Animal law in Australia : an integrated approach [Second edition.] 9780409343809, 0409343803

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Animal Law in Australia An Integrated Approach Second Edition

This text is dedicated to Jodi Buckle, Cressie and the Ghost Cats. They were, and continue to be, my teachers of the true dimensions of animal welfare.

Animal Law in Australia An Integrated Approach Second Edition

Alex Bruce LLB (QUT), LLM (Syd), MA (Theology) (ACU) PhD (ANU) DPhil Candidate (Oxon) Associate Professor, Australian National University College of Law

LexisNexis Butterworths Australia

2018

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National Library of Australia Cataloguing-in-Publication entry Author:

Bruce, Alex.

Title:

Animal law in Australia: an integrated approach.

Edition:

2nd edition.

ISBN:

9780409343809 (pbk). 9780409343816 (ebk).

Notes:

Includes index.

Subjects:

Animals — Law and legislation — Australia. Animal Welfare — Law and legislation — Australia.

© 2018 Reed International Books Australia Pty Limited trading as LexisNexis. First edition 2012. This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Typeset in ITC Stone Serif Std and ITC Stone Sans Std. Printed in Australia. Visit LexisNexis Butterworths at www.lexisnexis.com.au

Preface

____________________________

Animal law is a relatively new area of academic inquiry in Australia. However, in 2008 it was described by then President of the Australian Law Reform Commission (ALRC) Professor David Weisbrot as the next great social justice movement in Australia.1 Since the first edition of this text in 2012, awareness of and interest in animal law has developed significantly. There are now regular international conferences devoted to animal law and ethics, a surge in animal law-related academic research papers and articles, and a proliferation of undergraduate and postgraduate law and ethics courses in animals and the law relating to them. These developments reflect the views expressed by Professor Weisbrot who observed that the treatment of animals is ‘increasingly becoming a social and legal issue, as well as an important economic one’. These views were echoed by Nobel Laureate Professor John M Coetzee in the same publication.2 Why is this? There is a growing understanding in society that respect and protection of animals is an indicator of the ethical maturity of a society. Animals are intimately connected with our daily lives. This connection is sometimes obvious, as evidenced by our companion animals (pets), assistance animals such as guide dogs as well as animals in other social support roles. Sometimes the connection is not so obvious: animals and animal products form part of our diet and are ingredients in cosmetics, clothes, fertilisers and other products. The way in which society uses animals for entertainment, pleasure and consumption therefore raises profound moral, ethical

and legal issues. Accordingly, ‘ethical animal welfare, the protection of animals for their own sake as sentient beings with a capacity for suffering, is no doubt one of the basic values of modern western states’.3 In turn, the growing awareness of animal interests is influencing both government policy and the decisions of major corporations. The policy and trade consequences following scandals in the Australian live exports industry and the 2014 decision of the International Court of Justice concerning the Japanese whaling industry are recent examples. This text is intended to contribute to the growing scholarship that is associated with animals and animal law. It does this by exploring several issues that other texts have not, including family law and pet custody, liability for dangerous dogs, religious and indigenous practices involving animals, animals used for entertainment, bestiality, animal hoarding and international law issues. These issues are investigated in a systematic manner with an emphasis on identifying the relevant key legislative and policy provisions. Each chapter also provides resources for further reading and research. The Australian legal and regulatory regime associated with animals is very complex with constant changes occurring to the legal, policy and regulatory instruments and governmental departments responsible for the regulation of animals in Australia. It is therefore not a simple task to identify and analyse all of the relevant law. Accordingly, any errors in this text remain my responsibility and I ask for the reader’s patience and understanding. Writing the second edition of this text has been significantly helped by many people, and especially Meg Good at Voiceless who kindly assisted in rewriting Chapters 3 and 7. My thanks especially go to Jocelyn Holmes of LexisNexis Butterworths. Jocelyn supported this project after also assisting with my earlier texts in

competition law and consumer protection law published by LexisNexis Butterworths. She and I spent many an hour debating the contents of all of my texts and her guidance and friendship have been invaluable. The law in this text is written as at 1 September 2017. Venerable Alex Bruce Associate Professor Australian National University College of Law, Canberra 1 September 2017

1. 2. 3.

D Weisbrot, Reform, Issue 91, Australian Law Reform Commission, 2008, p 2. ibid, p 9. G Bolliger, ‘Animal Welfare in Constitutions’, conference paper, Constitutional and Legislative Aspects of Animal Welfare in Europe, Brussels, February 2007, p 1.

Table of Cases

____________________________ References are to paragraph numbers

A ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 …. 3.2 Abraham v Johns [2010] VSC 33 …. 6.15 Akers v Sellers 54 NE 2d 779 (1944) …. 6.8 Alford v Greater Shepparton City Council (General) [2011] VCAT 322 …. 5.9 Allianz Australia Insurance Ltd v Roads and Traffic Authority (NSW) [2010] NSWCA 328 …. 5.17 Animal Liberation v Conservator of Flora and Fauna (Administrative Review) [2009] ACAT 17 …. 10.14 Animal Liberation Ltd v Department of Environment and Conservation [2007] NSWSC 221 …. 10.14 — v National Parks and Wildlife Service [2003] NSWSC 457 …. 10.14 Arrington v Arrington 613 SW 2d 565 (1981) …. 6.8, 6.9 Astor’s Settlement Trust, Re [1952] Ch 534 …. 6.21 Attorney-General (NSW) v Donnelly (1957–1958) 98 CLR 538 …. 6.21 — (SA) v Bray (1964) 111 CLR 402 …. 3.3 Australian Competition and Consumer Commission v Bruhn (2012) FCA 959 …. 9.6 — v CI & Co Pty Ltd (2010) FCA 1511 …. 9.6

— v Luv-a-Duck Pty Ltd (2013) FCA 1136 …. 9.6 — v Pepe’s Ducks Ltd (2013) FCA 570 …. 9.6 — v Pirovic Enterprises Pty Ltd (No 2) (2014) FCA 1028 …. 9.6 — v RL Adams Pty Ltd (2015) FCA 1016 …. 9.6 — v Turi Foods Pty Ltd (No 2) (2012) FCA 19 …. 9.6 Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 …. 5.17

B Balfour v Balfour [1919] 2 KB 571 …. 6.13 Beaumont v Cahir [2004] ACTSC 97 …. 5.20 Bell v Clare (FCA 241, Von Doussa J, 17 July 1990, unreported) …. 6.14 Bennet v Bennet 655 So 2d 109 (1995) …. 6.8 Blathwayt v Lord Cawley [1975] 3 All ER 625 …. 6.25 Borg v Howlett [1996] NSWSC 153 …. 6.16, 6.17 Brown v Birss Nominees Pty Ltd [1997] HREOC 54 …. 4.2

C Caper’s Estate, Re 34 Pa D & C 2d 121 (1964) …. 6.24 Cattanach v Melchior (2003) 199 ALR 131 …. 6.25 City of Armadale v Kiraly [2009] WASC 199 …. 5.13 Clive Wishart, Re Estate of ACWSJ Lexis 34836 (1992) …. 6.24 Cohen v Cohen (1929) 42 CLR 91 …. 6.13 Coleman v Jones (1986) 4 BPR 9228 …. 6.16, 6.17 Collins v Carey [2002] QSC 398 …. 5.14, 5.15 Co-operative Insurance Ltd v Argyll Stores (Holdings) Ltd [1998] AC 1 …. 6.15 Council of the City of Lake Macquarie v Morris [2005] NSWSC 387 …. 5.13

D Dart v Singer [2010] QCA 75 …. 8.20 Davies v Bennison (1927) 22 Tas LR 52 …. 5.20 Dean, Re (1889) 41 Ch D 552 …. 6.21 Department of Local Government and Regional Development v Emanuel Exports Pty Ltd (Magistrate Crawford, Magistrates Court of Western Australia, FR 9975-7/05, FR 10225-7/05 and FR 10253-5/05, 8 February 2008, unreported) …. 12.6 Desanctis v Pritchard 803 A 2d 230 (2002) …. 6.8 Dougan v Ley (1946) 71 CLR 142 …. 6.15, 6.17 Draper v Hodder [1972] 2 QB 556 …. 5.14

E Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 …. 6.13

F Feakes v Cardinia SC (General) [2010] VCAT 1436 …. 5.9 Ferguson v Birchmount Boarding Kennels Ltd (2006) 79 OR (3d) 681 …. 5.21 Ferraro, Marriage of (1992) 16 Fam LR 1 …. 6.5 Fitz-Alan v Felton [2004] NSWSC 1118 …. 6.16, 6.17 Flacke v Gray (1859) 62 ER 250 …. 6.15, 6.17 Fleet v District Court of NSW [1999] NSWCA 363 …. 8.22

G Gala v Fraser Coast Council [2010] QCAT 576 …. 5.9 Galea v Gillingham [1987] 2 Qd R 365 …. 5.14, 5.15 Gillam v City of Fremantle [2010] WASAT 141 …. 5.9 Gollan v Nugent (1988) 166 CLR 18 …. 6.14

Graham v Lockyer Valley Regional Council [2011] QCAT 151 …. 5.9

H Hartigan v Commissioner for Social Housing in the ACT [2017] ACTSC 100 …. 5.19 Hickey and Hickey (2003) 30 Fam LR 355 …. 6.5 Houseman v Dare 405 NJ Sup 536 (2009) …. 6.10, 6.11, 6.14, 6.15 Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2008] FCA 3 …. 12.14

I Inquest into the deaths of Michael Anthony Hardy and Robert James Roe [2010] NTMC 021 …. 5.6 International Fund for Animal Welfare (Australia) Pty Ltd and Minister for Environment and Heritage, Re [2005] AATA 1210 …. 7.2, 7.11, 12.18

J Jarvis and Weston [2007] FamCA 1339 …. 6.6 Jennings v Lee [1996] HREOCA 29 …. 4.8 Johnson v Buchanan [2012] VSC 195 …. 5.14 — v Wander 360 So 2d 37 (1978) …. 5.21

K Kelly v City of Albany [2010] WASAT 27 …. 5.9 Kuehne bt Kuehne v Warren Shire Council [2011] NSWDC 30 …. 5.16, 5.17, 5.18, 5.19

L Lachenman v Stice 838 NE 2d 451 (2005) …. 5.21 Levine v Knowles 197 So 2d 329 (1967) …. 5.21

M Mason v Tritton (1994) 34 NSWLR 572 …. 9.16, 9.18 Matthews v Commissioner Atkinson, Queensland Police Service [2005] QSC 122 …. 4.11 McDonald and McDonald [2008] FamCA 122 …. 6.6 Meimaropoulos v Cheum [2014] NSWDC 26 …. 5.13 Miller and Miller [2007] FamCA 423 …. 6.6 Millstream Pty Ltd v Schultz [1980] 1 NSWLR 547 …. 6.16 Mnyirrinna v McIntosh [2003] WASCA 305 …. 5.4 Morice v Bishop of Durham (1804) 32 ER 656 …. 6.20 Mulligan v Virgin Australia Airlines (2015) 234 FCR 207 …. 4.12

N Nuzzaci v Nuzzaci 1995 WL 783006 (1995) …. 6.8

O Omacini, Marriage of (2005) 33 Fam LR 134 …. 6.5 Ondrich v Kookaburra Park Eco-Village [2009] FMCA 260 …. 4.11 Onus v Alcoa of Australia Ltd (1981) 149 CLR 493 …. 5.17

P Pearson v Janlin Circuses Pty Ltd [2002] NSWSC 1118 …. 8.22 People v Haynes (Court of Appeals of Michigan, Docket No 277185, 23 September 2008, unreported) …. 6.38 Petco Animal Supplies Inc v Schuster 144 SW 3d 544 (2004) …. 5.21 Pettingall v Pettingall (1842) 11 LJ Ch 176 …. 6.21 Ploni v Ploni (Schochet J, Ramat Gan Family Court, FC 32405/01, 18 March 2004, unreported) …. 6.9

R R v Brown (1889) 24 QBD 357 …. 6.36 — v Cap [2009] QCA 174 …. 6.36 — v Packer [1932] VLR 225 …. 6.36 — v Smith (No 3) [1834] NSWSupC 125 …. 6.38 Raymond v Lachmann 695 NYS 2d 308 (1999) …. 6.9 Recher’s Will Trusts, Re [1972] Ch 526 …. 6.20 Reed v Sretenovic [2008] NSWDC 202 …. 5.13 Royal Society of Prevention of Cruelty to Animals (SA) v Evitts [1993] SASC 3810 …. 8.12, 8.13

S Saltoon v Lake [1977] 2 NSWLR 1 …. 11.2 — v — [1978] 1 NSWLR 52 …. 3.2 Sanders v State 216 Ind 663 (1940) …. 6.38 Sciacca v Ghidella [2001] QSC 134 …. 6.25 Sheehan v Tin Can Bay Country Club [2002] FMCA 95 …. 4.11 Smith v Azanzino No 225698 (1980) …. 6.24 — v Capella State High School Parents and Citizens Association [2004] QSC 109 …. 5.14, 5.15 Smythe v Thomas (2007) 71 NSWLR 537 …. 6.15, 6.17 Song v Coddington (2003) 59 NSWLR 180 …. 8.12, 8.13, 8.14 Soon-Duc Society Inc v Num Pon Soon Inc (2001) 4 VR 527 …. 6.20 South Eastern Sydney Area Health Service v Wallace (2003) 59 NSWLR 259 …. 6.21 Speers v Northern Territory of Australia [2005] NTMC 026 …. 5.13 Stewart, Marriage of 356 NW 2d 611 (1984) …. 6.8, 6.9 Sutherland Shire Council v Heyman (1985) 157 CLR 424 …. 5.18

Sutton v Derschaw (1995) 82 A Crim R 318 …. 9.16, 9.18

T Thrupp v Collett (1858) 53 ER 844 …. 6.25 Towers-Hammon v Burnett [2007] QDC 282 …. 8.22

U United States v Stevens 533 F 3d 218 (2010) …. 7.29

W Wacket and Wacket [2010] FamCA 154 …. 6.6 Walmsley and Walmsley [2009] FamCA 1209 …. 6.6 Warinka v Gering (2005) 142 ACWS (3d) 87 …. 6.10 Waterways Authority of New South Wales v Coal & Allied (Operations) Pty Ltd [2007] NSWCA 276 …. 6.15 Wertman v Tipping 166 So 2d 66 (1964) …. 5.21 Wheeler v Rockhampton Regional Council [2010] QCAT 676 …. 5.5 Wilkinson v Osborne (1915) 21 CLR 89 …. 6.25 Wolseley Investments Pty Ltd v Gillespie [2007] NSWCA 358 …. 6.12 Wood v Chute (1993) 111 FLR 420 …. 6.38

Y Yanner v Eaton (1999) 201 CLR 351 …. 9.16, 9.18 Young v State 194 Ind 221 (1924) …. 6.38

Z Zovko v Gregory No CH 97-544 (1997) …. 6.9

Table of Statutes and Codes of Practice ____________________________ References are to paragraph numbers

Commonwealth Animals Act 1977 s 7(2) …. 5.14 Australian Consumer Law …. 13.8, 13.10 s 18 …. 9.6, 13.10 Australian Meat and Livestock Industry Act 1997 …. 12.4, 12.6 Australian Meat and Livestock Industry (Export Licensing) Regulations 1998 …. 12.4 Australian Meat and Livestock (Standards) Order 2005 …. 12.4 Civil Aviation Act 1988 …. 4.12 Civil Aviation Regulations 1988 …. 4.12 reg 256A(1)(b) …. 4.12 Commonwealth Constitution …. 3.1, 3.2, 13.8 s 51(i) …. 3.2, 13.8 s 51(ix) …. 3.2 s 51(x) …. 3.2, 11.5 s 51(xx) …. 3.2, 13.8 s 51(xxv) …. 11.5 s 109 …. 12.6

Competition and Consumer Act 2010 …. 6.5 s 4 …. 3.4, 11.2 Crimes Act 1914 s 4AA …. 12.18 Customs Act 1901 …. 5.10 Disability Discrimination Act 1992 …. 4.2, 4.3, 4.6, 4.7, 4.9, 4.10, 4.11 s 4 …. 4.11 s 5 …. 4.8 s 6 …. 4.8 s 8 …. 4.8 s 9 …. 4.8, 4.9, 4.10, 4.11, 4.12 s 9(2) …. 4.9 s 47(2) …. 4.12 Environment Protection and Biodiversity Conservation Act 1999 …. 7.2, 9.15, 10.14, 11.5, 12.14, 12.18, 12.21 s 303BA(1)(a) …. 12.18 s 303CA(11) …. 12.18 s 303CC(1) …. 12.18 s 303CG(1) …. 12.18 s 303CG(3) …. 12.18 s 303CH …. 12.18 Pt 13 Div 3 …. 12.14 Pt 13A …. 12.18 Environment Protection and Biodiversity Conservation Regulations 2000 …. 12.18 reg 9A.05(3) …. 7.2, 12.18 reg 9A.05(3)(b) …. 7.2, 12.18 Pt 9A …. 12.18

Pt 9A.05 …. 12.18 Export Control Act 1982 …. 9.12, 12.4, 12.6 Export Control (Animals) Order 2004 …. 12.4 Export Control (Orders) Regulations 1982 …. 12.4 Family Law Act 1975 …. 6.1, 6.3, 6.4, 6.12 Pt VIII …. 6.5 Pt VIIIA …. 6.13 Pt VIIIAB …. 6.5 s 4 …. 6.5 s 79(1) …. 6.5 s 79(4) …. 6.5 s 79(4)(a) …. 6.5 s 79(4)(b) …. 6.5 s 79(4)(c) …. 6.5 s 90SM …. 6.5 s 90SM(1) …. 6.5 Marine Orders Pt 43: Cargo and Handling — Livestock, Issue 6 …. 12.4 National Health and Medical Research Act 1992 …. 11.7 Native Title Act 1993 …. 9.15, 9.17, 9.18, 9.19 s 211 …. 9.17, 9.18 s 211(1) …. 9.17 s 211(2) …. 9.17 s 211(3) …. 9.17 s 223 …. 9.18 s 223(1) …. 9.17 s 223(2) …. 9.17 Navigation Act 1912 …. 12.4 s 425 …. 12.4

Seas and Submerged Lands Act 1973 …. 12.14 Torres Strait Fisheries Act 1984 …. 9.15

Australian Capital Territory Animal Diseases Act 2005 …. 10.5 Animal Welfare Act 1992 …. 7.4, 8.2, 8.4, 8.5, 8.6, 8.7, 8.8, 8.9, 8.10, 8.11, 8.16, 8.17, 8.18, 8.21, 8.25, 8.27, 8.28, 11.21 s 2 …. 8.16 s 7 …. 8.3, 8.7, 8.23 s 7A …. 8.3, 8.23 s 8 …. 8.23, 11.2 s 8(1) …. 8.3 s 11 …. 8.9 s 12 …. 8.9 s 12A …. 8.9 s 13 …. 8.9 s 14 …. 8.9 s 15 …. 8.9 s 15A …. 8.9 s 16 …. 8.9 s 17 …. 8.9 s 18(1) …. 7.15 s 18 …. 8.9 s 19 …. 8.9 s 19A …. 8.9 s 21(a) …. 11.13 s 22 …. 7.25 s 22(1) …. 11.13 s 51 …. 7.4

s 52(1) …. 7.4 s 54(2) …. 7.4 s 56 …. 7.4 s 59A …. 7.4 Pt 4 …. 11.13 Pt 5 …. 7.4 Animal Welfare (Amendment) Act 1997 …. 9.5 Animal Welfare Regulation 2001 reg 7A …. 7.4 Pt 4 …. 7.4 Pt 6 …. 9.7 Civil Liability Act 2003 …. 5.17 Civil Wrongs Act 2002 s 214 …. 5.14 Crimes Act 1900 …. 6.36 s 63A …. 6.35, 6.36 Crimes Legislation Amendment Act 2011 …. 6.36 Discrimination Act 1991 …. 4.6, 4.10 s 9 …. 4.9 s 9(1) …. 4.9 s 9(4) …. 4.9 Domestic Animals Act 2000 …. 4.6, 4.7, 4.9, 4.10, 5.3, 5.7 s 22 …. 5.7 s 22(1) …. 5.6 s 22(2) …. 5.6 s 49 …. 5.6 s 50 …. 5.11 s 50A …. 5.11 s 51 …. 5.11

s 55 …. 5.11 s 121 …. 5.7 Pt 2 Div 2.3 …. 5.6 Domestic Animals Regulation 2001 …. 5.3 Eggs (Cage Systems) Legislation Amendment Bill 2009 …. 9.5 Human Rights Act 2004 …. 4.3, 4.6 Nature Conservation Act 1980 …. 10.5 Occupational Health and Safety Act 1989 …. 4.2 Pest Plants and Animals Act 2005 …. 10.5 s 3 …. 10.5

New South Wales Animal Research Act 1985 …. 11.13, 11.15, 11.19 s 3 …. 11.16, 11.17 s 4(1) …. 11.13 s 9 …. 11.15 s 13 …. 11.18 s 43 …. 11.19 s 46(1) …. 11.16 Pt 3 …. 11.18 Pt 5 …. 11.16 Anti-Discrimination Act 1977 …. 4.6 s 49B(3) …. 4.9, 4.10 s 49M(1) …. 4.8 Biosecurity Act 2015 …. 10.6 Civil Liability Act 2002 …. 5.17 s 43A …. 5.16, 5.17 s 43A(3) …. 5.17

s 44 …. 5.16, 5.17 s 44(1) …. 5.17 Companion Animals Act 1998 …. 4.6, 4.7, 4.8, 4.10, 5.2, 5.3, 5.11, 5.16, 5.17, 5.18 s 5 …. 4.9 s 14 …. 4.2 s 14(1)(b) …. 4.8 s 16 …. 5.11, 5.13 s 17 …. 5.11 s 25 …. 5.11, 5.13 s 26 …. 5.11 s 27 …. 5.11 s 33(1) …. 5.6 s 55(1) …. 5.10 s 59(1) …. 4.8 Pt 3 …. 5.11 Pt 5 …. 5.6 Companion Animals Regulation 2008 …. 5.2, 5.3 Crimes Act 1900 …. 6.36 s 79 …. 6.35 Cruelty to Animals Act 1979 …. 9.8 s 24 …. 9.8 Dog Act 1966 …. 4.2 Environmental Planning and Assessment Act 1979 …. 10.6 Exhibited Animals Protection Act 1986 …. 7.5, 7.11 Exhibited Animals Protection Regulation 2010 …. 7.5, 7.11 Fisheries and Oyster Farms (General) Regulation 1989 …. 9.18 Food Regulation 2010 cl 24 …. 9.12

cl 64(1) …. 9.12 Game and Feral Animal Control Act 2002 …. 10.6 s 17 …. 9.19 Local Government Act 1993 …. 10.6 National Parks and Wildlife Act 1974 s 68D …. 9.19 Non-Indigenous Animals Regulation 2011 …. 7.5 Occupational Health and Safety Act 2000 …. 4.2 Passenger Transport Regulation 2007 …. 4.7 reg 41(2) …. 4.2 Poultry Meat Industry Act 1986 …. 9.7 Poultry Meat Industry Regulation 2008 …. 9.7 Prevention of Cruelty to Animals Act 1979 …. 8.2, 8.4, 8.5, 8.6, 8.7, 8.8, 8.9, 8.10, 8.11, 8.12, 8.14, 8.16, 8.17, 8.18, 8.21, 8.22, 8.25, 8.27, 8.28, 9.8, 11.13 s 4 …. 8.14 s 4(1) …. 8.16 s 4(2) …. 6.25 s 4(2)(a) …. 6.25o s 5 …. 6.25 s 5(1) …. 8.3, 8.22, 8.23 s 5(2) …. 6.25, 8.3 s 5(3) …. 8.3 s 6(1) …. 8.3, 8.22, 8.23 s 7 …. 8.9 s 7(1)(b) …. 8.14 s 8(1) …. 8.6 s 10 …. 8.9 s 11 …. 8.9

s 12 …. 8.9 s 13 …. 8.9 s 14 …. 8.9 s 16 …. 8.9 s 17 …. 8.9 s 18 …. 7.16, 8.9 s 18A …. 7.16 s 19 …. 8.9 s 21 …. 8.9 s 21B …. 8.9 s 21C …. 8.9 s 23 …. 8.9 s 24 …. 9.8, 9.14 s 24(1) …. 8.27 s 24(1)(b)(ii) …. 8.27 s 24(1)(e) …. 11.21 Prevention of Cruelty to Animals Amendment (Prosecution) Act 2007 …. 3.14 Prevention of Cruelty to Animals (General) Regulation 2006 …. 8.14 reg 11 …. 7.16 reg 11(4) …. 7.16 reg 17(1) …. 7.26 reg 17(3) …. 7.26 reg 24(1)(a) …. 9.7 Pt 2A …. 9.7 Rural Lands Protection Act 1998 …. 10.6 s 143(4) …. 10.14 Subordinate Legislation Act 1989 …. 11.13

Threatened Species Conservation Act 1995 …. 10.6 Truth in Labelling (Free-range Eggs) Bill 2011 …. 9.5 Zoological Parks Board Act 1973 …. 7.2

Northern Territory Animal Welfare Act 1999 s 79(2) …. 9.19 Animal Welfare Act (as at March 2007) …. 7.17, 8.2, 8.4, 8.5, 8.6, 8.7, 8.9, 8.10, 8.11, 8.16, 8.17, 8.18, 8.25, 8.27, 8.28, 9.7 s 4(1) …. 8.16 s 6(1) …. 8.3 s 7 …. 8.9 s 9 …. 8.9 s 12 …. 8.9 s 13 …. 8.9 s 14 …. 8.9 s 15 …. 8.9 s 17 …. 8.9 s 18 …. 8.9 s 19 …. 8.9 s 20 …. 8.9 s 21 …. 8.9 s 24 …. 11.13 s 75(2) …. 8.23 Pt 5 …. 11.13 Animal Welfare Regulations …. 7.17 reg 4 …. 7.17 Sch 1 …. 7.17 Anti-Discrimination Act 1992 …. 4.6, 4.9

s 4 …. 4.9 s 21(1) …. 4.9 Criminal Code …. 6.38 s 138 …. 6.35 Law Reform (Miscellaneous Provisions) Act 1956 …. 4.6, 5.3 s 32 …. 5.11 Law Reform (Miscellaneous Provisions) Act 2007 s 35 …. 4.9 Local Government Act …. 5.6 s 195 …. 5.6 Personal Injuries (Liabilities and Damages) Act 2003 …. 5.17 Summary Offences Act 1923 s 75A …. 5.6, 5.11 s 75A(2) …. 5.6 Territory Parks and Wildlife Conservation Act 2001 …. 9.19 Territory Parks and Wildlife Conservation Act 2010 …. 10.7 Workplace Health and Safety Act 2007 …. 4.2

Queensland Animal Care and Protection Act 2001 …. 3.9, 3.13, 7.6, 7.18, 7.27, 8.2, 8.4, 8.5, 8.6, 8.7, 8.9, 8.10, 8.11, 8.16, 8.17, 8.18, 8.19, 8.25, 8.27, 8.28, 11.14 s 8 …. 9.19 s 11 …. 8.16 s 12 …. 8.20 s 13 …. 9.8 s 13(1) …. 8.28 s 15(1) …. 3.13, 8.28 s 17 …. 8.6, 8.19

s 17(1) …. 7.6, 8.3, 8.20, 8.23, 9.8 s 17(2) …. 8.20 s 17(3) …. 8.20, 9.8 s 17(3)(a)(ii) …. 9.8 s 17(3)(a)(iii) …. 9.8 s 17(3)(a)(iv) …. 8.20 s 18(1) …. 8.3, 8.4, 8.7, 8.16, 8.23, 8.26, 11.14 s 18(2) …. 6.40, 8.7, 8.22 s 19 …. 8.4, 8.9 s 20 …. 7.18, 8.4 ss 20–22 …. 8.9 s 20(2) …. 7.18 s 23 …. 8.9 s 24 …. 8.9 s 25 …. 8.9 s 26 …. 8.9 s 27 …. 8.9 ss 30–33 …. 8.9 ss 34–35 …. 8.9 s 36 …. 8.9 s 37 …. 8.9 s 40 …. 3.13, 9.8, 11.14 s 49 …. 11.14 s 49(1) …. 11.13 s 51 …. 11.14 s 91 …. 11.13, 11.14 Ch 4 …. 11.13 Pt 6 …. 11.14 Animal Care and Protection Regulation 2002

reg 2(3) …. 8.28 Ch 3 …. 9.7 Ch 3 Pt 1 Divs 1–6 …. 9.7 Sch 1 Pt 2 …. 9.7 Animal Care and Protection Regulation 2012 …. 3.9, 7.6, 7.27 reg 2 …. 7.6 reg 3 …. 7.6 reg 3(3) …. 3.13 Sch 1 …. 7.6 Sch 2 …. 7.6 Sch 3 …. 7.6 Sch 4 …. 7.6 Animal Management (Cats and Dogs) Act 2008 …. 5.3, 5.5, 5.6, 5.9, 6.32 s 60 …. 5.6 s 63 …. 5.10 s 63(1) …. 5.6 s 89 …. 5.7 s 89(2) …. 5.6 s 89(3) …. 5.6 s 89(4) …. 5.6 s 89(7) …. 5.6 s 90 …. 5.8 s 94(1) …. 5.8 s 95 …. 5.8 s 188 …. 5.9 s 194 …. 5.11 s 195 …. 5.11 Ch 4 …. 5.6

Ch 4 Pt 2 Div 2 …. 5.10 Sch 2 …. 5.6 Animal Management (Cats and Dogs) Regulation 2009 …. 5.3, 5.5 Pt 7 Div 2 …. 5.5 Anti-Discrimination Act 1991 …. 4.6 s 85 …. 4.9 Biosecurity Act 2014 …. 7.6, 10.8 Body Corporate and Community Management Act 1997 …. 4.2, 4.11 Civil Liability Act 2003 …. 5.17 Criminal Code Act 1899 …. 5.6 s 1 …. 5.6 s 6 …. 6.36 s 211 …. 6.35, 6.36 Sch 1 …. 5.6 Exhibited Animals Act 2015 …. 7.6 s 14 …. 7.6 s 32(2) …. 7.6 Fauna Conservation Act 1974 …. 9.18 s 211(3) …. 9.18 Food Act 2006 …. 4.2, 4.7 Guide, Hearing and Assistance Dogs Act 2009 …. 4.6 s 3(1)(a) …. 4.2 Sch 4 …. 4.9 Land Protection (Pest and Stock Route Management) Act 2002 …. 10.8 s 15 …. 10.8 s 42 …. 10.14

Local Government Act 2009 Ch 3 …. 5.5 Nature Conservation Act 1992 …. 7.6, 9.18 Nature Conservation (Dugong) Conservation Plan 1999 …. 9.15 Nature Conservation (Wildlife Management) Regulation 2006 …. 7.6 Workplace Health and Safety Act 1995 …. 4.2

South Australia Animal Welfare Act 1985 …. 7.19, 8.2, 8.4, 8.5, 8.7, 8.9, 8.10, 8.11, 8.12, 8.16, 8.17, 8.18, 8.25, 8.27, 8.28 s 3 …. 8.16, 11.13 s 13 …. 8.9 s 13(1) …. 8.3, 8.23 s 13(2) …. 8.3, 8.23 s 14 …. 8.9 s 15 …. 8.9 s 15A …. 8.9 s 34 …. 7.19 s 42A(b) …. 8.28 Pt 4 …. 11.13 Sch 2 …. 8.28 Animal Welfare Regulations 2000 …. 7.7 reg 5A …. 8.28 Pt 3A …. 9.7 Animal Welfare Regulations 2012 …. 7.19 reg 15 …. 7.19 reg 19 …. 7.19 Pt 4 …. 7.19

Civil Liability Act 1936 …. 5.17 s 18 …. 5.14 Dog and Cat Management Act 1995 …. 4.6, 4.9, 5.3, 5.6 s 4 …. 4.9 s 44(1) …. 5.11 s 44(2) …. 5.11 s 47(1)(g) …. 5.11 s 50(1) …. 5.6 s 51(2) …. 5.6 s 66 …. 5.11 s 81 …. 4.9 Pt 5 Div 3 …. 5.6 Dog and Cat Management Regulations 2010 …. 5.3 Equal Opportunity Act 1984 …. 4.6 s 5 …. 4.9 s 66(e) …. 4.9 National Parks and Wildlife Act 1972 s 68D …. 9.19 Natural Resources Management Act 2004 …. 10.9 Natural Resources Management (General) Regulations 2005 …. 10.9 Occupational Health, Safety and Welfare Act 1986 …. 4.2 Prevention of Cruelty to Animals Act 1985 …. 8.12 s 13(1) …. 8.13 Surveillance Devices Act 2016 …. 13.2

Tasmania Animal Welfare Act 1993 …. 8.2, 8.4, 8.5, 8.6, 8.7, 8.8, 8.9, 8.10, 8.11, 8.16, 8.17, 8.18, 8.19, 8.21, 8.25, 8.27, 8.28, 9.7

s 3 …. 7.20, 8.16 s 6 …. 8.3, 8.6, 8.19, 8.23 s 7 …. 8.3, 8.23 s 8 …. 8.3, 8.9 s 8(1) …. 8.23 s 8A …. 10.10 s 9 …. 8.23 s 10 …. 8.9 s 11A …. 8.9 s 11A(1) …. 7.20 s 13 …. 8.9 s 34 …. 11.13 Animal Welfare Act 2003 …. 9.7 s 9 …. 9.7 s 10 …. 9.7 Animal Welfare Regulations 2008 …. 9.7 Anti-Discrimination Act 1998 …. 4.6 s 3 …. 4.9 Cat Management Act 2009 …. 5.3 Civil Liability Act 2002 …. 5.17 Classification (Publications, Films and Computer Games) Enforcement Act 1995 …. 6.39 Dog Control Act 2000 …. 5.3, 5.6 s 3 …. 5.6 s 19(1) …. 5.11 s 19(2) …. 5.11 s 19(3) …. 5.11 s 19(8) …. 5.11 s 29(1) …. 5.6

Pt 3 Div 3 …. 5.6 Dog Control Regulations 2001 …. 5.3 Eggs (Cage Systems) Legislation Amendment Bill 2010 …. 9.5 Guide Dogs and Hearing Dogs Act 1967 …. 4.6 s 2 …. 4.9 Nature Conservation Act 2002 …. 7.8 s 73 …. 9.19 Penalty Units and Other Penalties Act 1987 s 4A …. 8.23 Wildlife (Exhibited Animals) Regulations 2010 …. 7.8 Workplace Health and Safety Act 1995 …. 4.2

Victoria Catchment and Land Protection Act 1994 …. 10.11 Charter of Human Rights and Responsibilities Act 2006 …. 4.3, 4.6 Crimes Act 1958 s 59 …. 6.36 Domestic Animals Act 1994 …. 4.3, 4.6, 4.10, 5.2, 5.3, 5.6 s 3 …. 5.6 s 7(1) …. 4.9 s 28 …. 5.11 s 29(1)–(8) …. 5.11 s 29(11) …. 5.11 s 34(1) …. 5.6 s 41A(1) …. 5.6 s 68A …. 6.32 Pt 3 Div 3 …. 5.6 Domestic Animals Amendment (Dangerous Dogs) Act 2010 ….

