David Cassuto (x-post from Animal Blawg)
Alas, blogging has paid a heavy price for what has been and continues to be a very busy semester. But it’s been busy in a good way. To wit, I am recently returned from both Las Vegas and Rio. I’ll discuss Rio in my next post but first, to Vegas.
A few weeks ago I attended the Conference of the Association of Law, Culture & Humanities held at UNLV. This very fine, interdisciplinary conference had three panels organized by UNLV’s Professor Bret Birdsong on Law & Food. The panel discussions ranged from GMOs to marketing and were uniformly excellent. My talk (I was on one of the panels) grew out of some of my previous work. It explored the unique normative challenges raised by the human/animal dynamic and how those challenges manifest in animal law and, consequently, in food law as well. I argued that many of the failings of animal law (and environmental law as well) can be explained by the fact that it does not arise from the traditional relationships from which laws are created. 
Law governs interactions between and among members of society. It codifies shared goals reflecting an ideal vision of a just society. This vision arises through communication. For communication to be coherent there must be a shared belief in the possibility of consensus and mutual understanding. Consensus-driven communication requires a common language. Laws governing human interaction (property, contract, criminal, torts, etc.) all fit within the discursive framework of shared goals and commitment to the perpetuation of society. Animal law, however, does not. (Non-human) Animals do not share a language with humans. They do not participate in human discourse nor do they share the goals of human society.
Without a common normative vision, there is no consensus through which to create laws. Consequently, animals are not merely an unwilling participant in the law-making process; they do not participate at all. It therefore makes no sense to talk about animal law as such; it is more properly described as a set of laws governing how humans interact with the animals. But because humans and nonhuman animals do not have any shared commitment to consensus, attempts to impart meaning to the interactions are necessarily counterfactual. Herein lies what Aristotle might have described as the tragic nature of animal law. The impossibility of communication coupled with the immutable need for communication creates a crisis borne of conflicting truths that undermine meaningful interaction. It also injects a deep, structural tension into our relationship with what we eat.
I could say more but then you wouldn’t want to read the longer paper. Consider this a teaser for that, which I hope to debut soon.