WHAT IS CRUELTY? THE LAW’S AMBIGUITY

While protectionists clearly linked cruelty and human culpability to animal pain and suffering jurists and other 19th century legal experts were less inclined to see the matter in such an exclusive and straightforward manner.

In fact, even as Bergh and the animal protection movement stretched the boundaries of legal cruelty by including animals among its victims they also absorbed the fundamental paradoxes and ambiguity at the heart of cruelty as a concept: chiefly its shifting and multiple loch Cruelty was not easy to define or locate for it seemed at once to consist in its perpetrator’s inten­tions in the suffering the act of cruelty might cause in its victims in the relationship of excess between means employed and ends sought and in the violation of public norms

Historically cruelty had been a largely marginal term in both legal and philosophical circles virtually ignored until the late medieval and early modern period when it came into common currency as a trope to portray both personal violence and political or religious tyranny (Shklar, 1984; Baraz, 2003) Despite the changing status of cruelty as a subject of discus­sion the terms of its discussion have remained fundamentally similar Cru­elty has always been understood in terms of excess - of irrational emotion in its perpetrator of pain in its victims as an excess of force in punishment or as an action in excess of social standards As a term of excess cruelty was often associated with other moral flaws such as lust, greed and intemper­ance that similarly stem from passions run amok Its relation to immod­eration made cruelty a relative rather than an absolute moral term one that depended on circumstances and social frameworks for its identification ¹¹ Moreover cruelty is what the philosopher Bernard Williams (1985) calls a ‘‘thick moral concept,” one that is derived from evaluations of actions in the real world rather than from timeless unchanging principles of moral law This ambiguity and lack of fixedness makes cruelty a powerful and useful cri de couer, and one ideal for coalition-building but it also contributes to its weakness as both a moral and a legal term

Cruelty’s conceptual link to other vices has for example often resulted in a lack of specificity with regard to its harm Protectionists for example, sometimes portrayed cruel acts as evidence of a general human depravity rather than of a specific affront to a specific sentient being¹² Animal protectionists likewise often invoked the centuries-old argument that cruelty to animals was linked to other vices including intemperance greed child abuse and murder In arguing for better human treatment of animals then, some reformers made the case not that it was inherently wrong to make an animal suffer but that animal abuse was a gateway vice positioned at the top of a slippery slope that quickly descended from horse-whipping to wanton depravity and murder Following the logic of William Hogarth’s famous 18th century woodcub Four Stages of Cruelty, one humane pub­lication explained that children’s cruelty to animals ‘‘begun in levity and thoughtlessness” was actually quite pernicious for it ‘‘hardens the heart, and the parents who unmoved behold a child torture a kitten or a bird are really educating that child for cruelty and murder” (Untitled 1869, p.

Many 19th century legal interpreters were also inclined to fall back on this older view of cruelty defining its harms in terms of humans rather than animals When jurists considered whether a man was guilty of cruelty to animals they could consider four definitions of cruelty: as mens rea, or the intent to be cruel; as the production of severe pain; as an excessive amount of force; and as an action in violation of social standards of decency Save the second of these four all available definition made cruelty a problem within human beings and human communities rather than a problem between humans and animals

In any court of law cruelty legally hinged on the balance between intention and outcome As one lawyer in an anticruelty trial put it, ‘‘the intent and the act must concur to make the offence” (Commonwealth v. Lewis, 1891 Pa LEXIS 839) Anticruelty laws were not novel in this respect, for all criminal laws require the combination of a harmful act and an evil intention - short one of these elements there is no crime (Bishop 1877). Cruelty investigations and trials thus typically asked of a perpetrator’s actions did they cause suffering (the outcome) and was that suffering unnecessary? In considering the necessity of suffering the intention of the perpetrator entered the calculation If cruelty hinged not on the severity of the pain but on its justifiability then the legal focus shifted from animal suffering to the human mind the seat of purpose and intent As criminal codes anticruelty statutes automatically built in the requirement for mens rea, or a criminal mind and typically specified that the pain inflicted must be done wantonly maliciously or with reckless disregard for the animal’s welfare Moreover very few actions were considered prima facie cruel, but instead cruelty was determined on a case-by-case basis that considered, among other things whether the actions in question were undertaken for a legitimate purpose and with the proper intent (Thornton 1890; Barnard, 1888) Castrating one’s anima) for instancy might cause great pain but would not be for that reason considered cruel since the purpose and thus the intention was legitimate and the pain produced ‘‘necessary” to achieve a legitimate end Similarly a man might whip or otherwise strike his animal in the process of training it without approaching cruelty - the distinction that courts drew was between chastisement undertaken for the purposes of training and that which ‘‘results from any bad or evil motive; as from cruelty of disposition from violent passion [or] a design to give pain to others” (State v.

