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Blog: The Evolution of Animal Law

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This article will look at several trends in the development of modern animal laws.[1] One of them, as noted by Kelch, is the shift in the primary motives underpinning these laws. While early animal laws were often motivated by economic, religious, and social reasons, modern animal legislations began to see protecting animals for their own sake as the primary objective: the ‘animal protection’ rationale. This shift was aided by the rise of scientific studies on animal sentience and cognition.

Another trend is the expansion of animal law into areas beyond welfare legislation. This includes the more traditional wildlife and conservation laws and trade laws related to animals, and the more recent legal developments around the world on sentience and the property status of animals. Laws have also been developed either to protect or weaken the rights of vegans and animal activists. This article aims to offer some pointers and is by no means an exhaustive list of the developments in this fast-evolving area of law. Due to the scope of the article, the discussion will be based predominantly on laws in the UK and the US.

In his article, Kelch describes a ‘historical progression’ in the motives of western animal laws.[2] Economic and religious motives were the prominent policy drivers in ancient and medieval times, whereas the Renaissance and Enlightenment eras saw ‘social engineering’ and 'efforts to change human behavior’ become important objectives of animal laws.[3] Whether economic, religious, or social, the underlying assumption was that animals had only instrumental values, meaning that they were afforded legal protection only when there were human interests at stake. Modern animal laws following the passage of the UK’s Cruel Treatment of Cattle Act 1822 began to value animals for their own sake. These laws were arguably influenced by the utilitarian thinking of Jeremy Bentham and many philosophers who followed him. Bentham argued that non-human animals’ capacity to suffer should entitle them to equal consideration, a giant leap from the economic and other instrumental rationales.

Kelch, in his article, identified a key driver of this progression in the motivations for laws and regulations about animals throughout history: the increasing application of science to animal law. This can be seen in the scientific language used in these legislations. In many respects, this is a welcome trend as it aims to make objective assessments of animal welfare essential elements in animal laws and regulations. However, despite the overwhelming scientific evidence on animal sentience and intelligence, and the call for equal consideration between human and non-human interests, science has not been used in laws or regulations to address the most fundamental question of whether the uses of animals in agriculture, experimentation, and entertainment are ethical. It is argued that, in many if not most cases, the so-called ‘animal welfare science’ is used only to bring about small changes that do not seriously threaten the interests of animal industries.

Meanwhile, bodies of laws are developed and evolved to address animal protection from different angles. These range from laws protecting wildlife and endangered species to those governing the trade of animals and animal products. In recent decades, there have been substantial efforts from animal advocacy groups to change the legal status of animals from property to sentient beings, or to personhood through litigation and legislation. (Please see our previous blog for a more detailed discussion on animal legal personhood.) Aside from efforts to extend legal personhood to non-human animals, laws are slowly changing around the world to ensure that some animals are at least not treated as mere property. For example, the newly enacted Animal Welfare (Service Animals) Act 2019 in the UK, known as Finn’s law, afforded greater protection to service animals including police dogs and horses. Under Finn’s law, those who harm a service animal in the course of police duty could be charged for causing unnecessary suffering to the animal, whereas under the old law, the offence could only amount to criminal damage. Another area that challenges animals’ property status is the custody of companion animals. In 2019, California became the first state in the US to allow judges to consider what is best for companion animals in a divorce case, instead of simply looking at whose name is on the contract for the purchase or the adoption of the animal(s).[4] This is a step towards recognising that a companion animal is not a piece of property, but a member of the family with physiological and emotional needs.

Another important development is the legal protection, or the lack thereof, for vegans, animal activists, and animal advocacy groups. The rise of veganism and plant-based alternatives, undercover investigations exposing cruelty on farms and labs, direct actions and civil disobedience, and other forms of activism, have been central to changing the public opinion about our relationship with and the treatment of other animals. In the UK and the EU, veganism is a protected belief under the UK Equality Act 2010 and Article 9 and 14 of the European Convention on Human Rights, as well as European case law.[5] These laws protect vegans from unfair treatment, direct discrimination, and institution exclusion. However, exactly how much protection would the court deem proportionate in each situation remains to be seen. (Please find more details in the May 25 blog). Laws on animal activism have also developed drastically as the battle between animal industries and animal advocacy groups intensifies. In the recent case of Canada Goose v Persons Unknown, an English court ruled that the injunction sought by Canada Goose against anti-fur protestors and the animal rights organisation PETA was not appropriate or proportionate when weighted against the activists’ right to freedom of speech.[6] In 2014, eight states in the US passed anti-whistleblower laws known as ‘ag gag’ laws, criminalising activists who tried to expose animal cruelty in the animal agriculture industry.[7] Since then, these ‘ag gag’ laws have spread to France, Australia, and Canada, despite the fact that they were struck down as unconstitutional in some states in the US. Some of the laws began to target animal advocacy groups in addition to individual activists with fines that could cripple these organisations.[8]

This article gives a sweeping overview of some of the developments in animal law. One overarching theme is that the motivations driving animal welfare legislation seems to have evolved from the instrumental to an increasingly ‘animal protection’ rationale. However, the scope of this progress leaves the existing practice of using animals in agriculture, experimentation, and entertainment largely intact. Another overarching theme is the rapid expansion of animal law into other disciplines and areas of law, including conservation and environmental law, trade law, family law, and human rights law. Animal law is constantly evolving but the direction of its evolution is not always forward, or linear. If science can be coloured by ‘culture, politics, and money’[9] as Kelch suggests, so is animal law and it must be carefully guarded.

Robin Luo
Independent Contributor

[1] Thomas G. Kelch, A Short History of (Mostly) Western Animal Law: Part II (2012) 19 Animal Law 347-390

[2] Ibid

[3] Thomas G. Kelch, A Short History of (Mostly) Western Animal Law: Part I (2012) 19 Animal Law 23-62

[4] https://www.peta.org/issues/animal-companion-issues/animal-companion-factsheets/death-divorce-companion-animal/

[5] https://www.vegansociety.com/get-involved/international-rights-network/international-rights-network-blog/my-personal-support-jordi-casamitjana-his-presentation-veganism-norwich-employment-tribunal

[6] https://www.judiciary.uk/wp-content/uploads/2019/09/Canada-Goose-UK-v-Persons-Unknown-2019-EWHC-2459- QB-FINAL-for-hand-down-Rev-1.pdf 7

[7] https://www.theguardian.com/commentisfree/2014/may/05/ag-gag-laws-the-battle-for-animal-welfare-is-a-battl e-over-information

[8] https://www.animaljustice.ca/podcast/45-ag-gag-laws-come-to-canada

[9] Thomas G. Kelch, A Short History of (Mostly) Western Animal Law: Part II (2012) 19 Animal Law 389

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