5.3, 5.6 Domestic Animals Amendment (Restricted Breeds) Act 2011 …. 5.3, 5.4, 5.6, 5.10 Domestic Animals Regulations 2005 …. 5.3 Equal Opportunity Act 1995 …. 4.3, 4.6, 4.10 s 4 …. 4.9 s 52 …. 4.9 Flora and Fauna Guarantee Act 1998 …. 10.11 Occupational Health and Safety Act 2004 …. 4.2 Prevention of Cruelty to Animals Act 1986 …. 8.2, 8.4, 8.5, 8.6, 8.7, 8.8, 8.9, 8.10, 8.11, 8.16, 8.17, 8.18, 8.21, 8.25, 8.27, 8.28, 10.11 s 3 …. 8.11 s 3(3) …. 8.16 s 7 …. 7.28, 11.13 s 9 …. 8.3, 8.9 s 9(1) …. 8.22, 8.23 s 9(1)(a)–(l) …. 8.7 s 10 …. 8.3 s 10(1) …. 8.8, 8.23 s 13 …. 8.9 s 15 …. 8.9 s 15AB …. 8.9 s 16 …. 8.9 Pt 2 Div 2 …. 7.21 Pt 3 …. 11.13 Prevention of Cruelty to Animals (Domestic Fowl) Regulations 2006 …. 9.7 Prevention of Cruelty to Animals Regulations 2008

Pt 3 …. 7.21 Royal Botanic Gardens Regulations 2004 …. 4.3 Transport (Conduct) Regulations 2005 …. 4.3 Transport (Passenger Vehicles) Regulations 2005 …. 4.3 Transport (Taxi-Cabs) Regulations 2005 …. 4.3 Wildlife Act 1975 s 28A …. 9.19 Wrongs Act 1958 …. 5.17 Zoological Parks and Gardens Act 1995 …. 7.9

Western Australia Animal Welfare Act 2002 …. 7.10, 8.2, 8.4, 8.5, 8.6, 8.7, 8.9, 8.10, 8.11, 8.16, 8.17, 8.18, 8.25, 8.27, 8.28, 9.10, 12.6 s 5(1) …. 8.16, 8.22 s 19 …. 8.9 s 19(1) …. 8.3, 8.23 s 19(2) …. 8.3 s 25 …. 7.22 s 32 …. 8.9 s 94(2)(d) …. 7.22, 11.13 Pt 2 …. 11.13 Animal Welfare (General) Regulations 2003 …. 7.10 Sch 1 …. 7.22 Biosecurity and Agriculture Management Act 2007 …. 10.12 Cat Bill 2011 …. 5.3 Civil Liability Act 2002 …. 5.17 Criminal Code Act Compilation Act 1913 s 181 …. 6.36 Dog Act 1976 …. 4.6, 5.3, 5.8

s 8 …. 4.9 s 33D(1) …. 5.11 s 33E …. 5.8 s 33E(1) …. 5.6 s 33E(3) …. 5.8 s 33F …. 5.8 s 46 …. 5.11 Pt VI Div 2 …. 5.6 Dog Regulations 1976 …. 5.3 Dog (Restricted Breeds) Regulations (No 2) 2002 …. 5.3 Equal Opportunity Act 1984 …. 4.6, 4.9 s 66A(4) …. 4.9 Fisheries Act 1905 …. 9.18 Occupational Health and Safety Act 1984 …. 4.2 Wildlife Conservation Act 1950 s 23 …. 9.19

Federal Republic of Germany Constitution (Basic Law for the Federal Republic of Germany) Art 20(a) …. 12.22 India Constitution Art 51A(g) …. 12.2422 Pt IVA …. 12.2422

United States of America Animal Crush Videos Act 2010 …. 7.29 Constitution …. 2.16, 7.29

Local Government Regulation New South Wales Darwin City Council By-law 55A …. 5.6

Queensland Cardinia Shire Council Local Law No 17 (Environment, Amenity and Asset Protection Local Law) (2016) …. 5.2 Gold Coast City Council Local Law No 12 (Keeping and Control of Animals) (1998) …. 5.5 s 25 …. 5.7 Local Law No 12 (Keeping and Control of Animals) (2013) …. 5.2

Codes of Practice Commonwealth Australian Code of Practice for the Use of Animals for Scientific Purposes (2004) …. 11.12 Australian Standards for the Export of Livestock (Version 2.3) 2011 …. 12.4, 12.8 Model Code of Practice for the Welfare of Animals: Cattle …. 9.11 Model Code of Practice for the Welfare of Animals: Domestic Poultry (2002) …. 9.4 s 14.1 …. 9.3 Model Code of Practice for the Welfare of Animals: Feral

Livestock Animals (2002) …. 10.4 Model Code of Practice for the Welfare of Animals: Land Transport of Poultry (2nd ed, 2006) …. 9.7 Model Code of Practice for the Welfare of Animals: Livestock at Slaughtering Establishments …. 9.12 Model Code of Practice for the Welfare of Animals: Pigs (2008) …. 9.10 National Health and Medical Research Council’s Australian Code of Practice for the Care and Use of Animals for Scientific Purposes (2013) …. 11.2, 11.4, 11.5, 11.6, 11.7, 11.8, 11.9, 11.11, 11.12, 11.13, 11.14, 11.15, 11.20, 11.21, 11.23, 11.25, 11.27 s 1 …. 11.9, 11.10, 11.11 s 2 …. 11.9 s 3 …. 11.9 s 3.1.2 …. 11.2 s 4 …. 11.9 s 5 …. 11.9 s 6 …. 11.9

Australian Capital Territory Animal Welfare (Animals Used on Film Sets) Code of Practice 2010 …. 7.25, 7.28 Pt 1 …. 7.25 Pt 3 …. 7.25 Pt 11 …. 7.25 Animal Welfare (Australian Model Code of Practice for the Care and Use of Animals for Scientific Purposes) Approval 2005 …. 11.13

New South Wales Australia New Zealand Food Standards Code (2000) cl 24(1)(a) …. 4.8 cl 24(2) …. 4.8 cl 42(1)(b) …. 4.8 Humane Pest Animal Control: Code of Practice and Standard Operating Procedures (2005) …. 10.14 Code of Practice for the Conduct of Negotiations between Processors and Contract Growers …. 9.7 Code of Practice for the Welfare of Animals in Theatrical Performances …. 7.25, 7.26, 7.30 Code of Practice for the Welfare of Animals Used in Rodeo Events (1988) …. 7.16, 7.20, 7.21

Queensland Code of Practice for the Welfare of Animals in Circuses (2003) …. 7.6 Code of Practice for the Welfare of Animals in Film Production …. 7.26, 7.27 s 2.2 …. 7.27 s 5 …. 7.27 s 5.5 …. 7.27 ss 5.5–5.18 …. 7.27 s 5.5 …. 7.27 s 5.5 …. 7.27 s 5.5 …. 7.27 s 6.6 …. 7.27 s 7 …. 7.27 s 8.8 …. 7.27

South Australia Code of Practice — The Management of Companion Animals in Shelters and Pounds (2003) …. 5.2

Victoria Code of Accepted Farming Practice for the Welfare of Poultry 2003 …. 9.7 Code of Practice for the Management of Dogs and Cats in Shelters and Pounds (2011) …. 5.2 Code of Practice for the Public Display of Exhibition of Animals (October 2001) …. 7.9 Code of Practice for the Welfare of Film Animals (1988) …. 7.28

Western Australia Code of Practice for Poultry in Western Australia 2003 …. 9.7 Code of Practice for the Conduct of Rodeos in Western Australia (2003) …. 7.22

Table of International Instruments ____________________________ References are to paragraph numbers

Antarctic Treaty (1959) (AT) …. 12.14 Antarctic Treaty System (ATS) …. 12.14 Convention on Biological Diversity …. 9.15 Convention on International Trade in Endangered Species of Wild Fauna and Flora (1975) (CITES) …. 3.2, 12.14, 12.17, 12.18, 12.19, 12.20, 12.21 Art I(b) …. 12.18 Art VII …. 12.20 Art XV …. 12.20 Art XXIII …. 12.20 Appendix I …. 12.17, 12.18, 12.20 Appendix II …. 12.17, 12.18, 12.20 Appendix III …. 12.17, 12.18, 12.20 Declaration of the United Nations Conference on Environment and Development (1992) (Rio Declaration) …. 9.15 International Convention for the Regulation of Whaling (1946) (ICRW) …. 12.12, 12.13, 12.14, 12.15 Art VIII …. 12.13, 12.14, 12.15 International Convention on the Protection of Animals …. 12.2 International Covenant on Civil and Political Rights (1966) ….

9.15 Manila Conference on Animal Welfare (2003) …. 12.22 Manila Conference on Animal Welfare (2005 version) …. 12.22 North Atlantic Marine Mammal Commission (NAMMCO) …. 12.14 United Nations Convention on the Law of the Sea (1982) (UNCLOS) …. 12.14 Art 65 …. 12.14 Universal Declaration on Animal Welfare (UDAW) (draft instrument) …. 12.2, 12.22, 12.23, 12.24

List of Tables

____________________________

Table 2.1

Key terms and definitions in philosophical approaches to animals

Table 2.2

Key philosophical approaches to animals

Table 2.3

Welfarist and rights approaches

Table 2.4

Differences and similarities between Regan and Francione

Table 4.1

What is/is not an assistance animal?

Table 4.2

Australian disability discrimination legislation

Table 4.3

Australian disability discrimination legislation

Table 4.4

Regulatory structure of disability discrimination

Table 4.5

Australian animal legislation and assistance animals

Table 4.6

Australian disability discrimination and assistance animals

Table 5.1

State and Territory legislation regulating cats and dogs

Table 5.2

Dangerous and menacing dog thresholds

Table 5.3

State and Territory civil and criminal liability provisions for dog attacks

Chapter 6

Table 6.1

State and Territory prohibition of bestiality/zoophilia

Chapter 8

Table 8.1

Complaints of animal cruelty in Australia 2015– 2016

Table 8.2

State and Territory animal welfare legislation

Table 8.3

Legislative prohibitions against animal cruelty in States and Territories

Table 8.4

Specifically prohibited acts or conduct

Table 8.5

Definition of ‘person in charge of’ an animal

Table 8.6

‘Animals’ in animal welfare Acts

Table 8.7

Penalties for breaches of animal welfare Acts

Chapter 2

Chapter 4

Chapter 5

Table 9.1

Adoption of Poultry MCOP in States and Territories, and additional State laws

Table 9.2

State and Territory legislative exemptions for conduct toward animals under indigenous tradition

Chapter 11

Table 11.1

Application of NHMRC Code to State and Territory animal welfare legislation

Chapter 12

Table 12.1

Live export regime in Australia

Chapter 9

Contents

____________________________ Preface Table of Cases Table of Statutes and Codes of Practice Table of International Instruments List of Tables Chapter 1

Animal Law in History

Chapter 2

Development of Contemporary Animal Law

Chapter 3

Australian Legal and Regulatory Framework

Chapter 4

Animals as Assistants

Chapter 5

Animals as Companions

Chapter 6

Animals as More Than Companions

Chapter 7

Animals as Entertainment

Chapter 8

Animals and Cruelty

Chapter 9

Animals as Food

Chapter 10

Animals as ‘Pests’

Chapter 11

Animals and Science

Chapter 12

Animals and International Law

Chapter 13

Future Directions

Appendix

Index

Detailed Contents ____________________________ Preface Table of Cases Table of Statutes and Codes of Practice Table of International Instruments List of Tables Chapter 1

Animal Law in History Introduction Ancient societies Egypt Rome Greece India Middle Ages St Thomas Aquinas (1225–1274) Animal trials Descartes (1596–1650) Immanuel Kant (1724–1804) Indirect duties to animals Kant and Aristotle Animals as a means to human ends Jeremy Bentham (1748–1832) A common capacity for suffering Utilitarian ethic Utilitarian ethic and animal welfare Albert Schweitzer (1875–1965) Reverence for life

Reverence for life and animal welfare Chapter 2

Development of Contemporary Animal Law Introduction How we think about animals influences how we treat them A purposive exercise Vocabulary of contemporary animal thought ‘Rights’ and ‘moral standing’ Martha Nussbaum and the capabilities approach ‘Morally relevant distinctions’ ‘Principle of equal consideration’ Lifeboat scenarios Summary of key terms Limitations of Western liberal democratic societies for animals John Stuart Mill and the pursuit of human happiness John Locke, government and the pursuit of human happiness Liberal democratic societies and animals as property Contrasting schools of thought — animal welfare and animal rights Animal welfarism Animal rights theorists Differences in welfarist and rights approaches Widening the circle of rights — sentience as key Animals without rights — the critics respond Judge Richard Posner Professor Carl Cohen Wild law — a new approach Limitations of philosophy The challenge

Chapter 3

Australian Legal and Regulatory Framework Introduction Lack of constitutional power What is an animal? Property paradigm Australian regulatory framework

Commonwealth States and Territories Evaluation of Australia’s animal law regulatory regime Chapter 4

Animals as Assistants Introduction Access is the issue Confusing regulatory regime Use of animals as assistants Distinguishing the different therapeutic functions of animals Australian disability discrimination and animal legislation A scheme to navigate the legislation Bringing it all together — a practical example Identifying an ‘assistance animal’ Case law on ‘assistance animals’

Chapter 5

Animals as Companions Introduction Regulation of dogs and cats generally Principal companion animal legislation Regulation of dangerous dogs State and Territory regulation of dangerous, aggressive or menacing dogs Legal thresholds for making dangerous dog declarations Entity or person responsible for making a dangerous dog declaration Procedural requirements and issues Rights of appeal State and Territory regulation of restricted breed dogs Owners’ liability for dog attacks Case law concerning dog attacks Application of the uniform Civil Liability Acts Compensation for death of companion animals International cases

Chapter 6

Animals as More Than Companions Introduction Companion animals and separation issues

Is there really a problem? Companion animals and the Family Law Act 1975 (Cth) Property distribution under the FLA Australian case law International case law and statute Pets as property — possession follows legal ownership Pets as more than property — best interests of the animal An emerging standard — Houseman v Dare Application of Houseman v Dare to Australia Contract issue Specific performance issue Estate planning issues Establishing non-charitable purpose trusts for companion animals Bequeathing companion animals to established legacy programs Willing the euthanasia of companion animals Companion animals and attachment issues Animal hoarding Recognised categories of animal hoarders Legal regulation of animal hoarding in Australia Addressing animal hoarding behaviour Bestiality/zoophilia Prohibiting bestiality Language of prohibition Why is bestiality prohibited? Chapter 7

Animals as Entertainment Introduction Zoos and circuses Australian legislation regulating zoos and circuses Australian Capital Territory New South Wales Queensland South Australia Tasmania Victoria Western Australia

Education, research and conservation Thoroughbred horse racing industry Jumps racing (steeplechasing) Rodeos Australian Capital Territory New South Wales Northern Territory Queensland South Australia Tasmania Victoria Western Australia Evaluation of the rodeo codes Animals in film and theatre Australian Capital Territory New South Wales Queensland Victoria Internet ‘crush’ and animal cruelty films Evaluation of animals in Australian film codes Chapter 8

Animals and Cruelty Introduction Australian animal welfare legislation Operative legislative provisions Substantive duties and prohibitions imposed by State and Territory animal welfare legislation General acts or conduct prohibited as cruel Specifically prohibited acts or conduct Person bound by the legislation Legislative interpretation Case law interpretation Animals that benefit from duties and prohibitions Identifying an ‘animal’ Exemptions Legal elements of duties and prohibitions Positively imposed duties of care Elements of a breach of duty and a practical example

General cruelty prohibitions Penalties for breaching animal welfare Acts Application of penalties Forms of defences and exemptions created by animal welfare Acts Qualifications Direct exemptions Indirect exemption through model codes of practice Chapter 9

Animals as Food Introduction Corporate dominance Chicken meat and egg production Chicken meat production Battery hens — egg production Free range eggs litigation and the egg labelling standard Poultry regulation Relationship with animal welfare Acts Pig meat production Pig meat regulation and animal welfare legislation Beef meat production General regulation of slaughter of animals for food Religious slaughter of animals Specific exemptions for religious slaughter of animals for food Indigenous hunting rights and practices Animals hunted by indigenous Australians Recognition and protection of indigenous hunting rights Indigenous hunting rights and animal welfare legislation

Chapter 10

Animals as ‘Pests’ Introduction Commonwealth, State and Territory pest animal regulation Commonwealth Australian Capital Territory New South Wales Northern Territory Queensland

South Australia Tasmania Victoria Western Australia Process of pest animal management Chapter 11

Animals and Science Introduction Legal characterisation of animals Practice and ethics Nature of animal experimentation Australian regulatory framework for the use of animals in scientific research Commonwealth regulation of animals used for science Status of the Former Australian Animal Welfare Strategy? Australian Code of Practice for the Use of Animals for Scientific Purposes Governing principles Australian State and Territory Regulation Queensland regime New South Wales regime Common legislative features Legislative differences Australian and New Zealand Council for the Care of Animals in Research and Teaching Philosophical evaluation Early Cartesian influences Kant and the ‘categorical imperative’ Utilitarian thinking Utilitarian thinking, morally relevant distinctions and the 3Rs

Chapter 12

Animals and International Law Introduction International Regulatory Framework International live export of animals Regulatory framework

MV Cormo Express (2003) MV Al Kuwait (2003) A history of animal welfare concerns 2011 Indonesian live export controversy Cruelty in destination countries Deficiencies in live export industry Whaling in Australian waters International and Australian domestic legal framework regulating whale hunting International law framework The 2014 decision of the International Court of Justice International wildlife smuggling Convention on International Trade in Endangered Species of Wild Fauna and Flora Australian adoption and enforcement of CITES A universal declaration on animal welfare? Central principles of the UDAW Status of the UDAW Chapter 13

Appendix Index

Future Directions Introduction World population growth and demand for meat protein products Interdisciplinary nature of animal law and animal welfare Wild law Science and animal welfare Legal reform A Commonwealth approach to law reform Animal advocates Animal law reform through consumer law regulation Conclusions

[page 1]

1 Animal Law in History ____________________________ Objectives of this chapter This chapter is intended to: • • • • • • • • •

explore the origins of developed nations’ attitudes toward animals; consider the thoughts and writings of influential thinkers from different historical periods in their approach to animals and animal welfare; contrast the Pythagorean and Aristotelian philosophies of animals and the implications of those philosophies; compare the ancient European and Indian philosophical approaches to animals and animal welfare; understand how Aristotle’s thoughts about animals influenced the seminal Middle Age philosopher St Thomas Aquinas in his characterisation of animals; explore the bizarre phenomena of the ‘animal trials’ that occurred in the Middle Ages in the context of Aristotelian and Thomistic thought; trace the rise of influential philosophers Immanuel Kant and Jeremy Bentham in their approach to issues of animal welfare outside of an explicitly religious context; explore the ethics of early 20th century Nobel Laureate Albert Schweitzer’s ‘reverence for life’ philosophy; provide resources for further reading and research.

Introduction 1.1 This chapter is about the historical relationship between humans and animals in different cultures throughout the world. It is important to understand that the attitudes we have and the ways we relate to animals in our 21st century often have their

origins in ancient societies and cultures in both civil and religious systems of thought. Recent scholarship has therefore started to explore our past in order to understand our present behaviours and attitudes toward animals, and this chapter is intended to provide you with an overview of how ancient societies and cultures related to animals in sometimes very different and, at other times, very familiar ways. [page 2] It would be tempting to think that concern for the welfare of animals ‘began’ in earnest sometime in the 1960s or 1970s — perhaps as one of the many social changes taking place in Western society during those decades. Many thoughtful people recall the ‘animal liberation movement’ that gathered momentum in the 1970s, with Australian philosopher Peter Singer as its intellectual progenitor. Indeed, Singer’s influential 1975 text Animal Liberation has been described as ‘the bible of the animal liberation movement’.1 However, concern for the welfare of animals is not a new phenomenon, nor are many of the arguments in favour of animal welfare. In dedicating the revised edition of Animal Liberation to the members of the animal liberation movement, Peter Singer notes that without them: … [t]he first edition would have suffered the fate of Henry Salt’s book Animal’s Rights, published in 1892 and left to gather dust on the shelves of the British Museum library until, eighty years later, a new generation formulated the arguments afresh, stumbled across a few obscure references, and discovered that it had all been said before, but to no avail.2

Has it all been said before? And if it has, what ‘progress’ has society made in its relationship with animals? If our inquiry into these questions reveals that society has made little or no progress,

then it has either forgotten the lessons of history3 or it has chosen to ignore them in pursuit of other motives. The idea of this chapter is to consider the evidence in answer to these questions. How have societies in the past treated animals? Were those societies more ‘enlightened’ or were they more savage toward animals? Are there lessons that each society has learned and that our 21st century society needs to re-learn? We will investigate these issues by looking at the way people have thought about animals and animal welfare throughout selected periods in history. We will see that various ancient societies had very different attitudes toward animals. We will explore how the Egyptians deified some animals and loved them as family members, while the Romans were notoriously cruel toward them and to such an extent that even some hardened Roman philosophers spoke out against the cruelty. We will move on to the ancient Greeks, the ‘birthplace’ of Western philosophy and consider the starkly contrasting philosophies of Pythagoras, who thought humans reincarnated as animals, and Aristotle, who created a hierarchical structure (or ‘taxonomy’) of nature that placed humans well above the level of animals (known as the scala naturae), with the result that animals were thought to be for the use of the humans. By way of contrast, we will travel to India and explore the philosophy of Mahavira, the founder of the Jain religion and the philosophy of absolute non-violence toward animals. This attitude toward animals will be found in the teachings of the Buddha who also believed (with Pythagoras) that humans could be reborn as animals. We will [page 3] see the dramatic effect of the Buddha’s teachings on animals on the attitude of one of India’s greatest warrior-kings, Ashoka.

We will move on to the Middle Ages and see that in the struggle for philosophical supremacy, Aristotle’s hierarchical scala naturae overshadowed Pythagorean thought. Aided by the great Middle Ages philosopher and theologian St Thomas Aquinas, we will see that animals were placed firmly at the bottom of God’s pyramid of creation and at the disposal of humans. It was Thomism (the philosophical framework of St Thomas Aquinas) that influenced later centuries of thinking. In particular, we will consider the bizarre medieval practice of putting animals on trial. What was this about? Why did it occur? What were its intellectual foundations? And what can it teach us about animals and the law today? We will then fast-forward several hundred years to examine the thought of French philosopher René Descartes (1596–1650) and his view that animals were simple ‘automata’, like machines, that felt no pain and were therefore incapable of reason and intellect. Like Aristotle and Aquinas, Descartes believed animals existed for the sake of humans. Up to this point, we will see that the dividing line between humans and animals was thought to be the ability to reason and the capacity for self-reflection. Since these capacities were said to be lacking in animals, they were not regarded as ‘moral subjects’ owed any ethical duties by humans. This was a view reinforced by the German philosopher Immanuel Kant (1724–1804) who thought that humans only owed indirect duties toward animals (see 1.23). However, jurist and philosopher Jeremy Bentham’s (1748–1832) thinking in the late 1700s brought the realisation that animals also had the capacity to feel pain, and that perhaps the former dividing line between humans and animals was not correct. Since both humans and animals have the capacity to feel pain, people started to think that perhaps humans should avoid causing pain to animals. Bentham’s utilitarian philosophy represented a major advance

in thinking about animal welfare; indeed, 20th-century philosopher Peter Singer is a utilitarian philosopher. However, there are acknowledged limitations within utilitarian philosophy that we must examine. We will conclude this historical chapter by considering the writing and ethic of Nobel Laureate Albert Schweitzer’s ‘reverence for life’, and the way in which it was influenced by both Christian and Jain philosophy. The overarching theme to keep in mind as you read this chapter is that how we treat animals and behave toward them is very much a product of how we think about ourselves and animals. Thinking matters. As we work our way through the chapters in this text, we will see that the regulation of animals in contemporary 21st century society is rather confused. On the one hand, we will see that both common law and statute characterise animals as personal property. As the personal property of their owners, animals can largely be treated in the way their owners see fit. However, on the other hand, society also considers animals to be unlike other forms of personal property; a dog is not like a lamp or a toaster, for example. For this reason, we have animal cruelty and welfare statutes. [page 4] Characterising animals as mere chattels while simultaneously attaching emotional importance to them often leads to a significant amount of legal and regulatory confusion.

Ancient societies 1.2 How animals were treated by members of ancient societies was intimately connected with the religious world view of those societies. Palaeolithic cave paintings at Lascaux in South-West

France, which feature depictions of over 900 animals, and at Altamira in Cantabria, Spain, indicate the wonder and importance that early humans placed on the place of animals in their lives.4 Let’s consider how ancient societies in Egypt and the Middle East, Greece, Rome and India interacted with animals and explore the ideas of some of the key thinkers from each of those societies. While you are reading this chapter, it is important to keep in mind that in ancient times, animals and humans were not as distantly separated as they are today. People shared their lives with animals both out of sheer necessity (food, milk, fur and bones) as well as for companionship. Human settlements and their inhabitants often competed with wild animals for both food and territory. Wild and dangerous animals were much more numerous than they are today and the potential for those animals to harm people was a greater consideration than it is today.5 The threat to human life and safety posed by wild and dangerous animals will become important when we explore the way ancient societies utilised animals for entertainment.

Egypt 1.3 It was the ancient Egyptians that perfected the art of animal veneration. The historian Herodotus recounted that such was the veneration of cats in Egypt (most likely because the cat was sacred to the goddess Bastet) that when a house caught fire, nobody would bother with putting out the fire. Rather, they would try to protect the many cats in the area from being burnt. And if any cat did die, its owner would shave their eyebrows as a sign of mourning.6 One contemporary but anonymous reference to the Egyptian love affair with cats states: ‘3000 years ago cats were worshipped as gods and they have never forgotten it’. The first-century Greek historian, Diodorus, noted that cats were bribed with Nile fish and bread soaked in milk in order to gain their attention.7 While it is tempting to think of ancient Egypt as displaying

relatively benign attitudes toward animals, all manner of animals were being exploited, hunted, farmed and sacrificed at the same time. Herodotus describes the process of animal sacrifice in [page 5] ancient Egypt, noting that while cattle were sacrificed, pigs were considered unclean.8 As Karen Armstrong noted, animal sacrifice was a universal religious practice in the ancient world: There was a strong conviction that life and death, creativity and destruction were inextricably entwined. People realized that they survived only because other creatures laid down their lives for their sake, so the animal was honoured for its self-sacrifice.9

Many texts have been written about the role and function that animals have played in early religious traditions and rituals.10 One theme that does emerge from the literature is the gradual replacement of animal sacrifice in various religious traditions.

