By Ron Beadle
Introduction
This is a response to the invitation by the Committee for Calls for Written Evidence on the Bill. The Bill is proposed not as an animal welfare measure but rather on ‘ethical’ grounds and I will therefore first address the grounds of the Bill before turning to the question of ethical justification and the relationship between ethics and welfare, before concluding.
I am writing as a Professor of Organisational and Business Ethics whose empirical research concentrates on the travelling circus. Examples of my research include my 2017 award of research funding from the British Academy/Leverhulme Trust for a study on the career choices of circus performers and previous studies have been published in academic journals including ‘The Journal of Business Ethics’. I co-convene the ‘Circus Research Network’ (Britain and Ireland).
The Grounds for the Bill
At second reading Members made a number of arguments in favour of the Bill; these included inter alia the proximity of the sunset clause on existing regulations, that the use of Wild Animals in Circus was demeaning to animals, that the practices of presenting wild animals for entertainment was out-dated, and that animals were mistreated.
The Government’s grounds were clarified in the summation in which, responding to arguments about the precedent for both animal displays and the movement of animals in general made by Mr Rossiter and arguments on Welfare made by Ms Twist and others, the Parliamentary Under Sec of State for Environment, Food and Rural Affairs, Dr Coffey, confirmed that:
[Mike Radford’s] report concluded that there were no welfare concerns over and above those applying to animals kept in other captive environments, and therefore any attempt to take forward a ban on welfare grounds under the 2006 Act would fail the test of proportionality and primary legislation would be needed. I should also point out to the House that that is also the legal position of the Scottish and Welsh Governments, and that the bans that have been brought forward have been justified on ethical, not welfare, grounds. (521/522)
Ethics as Justification
Ethics understood as the systemisation of ideas about proper conduct, right and wrong, good and evil, operates at a number of levels in human action. It manifests in emotional responses, ongoing preferences and it animates civil and political action. Crucially it also provides resources for justifying decisions and when used in this way it can be understood as a particular type of decision-making practice with its own history, norms and requirements that are equivalent to but operate in a different domain from other decision-making processes from rules of logic to cost-benefit analysis, smart systems and many others. The implication of this is that when one claims ‘an ethical basis’ for anything whatsoever, one must observe the relevant norms and requirements just as one must observe relevant routines in conducting an investment appraisal.
In all of these cases, the history of the practices is one in which challenge to existing norms and the development of new norms is a regular occurrence. However, for new norms to displace old requires that an account can be given for why the use of this or that system is understood as preferable to those of its predecessors. The result is that for practices involving decision-making (sciences, arts, games and so on) one can provide a narrative account both of the development of such practices and of the conceptualizations of their goods and purposes in light of which a new approach, a new technology, a new understanding of relevant questions and so on, has displaced its predecessors. At the same time one can also determine the boundary conditions within which such fields of endeavour exist and indeed, must exist for the type of ongoing practice and dialogue to be meaningful. Certain presupposition must be shared between practitioners and decision-makers in each and every domain for such practices to be intelligible.
It is important then to know what the norms and requirements are for specifically ‘ethical’ action justification for if, as I shall argue, the action justification falls outside the relevant norms and requirements, then we can only conclude that the action is not intelligible in its own terms.
What then are the norms and requirements for ethical justification? Critically one shared feature of all systems of ethical justification is that they be generic. What this means is that from the first annotation of systematic ethical rules in religious texts up to and including classical sources in ethics, the scholastic medieval tradition and post-enlightenment deontological and utilitarian traditions which inform such contemporary notions as rights and welfare; every ethical system has sought general, and most often universal, application. It is this presupposition that informs so much of our taken-for–granted assumptions such as the self-defeating nature of hypocrisy, the rejection of retrospective legislation, opposition to arbitrary judgment and so on.
In order to claim that either a rule, such as the prohibition on murder or a utilitarian calculus such as is used to determine the introduction of new medical treatments, is ‘ethical’, one must also claim that this prohibition or this procedure applies to all relevant cases, and for the most influential post–Enlightenment ethicists, Kant and Jeremy Bentham, this has meant – in all cases. Indeed, a centrepiece of Kant’s ethics is that the only ethical rules are those that are both universal and binding. By universal, we mean that whole, relevant categories are treated in the same way.
