Approaching Animal Law Reform
Laws regarding the proper treatment of non-human animals have been in place since the 19th century. While regulating the use and exploitation of animals is progress in the right direction, the laws currently in place are inconsistent, and tend to defend animal owners rather than the animals’ own interests. Animals are seen as property and referred to as “brutes” or “pests.” The law categorizes animals according to their use to humans, rather than recognizing the needs and interests of individual species.
The advancements groups have made in ratifying animal welfare law are largely due to the Kantian thesis that aggression towards animals is a predictor of aggression towards humans, not because of recognition of any inherent value in animal well being. Kant saw humans as the only rational beings, and considered rationality the qualification for moral law. Animals were therefore assigned relative value only as instrumental to humans (Jamieson). Since then, developments in research have opened debate as to whether non-human animals possess rationality. Some humans (infants and mentally ill) cannot be considered rational, yet we still grant them legal protection. Today, the discussion of legal rights and interests begins with sentience. Animal studies and the consideration of animals’ sentience are gaining interest among the public. There is sufficient motivation for change, “but there are many who are either ignorant of the issues or do not care that their actions impose pain and suffering on others. While education and enlightenment will change the conduct of some, only altering the law can force changes of behavior on the unwilling” (Favre, “Integrating Animal Interest Into Our Legal System” 89). We need a coherent method of protecting animal interests.
Our legal system is created by humans for humans and their interests. The most persuasive and politically astute way to bring about real change regarding animal law is to approach the legal system as such, and working progressively rather than attempting to uproot the legal paradigm when it comes to animals. Noting human-like qualities and interests in animals can be persuasive, as people are more likely to grant animals equal consideration of shared interests. The question is largely how to approach law reform – there are generally three advocated methods aligning with the major schools of thought in regard to animal status.
Advocates of animal rights see necessary a complete overhaul of the current animal protection laws, particularly in the classification of animals as ‘property.’ Gary Francione argues that animals must be viewed as legal persons, and human interest in utilizing animals should have no weight if it is harmful to the animal. He argues that progression in animal welfare will only reinforce the property paradigm that ought to be abolished (Francione).
Such an extreme response requiring such radical change is controversial. Animal rights advocates are demanding revolution in a system accustomed to evolution. Many who would support increasing protection of animals’ interests and well-being would not necessarily agree with complete animal liberation. David Favre considers the animal rights camp’s unwillingness to compromise prideful, and points out “progressing toward a goal is not an immoral compromise simply because the advancement does not represent full realization of a personal philosophy. It is the height of human arrogance to sacrifice the welfare of existing animals because the political system will not give complete and immediate satisfaction” (Favre, “Integrating Animal Interest Into Our Legal System” 90). He advocates instead for the redefining of ownership as guardianship within the existing property law.
The current approach to most laws concerning human relations with each other is a utilitarian standpoint, and as such, this could be a very cohesive way of integrating animal law. As David Favre says in his essay “Judicial Recognition of the Interests of Animals – A New Tort,” our legal system “balance[s] the interests of competing individuals in public policy context, always seeking to strike an ethically appropriate balance” (334). Utilitarian theory is primarily based on consideration of interests or “the experience of pleasure and pain” (Singer 4). Equal consideration of interests is granted to all human beings, and we are not justified in discounting any humans’ interests based on race sex, etc. Accordingly, it is “very difficult to find any logical basis for resisting its extension to all beings with interests” (Singer 4). This does not mean however, that we must anthropomorphize them. Animals do not share all the same interests as humans, and equal consideration of interests does not mean we treat animals as we would people.
The issue with utilitarianism in animal law can be seen in the implementation. How do we determine which party’s interest has the greater utility? Is it just to leave such an open-ended decision to a human judge bound to have inherent bias, especially when it is difficult or impossible for an animal plaintiff to have a legal representative with sufficient standing? Current animal welfare laws fall into this vein, typically protecting animals from unnecessary pain, but when animal cruelty is challenged in court, the laws are so broad that human interests nearly always win out (Schaffner). It is difficult in this case for utilitarianism to argue against immense cruelty towards at least some animals for the pleasure of a meat-eating society that occurs in factory farms.
