CONCLUSION

More than just confusing the multiple constructions of cruelty’s harms and hence of the nature of culpability for cruelty contain different under­standings of fundamental issues concerning rights community and social obligation While many protectionist labored both inside and outside the courtroom to constitute cruelty in terms of animal suffering many other 19th century legal interpreters constituted cruelty solely in terms of harm to humans When protectionists introduced a new crime cruelty they attached its harm to the suffering endured by animals but when judges insisted that mens rea, or the violation of public order and morals comprised guilt for cruelty they denied that animal’s interests or bodies could be harmed or violated by the cruel acts in question In denying animal interests the latter both denied animals inclusion in a common community with humans and they denied that animals had rights even the limited rights that animal pro­tectionists endeavored to protect through anticruelty legislation So while John Haines confidently asserted that anticruelty activists had wholly changed the law’s orientation to animals - forcing it to separate the cow from the plow - the concept of cruelty itself contained competing definitions of harm and 19th century jurists interpreted anticruelty laws in ways consistent with animals’ common law status as property - without will interests or legal personality

Modern scholars of animal law typically assert that the animal protection laws passed during the nineteenth century were not rights-based and did little to effectively protect animals let alone establish any animal rights This failing is usually attributed to the law’s intent to regulate human behavior rather than to make animal lives better There is much to support these claims particularly in the judicial interpretation of anticruelty laws but what modern notions overlook is the failure not of intent but of the concept of cruelty itself In addition to factors such as intent and historical context, it is the problematic nature of cruelty as a term that helps explain the gap between on the one hand protectionist’s focus on animal suffering and their often avowedly rights-based goals and on the other hand the functioning of animal protection laws While cruelty can be a powerful term with which to protest tyranny and demand rights it also contains as we have seen other more instrumental definitions of harm ones focused more on perpetrators and bystanders than on victims

When we define the nature of human guilt for cruelty and we ask how it might be proved our answers define not just a set of legal procedures but also the boundaries of our moral community and the nature of our moral obligations While protectionists may have wanted to extend the boundaries of that community to include animals their choice to frame violence against animals in terms of cruelty contained other contradictory understandings of how such violence reverberated within human communities and across the species line Finally cruelty the very same concept that animated the suffering animal body could also silence it

NOTES

1.

2 Meek (1976) incidentally mentions the subordination of animals in liberal the­ory but makes no note of it - his concern is how the idea of the “savage” contributed to the development early social scientific theories about the development and progress of societies In such theories societies advance from hunting/gathering to pasturage through agriculture and finally commerce Animals are not only the first glimmer man has of property - in the hunting stage - but also their domestication is what marks the transition from hunting to pasturage and their successful domes­tication and propagation prompts the transition from pasturage from agriculture

3. Jerald Tannenbaum (1995) makes the argument that animals' property status does not preclude their having rights since property has always been regulated and protected Property has never liberal myths notwithstanding conferred absolute dominion - indeed owning property often entails a number of duties which are correlated with the rights of those toward whom duties are owed Animals and the law: property cruelty rights.

4 S_{ee a}l_so: J. H. L (1902).

5. See also: Thornton (1890).

6. Descartes argues that animals have no reason no language and thus no soul; they are fundamentally different from man Whatever animals are able to accomplish should be understood as the product of nature or body rather than mind For the influence of Cartesian dualism on the question of animal rights see Francione (1995).

7. For a discussion of the relationship between the infliction of physical pain and the dissolution of the self see Scarry (1985)

8 For contemporary descriptions of these displays and accounts of their where­abouts see: Henry Bergh and his work (1879) 875; The instruments of torture, Humane Journal, 9 (1881): 10;. North F. D. (1982) The taxidermal art The Century : 238; Their sting is gone Cleveland Ohio News & Herald 1887; An Interesting Exhibit, Humane Journal, 16 (1888) 5; The Society's Museum Our animal friends, 19, J_anuary (1892) 102; M_cC_arth_y (1905).

9. On the ability of instruments of torture to symbolize both the pain of the tortured and the power of the torturer see Scarry pp. 14-17.

10 There is an extensive literature on the question of whether the presentation of pain inspires sympathy justice and reform or whether it inspires either compassion fatigue narcissistic exploration of one's own suffering or worse titillation Much of this debate forms a part of the more general debate over the politics of sentimen­talism and much of it centers on the politics of white abolitionists' presentation of slave suffering in antebellum America For some representative works addressing these questions in addition to Sontag Wood and Lacquer see Clark (1995) Boltanski (1999) Haltunnen (1995) Hinton (1999) McKanan (2002) and Eppler (1993) A subpoint in such debates is the question of whether representing the suf­fering of the victimized disempowers abjectifies or humanizes them since agency lies with the picture's creator and finally its audience The victims remain silent throughout This is obviously complicated with respect to animals for whom reformers felt obligated to create a voice and about which the question of human­ization is trickier Though protectionists adopted as their slogan ‘we speak for those who cannot speak for themselves' they also repeatedly insisted that animals did have voices if only humans would take the time to understand them The effort to establish a corporeal language of pain is one such case in point.

11. In articulating this point I am indebted to Alexander F Robinson's discus­sion of greed Robinson (2001)

12In helping to articulate this point I am indebted to Marcus Wood (2000)

13 This decision holds that pigeon shooting contests do not inflict ‘‘unnecessary'' suffering because they have a legitimate end - to improve marksmanship which may in turn increase the citizen's value to the state as a potential soldier By contrast, Commonwealth v. Lewis, 7 Pa C.C. R. 558, found the defendant guilty of cruelty for participating in a pigeon shooting match arguing that such sports had no legitimate purpose and tended to corrupt the public morals which the anticruelty statutes were designed to protect This was reversed by a higher court in Commonwealth v Lewis (1891) on the grounds that since the object of the match to shoot pigeons and develop marksmanship was legitimate the practice of it was in this instance neither needless nor inclined to produce more pain than necessary to achieve the state end - shooting pigeons Unlike the lower court the higher court was unwilling to consider the ‘‘necessity'' of the act in question.

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