Our Fellow Creatures and the Law
Litigation - Article Series from All-Creatures.org Articles Archive

FROM Joe Wills, SARX For All God's Creatures
March 2020

To transform the law’s dominion as domination into a more just dominion as stewardship requires a cultural shift away from viewing animals as resources that exist for us, to fellow creatures who exist with us.

Image from Sean McGee Unsplash

In his 2015 Encyclical on Climate Change and Inequality, Pope Francis called upon humanity ‘to recognise that other living beings have a value of their own in God’s eyes’. Distancing himself from earlier anthropocentric interpretations of Christian doctrine, he lambasts the mistaken view of ‘other living beings as mere objects subject to arbitrary human domination’. Accordingly, we must dispense with this ‘tyrannical and irresponsible’ domination because the ‘ultimate purpose of other creatures is not to be found in us. Rather, all creatures are moving forward with us and through us towards a common point of arrival, which is God.’

The tyrannical domination over our fellow creatures to which Pope Francis refers is the prevailing order in the world today. Humanity systematically fails to respect the inherent worth of the other animals, building and supporting vast industries that treat them as mere exploitable objects. In this article, I will briefly highlight the role the law plays in reflecting, upholding and reinforcing this order, and consider present attempts to change it.

Law's Dominion

The status of animals in English law has historically been underpinned by earlier Christian interpretations of dominion as domination. Writing in the 18th Century, English jurist Sir William Blackstone declared Genesis 1:26 ‘to be the only true and solid foundation of man’s dominion over external things’. As far as Blackstone was concerned, this means that under law animals are natural resources to be owned, exploited and traded like any other commodity.

This purely instrumental view of the legal status of animals persisted until relatively recent history. As a popular English Jurisprudence textbook published in 1966 bluntly put it: ‘The law is made for men, and allows no fellowship or bonds between them and the lower animals’. This view was published over a century after the enactment of the UK’s first animal protection laws. Legal theorists sought to square this apparent circle by claiming that animal protection laws were not ultimately about protecting animals, but rather about protecting human interests. After all, so the argument went, cruelty to animals offends human sensibilities and degrades public morality, and these outcomes undermine human interests.

This claim was always tendentious; in reality, a variety of reasons – both anthropocentric and non-anthropocentric – led to the passing of animal anti-cruelty laws. Today, however, this view is untenable. For example, in Britain animal protection laws go beyond mere prohibitions on outright cruelty, and place obligations on individuals responsible for an animal to ensure that their needs are met. Moreover, plans are afoot to formally enshrine recognition of animal sentience into law, a clear nod to the recognition that animals possess independent value and worth of their own.

Giving With One Hand, Taking With the Other

Image from Iva Rajovic Unsplash

Notwithstanding the fact that animals are no longer treated in law as mere things or objects as they once were, all manner of violent practices such as painful experimentation, slaughter and cruel confinement are still permitted. How is this possible? In short, the law gives with one hand and takes with the other. A broad and promising-sounding provision protecting animal welfare is offered up, only to be snatched away again by either judicial interpretation or legislative sub-clauses radically narrowing its scope.

To give an example of the former, in the 1985 case of Roberts v Ruggiero the Division Court upheld a decision to dismiss a prosecution for causing an animal unnecessary suffering in respect of raising calves in ‘veal crates’, i.e. close confinement stalls that are so narrow the calves cannot even turn around in them. Refusing to consider evidence that alternative farming methods were available that caused less suffering, Judge Stoker held that the courts were not the appropriate venues ‘by which, the legality of the system of husbandry should be established’. In other words, conventional farming practices, no matter how much suffering they cause, are excluded from the ambit of the offence of causing unnecessary suffering.

