1 The Centrality of Agency

Agency, the capacity for self-willed action, is central to laws that govern the individual rights of people and their freedom to organize collectively.Footnote 1 The 1948 Universal Declaration of Human Rights (UDHR) was a milestone achievement for human rights founded on freedom and justice. In its preamble, the UDHR proclaims that “human beings shall enjoy freedom of speech and belief and freedom from fear and want,” to promote “life in larger freedom” (UDHR 1948, preamble). It is on the grounds of our agency that we commit to securing universal rights and foundational freedoms for all humans, including the right to life, basic education, freedom of expression, and the freedom to form personal relationships. These rights, in turn, are an acknowledgment of the need and desire to protect normative dimensions of our agency (Griffin 2004, 2008, 149).Footnote 2 Their realization represents “the highest aspiration of the common people” (UDHR 1948, preamble) and they must be protected as a matter of the rule of law, for, without them, humans would be “compelled to have recourse, as a last resort, to rebellion against tyranny and oppression” (UDHR 1948, preamble).

Prior to the UDHR and the emergence of a shared commitment to secure human agency, rebellion was the only form of protest available to humans whose agency was ignored, restricted, or simply not guaranteed by positive action. In theory and under perfect conditions, the rights of the UDHR eliminate the need to rebel because they secure human agency and expand opportunities to exercise it. As we acknowledge the central role played by agency in the organization of human life, we have—so far—failed to extend this concept to nonhuman animals, although there is overwhelming evidence that they resist and rebel against (human) tyranny. Elephants break free from their chains and seek revenge against the people who maltreated them with bullhooks, tigers leap out of their enclosures and track down visitors who tormented them, whales target trainers who confined them and separated them from their offspring (Hribal 2010). Sheep escape from the slaughterhouse, pigs jump off transports, and cows prefer to swim into the open sea rather than enduring heart-wrenching conditions aboard ship. Animals resist by screaming, running, and defending themselves with horns, teeth, and claws; they express disapproval through eye contact, stiffness, repetitive behavior, depressive ear drooping and reticence, or simply by retreat (Philo 1998; Wadiwel 2018). In their given environment, animals express many “forms of resistance against human ordering” (Wilbert 2000, 250), and, as such, materialize their “capacity for self-willed action” (see chapter by Meijer and Bovenkerk in this volume).

In a world dominated by humans and governed by laws that further human interests, resistance to curtailments of their agency is still animals’ only recourse. Agency, so central to us human animals and the laws governing our relationships, is neither recognized nor secured by the laws governing nonhuman animals and our relations with them. Here, I explore the consideration of animal agency as a matter of law, not whether animals have legal capacityFootnote 3 and as such, are agents of the law.

The law on the books suggests animal agency is not a matter of or for the law. For example, the Dutch Animal Law recognizes the intrinsic value of animals (2011, art. 3 para. I), but posits in its preamble that the law serves to secure animals’ welfare and to market animal products (2011, preamble). Worldwide, “animal welfare acts” or “animal protection acts” claim to be primarily preoccupied with securing the welfare of animals or protecting them (Blattner 2019).Footnote 4 But do concepts of “welfare” and “protection” include agential action? Generally, an animal’s state of welfare is considered good if, as the World Organization for Animal Health (OIE) provides, they are “healthy, comfortable, well nourished, safe, able to express innate behaviour, and […] not suffering from unpleasant states such as pain, fear, and distress” (OIE 2019, art. 7.1.1). Crucially, however, “animal welfare laws” often still legitimate using and killing animals by laying down how and when they can be bred, taken from the wild, separated from their families, confined, used, maimed, slaughtered, skinned, and turned into convenience products. Since most animal laws do not interfere with these and other majority group practices (Deckha 2012), nonhuman animals are, all things considered, deprived of legal protection (i.e., animal law in a substantive sense) and recourse (i.e., animal law in a procedural sense) (Kymlicka 2017). The almost exclusive focus of the law on the needs of humans thwarts its efforts to be just, equitable, and fair (including fair to all humans, since animal law can be a tool to oppress certain human groups). These crucial dimensions still require translation into mainstream debates about animal law, however, I am here not primarily interested in whether or not the law can deliver on animal welfare grounds. My main criticism is that the law, even in the best case, namely when it is truly designed to protect animals and perfectly enforced, maximally sees animals as welfare-recipients—beings who are acted upon, “victims” in need of rescue, “voiceless beings” that require a human voice (Corman 2016)—rather than as actors with their own will and deserving of individual or communal rights that secure their agency.