Rome 1.4 While the Egyptians were relatively sensitive to the role of animals in society, the ancient Romans did not display such concerns. With certain exceptions, the militaristic Roman society exploited animal suffering as a form of entertainment on an immense scale. The Emperor Trajan (56–117 CE) celebrated his victories with 70 successive days of games during which some 11 000 animals of all species were slaughtered for public entertainment.11 When Titus Vespasian (39–81 CE) opened the Colosseum in 80 CE, some 5000 animals, including lions, tigers, giraffes and hippos, died in a single day.12 Not every Roman enjoyed these blood sports. In one of his surviving letters, the renowned orator Marcus Cicero (106–43 BCE) wrote: If some bodily pain or weakness of health has prevented your coming to the games, I put it down to fortune rather than your own wisdom: but if you have made up

your mind that these things which the rest of the world admires are only worthy of contempt, and, though your health would have allowed of it, you yet were unwilling to come, then I rejoice at both facts — that you were free from bodily pain, and that you had the sound sense to disdain what others causelessly admire. There remain the two wild-beast hunts, lasting five days, magnificent — nobody denies it — and yet, what pleasure can it be to a man of refinement, when either a weak man is torn by an extremely powerful animal, or a splendid animal is transfixed by a hunting spear. The last day was that of the elephants, on which there was a great deal of astonishment on the part of the vulgar crowd, but no pleasure whatever. Nay, there was even a certain feeling of compassion aroused by it, and a kind of belief created that that animal has something in common with mankind.13

[page 6] Combat with and between elephants seemed to have also aroused distaste amongst other spectators at games and triumphs. Pliny the Elder (23–79 CE) recounted the reaction of the crowd to a spectacle of combat with elephants as part of an exhibition put on by Pompey (106–48 BCE) who was both military and political leader of the Roman Republic as part of the First Triumvirate with Julius Caesar and Marcus Crassus: When however, the elephants in the exhibition given by Pompey had lost all hopes of escaping, they implored the compassion of the multitude by attitudes which surpass all description, and with a kind of lamentation bewailed their unhappy fate. So greatly were the people affected by the scene, that, forgetting the general altogether, and the munificence which had been at such pains to do them honour, the whole assembly rose up in tears and showered curses on Pompey.14

Cicero’s observation in his last sentence above is important. It raises the possibility that humans can extend and maintain compassion toward animals because they have ‘something in common with mankind’. Why did the Romans enjoy such cruel spectacles of animal abuse? One researcher reminds us that: For our ancestors, the natural world was a frightening space, filled with animals who harmed them. The ancient Greeks and Romans constructed a narrative in which humans triumphed over the unpredictability of nature by exploiting a few animal species for food, labour and clothing … spectacles that displayed the torment or killing of animals confirmed the superiority of humans over the natural world.15

More than mere entertainment, it was a symbol of Rome’s global hegemony that exotic animals from the limits of the Empire were captured and shipped back to Rome. It was an age summed up by Petronius, Nero’s master of ceremonies, as ‘the padding tiger, shipped in a golden cage, lapping at human blood, applauded by the crowds’.16 In the face of the vast Roman enterprise of animal capture and slaughter, Cicero’s objections appear to have been the exception rather than the rule.17

Greece 1.5 Two of the more important ancient Greek philosophers whose works continue to influence 21st century thinking about animals were Pythagoras and Aristotle. Although Pythagoras’s approach to animals and animal welfare is closer to the Indian understanding of animals, it is the writings of Aristotle that have been, and continue to be, the major influence on the way Western Judeo-Christian societies understand the nature and place of animals within human society. We will see that it was to Aristotle’s works that Thomas Aquinas turned in forming what is now Western society’s approach to animals and animal welfare. [page 7]

Pythagoras (580–500 BCE) and animal welfare 1.6 Pythagoras’s reputation was that of a man whose genius was as much religious as it was scientific. For him, the mysteries of the universe required spiritual illumination. Mathematics and the harmonies of music were religious as well as scientific subjects of inquiry. While we remember Pythagoras for his mathematical genius and, in particular, his theories concerning triangles and geometry, he was also an animal lover, a vegetarian and probably one of the

world’s first ‘animal liberationists’, as he had the habit of buying animals from the market and setting them free. What was the basis of Pythagoras’s concern for animal welfare? He founded a philosophical thought-system based on the doctrine of transmigration of souls — a concept often referred to as metempsychosis.18 Pythagoras taught that the soul was an immortal thing and that whatever comes into existence is born again in the revolutions of a cycle. According to Dikairchos of Messene (a pupil of Aristotle), Pythagoras considered: First that the soul is an immortal thing and that it is transformed into other kinds of living things; further that whatever comes into existence is born again in the revolutions of a certain cycle, nothing being absolutely new; and that all things that are born with life in them ought to be treated as kindred.19

Pythagoras developed his views independently of established religious traditions. He was teaching 500 years before Christianity had been established, and although he was roughly a contemporary of the Buddha there is no explicit evidence that Pythagoras adopted Buddhist principles. Nevertheless, religious scholars are beginning to uncover the ‘mutually formative contacts between the Greek and Indian philosophical traditions’.20 Theodor Gomperz, for example, argues for an explicit connection between Pythagorean thinking and Indian philosophy: From what people or creed did the sage who was famous above all for this farreaching ‘inquiry’ borrow the doctrines of metempsychosis? … There is a far closer agreement between Pythagorism and the Indian doctrine; not merely in their general features, but even in certain details, such as vegetarianism.21

Like St Francis of Assisi, Pythagoras was said to have preached to animals.22 Unlike St Francis, Pythagoras considered beans to be taboo and prohibited his followers from eating them.23 According to English Nobel Laureate and philosopher Bertrand Russell, the injunction against eating beans was based on Pythagoras’s belief that only [page 8]

unregenerate people liked them and it was unregenerate people who would be most likely to rebel against the social order.24 Pythagoras himself insisted that he could remember having lived a past life as a Trojan warrior, Euphorbus, who had been killed in a siege. It was said by his followers that Pythagoras was the only human to be able to remember all his past lives and experiences.25 Accordingly, Pythagoras counselled against killing and eating animals because those animals could be friends or relatives reborn. There is an anecdote told by the sixth- century BCE poet Xenophanes that when Pythagoras saw a person cruelly whipping a little puppy, he intervened: Once he was present when a puppy was being beaten, they say, and he took pity and spoke this word: ‘Stop! Do not strike it, for it is the soul of a man who is dear. I recognized it when I heard it screaming’.26

Because Pythagoras believed that both humans and animals possessed souls that transmigrated through successive incarnations, it was simply unthinkable to abuse an animal or to eat its flesh.

Aristotle (384–322 BCE) and the scala naturae 1.7 Aristotle was a student of Plato and went on to become tutor to Alexander the Great. His writings about animals are puzzling and have generated a divergence of views on what he really thought about them. Aristotle wrote five books devoted to the study of animals27 in which his admiration and affection for all forms of them is obvious. Yet in other writings, Aristotle seemed to adopt a harsher attitude toward the place of animals within society, apparently suggesting that they were to be used to satisfy the needs of humans. For example, in The Politics he wrote: Plants exist for the sake of animals and brute beasts for the sake of humans — tame ones for the use he can make of them as well as for the food they provide; and as for wild animals, most though not all can be used for food or are useful in other ways: clothing and instruments can be made out of them. If nature makes nothing

without some end in view, nothing to no purpose, it must be that nature has made all of them for the sake of man.28

[page 9] The hierarchical ordering of plants, animals and humans is found in Aristotle’s work History of Animals and has led some scholars to suggest that Aristotle created what is sometimes called the scala naturae or ‘Great Chain of Being’.29 The scala naturae suggests there is a linear progression of organisms from the simple to the more complex. According to some scholars, while there is some form of continuity between species, animals are essentially at a lower ‘level’ than humans and thus are available for use by humans.30 The consequence of this scala naturae for the status of animals is captured by Richard Ryder: Aristotle did not deny that men and women were animals, but placed them (as the most rational of animals) at the head of a natural hierarchy and proposed that the less rational exist to serve the purposes of the more rational. Even slaves, although human and capable of feeling pleasure and pain, were considered to be less rational and, therefore, open to justifiable exploitation by the more rational.31

Other scholars agree that although Aristotle did create this hierarchical taxonomy (classification) of organisms, he did not create a scala naturae intended to support the exploitation of animals by humans. Scholars such as Martha Nussbaum suggest that: Aristotle does rank lives but he does not hold in general that one species exists for the sake of another. Each species’ nature (or characteristic form of life) is its end.32

This last sentence is an important observation. In his writings on animals, Aristotle regarded all life as being an end in itself because he believed that all living creatures were organised to both maintain themselves and flourish in ways that are appropriate to each creature.33 1.8 Animals as ends in themselves. For the reason given above,

each animal was seen as an end in itself and not merely a means to someone else’s end. We will return to this idea of animals being ends in themselves when we consider the writings of German philosopher Immanuel Kant at 1.22ff. If Aristotle did suggest a form of hierarchy (or ‘great chain’) of living creatures, but did not then go on to suggest that creatures lower on that chain could be exploited by humans who were higher on the chain, what did he mean by proposing the existence of this hierarchy? Catherine Osbourne suggests that simply because humans have more specialised functions than animals, it would be a mistake to think that humans are ‘more advanced’ than animals: [page 10] For Aristotle, there is no such thing as evolution: the species are fixed and each fully formed member of a species has all the functions that it is good for such a thing to have, so as to live a full life being what it is. There is no sense that the members of that species are worse off … Aristotle’s view of nature as an order of increasing complexity does not imply that humans are better, more advanced, higher, or in any other way superior in the order of nature than less complex creatures.34

1.9 Animals, emotions and capacity for judgment. Aristotle also suggested that animals possessed and could display emotions and rudimentary memory capacity. With these capacities, Aristotle concluded that animals could even exercise prudential judgment. Accordingly: Aristotle imputes voluntary action to both children and animals, holding that they can justifiably be praised or blamed for their conduct.35

This is an important conclusion. If animals can be said to exercise judgment, exercising volition in their actions, then it is not so far-fetched to suggest that animals could be held legally responsible for their actions. As we will see later, this is exactly what happened during the Middle Ages when all kinds of animals

and insects were put on trial in both civil and ecclesiastical (church) courts. Aristotle’s views are important because they eclipsed the views of Pythagoras in Western society. In large part, this was because Aristotle’s views heavily influenced the philosophy of Thomas Aquinas, who set the philosophical tone for most of the Middle Ages and whose views continue to influence the way we think about animals.

India 1.10 Three figures from India’s ancient past demonstrate a comparatively enlightened attitude toward animals, animal suffering and animal welfare: Mahavira, Siddartha Gautama (the Buddha) and King Ashoka.

Mahavira (599–527 BCE) 1.11 An elder contemporary of the Buddha, Mahavira is thought to be the last of 24 tirthankaras — literally, ‘ford-finders’ — who enabled humans to ford the never-ending stream of cyclic existence comprising birth, death and rebirth. Mahavira was concerned with the fact that in order for humans to remain alive, we must kill other sentient beings for food in an endless premeditated slaughter. For this reason, Mahavira founded the Jain philosophy of ahimsa or non-violence toward all living beings.36 We will see that Albert Schweitzer was influenced by Mahavira’s study of ahimsa in formulating his own ethic of ‘reverence for life’. [page 11]

Siddhartha Gautama — the Buddha (480–400 BCE) 1.12 Buddhism is one of the world’s great and ancient spiritual traditions. Siddhartha Gautama was born into the Sakya clan in

the State of Kosala and raised in comparative comfort and ease. Siddhartha’s father Suddhodana wished his son to grow into a powerful warrior who would one day assume leadership of the Sakya clan. However, astrologers had told Suddhodana that if Siddhartha left the ‘householder’s life’ and became a wandering renunciate — a person who renounced the life of a householder — he would become a very great religious leader. In order to protect Siddhartha from anything that might cause him to question his life as a future leader, Suddhodana surrounded his son with luxury. In the Anguttara Nikaya (the collected sayings of the Buddha recorded in Sanskrit and Pali), the Buddha is alleged to have recounted that: I was comfortable, extremely comfortable, incomparably comfortable. My father’s mansion had lotus pools of blue, red and white for all my benefit. … I had three palaces, one for winter, one for summer and one for the rainy season. During the rainy season, I was at the palace suited for the rains and surrounded by female entertainers, and was never left alone.37

In due course, Siddhartha grew to adulthood and married a beautiful woman named Yasodhara. They had a son who they named Rahula, which means ‘fetter’. Tradition holds that at about the age of 29, and during several chariot rides, Siddhartha encountered ‘four sights’: first, an old and bent-over person; second, a very sick person who was in pain; third, a corpse being taken for disposal; and fourth, a serene and meditative holy man. These sights made a deep impression on Siddhartha who, perhaps for the first time, realised that old age, sickness and death are the common condition of all living beings. Even more distressing to Siddhartha was the realisation that he was completely powerless to stop his beloved family from suffering these conditions. Siddhartha resolved to turn his back on the householder’s life and become a renunciate in order to find a solution to the profound existential ‘dis-ease’ he felt. After six years of study and often extreme asceticism, Siddhartha

felt he still had not found the answer to his questions. He travelled to Bodhgaya, sat beneath the Bodhi tree and entered into a deep meditative state. Throughout the night, Siddhartha penetrated reality itself, abolished ignorance and, toward dawn, became enlightened: a ‘Buddha’ — one who is awake. The Buddha developed insight into the ‘Four Noble Truths’: (1) the truth of dukkha (suffering or dissatisfaction); (2) the truth of the cause of dukkha; (3) the truth of the cessation of dukkha; and (4) the truth of the path leading to the cessation of dukkha.38 From a Buddhist perspective, all sentient beings (including humans, animals and certain spirits) are born over and over again in an endless cycle within samsara, a state of existence that is characterised by being vulnerable to suffering and dissatisfaction: [page 12] Each life is conditioned by the volitional actions (karma) of one’s past life and present actions will similarly determine the important aspects of future life situations. Every action one performs leads to an opposite and equal reaction either in the present life or in future ones. Those who engage in evil acts might be reborn as animals that suffer and die early or as hell beings whose bodies are designed to experience excruciating pain without let-up. Beings who cultivate good qualities such as generosity, compassion and equanimity may enjoy lives as well-favoured humans or even as gods in one of the various heavens described in Buddhist cosmology.39

Like Pythagoras, the Buddha taught that a person’s consciousness may be reborn in an animal form and an animal’s consciousness may be reborn in a human form. Both animals and humans form only a part of the Buddhist cosmology. To intentionally kill an animal is to create heavy, negative karma for a person that will result in the experience of suffering later in their present life or in a future life, and may result in a person’s consciousness being reborn in one of the hell realms. For this reason, Buddhism extends great care and kindness to animals.40

There are many stories of warriors, kings and even ordinary people dramatically changing their behaviour toward animals as a result of realising the implications of the Buddha’s teachings. One such person was King Ashoka and his story is remarkable.

Ashoka (273–232 BCE) 1.13 King Ashoka was absolute ruler of the Magadhan empire that included most of the Indian sub-continent. Although he was a Buddhist, the teachings did not mean much to him until after the conquest of Kalinga near the Bay of Bengal. The carnage and destruction of that conquest was recorded by Ashoka in one of his many edicts: ‘When [King Ashoka] had been consecrate eight years, Kalinga was conquered with 150 000 people deported, 100 000 killed and many times that number dead’.41 From that time on, Ashoka began to seriously implement the Buddha’s teachings in both his lifestyle and the management of his empire. One of Ashoka’s many ‘rock edicts’ placed around his kingdom records his attempts to convert to a vegetarian diet: Many hundreds of living creatures were formerly slaughtered every day for the curries in the kitchens of His Majesty. At present, when this Edict on Dharma is being inscribed, only three living creatures are killed daily: two peacocks and a deer and the deer is not slaughtered regularly. In the future, not even these three animals shall be slaughtered.42

Buddhist philosophy is insistent in its condemnation of the killing of animals and many of its practitioners regularly engage in animal liberation activities as part of their spiritual practice. [page 13]

Middle Ages 1.14 Like all periods of time, it is difficult to determine the commencement and conclusion of the ‘Middle Ages’. Various dates have been suggested, but the period roughly covers the years from the fifth century to the 16th century.

The Middle Ages is often further broken down into the ‘Early Middle Ages’ (sometimes also called the ‘Dark Ages’) beginning with the fall of the Western Roman Empire in the fifth century and ending in the eighth century, and the ‘High Middle Ages’ beginning in about the eighth century and ending with the gradual rise of the Renaissance between the 14th and 17th centuries. During the Early Middle Ages, much of the philosophy and writings of the Greeks and Romans were lost to Europe. However, while Europe was languishing in the ‘Dark Ages’, the philosophies of Aristotle and Pythagoras and the writings of others were being preserved in Al Andalus, a region of Spain incorporating the cities of Toledo, Granada and Cordoba. In those cities, Christian, Jewish and Islamic scholars lived and worked together preserving, copying and translating texts lost to Europe.43

St Thomas Aquinas (1225–1274) 1.15 One important scholar to benefit from the effort of the scholars in Al Andalus was Catholic theologian and Dominican priest, Thomas Aquinas. Generally regarded as one of Europe’s most important philosophers, Aquinas managed to synthesise the re-discovered Aristotelian philosophy with Christian philosophy. The result was the hugely influential school of philosophy known as ‘Thomism’. Throughout his most important philosophical work the Summa Theologica,44 Aquinas adopted two very important principles of Aristotelian philosophy: first, that humans can employ reason through observation of the world; and second, that there is a hierarchical order to nature, with the Christian God at its apex and animals at its base, humans being placed above the animals.45 Aquinas thought that Aristotle had seriously erred in the formulation of his hierarchy of created things: Thomas insisted (that) … where the Philosopher (Aristotle) fell short — seriously short — was in failing to recognize that all created things, with their built in

tendencies to behave or develop according to their natures, owe their entire being to God.46

Aquinas therefore modulated Aristotle’s hierarchical taxonomy into the Christian philosophical tradition, with the consequence that animals were again subordinated to the desires and needs of humans. Recall from our discussion above (at 1.7) that scholars are divided about the meaning of Aristotle’s taxonomy or hierarchical classification of organisms. Although Aristotle’s statement in The Politics seems very clearly to say that animals are to be [page 14] used in whatever way for the sake of humans, some scholars suggest this is not what is implied.47 Whatever the resolution of this dispute as to Aristotle’s intent, it seems clear that Aquinas took the passage from The Politics at face value in formulating his approach to animals and the uses of them. This is why scholars such as Ryder suggest that: Aquinas was very much influenced by Aristotle, many of whose works had only recently become available to European scholars, and it seems he absorbed from Aristotle the idea that less rational beings, such as slaves and animals, exist to serve the interests of the more rational.48

In the ‘Second Part of the Second Part’ of his Summa Theologica,49 Aquinas discussed the theological and cardinal virtues.50 With regard to the cardinal virtue of ‘justice’, Aquinas analysed whether it is lawful to kill any living thing through a response to a syllogism constructed as follows: Murder is a sin because it deprives humans of life. But life is common to both plants and animals. Therefore, it is a sin to kill animals and plants.51 Aquinas responded by firstly quoting from a work by St Augustine (354–430 CE). In Book One of his most important work City of God, Augustine discussed suicide and stated:

When we say, Thou shalt not kill, we do not understand this of the plants, since they have no sensation, nor of the irrational animals that fly, swim, walk or creep, since they are disassociated from us by their want of reason, and are therefore by the just appointment of the Creator subjected to us to kill or keep alive for our own uses.52

From this ‘authority’, Aquinas then argued that since ‘dumb’ (irrational) animals lack the reason that directs their movements, they must be moved (animated) by ‘impulse’. For Aquinas, this impulse was a sign by which animals are ‘naturally enslaved and accommodated to the uses of others’.53 Therefore, to kill an animal that belongs to a person is not to commit the sin of murder. Rather, because the animal is ‘accommodated to the use’ of that person, the sin committed is one of theft of property. [page 15] What emerged from Aquinas’s thought was an instrumentalist view of animals. In his work Summa Contra Gentiles (‘Against the Gentiles’), Aquinas concluded: If in Holy Scripture there are found some injunctions forbidding the infliction of some cruelty toward brute animals … this is either for removing a man’s mind from exercising cruelty toward other men or because the injury inflicted on animals turns to a temporal loss for some person.54

In other words, kindness toward animals was not grounded in any intrinsic value of the animal, but because being kind to animals would translate into being kind toward other humans. It is an instrumentalist approach. This approach is described by Richard Wade as follows: Aquinas argued that cruelty to animals was wrong because it encouraged people to behave in a similarly cruel fashion toward other. In addition, if people practiced pity or compassion toward animals, they would be disposed to do the same toward humans.55

Thoroughly basing himself in Aristotle’s works, the attitude of Aquinas toward animals has been summarised as follows:56

• • • •

unlike human beings, animals lack rationality; animals are intended for human use; animals are made for humans by divine providence; and because animals do not have reason, they lack immortal souls. The influence of Aquinas on Western philosophy is enormous. No less an authority than Nobel Laureate philosopher Bertrand Russell suggests that: St Thomas is not only of historical interest, but is a living influence, like Plato, Aristotle, Kant and Hegel — more in fact than the latter two.57

Aristotle and Aquinas’s conclusions that animals lack rational thought and are simply intended for human use, make it all the more difficult to understand the fact that for several hundred years during the Middle Ages, animals were placed on trial for both civil and criminal offences. Accused of offences that ordinarily require intent and motive, animals throughout Europe were indicted, prosecuted in a court of law, defended by legal advocates, tried and sentenced by judges and often publically executed. The phenomena of the medieval animal trials is a truly puzzling chapter in the history of law and animals, and it is to this that we now turn.

Animal trials 1.16 During the European Middle Ages, from the 13th century through to the 17th century, animals were often put on trial in both criminal and ecclesiastical courts, [page 16] defended by lawyers, judged by a jury and sentenced by a judge. In many cases, the sentence was death and a very public and gruesome execution of the animal followed.

This phenomenon, bizarre to us today, was known as the ‘animal trials’ and raises some truly strange issues when trying to find an explanation for these legal practices. What are we to make of this practice that not only attributed premeditation, free will and guilt, in a moral and juridical sense, to an animal, but also of the idea that the animal even understood what was taking place? There seemed to have been two distinct trial procedures depending on the species of animal and the ‘offence’ it was alleged to have committed.58 First, if an animal caused a public nuisance, such as the destruction of crops, it would be tried before an ecclesiastical court. Second, if an animal caused physical injury or death to a human being, then it was tried in a criminal court before a judge and jury.

Criminal trials 1.17 These were first held in Switzerland and then France, Germany, Italy, Spain, Turkey, Denmark, Canada, Brazil and Ethiopia. Some examples highlighted in the literature are discussed below. In 1494 in Clermont, France, on Easter morning, a baby was left unattended in its cradle. A pig entered the room and mauled the child to death. The pig was arrested and charged with the crime of having ‘strangled and defaced a child in its cradle’. After a trial during which witnesses were called to identify the pig, the judge imposed a sentence of death and the pig was hanged. In 1386, again in France, a pig killed an infant. It was arrested, along with its six infant piglets that had also partially eaten the child. The pig was convicted of infanticide and sentenced to death. In a bizarre twist, it was dressed in human clothes and then hanged. However the piglets were pardoned ‘on account of their youth and the influence of their mother’s bad example’. There were many cases where whole swarms of pests were put on trial for destroying crops. These trials were usually held before

ecclesiastical courts where a variety of sentences were handed down, including excommunication! In 1516 in France, locusts were destroying vineyards. An ecclesiastical court imposed a form of injunction requiring the swarm to leave the vineyard within six days or be excommunicated. In 1713 in Brazil, a Franciscan monastery was overrun by termites. The termites were summoned to appear before a bishop presiding at the local ecclesiastical tribunal. At the trial, the termites’ defence counsel successfully argued that because they were God’s creatures, the termites were entitled to sustenance. The court ordered a settlement of the case on the basis that the monks would provide a suitable habitat for the termites that were commanded to ‘depart henceforth and remain at the site’. In 1575 in France, a colony of weevils ravaged the crops of the town of Saint Julien. The weevils were duly summoned to appear before the local ecclesiastical court. Failing to appear, a defence counsel was appointed: a Mr Pierre Rembaud. Mr Rembaud successfully argued that according to the Bible’s Book of Genesis, God had created [page 17] animals before humans and had given them every green herb for food. Therefore, the weevils had a prior right to the crops. Eventually the people of Saint Julien offered to set aside some land for the weevils. A dispute then arose about the fertility of the soil. The judge appointed experts to evaluate the fertility of the soil and reserved his decision. However, we do not know the outcome of the decision because the last page of the report was eaten by weevils!

Procedural complexity

1.18 The cases discussed at 1.17 illustrate the strictness with which the human participants stuck to procedural rules and guidelines at that time. The typical ecclesiastical proceeding involved the following five procedural steps: 1. The plaintiffs alleging harm would present their complaint to the ecclesiastical court. 2. The judge would send an investigator to assess the damage allegedly inflicted by the animals. 3. The court would demand religious processions and prayers to placate ‘heaven’s anger’ before the trial. 4. The court would summon all of the offending class of animals to appear in court to answer the charges. 5. The court would appoint both a prosecutor and defender of the animals. Defence lawyers often made great names for themselves when defending animals. For example, in 1522, Bartholomew Chassenee defended a pack of rats that were accused of destroying the entire barley crop of the village of Autun. A summons was issued and Chassenee appointed defender of the rats. Not surprisingly, the pack of rats failed to appear in answer to the summons. The prosecutor moved for judgment in default of appearance. However, Chassenee successfully argued that since the rats moved from village to village, the single summons was inadequate to notify all of them to appear. The court accepted the argument and issued another summons that was then read out in all nearby parishes and villages. The rats still did not appear. Chassenee argued that the rats were too afraid of answering the summons because the village cats would capture them as they travelled to court. Chassenee then cited legal precedent to the effect that if a defendant is summoned to appear in a place to which he or she cannot travel in safety, then they may legally refuse to obey the summons. The court then tried to make an order requiring all the villagers to lock up their cats and, since the villagers were unwilling to do

that, Chassenee successfully argued that the case should be dismissed.59

Explaining the animal trials 1.19 A number of reasons for these trials have been posited, which are: • rehabilitation; • erasure of the act; [page 18] • incapacitation; • deterrence; • re-establishment of control; • retribution; and • primitive superstition. Early scholars adopted what might be called a ‘cultural positivist’ approach, which argued that the trials were the result of a primitive and superstitious past. This was the approach taken by Edward Evans, whose important work The Criminal Prosecution and Capital Punishment of Animals60 suggested that the trials were ‘the childish disposition to punish irrational creatures and inanimate objects, which is common to the infancy of individuals and of races’.61 On this view: Animal trials were clearly the legacy of a primitive, superstitious past. The other explanation placed the phenomena within a ‘primitive’ cultural context that attributed either anthropomorphic or demonic qualities to insensate beasts.62

This idea is attractive to contemporary minds and begs the question: How was it possible for learned jurists and theologians to think, against both all everyday experience and nearly all learned tradition about the place of animals in creation, that the creatures tried would be both able to understand human language

and follow the directions decreed by the tribunal, and at the same time moral correction would be the effect for the remaining individuals of the species?63

If the ‘cultural positivist’ explanation were correct, we would expect the historical data to show that most of the animal trials occurred in the Early Middle Ages, before the recovery of Greek philosophy and Roman law. However, this is not the case. Most of the animal trials appeared to take place in the High Middle Ages: All positivist interpretations come up against one main stumbling block: the sequence of events. All sources clearly indicate that animals trials, both secular and ecclesiastical, became common practice in the later middle ages, reaching their peak of frequency and greatest geographic scope during the fifteenth, sixteenth and seventeenth centuries … Those facts were difficult to square with the picture of humanity advancing in linear progression from the superstitious middle ages to the rational nineteenth century.64

Scholars such as J J Finkelstein have argued that the trial and execution of animals resulted from a literal implementation of biblical commands relating to the execution of animals; for example, the command in Exodus 23:28 that ‘if an ox gore a man or woman that they die, then the ox shall be surely stoned, and his flesh shall not be eaten; but the owner of the ox shall be quit’: [page 19] According to him (Finkelstein) the animal trials were a cultural manifestation of a mentality that placed man above animals in the hierarchy of creation and therefore felt obliged to stamp out any infringement of this order, such as the killing of a human being by a lower creature.65

However, other scholars such as Esther Cohen disagree, arguing that because Finkelstein’s theory depends upon his failure to find any animal trials outside the Judeo-Christian tradition, and since accounts of animal trial can indeed be found in cultures pre-dating the Judeo-Christian world view, his theory ‘is the wrong one’.66 Cohen is correct in pointing out that animal trials existed outside of the Judeo- Christian tradition. For example, in Book Nine of The Laws, Plato urged the relatives of a person killed by an

animal (other than in the course of ‘public contests’) to appoint wardens to try the animal and, if found guilty, to have the animal executed and thrown ‘beyond the frontiers of the country’.67 However, Cohen’s own criticism is open to question. Just because every animal trial cannot be explained by adherence to a Judeo-Christian world view does not mean that no animal trial can be explained by that world view. We have seen how persuasive Aquinas’s views were in the Middle Ages, particularly his views on Aristotle’s scala naturae. For example: The overriding ontological context of animal trials in early medieval Europe stemmed from the belief that the cosmological universe was based on a rigid hierarchical chain of being. At the summit of this hierarchy was the male God of Judeo-Christendom followed by His earthly representatives and interpreters (Church and State) then by the multitiered social strata of feudalism, all of which in their respective positions in the human hierarchy sat atop the non-human animal kingdom.68

It therefore seems reasonable to conclude that the influence of the Judeo-Christian hierarchy did contribute to the animal trials phenomena and that Finkelstein is at least partially correct in suggesting that animal trials were motivated by the need to maintain the divine hierarchy. However, the reality appears to be that none of the reasons for the animal trials suggested above when taken in isolation from the others seems plausible, and scholars have noted the existence of several themes throughout this period: Some themes do recur throughout the history of animal trials. Notions of control, order and revenge permeate their history. In the end, a combination of the human needs to establish cognitive and hierarchical control and to exact revenge seems to offer the best explanation for the animal trials and executions.69

Peter Dinzelbacher helpfully summarised the prevailing views that attempt to explain medieval animal trials: [page 20]

A combination of various factors is necessary to explain how so extravagant a procedure as the animal trial was able to take root during the late Middle Ages: (1) the insecurity that arose from epidemics, economic depression and social conflicts; (2) the establishment of Roman law and court procedure in late medieval society; (3) the religious subordination of all beings to priestly power; (4) the comfort derived from the ritual ‘magic’ of legal formalism and public execution; (5) the interests of lords and lawyers to continue a lucrative practice; and (6) the tendency to personify animals in extreme situations … [T] hese factors represent a significant step toward surpassing the notion that animal trials were nothing more than mystifying curiosities in the history of law.70

Contemporary relevance of animal trials 1.20 The prosecution and punishment of animals through formal legal processes continued into the early 20th century. Jen Girgen gives several examples:71 • In May 1906, a Swiss court sentenced a dog to death for its part in a robbery committed by a father and son. • In 1924 in the United States, the Governor of Pennsylvania tried a dog for killing his cat. The dog was sentenced to life imprisonment where it died of old age in 1930. • In 1927, also in the United States, a dog was incarcerated by a Justice of the Peace in Connecticut for the ‘crime’ of disturbing the cat of a neighbour. One important feature of these ‘oddities’ was the seriousness with which the animal’s ‘interests’ were treated. The animal was given a trial, defence counsel were appointed and a jury empanelled to hear the case. A judge presided over the proceedings, presumably to ensure the trial did not descend into a lynch mob carrying out an act of vengeance. Animal trial may no longer be part of the 21st century legal landscape, but it would be a mistake to think we are any more ‘advanced’ than our ancestors. Today, many animals are summarily sentenced to death for trivial actions. Piers Beirne asks: Has not the medieval courtroom been displaced by the animal shelter? … Have not the rack and the gibbet been displaced by the clinically painless euthanasia dispensed by lethal injection and vacuum chambers? Nowadays, instead of being executed for crimes committed against humans, animals are far more likely to be

executed, silently, invisibly and without advocates — for such crimes as ‘homelessness’ and ‘aggression’.72

Descartes (1596–1650) 1.21 French philosopher René Descartes was a lawyer, soldier and inventor of analytical geometry (he is remembered for the ‘Cartesian graph’). Descartes concluded that humans were subjects that experienced the world through their minds. He divided the world into mind and matter in a process known as ‘Cartesian dualism’. [page 21] It is from this division that Descartes derived his famous maxim cognito ergo sum (‘I think, therefore I am’). Descartes’ work Principles of Philosophy (1644) split the world into observer, subject and object, and intellect and mechanics. Because Descartes viewed the world and its processes through mechanical, geometric and mathematical concepts and frames of reference, he attempted to account for all natural phenomena in one system of mechanical principles. For Descartes, it was the capacity for thinking and selfconsciousness that distinguished humans from animals. Since animals were (in Descartes’ view) non-reflective creatures without the capacity for self-consciousness, he thought that they were little more than inanimate objects without the capacity to think or feel pain. Descartes was influenced by the prevailing conception of the natural world at that time, which explained phenomena in simple mechanical terms. Descartes therefore believed that the behaviour of animals did not need to be explained by theories of sentience and consciousness, but their behaviour could be explained by the simple mechanical functioning of their constituent parts: That animals do better than humans do, does not prove that they are endowed

with mind, for in this case, they would have more reason that any of us, and would surpass us in all other things. It rather shows that they have no reason at all and that it is nature which acts in them according to the disposition of their organs …73

However, as Cottingham observed: To be able to believe that a dog with a broken paw is not really in pain when it whimpers is quite an extraordinary achievement, even for a philosopher.74

Descartes’ views have exposed him to accusations that his philosophy involves a ‘monstrous thesis’ that ‘brutally violates the old kindly fellowship of living things’.75 However, we know that Descartes himself loved animals, including his dog ‘Monsieur Grat’, who would follow him on long walks.76 The Cartesian view of animals as simply mechanical automata with little or no capacity for reason or feeling is being challenged by contemporary philosophers.77 Nevertheless, it has been alleged that the growth of agribusiness in Western societies, involving commercial animal farming practices, is a reflection of the Cartesian approach to animals and animal welfare.78 Certainly in Australia, Descartes’ concept of animals has led to a ‘commodification’ of animals and animal products. When animals are perceived as goods to be ‘efficiently marketed’, their interests and welfare become subordinated to the economic pressures of the market.79 [page 22]

Immanuel Kant (1724–1804) 1.22 Kant believed that animals did not have direct moral status and that therefore the law and people owed no direct duty toward them. Kant’s moral philosophy is introduced in his very important, if awkwardly titled, Groundwork for the Metaphysics of Morals published in 1785. One of the central propositions in Kant’s ethical system is that people and people alone are proper objects of respect and to

whom moral duties are owed. Kant believed that respect for others demands that we avoid all use of force, coercion and deception intended to override the autonomous choices of others. This belief has its basis in Kant’s view that humans are ends in themselves and should never be treated merely as a means to other humans’ ends. Kant formulated what he called the ‘categorical imperative’, which has several formulations but the best known is its first: I ought never to act in any way other than according to a maxim which I can at the same time will should become a universal law (that is, which I regard as applicable universally to everyone and not just me).80

Indirect duties to animals 1.23 However, Kant’s categorical imperative did not apply to animals as moral agents. ‘Moral agents’ is a term defined as: … people’s understanding and experience of themselves (and others) as agents whose morally relevant actions are based in goals and beliefs.81

It is thought that animals do not experience themselves and their actions as based in goals and beliefs and therefore they are not ‘moral agents’. And because they are not thought to be moral agents, it is also believed that animals are owed no direct duties. In his Lectures on Ethics, Kant explains: But so far as animals are concerned, we have no direct duties. Animals are not selfconscious and are there merely as a means to an end. That end is man … Our duties towards animals are merely indirect duties towards humanity. Animal nature has analogies to human nature, and by doing our duties to animals in respect of manifestations of human nature, we indirectly do our duty towards humanity … If he is not to stifle his human feelings, he must practice kindness towards animals, for he who is cruel to animals becomes hard also in his dealings with men.82

For Kant, indirect duties were duties toward something that is not a moral agent whereas direct duties were duties owed to some third party who is a moral agent. For example, I have a direct duty to my next-door neighbour Sally because she is a moral agent. But I do not have direct duties to Sally’s cat because the cat is not a moral agent.

