By Tero Kivinen
On October 13th, 2023, I became the first doctoral researcher of ANIWERE to publicly defend their thesis. My doctoral dissertation presents a rhetorical criticism of what I term international animal law advocacy: representative proposals for strengthening the protection of animals globally by way of universal declarations or international agreements. Utilizing the method of rhetorical criticism, I analyze and evaluate the persuasive qualities of such draft declarations and treaties first in terms of their use of logical arguments, then with a view to the various genres of argument or ‘topics’ they employ. The following is the lectio praecursoria I delivered at the opening of my defense.
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Honored custos, honored opponents, honored members of the audience,
Animal law is a branch of scholarship and advocacy that originated in North America in the 1970s when the first animal law classes were introduced to the curricula of select law schools and when the first lawsuits were filed with the specific purpose of challenging institutionalized forms of animal exploitation. Fast forward about 50 years, legal research and advocacy on behalf of animals is no longer restricted to North America: animal law has become a global phenomenon. This turn from the local to the global, from the domestic to the international, has also broadened the toolkit used by animal law advocates. Domestically, animal law advocates lobby new legislation and—depending on the jurisdiction—seek to alter the legal status of at least some animals in court; internationally, they draft treaties and universal declarations seeking to strengthen the protection of animals on a global basis.
As a fledgling international lawyer, I first discovered the animal question through moral philosophy, then increasingly through legal scholarship, yet I was hesitant at first to bridge the gap between my professional identity as an international lawyer-to-be, on the one hand, and what I perceived as a more personal, private interest in the animal question, on the other. I’m forever indebted to professor Martti Koskenniemi for giving me the courage to study not what I thought was expected of me but what I considered interesting and intellectually stimulating. And so, I went from writing my Master’s thesis on the ethics of what I termed ‘international animal law’ to planning a doctoral research project that would answer the question whether it is possible to formulate a global standard for the ethical treatment of animals.
It was my hope to propose such a standard myself after having studied various normative systems of global significance—law, religion, culture, and so on—as if those systems would provide a lowest common denominator of sorts that everyone could agree on. However, as I examined existing proposals made in the field, my attention soon turned to various problems or obstacles that would have to be navigated for a global standard to ever be possible. For starters, I was confused by how the conclusions of arguments coming from animal advocates always seemed to point to a far more inclusive group of beneficiaries—‘all animals’, for instance—than the ones suggested by the premises leading to those conclusions. In other words, I thought the very term ‘animal’ needed to be defined and clarified. Secondly, I wondered whether a purported standard for the ethical treatment of animals ought to take after the utilitarian ethics of Peter Singer, for instance, or the deontological animal rights philosophy of Tom Regan, or perhaps some altogether different theory. A related concern had to do with the distinction between rights and duties: was it necessary that the proposed level of protection amounted to rights on the part of the animals, or would it be enough that humans simply had duties or obligations with regard to them? Fourthly, I was concerned of the possible charge of cultural imperialism, that is, a global standard for the ethical treatment of animals looking like yet another instance of the Western world imposing its views on everyone else. Fifthly, and finally, being the internationally-minded lawyer I was, I was interested in the legislative techniques required to enact any global standard as a matter of public international law. Would it make sense to pursue the standard in the form of a treaty or perhaps a universal declaration, or should animal advocates rather seek to influence state behavior in hopes of such behavior one day giving rise to a customary rule of international law?
Needless to say, I soon discovered addressing all five of the aforementioned problems would have been too much for a single dissertation, and so I narrowed my focus down to just one of them: the true meaning of the word ‘animal’. In my naivete, I believed I could simply look into biology for an authoritative definition that would resolve all uncertainties. How wrong I was. I soon discovered species let alone higher taxa could not be defined by reference to any individual trait or capability possessed by all and only members of a particular species. That made the logic of animal law advocacy seem all the more suspect for this is precisely what the arguments seemed to claim: that all members of a particular biological category such as the animal kingdom were in possession, at all developmental stages of their lives, of whatever organismic trait their value supposedly supervened upon. This mode of argumentation now appeared vulnerable to two criticisms. The presumption about the universality of specific traits in the animal kingdom seemed to fly in the face of our best theoretical understanding of what kind of beings organisms are, which in turn called into question the soundness of the argument itself, for the soundness of the conclusion depends on the soundness of its premises. Accordingly, I saw myself as engaging in internal or immanent criticism by pointing out how animal law advocates apparently endorse both logic and evolutionary theory yet ultimately contradict both. As luck would have it, I later encountered the concept of rhetoric at a guest lecture on a course on science communication which made me realize I had been in the business of evaluating the persuasiveness of discourse all along. In rhetorical theory, I discovered a framework that allowed me to better articulate all the concerns and doubts I had about my object of inquiry, namely animal law advocacy.