The law does not consider animals’ desires and preferences for, e.g., where they want to live or with whom, whether they wish to bear and keep their young, or have their organs removed; neither does it require those applying the law to do so. Instead, laws detail the “proper” way to dehorn or debeak, cut off snouts or tails, and remove toes and other body parts that animals need and use to express themselves, navigate their relationships with others, and flourish (see esp. on how birds, specifically chickens, are forced to endure such practices, Davis 2011). In doing so, animal law is not only complicit in disregarding animal agency and failing to respond to its many manifestations, but, above all, operates as a central legitimizing scheme to ignore and silence animals and inhibit their agency. Some might argue that these practices were written into law starting in the 1960s up until, roughly, the 1990s, before there was any scientific evidence of animal agency.Footnote 5 Animals’ agential capacities could, to some extent, be argued to be recognized by those states that have recently begun to frame animals as quasi subjects of the law by recognizing them as “living and sentient beings”, notably in their civil codes.Footnote 6 Though this is certainly an improvement over labeling animals as “objects,” these statements notwithstanding, most states openly declare that they will continue to treat animals as objects of the law (Blattner 2019, 243–244). But what can reasonably be the transformative potential of laws that reject the notion that animals are objects but lay down that, for reasons of convenience, animals are still treated as if they were property? Since there is no functional difference between being treated like property under the law and being property, animals have not yet benefited from the nominal recognition that they are “living and sentient beings.” And likely, they never will.

Animals’ agency can play a critical role in facilitating the law’s recognition of their subjectivity, by making plain that each and every animal is an agent with robust interests in self-determination. Most people living with companion animals take pleasure in describing the animals’ sassiness or pointing out that their companions ask for things that are important to them (e.g., particular foods, being taken out for a walk, or their preferences for and dislikes of particular people). However, these individual insights rarely shape people’s views about animals at large, who are often presumed to lack agency. Overall, animals are still seen as reacting in unthinking and deterministic fashion to natural forces guided by scripts predefined by their genes or species membership (e.g., Nussbaum 2006; Rollin 1995). Many believe this “genetic imprint” prevents animals from determining or changing the course of their lives in a meaningful sense; they operate under the assumption that animals’ actions and desires are predictable and that they do not have the “necessary free will” to act as agents. This old-fashioned view is based on arguments that have traditionally been used to deprive others of their rights (e.g., women), and is heavily influenced by confirmation bias as it ignores clear evidence to the contrary.

Our denial of animals’ agency often starts with how we talk about them. Animals are farmed, they are domesticated, and used for food production, research, or any other purpose. Animals are primarily defined by how we seek to use them (Eisen 2010) and by framing them as mere passives upon whom we do things, we strip them of agency. Our everyday language neither recognizes existing forms of animal agency nor does it, as it is used today, seem to leave room for its recognition in the future. In addition, we typically see and encounter animals only in highly restrictive environments, and this, in turn, influences our judgment of their agential capacities. Everywhere we turn, we see instances of humans suppressing animal agency, insisting on and enforcing the roles that we ascribe to them. We cram them into small quarters to fatten them for food, impregnate them for milk production, train and discipline them to docility; we pen them in restrictive environments that prevent them from exercising agency; and reduce their lives to “simple, predictable and monotonous” actions (Špinka and Wemelsfelder 2011, 27). On the socio-political level, considering animals as belonging into these environments, even just seeing animals in these environments, reinforces the dominant view that they lack agency. On the research level, studying animals in these environments means we ask limited questions and that the answers to those questions are bound to be tainted, biased, and only marginally useful (Blattner et al. 2020). It is these ideological blinders and our pervasive anthropocentric bias that create a vicious circle and reinforce existing power hierarchies, unchecked biases about others, and the continued oppression of animals. If humans—like animals—were forced to live penned up on one square meter, denied the ability to interact with others, tied up by ropes to be forcefully impregnated, or forced into slaughterhouses,Footnote 7 we would challenge the claims of those who justify these practices. We would argue that in these instances, any person under such restrictive and oppressive conditions is denied agency, so it seems reasonable to turn this argument around and to point out that, if animals do have agency, it will be least evident under restrictive and oppressive socio-political conditions. To advance useful proposals for improving the lot of animals, we need to learn to see the many aspects of our socio-political and interpersonal relationships with animals that are limited by our ignorance and bias. Only then can we formulate ethical and legal arguments that can address the issue of animal agency.