[page 23] Therefore I owe only indirect duties toward Sally’s cat. If I were to act cruelly toward Sally’s cat, it would incline me to act cruelly toward other people. In terms of animals, Kant thought that humans only owed indirect duties toward them to the extent that those indirect duties facilitated direct duties. Therefore, we should not be cruel to animals because this would harm our development of good moral character (indirect). And the failure to develop good moral character would increase the likelihood of us treating other moral agents (to whom we owe direct duties) with cruelty. Kant’s views are persuasive because at their heart are powerful notions of respect and dignity toward humans. Humans are ends in themselves and not to be treated as mere objects or as a means to someone else’s ends. Animals ‘free ride’ within this conceptual framework because they benefit from reflected kindness. This position is similar to contemporary animal ‘welfarist’ views, which acknowledge that although animals do not possess legal rights and are not owed direct duties, they are not to be treated cruelly and their suffering must be minimised.

Kant and Aristotle 1.24 Earlier in the chapter when we considered Aristotle’s approach to animals, we noted that he proposed a ‘scale’ or ranking of living creatures (scala naturae: see 1.7). We noted that some scholars concluded that because they were very much lower on that scale, animals were therefore able to be used by humans.83 However, we also noted that other scholars disagreed, arguing instead that although: Aristotle does rank lives [he] does not hold in general that one species exists for the sake of another. Each species nature (or characteristic form of life) is its end.84

Scholars such as Catherine Osbourne suggested that simply

because humans have more specialised functions that animals, it would be a mistake to think that humans are ‘more advanced’ than animals: For Aristotle, there is no such thing as evolution: the species are fixed and each fully formed member of a species has all the functions that it is good for such a thing to have, so as to live a full life being what it is.85

Aristotle’s view that all living creatures are organised to both maintain themselves and flourish in ways that are appropriate to each creature is similar to Kant’s idea that people are ends in themselves and are not to be used as a means to someone else’s ends. Does this mean that it would be possible to re-appropriate Aristotle’s philosophy and use it to modify Kant’s notion of direct duties by extending those duties to animals? Or is it possible to find in Kant’s ethical system some ground for extending duties toward animals? [page 24]

Animals as a means to human ends 1.25 Recall that in his Lectures on Ethics, Kant said that animals are merely a means to an end and that end is for human purposes. But we have also seen that Kant warned against humans behaving in ways that will cause them to treat other humans as a means to their ends. Some scholars believe that there is an internal contradiction in Kant’s views in relation to animals. If they are regarded as ‘things’ to be used as a means to human ends, then won’t this attitude mean that we will also tend to see other people as a means to our ends? This is the argument put by Alexander Broadie and Elizabeth Pybus: [Kant’s] argument, put briefly, is to the effect that if human beings maltreat animals

they will acquire a tendency to use rationality (in themselves or in other people) as a means. But, according to Kant, animals are, in a technical sense, things, and consequently are precisely what we should use as means. His argument therefore is that if we use certain things, viz animals, as means, we will be led to use human beings as means.86

Other scholars disagree, maintaining that Kant never suggested that it is wrong to use animals as means, such as sheep dogs, donkeys carrying loads, etc. Rather, they say that for Kant the maltreatment of animals is wrong because it will lead people to maltreat other people to whom they owe direct duties.87 There have been attempts by contemporary scholars to demonstrate how Kant’s ethical system can accommodate some sort of animal welfare stance.88 However, while Kant’s views represent a significant step forward in thinking about animals, they do not provide an adequate foundation for a more comprehensive animal ethic. This is because in order to provide direct duties for animals, Kant’s views about the source of moral value would have to be enlarged to elevate animals to the status of beings that are owed direct duties.89 The principal difficulty with attempts to enlarge Kant’s ethical system to accommodate more direct duties toward animals is that these result in either attenuating Kant’s views to breaking point or placing so many qualifications on his reasoning that his original thought is emptied of its content. As one scholar has suggested, this has resulted in distinguishing ‘Kant the man from Kantianism the theory’ and then manipulating the theory into a form that ‘Kant the man’ would no longer recognise.90 Despite its limitations, Kantian thinking is kinder to animals than the utilitarian ethical system that was to follow, and it is to this that we now turn. [page 25]

Jeremy Bentham (1748–1832)

1.26 Born in 1748 in England, Jeremy Bentham was a philosopher, jurist and social reformer who advocated the abolition of slavery, equal rights for women and the abolition of corporal punishment. He was an animal lover from an early age. John Bowring was a childhood friend of Bentham and, later in life, wrote a text on Bentham’s works that contained anecdotes from Bentham’s childhood.91 Bowring recorded that: The mice were encouraged by Bentham to play about in his workshop. I remember when one got among his papers, that he exclaimed: ‘Ho! Ho! Here’s a mouse at work; why won’t he come into my lap? — but then I should be stroking him when I ought to be writing legislation, and that would not do.’92

It has been suggested that Bentham was ‘perhaps the modern Western tradition’s first major philosophical theorist of animal entitlements’.93

A common capacity for suffering 1.27 Bentham argued that animals were capable of experiencing pleasure and pain and that it was therefore senseless to exclude animals from ethical consideration simply because they did not have the capacity for rational thought. In his famous work Introduction to the Principles of Morals and Legislation,94 Bentham suggested that the species to which a creature belongs is as irrelevant as race for ethical purposes, and that neither species nor race provided a valid reason to deprive a sentient being of a decent life: The day may come when the rest of the animal creation may acquire those rights which never could have been witholden from them but by the hand of tyranny. The French have already discovered that the blackness of the skin is no reason a human being should be abandoned without redress to the caprice of a tormentor. It may one day come to be recognised that the number of the legs, the villosity of the skin, or the termination of the os sacrum are reasons equally insufficient for abandoning a sensitive being to the same fate. What else is it that should trace the insuperable line? Is it the faculty of reason or perhaps the faculty of discourse? But a full-grown horse or dog, is beyond comparison a more rational, as well as a more conversable animal, than an infant of a day or a week or even a month, old. But suppose the case were otherwise, what would it avail? The question is not, Can they reason? Nor, Can they talk? but, Can they suffer?95

This last sentence is important. By relying on sentience and the

capacity to feel pain as the guiding principle of ethical action, Bentham extended the scope of subjects [page 26] of ethical action beyond humans. For Bentham, our commonality with animals in suffering is the crucial issue. This was a major advance on the philosophies of both Aristotle and Kant, which, as we have seen, extended ethical concern to moral subjects identified as those with the capacity for reason and self-reflection. By focusing on the capacity for suffering, Bentham established a commonality between animals and humans that did not exist for Aristotle and Kant.

Utilitarian ethic 1.28 is:

Bentham’s guiding principle was one of utilitarianism, that

The rightness or wrongness of an action was to be judged entirely in terms of its consequences (so that motives, for instance, were irrelevant); that good consequences were those that gave pleasure to someone while bad consequences were those that gave pain to someone; and therefore that in any situation, the right course of action to pursue was the one that would maximise the excess of pleasure over pain or else minimise the excess of pain over pleasure.96

Utilitarianism involves evaluating each action by its utility in the sense of the capacity for that action to generate the consequences of either an increase in happiness or a decrease in suffering. It can be summarised as ‘the greatest good for the greatest number’. Two of the major foundations of utilitarian philosophy are ‘consequentialism’ and ‘sum ranking’. Consequentialism is described in the quote above; that is, the right course of conduct is the one that maximises the excess of happiness or pleasure. ‘Sum ranking’ involves aggregation and considers that the right course of

conduct is the one that brings the total amounts of desired result to the maximum number of people.97

Utilitarian ethic and animal welfare 1.29 We noted above that utilitarian philosophy represented a major advance in the thinking about animals and animal suffering. Indeed, one of the foremost exponents of animal welfare, Peter Singer, is a utilitarian philosopher, often drawing controversial conclusions in given situations,98 but employing its principles to advocate the cause of animal welfare.99 We will explore Peter Singer’s ideas in more detail in the next chapter. However, despite the attraction of utilitarian approaches to animal welfare, there are very significant problems with its practical application. In deciding whether particular conduct is ‘good’ or ‘bad’, the choice-maker aggregates or puts together all of the pleasure or pain that will flow from the conduct. The person then chooses the course of conduct that produces the largest pleasure on average. But just what factors go into the calculation of pleasure and pain? Assume we are considering whether the practice of scientific experiments on animals is appropriate. In making this determination, we have to aggregate the pleasure and pain that would [page 27] be experienced by both humans and animals involved in the industry. If the practice were to be abandoned, then scientists might be out of work, medical cures may be lost and people may die, or at least continue to suffer, as a result of the absence of testing. There may be vast economic consequences to pharmaceutical companies in the form of increased costs of

medicines to people. Some people may not be able to afford the medicines and suffer as a result. The problem is clear. Utilitarian philosophy would permit practices such as animal farming, scientific experimentation and medical research, in which the suffering of the animals (that have no moral rights) is outweighed by the benefits that accrue to a greater number of humans. Under the aggregation principle, the suffering experienced by the animals would be outweighed by the aggregated pleasure experienced by humans, whether in the form of pleasurable diet or availability of medicines and cures for diseases. As Heather Fieldhouse concluded: Utilitarianism, after all, affords no rights or fundamental protections to anyone, except the right to have one’s interests given equal consideration in the grand calculation.100

There are other, more subtle difficulties in using utilitarian principles as a basis for animal welfare. For example, what is meant by ‘pleasure’ and ‘pain’? Is it possible for a battery hen to even comprehend that a better way of life might exist? Utilitarian philosophy does not adequately address other dimensions of what it means to live a meaningful life, such as dignity, movement, affection and community.101

Albert Schweitzer (1875–1965) 1.30 One of the most outstanding individuals who lived through the turbulence of the 19th and 20th centuries was Albert Schweitzer, who possessed doctorates in music, philosophy, theology and medicine. Turning his back on a lucrative career as a concert organist and theologian, Schweitzer re-trained as a medical doctor and travelled to Lambarene in Gabon, Africa, where he dedicated the remainder of his life to helping African villagers. Schweitzer was awarded the Nobel Peace Prize in 1953 and used the prize money to build a hospital at Lambarene. Of all his achievements and accomplishments in theology,

music and philosophy, it has been suggested that the formulation of his ethic ‘reverence for life’ was Schweitzer’s most outstanding achievement.102 What is this ethic of ‘reverence for life’ and what is its relationship with animal welfare? Schweitzer was unhappy with the assumptions that underpinned much of European thinking about ethics; particularly the assumption that humanity was on an ‘upward’ [page 28] trajectory, progressing through ever-increasing levels of maturity. Schweitzer believed that Europeans were living on the glories of past philosophical insights and, without contributing to the development of ethics, that society was in decline. He initially started writing a text titled Wir Epigonen (‘We the Inheritors of the Past’), but quickly decided that the barbarity of the First World War proved his thesis and thus made the book redundant.103 For Schweitzer, ‘civilization’, which he defined as the ethical perfecting of the individual and of society, can only benefit humanity if humanity strives after ethical ends — thereby sharing in the blessings brought by material progress — and becomes master of the dangers which accompany that striving: But what is the nature of the world-view on which the universal will to progress and the ethical alike are founded in which they are linked together with the other? It consists in an ethical affirmation of the world and of life. What is world-and lifeaffirmation?104

After much internal struggle, and while on a steamboat, Schweitzer recorded his struggle and eventual answer, an answer contained in the phrase ‘reverence for life’: Lost in thought I sat on the deck of the barge, struggling to find the elementary and universal conception of the ethical which I had not discovered in any philosophy. Sheet after sheet I covered with disconnected sentences … Late on the third day, at the very moment when, at sunset, we were making our way through a herd of hippopotamuses, there flashed upon my mind, unforseen and unsought the phrase:

‘Reverence for Life’. The iron door had yielded: the path in the thicket had become visible. Now I had found my way to the idea in which world-and-life-affirmation and ethics are contained side by side.105

Reverence for life 1.31 Put simply, Schweitzer’s ethic of ‘reverence for life’ starts from the recognition that we all have the urge to ‘become’, to ‘will to live’, to exert ourselves in the various spheres of our lives. As we will see, Schweitzer’s ethic of reverence for life was inspired by Jesus’s ‘golden rule’ of doing to others only what you would wish done to yourself, and also by the philosophy of the Jain religion discussed earlier. Schweitzer admired the Jain religion for its care and concern for animals. Even though we have the will to exert ourselves in the various spheres of our influence, in that exertion we also come into contact with the spheres of all other living creatures who are exercising their own will to live. In this struggle: We have no right to inflict suffering and death on another living creature unless there is some unavoidable necessity for it, and that we ought all of us to feel what a horrible thing it is to cause suffering and death out of mere thoughtlessness. The exhibiting of trained animals I abhor. What an amount of suffering and cruel punishments the poor creatures have to endure in order to give a few moment’s pleasure to men devoid of all thought and feeling for them.106

[page 29] Within this context, ‘reverence for life’ is explained by Marvin Meyer and Kurt Bergel as follows: Ethics then, entails reciprocity: Revere the life of the other, Schweitzer says, as you revere your own life: maintain and encourage the life of the others as you maintain and encourage your own life.107

How does this relate to animal welfare? Schweitzer himself was convinced that animals would only benefit from the ethical striving of humans if that striving recognised that ethics was not only concerned with the way humans treated other humans: Slowly in our European thought comes the notion that ethics had not only to do

with mankind, but with the animal creation as well. This begins with St Francis of Assisi. The explanation which applies only to man must be given up. Thus we shall arrive at saying that ethics is reverence for all life.108

Schweitzer believed that the distinctions drawn by Aristotle, Kant and Descartes between life, reason and self-consciousness, which in turn determined who and what was owed moral or ethical behaviour, was faulty: The great fault of all ethics hitherto has been that they believed themselves to have to deal only with the relations of man to man. In reality however, the question is what is his attitude to the world, and all life that comes within his reach. A man is ethical only when life, as such, is sacred to him, that of plant and animals as that of his fellow-men, and when he devoted himself helpfully to all life that is in need of help. Only the universal ethic of the feeling of responsibility in an ever-widening sphere for all that loves, only that ethic can be founded in thought.109

Enlarging one’s love in an ‘ever-widening sphere’ is an aspiration that remains theoretical until it is implemented in the circumstances of particular cases. Schweitzer’s subsequent writings addressed exactly this situation.

Reverence for life and animal welfare 1.32 Schweitzer developed the implications of his reverence for life ethic throughout his writings, but particularly in The Philosophy of Civilization.110 In this text, Schweitzer provided advice on the application of reverence for life in several practical circumstances,111 as outlined below. [page 30] Animals used in medical and scientific experiments 1.33 Regarding the use of animals in medical and scientific experiments, Schweitzer’s advice was as follows: 1. Those who use animals for medical or scientific research ‘ought never to rest satisfied’ with the consolation that the experiments are for the greater human good. 2. To the contrary, each animal has, through its pain, rendered

a service to humans, and has therefore created a new and unique relationship of solidarity between itself and humans. 3. The result of an animal’s sacrifice is to create a fresh obligation on each of us to do as much good as possible to animals in whatever way possible. 4. It is the duty of the scientist to seriously consider whether it is absolutely necessary to sacrifice any given animal. 5. Sacrificing animals for the sake of expediency or in wasteful duplication is to be condemned in the strongest terms. Animals used as beasts of burden 1.34 On animals who are used as beasts of burden, Schweitzer had this to say: 1. The suffering of animals pressed into service for the sake of humans is not just the concern of the user of the animal. Rather, that animal’s suffering is the concern of all. 2. No user of an animal should inflict suffering on the animal that they are not willing to take full responsibility for. 3. Given the extensive nature of animal suffering, none of us can say that such suffering is none of our business. To the contrary, we are all guilty of suffering that is inflicted on animals used solely for our benefit. 4. We should never become so complacent as to accept that the amount of suffering experienced by animals in society is ‘just the way it is’. To the contrary, all people should search for opportunities to relieve the suffering of animals and to atone for the great amount of suffering animals have already endured at the hands of humans.

Further reading Ancient civilisations and animals generally K Armstrong, The Great Transformation: The Beginnings of our Religious Traditions, Alfred A Knopf, New York, 2006.

A Harden, Animals in the Classical World: Ethical Perspectives from Greek and Roman Texts, Palgrave Macmillan, United Kingdom, 2013. Herodotus, The Histories, revised ed, Penguin Classics, Penguin Books, London, 2003. S Newmeyer, Animals in Greek and Roman Thought: A Sourcebook, Routledge, Oxford, 2011.

[page 31] C Osbourne, Dumb Beasts and Dead Philosophers: Humanity and the Humane in Ancient Philosophy and Literature, Oxford University Press, Oxford, 2007. M Petropoulou, Animal Sacrifice in Ancient Greek Religion, Judaism, and Christianity: 100 BC to AD 200, 2008, Oxford University Press, Oxford, 2008.

Rome Marcus Cicero, ‘Letter to M Marius’ (E Shuckburgh, transl) in C W Eliot (ed), Letters, Vol XI, Harvard Classics, P F Collier and Sons, New York, 1909–14. G Shipley, J Vanderspoel, D Mattingly and L Foxall, The Cambridge Dictionary of Classical Civilization, Cambridge University Press, Cambridge (UK), 2008. T Gomperz, The Greek Thinkers: A History of Ancient Philosophy, John Murray, London, 1920. T McEvilley, The Shape of Ancient Thought: Comparative Studies in Greek and Indian Philosophies, Allworth Press, New York, 2002.

Greece T Gomperz, The Greek Thinkers: A History of Ancient Philosophy, John Murray, London, 1920. T McEvilley, The Shape of Ancient Thought: Comparative Studies in Greek and Indian Philosophies, Allworth Press, New York, 2002. J S Strong, The Experience of Buddhism: Sources and Interpretations, 3rd ed, Wadsworth/Thomson Learning, Belmont, 2008.

India D Mitchell, Buddhism: Introducing the Buddhist Experience, Oxford University Press, Oxford, 2002.

J S Strong, The Experience of Buddhism: Sources and Interpretations, 3rd ed, Wadsworth/Thomson Learning, Belmont, 2008.

Middle Ages R McInerny, Thomas Aquinas: Selected Writings, Penguin Classics, London, 1998. R Wade, ‘Animal Theology and Ethical Concerns’ (2004) (2) Australian E-Journal of Theology.

Animal trials E Cohen, ‘Law, Folklore and Animal Lore’ (1986) 110 Past and Present 6. P Dinzelbacher, ‘Animal Trials: A Multidisciplinary Approach’ (2002) XXXII(3) Journal of Interdisciplinary History 405. E P Evans, The Criminal Prosecution and Capital Punishment of Animals: The Lost History of Europe’s Animal Trials, William Heinemann Ltd, London, 1906. J Girgen, ‘The Historical and Contemporary Prosecution and Punishment of Animals’ (2003) 9 Animal Law 97.

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Descartes A Cottingham, ‘A Brute to the Brutes? Descartes’ Treatment of Animals’ (1978) 53 Philosophy 551. R Descartes, Discourse on Method and Meditations on First Philosophy, D Weissman (ed), Yale University Press, New Haven, 1996. P Harrison, ‘Descartes on Animals’ (1992) 167(42) The Philosophical Quarterly 219.

Immanuel Kant A Broadie and E Pybus, ‘Kant’s Treatment of Animals’ (1974) 49 Philosophy 275. H Fieldhouse, ‘The Failure of Kantian Theories of Indirect Duties to Animals’ (2004) II(2) Animal Liberation and Policy Journal 1. I Kant, ‘Duties to Animals and Spirits’ in Lectures on Ethics (L Infield, transl), Harper and Row, New York, 1963.

Jeremy Bentham

J Bentham, Introduction to the Principles of Morals and Legislation, J H Burns and H L A Hart (eds) Methuen, London, 1982. B Magee, ‘The Utilitarians’ in The Story of Philosophy, Dorling Kindersley, London, 2001. M Nussbaum, ‘Animal Rights: The Need for a Theoretical Basis’ (2001) 114 Harvard Law Review 1506 (book review of S M Wise, Rattling the Cage: Toward Legal Rights for Animals, Perseus Books, Cambridge (US), 2000, pp xiii, 362).

Albert Schweitzer J Brabazon, Albert Schweitzer: A Biography, 2nd ed, Syracuse University Press, Syracuse, 2000. C Joy, ‘The Sacredness of All that Lives’ in Albert Schweitzer: An Anthology, Adam and Charles Black Ltd, London, 1952. M Meyer and K Bergel (eds), Reverence for Life: The Ethics of Albert Schweitzer for the Twenty-First Century, Syracuse University Press, Syracuse, 2002.

1. 2. 3.

4. 5.

6. 7.

8. 9. 10. 11.

P Singer, Animal Liberation, Pimlico, London, 1995, p xvi. ibid. Thereby demonstrating the accuracy of George Santayana’s observation that ‘those who cannot remember the past are condemned to repeat it’: G Santayana, The Life of Reason, Vol 1, Constable Publishers, London, 1905–1906. And not just early humans. Track two on rock group Steely Dan’s 1976 album The Royal Scam is titled The Caves of Altamira. J Shelton, ‘Spectacles of Animal Abuse’, in G Campbell (ed), The Oxford Companion of Animals in Classical Thought and Life, Oxford University Press, United Kingdom 2014, p 1. Herodotus, The Histories, revised ed, Book Two, Penguin Classics, Penguin, London, 2003, p 122. A McDonald, ‘Animals in Egypt’, in G Campbell (ed), The Oxford Companion of Animals in Classical Thought and Life, Oxford University Press, United Kingdom, 2014, p 2. A Harden, Animals in the Classical World, Palgrave MacMillan, United Kingdom, pp 103–4. K Armstrong, The Great Transformation: The Beginnings of Our Religious Traditions, Alfred A Knopf, New York, 2006, p vx. M Petropoulou, Animal Sacrifice in Ancient Greek Religion, Judaism, and Christianity: 100 BC to AD 200, Oxford University Press, Oxford, 2008. G Shipley, J Vanderspoel, D Mattingly and L Foxall, The Cambridge Dictionary of Classical Civilization, Cambridge University Press, Cambridge (UK), 2008, p 50.

12. 13. 14. 15.

16. 17.

18. 19. 20. 21. 22. 23. 24. 25.

26.

27.

28. 29. 30. 31. 32.

33.

R Ryder, Animal Revolution, Basil Blackwell, Cambridge (US), 1989, p 22. Marcus Cicero, ‘Letter to M Marius’ (E Schuckburgh, transl) in C W Eliot (ed), Letters, Vol XI, Harvard Classics, P F Collier and Sons, New York, 1909–14. Pliny the Elder, The Natural History, circa 77–79 CE. J Shelton, ‘Spectacles of Animal Abuse’, in G Campbell (ed), The Oxford Companion of Animals in Classical Thought and Life, Oxford University Press, United Kingdom, 2014, p 2. T Holland, Rubicon: The Triumph and Tragedy of the Roman Republic, Abacus Press, United Kingdom, 2004, p 284. Rome organised the capture and transportation of exotic animals for blood sports on a truly industrial scale, often involving the military; M MacKinnon, ‘Supplying Exotic Animals for the Roman Amphitheatre Games’ (2006) 6 Mouseion Series III 1. M C Howatson, The Oxford Companion to Classical Literature, 2nd ed, Oxford University Press, Oxford, 1989, pp 476–7. B Russell, History of Western Philosophy, Allen and Unwin, London, 1961, p 52. T McEvilley, The Shape of Ancient Thought: Comparative Studies in Greek and Indian Philosophies, Allworth Press, New York, 2002, p 98. T Gomperz, The Greek Thinkers: A History of Ancient Philosophy, John Murray, London, 1920, pp 126–7. B Russell, History of Western Philosophy, Allen and Unwin, London, 1961, p 52. J Maclean Todd, Voices from the Past: A Classical Anthology, Readers Union, London, 1956, pp 102–3. B Russell, History of Western Philosophy, Allen and Unwin, Suffolk, 1961, p 51. G Shipley, J Vanderspoel, D Mattingly and L Foxall, The Cambridge Dictionary of Classical Civilization, Cambridge University Press, Cambridge (UK), 2008, p 737. It should also be noted that Siddhartha Gautama, the historical Buddha, was said to have remembered all his past lives while attaining enlightenment, and in the 20th century, the American psychic Edgar Cayce was alleged to possess similar abilities. Likewise, practitioners and patients of hypnotic regression therapy invariably report having experienced past lives. Diogenes Laertius, The Lives and Opinions of Eminent Philosophers (R D Hicks, transl), Volume II, Book XX, Loeb Classic Library, Harvard University Press, Cambridge (US), 1925. Aristotle, History of Animals, On the Parts of Animals, On the Motion of Animals, On the Gait of Animals and On the Generation of Animals: see the Aristotle Collection (A L Peck, transl), Loeb Classical Library, Harvard University Press, Cambridge (US), (1965–1991). Aristotle, The Politics (T A Sinclair, transl), Penguin Classics, Penguin, London, 1962, Book I, pp viii [256b7], 78–9. C Singer, A Short History of Biology, Oxford University Press, Oxford, 1931. A Lovejoy, The Great Chain of Being: A Study of the History of an Idea, Harvard University Press, Cambridge (US), 1936, pp 55–8. R Ryder, Animal Revolution: Changing Attitudes Towards Speciesism, Basil Blackwell, Oxford, 1989, p 22. M Nussbaum, ‘Animal Rights: The Need for a Theoretical Basis’ (2001) 114 Harvard Law Review 1506 at 1517 fn 43 (book review of S M Wise, Rattling the Cage: Toward Legal Rights for Animals, Perseus Books, Cambridge (US), 2000, pp xiii, 362). ibid at 1519.

34. 35. 36. 37. 38. 39.

40. 41. 42. 43. 44. 45. 46.

47.

48. 49. 50.

51. 52. 53. 54. 55.

C Osbourne, Dumb Beasts and Dead Philosophers: Humanity and the Humane in Ancient Philosophy and Literature, Oxford University Press, Oxford, 2007, pp 101–2. M Nussbaum, ‘Animal Rights: The Need for a Theoretical Basis’ (2001) 114 Harvard Law Review 1506 at 1518. M Meyer and K Bergel (eds), Reverence for Life: The Ethics of Albert Schweitzer for the Twenty-First Century, Syracuse University Press, Syracuse, 2002, pp 184–206. D Mitchell, Buddhism: Introducing the Buddhist Experience, Oxford University Press, Oxford, 2002, p 12. See J S Strong, The Experience of Buddhism: Sources and Interpretations, 3rd ed, Wadsworth Publishers/ Thomson Learning, Belmont, 2008. J Powers, ‘Introduction to Buddhism’ in A Bruce (ed), One World — Many Paths to Peace: Interfaith Symposium with His Holiness the Dalai Lama, ANU E-Press, Canberra, 2009, p 86. P Harvey, An Introduction to Buddhist Ethics, Cambridge University Press, Cambridge, 2000, pp 170–4. D Mitchell, Buddhism: Introducing the Buddhist Experience, Oxford University Press, Oxford, 2002, p 71. R Thurman, ‘Edicts of Ashoka’ in F Eppsteiner (ed), The Path of Compassion: Writings on Socially Engaged Buddhism, 2nd ed, Parallax Press, Berkeley, 1988, p 113. M Menocal, The Ornament of the World, Black Bay Books, Boston, 2002. T Aquinas, Summa Theologica, Second Part of the Second Part, Question 64, Vols I– V, Benziger Brothers, New York, 1948. R McInerny, Thomas Aquinas: Selected Writings, Penguin Classics, Penguin, London, 1998, pp 360–1. R Rubenstein, Aristotle’s Children: How Christians, Muslims and Jews rediscovered Ancient Wisdom and Illuminated the Dark Ages, Harcourt Books, Orlando, 2003, p 198. M Nussbaum, ‘Animal Rights: The Need for a Theoretical Basis’ (2001) 114 Harvard Law Review 1506 (book review of S M Wise, Rattling the Cage: Toward Legal Rights for Animals, Perseus Books, Cambridge (US), 2000, pp xiii, 362). R Ryder, Animal Revolution: Changing Attitudes Towards Speciesism, Basil Blackwell, Oxford, 1989, p 32. T Aquinas, Summa Theologica, Second Part of the Second Part, Question 64, Vols I– V, Benziger Brothers, New York, 1948. The ‘theological virtues’ are faith, hope and charity (love), and the ‘cardinal virtues’ are prudence (discernment), justice, fortitude and temperance (self-mastery). See Catechism of the Catholic Church, 2nd ed, St Paul’s Publications, Homebush, 1997, Article 7, pp 443–50. A syllogism is a form of logical argument in which the conclusion is established through inference from two or more premises. M Dods, The City of God by St Augustine, The Modern Library, New York, 1950, Book 1, p 26 at [20]. T Aquinas, Summa Theologica, Second Part of the Second Part, Question 64, Vols I– V, Benziger Brothers, New York, 1948. T Aquinas, Summa Contra Gentiles (A Pegis, transl), University of Notre Dame Press, Indiana, 1991, Book iii, p 113. R Wade, ‘Animal Theology and Ethical Concerns’ (2004) Australian eJournal of Theology 2.