Nowadays, this principle is clearly enshrined in legislation. Under s.4 of the 2006 Animal Welfare Act it is an offence to cause an animal ‘unnecessary suffering’, but in determining whether suffering caused to an animal is unnecessary, courts should consider ‘whether the conduct which caused the suffering was in compliance with any relevant enactment’. Where the practice is in compliance, the suffering is likely to be deemed ‘necessary’ and therefore lawful. The existence of a whole raft of regulations permitting the various horrors of industrial agriculture – close confinement, painful mutilation, long transportation, terrifying slaughter etc. – mean that its standard practices are, for all intents and purpose, exempt from criminal liability.

To address this legally codified injustice, animal advocates are presently pursuing two different strategies that I will briefly discuss.

Limiting Exploitation

Image from Sunyu Unsplash

The first strategy is to limit the existing scope of legal exemptions from animal welfare offences and to prohibit particular forms of animal treatment and exploitation. As noted above, attempts to challenge veal crates through the courts were unsuccessful but a political campaign did lead to their prohibition in 1987. Similar campaigning at both the UK and EU levels has seen the banning of a number of cruel practices, including sows stalls, fox hunting and hare coursing, conventional battery cages, leg-hold traps, cosmetics testing on animals, and, most recently, wild animal circuses.

Whilst invaluable, such approaches are limited in their potential to transform the human-animal relationship. First, the practices that are subject to such bans are peripheral to the institutions of animal exploitation, whilst the institutions themselves remain virtually unscathed. Second, such prohibitions do not challenge the subordinate status of animals as property to be exploited by humans, they merely place some limitations on that exploitation. Third, there is the danger that they inadvertently assist ‘humane washing’ strategies by the animal exploitation industries. It is all too common, for instance to hear farming industry representatives boast that the UK has ‘some of the highest animal welfare standards in the world’ when animal agribusiness is in the spotlight.

Shifting the Paradigm

A more recent strategy has shifted the focus from the treatment of animals to the status of animals. A legal argument gaining traction in a range of jurisdictions – including the USA, India, Colombia and Argentina – is that (certain) animals ought to be recognised as legal persons, entitled to some of the same basic protections as human beings. Although the classification of animals as persons may sound strange to non-legal ears, being a person in law merely connotes that an individual or entity is entitled to have certain interests enforced in court, just as we already recognise for a number of nonhuman entities such as corporations, states and natural entities.

A stunning example of a personhood ruling comes from an Argentinian court in 2016 which recognized a captive chimpanzee called Cecilia at Mendoza Zoo to be a ‘non-human legal person’ with ‘inherent rights’. Consequently, the judge held that Cecilia must be released from her cage and relocated to a chimpanzee sanctuary.

Personhood strategies are valuable because they challenge the legal status of animals as exploitable resources. Demands for animal personhood recognise the inherent value of animals and attempt to close the normative legal divide between them and human beings. Like legal attempts to place restrictions on animal exploitation however, they also come up against certain limits. For a start, in present conditions they stand little chance of success for all but a tiny handful of species. Animal personhood strategies thus far have focused either on a small group of animals who either share some of the mental capacities of human beings or are members of endangered species. It is unimaginable that a judge could order the release of any of the tens of billions of animals currently languishing in industrialised farms and research laboratories for example. To the extent that personhood strategies gain more traction, it will only be for a narrow, privileged stratum of the animal kingdom for the foreseeable future.

Beyond the Law

Current efforts to use the law to improve the position of animals are indispensable, but can only go so far by themselves. The law reflects the prevailing moral norms and economic interests in society. Legal efforts to advance animal interests inevitably confront the ubiquity of animal exploitation in society and consequently can at best only offer up tweaks around the edges of animal use.

To transform the law’s dominion as domination into a more just dominion as stewardship requires a cultural shift away from viewing animals as resources that exist for us, to fellow creatures who exist with us. In short, this means promoting a transition towards veganism, the practice of avoiding participating in, and funding, animal exploitation, to the best of our abilities. We all have a part to play in helping engender this shift, whether lawyers or not.

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Dr Joe Wills is a Lecturer in Law at the University of Leicester. His research interests relate to the legal and moral status of nonhuman animals and the intersections between human rights and animal rights. He is a member of the UK Centre for Animal Law’s Working Group on Animal Personhood.

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