Establishing the intention behind actions that caused pain was no) how­ever a simple matter - nor was determining the relative importance of intention versus effect in a given case On the one hand intent was a critical element of the crime but on the other anticruelty statutes operated as did all other criminal laws on the assumption that ‘‘every man intends the natural, necessary and even probable consequences of an act which he intentionally performs” (Barnard 1888, pp. 11-12) Courts furthermore, disagreed about the importance of intent and how to define the necessity of certain human actions such as fox hunting and pigeon shooting (State v. Bogardus 4 Mo App. 215)¹³ Anticruelty activists for their part, undertook public campaigns to redefine ‘‘necessity” and to argue that cruelty could result from thoughtlessness (the law’s ‘‘reckless disregard”) as well as from the overt desire to inflict pain on a helpless being Generally speaking, SPCAs reserved prosecution for cases that they believed fell into the latter category or those for which ignorance whether of the law or of the suf­fering incurred seemed an untenable excuse Partly this reflected the anticruelty movement’s faith in moral suasion as the ultimate remedy for human cruelty and partly it reflected the difficulties encountered by SPCAs in prosecuting cases in which the intent to harm was less than clear (MSPCA, 1877).

Even when state courts were willing as they sometimes were to grant that ill motive or intention might be ‘‘immaterial’’ to the question of whether the crime of cruelty had been committed their understanding of cruelty’s harm nonetheless focused not on animals but on human morals An Arkansas judge for instance noted anticruelty legislation’s novel departure from the property and public nuisance protections of common law However he went on to construe such statutes literally would result in their being a ‘‘dead letter” since as written the state ‘‘might drag to the criminal bar every lady who might impale a butterfly or every man who might drown a litter of kittens” To avoid such ‘‘absurdities” the judge admonished that the ‘‘laws must be rationally construed” ‘‘So construed,” he assured this class of laws may be found useful in elevating humanity by enlargement with all God’s creatures and thus society may be improved’’ (Grise v.

Six years later the 1887 decision in Commonwealth v. Turner, a Massa­chusetts prosecution for fox hunting affirmed the view of the Arkansas judge The court declared that the offense of cruelty was against neither property nor animals’ rights but instead ‘‘is against the public morals which the commission of cruel and barbarous acts tends to corrupt’’ (1887 Mass LEXIS 76, 8) Indeed cruelty laws were most often incorporated under the sections of state criminal code regulating the public welfare and morals (Curnutt, 2001) Similarly after an extensive review of state court decisions to date an 1894 article concluded that anticruelty legislation did not establish animal rights but rather that the object of the laws was to stem ‘‘brutality in man’’ which is ‘‘destructive of that morality and humanity upon which all government is founded’’ (Quinlan 1894 p· 161). In such statements 19th century legal interpreters betrayed their essential unwillingness to depart from a common law framework for understanding harm to animals hammering the square peg of the new statutes into the round hole of public morals protection

The identification of specific actions as cruel depended also on establish­ing the ‘‘necessity’’ of allegedly cruel acts and determining necessity was for courts largely a question of parsing illegitimate from legitimate means and ends For 19th century jurists the legitimacy of acts depended on yet another factor: social norms - what the United States Supreme Court has termed the ‘‘evolving standards of decency that mark the progress of a maturing society’’ (Trop v. Dulles 356 US 86) Thus for example while state slave codes rarely afforded slaves protection from cruel masters judges were sometimes willing to convict masters for cruelty when their punish­ments went beyond ‘‘the boundaries of custom and law’’ (Friedman 1973).

Although animal protectionists were genuinely concerned with lessening animal suffering and though they authored and promoted legislation that placed animals’ interests more squarely before the law than ever before the concept of cruelty the laws that criminalized it, and the judges who inter­preted and applied those laws all paid substantial attention to human morality Since cruelty was constituted by an excess of pain and an evil intent both interpreters and opponents of cruelty vacillated between locat­ing its existence on the one hand in the sentient experience of animals and on the other in the mind of the criminal. This reflected and contributed to the confusion over the harm of cruelty - and whether it lay in criminal mind, the animal body or the public morals Writing in Law Notes, one author honed in on ‘‘the fundamental question why men should be restrained by law from acts of cruelty towards the lower animals’’ Is it, he wondered, because there is ‘‘a positive right sanctioned by the sovereign power so that there is a bond of law between them and men? Or is it a right ‘which derives its sanction from the human revolt against the mystery of pain’? Or is it founded simply upon moral utilitarianism’’ prohibited because restraining men from such actions improves their character (J H. L., 1902, p. 141) In the pages of humanitarian publications appellate court cases and legal commentaries J H. L. could easily have found support for each of his propositions ‘‘moral utilitarianism’’ not least among these