56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70. 71. 72. 73. 74. 75. 76. 77. 78. 79. 80. 81. 82. 83.

A Linzey, ‘Christian Protectionism’ in L Kemmerer, In Search of Consistency: Ethics and Animals, Brill, Leiden, 2006, p 225. B Russell, History of Western Philosophy, 2nd ed, Allen and Unwin, London, 1961, p 444. J Girgen, ‘The Historical and Contemporary Prosecution and Punishment of Animals’ (2003) 9 Animal Law 97 at 99. E P Evans, The Criminal Prosecution and Capital Punishment of Animals: The Lost History of Europe’s Animal Trials, William Heinemann, London, 1906, p 18. E P Evans, The Criminal Prosecution and Capital Punishment of Animals: The Lost History of Europe’s Animal Trials, William Heinemann, London, 1906. ibid, p 186. E Cohen, ‘Law, Folklore and Animal Lore’ (1986) 110 Past and Present 6 at 15. P Dinzelbacher, ‘Animal Trials: A Multidisciplinary Approach’ (2002) XXXII(3) Journal of Interdisciplinary History 405 at 414. E Cohen, ‘Law, Folklore and Animal Lore’ (1986) 110 Past and Present 6 at 17. ibid at 17. ibid at 18. Plato, The Laws (T Saunders, transl), Penguin Classics, Penguin, London, 1970, Book Nine, pp 391–2. P Beirne, ‘The Law is an Ass: Reading E P Evans’ The Medieval Prosecution and Capital Punishment of Animals’ (1994) 2(1) Society and Animals 27. J Girgen, ‘The Historical and Contemporary Prosecution and Punishment of Animals’ (2003) 9 Animal Law 97 at 121. P Dinzelbacher, ‘Animal Trials: A Multidisciplinary Approach’ (2002) XXXII(3) Journal of Interdisciplinary History 405 at 421. J Girgen, ‘The Historical and Contemporary Prosecution and Punishment of Animals’ (2003) 9 Animal Law 97 at 122–3. P Beirne, ‘The Law is an Ass: Reading E P Evans’ The Medieval Prosecution and Capital Punishment of Animals’ (1994) 2(1) Society and Animals 27 at 43–4. R Descartes, Discourse on the Method and Meditations on First Philosophy, D Weissman (ed), Yale University Press, New Haven, 1996. A Cottingham, ‘A Brute to the Brutes? Descartes’ Treatment of Animals’ (1978) 53 Philosophy 551. P Harrison, ‘Descartes on Animals’ (1992) 167(42) The Philosophical Quarterly 219. J Vrooman, Rene Descartes: A Biography, G P Putnam’s Sons, New York, 1970, p 194. A Cottingham, ‘A Brute to the Brutes? Descartes’ Treatment of Animals’ (1978) 53 Philosophy 551. D Ibrahim, A Return to Descartes: Property, Profit and the Corporate Ownership of Animals (2007) 70 Law and Contemporary Problems 89 at 90. A Bruce, ‘Animals and the Trade Practices Act: The Return of Descartes’ Ghost’ [2009] 2 Australian Animal Protection Law Journal 26. A C Grayling, What is Good? The Search for the Best Way to Live, Weidenfeld and Nicolson, London, 2003, p 135. M Pasupathi and C Wainryb, ‘Developing Moral Agency Through Narrative’ (2010) 53 Human Development 55. I Kant, ‘Duties to Animals and Spirits’ in Lectures on Ethics, L Infield (transl), Harper and Row, New York, 1963, p 239. A Lovejoy, The Great Chain of Being: A Study of the History of an Idea, 1936,

84.

85. 86. 87. 88. 89. 90. 91.

92. 93. 94. 95. 96. 97. 98. 99. 100. 101. 102. 103. 104. 105. 106. 107. 108. 109. 110.

Cambridge University Press, Cambridge (US), 1936, pp 55–8. M Nussbaum, ‘Animal Rights: The Need for a Theoretical Basis’ (2001) 114 Harvard Law Review 1506 at 1517 fn 43 (book review of S M Wise, Rattling the Cage: Toward Legal Rights for Animals, Perseus Books, Cambridge (US), 2000, pp xiii, 362). C Osbourne, Dumb Beasts and Dead Philosophers: Humanity and the Humane in Ancient Philosophy and Literature, Oxford University Press, Oxford, 2007, pp 101–2. A Broadie and E Pybus, Kant’s Treatment of Animals (1974) 49 Philosophy 275 at 382. T Regan, ‘Broadie and Pybus on Kant’ (1976) 51 Philosophy 471. A Wood, ‘Kant on Duties Regarding Nonrational Nature’ (1998) 72 Proceedings of the Aristotelian Society Supplement 189. H Fieldhouse, ‘The Failure of Kantian Theories of Indirect Duties to Animals’ (2004) II(2) Animal Liberation and Policy Journal 1. J Sebo, ‘A Critique of the Kantian Theory of Indirect Moral Duties to Animals’ (2004) II(2) Animal Liberation and Policy Journal 1. J Bowring, The Works of Jeremy Bentham: Published under the Superintendence of his Executor John Bowring, William Tait, Edinburgh, 1895; Elibron Classics Series, Adamant Media Corporation, 2005. ibid, p 81. M Nussbaum, ‘Animal Rights: The Need for a Theoretical Basis’ (2001) 114 Harvard Law Review 1506 at 1523. J Bentham, Introduction to the Principles of Morals and Legislation, J H Burns and H L A Hart (eds), Methuen, London, 1982. ibid, Ch 17. B Magee, ‘The Utilitarians’ in The Story of Philosophy, Dorling Kindersley, London, 2001, p 183. B Russell, History of Western Philosophy, Allen and Unwin, London, 1961, p 740. P Singer, Rethinking Life and Death, The Text Publishing Company, Melbourne, 1994. P Singer, Animal Liberation, Random House, New York, 1975; Pimlico, London, 1995. H Fieldhouse, ‘The Failure of Kantian Theories of Indirect Duties to Animals’ (2004) II(2) Animal Liberation and Policy Journal 1. See, generally, M Nussbaum, ‘Animal Rights: The Need for a Theoretical Basis’ (2001) 114 Harvard Law Review 1506 at 1530–2. M Meyer and K Bergel (eds), Reverence for Life: The Ethics of Albert Schweitzer for the Twenty-First Century, Syracuse University Press, Syracuse, 2002, p xii. J Brabazon, Albert Schweitzer: A Biography, 2nd ed, Syracuse University Press, Syracuse, 2000, p 264. A Schweitzer, My Life and Thought, reprint, Guild Books, London, 1956, pp 134–5. ibid, p 141. C Joy, ‘The Sacredness of All that Lives’ in Albert Schweitzer: An Anthology, Adam and Charles Black, London, 1952, p 268. M Meyer and K Bergel (eds), Reverence for Life: The Ethics of Albert Schweitzer for the Twenty-First Century, Syracuse University Press, Syracuse, 2002, p xii. C Joy, ‘The Sacredness of All that Lives’ in Albert Schweitzer; An Anthology, Adam and Charles Black, London, 1952, p 262. A Schweitzer, My Life and Thought, reprint, Guild Books, London, 1956, p 143. A Schweitzer, The Philosophy of Civilization (C T Campion, transl), Prometheus

Books, Amherst, 1987. 111. Outlined in T Regan and P Singer (eds), Animal Rights and Human Obligations, Prentice-Hall, New Jersey, 1976, p 137.

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2 Development of Contemporary Animal Law ____________________________ Objectives of this chapter This chapter is intended to: • • • • • • • • • • •

demonstrate that how we think about animals directly influences how we treat animals; emphasise that the task of exploring contemporary thinking about animals is a purposive exercise; consider how and why contemporary liberal democratic society is considered by many to be hostile to the interests of animals; explore the two principal but contrasting contemporary philosophical schools of thought about animals — the ‘welfare-based’ and ‘rights-based’ approaches; explain the ‘vocabulary’ employed by members of these schools of thought in advocating for the interests of animals; provide an understanding of the advantages and disadvantages of Peter Singer’s ‘preference utilitarian’ philosophy that underpins the ‘welfare’ based approach to animals; provide an understanding of the implications of contractarian theories of justice and capabilities-based theories developed by John Rawls and Martha Nussbaum respectively, for animal ethics; contrast those theories with a consideration of the advantages and disadvantages of Tom Regan’s ‘rights’ based philosophical approach to animals; explore some of the limitations and challenges to these schools of thought; introduce you to the emerging field of ‘wild law’ and its implications for animal welfare; provide resources for further reading and research.

[page 34]

Introduction 2.1 Do animals have the right to not be treated as mere instruments to human ends, such as satisfying food and clothing preferences or being used as test subjects for scientific experimentation? In Chapter 1, we explored the way people of ancient societies understood the nature of animals and their relationship with them. From the earliest Greek thinkers up until Albert Schweitzer and his important ethic ‘reverence for life’, we noticed the gradual ‘evolution’ or change in the philosophies of animal thought. In this chapter, we continue establishing the important philosophical foundations for our exploration of how animals and the law interact. We will consider how contemporary philosophers think about animals and explore the consequences of their conclusions for the well-being of animals. Is there is something about the way liberal democratic societies are founded that is disadvantageous for animals? What is it about the philosophical foundations of our societies that deprives animals of ‘rights’ and that absolves humans of extending ‘duties’ toward animals? What is it about these same foundations that makes it so difficult for contemporary thinkers to advocate for the welfare of animals in our society? How do contemporary philosophers approach the issues of animal welfare and animal interests? These are some of the issues we will be exploring in this chapter.

How we think about animals influences how we treat them 2.2 How and what we think about animals has a direct influence on how we treat them; that is, on how we behave toward them and what we do for those animals in the industrial, legal and regulatory spheres of society. Whether animal advocates lobby governments to ban factory farming altogether, or whether they

urge for more humane measures within existing practices, depends very much on how those advocates and their supporters think about animals. Advocates are more likely to call for an end to the industrial exploitation of animals if they believe that animals have moral rights and, therefore, that a duty of non-harm is owed to them by humans. Other advocates believe that animals do not have rights as such but should be objects of welfare since they can suffer. These advocates are more likely to work ‘within the system’ to bring about the gradual improvement in the welfare of animals. Therefore, the approach to animal interests that advocates take very much depends on their philosophical understanding of what an animal is and what place that animal occupies in the social/ethical structure of human society. However, contemporary thinking about the status of animals within human society is neither consistent nor unanimous. The result is that even when two or more schools of thought use the same term (such as ‘liberation’), they often mean it in different ways. For example, animal welfare advocates might rely on utilitarian philosophy to advocate for legislative reform of intensive animal farming, specifically to enlarge the size of cages for chickens and thus ‘liberate’ chickens from suffering. However, animal rights advocates might rely on a form of rights-based philosophy to advocate for ‘liberation’ of animals through the complete elimination of intensive animal farming. [page 35] At this point, it might be helpful to remind ourselves that the point of exploring these philosophical approaches to animal welfare is not to construct abstract and empty theories. Nor is the point to construct complicated theories that make it difficult, if

not impossible, for people to understand what is being said. It has been observed that: One feature many such works [about the philosophy of animal ethics] have had in common is the reliance of their authors upon contentious theoretical stances. There have been utilitarian, Kantian and contractarian arguments, with theses and arguments in philosophy of language, philosophy of mind, and cognitive science called upon for supporting evidence. Such an approach is hazardous to the extent that it makes it appear that persons interested in the issue must first be convinced of one or more complicated and controversial theories, and must also follow and agree with a further abstruse line of argument supposed to lead from the theories to practical conclusions.1

A purposive exercise 2.3 Throughout this chapter specifically and this text generally, we are attempting to come to grips with how and why people think about animals in contemporary society. This is a purposive exercise. That is, our task is not to become abstract philosophers, but to: • recognise the way that animals are treated in society; • understand that such treatment is the result of certain ways of thinking about animals; • identify the major schools of thinking that influence legal, regulatory and industry approaches to the use and exploitation of animals; • advocate intelligently for one’s own understanding of the relationship between human society and animals; and • engage in constructive debate about areas of industry, legal and regulatory reform. In order to achieve these objectives, we need to take the time and trouble to understand the way serious philosophers consider the nature and role of animals. And to do that, we need to understand not only the ‘vocabulary’ or terminology of various philosophical schools of thought, but also to realise that the views of these schools — such as the utilitarian and rights-based theories — are not conclusions in themselves, but intellectual supports in reaching conclusions about the way animals should be treated. Therefore, one way in which the views of animal advocates may

be analysed is through the differing theoretical approaches they employ in their campaign for animal protection and welfare. It is not an easy task to explain and evaluate the different philosophical ‘schools’ of thought regarding animals. Understanding the basic philosophical tenets of these schools of thought requires that we do two things: 1. We have to understand the different vocabulary and terms those schools use when they talk about animals. [page 36] 2. We have to understand the tools or mechanisms that each school uses in evaluating other philosophies relating to animals. As we work through these two tasks, always keep in mind the point is to understand how different philosophical theories regarding the status of animals influences the legal, political and social action that might be taken for those animals by advocates. This will become especially clear when we turn to legal and regulatory issues in Australian animal law in the following chapters.

Vocabulary of contemporary animal thought 2.4 Our first task is to explore some of the basic ‘vocabulary’ used by different philosophical schools in thinking about animals. In particular, we need to understand what they mean when they use terms like ‘rights’, ‘moral standing’ and ‘moral agency’. We also need to understand what making ‘morally relevant distinctions’ means and in what sense the terms ‘welfare’ and ‘liberation’ are used. If you believe that animals are ‘moral agents’ then you will also believe they possess ‘moral standing’ with certain ‘rights’, and,

unless there is some ‘morally relevant distinction’, it is not permissible to preserve the rights that accrue to humans while also alienating or violating those rights accruing to animals. However, if you believe that animals are not moral agents and do not possess rights, then there is a morally relevant distinction between humans and animals (there is some quality of being human that is not possessed by animals and that attracts rights) that permits the different treatment of animals. Thus there is no need for the application of the ‘principle of equal consideration’. Perhaps you don’t think animals should possess rights in the same sense as humans possess rights, but neither do you think animals are just instruments to be used for human ends and needs. Perhaps you believe there is some ‘middle ground’ philosophy between exploitation on the one hand and moral rights on the other — a middle ground that recognises that animals have ‘interests’ that should be protected. But philosophical approaches to animals and their interests can sound very theoretical. How do we ‘test’ the parameters of these ways of thinking about animals? One way of exploring the practical consequences of theories about animals is to take an extreme example, the ‘lifeboat scenario’: If a lifeboat can only hold four sentient beings and there are four people and one animal wanting to board it, which sentient being is left behind to drown and why? See the discussion at 2.12.

‘Rights’ and ‘moral standing’ 2.5 In Western societies, ‘rights’ are accorded to beings that are moral agents (see 1.23). If you are a moral agent, you are entitled to be treated with ‘minimum standards of acceptable behaviour’2 and your rights must be taken into account in determining any course of action. [page 37]

‘Rights’ are sometimes contrasted with ‘interests’ in the sense that ‘rights’ are considered ‘valid moral claims that must always be respected, in contrast to interests that need not always be respected’.3 When animal advocates talk about ‘rights’ or ‘duties’ that are owed by humans toward animals, they have some idea of what the terms actually mean. It is one thing to assert that ‘I have a right to X’, but it is another thing to explain the nature of that right, where it comes from, why you should be entitled to it and why other people should be held responsible for breaching that right. There is extensive literature devoted to the idea of ‘rights’ in both the everyday sense of the term and in the specialised ‘legal’ sense of the term. Whether an entity is a moral agent and therefore entitled to certain rights is contingent on rights theories, of which there are four common formulations, outlined below.

Rights as advantages and duties at law 2.6 First, American legal academic Wesley Hohfeld argued that a person possesses a legal right when they possess any theoretical advantage conferred by recognised rules over another person. In this scheme, you look at how various legal concepts are correlated and opposed to each other, particularly with claims and duties. If you owe me money, the law imposes a duty on you to pay me and a right on me to collect the money from you.4 There are two elements to this notion of moral agency: first, personal autonomy; and second, the presence of liberty or power. For Hohfeld, what ‘activates’ a moral right or claim is the ability of the rights-holder to exercise personal autonomy or conscious freedom in deciding whether to exercise power to enforce that right or claim. Therefore, it would not make sense to confer ‘rights’ on those who cannot or do not have the capacity to take conscious advantage of those rights. It would ‘[mislead] us into imagining

that freedom and control belong morally to those incapable of acting freely or exercising control’.5 The second feature of moral agency is the presence of a liberty or power vested in the holder of moral rights. For example, it would be wrong to experiment on humans without their consent because it violates their right to personal integrity. However, humans, as moral agents, can waive that right through giving consent. Only moral agents can exercise the liberty to refuse or to give consent to certain behaviour. Since an animal cannot exercise such liberty or personal power, it is meaningless to speak of them as being moral agents.6 Thus, for Hohfeld, personal autonomy and the capacity to exercise power are morally relevant distinctions.

Contractarian duties 2.7 Second, English philosopher John Rawls in his seminal text A Theory of Justice7 proposed a ‘contractarian’ understanding of society in which it is assumed that [page 38] individuals ‘agree’ to certain rules and obligations that form the basis of their society. Rawls’s contractarianism assumes that humans are rational creatures who are capable of demonstrating reciprocity in considering each other’s interests under the social contract. Rawls asks people to imagine that they are consciously creating rules by which they intend to live as a society. However, those people are behind a ‘veil of ignorance’ in which they cannot know whether, as a result of their decisions, they might be advantaged or disadvantaged when the veil is lifted. The idea is that ‘the absence of foreknowledge is geared to exclude certain kinds of prejudice and unfairness’. Rawls believed that uncertainty about where agents themselves would be placed would lead to caution. Agents would try to ensure that, however badly they were

situated, the harms to which they would be exposed should be minimised.8 On this understanding of rights, animals are not members of society since they are not rational creatures capable of understanding or accepting moral obligations toward every other member of society.9 In addition, some critics of Rawls’s theory assert that because animals are outside the social contract, they are there to be used like other natural resources.10 However, other scholars claim that Rawls’s writings do support a version of welfare for animals outside of ‘rights talk’. These scholars point out that although Rawls did exclude animals from his understanding of the social contract, it does not follow that animals are able to be exploited by humans in whatever manner they choose.11 In recent years, investigation into the implications of Rawls’s theory of justice for animals seems to have stalled somewhat, prompting titles in the recent literature such as Rawls, Animals and Justice: New Literature, Same Response.12 What makes it so difficult for contractualists generally and Rawlsian philosophers specifically to sensibly advocate for the inclusion of animals in the social contract is a form of philosophical bind inherent in the very parameters of contractualist theory. In the context of Rawls’s theory of justice, members of society are owed justice because they are presumed to be rational agents. As rational agents they are members of the social contract. However, as Cynthia Stark points out, members of society that do not possess rational agency are also owed justice.13 If principles of justice are mediated through contractualism, then why are infant humans and intellectually impaired humans considered to be moral agents? And perhaps more uncomfortably, if some humans that would not be considered rational agents (and presumably outside the

social contract) but are nevertheless considered to be moral agents, then why aren’t animals also considered to be moral agents? [page 39]

Martha Nussbaum and the capabilities approach 2.8 The search for an answer to this conundrum has led prominent Harvard philosopher Martha Nussbaum, herself a contractualist scholar and former pupil of John Rawls, to search outside the contractualist framework for a resolution to the conundrum. Simon Hailwood describes Nussbaum as ‘the most influential contemporary political philosopher to depart from the widespread agreement with Rawls’s view that we owe animals ‘compassion’ and ‘humanity’ but not justice’.14 Nussbaum’s point of departure is her formulation of what is called the ‘capabilities approach’ to animal welfare and is based on the work of Nobel Laureate Amartya Sen in evaluating quality of life based on personal capacity.15 Nussbaum developed her capabilities approach in several stages: in her 2000 text Women and Human Development: The Capabilities Approach;16 a 2001 Harvard Law Review article reviewing Steven Wise’s text Rattling the Cage;17 in a chapter in her 2004 edited text Animal Rights;18 and in her 2006 text Frontiers of Justice.19 Although Women and Human Development was intended to challenge gender inequality for women, it established the basic framework for a capabilities approach then expanded through later scholarship to include other disadvantaged humans and then animals, particularly in chapter 6 of Frontiers of Justice. Nussbaum’s starting point is a fundamental critique of the consequences of utilitarianism generally and Rawlsian contractualism specifically. These undesirable consequences include the exclusion of animals as well as intellectually disabled humans from the social contract and hence as moral agents owed

political rights.20 In such a world, the persons to whom duties of justice are owed are limited to the rational actors who framed those principles of justice.21 According to Nussbaum, what is missing are the ‘richer ties of sympathy, benevolence, care, dependence and love of justice that binds society’.22 These qualities do not necessarily relate to principles of justice, but to the notion of what it means to flourish as a sentient being. In this sense, Nussbaum frames her capabilities approach in [page 40] light of the Aristotelian notion of what it means to live the good life within one’s own limitations and capabilities.23 As it applies to animals, Nussbaum’s capabilities approach argues that ‘the desired outcome for non-human species if that their dignity is respected and that they are given the opportunity to flourish within the limitations of their innate capabilities’.24 Nussbaum enumerates 10 principles that form the basis of the capabilities approach:25 (i) life, (ii) bodily health, (iii) bodily integrity, (iv) senses, imagination and thought, (v) emotions, (vi) practical reason, (vii) affiliation, (viii) other species, (ix) play and (x) control over one’s environment. In this way, Nussbaum’s focus is on ‘respecting the dignity of individuals by securing minimal requirements for flourishing unpacked in terms of capabilities’.26 What is said to make the capabilities approach superior to traditional utilitarianism is the ability to focus on outcomes (expressed in terms of flourishing) without the requirement to aggregate what is ‘the good’ outcome across many individuals.27 The result is explained by Simon Hailwood: ‘we have direct duties of justice (not mere compassion) to shape human institutions so as to progressively ensure all sentient animals

receive their entitlements to threshold levels of the capabilities required for them to flourish with dignity’.28 Some scholars argue that Nussbaum’s capabilities approach overcomes the weaknesses in Rawlsian contractualism and provides a coherent platform for including animals within the social contract outside of the framework for justice.29 Other scholars disagree, arguing that Nussbaum’s approach is idealistic but ‘implausible and unappealing’30 at best and incoherent at worst.31 The principal difficulty with Nussbaum’s approach lies in the societal framework needed to support the capabilities. These 10 capabilities precede the flourishing of protected political rights in the sense that if they are compromised or missing, then political or legal rights supporting flourishing are insecure. As James Boettcher explains, in a society in which women are repressed through violence, the ability to control their environment is lacking. In those circumstances, women cannot be said to flourish in that environment.32 This is particularly problematic for animals that are farmed and then slaughtered to satisfy the diet and taste preferences of humans. For these animals, what is lacking [page 41] is the entitlement to ‘continue their lives, whether or not they have such a conscious intent’.33 This is the very first of Nussbaum’s 10 principles. Nussbaum herself appears to have difficulty in resolving the issue. In her 2001 review of Wise’s text, Nussbaum states ‘I think we need to take a firm stand against the meat industry and its cruel practices. There is no doubt that creatures subject to factory farming lead hideous lives’.34 In her 2004 chapter in Animal Ethics, Nussbaum describes the

issue as a very difficult case, stating: the capabilities approach agrees with utilitarianism in being most troubled by the torture of living animals. If animals were killed in a painless fashion after a healthy and free-ranging life, what then? … It seems unclear that the balance of considerations supports a complete ban on killings for food.35

The use of terms such as ‘unclear’, ‘balance of considerations’ and ‘complete ban’ suggests that Nussbaum would be prepared to tolerate some form of painless processing of animals to satisfy the food preferences for humans. Nussbaum has stated: ‘I share Singer’s doubts about whether a painless death is really a deprivation’.36 However, later in her 2006 text Frontiers of Justice, and in relation to painless slaughter, Nussbaum states that this does not mean that ‘no harm is done by painlessly killing a creature in its prime … animals who are killed for food are typically killed in the prime or even their youth’.37 Anders Schinkel has written about the difficulties that Nussbaum faces in extending her capabilities approach to food animals slaughtered to satisfy the diet and taste preferences of humans.38 Schinkel concludes that however attractive for animals the capabilities approach might be, it does not resolve the conundrum of killing animals for food. He concludes that Nussbaum is unable to resolve the difficulty: ‘Nussbaum repeatedly speaks of “killing for food” as a difficult case, in all three texts, but does not really address the issue, simply because she does not have a clear answer’.39 And acknowledging that these ‘inconsistencies … undermines the model’s coherence and Nussbaum’s claim that her approach goes beyond the rights versus utilitarian divide’40 appears to be as far as scholars have taken the application of Nussbaum’s capabilities approach to animals slaughtered to provide food for humans. Indeed, Marcel Wissenburg suggests that ‘one may deem Nussbaum’s project, both the

[page 42] explicit and the implicit part, hopelessly utopian or even absurd — a judgement that may simply reflect present prejudice’.41 That Nussbaum’s creative use of the Aristotelian notion of flourishing as an alternative to the exclusionary nature of contractualism is simultaneously praised and excoriated reveals the deeper problem with all philosophical schools of thought. Philosophers can and have found fault with almost every aspect of this or that ethical theory of animal rights. The creation and continual criticism of new and emerging systems of animal ethics has prevented the formation of a philosophical consensus about the place of animals within Western societies generally and how Western societies should resolve the particular issues associated with the slaughter of animals for food.

Kantian autonomy 2.9 Third, German philosopher Immanuel Kant proposed the idea of dignity as the basis of rights. Human beings are rational creatures capable of exercising free will. Humans are therefore autonomous creatures who are deserving of respect. Kantian autonomy — that is, the right not to be used merely as an instrument for someone else’s ends — rests on an assumption that people are capable of exercising free will to make rational choices. Tom Regan, the principal exponent of the ‘rights-based’ school of thought employs a modified form of Kant’s ‘categorical imperative’ in assigning rights to animals. We will return to Regan’s views later in this chapter.

Interests-based rights 2.10 Fourth, some contemporary animal advocates argue that all things that are capable of having ‘interests’ are also capable of

possessing rights. This view rests on the conclusion drawn from the following syllogism: • all beings with interests can have rights; • all animals can have interests; • therefore, animals can have rights. On this view, since animals have interests, variously defined to include freedom from pain and an interest in flourishing as sentient beings, they are ‘lives-in-themselves’ and therefore entitled to enforceable rights.

‘Morally relevant distinctions’ 2.11 What justifies treating groups of individuals in different ways? How we treat different groups of entities depends on the existence of ‘morally relevant distinctions’. Morally relevant distinctions are ‘differences between individuals or groups of individuals that warrant treating those individuals differently … When there is no morally relevant distinction, individuals ought to be treated similarly in similar situations’.42 If there are no morally relevant distinctions between members of a class of entities, all entities within that class ought to be treated consistently. [page 43] However, if one class of entities is to be treated differently from another class of entities, that can only be permitted if there are morally relevant distinctions between the two classes. If there are no morally relevant distinctions between humans and animals, advocates suggest that there can therefore be no basis for the industrial exploitation of animals. But what characteristic or attribute is enough to justify a morally relevant distinction? In Chapter 1, we saw that sentience and the

presence of rational consciousness represented a morally relevant distinction between animals and humans. It is said that exploiting animals for agriculture and scientific experimentation is justified because animals do not have the same intellectual and cognitive abilities that humans possess. But consider the following claims:43 • Some of the ways in which we use animals in agriculture and scientific experimentation that promote human welfare are morally permissible. • It would be morally wrong to use people whose cognitive abilities are no greater than the cognitive abilities of those animals in the same way. • If it is morally permissible to treat one group of moral subjects in a certain way but wrong to treat another group in that same way, then some difference between them explains the difference in permissible treatment. • No difference between the animals we use in research and agriculture, on the one hand, and people with equivalent cognitive abilities, on the other, explains this difference in the moral status of our actions. How do we adjudicate between these competing claims? As we will see in our discussion of Peter Singer’s ‘preference utilitarianism’, making morally relevant distinctions based on higher cognitive abilities, such as the capacity for rational thought, largely rest upon an unsustainable contradiction.

