Owning what you eat ? the discourse of food
| Autor | David N. Cassuto |
| Cargo | Professor of Law, Pace University School of Law |
| Páginas | 45-64 |
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Discussions of animal treatment within the global food industry often devolve into debates about animal rights. Such detours needlessly distract from an ongoing social and environmental catastrophe. This essay attempts to reframe the global food debate in a manner that more directly acknowledges our obligations to and the needs of the billions of animals enslaved within the industrial food apparatus.
Industrial agriculture has refashioned animal husbandry into a mechanized process that ignores historic methods of human/nonhuman animal interaction (methods that evolved over millennia) as well as ethical mores. These industrial methods - cloaked in the mantle of efficiency - have become deeply entrenched despite clear evidence of their unsustainability and unworkability. This intractability results from a systemic flaw inherent in the role of efficiency in society. Not only is efficiency
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an amoral concept devoid of any normative component, but those who lionize it also routinely exclude externalities from their calculus. This makes any cost-based risk equation potentially unsound and misleading.
Consequently, using efficiency as an ethical barometer is flawed both hermeneutically and practically. It should never have acquired a normative aspect and it should never have been defined to exclude externalities. The upshot of this double mistake is that the prevailing mode of human/animal interaction is unsustainable (inefficient) and ethically bankrupt. Reframing that interaction will require refashioning the legal system that enables it.
Part II of this essay examines the role of communication in the formation of law and social norms and the implications of that role for animal law and ethics. Part III contextualizes animal law within contemporary risk society. Part IV looks at how efficiency has transformed from an economic concept into a normative guideline and discusses how that transformation has affected animals and agriculture. It tracks the rise of industrial agriculture and ties it to this fundamental misunderstanding of the concept of efficiency. The essay concludes with some thoughts on how to reformulate contemporary notions of efficiency and ethics to account for the idealism that should be a necessary component of communication and, consequently, of law.
Law governs interactions between and among members of society. It codifies shared goals that reflect an ideal vision of a just society.1This aspirational vision of justice arises through communication. For communication to be coherent there must be a shared belief amongst the interlocutors in the possibility of consensus and mutual understanding. They must evince a willingness to come to an agreement about the truth/correct-
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ness of the matter under discussion.2This shared commitment to agree forms the foundation of discourse, which in turn forms the foundation of norms that then become codified into law.
Consensus-driven communication requires a common language. Laws governing human interaction (property, contract, criminal, torts, etc.) all fit within the discursive framework of shared goals and commitment to the perpetuation of society. Animal law, however, does not. (Non-human) Animals do not share a language with humans. Consequently, they do not participate in human discourse nor do they share the goals of human society.
Without a common normative vision, there is no consensus from which to create laws. Animals are not merely an unwilling participant in the law-making process; they do not participate at all. It therefore makes no sense to talk about animal law as such; it is more properly described as a set of laws governing how humans interact with the animals.
This distinction is more than merely semantic. Human interaction with animals lies within human control. However, the other side of that process - animal interaction with humans - resides entirely outside of human control. Given that the animal perspective is both varied and unknowable and that humans are social organisms who interact with other species, it is understandable and necessary that humans would create a set of rules to guide those interactions. But because those interactions lack any shared commitment to consensus, attempts to impart meaning to the process are necessarily counterfactual and ideological. Herein lies what Aristotle might have described as the tragic nature of animal law. The impossibility of communication coupled with the immutable need for communication creates a crisis borne of conflicting truths that undermine meaningful interaction.
Despite this seemingly unsolvable dilemma, there is some cause for hope. All communication is arguably counterfactual; that does not make it pointless. When humans communicate
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they do not truly understand each other; they merely share the goal of achieving that understanding. As Habermas argues, it is not the existence of truth, but rather a shared commitment to its possibility that makes communication (and therefore society) possible.3Similarly, with respect to animals, true, meaningful communication is impossible. However, if attempts at communication were made in good faith and predicated on a willingness to exclude ideology and self-interest, then the human component of the human/animal interaction would not differ fundamentally from other forms of discourse.
The impossibility of an ideal state need not doom a society founded on a commitment to its attainment. Consequently, the tragedy of animal law does not lie in its aspirational nature. It lies rather in the way that human nature undermines those aspirations. This is clearly visible in the principles of risk management.
Ulrich Beck explains that: "Just as modernization dissolved the structure of feudal society in the nineteenth century and produced the industrial society, modernization today is dissolving industrial society and another modernity is coming into being."4
In industrial society, wealth production overshadowed risk production because (among other reasons), the risks accompanying the ascendancy of industry were poorly understood and because the remnants of feudal society imputed a sense of preordained destiny both to social status and to the workings of environment.5Furthermore, the omnipresent struggle against scarcity engendered a willingness to endure detrimental side effects.
Beck notes, for example, that in the early 1800s, the Thames was so polluted that people who fell in d instead of drowning
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- the result of inhaling the poisonous gases carpeting the river.6
These and other risks arose as a consequence of modernization and were easily apparent. Today (at least in the developed world), scarcity no longer drives production. Society now produces at such a rate that many of its hazards are associated with over-production. Furthermore, the accompanying risks of post-industrial society are less visible (e.g., toxins in the food web, ozone depletion, climate change, etc.). These shifts have precipitated a fundamental reordering of society. Managing risk has become at least as important as wealth amassment.
Risk management in post-industrial society is reflexive; it is the "systematic way of dealing with hazards and insecurities induced and introduced by modernization itself."7Because risks are often not readily perceptible, the task of identifying risk falls most often to science, propelling scientists into the role of neutral and benevolent expert. Yet, identifying risk is not a neutral act. It has profound societal implications that transcend science. Risk identification determines what constitutes harm (an inherently subjective determination) and assesses whether that harm rises to a level requiring mitigation. In this manner, science, when wielded by the powerful, becomes the organizing principle around which society constructs its response to danger.
Through its role as risk creator/assessor, science becomes the source of what Mary Douglas calls "taboo-thinking," which uses the threat of danger to create and uphold community values.8
Shared danger bonds society through the shared goal of mutual survival. Because modern threats are invisible, "experts" who inform the public of the existence of the threat and the proper response wield a powerful tool of mass coercion. This aggregation of power in the hands of a select few would be troubling enough by itself. The situation is exacerbated by the fact that the risks that science is tasked with identifying and mitigating are themselves the creations of science.
Creation here refers not just to the social construction of risk (determining whether a given behavior constitutes a threat) but
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also to the behavior itself. For example, once science identifies mass confinement of animals as a potential cause of pandemic influenza - it then must determine the proper reaction to that threat by determining whether the risks from continued confinement outweigh the benefits of (and to) industrial agriculture. This is the process of defining risk and responding to it. Embedded within this identification/mitigation heuristic lies the fact that the confinement methodology is itself is a creation of science.
The multi-tiered role of science in risk creation means that it is tasked with the impossible chore of neutral, critical self-evaluation. It engages in risk behavior, defines the risk created by that behavior, evaluates the level of threat produced, and then advises society on how to respond. 9 Allocating all these tasks to experts amounts to a wholesale...
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