The Animal Rights movement is a contemporary example of this. Seminal to this movement is Peter Singer’s text ‘Animal Liberation’ (Harper Collins: 1975), which has proven both highly durable and influential. Singer combines a utilitarian commitment to weighing harms and benefits with an understanding of human and non-human animals that experience pleasure and pain as having equivalent moral status. In other words, he expands the universality of the utilitarian calculus to all sentient creatures. This is a book of ethics in part because of the universality of its claims. Those who concur with Singer’s premises must and often do then commit themselves to veganism, to not keeping pets, to not wearing or otherwise using animal products and so on. They do so consistently because they are acting on a binding moral rule.
Such is the nature of ethical discourse and practice; ethics must be universal or it ceases to be ethics. Even those post-modernists who have critiqued Enlightenment ethics, of whom Jacques Derrida is probably the most note-worthy, have created their own universality condition for their understanding of ethics – in Derrida’s case the category of the ethical only comes in to play in the face of dilemmas so intractable that moral rules cannot guide us. Derrida’s reasoning of course differs markedly from Singer’s and Kant’s but all are ethicists in that all are engaged in locating generic conditions in which rules or procedures must be consistently applied.
The conclusion to be drawn from this brief introduction is that to claim that some decision, some result of reasoning, and indeed some piece of legislation, has an ‘ethical’ basis, is to claim that its exercise should have universal application. Having established grounds for this argument I turn next to the distinction between the ethical basis claimed for the Bill and the grounds of animal welfare.
Ethics and Animal Welfare
The claim that the basis for the Bill is ‘ethical’ rather than on ‘welfare grounds’ is relatively straightforward to understand because it is clear that there are insufficient welfare grounds to provide warrant for prohibition. As was noted by the Minister at Second Reading the 2007 Radford Report “Wild Animals in Travelling Circuses: The Report of the Chairman of the Circus Working Group” concluded that ”there appears to be little evidence to demonstrate that the welfare of animals kept in travelling circuses is any better or worse than that of animals kept in other captive environments.”
Four types of problem have attended the ‘welfare’ case for prohibition. First, there is a sparsity of evidence, second the evidence that there is points to circus animals successfully engaging in the type of activities that indicate flourishing – crucially including breeding and an extended lifespan and thirdly the conceptualization of welfare is itself contested. Fourth, if welfare were to be the criterion for animal protection then other activities such as horse-racing in which, according to Animal Aid, over 1500 horses have died in the last decade in the UK and Ireland (http://www.horsedeathwatch.com/ ) and organised hunting and fishing provide far stronger cases for legislating on welfare grounds. The Government is therefore correct to concur that welfare grounds provide insufficient warrant for prohibition.
If however welfare grounds provide insufficient warrant, the question is whether there are grounds beyond welfare that do provide such warrant? Two questions should be asked of this: first, what kind of ethical argument does not involve the welfare of its objects and second, how do such arguments provides sufficient grounds for complete prohibition? In the House of Commons Briefing Note, the Government’s grounds for a ban are set out:
- It is not necessary to use wild animals in travelling circuses to experience the circus;
- wild animals are just that and are not naturally suited to travelling circuses and may suffer as a result of being unable to fulfil their instinctive natural behaviour;
- we should feel duty-bound to recognise that wild animals have intrinsic value, and respect their inherent wildness and its implications for their treatment; and
- the practice adds nothing to the understanding and conservation of wild animals and the natural environment
I shall take each argument in turn:
- The ‘experience of the circus’ appears here to be measured by the economic sustainability of circus businesses. As the Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs David Rutley put it: It is not necessary to use wild animals to operate a circus or to enjoy the circus experience. The public can still, as the vast majority already do, attend travelling circuses that do not use wild animal acts. (Hansard, 7 May 2019, Col 504) The fact that this argument is made at all implies a cost-benefit calculus has been implied for the impact of the presentation of wild animals on the sustainability of the industry would not be an issue were a matter of ethical principle at stake. This is an interesting admission. As has been noted by many critics of the cost-benefit calculus, its problem is that there are no scales to measure, in this instance, the continuation of the industry against the presentation of wild animals. What is also absent from any such calculation is the impact of the ban on circus as a community and not simply as an industry. The ban effectively prohibits the touring, and not merely the presentation of wild animals. My own research has shown, the relationship between human and non-human animals is pivotal to the self-understanding of circus people and the ban therefore ends, not the life of the circus community, but a critical feature of its way of life.