‘Principle of equal consideration’ 2.12 The ‘principle of equal consideration’ might be expressed as follows: ‘We must treat like cases alike except when a morally relevant difference supports treating them differently’. Is there a morally relevant difference between animals and humans that supports treating animals differently? Both animal ‘welfare’ advocates and animal ‘rights’ advocates admit that the principle of equal consideration requires that we

include the interests or preferences of animals when deciding on whether to engage in certain practices involving animals (such as scientific experimentation). However, they differ in the application of that principle. Because welfare advocates would sanction limited practices of, for example, animal exploitation where the interests of humans outweighs the interests of animals in the conduct of that experimentation, there is a morally relevant distinction that can be drawn between humans and animals. For welfare advocates, therefore, that morally relevant distinction is sufficient to neutralise the principle of equal consideration. [page 44]

Lifeboat scenarios 2.13 Philosophical schools of thought are often accused of being too abstract and removed from the practical dimension of everyday life, where even the philosophers themselves disagree with one another: To many observers, all of philosophy may well appear to be a series of protracted and irresoluble debates. The state of the controversies in animal ethics can be no exception. Both animal liberationists and anti-animal-liberationists appear to make a number of assumptions in order to make their cases at all. As things stands, neither side will accept the basic premises of the other, and therefore inevitably find the other’s view to be unconvincing.44

How do you ‘test’ the dimensions and consequences of any given philosophical system? One method is to see how that system would operate in a special situation or in an extreme emergency; ‘when exploring moral theories in extreme and unlikely situations, inconsistencies and previously unimagined difficulties may surface’.45 In exploring different philosophical approaches to animals, we will consider what terms such as ‘inherent value’, ‘moral agency’ and ‘life-in-itself’ actually mean in a situation where five sentient

beings, including one animal, are attempting to board a lifeboat that only has space for four. Which sentient being is left behind to drown? Lifeboat scenarios assist in:46 • finding logical extremes within a given theory; • finding weak points in a particular theory; • discovering inconsistencies in the application of a theory; • isolating relevant factors in a moral conundrum. However, there are many critics of the lifeboat scenario as a tool for exploring the dimensions of an ethical problem. Gary Francione maintained that: … the emergency scenario is unsuitable for application to our day-to-day relationship with other animals precisely because it is a fabricated conflict. The results of emergency decisions, made in a state of panic, would produce artificial measurements of moral evaluations. The more important question is how we act in everyday situations. Emergency scenarios simply fail to instruct us regarding the best way to lead our daily lives.47

Summary of key terms 2.14 Still to come in the chapter, we will see that the leading proponent of welfare-based approaches to animals is Australian philosopher Peter Singer. As a ‘preference [page 45] utilitarian’, Singer advocates that the preferences of animals should be taken into account in evaluating behaviour that affects those preferences. The leading proponent of rights-based approaches is Tom Regan who argues that animals are ‘subjects-of-a-life’ and should be regarded as ‘moral patients’ toward whom rights and duties are owed. Whatever school of thought advocates subscribe to, they are all in agreement that the policies of contemporary liberal democratic

societies facilitate the industrial exploitation of animals and denies them rights. Table 2.1 summarises some of the key terms and definitions we have explored so far in this chapter. Table 2.1 Key terms and definitions in philosophical approaches to animals Term

Meaning

Use of the term

The existence of a legal relationship between party A and party B imposing a duty upon one and a right upon the other. The possession of legal obligation against another creates rights

However, animals do not owe nor can they exercise rights because they cannot act freely in assuming those duties and rights. Therefore, they have no rights

Rights: 1. Hohfeld’s notion of advantage and duty at law

Humans exist as part of a ‘social 2. Rawls’ ‘contractarian’ contract’ and assume rights obligations qua each other

Animals lack the rational capacity to accept moral obligations toward others. Therefore animals cannot be considered part of the social contract, and have no rights

3. Kantian autonomy

Humans exercise free will in pursuit of autonomy and thus deserve respect. Humans have the right not to be used as instruments for others’ ends

Animals do not have the rational capacity to exercise free will in pursuit of rights. Animals are not owed direct duties but indirect duties. To harm an animal predisposes a human to harm another human

4. Interest-based rights

All sentient beings with interests have rights, all animals have interests, therefore all animals have rights

Because animals have interests they have rights, especially rights to freedom from pain and to flourish

Moral agency

A person’s understanding and experience of themselves and others as agents whose morally relevant actions are based in goals and beliefs

Because it is thought that animals do not experience themselves and their actions as being based in goals and beliefs, it is thought that they are not ‘moral agents’

[page 46] Table 2.1 Key terms and definitions in philosophical approaches to animals — cont’d Term Meaning Use of the term

Moral standing

Person A has moral standing in relation to person B if, in making decisions, person B takes person A’s interests into account for person A’s own sake rather than taking person A’s interests into account only because those interests benefit person B or another person

Animals do not have moral standing because, in making decisions, humans do not take animals’ interests into account for their own sake, but rather only to the extent that those interests will benefit animals’ owners

Morally relevant distinctions

The existence of some characteristic that permits discrimination between classes of entities

Some argue that the lack of cognitive abilities in animals is a morally relevant distinction permitting abrogation of their interests in favour of the interests of humans

Principle of equal consideration

We must treat like cases alike except where a morally relevant distinction supports different treatment

Rights theorists argue that there is no morally relevant distinction between humans and animals because both are sentient beings. Therefore, the principle of equal consideration requires the abolition of factory farming, for example, since we would not factory farm cognitively equivalent humans

Lifeboat scenario

A lifeboat can only hold four sentient beings but there are five sentient beings, including an animal, wanting to board. Which sentient being gets left behind and why?

A mechanism to test the parameters of a system of thought by positing an extreme situation that requires making moral choices

Where person B benefits from the performance of a duty to person A by person C

Animals are not owed direct duties, but benefit from indirect duties (since such duties are usually not to harm) owed by humans to other humans

Indirect duties

Limitations of Western liberal democratic societies for animals 2.15 Many scholars advocating for the welfare of animals consider that contemporary liberal democratic societies are founded upon principles that are inconsistent, if not outrightly hostile, to the welfare of animals.48 Why is this the case? [page 47] Our modern liberal democratic societies did not spring into existence overnight. The society in which we live in the 21st century is the outcome of centuries of social experimentation, revolution and reformation. What we call ‘modernity’ or the ‘modern world view’ had its origins in the scientific and philosophical advances in the 16th and 17th centuries, which was thought to be ‘the great formative era of modern philosophy, marked by the decline of medieval conceptions of knowledge and by the rise of the physical sciences’.49 In particular, our liberal democratic societies owe much of their intellectual foundations to the thoughts of John Stuart Mill, John Locke and Immanuel Kant. And it is the writings of these philosophers that have been employed to systematically exclude animals from a consideration of rights and welfare within our societies. How did this come about? Let’s consider the views of Mill, Locke, Kant and other key thinkers that have shaped 21st century approaches to animal rights. Table 2.2 will provide you with an overview of the views of these key thinkers. Table 2.2 Key philosophical approaches to animals Philosopher

View

Implications for animals

Human freedom is key — liberal

Anthropocentric view where the

democratic governments should provide ‘neutral’ framework of rights to facilitate individual pursuit of freedom

interests of animals subordinated to freedom of humans to pursue their own ends

John Locke

Emphasised the importance of human rights flowing on to members of human society

Anthropocentric view where animals were not autonomous members of human society

Jeremy Bentham

Utilitarian. As regards animals, emphasised the capacity to feel pain rather than capacity for higher cognitive abilities

Broke with explicitly anthropocentric orientation, thereby enabling animals’ interests to be factored into evaluation of conduct

Peter Singer

‘Preference utilitarian’. Disciple of Bentham. Not just animal suffering that should be factored in, but also preferences of animals

Animals preferences to be accounted for. Those preferences outweigh human preferences in certain circumstances

Tom Regan

‘Rights theorist’. Animals might not be moral agents, but are ‘moral patients’

Animals are ‘subjects-of-a-life’ and are owed rights and duties

Gary Francione

‘Rights theorist’, more radical than Regan

All sentient beings are owed inalienable rights

Richard Posner

‘Soft utilitarian’. Animals do not possess rights, but should be subjects of empathy

Method of ensuring animals welfare is through enforcement of anti-cruelty laws

John Stuart Mill

[page 48] Table 2.2 Key philosophical approaches to animals — cont’d Philosopher

View

Implications for animals

Carl Cohen

Both welfarist and rights theorists are committing a ‘category confusion’ error in assigning rights to animals

Animals are of a different order of species than humans; different category of species. They have no rights

John Stuart Mill and the pursuit of human happiness 2.16 John Stuart Mill’s famous work On Liberty50 contains the famous dictum:

The only freedom which deserves the name is that of preserving our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to attain it.51

In contemporary liberal democracies, Mill’s idea of freedom has been interpreted to mean ‘moral neutrality’. According to this view, democratic governments should not try to form the character of their citizens, nor should those governments legislate or encourage any particular idea of what it means to be a ‘virtuous’ human. Rather, governments should provide a form of ‘neutral framework’ of rights within which people can choose their own ends.52 Within Mill’s framework of liberties, animals were seen as a means to human ends and for human preferences — chattels that could be owned, used and exploited by their owners.

John Locke, government and the pursuit of human happiness 2.17 The transition from an individualised way of thinking to the political organisation of society owes much to John Locke, an Englishman who was associated with the ‘Glorious Revolution’ of 1688 and whose writing, in turn, influenced the philosophical foundations of the French and American Revolutions. Locke was an empiricist, believing that we come to know something only through our senses interacting with external stimuli. Locke therefore believed that our understanding of the world is derivative; it comes from what our senses can perceive. Everything else is beyond our capacity to know. People are like blank slates, coming into the world without knowledge and gradually acquiring knowledge of the world through their contact with externally existent phenomena. And, even then, that knowledge can only be a working possibility because our experience of it may be subject to error. [page 49]

When the American ‘Founding Fathers’ drafted the United States’ Constitution, they specifically referred to Locke in their correspondence with each other.53 Locke’s theories translated easily into the political economy. He thought that governments had the express duty to preserve the rights and freedoms of human members of society. Tolerance of individual human rights and views was a significant feature of Locke’s political philosophy. Note throughout Locke’s emphasis on ‘choice’, ‘values’ and ‘pursuit of happiness’. It is humans who possess the intelligence and self-awareness necessary to make value choices and therefore to pursue their own happiness. In Chapter 1, we saw that it was this capacity for intelligent agency that was important for Kant in concluding that only humans are moral agents to whom we owe direct duties. Therefore the classic model of liberal individualism is: … infused with Enlightenment values and derives from liberal political theory. It tells of a formal commitment to the importance of human agency and autonomy and a correspondingly constrained state which respects the autonomy of the individual. This is a dignifying theory of society made up of persons who are creatures of reason, who are engaged in rational arms-length public relations of choice.54

The dominant characterisation of animals in the formative period of liberal democratic societies was one of property. As property, animals were at the mercy of their owners who possessed rights to sell or treat them largely as they wished. The view that it is humans who are at the centre of society, to the exclusion of animals, is called anthropocentrism. The presence of anthropocentrism in all utilitarian philosophies is alleged to be their weakness, since in a conflict between human and nonhuman interests it is the human interests that will be preferred.

Liberal democratic societies and animals as property 2.18 For animals living in liberal democratic societies focused as they are on individualism, the greatest problem is the undeniable anthropocentrism — the view that it is humans who stand at the centre of all considerations, that it is only human suffering and

preferences that must be taken into account, and only humans who are owed direct moral duties because they are the only beings capable of higher cognitive processes and of asserting and responding to rights. Unlike humans, animals are not autonomous, self-reflective individuals with the capacity for self-determination. In particular, animals are incapable of accepting moral responsibilities and duties toward humans and other animals. These limitations are the natural outcome of the views of Aristotle and Thomas Aquinas that we discussed in Chapter 1. As Steiner notes: At bottom the legal treatment of animals in liberal traditions codifies an understanding and evaluation of animals as instrumentalities for the satisfaction of human needs.

[page 50] This modern legal conception of animals echoes Aristotle’s view that animals exist expressly for the sake of human beings.55

Accordingly, within liberal democratic societies, animals are regarded as ‘property’ and ‘[t]o label something property is, for all intents and purposes, to conclude that the entity so labelled possesses no interests that merit protection and that the entity is solely a means to the end determined by the property owner’.56 One characteristic of property is its inability to enforce rights against its owners. For animals, the result is that as property: Humans are entitled under the laws of property to convey or sell their animals, consume or kill them, use them as collateral, obtain their natural dividends and exclude others from interfering with an owner’s exercise of dominion and control over them. A property owner’s treatment of an animal may ostensibly be limited by anticruelty laws, but property rights are paramount in determining the ambit of protection accorded to animals by law.57

The idea that animals are the property of humans remains entrenched in liberal democratic societies, with many contemporary philosophers and scholars maintaining that animals are inferior to humans because they lack the capacity for reason

and higher cognitive abilities that characterise ‘true’ members of human society.58 Therefore, animals are objects of legal concern as a function of their importance to present and future generations of humans. As such, any ‘rights’ that animals might have enjoyed are derivative, dependent on the interests of their owners.

Contrasting schools of thought — animal welfare and animal rights 2.19 There are essentially two schools of thought concerning the welfare of animals in liberal democratic societies. They are ‘animal welfarism’ and ‘animal rights’: There is today a major philosophical split among animal advocates, and two major branches of activism have developed as a result of this split. The first, commonly referred to as the animal welfare movement, draws support from Singer’s work and endeavours to secure the more humane treatment of animals. The newer branch of the animal advocacy movement, known as the animal rights or animals liberation branch, relies heavily on Regan’s philosophy and seeks to end all human use or exploitation of animals … [T]he individuals who adhere to each of these viewpoints have, at least on the surface, very different goals for the animal advocacy movement and very different strategies for how to achieve these goals.59

[page 51] While there are major differences between each school as regards advocacy for animals, both schools agree that the most critical issue for resolution is the systematic and industrial exploitation of animals for human ends; whether for food, clothing, cosmetics or medical and scientific testing. Neither school would advocate turning back the considerable personal and democratic freedoms that characterise liberal societies. Instead, both schools agree that: The task for contemporary legal and moral thought about animals is to confront and see to resolve the tension between liberal individualism and cosmic holism in such a way that the human community comes to acknowledge its obligations to

animals without sacrificing the considerable achievements of liberal theory in regulating human relations.60

Where these schools differ is in the approach that each takes to the identification and implementation of the human community’s ‘obligations to animals’. Let’s now consider the approach to animals taken by each of these schools of thought.

Animal welfarism 2.20 This school accepts the current legal paradigm of animals as personal property and would permit the use of animals for certain human ends. The goal of animal welfarism is to improve the conditions of animals in this use, in as far as minimising unnecessary pain and suffering. Activists attempt to achieve this goal through working within the system: The current prevailing attitude toward non-human animals … can be described as a legal welfarism. This is the notion, represented by and in various legal doctrines, that animals, which are the property of people, may be treated solely as means to ends by humans so long as this exploitation does not result in the infliction of ‘unnecessary’ pain, suffering or death. As property, non-human animals are meant to be used in a reasonable and efficient manner.61

The intellectual ‘pioneer’ of the welfarist position is Australian philosopher Peter Singer whose influential 1975 text Animal Liberation employed a modified form of utilitarian philosophy to argue that the interests and preferences of animals needed to be accounted for in determining a course of conduct that might affect them.

Peter Singer 2.21 Peter Singer is a philosopher in the utilitarian tradition of Jeremy Bentham. As covered in Chapter 1, utilitarian philosophy evaluates the moral ‘rightness’ or ‘wrongness’ of an action on its consequences. Therefore, utilitarian philosophy ‘regards an action as right if it produces as much or more of an increase in the happiness of all affected by it than any alternative action, and wrong if it does not’.62

2.22 Preference utilitarian. Utilitarian philosophy has a number of forms; classical, rule and preference utilitarianism. Peter Singer is a ‘preference utilitarian’, a version [page 52] that ‘judges actions, not by their tendency to maximise pleasure or minimise pain, but by the extent to which they accord with the preferences of any being affected by the action or its consequences’.63 What is the difference? Singer himself suggests that preference utilitarianism permits ‘finer distinctions’ to be made between competing courses of conduct than classical utilitarianism, discussed at 1.1.64 What does it mean to think as a preference utilitarian? Singer states that: My own interests cannot count for more, simply because they are my own, than the interests of others. In place of my own interests, I now have to take into account the interests of all those affected by my decision. This requires me to weigh up all these interests and adopt the course of action most likely to maximise the interests of those affected. Thus, at least at some level in my moral reasoning, I must choose the course of action that has the best consequences, on balance for all affected. … This is a form of utilitarianism. It differs from classical utilitarianism in that ‘best consequences’ is understood as meaning what, on balance, furthers the interests of those affected, rather than merely what increases pleasure and reduces pain.65

2.23 Capacity to experience pain and happiness. In his text Practical Ethics, Singer argues that humans should include the interests of animals when evaluating a particular course of action that might affect them.66 But what interests does he mean? Singer departs from the Aristotelian and Thomistic view that only those beings with higher cognitive functions are moral agents toward whom moral rights and duties are owed (see 1.15). While Aristotle and Aquinas would suggest that the capacity for rational thought and self-awareness is the basis on which morally

relevant distinctions can be made between humans and animals, Singer would strongly disagree: If possessing a higher degree of intelligence does not entitle one human to use another for his own ends, how can it entitle humans to exploit nonhumans for the same purpose?67

Instead, following Bentham, Singer holds that, like humans, animals have an interest in avoiding pain and suffering and in experiencing happiness: The capacity for suffering and enjoying things is a prerequisite for having interests at all. … It would be nonsense to say that it was not in the interests of a stone to be kicked along the road by a schoolboy. A stone does not have interests because it cannot suffer. … A mouse, on the other hand, does have an interest in not being tormented, because mice will suffer if they are treated in this way. If a being suffers, there can be no moral justification for refusing to take that suffering into consideration. … If a being is not capable of suffering, or of experiencing enjoyment or happiness, there is nothing to be taken into account. This is why the limit of sentience (using the term as a convenient, if not strictly accurate, shorthand for the capacity to suffer or

[page 53] experience enjoyment or happiness) is the only defensible boundary of concern for the interests of others.68

Therefore, Singer holds that if a being is sentient — that is, it is capable of experiencing pain and suffering as well as happiness — then there is no morally relevant reason for excluding their interests in evaluating conduct that affects those interests. It doesn’t matter whether the sentient being is a cow or a human. This is Singer’s ‘principle of equal consideration’. 2.24 Principle of ‘equal consideration of interests’. For Singer, all sentient beings have the capacity to experience pain and suffering and also happiness, as well as an interest in avoiding pain and suffering. Why is the preference of human sentient beings to be preferred over non-human sentient beings with the same interests? For Singer, excluding a non-human animal’s interest and preference not to experience pain simply because it is an

animal is the same nonsense as excluding the preference of a white or black person not to experience pain: From this point of view race is irrelevant to the consideration of interests; for all that counts are the interests themselves. To give less consideration to a specified amount of pain because that pain was experienced by a black person would be to make an arbitrary distinction. Why pick on race? Why not on whether a person was born in a leap year? Or whether there is more than one vowel in her surname? All these characteristics are equally irrelevant to the undesirability of pain from the universal point of view.’69

Because sentient beings are equal in their capacity to experience pain and suffering as well as happiness, there is no morally relevant distinction that can be drawn on the basis of higher cognitive abilities. Singer therefore concludes: We have seen that this principle [of equal consideration] implies that our concern for others ought not to depend on what they are like, or what abilities they possess. It is on this basis that we are able to say that the fact that some people are not members of our race does not entitle us to exploit them, and similarly the fact that some people are less intelligent than others does not mean that their interests may be disregarded. But the principle also implies that the fact that beings are not members of our species does not entitle us to exploit them, and similarly the fact that other animals are less intelligent than we are does not mean that their interests may be disregarded.70

Despite the apparent soundness of this conclusion, humans have little hesitation in exploiting animals because animals satisfy their taste, aesthetic and other preferences. And if it is true that humans really do made morally relevant distinctions on the basis of intellect, why aren’t intellectually disabled or seriously braindamaged humans exploited in ways similar to animals? 2.25 Spectre of ‘speciesism’. Peter Singer suggests that membership of a particular species is not a morally relevant distinction in evaluating whether to exploit animals because, like all sentient beings, animals have the capacity to experience pain and happiness. [page 54] However, while humans may intellectually agree with this

proposition and with its resulting requirement of equal consideration of interests, they nevertheless instinctively recoil at the suggestion that humans with equivalent cognitive abilities to animals (severely intellectually disabled) should also be exploited. Singer’s response is that humans exhibit a form of ‘speciesism’ that takes the aspect of a bias or prejudice in favour of the interests of one’s own species and against those of another species.71 This ‘bias’ or ‘prejudice’ manifests in the way humans ‘take an active part in, acquiescence in, and allow their taxes to pay for practices that require the sacrifice of the most important interests of members of other species in order to promote the most trivial interests of our own species’.72 Consequently, even though humans may theoretically support the idea that animals should not be made to suffer, in practice humans acquiesce in permitting wide-scale animal suffering to satisfy their own interests, no matter how insignificant. Let’s consider how Singer’s philosophy deals with some of those practices that subordinate the ‘most important interests’ of animals to the ‘most trivial interests’ of humans.

Application of Singer’s philosophy 2.26 In this section, we will specifically consider Singer’s approach to the animal farming industry that supplies meat and other animal products to satisfy human food and clothing preferences. In Chapter 9, ‘Animals as Food’, we will examine ‘factory farming’, which is a multi-billion dollar industry producing animal meat and eggs, clothing and other accessories for human requirements. It is also an industry that results in massive suffering for millions of animals.73 How does Singer’s ‘preference utilitarianism’ evaluate the animal farming industry? At the outset, he advocates a vegetarian diet for humans, asserting that carnivorous diets are not mandatory for humans.74

His approach may be summarised as follows:75 • The appropriate standard to be applied in choosing to participate in the industrial exploitation of animals is what will result in the greatest fulfilment of interests for the greatest number of sentient beings. • Animals have an interest in avoiding being harmed and killed to satisfy the preferences of humans for the taste of animal flesh and other products. • Because the suffering that is experienced by animals is equal to that of humans, the principle of equal consideration requires the preference on the part of animals to avoid that suffering to be taken into account. • The application of the principle of equal consideration therefore requires the elimination of most forms of institutional exploitation of animals in satisfying the food and clothing preferences of humans. [page 55] •

Because there is no morally relevant distinction between humans and animals when such preferences are taken into account, to continue to maintain and participate in ‘animal farming’ practices is a form of discrimination, and a form of ‘speciesism’. The preference for pleasure experienced by humans in eating animal flesh and in wearing clothing derived from animals is thus outweighed by the preference for continued life and sentience on the part of those animals that would otherwise be slaughtered to satisfy those human preferences. While this preference calculus might seem theoretically straightforward, critics maintain that Singer’s utilitarianism is unworkable in actual practice.

Criticism of Singer’s philosophy 2.27 There are three common criticisms of Singer’s views: 1. It is difficult to draw boundaries between beings that are sentient and beings that are not. Where does ‘sentience’ begin? What is the boundary? 2. It is difficult, if not impossible, to quantify the interests involved in the utilitarian equation. How do you definitively measure the pleasures and pains associated with an evaluation of certain conduct? 3. Even if it is possible to quantify competing interests, Singer’s views are still ‘anthropocentric’ and tend to favour humans. That is, his views do not guarantee the protection of any preferences that animals might have, only that such preferences will be taken into account in determining a course of action. And, in most cases, the preferences of humans will be determinative. Rights theorists also criticise utilitarian approaches to animal welfare because of the balancing of interests involved. Rights theorists assert that animals possess ‘rights’ that cannot be dismissed in the utilitarian equation and that to do so is to diminish those animals’ ‘practical autonomy’. 2.28 Where does sentience begin? We noted in Chapter 1 that Jeremy Bentham’s utilitarian philosophy represented a major advance over the Aristotelian and Thomistic views of animals. This is because utilitarian philosophers place their emphasis on the ability of an animal to suffer and experience pain rather than whether that animal can think: Like Bentham, Singer makes animal sentience the centrepiece of his moral theory: Any being that feels pain would be entitled to equal consideration as to the infliction of pain. … Singer argues that killing for sport and food consumption, where unnecessary for survival, is inconsistent with an ethic of care for animals that takes their interests seriously.76

However, what does ‘sentience’ mean? Is sentience the mental quality of being ‘self-aware’? If so, how do we measure which beings are self-aware or not? Singer himself:

… does not answer these questions. Instead, he notes that we are keeping braindead humans alive on expensive hospital machines while denying freedom of movement, adequate nutrition, mother’s care and life itself to otherwise healthy sentient animals. He

[page 56] concludes that the pressing question is not where to draw a new line, but how to begin the process of uprooting extant speciesist attitudes and actions.77

For Singer, it is enough that the animals currently being harvested and slaughtered to satisfy the lifestyle preferences of humans are most certainly self-aware, sentient and therefore capable of feeling pain. It is also sufficient that these animals exhibit a preference for avoiding pain and suffering while preferring physical comfort, freedom of movement and the comfort of their mothers. 2.29 Problem of quantification. Utilitarianism generally, and ‘preference utilitarianism’ specifically, requires the aggregation of the interests and preferences of each sentient being affected by the proposed course of conduct. The difficulty lies in quantifying the pleasure, pain and preferences of each sentient being. By way of example, let’s consider Singer’s suggestion that a vegetarian diet is morally preferable to a meat-based diet. Assume that we are considering a global shift to a vegetarian diet. How might this proposal be evaluated? To begin with, there would be substantial loss of income from many sectors of the economy. This includes not just the animal farmers themselves, but the farm factory employees and the employees of associated industries, such as metal workers that provide knives and other cutting/processing equipment, and transport workers. Further ‘down the line’, butchers and supermarket delicatessen operators would be affected. What about the loss to the families of those workers? What about the increased strain on the market in having to provide alternative employment?

Where do you draw the line when aggregating losses? Singer’s response to this problem is to separate out the issues. First, he addresses the issue of whether a meat-based diet is preferable to a vegetarian-based diet. In doing so, Singer weighs the pleasures and pains of eating flesh versus eating vegetables and concludes that there is no utilitarian gain for eating flesh.78 In terms of the economic loss flowing from the abolition of meat industries, Singer invites us to: Compare the indefinite prolongation of animal suffering with the once-only cost of a transition and I think that as long as we give the interests of animals equal consideration with similar human interests, the answer is clear.79

Despite this certainty, however, the comparison is not at all clear. Critics point out that the animal ‘agribusiness’ is already in existence and that to abolish it would be to cause massive harm to humans: These harms cannot fairly be removed from Singer’s utilitarian equation. If the equation has been worked out before the advent of agri-business, Singer could reasonably focus only on dietary matters, or world hunger, or on the conditions and deaths of animals, and it would have been clear that the animal-killing industries ought never to begin. However,

[page 57] in the early twenty-first century, this mammoth business cannot be eliminated without creating hardship for millions.80

The other difficulty lies in measuring the respective pleasures of meat-eaters and vegetarians. It may be that a vegetarian-based diet is healthier for people and this may translate into society advocating for a vegetarian diet. But ‘how might Singer measure Suzie’s preference for flesh eating against the society’s health interests in having citizens partake of a non-flesh diet’?81 2.30 Allegation of anthropocentrism. Anthropocentrism is at the heart of all utilitarian considerations because it places the feelings of humans at the centre of the calculus of competing considerations of interests or preferences. While the interests or

preferences of animals are included in the utilitarian calculus, the interests and preferences of humans are often considered superior to those of animals. Singer’s approach is therefore said to de-value the interests of animals as compared to the interests of humans: [Singer] has stated that he does not believe that animals have desires for their own futures or a ‘continuous mental existence’. In one such writing, Singer introduces the idea that the loss of an animal life is not as significant as the loss of a human life because ‘there is more to human existence than there is to bat existence’. Writings such as these reveal that Singer believes that human life is more valuable than animal life (although not necessarily that human interests are more important than animal interests) and that, if forced to choose between the two, he would always save the human life.82

If this conclusion is correct, in the lifeboat scenario Singer would then leave the animal behind to drown in order to preserve the space for a human. However, for animal ‘rights theorists’, this is a conclusion that would not automatically follow.

Animal rights theorists 2.31 There are different sub-schools of thought within the ranks of animal rights theorists. In essence, all rights theorists assert that animals are autonomous sentient beings that can be considered a ‘moral subject’ for the purposes of assigning and enforcing rights. However, rights theorists differ in defining what actually constitutes an animal as a morally significant subject. Where do you draw the line? The basic tenet of animal rights is that animals who can be considered autonomous subjects have rights, and humans have associated duties. Rights theorists differ on what makes an animal a morally significant subject and what specific entitlements these subject have; indeed, line-drawing between apes and rabbits, whales and sharks, based on their cognitive abilities is the hallmark of rights-based reasoning. As James Rachels observes in his essay, there are two distinct questions: ‘(1) where do we draw the line with respect

[page 58] to the kinds of animals to whom we have duties and (2) where do we draw the line with respect to the kinds of duties we should acknowledge’.83

The intellectual ‘pioneer’ of the animal rights theorists is the American philosopher Tom Regan. In his influential 1988 text The Case for Animal Rights,84 Regan critiques Peter Singer’s utilitarian philosophy as inadequate to the task of protecting animals and their interests.

Tom Regan and animal rights 2.32 Regan creates a philosophical framework supporting his belief that rights theory supplies the most solid moral basis for our duties to animals since animals are moral ‘patients’ to whom rights and duties are owed. We will need to work through Regan’s thoughts carefully in order to gain a clear understanding of his views. 2.33 Animals as ‘subjects-of-a-life’. First, Regan says that animals are ‘subjects-of-a-life’, in the sense that animals are: Conscious, psychologically unified, and have an experiential welfare that can go better or worse for them. They have value beyond their usefulness to others and so deserve respectful treatment. Since marginal human beings have the right not to be eaten, worn, or experimented on for the benefit of other human beings, so do animals of comparable or more advanced physiological capacities.85

Notice that Regan uses the expression ‘they have value beyond their usefulness to others’. This is a reference to Kant’s ‘categorical imperative’ that we discussed in Chapter 1 at 1.22. The difficulty for Regan is that Kant confined the application of the categorical imperative to ‘moral agents’; that is, to sentient beings with higher cognitive functions. Regan therefore extends the principle to animals. How does he do this? 2.34 Animals as ‘moral patients’. Regan goes on to suggest that: • animals, like humans share ‘preference interests’ — that is, animals exercise a form of consciousness that expresses itself in behaviour intended to fulfil their preferences for happiness and to avoid suffering; and • animals, like humans, share ‘welfare interests’ — that is, ways of behaving that benefit them independently of their preferences for or against such behaviour.

Regan distinguishes between ‘moral agents’ (who fit the Kantian notion of a moral agent) and ‘moral patients’ who cannot do what is either right or wrong and are unable to assert their rights. These patients can be either disabled humans or animals. But moral patients share both preference and welfare interests with moral agents. It’s still wrong to torture an intellectually disabled child, even though the child would not be considered a moral agent. Therefore, according to Regan, we owe to all individuals possessing an experiential welfare interest a prima facie duty not to harm them, given their ability to suffer harm [page 59] and to exercise preference autonomy (the ‘harm principle’: see 6.37).86 And since animals are like humans in being moral patients, Regan articulates his ‘formal justice principle’: ‘We must treat like cases alike except when a morally relevant difference supports treating them differently’.87 Regan suggests that: • moral agents and patients have equal inherent value that is unrelated to the intrinsic value of their pleasures or preference satisfactions (the ‘inherent value postulate’); and • the attempt to deny or attribute less inherent value to moral patients is arbitrary given that both moral agents and patients are beings with both welfare and preference interests. Given these characteristics that are shared by animals, Regan concludes: These shared morally relevant characteristics, together with the formal justice principle, underlie a direct duty we owe to all individuals with inherent value to treat them in ways respectful of their value [‘the Respect Principle’]. Therefore we have a prima-facie duty not to harm such individuals — because we ‘fail to treat [individuals with inherent value] in ways that respect their value if we treat them in ways that detract from their welfare’.88

Regan maintains that animals are ‘subjects-of-a-life’ with interests of their own that matter as much to them as similar interests matter to humans.

Regan’s process 2.35 From this discussion, we can bring together the reasoning process Regan advances in advocating for animal rights: • ‘Formal justice principle’ — ‘we must treat like cases alike except when a morally relevant difference supports treating them differently’. Is there a morally relevant difference between animals and humans that supports treating animals differently? • Animals share both preference and welfare interests with humans and, although they cannot assert their rights, they are nevertheless ‘moral patients’. • ‘Inherent value postulate’ — moral agents and patients have equal inherent value that is unrelated to the intrinsic value of their pleasures or preference satisfactions. • ‘Respect principle’ — the right to just treatment is a basic right; that is, individuals with inherent value possess an equal and absolute basic right to respectful treatment. • ‘Harm principle’ — we owe to all individuals possessing an experiential welfare interest a prima-facie duty not to harm them, given their ability to suffer harm and to exercise preference autonomy. • Therefore, in applying the formal justice principle, and based on the respect principle, the inherent value postulate and the harm principle, we violate [page 60] individual rights if we regard moral agents or patients as mere receptacles of intrinsic value who can be treated with

disrespect (Kantian approach) or harmed to produce optimal aggregate consequences (utilitarian).

