INTRODUCTION: THE COW AND THE PLOW

Writing in a 1905 edition of the American Society for the Prevention of Cruelty’s (ASPCA) monthly journal Our Animal Friends, the organization’s

77 president, John Haines (1905), praised the state of enlightenment that cur­rently characterized the relationship between humans and animals Looking back into the dark past Haines expressed outrage that less than half a century prior the law would as he put it, ‘‘regard a malicious injury to a cow in no other light than that in which it would regard a malicious injury to a plow or any other article of property” (p.

The animal protection laws that originated in the 19th century form the basic skeleton of state protection for animals even today and they have been widely criticized as ineffectual by modern legal scholars and animal rights activists State anticruelty laws critics tell us are not really concerned with animal suffering but rather with regulating human morality; they have, in this sense the wrong intent Due to this androcentric intent, these laws are critiqued as being more concerned with ensuring that humans do not corrupt their own nature than they are with animals and animal suffering per se (Turner 1980; Moretti, 1984; Francione 1995, 1996; Kelch 1998; Curnutt, 2001) As critics see it, guilt for cruelty legally consists not in harming animals but in harming oneself and other human beings by engaging sordid passions and subjecting others to degrading displays of violence Wrongly intended and ill conceived animal protection statutes are in such cases accomplices in the continuing exploitation of nonhumans

Haines’ concern to separate cow from plow on the basis of the cow’s nature suggests however that the story is more complicated than modern-day recourse to ill intent can account for As we shall see 19th century animal protectionist took great pains to write laws that gave animal direct legal protection and they conducted large-scale public education campaigns to define the harm of cruelty in terms of animal suffering How­ever while many protectionists believed that animal suffering alone con­stituted human guilt, this equivalence did not always hold legal water For one thing cruelty itself was an ambiguous term such that the nature of the violation it designated was often unclear Did the guilt of cruelty (or its harm) lie in the evil intentions of its perpetrator or in the suffering of its victims, or in excessiveness in the lack of balance between means and ends, or did cruelty’s harm lie in its affront to common decency and public morality? Protectionists might be inclined to give greatest weight to the second of these possible harms but justices and legal commentators and sometimes protectionists themselves often gave greater weight to other di­mensions of cruelty’s harms tipping the balance away from animals and back towards humans Haines and his compatriots congratulated them­selves for definitively separating cow from plow and for framing new legal codes that placed the sentient animal body at the center of the definition of cruelty; much in the general legal and philosophical heritage in which they intervened served to stack the deck against such a straightforward under­standing of what sorts of human actions rendered one guilty of cruelty to animals And at the center of this ambiguity is not merely the ill intent of such laws but the very concept of cruelty itself

The matter of how cruelty is defined and operationalized is not merely technical - for it matters a great deal how guilt is constituted and harm defined In designating these the law defines a horizon of visibility a com­munity of interests and a theory of social organization and obligation