- The argument that animals ‘may suffer’ simply is a welfare argument and the Government itself accepts that the independent review of evidence suggests that there are no welfare grounds that would be proportionate to a proposal for an absolute ban. This must therefore be disregarded as an ethical justification.
- The argument that what is good is what is natural, that ‘ought’ can be derived from ‘is’, which provides the ethical ground for the claim that it is right to leave nature unmolested; is itself highly contentious. David Hume demonstrated that the assertion that something’s existence guarantees its goodness is logically fallacious – other grounds are needed. For those who train wild animals, it is precisely their capacities for engagement and relationship that the circus uniquely demonstrates – if they were ‘inherently’ wild, the type of training that so concerns their critics would not be possible.
- The proposition that we should leave nature untouched and allow animals to flourish in their natural environment meets the universality criterion but if we accept it, then we are morally bound by all of its strictures, in the manner of the Jain religion or of fruitarians i.e. that any interference with the natural world is prohibited. The grounds that this argument provides for the prohibition of the exhibition of animals for human entertainment is no stronger and no weaker than the argument for prohibiting the consumption of eggs. We can only coherently use this as an ethical argument if we do both, and much else besides.
The Government fails to show how any of the particulars of the exhibition of wild animals contravenes an ethical principle that is not also contravened by hunting, fishing, meat-eating, horse-racing, dog shows, falconry, show-jumping, pet-keeping and any and every other human manipulation of animals. The arguments made by Singer do provide a coherent ethical case against all such manipulation but unless that case is accepted in full, and no Government has ever proposed this, there are no ethical grounds independent of animal welfare that would justify prohibition.
Conclusion
I have tried to show that (1) that any argument claiming to be ethical must be generic in scope (2) that this Bill is not generic in this way because (3) the Bill provides no sound ethical arguments for the ban on wild animals in circus that do not apply equally to all forms of human manipulation of animals. The Bill proposes not a ban on the use of animals but only of wild animals, and not a ban on their exhibition in static circuses (were such to exist) but only when they are transported. Dr Coffey confirmed this when responding to Mr Rossindale MP’s argument on precedent at Second Reading
This is specifically about circuses, and the basis for it is the itinerant nature of such events and what happens when these animals are moved. (Hansard, May 7 2019, Col 521)
Liberal democratic societies which adhere to human rights norms do so on the basis of an ethical tradition which limits the rights of governments and majorities to impose their will on fellow citizens. Prohibition of activities and criminalisation of their participants normally and rightly applies only to practices with significant and far reaching effects which are overwhelming in the damage they inflict on citizens. As a result societies have not banned such harmful activities as smoking tobacco, drinking alcohol, participating in dangerous sports, horse racing and so on.
The question the Committee should ask itself is whether the presentation of wild animals in travelling circuses has such significant, far reaching and overwhelmingly negative effects as to warrant prohibition and thus breach an ethical principle, that of the liberty of the citizen, which genuinely is universal. Many people find animal acts in circus distasteful although it is notable the number of respondents to consultations, is dwarfed by the numbers attending the two remaining animal circuses each year.
There is a contested ethical argument for banning all manipulation of non-human by human animals but the consensus of the social order we inhabit is that distaste does not provide ground for majorities to impose their will on minorities and that manipulation of non-human by human animals is allowable so long as animal welfare is protected.
In short, there is no sound ethical basis for the prohibition proposed by this Bill.
Featured image: Show me tigres
(1) In the interests of full disclosure, I should also state that my brother and two nieces work in travelling circus and that I have been a Liberal Democrat Councillor in Gateshead Metropolitan Borough Council since 1996.
(2) Available at: https://researchbriefings.parliament.uk/ResearchBriefing/Summary/SN05992#fullreport
(3) Beadle, R. (2013). ‘Managerial Work in a practice-embodying institution – The role of calling, the virtue of constancy.’ Journal of Business Ethics 113: 4, 679-690
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