The primary research question of my thesis was now permitted to evolve into its final form: whether international animal law advocacy is persuasive in light of rhetorical theory. I would answer that question using the method of rhetorical criticism, more specifically a version of rhetorical criticism inspired by so-called neo-Aristotelian criticism, that is, the analysis and evaluation of specific rhetorical acts or artifacts using terms and concepts derived from the rhetorical theory of Aristotle. At a relatively high level of abstraction, the approach is actually rather simple: take a theory, apply it to the research data, and see whether the data behaves as one would expect based on the theory.
Rhetoric, of course, is a wide phenomenon potentially encompassing all of human discourse, and even within the confines of rhetorical theory there are more potential approaches than the researcher could ever hope to use in a single project. In the evaluation of texts, for instance, the scholar of rhetoric might examine the way a particular author structures their material—that is, whether the arrangement of the argument follows the best practices established by rhetorical theory—or their use of stylistic devices such as tropes, or figures of speech, just to give two examples. Expand the scope of inquiry to also cover spoken arguments and the list of available approaches also comes to include matters such as the speaker’s method of memorizing their material or the actual, physical delivery of their argument.
The four matters just mentioned—arrangement, style, memory, delivery—represent four stages of work in the preparation and presentation of speeches and written arguments. These four so-called canons of rhetoric are preceded by a fifth one called ‘invention’ or ‘discovery’ that concerns the actual substance of the argument: what is being said as opposed to how or in what order. It is this first canon of rhetoric that provides the lens through which the present study analyzes and evaluates the rhetoric of international animal law advocacy. In other words, what is being studied is the kinds of arguments international animal law advocates use to persuade their audience and whether those arguments can be deemed persuasive in light of rhetorical theory.
The persuasiveness of international animal law advocacy is tested in two ways over the course of the thesis. The first concerns the logic of the enterprise. According to rhetorical theory, the speaker or writer has three appeals at their disposal for the purpose of persuading an audience. As Aristotle himself put it,
Of the modes of persuasion furnished by the spoken word there are three kinds. The first kind depends on the personal character of the speaker; the second on putting the audience into a certain frame of mind; the third on the proof, or apparent proof, provided by the words of the speech itself.
In other words, the speaker or writer may seek to persuade their audience by appealing to their own personal credibility and character, by appealing to or perhaps even arousing specific emotions in their audience, and by appealing to the reason inherent in the argument itself. It is this last technical proof known as logos that provides the basis for the first part of my rhetorical criticism.
In a nutshell, all of the nine proposed legal instruments studied in the thesis were seen to employ logical reasoning just as one might expect based on the theory. All nine instruments included language that could be coded as the concluding proposition of a logical chain of reasoning, and all nine instruments also included language that could be coded as premises or reasons in support of the aforementioned conclusions. Some such reasons invoked the shared common descent of humans and animals or the various human benefits of treating animals well. Yet all of the nine instruments examined also cited the presumed sentience of animals either directly or indirectly, thus implying that animals ought to be treated in such and such ways because of facts about them, that is to say, for their own sakes.
The gist of the criticism should already be familiar by now from the beginning of this speech. Arguments appealing to the capabilities of animals—or members of any other biological taxa, for that matter—suggest that human-made classifications ‘carve nature at the joints’, as Plato’s character Socrates is often misquoted as saying, while evolutionary theory tells us nature has no joints to be carved. Put differently, it is implied that organismic traits such as sentience are immune from intra-specific variation—that is, variation within any given species—, which is the very force that makes evolution through natural selection possible to begin with. Such premises cannot consequently be necessarily true given our best current understanding of biology, and if the premise of an argument cannot be necessarily true, then neither can the conclusion. In order to restore the soundness and, by extension, the rhetorical persuasiveness of their arguments, international animal law advocates must consequently either alter their premises or openly endorse an alternative metaphysics that is quite frankly unscientific.
Were this not a study on the rhetoric of international animal law advocacy, then the aforementioned kinds of arguments could well be classified as moral ones. After all, they are clearly inspired by various strains of moral philosophy according to which animals ought to be protected at least in part because of their own moral considerability. This idea of genres of argument leads us to the second part of my rhetorical criticism. Rhetorical theory divides all persuasive discourse into three types on account of their audience, subject, and temporal orientation. Judicial or forensic rhetoric addresses a judge or a jury, seeks to establish guilt or lack thereof, and concerns what has already happened in the past. Ceremonial or epideictic rhetoric is the tribalistic rhetoric that celebrates friends and admonishes foes, thus separating the virtuous from the vicious, the good from the evil, the ‘us’ from the ‘them’. Finally, political or deliberative rhetoric addresses an assembly or other wielders of political power, urges them to do or not to do something, and is primarily concerned with the future.