2 On Animal Agency and Self-Judging Obligations

Animal studies is an emerging field that builds on scholarship in the humanities, social sciences, and sciences to investigate past and present relations between human and non-human animals, the representation of those relations, their ethical implications, and their social, political, and ecological effects in and on the world (Wesleyan 2019; Kalof 2017). Researchers in the field seem the most likely candidates for removing the blinders that rationalize and protect human activities of casually confining and eliminating nonhuman animals, but the field is still trapped in the tarpits of anthropocentrism. In animal studies, “studying” is still understood as a unidirectional process: humans study animals, and not the reverse. Humans decide which questions are asked, choose modes of encounter with animal participants, interpret the results, and then represent animals in the products of research. Even when animal studies have positive effects on animals, and even if researchers are well-intentioned and attempt to center the interests of animals in their studies, nonhuman animals are still fully dependent on the goodwill of researchers to ask the right questions, correctly interpret the answers, and communicate them adequately to the public. So far, we have not been able to shift away from this human center of animal studies.

In an era of the Anthropocene, the lives of animals are massively and irreversibly shaped by human action, to the extent that animal losses regularly manifest as human gains. Cows, fish, and chickens die so humans can be happy and well-fed. Beagles, monkeys, frogs, and others are confined and harmed to improve or save human lives. Dogs and cats are disciplined, patronized, and controlled by using force to ensure human society is orderly. In these socio-cultural contexts, raising the argument that animals resist often meets hostility from researchers, who may benefit from misinterpreting, misrepresenting, and systematically neglecting the interests of animals. Even the most well-intentioned researchers, who strive for impartiality and acknowledge the perspective of animals, may hesitate to challenge the larger power structures that dictate research funding, job availability, professional reputation, and outreach (Reichlin et al. 2016). When the whole power structure is arrayed against animal agency, it is difficult to begin and persevere in research projects that look for, or even better, presume this agency.

Standard research structures, and the results they produce, are especially problematic as they shape our understanding of animals (personally and politically). Informed by these views, laws are then set up by humans vis-à-vis animals, so any obligations that flow from them are, without exception, “self-judging.” In international law, self-judging obligations are widely decried, as the Separate Opinion in the Norwegian Loans case by Judge Lauterpacht, writing in his capacity as a judge for the International Court of Justice (ICJ), shows: “An instrument in which a party is entitled to determine the existence of its obligation is not a valid and enforceable legal instrument of which a court of law can take cognizance. It is not a legal instrument. It is a declaration of a political principle and purpose” (ICJ Norwegian Loans 1957, 43). The structural shortcomings of self-judging obligations that Judge Lauterpacht analyzes, are, mutatis mutandis, inherent in any legal system that is organized exclusively by humans and which unilaterally lays down our obligations vis-à-vis animals. Animal studies and the broader scientific inquiries that have an effect on animal agency—be it animal research, food ethics, political theory, environmental ethics, constitutional and human rights theory, or any other field or discipline—exemplify this sort of unchecked power: One group investigates another in a wholly unchecked manner, and determines the rules of interaction, too, unchecked by principles of objectivity. Because we humans are beneficiaries of animal use—be it directly or indirectly—, we are at a perpetual risk of lacking the necessary objectivity to evaluate these competing interests.

