we “recognize more and more the ways in which nature – like the woman, the Black, the Indian and the Alien – is like us.”  One would have to ask who is the “us,” to which Stone understands himself as belonging, which would welcome women, Blacks, Indians, and Aliens into their midst. I leave that question unanswered. The interesting question is whether recognising other-than-human animals as the subjects of rights under EU-law overcomes the dynamic of exclusion through inclusion.

Destabilising the human subject/other-than-human object binary

Quod non. Instead of disturbing the S/O binary, assigning rights to other-than-human beings entrenches it. Animal rights enact a just redistribution in accordance with the S/O dichotomy, not a novel criterion of distributive justice. In a particularly lucid critique, Álvarez Nakagawa notes that “while it is not trivial to say that non-humans are subjects of rights, doing so in the current conditions merely implies moving them from one end to the other of the legal binary, therefore keeping intact the subject/object – person/thing underlying scheme. As occurs with corporations and other fictive persons, this indirectly works to assert human beings as the true and original legal subjects. Therefore, extending the scope of rights and legal subjectivity to non-humans does not necessarily remove anthropocentrism from the law; on the contrary, it can be its ultimate realization.”

Accordingly, assuming that the integration of other-than-humans into a legal order marks the emergence of a more-than-human collective, can become the unwitting entrenchment of what their integration was supposed to overcome. Specifically, assigning rights to animals runs the risk of concealing or obfuscating the political economy of globalised capitalism that underpins the commonality claimed for the European internal/common market. I do not dispute that animal rights have a certain role to play in the two central political questions I flagged hitherto. My concern, rather, is that striving to incorporate animal rights into the Charter of Fundamental Rights deflects attention from the urgent task of reconfiguring what I take to be the six basic institutions of private law operative in the political economy of capitalism: property, contract, corporation, tort, labor, and consumption. These institutions must be submitted to relentless and meticulous examination to expose how the S/O dichotomy continues to govern their operation. And only if these institutions can be drastically transformed, gearing them to realising more-than-human ends, however provisional such claims to commonality might be, will rights of animals be more than a largely ideological veil for capitalism as it plays out in the process of European economic integration.

This cautionary and cautious approach to animal rights has an important implication for the general theoretical question about the concept of authoritative lawmaking that informs our understanding of EU-lawmaking. A wide range of theoretical initiatives seek to undo the anthropocentrism at work in the modern concept of collective self-legislation by a human collective situated in a natural environment rendered available for the realisation of human ends. Against anthropocentrism, they forefront ecocentrism. The caveat I have lodged about the S/O disjunction suggests that other-than-human animal rights, far from contributing to realise ecocentrism, can entrench anthropocentrism in a capitalist mode, not merely reenacting the centrism of implied in collective self-legislation, but also reenacting an anthropocentrism that, to cite Stone again, takes for granted that “nature . . . is like us.”

A European Charter of Fundamental Human Obligations

It may well be the case that a more fruitful approach would be to shift the focus from rights of other-than-human animals to obligations of human beings, that is, to imagine a European Charter of Fundamental Human Obligations. Here, an insight by Hans Kelsen is, paradoxically, of help. Paradoxically, because his forceful defense of an anthropocentric concept of law also hints at how it might be countered, even if not necessarily overcome. Kelsen scholars will remember the passage in the second edition of The Pure Theory of Law in which he states that “modern legal orders regulate only the behavior of men, not of animals, plants, and things.” For, he adds, it is a foundational premise of modern law that animals, plants, and things do not have duties or obligations towards human beings. But, he hastens to note, the opposite may well be the case: “it is not excluded that [legal] orders prescribe the behavior of [human beings] towards animals, plants, and things . . . these legal norms do not regulate the behavior of the protected animals, plants, and things, but of the [human beings] against whom the threat of punishment is directed.” On a charitable reading, Kelsen can be read as defending the priority of obligations over rights. He would not stand alone here: some of the most interesting work being done in this field argues precisely in this direction.

While not seeking to downplay the importance of rights, a fortiori of other-than-human rights, Scott Veitch points out that “obligations and practices of obedience structure the operation and effectiveness of rights themselves.” These go far beyond animal rights, calling for “a set of non-negotiable, non-commodifiable binding obligations” on human societies. This would involve, as concerns the EU, a Fundamental Charter of Obligations and Rights, that prioritises human obligations, whether or not these are correlated to animal rights.

Although it enables shifts from the object to the subject position, the main significance of asserting the primacy of human obligations over rights is ontological: it decenters collective self-legislation by acknowledging, paradoxically, that the first-person plural must second if it is to come first: heteronomous autonomy. We are summoned into existence as a “we” by an appeal that reaches “us” from elsewhere and that binds us because we cannot not respond to it. For even ignoring the appeal is a response. This appeal is the primordial sense of an obligation: we are bound, put under obligation, before we can obligate ourselves by enacting legal relations that bind “us” to the other-than-human with a view to realising, ever tentatively, ever provisionally, more-than-human ends. “Lawmaking in the accusative” (forthcoming) is the name I give to this primordial decentration of collective self-legislation.