Rhetorical theory also distinguishes a number of so-called special topics peculiar to each of the branches of rhetoric just mentioned. Unlike the common topics, such as the topics of definition, similarity, and degree that one may use when speaking or writing on just about any subject, the special topics, as their very name suggests, are specific to each branch of rhetoric. Forensic rhetoric seeks to establish guilt: its special topics are consequently justice and injustice. Ceremonial rhetoric praises or blames someone: its special topics are virtue and vice. Political rhetoric urges us to do or abstain from doing something: its special topics are the advantageous and the disadvantageous.
Out of the three branches of oratory, international animal law advocacy best encapsulates the essential qualities of political or deliberative rhetoric. It is addressed to an audience analogous to an assembly and it urges them to adopt measures to protect the welfare or rights of animals with regard to the future. One would consequently expect it to argue primarily from considerations of expediency and harmfulness and cite all other considerations, such as justice and injustice, or virtue and vice, as secondary.
The second part of my rhetorical criticism once again analyzed and evaluated the same nine proposed legal instruments for their accordance with rhetorical theory, this time from the vantage point of the special topics just mentioned. Some instruments were deemed more persuasive than others. On balance, instruments associated with the so-called animal rights view, according to which some animals are inherently valuable in the Kantian sense and must consequently never be treated as mere means, did worse than their animal welfare counterparts on account of appealing excessively to moral considerations, sometimes to the exclusion of all other points of view. In contrast, instruments representing the animal welfare view, according to which the interests of animals must be taken into account but they may still be used as long as they are not subjected to unnecessary suffering, were generally more persuasive on account of emphasizing the various human benefits of treating animals better. In fact, one treaty in particular, the draft Convention on Animal Protection for Public Health, Animal Well-Being, and the Environment, was practically a textbook example of how one might pursue the strengthening of the legal status and protection of animals by appealing primarily to human interests and considerations. Not that that treaty would not have also appealed to the intrinsic value of animals and their consequent protection for their own sakes, but it clearly prioritized arguments of expediency and harmfulness over other considerations belonging more properly to other branches of rhetoric. In sum, animal rights instruments were found to be generally unpersuasive in light of rhetorical theory whereas animal welfare instruments were much more likely to behave as expected.
Thus, to answer the primary research question of the study, international animal law advocacy is not persuasive in light of rhetorical theory inasmuch as it employs logical arguments that are unsound and inasmuch as it fails to give proper primacy to the special topics of the advantageous and the disadvantageous. However, none of this should be taken as an unqualified condemnation of animal rights discourse or an equally unqualified endorsement of animal welfare theory. The present study has limited its focus to the rhetorical—not moral—qualities of the data being examined. International animal law advocacy could certainly be studied for its accordance with, say, moral philosophy or political or legal theory, just to give a few examples. However, as enlightening as such endeavors might turn out to be, doing so would not answer the primary research question of this thesis, which is whether international animal law advocacy is persuasive in light of rhetorical theory.
In addition to addressing a gap in knowledge when it comes to the rhetoric of international animal law advocacy or perhaps even animal law advocacy more generally, the present study has also taken the opportunity to clarify the concept of animal law and its various meanings. Practice, scholarship, and advocacy in animal law are intertwined to a point where it’s sometimes difficult to tell one from the other. This is not intended as a criticism. It is merely to account for the fact that advocacy seems far more endemic to the practice and scholarship of animal law than it is to many other fields of law. If anything, scholars and practitioners of animal law would benefit from a better self-understanding of their own field and the consequent opportunities to become more effective in what they try to accomplish. I fear that if animal lawyers do not take the charge in defining the more specific contours of their own discipline, then it is the opponents rather than the proponents of animal law who ultimately get to decide what animal law is and how we ought to think about it.
I believe this study should prove useful to anyone seeking to understand how legal advocacy on behalf of animals works and—more importantly—why it sometimes does not seem to work. Individuals and NGOs alike would do well to understand the rhetoricity of their own undertakings and how argumentative tactics need to be adapted to the situation at hand: the philosophical argument that wins over an audience comprising academics does not necessarily persuade an audience consisting of laypersons, for instance. As distasteful as they might appear to the animal rights activist, arguments from social utility are undoubtedly powerful in the rhetorical sense. And if the end goal of the movement is to improve the legal and societal status of animals, can we really afford to let the perfect be the enemy of the good?
I now call upon you, honored opponents appointed by the Faculty of Law to present your critical comments on my dissertation.
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