This imbalance is not limited to the animal realm. When researchers study children, adults dominate research design, process, and outcome. The difference is that ethical and legal principles govern these interactions. Research Ethics Boards (REBs) ensure that researchers adhere to pre-agreed principles, sanction researchers who violate them, and guarantee that research with human participants truly meets ethical standards. But REBs do not review research conducted on or with animals. Instead, Animal Care Committees and their Animal Use Protocols govern these relations, taking an instrumental, anthropocentric view wherein animals are treated as research objects (Cojocaru and von Gall 2019). These protocols center on welfare and humane use, framed mainly by the 3R principle, i.e. the duty to replace, reduce, and refine the use of animals in research (Herrmann and Wayne 2019). The 3R principle typically requires or, in effect, leads to a cost-benefit analysis (Peters 2012, 31–41), where harms to animal subjects are weighed against benefits to science, humans, other animals, or broader ecological groups/systems. Existing guidelines are rarely concerned with ethical assessments of whether the knowledge we gain merits the use of animals, and even more rarely ask if animals should be used at all (Orlans 2008). As Gillespie and Collard (2015, 205) note, “[a]nimals are considered outside the purview of ‘human’ ethics, and animal ethics revolves, in most cases, around a presumed ‘disposable’ animal life”.

While we can and should challenge this approach in all animal research, invasive and non-invasive, we still lack principles that can guide us in the pursuit of respectful research with (rather than on) animals in order to, for example, study animal agency. Without such principles, instances of animal agency are unlikely to be seen or looked for, and, as a consequence, we cannot begin to define, let alone move ahead with, more respectful relations with animals. We thus need to design, advance, contest, and discuss principles that guide (human) researchers in their interactions with and representations of animals. In a recent article in Animals & Society, Van Patter and Blattner (2020) took a first step, and proposed a set of guiding principles to fill this gap. They suggest principles for designing an ethics protocol for non-invasive research with animal participants based on welfare- and agency-based considerations, which departs from current speciesist institutional animal care conventions. The protocol is guided by respect, justice, and reflexivity and defines three core principles: non-maleficence (including duties of vulnerability and confidentiality), beneficence (including duties of reciprocity and representation), and voluntary participation (mediated informed consent and ongoing embodied assent). Weaved into these three principles are duties to represent animals as subjects with their own agencies, communities, and personalities; to center their stories, thoughts, feelings, and uniqueness; and to study animals’ material lifeworlds, use of space, and social interactions with a motivation to acknowledge their agency and subjectivities. The protocol is designed to spark broader scholarly engagement with the topic, which can and should, ideally, permeate into the law. As long as the status quo in research institutions is to resort to a welfarist 3R framework, scholars and practitioners who want to engage in respectful, non-invasive research with animal participants can adopt such protocols on a voluntary basis. As more researchers do so, institutional review boards may gradually incorporate ethical considerations for non-invasive research with animals into their protocols. For, after all, institutionalizing respectful research principles with animals should be the end-goal not only of people dedicated to advancing the fate of animals, but of all people dedicated to solid, impartial research.

3 Standpoint Acknowledgement and How to Ask the Right Questions

While we are, as a society and individually, working to ensure that ethical considerations become embedded in research with animals and taken up by law and policy, we must remain attentive to power relations and positionality (Van Patter and Blattner 2020). Researchers must guard against interacting with and representing animals in ways that perpetuate relations of domination and marginalization. We must, for example, stop bending research on animal agency to human supremacy. Current practice is to ask questions that presume and look for differences in human and animal agency. Worse even, we tend to avoid the word “agency” altogether when we talk about animals and when we assess the rules of interaction between us. Or, we admit to the existence of animal agency to the extent that this does not throw out of order the dominant ways in which we use and abuse animals. For example, we usually recognize and respond to dogs’ and cats’ food preferences since this does not question our right to use them, but we ignore chickens’ preference to remain alive as they are swallowed up alive by “chicken harvesting machines” (Wadiwel 2018). This is even though in the human case, we consider our interests in life fundamental, whereas our interests in food types are usually less protected (at least legally speaking). This suggests that also in the case of animals, when they exercise agency in defense of fundamental values, like life and bodily integrity, this should be taken much more seriously (compared to food types etc.).

Again, this tendency to omit looking for agency in animals who find themselves in heavily restrictive environments is explained by the focus on our use of animals rather than on the animals themselves. To dismantle these self-reinforcing practices, we must acknowledge the unequal power relations and our own positionality as humans socialized within one-sided systems of thought. We should also engage in reflexive practices and consider how this inequality and our biases may influence our research design and conduct, asking open-ended questions about animals (rather than questions that serve pre-determined human interests), including:

  • Do animals have capacity and interest in self-willed action?