One method of removing bias from implementation is considering the virtue capacity of the animal in question. The theory of capabilities, touted by Martha Nussbaum in her essay “The Moral Status of Animals,” is concerned with the dignity inherent in all life, and allowing a being to fully realize its own nature. In other words, animals that would, given the choice, run around in the fresh air should not be confined in a cage, unable to turn around. This approach takes into account more than just preventing unnecessary harm to animals; it considers the totality of an animal’s interests. The focus here is on the individual rather than the species, which is why the approach is best suited to judicial implementation instead of the creation of policy. Nussbaum suggests “each nation include in its constitution…a commitment to regarding nonhuman animals as subjects of political justice and to treating them in accordance with their dignity…judicial interpretation can make ideas more concrete” (Nussbaum 35). This commitment to justice solves the issue of the misery of a few being justified by the pleasure of many that is inherent in a utilitarian approach.
Joan Schaffner calls the law “the means by which a society defines and enforces their philosophical views of what is morally and ethically required” (171). Animals today are such a presence in our society that the majority of people would grant that animals deserve moral consideration. Our current laws concerning animals, however, are inconsistent, ineffective, and not congruous with a logical consideration of animal sentience and common interests shared with humans. The most likely way of implementing change to benefit the welfare of animals is by working within the current system and structuring animal law the way we structure other social regulations – by evaluating the interests of those involved. To ensure justice in the enacting of such laws, we must keep in mind the importance to each sentient being of its capability to perform those functions that preserve its dignity as a life.
Favre, David. “Integrating Animal Interest Into Our Legal System.” Michigan State University College of Law 10 (2004): 87-97.
Favre examines obstacles to obtaining legal rights for nonhuman animals, dividing his attention between internal strife in the animal rights movement and society as a whole. He discusses which area of government might be most receptive to legal change. He explores which types of laws would be most successful in advancing animal interests, presenting a utilitarian stance with the burden of proof regarding harm to the plaintiff lying with the plaintiff.
Favre, David. “Judicial Recognition of the Interests of Animals – A New Tort.” Michigan State University Literature Review 333 (2005): 333-367.
Favre focuses on balancing interests between parties rather than the cognitive abilities or suffering of animals. He presents a methodology in which common law judges could expand consideration of animals’ interests. He advocates the establishment of a tort wherein intentional interference with a fundamental interest of an animal is prohibited.
Francione, Gary. Animals as Persons. New York: Columbia University Press, 2008.
One of the foremost advocates of abolitionist animal rights, Gary Francione promotes veganism and nonviolence. He says we cannot justify animal use under any circumstances. In accordance with this, Francione is in favor of rewriting all animal law, especially to change the classification of animals as property.
Jamieson, Philip. “Animal Welfare Law: Foundations for Reform.” Between the Species 8.1 (1992): 1-14.
Jamieson discusses the legal history of animals through popular philosophical consideration of animals at the time, beginning with the biblical “dominion” rationale, and summarizing Kant’s “escalation” thesis, recognition of intrinsic value, and the rise of laws based on human affection, or “sentiment,” towards animals. Throughout he is discussing welfare laws of Australia, but referencing progression in other countries as well.
Nussbaum, Martha. “The Moral Status of Animals.” Chronicle of Higher Education 52.22 (2006).
Nussbaum points out the shortcomings of both deontological and utilitarian viewpoints as applied to animal law. She proposes instead a “capabilities” approach focused on dignity of life and achieving individual potential. As far as law reform, Nussbaum is concerned with justice on an individual level and suggests implementation of her theory in the judicial system.
Schaffner, Joan. An Introduction to Animals and the Law. New York: Palgrave Macmillan, 2011.
Schaffner presents a survey of animal law, focusing primarily on current statutes in the U.S. and discussing anti-cruelty, animal welfare, and wildlife management. She examines methods of future reform, focusing primarily on the difference between welfare and animal rights advocates.
Singer, Peter. “Animal Liberation or Animal Rights?” The Monist: An International Quarterly Journal of General Philosophical Inquiry 70.1 (1987): 3-14.
Singer explains in detail his “preference utilitarianism” and discusses the difference between utilitarians and those advocating for animal rights. He believes the deontological approach of the animal rights group is too inflexible to deal with conflicting interests in an acceptable way. He advocates weighing, by giving equal consideration to interests, the overall benefit to all sentient beings of an action.