Differences in welfarist and rights approaches 2.36 By now it should be clear to you that although both welfarist and rights theorists advocate for the improvement of animals’ interests, there are significant differences in their approaches. Let’s explore some of those differences by first noting that: The rights view differs from utilitarianism in cases where there is a conflict of interest. According to utilitarianism such conflicts should be decided by giving most weight to the strongest interests. The rights view on the other hand claims that it is never justified to sacrifice the interests of one individual to benefit another.89

Both Singer and Regan would like to see justice and standards of moral behaviour apply to non-human animals: Like Singer, Tom Regan seeks to extend our notions of justice and morality to animals. Unlike Singer, Regan does not see the need to raise the issue of rights. According to Regan, it is rights that must be extended to animals. He thus rejects Singer’s utilitarianism.90

In employing preference utilitarianism, Peter Singer sees nothing wrong with treating animals as a means to human ends provided that the preferences of those animals are included in determining whether a certain course of action should be undertaken. Therefore his approach: … does not preclude the morality of a decision to exploit a human or non-human so long as animal interests are weighed fully before the decision is made. If the balance of interests weighs in favour of painful or intrusive experiments on animals, Singer would not object to such use; his objections would come if animals were made to suffer needlessly. Singer’s biggest concern is that this weighing of interests is done without any notion that animal interests are necessarily inferior to those of humans.91

Based on Singer’s approach, it is permissible to experiment on animals if the aggregated benefits to humans outweighs the costs of animal suffering and discomfort. However, according to Regan’s ‘rights approach’, animal experimentation should be abandoned altogether. Because

animals are ‘moral patients’, humans have a duty to protect animals against commercial and scientific exploitation. Regan develops his views from Kant: To harm … individuals merely in order to produce the best consequences for all involved is to do what is wrong — is to treat them unjustly — because it fails to respect their inherent

[page 61] value. To borrow part of a phrase from Kant, individuals who have inherent value must never be treated merely as a means to securing the best aggregate consequences.92

The trouble with Regan’s approach is that it fails to provide a mechanism for resolving conflicts between species. What if the interests of two sentient beings come into conflict? How is it possible to combine respect for the value of, for example, the lives of rats on the one hand, with respect for the value of humans who may be exposed to disease spread by those rats on the other?

Theoretical differences mean practical differences 2.37 These philosophical differences between the welfarist and rights schools translates directly into practical differences when it comes to industry, legal and regulatory initiatives to improve the conditions of animals: Those who are committed to animal rights, for example, are more likely to object to the status of animals as property, demanding that legislatures and courts rework the fundamentals of the human-animal relationship. Those with a utilitarian bent are more willing to work within existing hierarchies between animals and humans but insist on new protections against unjustified animal suffering.93

Essentially, utilitarian-influenced welfare theorists would initiate campaigns directed toward legislative reform; for example, reform of living conditions for battery hens by advocating for larger cages. However, rights theorists would initiate campaigns to abolish industrial exploitation of animals altogether. The differences and similarities between the welfarist and rights approaches are summarised in Table 2.3.

Table 2.3 Welfarist and rights approaches

Principal philosophical Influence

Welfarist approach

Rights approach

Classical and preference utilitarian

Animals are ‘subjects-of-a-life’ and ‘moral patients’ to whom moral duties are owed • Animals have inherent worth • Animals are ‘moral patients’ to whom moral duties are owed

Principal arguments

If animals can suffer then their interests should be taken into account

Principal advocates

Jeremy Bentham Peter Singer

Tom Regan Gary Francione

Principal texts

Peter Singer, Animal Liberation (1975)

Tom Regan, The Case for Animal Rights (1983)

Preferred method of application

Work within industry to improve condition of animals to extent Complete abolition of industry of minimising unnecessary pain exploitation of animals and suffering [page 62]

Table 2.3 Welfarist and rights approaches — cont’d Welfarist approach

Arguments against

Principal opponents

• Aggregation principle does not exclude animal suffering • How do you measure pleasure and pain? Tom Regan Gary Francione

Rights approach • Still anthropocentric because principle of equal inherent worth of animals is abandoned when it conflicts with welfare of humans • Fails ‘lifeboat scenario’ Carl Cohen Peter Singer

However, both Singer and Regan’s theories have been criticised for being anthropocentric. Regan maintains that: … because normal humans have cognitive capacities that presumably outshine those other animals, in a true emergency situation, we are compelled to sacrifice non-human beings if it is necessary to save human beings. Singer has considered

the example of a lifeboat with a limited capacity and decided that it is our moral obligation to throw the dog overboard to save a human being.94

In both cases, it is the animal that is sacrificed. This is an unacceptable conclusion according to more radical rights theorists, such as Gary Francione.

Widening the circle of rights — sentience as key 2.38 American law professor Gary Francione goes further than Regan, advocating for a complete abolition of the property– ownership paradigm of animals. Francione argues that sentience is not a necessary prerequisite for assigning rights to animals: Animals qualify for basic liberty rights merely because they feel. The principle of equal consideration, he argues, requires that animals who can suffer be grouped with humans and differentiated from everything else … the circle he draws is wider than Regan’s. Any animal that has a sense of self, he says, has an interest in continued existence in addition to an interest in happiness.95

Francione’s position is immune to the criticisms directed toward Singer and Regan:

anthropocentric

Francione’s position constitutes a major advance of all other liberal approaches to the moral status of animals, in that it is invulnerable to the criticism that it privileges human beings over other sentient beings in the legal and moral order of things in matters.96

[page 63]

Entrenching animals-as-property paradigm 2.39 In a series of publications, Francione criticises the capacity of both Singer and Regan’s philosophies to adequately protect the interests of animals.97 Francione believes that both welfarist and rights theorists entrench the animals-as-property paradigm and therefore encourage the continued exploitation of animals for human ends. According to Francione, the consequence of this entrenched position is that: The property status of animals renders completely meaningless any balancing that is supposedly required under the humane treatment principle or animal welfare

laws, because what we really balance are the interests of property owners against the interests of their animal property … Such a balance will rarely, if ever, tip in the animal’s favour … [at bottom] it is always necessary to decide against animals in order to protect human property rights in animals.98

To illustrate his point, Francione distinguishes the ‘lifeboat’ scenario we discussed above, maintaining that it is an artificial construct and therefore not a reliable guide as to how humans treat animals on a day-to-day basis. Francione explains: How we place nonhumans into daily conflicts with us, and then proceed to choose our interests over theirs. For example, each year we raise billions of animals only to slaughter them; not because of necessity or emergency, but to satisfy our desire for the taste of their flesh or the look of their fur or skins. We perform experiments on animals simply to produce yet another brand of furniture polish. Millions of animals are forced to live solely for the purpose of entertaining us. We justify exploitation of all other animals by saying that nonhumans can be sacrificed when the human need arises, yet we ourselves design and market most of these purported needs.99

Distinctiveness of Francione’s approach 2.40 Francione’s approach to animal ‘rights’ differs from welfarist and other rights approaches in several important respects, and as a result is said to avoid the problems outlined in the quote above at 2.38. In summary, Francione’s approach incorporates the following principles: • There are no species hierarchies that might serve to alienate animals from rights. He therefore rejects the Aristotelian and Thomistic scala naturae that served to subordinate animals to humans. • There is no requirement for higher cognitive capacities as a pre-requisite for the possession of rights. He therefore rejects the Cartesian and Kantian notions that animals are subordinate to human ends because only humans possess higher cognitive capacities. [page 64]

•

•

There is no requirement for suffering as a pre-requisite for the possession of rights. He therefore goes further than the utilitarian philosophies of both Bentham and Singer in aggregating suffering and preferences when determining the morality of a course of action. Finally, the existence of sentience in any animal is the cornerstone of Francione’s approach: ‘If a being is sentient, then that being has an interest in not suffering and a fortiori an unqualified right not to be property’.100

Consequences of Francione’s approach 2.41 Many critics of rights theorists question the quantity and nature of the rights that animals might possess. Would we see animals ‘suing’ their owners for breach of indeterminate ‘rights’? Francione’s approach, which advocates the abolition of animalsas-property, avoids these criticisms: Asking whether the cow would be able to sue the farmer misses Francione’s point. When the cows come home to our sphere of moral concern, they will not be forced to bear calves into an utterly dependent, controlled and wholly instrumental existence in the first place. Likewise when elephants are understood as persons, the question of whether they will be defendants in tort suits is nonsensical. They would not be caught and shipped to North American owners in the first place.101

According to Francione, however, the reality is vastly different. Despite claims by welfarist advocates that conserving animal interests is consistent with the animals-as-property paradigm, Francione argues that: There have been no significant improvements in animal welfare or animal welfare laws in the United States and almost all changes have been linked explicitly to making animal use more efficient. That is, welfare changes are based on such considerations as increasing productivity or reducing labour costs and do not recognize that animals have inherent value requiring that we respect their interests even when there is no benefit to us.102

Francione’s critics 2.42 Like all welfarist and rights theorists, Francione’s views have attracted significant criticism. In a review of Francione’s text Introduction to Animal Rights: Your Child or the Dog?, Professor Cass

Sunstein raises three concerns with Francione’s arguments.103 He argues that: • Francione has not demonstrated that the status of animals as property is inconsistent with recognising the value of animals, or that the use of animals as opposed to the illtreatment of animals is morally objectionable; • basing a theory of rights based on sentience alone is ambiguous; and [page 65] •

even if animals were to have rights, those rights could be abrogated when would be considerable benefits in doing so. Francione has responded and rebutted Sunstein’s criticisms,104 and the debate continues. The differences and similarities between Regan and Francione within the animal rights view are illustrated in Table 2.4. Table 2.4 Differences and similarities between Regan and Francione

Principal philosophical position Principal arguments

Tom Regan

Gary Francione

Animals as ‘subjects-of-a-life’ that are ‘moral patients’ to whom moral duties are owed

Animals as sentient beings are owed rights

• Animals have inherent worth • Animals are ‘moral patients’ to whom moral duties are owed

Animals as sentient beings is sufficient to break the ‘animalsas-property’ paradigm

Principal texts

The Case for Animal Rights (1983)

Introduction to Animal Rights: Your Child or the Dog? (2000)

Preferred method of Application

Complete abolition of industry exploitation of animals

Complete abolition of all ownership of animals within property paradigm

• Still anthropocentric because principle of equal

Arguments against

Principal opponents

inherent worth of animals is abandoned when it conflicts with welfare of humans • Fails ‘lifeboat’ scenario Carl Cohen Peter Singer

• Category confusion • Where does sentience begin and end?

Cass Sunstein Richard Posner

Animals without rights — the critics respond 2.43 Not everyone thinks that animals should possess rights in the sense argued for by Tom Regan and Gary Francione. For example, David Schmahmann and Lori Polacheck argue that it would ‘be both implausible and dangerous to give or attribute legal rights to animals because such an extension of legal rights would have serious, detrimental impacts on human rights and freedoms’.105 [page 66] Accordingly, ‘our laws properly seek to ensure that people treat animals in a way that is consistent with human interests — including interests in the preservation of our environment and aesthetic sensibilities’.106 There is a sort of ‘sliding scale’ of critics’ view on this position. Judge Richard Posner, although denying the position that animals are entitled to rights, has nevertheless self-identified as a ‘soft utilitarian’ because of his views that the best way to protect animals is to prevent cruelty.107 At the other end of the spectrum is Professor Carl Cohen who argues that to suggest animals have rights is to commit the error of ‘category confusion’. Cohen does not believe that animals have rights and holds that animals can be used for human ends.

Judge Richard Posner

2.44 In his essay ‘Animal Rights: Legal, Philosophical and Pragmatic Perspectives’,108 Judge Posner highlights the difficulties with ‘rights-speak’ when applied to animals. Posner frames the debate by stating that the central question is ‘whether to create legal duties to treat animals in approximately the same way we treat the human residents of our society; whether, in effect, animals, or some animals, shall be citizens’.109 By framing the debate this way, Posner challenges the rights theorists to define the content of the rights they seek to assign to non-human animals. This is a challenge that Posner believes has not been met. Some years ago, Posner debated Peter Singer on the social networking site Slate. In that debate, Posner argued: The ‘soft’ utilitarian position on animal rights is a moral intuition of many, probably most, Americans. We realise that animals feel pain, and we think that to inflict pain without a reason is bad. Nothing of practical value is added by dressing up this intuition in the language of philosophy; much is lost when the intuition is made a stage in a logical argument. When kindness toward animals is levered into a duty of weighing the pains of animals and people equally, bizarre vistas of social engineering are opened up.110

Posner therefore disagrees with those welfarist and rights theorists who point to the cognitive capacities in some animals as the basis for assigning them rights: ‘Most people would not think (cognitive capacity) is either a necessary or a sufficient condition of having rights’.111 Thus Posner would argue that morally relevant distinctions can be drawn between humans and animals. [page 67] However, while morally relevant distinctions between humans and animals may be drawn, these distinctions do not permit cruelty toward animals. Instead, Posner argues that his ‘soft utilitarian’ approach requires humans to empathise with the suffering of animals and the best way to do that is to create and enforce laws that prohibit animal cruelty.112 For Posner:

… empathy, not moral duty, requires this commitment. Animal suffering matters because it debases humanity and causes human suffering.113

Posner’s views are reminiscent of the Kantian idea of ‘indirect duties’. In Chapter 1 at 1.23, we saw that although Kant did not believe that people owed direct duties toward animals, they nevertheless owed indirect duties toward them, since behaving in a cruel fashion toward animals made it more likely that humans would behave in a cruel fashion toward other humans.

Professor Carl Cohen 2.45 Professor Cohen disagrees with the approach taken by Tom Regan and others.114 Cohen argues that rights holders must be able to distinguish between their own interests and what is right: The holders of rights must have the capacity to comprehend rules of duty governing all, including themselves. In applying such rules (they) must recognize possible conflicts between what is in their own interest and what is just. Only in a community of beings capable of self-restricting moral judgements can the concept of a right be correctly invoked.115

Accordingly, Cohen argues that terms such as ‘right’ and ‘wrong’ mean nothing to animals who cannot create, articulate and enforce moral rights. These ‘categories’ of thought do not belong to the realm of animals. Therefore, Cohen suggests that to say an animal has ‘rights’ is to fall into a ‘category confusion’; that is, the content of moral obligations is a category that applies solely to the human sphere of existence.116

Wild law — a new approach 2.46 In Chapter 1 we encountered Aristotle’s idea of the scala naturae, or ‘Great Chain of Being’ (at 1.7). Aristotle and, following him, Thomas Aquinas suggested that there was a scaled progression of organisms from the simple to the more complex. In this scale of creation, animals are regarded as being positioned at the base end while humans occupy the pinnacle position, justifying animals’ use as instruments for human purposes. The

orientation of this hierarchical scale is undeniably anthropocentric and [page 68] it is this view that has formed the basis of humans’ understanding of their relationship with animals and on which the law in Western liberal democracies has been based. However, since 2001, geologists, environmental advocates, lawyers and philosophers have been working together to challenge this anthropocentric status of humans in their relationship to the environment in an approach called ‘wild law’. This approach challenges humans’ status by arguing that they are just one species on the planet that exists interdependently within a larger natural ecosystem. In this context, it is argued that human laws should recognise and protect this larger ecosystem, a system that is accorded enforceable legal rights.117 In doing so, humans would no longer have the right to exploit the environment and animals if doing so would harm the environment. In this way, wild law anticipates the development of ‘earth jurisprudence’ in which laws reflect the balance between the rights of humans and the rights of the environment, which includes animals.118 The principal proponent of wild law is South African academic Cormac Cullinan, whose text Wild Law: A Manifesto for Earth Justice establishes the theoretical framework for earth jurisprudence. Wild law is not specifically centred on animal welfare or animal rights. However, it recognises that because animals are an important part of the earth’s ecosystem, they are worthy of protection. In an April 2011 interview, Cullinan explained the relationship between wild law and animal welfare: Wild law is based on an Earth-centric perspective that sees maintaining the health and integrity of the whole Earth community as the best way to ensure the wellbeing of all members of that community, whereas environmental law is part of

existing human-centered legal systems, which as a whole, permit environmental destruction provided that necessary authorizations are obtained. The animal rights approach is closer except that wild law doesn’t merely advocate the rights for animals, which would be an important step forward, but goes further and argues that if human beings have inherent human rights by virtue of our existence as humans, so too must all other aspects of the Earth.119

For example, if a corporation intended to log an area of forest and then build a mining operation, from a wild law perspective the forest has rights that should be protected through legal processes. The need to maintain the integrity of the ecosystem through the preservation of the forest is balanced against the interests of the corporation that wishes to log timber and mine the land. Although the principal focus of wild law is on the preservation of rights alleged to subsist in the forest, animals are necessarily protected by default. However, since animals form an integral part of the ecosystem, wild law would seek to invest animals with rights, not because of any inherent quality of the [page 69] animals, but simply because those animals form part of the ecosystem that should be protected. The development of wild law therefore promises to be an exciting area for animal welfare advocates.

Limitations of philosophy 2.47 Almost every element of the philosophy that underpins each school of thought can and has been criticised: ‘It takes little effort to turn up serious limitations in each of the ethical theories’.120 Posner argues that humans possess a ‘moral intuition’ that membership of a particular species matters and demonstrates his assertion by suggesting that if a dog were about to bite a child and

the only way to stop the bite was to impose more pain on the dog than the bite would cause the child, most people would say the dog should be stopped.121 Posner therefore argues that: The superior claim of the human infant than of the dog on our consideration is a moral intuition deeper than any reason that could be given for it and impervious to any reason that anyone could give against it.122

The limitations of both the utilitarian and rights-based theorists are exposed because neither can explain or deal with this intuition that membership of the human species is a morally relevant distinction. Utilitarian theories do account for the interests of animals in weighing up the implications of a course of conduct, but it does not guarantee protective rights to animals. Utilitarian philosophy does not provide rights for animals, nor does it impose duties on humans to care for them. There is no system of justice underpinning utilitarian approaches to animal welfare: ‘Without a system of justice, there is no reason for humans to incur costs and benefit animals if humans can systematically look away’.123 However, rights theories lack an agreed understanding of the content of those rights. Exactly what rights would be conferred on animals? Amongst the rights theorists, there is disagreement in terms of where to draw the line. Do rights devolve to animals with cognitive abilities or to all sentient animals? And how do you measure the difference? Should there be a ‘sliding scale’ of rights depending on the way that cognition/ sentience is measured? From this discussion, it does seem that there is profound disagreement about almost all aspects of the debate over animal welfare and rights. Indeed, one commentator observed: Our society is in the midst of a major debate over animal rights, our duties and the legal status of animals. As a whole, our movement is not able to agree on an end goal; we are not able to articulate what we are struggling to obtain or want others to recognize, and [page 70] subsequently, we cannot agree upon which steps to take and struggle to gain

widespread support.124

Despite all of these criticisms and limitations, ‘one emerges blinking from the shadows of philosophy to discover that there is a moral consensus in the Western world that animals should be treated better than they are’.125 The basic and controversial issue is how we practically implement this consensus to enhance the welfare of animals.

The challenge 2.48 The challenge is to use practical legal, regulatory and institutional processes to close the gap between the public perception that animals should be treated better than they are and the reality of massive animal exploitation and suffering. It has been suggested that, within the legal sphere, this process will involve a substantial deconstruction of socially created differences between humans and animals: Society must change dramatically before the recognition of the rights of nonhuman animals can occur. Just as in the cases of slavery and coverture, the artificial socially created differences assigned to non-human animals must be deconstructed. Challenge to these social constructs can take shape within the legal discourse in at least three ways: recognition of the social value of non-human animals through tort litigation, recognition in statutory language of non-human animals’ self-interest in their own lives and breaking down the species barrier by challenging and restructuring standing doctrines.126

The following chapters of this text will explore the legal nature of these differences and how the law might be used to advocate for animal welfare by overcoming them. But our first step in this process is to understand how animals exist within the Australia legal regulatory framework. It is to this analysis that we now turn in Chapter 3.

Further reading Rights and moral obligations W N Hohfeld, ‘Fundamental Legal Conceptions as Applied in Judicial Reasoning’

(1917) 26 Yale Law Journal 710. M Warren, Moral Status: Obligations to Persons and Other Living Things, Clarendon Press, Oxford, 1997. C Wellman, Real Rights, Oxford University Press, Oxford, 1995, p 105.

[page 71]

John Stuart Mill and Liberalism J S Mill, On Liberty, Oxford University Press, Oxford, 1954. G Steiner, ‘Cosmic Holism and Obligations Toward Animals: A Challenge to Classical Liberalism’ (2007) 2 Journal of Animal Law and Ethics 1.

Peter Singer P Singer, Practical Ethics, 2nd ed, Cambridge University Press, Cambridge (US), 2002. P Singer, ‘Utilitarianism and Vegetarianism’ (1979) 9(4) Philosophy and Public Affairs 325. P Singer, Writings on an Ethical Life, Fourth Estate Publishers (Harper Collins), London, 2001.

Tom Regan R Dresser, ‘Respecting and Protecting Non-Human Animals: Regan’s “Case for Animal Rights”’ (1984) 83(4) American Bar Foundation Research Journal 831. N Nobis, ‘Carl Cohen and Tom Regan: The Animal Rights Debate’ (2002) 36 Journal of Value Inquiry 579. T Regan, Empty Cages: Facing the Challenge of Animal Rights, Rowman and Littlefield, New York, 2004. T Regan, The Case for Animal Rights, Routledge, London, 1984.

John Rawls R Abbey, ‘Rawlsian Resources for Animal Ethics’ (2007) 12(1) Ethics and the Environment 1. R Garner, ‘Animals, Politics and Justice: Rawlsian Liberalism and the Plight of NonHumans’ (2003) 12(2) Environmental Politics 3.

M Pritchard and W Robinson, ‘Justice and the Treatment of Animals: A Critique of Rawls’ (1981) 3 Journal of Environmental Ethics 55. J Rawls, A Theory of Justice, Oxford University Press, Oxford, 1971.

Gary Francione G Francione, ‘Animal Rights and Animal Welfare’ (1996) 48 Rutgers Law Review 397. G Francione, Introduction to Animal Rights: Your Child or the Dog?, Temple University Press, Philadelphia, 2000. G Francione, ‘Reflections on Animals, Property and the Law and Rain Without Thunder’ (2007) 70 Law and Contemporary Problems 9.

[page 72]

Animal rights philosophy generally C Cohen and T Regan, The Animal Rights Debate, Rowman and Littlefield, New York, 2001. L Kemmerer, In Search of Consistency: Ethics and Animals, Human–Animal Studies (Vol 3), Brill, Boston, 2006, p 24. P Markie, ‘Respect for People and Animals’ (2004) 38 The Journal of Value Inquiry 33. R Payne, ‘Animal Welfare, Animal Rights and the Path to Social Reform: One Movement’s Struggle for Coherency in the Quest for Change’ (2002) 9 Virginia Journal of Social Policy and the Law 587. D St Pierre, ‘The Transition from Property to People: The Road to the Recognition of Rights for Non-Human Animals’ (1998) 9 Hastings Women’s Law Journal 255. D Sztybel, ‘Taking Humanism Seriously: “Obligatory” Anthropocentrism’ (2000) 13 Journal of Agricultural and Environmental Ethics 181.

Wild law M Bell, ‘Thomas Berry and an Earth Jurisprudence: An Exploratory Essay’ (2003) 19(1) The Trumpeter 69. P Burdon (ed), Exploring Wild Law, Wakefield Press, Adelaide, 2011. C Cullinan, Wild Law: A Manifesto for Earth Justice, 2nd ed, Chapel Green Publishing, Vermont, 2011.

Useful academic reviews of texts G Francione, ‘Equal Consideration and the Interests of Non-Human Animals in Continued Existence: A Response to Professor Sunstein’ (2006) University of Chicago Legal Forum 231. E Goodman, ‘Animal Ethics and the Law’ (2006) 79 Temple Law Review 1291 (book review). L Hall, ‘Introduction to Animal Rights: Your Child or the Dog?’ (2000) 34 Suffolk University Law Review 83 (book review of text by G Francione). L Moore, ‘A Review of Animal Rights: Current Debates and New Directions’ (2005) 11 Animal Law 311. C Sunstein, ‘Slaughterhouse Jive’ (2001) New Republic 40 (review of G Francione, Introduction to Animal Rights: Your Child or the Dog?, Temple University Press, Philadelphia, 2000).

1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14.

R Bass, ‘Book Review: Without a Tear: Our Tragic Relationship With Animals’ (2005) 39(2) The Journal of Value Inquiry at 273–7 (review of text by M Bernstein). M Warren, Moral Status: Obligations to Persons and Other Living Things, Clarendon Press, Oxford, 1997, p 13. N Nobis, ‘Carl Cohen and Tom Regan: The Animal Rights Debate’ (2002) 36 Journal of Value Inquiry 579. W N Hohfeld, ‘Fundamental Legal Conceptions as Applied in Judicial Reasoning’ (1917) 26 Yale Law Journal 710. C Wellman, Real Rights, Oxford University Press, Oxford, 1995, p 105. P Markie, ‘Respect for People and Animals’ (2004) 38 The Journal of Value Inquiry 33 at 35. J Rawls, A Theory of Justice, Oxford University Press, Oxford, 1971. T Milligan, Animal Ethics, Routledge, Oxford, 2015, p 71. R Garner, ‘Animals, Politics and Justice: Rawlsian Liberalism and the Plight of NonHumans’ (2003) 12(2) Environmental Politics 3. M Pritchard and W Robinson, ‘Justice and the Treatment of Animals: A Critique of Rawls’ (1981) 3 Journal of Environmental Ethics 55. R Abbey, ‘Rawlsian Resources for Animal Ethics’ (2007) 12(1) Ethics and the Environment 1 at 5. R Garner, ‘Rawls, Animals and Justice: New Literature, Same Response’ (2012) 18 Res Publica 159. C Stark, ‘Respecting Human Dignity: Contract Versus Capabilities’ (2009) 40 (3–4) Metaphilosophy 366. S Hailwood, ‘Bewildering Nussbaum: Capability Justice and Predation’ (2011) The Journal of Political Philosophy 1.

15. 16. 17. 18.

19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33.

34. 35.

36. 37. 38. 39.

A Sen, ‘Capability and Well-Being’ in A Sen and M Nussbaum (eds), The Quality of Life, Clarendon Press, United Kingdom, 1993. M Nussbaum, Women and Human Development: The Capabilities Approach, Cambridge University Press, United States, 2000. M Nussbaum, ‘Book Review: Animal Rights: The Need for a Theoretical Basis’ (2001) 114 Harvard Law Review 1506 at 1535ff. M Nussbaum, ‘Beyond “Compassion and Humanity”: Justice for Nonhuman Animals’, Ch 12 in C Sunstein and M Nussbaum (eds), Animal Rights: Current Debates and New Directions, Oxford University Press, United States, 2004 at 299. M Nussbaum, Frontiers of Justice: Disability, Nationality, Species Membership, Harvard University Press, United States, 2006. M Nussbaum, Frontiers of Justice: Disability, Nationality, Species Membership, Harvard University Press, United States, 2006 at 64–5. ibid, pp 21–2. S Hailwood, ‘Bewildering Nussbaum: Capability Justice and Predation’ (2011) The Journal of Political Philosophy 1 at 3. J Boettcher, ‘Book Review: Frontiers of Justice’ (2009) 8 Journal of Human Rights 190. A McEwan, ‘Martha Nussbaum’s Capabilities Approach for Non-Human Species: A Preliminary Critique’ (2010) 4 Australian Animal Protection Law Journal 64. M Nussbaum, Frontiers of Justice: Disability, Nationality, Species Membership, Harvard University Press, United States, 2006, p 392. S Hailwood, ‘Bewildering Nussbaum: Capability Justice and Predation’ (2011) The Journal of Political Philosophy 1 at 4. M Nussbaum, Frontiers of Justice: Disability, Nationality, Species Membership, Harvard University Press, United States, 2006, p 82. S Hailwood, ‘Bewildering Nussbaum: Capability Justice and Predation’ (2011) The Journal of Political Philosophy 1 at 4. R Anthony, ‘Farming Animals and the Capabilities Approach’ (2009) 17 Society and Animals 257. M Stein, ‘Nussbaum: A Utilitarian Critique’ (2009) 50 Boston College Law Review 489. S Hailwood, ‘Bewildering Nussbaum: Capability Justice and Predation’ (2011) The Journal of Political Philosophy 1. J Boettcher, ‘Book Review: Frontiers of Justice’ (2009) 8 Journal of Human Rights 190 at 191. M Nussbaum, ‘Beyond “Compassion and Humanity”: Justice for Nonhuman Animals’, Ch 12 in C Sunstein and M Nussbaum (eds), Animal Rights: Current Debates and New Directions, Oxford University Press, United States, 2004, p 315. M Nussbaum, ‘Book Review: Animal Rights: The Need for a Theoretical Basis’ (2001) 114 Harvard Law Review 1506 at 1541. M Nussbaum, ‘Beyond “Compassion and Humanity”: Justice for Nonhuman Animals’, Ch 12 in C Sunstein and M Nussbaum (eds), Animal Rights: Current Debates and New Directions, Oxford University Press, United States, 2004, p 315. ibid. M Nussbaum, Frontiers of Justice: Disability, Nationality, Species Membership, Harvard University Press, United States, 2006, p 394. A Schinkel, ‘Martha Nussbaum on Animal Rights’ (2008) 13(1) Ethics & the Environment 41 at 51–5. ibid at 51.

40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58.

59. 60. 61.

62. 63. 64. 65. 66.

A McEwan, ‘Martha Nussbaum’s Capabilities Approach for Non-Human Species: A Preliminary Critique’ (2010) 4 Australian Animal Protection Law Journal 64. M Wissenburg, ‘The Lion and the Lamb: Ecological Implications of Martha Nussbaum’s Animal Ethics’ (2011) 20(3) Environmental Politics 391 at 405. L Kemmerer, In Search of Consistency: Ethics and Animals, Human–Animal Studies (Vol 3), Brill, Boston, 2006, pp 18–19. P Markie, ‘Respect for People and Animals’ (2004) 38 The Journal of Value Inquiry 33. D Sztybel, ‘Taking Humanism Seriously: “Obligatory Anthropocentrism”’ (2000) 13 Journal of Agricultural and Environmental Ethics 181. L Kemmerer, In Search of Consistency: Ethics and Animals, Human–Animal Studies (Vol 3), Brill, Boston, 2006, p 24. ibid, p 26. L Hall, ‘Introduction to Animal Rights: Your Child or the Dog?’ (2000) 34 Suffolk University Law Review 83 at 86–7 (book review of text by G Francione). G Steiner, ‘Cosmic Holism and Obligations Toward Animals: A Challenge to Classical Liberalism’ (2007) 2 Journal of Animal Law and Ethics 1. S Hampshire, The Age of Reason, Mentor Books, New York, 1956, p 1. Published in 1859 with the help of his wife Harriet Taylor, whom Mill had met and formed a passionate relationship with while Taylor was married. J S Mill, On Liberty, Oxford University Press, Oxford, 1954, p 18. M Sandel, ‘America’s Search for a New Public Philosophy’, Atlantic Monthly, January 1996, pp 54–7. B Magee, The Story of Philosophy, Dorling Kindersley, London, 2001, p 108. N Naffine, ‘How Religion Constrains Law and the Idea of Choice’ (2009) 30(1) Adelaide Law Review 16. G Steiner, ‘Cosmic Holism and Obligations Toward Animals: A Challenge to Classical Liberalism’ (2007) 2 Journal of Animal Law and Ethics 1 at 2. D St Pierre, ‘The Transition from Property to People: The Road to the Recognition of Rights for Non-Human Animals’ (1998) 9 Hastings Women’s Law Journal 255. G Francione, Animals, Property and the Law, Temple University Press, Philadelphia, 1995, p 24. R Payne, ‘Animal Welfare, Animal Rights and the Path to Social Reform: One Movement’s Struggle for Coherency in the Quest for Change’ (2002) 9 Virginia Journal of Social Policy and the Law 587 at 589. ibid at 593. G Steiner, ‘Cosmic Holism and Obligations Toward Animals: A Challenge to Classical Liberalism’ (2007) 2 Journal of Animal Law and Ethics 1 at 2. D St Pierre, ‘The Transition from Property to People: The Road to the Recognition of Rights for Non-Human Animals’ (1998) 9 Hastings Women’s Law Journal 255 at 258–9. P Singer, Practical Ethics, 2nd ed, Cambridge University Press, 1996, Cambridge (US), p 3. P Singer, Writings on an Ethical Life, Fourth Estate Publishers (Harper Collins), London, 2001, p 133. ibid. P Singer, Practical Ethics, 2nd ed, Cambridge University Press, 1996, Cambridge (US), pp 13–14. ibid, pp 57–8.