  • How important is it for animals to exhibit agency? In what form? What factors facilitate animals’ use of agency? And which factors thwart it?

  • What are the best social, environmental, political, economic, and other circumstances for studying animal agency?

  • If animals do have and value their agency, how must this shift our current ethical and political understanding of human-animal relationships?

  • To what extent and how must the law adapt to ensure animals can realize their agency?

  • What would laws that respect animal agency look like?

So far, the focus of most scientific inquiries into animal agency was on animal resistance, offering us a richer picture of animals’ desires, and throwing into doubt the presumption that animals can be freely used, handled, farmed, or done to whatever humans like to do to them. If resisting animals were taken seriously instead of silenced, it is easy to imagine how the world could become a more just place for them: We would respond to instances in which they do not feel comfortable, adapting our behavior accordingly. However, resistance is not “the only measure for the wellbeing and welfare of animals living, laboring, and dying in service to capital accumulation” (Gillespie 2016, 129). Focusing on resistance alone means that the only agential option for animals is to opt out. Building a political system on this premise is risky as it disregards the structural, institutional, and interpersonal biases against animals that render their environment largely unresponsive to their concerns and reduce their ability to meaningfully resist (Meijer 2016, 66). Animals whose resistance goes unheard will, as a consequence, often develop learned helplessness, which renders them “inarticulate” (Despret 2004, 124). Focusing on resistance as a model for animal agency alone also risks positing animals as reactants, as passive beings to whom things happen. As such, it does not account for the manifold ways in which animals shape and change the world around them and initiate and foster relationships. An exclusive resistance model limits our ability to recognize that animals have much more agential capacity and a much more profound interest in exercising and realizing it than we typically assume (Blattner 2020).

Studies set up to reduce researcher bias against animals have consistently shown that animals have impressive capacities and strong, indeed, intrinsic interests in decision-making, self-willed action, and relational agency, which we tend to heavily underestimate (Blattner 2020). Animals have their own individual preferences for, e.g., specific foods, locations, social partners, activities, and objects (Slocombe and Zuberbühler 2006), and they invest considerably into getting what they like (Hopper et al. 2015). Having choices has a strong positive effect on animals. Giant pandas (Owen et al. 2005), polar bears (Ross 2006), goats and sheep (Anderson et al. 2002), and many other animals are less stressed and show positive behavioral changes when provided with, e.g., more space, access to different rooms, or choice about where to spend time. Rhesus monkeys prefer completing a series of cognitive tasks in a self-chosen order rather than an assigned order (Perdue et al. 2014). The research with giant pandas and polar bears (Owen et al. 2005; Ross 2006) shows that animals prefer choices even when they do not take advantage of them. Chimpanzees and gorillas respond positively to having the choice to go outside (demonstrating positive social behavior like grooming, lower cortisol levels, a steep drop in signs of anxiety and restlessness), even if they chose to stay inside (Kurtycz et al. 2014). By and large, whenever humans have gone the extra mile to inquire about animal agency, they have consistently found that animals have strong instrumental interests in agency and, indeed, intrinsic interests in agency (Blattner 2020).

Because many investigations of animal agency are still carried out in controlled environments with confined individuals or groups, they give us only an incomplete and limited picture of animal agency. Possibilities of agential action are limited, especially for decision-making that could change the macro-dimensions of animals’ lives, concerning, e.g., whether they want to live (which, unsurprisingly, most animals do), where and with whom they want to live (humans? nonhuman animals? a multispecies society?), their communities and social structures (with common decision-making structures, hierarchical, or equality-based), and what their daily routines should look like (including daily activities, foods, places and routines of food, sleep, play, greeting, etc.). As we seek to reveal certain glimpses of animal agency without sensitivity to these bigger questions, we run the risk of re-inscribing larger power hierarchies. Demonstrating that dogs who have control over ending electric shocks recover more quickly (Seligman and Maier 1967), for example, does not justify inflicting pain on dogs, exposing them to stressors, or confining them. Rather, proof of agency in these controlled environments shows that animals value self-determined action. Accordingly, we must take full account of animal agency, or, at the very least, aspire to do so.

We need researchers who are committed to critically evaluating existing accounts of agency and to developing a more accurate picture of animal agency, its extent and relevance, especially in environments that provide them with the broadest possibilities for agential action. Innovative research in this area has explored, for example, individual and collective dimensions of animals’ agency in sanctuary settings, by studying their use of space and place, their practices and routines, and their social roles and norms, in order to learn whether and how animals might want to live with us, and how we can recognize and support their agency through our relationships (Blattner et al. 2020). Exploring animal languages, too, is a fruitful inquiry that has the potential to reveal previously unknown manifestations of or desires in exercising agency (Meijer 2019).

The emerging research area of animal agency is marked by three distinct tendencies. First, this research begins with the animals’ perspective instead of comparing and contrasting the capacities of animals and humans (Meijer and Bovenkerk, in this volume). Second, it explores animals’ agency in its positive dimensions—looking for decision-making, intentional action, pro-active behavior, self-willed action, and relational agency on top of instances of resistance—instead of taking the welfarist track and considering them only as pain-avoiders. After all, animals have myriad interests in deciding for themselves what to eat (cabbage? carrots? chickpeas?), whom to live with (humans? animals? no one?), what to do throughout the day (wander around? say hi to different people? forage in the woods? go for a swim at the beach?), whether or not to have relationships with other animals and humans, where and how to sleep, and what ground and property they want to traverse. Third, research into animal agency has the potential to influence and, ideally, change the larger political realities.

If, however, agency is only superficially explored, within the confines of human oppression, our understanding of animal agency becomes a watered-down version of what it truly is. Rather than empowering animals and working toward a multispecies polity, limited accounts of animal agency operate as means for humans not to question the larger actions by which they disenfranchise and oppress animals. Honest, unbiased, and open-ended inquiries into animal agency, on the other hand, can challenge existing power hierarchies and make clear that current injustices are not irreversible, given, or nonnegotiable. One new and particularly promising strand of research where animal agency is studied to ask and answer political questions is “political multispecies ethnography”—an ethnographic participant methodology suited to the study of human and animal interactions, and committed to supporting their agency and advancing interspecies justice (Kymlicka and Donaldson 2014; Blattner et al. 2019). This is a relational methodology that is dedicated to the study of human-animal relations (be they close or distant) to understand power-laden entanglements among species and alter interspecies status and hierarchies (Gillespie 2019). Results produced by political multispecies ethnography can challenge deep-seated biases in the larger socio-political structures—such as the ones I identified in this article—, to make visible animals’ views and help us understand how animals’ agential actions themselves are challenging broader phenomena, for example, climate change or the expansion of human population into nature and animals’ territories.

4 Calling for an “Animal Agency Turn”

In the Frankfurt Germany’s Fechenheim district, a 22-year old Arabian mare named Jenny roams the neighborhood on her own. Every morning, she takes a leisurely stroll through the streets. Dozens of worried pedestrians have called the authorities, afraid that Jenny has been neglected or poses a danger to herself and others during her morning walks. These worries were dismissed by veterinarians, who testified that Jenny knows very well what she’s doing and seems to be satisfied with her activities. Jenny now wears a letter attached to her harness, informing concerned people in town that she knows her way around and is doing her own thing: “I’m called Jenny, not a runaway, just taking a walk. Thanks.” Locals got used to seeing her walk around on her own; some even say that more animals should be able to walk freely (DW Newsletter 2019). Jenny’s story shows that there is much to be gained from the study of animal agency as it challenges our views about what agency is, who can exercise it, and how it manifests. Such common knowledge, as well as new scientific findings about animals’ agency should be integrated into neighboring disciplines, including politics, law, geography, design, and economics. For example, if the law recognized animals as agents, this would crucially change the way we organize human-animal relationships personally and politically: Animals’ voice would need to be considered in deciding who deserves legal protection and, relatedly, who gets legal recourse. Building on this, this contribution calls for an “animal agency turn” that we must take, in concert with animals, by educating fellow researchers and exposing friends, family, and the public to instances of animal agency. For animals’ acts of agency to be heard, seen, and recognized, we need nothing short of civic competence and courage, empathy, participation, common engagement, and respect for animal alterity.