67. 68. 69. 70. 71. 72. 73. 74. 75.

76. 77. 78. 79. 80. 81. 82.

83. 84. 85. 86. 87. 88. 89. 90. 91.

92. 93. 94.

P Singer, Animal Liberation, 2nd ed, Pimlico, London, 1995, p 6. ibid. P Singer, Practical Ethics, 2nd ed, Cambridge University Press, Cambridge (US), 1996, p 22. ibid, p 56. P Singer, Writings on an Ethical Life, Fourth Estate Publishers (Harper Collins), London, 2001, p 33. ibid, p 35. ibid, pp 57ff. ibid, pp 66ff. M Varn Chandola, ‘Dissecting American Animal Protection Law: Healing the Wounds With Animal Rights and Eastern Enlightenment’ (2002) 8 Wisconsin Environmental Law Journal 3 at 17. E Goodman, ‘Animal Ethics and the Law’ (2006) 79 Temple Law Review 1291 at 1293 (book review). L Kemmerer, In Search of Consistency: Ethics and Animals, Human–Animal Studies (Vol 3), Brill, Boston, 2006, p 113. P Singer, ‘Utilitarianism and Vegetarianism’ (1979) 9(4) Philosophy and Public Affairs 325 at 333. ibid at 334. L Kemmerer, In Search of Consistency: Ethics and Animals, Human–Animal Studies (Vol 3), Brill, Boston, 2006, p 116. ibid, p 117. R Payne, ‘Animal Welfare, Animal Rights and the Path to Social Reform: One Movement’s Struggle for Coherency in the Quest for Change’ (2002) 9 Virginia Journal of Social Policy and the Law 587 at 595. E Goodman, ‘Animal Ethics and the Law’ (2006) 79 Temple Law Review 1291 at 1300–1 (book review). T Regan, The Case for Animal Rights, Routledge, London, 1988. N Nobis, ‘Carl Cohen and Tom Regan: The Animal Rights Debate’ (2002) 36 Journal of Value Inquiry 579 at 582. R Dresser, ‘Respecting and Protecting Non-Human Animals: Regan’s “Case for Animal Rights”’ (1984) 83(4) American Bar Foundation Research Journal 831 at 837–8. ibid at 839. ibid. R Sandoe and R Crisp, ‘Ethics’, Ch 1 in M Appleby and B Hughes (eds), Animal Welfare, CAB International, Wallingford, 1997, p 9. H Silverstein, Unleashing Rights: Law, Meaning and the Animal Rights Movement, University of Michigan Press, Ann Arbor, 1996, p 39. R Payne, ‘Animal Welfare, Animal Rights and the Path to Social Reform: One Movement’s Struggle for Coherency in the Quest for Change’ (2002) 9 Virginia Journal of Social Policy and the Law 587 at 594. R Sandoe and R Crisp, ‘Ethics’, Ch 1 in M Appleby and B Hughes (eds), Animal Welfare, CAB International, Wallingford, 1997, p 10. E Goodman, ‘Animal Ethics and the Law’ (2006) 79 Temple Law Review 1291 at 1294 (book review). L Hall, ‘Introduction to Animal Rights: Your Child or the Dog?’ (2000) 34 Suffolk University Law Review 83 at 86 (book review of text by G Francione).

95. 96. 97.

98. 99. 100. 101. 102. 103.

104.

105. 106. 107. 108.

109. 110. 111.

112. 113. 114. 115. 116. 117.

E Goodman, ‘Animal Ethics and the Law’ (2006) 79 Temple Law Review 1291 at 1301 (book review). G Steiner, ‘Cosmic Holism and Obligations Toward Animals: A Challenge to Classical Liberalism’ (2007) 2 Journal of Animal Law and Ethics 1 at 10. G Francione, ‘Animal Rights and Animal Welfare’ (1996) 48 Rutgers Law Review 397 at 410ff; ‘Reflections on Animals, Property and the Law and Rain Without Thunder’ (2007) 70 Law and Contemporary Problems 9. G Francione, Introduction to Animal Rights: Your Child or the Dog?, Temple University Press, Philadelphia, 2000, pp xxiv–xxv. L Hall, ‘Introduction to Animal Rights: Your Child or the Dog?’ (2000) 34 Suffolk University Law Review 83 at 87 (book review on text by G Francione). G Steiner, ‘Cosmic Holism and Obligations Toward Animals: A Challenge to Classical Liberalism’ (2007) 2 Journal of Animal Law and Ethics 1 at 6–7. L Hall, ‘Introduction to Animal Rights: Your Child or the Dog?’ (2000) 34 Suffolk University Law Review 83 at 90–1 (book review on text by G Francione). G Francione, ‘Reflections on Animals, Property, and the Law and Rain Without Thunder’ (2007) 70 Law and Contemporary Problems 9 at 13. C Sunstein, ‘Slaughterhouse Jive’ (2001) New Republic 40 at 43ff (review of G Francione, Introduction to Animal Rights: Your Child or the Dog?, Temple University Press, Philadelphia, 2000). G Francione, ‘Equal Consideration and the Interests of Non-Human Animals in Continued Existence: A Response to Professor Sunstein’ (2006) University of Chicago Legal Forum 231. D Schmahmann and L Polacheck, ‘The Case Against Rights For Animals’ (1995) 22 Boston College Environmental Affairs Law Review 747 at 749. ibid at 781. E Goodman, ‘Animal Ethics and the Law’ (2006) 79 Temple Law Review 1291 at 1305 (book review). R Posner, ‘Animal Rights: Legal, Philosophical and Pragmatic Perspectives’ in C Sunstein and M Nussbaum (eds), Animal Rights: Current Debates and New Directions, Oxford University Press, Oxford, 2004, p 51. ibid. R Posner and P Singer, Animal Rights, debate on Slate, 12 June 2001, on (cited 9 August 2017). R Posner, ‘Animal Rights: Legal, Philosophical and Pragmatic Perspectives’ in C Sunstein and M Nussbaum (eds), Animal Rights: Current Debates and New Directions, Oxford University Press, Oxford, 2004, p 56. L Moore, ‘A Review of Animal Rights: Current Debates and New Directions’ (2005) 11 Animal Law 311 at 316. E Goodman, ‘Animal Ethics and the Law’ (2006) 79 Temple Law Review 1291 at 1302 (book review). C Cohen and T Regan, The Animal Rights Debate, Rowman and Littlefield, New York, 2001. C Cohen, ‘The Case for the Use of Animals in Biomedical Research’ (1986) 14 New England Journal of Medicine 865. C Cohen and T Regan, The Animal Rights Debate, Rowman and Littlefield, New York, 2001, p 30. C Cullinan, Wild Law: A Manifesto for Earth Justice, 2nd ed, Chelsea Green

118. 119.

120. 121. 122. 123. 124. 125. 126.

Publishing, Vermont, 2011 (first published in 2002). M Bell, ‘Thomas Berry and an Earth Jurisprudence: An Exploratory Essay’ (2003) 19(1) The Trumpeter 69. B Goodspeed, How we can Change our Laws to Protect the Rights of Nature, interview with Cormac Cullinan, Chelsea Green Publishing, April 2011, on (cited 9 August 2017). E Goodman, ‘Animal Ethics and the Law’ (2006) 79 Temple Law Review 1291 at 1304 (book review). ibid at 1302. ibid. ibid at 1304. L Moore, ‘A Review of Animal Rights: Current Debates and New Directions’ (2005) 11 Animal Law 311 at 323. E Goodman, ‘Animal Ethics and the Law’ (2006) 79 Temple Law Review 1291 at 1308 (book review). D St Pierre, ‘The Transition from Property to People: The Road to the Recognition of Rights for Non-Human Animals’ (1998) 9 Hastings Women’s Law Journal 255 at 270.

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3 Australian Legal and Regulatory Framework ____________________________ Objectives of this chapter This chapter is intended to: • • • • • • • • • •

introduce you to the Australian legal and regulatory framework for animals and animal welfare; explain why there is no constitutional power for the regulation of animal welfare; identify the way in which the common law categorises different animals; explore the way in which both common law and statute characterise animals as property and the contradictions associated with that characterisation; provide an overview of the complex Commonwealth, State, Territory and local government bureaucratic structure of animal regulation; introduce you to the fate of the Australian Animal Welfare Strategy (AAWS); consider the relationship between the Commonwealth Model Codes of Practice and national standards and guidelines, and State and Territory animal regulatory regimes; explore several criticisms associated with this legal and regulatory framework; explain the value of integrating the philosophical concepts covered in Chapters 1 and 2 and the discussion in subsequent chapters of the text; provide resources for further reading and research.

Introduction Animal law in Australia is a complex and multi-faceted area.1

3.1 The discussions in Chapters 1 and 2 of this text, and in the following chapters, reveal that animals have been, and continue to

be, used by humans for an incredibly diverse range of needs and desires. [page 74] Animals are: • farmed on an industrial scale for the purposes of providing food and other animal products, such as eggs; • harvested to provide material for clothing and fashion trends; • trained to assist humans who are physically or intellectually disabled; • trained and exhibited for the entertainment of humans in circuses, rodeos, horse racing and greyhound racing; • hunted and killed by humans as a form of sport; • experimented on for the purposes of developing cosmetics, drugs and other medical products; • cared and nurtured by humans as beloved companions in our homes; • managed and culled by governments as invasive pest or feral animals; and • used by police, civilian and military organisations to detect drugs, explosives or other illicit substances and provide security. In this chapter, we will explore the legal and regulatory framework that regulates the use of animals for these purposes. Understanding this regime is not an easy task because of the lack of a national regulatory regime that applies throughout Australia. It necessitates identifying and understanding different regulatory regimes existing across the States and Territories of Australia. The Australian Constitution does not expressly provide power to the Commonwealth Parliament to pass legislation with respect to the regulation of animals or the economic activities that involve animals.

This lack of express constitutional power carries several consequences for any systematic exploration of animal law and regulation in Australia: • Principal regulatory authority for animals and animal welfare rests with the States and Territories. However, the eight different States and Territories throughout Australia have separate and often inconsistent regimes regulating animals and animal welfare. • In the States, there is an added layer of government in the form of local councils. Pursuant to State Local Government Acts, local councils have been given responsibility to manage certain animals within their jurisdiction. • Despite a lack of express constitutional power, the Commonwealth Government has attempted to provide both legal and policy leadership on issues of animal management and welfare. However, the various strategies, model codes of practice and animal welfare standards that it has created do not have the status of law. • As a result, these Commonwealth initiatives have been implemented to both a greater and lesser extent by the States and Territories. In some States, these initiatives have been incorporated into animal-specific legislation, while in others they have not. In some States, compliance with a Commonwealth code is mandatory, while in others it is not. The result is an inconsistent and often ‘patchwork’ regime of animal management and regulation. • Even where all States and Territories have similar legislation concerning a particular issue of animal regulation (such as animal welfare or pest animal regulation), there are often many differences between them making it difficult to identify a consistent regulatory strategy. [page 75]

•

This means that in order to understand the way that, for example, animals as pests are regulated, in almost all cases it will be necessary to excavate many different layers of Acts, subordinate legislation, codes and standards in each individual State and Territory. • These different layers of regulation have necessitated an equally difficult and complex bureaucratic structure across the Commonwealth, States and Territories. Many different and related government departments are responsible for the design, implementation and review of animal regulations. Identifying them all is a complex and difficult task. This chapter is intended to provide an overview of the principal regulatory themes and issues associated with animal and animal welfare regulation in Australia. We will start our overview by exploring the difficulties associated with the lack of express Commonwealth legislative power in this regard, before exploring issues associated with the State and Territory regimes.

Lack of constitutional power 3.2 Before Federation in 1901, various colonies in Australia had already enacted different forms of animal welfare legislation. Beginning with Van Diemen’s Land (Tasmania) and then New South Wales, this legislation was implemented throughout the late 1800s.2 These early forms of colonial animal welfare legislation, principally contained in the Police Acts, were broadly based on English animal welfare legislation that was intended to prohibit cruelty to animals. Throughout the 1850s and 1860s, the legislation was amended so that it not only became more specific but also carved out exemptions for a number of practices, including the extermination of rabbits, foxes and wild dogs, and hunting, trapping or shooting any wild animal.3 At Federation, the Australian Constitution came into effect. However, during the constitutional conventions that preceded its

drafting, there was no direct discussion of a general power to regulate animals and animal welfare, but rather an indirect discussion of trade in animals and animal products within the context of freedom of trade between the States.4 Accordingly, the Constitution does not directly address the issue of animal welfare with the result that the Commonwealth Government has not enacted legislation in this area. Despite this lack of express power, the Constitution does provide the Commonwealth Parliament with several indirect powers to pass legislation with respect to animals. These include the quarantine power in s 51(ix), fisheries power in s 51(x), trade and commerce power in s 51(i) and external affairs power in s 51(xx). [page 76] Accordingly, the Commonwealth Government indirectly regulates on animals in international trade, treaties that involve animals (such as the Convention on International Trade in Endangered Species of Wild Fauna and Flora (1975)), the export of animals, biosecurity, customs and imports relative to animals, and the management of pest or feral animals or other invasive species. We will explore these areas in Chapter 12. While there is no express power in the Constitution permitting the direct regulation of animals, it should be noted that Kirby J in ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 held that the free discussion of governmental and political issues of animal welfare is protected by the implied freedom of political communication under the Constitution. The law relating to animals is therefore found primarily in State and Territory legislation in a complex network of different regulatory regimes. At the heart of these regimes are animals. The common law classifies animals as property: see Saltoon v Lake

[1978] 1 NSWLR 52. But both the common law and statute make distinctions between different kinds of animals. These distinctions matter. For example, in Chapter 5 ‘Animals as Companions’, we will see that in Queensland the nature and extent of an owner’s liability for injury caused by their companion (or pet) dog depends on how the law characterises that dog. In Chapter 8 ‘Animals and Cruelty’, we will see that all States and Territories have enacted legislation that protects animals from acts of cruelty. However, in Chapter 9 ‘Animals as Food’, we will see that those protections have been modified and in some cases removed when animals are to be processed for food. The inconsistencies within these different regimes add to their complexity.

What is an animal? 3.3 Historically, the law characterised animals according to whether a particular animal was dangerous to people or not. Animals have therefore been declared to be either ferae naturae (dangerous to people) or mansuetae naturae (not dangerous to people). Domestic animals are characterised as mansuetae naturae because they often share living spaces with people. In AttorneyGeneral (SA) v Bray (1964) 111 CLR 402 at 411, Dixon CJ defined domestic animals as ‘such animals as are commonly kept and cared for in and about human habitations’. Domestic animals are regarded as personal property by the common law. In most jurisdictions, animals that are characterised as ferae naturae (wild) are considered to be the personal property of the Crown. Ownership of wild animals can be transferred to individuals by a relevant State or Territory Authority issuing licences to take wildlife. Therefore, in most jurisdictions, it is an offence to take or to be in possession of wildlife without the relevant permit or licence.

Property paradigm

3.4 A consistent theme that you will encounter throughout this text is the characterisation of animals as property. All legislation defines animals as property or ‘goods’. Section 4 of the Competition and Consumer Act 2010 (Cth) is an example. The law’s division of phenomena into people and ‘things’ reflects the Cartesian dualism we [page 77] discussed in Chapter 1 at 1.21. Humans are not regarded as property because they have higher cognitive abilities and are thus moral agents to whom rights accrue and duties are owed. However, animals lack those higher cognitive abilities and are therefore excluded from the definition of ‘people’. They are defined as property or ‘things’. Because animals are property, the law does not protect them from various offences to the person. It is therefore impossible for someone to murder an animal since that animal is not a legal person to whom rights are attributed in law. However, as we will see in Chapter 6 ‘Animals as More than Companions’, it is possible that harming a companion animal (pet) may constitute a trespass to property for which damages may be awarded. The characterisation by the law of animals as property has created a significant amount of regulatory dissonance. In Chapter 5, we will see that Australians tend to attach significant emotional value to their companion animals. To many people, animals are more than simply inanimate chattels, such as toasters or sofas, but sentient beings that give and receive emotional support and affection. However, in some situations the contrast between treating animals as property and animals as not mere property causes difficulties for the courts. In Chapter 6, we will see that some pet owners are willing to spend significant amounts of time and

money seeking custody of their pet in the event of a breakdown of a marriage or de facto relationship. How are the courts to negotiate this conflict? In addition, what value is to be bestowed on companion animals by the courts in the event of the negligent destruction of those animals? Because they are chattels, the law would ordinarily award market-based damages; that is, the cost of buying a replacement pet. However, to assess and award damages on this basis is to ignore the very real emotional significance an owner might attribute to that pet. How are the courts to negotiate this conflict between an animal’s market and personal value? When shocking images of cruelty were broadcast in 2011 in relation to live animal exports from Australia to Indonesia, there was a large-scale public outcry. However, the reality is that animals are property and can generally be exploited as such by their owners, just like any other form of property. The shock felt by many Australians stands in stark contrast to the reality discussed in Chapter 9, where poultry, cattle and pigs are characterised by the law as property to be exploited for the production of food for people and for use in scientific and medical experiments. How are the courts to negotiate this conflict? One of the most fundamental obstacles to large-scale animal welfare reform in Australia and other countries is the deeply entrenched legal characterisation of animals as mere property; a characterisation that is generally accepted without question by many people within society. And yet this characterisation can be viewed as being at odds with the affection that many in our society extend to animals generally and to companion animals particularly. Throughout this text we will observe that this conflict is resolved time and again in the economic or domestic interests of people. We will see that while animals are considered property, many of the legal regimes explored in this text permit them to be exploited as units of production to satisfy human ends.

We will framework.

start

by

considering

the

Australian

regulatory

[page 78]

Australian regulatory framework 3.5 As noted above, attempting to understand the legal and regulatory framework for animals and animal welfare can be a difficult task. Animals are regulated throughout Australia by: • general Commonwealth policies or strategies that are not legislative instruments; • very specific model codes of practice (MCOPs) and standards for the welfare of animals that are also not legislative instruments; • State animal welfare legislation that attempts to give effect to general Commonwealth policies or strategies; and • local council regulations concerning the management of certain companion animals, such as dogs and cats. One of the more difficult challenges associated with animal law in Australia is finding a way through this policy and legislation jungle. For example, how do you start to investigate the regulation of Australia’s live export trade with Indonesia or the Middle East? How do you identify the powers that a local council has to seize and destroy a dangerous dog? Why are some animals allowed to be destroyed as pests when there is legislation in each State and Territory that prohibits acts of cruelty toward animals? When can a university or hospital use an animal for scientific research? Because the Australian Animal Welfare Strategy (AAWS) (see 3.7) anticipated the Commonwealth assuming policy and regulatory leadership for animals and animal welfare law, the starting point is to identify Commonwealth Acts, subordinate legislation, codes, standards and strategies that are relevant to the issue. The next

step is to then identify those States or Territory Acts, subordinate legislation, codes or strategies that are relevant. In some cases, State and Territory legislation attempts to incorporate relevant Commonwealth codes, effectively translating the terms of such codes into the law of the State or Territory. In other States, the codes may be voluntary or simply advisory in nature. In these situations, State or Territory legislation may nevertheless create exceptions or defences if conduct complies with the terms of a code. Let’s start with an overview of the Commonwealth regime.

Commonwealth 3.6 The Commonwealth Department of Agriculture and Water Resources (DAWR) is the principal regulatory agency at the Commonwealth level with portfolio responsibility for animals and their welfare. The former Commonwealth department regulating agriculture and animal welfare, the Department of Agriculture, Fisheries and Forestry (DAFF), was responsible for developing the AAWS, which was intended to function as a general overarching strategy for the regulation of animals in Australia. The AAWS was initially endorsed by the Primary Industries Ministerial Council (PIMC) in May 2004, and formed the basis for State and Territory approaches to animal welfare. The AAWS applies to all sentient animals, in recognition of the fact that the sentience of animals ‘is the reason that welfare matters’.5 It states that all Australians have a ‘duty [page 79] of care to ensure that the welfare of animals is maintained and protected’, and that in the management of animals ‘unnecessary suffering’ should not be inflicted.6 While these statements do not

have the force of law, they constitute important expressions of Australia’s policy position on the issue. 3.7 In 2005, the Commonwealth Government allocated four years of funding to enable the AAWS to be implemented. To do that, the Australian Animal Welfare Strategy Advisory Committee (AAWSAC) was established. Its task was to oversee the gradual implementation of the AAWS. The process of implementing the AAWS was guided by the National Implementation Plan of the Australian Animal Welfare Strategy (National Implementation Plan), which was endorsed by the PIMC in April 2006. The overall coordination of the National Implementation Plan was overseen by the Primary Industries Standing Committee (PISC), which in turn reported back to the PIMC. As part of this implementation process, six ‘sectoral groups’ were established, each with specific areas of responsibility for the comprehensive reach of the AAWS. Those six sectoral groups were responsible for specific groups of animals, as follows: 1. animals used for work, sport, recreation or display; 2. animals in the wild; 3. companion animals; 4. livestock/production animals; 5. aquatic animals; and 6. animals used in research and teaching. These groups completed their reports and a summary of their findings can be found in the August 2006 Final Summary Report on Priorities for Action from Inventories of Animal Welfare Arrangements.7 In August 2011, DAFF released the revised AAWS and National Implementation Plan for 2010–2014.8 This edition of the AAWS was intended to be the lead policy document informing State and Territory regulatory initiatives concerning animals and animal welfare. However, in 2013 the Federal Government removed funding for the AAWS, resulting in the dismantling of the AAWSAC and sectoral groups. As Goodfellow notes, ‘the AAWS is now simply a document with no governance or administrative structure, or sustained funding source to ensure its

[page 80] implementation’.9 While the AAWS policy document remains visible on both the DAWR and the AAWS webpages, there has been no regulatory activity in relation to it since defunding in 2013. In the absence of any constitutional power, the AAWS was always essentially an aspirational document. It proposed the implementation of a mission to achieve certain outcomes and benefits through a cooperative process that involved all stakeholders working together to achieve ongoing and sustainable improvements in animal welfare. While the AAWS is now defunct, the welfare aspirations it embodied continue. However, there remain many difficulties to be overcome in realising these aspirations and benefits, which are discussed in the relevant chapters of this text. The main challenge at the Commonwealth level is the significant numbers of councils, departments, committees and working groups that are involved in implementing the aspirations of the AAWS in circumstances where the entire process has been defunded.

Animal welfare standards and guidelines 3.8 At the time of writing, the MCOPs are in the process of being reviewed and rewritten, and will be converted into Australian animal welfare standards and guidelines which combine both national welfare standards and industry ‘best practice’ guidelines for particular species or enterprises. These include standards and guidelines for land transport of livestock, cattle, sheep, horses and exhibited animals. A number of MCOPs have already been replaced. For instance, the Australian Animal Welfare Standards and Guidelines for Cattle (2016) have replaced the Model Codes of Practice for the Welfare of Animals: Cattle (2nd edition, 2004). The standards constitute ‘the legal requirements for livestock welfare’ and ‘provide the basis for developing and implementing

consistent legislation and enforcement across Australia’.10 The guidelines ‘complement the standards’ and are ‘the recommended practices to achieve desirable livestock welfare outcomes’.11 The States and Territories are in the process of legislating the new Standards and Guidelines for Cattle into law.12 In most jurisdictions, failure to comply with the standards will constitute an offence,13 while non-compliance with the guidelines will not.14 To develop the standards, the government is consulting with a variety of stakeholders, including industry groups, State and Territory governments, and animal welfare groups.15 Writing groups are formed to draft specific standards and guidelines, under the guidance of Animal Health Australia (AHA). For the development of livestock [page 81] standards, they are comprised of an independent chair, the AHA Livestock Welfare Manager and Project Officer, an Australian Government representative, an Animal Welfare Committee government representative, industry members, independent scientists, and invited consultants.16 For instance, the writing group who created the draft guidelines for the Australian Animal Welfare Standards and Guidelines for Cattle consisted of ‘… representatives from the Animal Welfare Committee (AWC), Cattle Council of Australia (CCA), Australian Lot Feeders’ Association Inc (ALFA), Dairy Australia, CSIRO and the Department of Agriculture (formerly DAFF) and led by an independent chair and supported by Animal Health Australia (AHA)’.17 Assisting the writing groups are ‘widely representative’ Standards Reference Groups (SRGs).18 The draft standards are sent to public consultation, accompanied by a Regulation Impact Statement (RIS). The finalised standards and guidelines are then endorsed by State and Territory governments, through the Agriculture

Ministers’ Forum (AGMIN, formerly PIMC). Legal implementation remains the responsibility of the State and Territory governments.

States and Territories 3.9 As noted earlier, it is the States and Territories that have the principal legislative responsibility for the regulation of animals and animal welfare in Australia. However, State and Territory animal regulation is intended to reflect Commonwealth policy initiatives. As a result, State and Territory animal regulation often attempts to give Commonwealth policy the status of law by incorporating that policy into State or Territory legislation. This process can be demonstrated by taking the regulation of animal welfare in Queensland as an example. The Department of Agriculture and Fisheries (DAF) has legislative responsibility for animal welfare in Queensland and, therefore, oversight of the Animal Care and Protection Act 2001 (Qld). This Act prescribes certain Australian animal welfare codes of practice that, in effect, give legislative force to the contents of the Commonwealth MCOPs issued under the auspices of the PIMC, discussed above at 3.8. However, the legal status of these MCOPs is uncertain and depends on the extent to which a State or Territory has legislated to apply them as law under their jurisdiction. For example, in Queensland there are presently four forms of legal application of codes of practice: 1. There are ‘adopted’ codes of practice that are not compulsory and used as references for standards of care for animals. [page 82] 2. There are also parts of these adopted codes of practice that have been made compulsory by virtue of the Animal Care and Protection Regulation 2012 (Qld).

There are ‘compulsory codes’ under the Animal Care and 3. Protection Act 2001 (Qld) whose provisions are mandatory. 4. There are also codes of practice that are neither compulsory nor adopted under the Animal Care and Protection Act 2001 (Qld). These codes of practice have no legal status. Complicating matters somewhat is the fact that, as mentioned above in 3.8, the Commonwealth MCOPs will be progressively replaced by Australian animal welfare standards and guidelines. State and Territory legislation implementing the standards and guidelines will be gradually implemented as the codes are replaced. However, despite the aim of national consistency, each State and Territory jurisdiction will be able to determine the legal effect of the standards and guidelines. While ideally they would all consistently differentiate between standards for animal welfare that will be compulsory and guidelines that will take the form of recommended practices, they are not required to do so. For instance, some jurisdictions may opt to have advisory standards and guidelines only.

Evaluation of Australia’s animal law regulatory regime 3.10 The complexity of Australia’s animal law regulatory regime has been repeatedly criticised for its failure to both protect the welfare of the vast majority of animals in Australia and achieve meaningful advances in animal welfare.19 There are several reasons for this criticism, but the major four are: 1. complexity of the regulatory regime; 2. existence of an inherent conflict of interest in the bodies responsible for drafting animal welfare codes and standards; 3. inconsistencies and often contradictory language and structure of animal welfare laws; and 4. lack of a coherent and adequately resourced strategy to enforce animal welfare laws. These alleged deficiencies are interrelated. Because Australia’s regulatory regime is so complex, inconsistencies and

contradictions often arise. This complexity also means that most animal welfare policies are not created by parliament, but by government departments through committees that are composed of industry representatives. As a result, a conflict of interest is often at work. The lack of a national or overarching animal welfare law or regulator means that enforcement of existing animal welfare laws is left to a charitable organisation: The Royal Society for the Prevention of Cruelty to Animals (RSPCA), a vastly underfunded entity. Let’s look at these deficiencies more closely. [page 83]

Complexity 3.11 Earlier in this chapter, we explored the way in which laws governing animals and their welfare across Australia have been created and administered through a complex bureaucratic structure. We noted that although the Commonwealth Government does not have direct constitutional power to create laws relating to animals, it has assumed a leadership role in creating animal welfare and related policies. It does this through the articulation of national animal welfare policy and the development of MCOPs which are being progressively translated into animal welfare standards. Commonwealth policy, MCOPs or animal welfare standards do not have the status of law; they are not legislative instruments like statutes. It is not possible for any authority to institute legal proceedings alleging that a person has, for example, breached a provision of the AAWS or any of the MCOPs or standards. As discussed at 3.9 above and in later chapters, it is the responsibility and at the discretion of the States and Territories to give legal effect to Commonwealth policy aspirations and MCOPs and standards through State or Territory laws. In theory, this

cooperative approach overcomes the Commonwealth’s lack of constitutional power to directly legislate. In practice, however, the universal application of Commonwealth policy aspirations, MCOPs and standards has been inconsistent and, in some cases, duplicated in State legislation and codes. In addition, in some States compliance is mandatory, while in others it is voluntary. For example, in Chapter 7 ‘Animals as Entertainment’, we will explore the use of animals for entertainment in zoos, circuses and other sports events. The Commonwealth created the Recommended National Circus Standards (Circus Standards) to regulate this area. In fact, the Circus Standards were not created by the Commonwealth Parliament but by the former National Consultative Committee on Animal Welfare (NCCAW). The NCCAW was an advisory body to the DAFF which had no formal legislative basis. The Circus Standards do not have the force of law. The only legal force behind the Circus Standards derives from the extent to which they have been translated into law in individual States and Territories. However, few States and Territories have comprehensively implemented the Circus Standards as mandatory standards.20 Rather, most States have created their own regimes, which are also discussed in Chapter 7. Even where a State or Territory has specifically incorporated a Commonwealth MCOP or standard into legislation, the extent of the incorporation and its legal effect are often very confused. We will return to this issue below at 3.13.

Conflicts of interest 3.12 The Commonwealth MCOPs and animal welfare standards are created by a variety of non-statutory entities and issued by different councils or committees. Most were issued under the auspices of the PIMC, which was composed of the primary industries ministers from each State and Territory. The objective of

the PIMC was ‘to develop and promote sustainable, innovative and profitable agriculture, fisheries/aquaculture, [page 84] and food and forestry industries’.21 The PIMC has now been replaced by AGMIN, which has the same composition and purpose. It has been argued that there exists an inherent conflict of interest between the pursuit of the profitable development of primary industries and the provision of adequate animal welfare standards. Elizabeth Ellis argues that where there is a conflict of these interests, the welfare of animals is generally subordinated to efficient industry practices and market forces.22 This is known as ‘regulatory capture’, which refers to the ‘process whereby a regulatory agency acts in the interests of the industry it is charged with regulating in a way that is inconsistent with the public interest the regulation is designed to serve’.23 Recent research by Goodfellow has provided ‘broad support for the proposition that the current farm animal welfare regulatory framework is predisposed to regulatory capture’.24 His research:25 … indicates that the design of the framework gives rise to structural incentives for the departments to prioritise industry productivity over animal welfare, and that the regulators identify more strongly with the culture and interests of livestock industries than with those of animal welfare stakeholders and generally manifest an instrumental view of animal welfare.

Conflicts of interests were evident from the very beginning of the creation of the MCOPs and standards. The MCOPs were developed by bodies whose composition included members of government departments which focused primarily on industry productivity rather than animal welfare. Ellis provides the example of New South Wales representatives being drawn from the Animal Welfare Branch of the New South Wales Department of Primary Industries whose stated goal is to act ‘in partnership

with industry and other public sector industries in New South Wales’.26 At present, therefore, Commonwealth MCOPs and animal welfare standards are created by committees that are composed of representatives of both government departments whose principal focus is not animal welfare and representatives from government primary industry departments whose principal focus is the economic and profitable development of primary industries.27 Recently, the Australian Government’s Productivity Commission concluded that ‘the current process for setting standards for farm animal welfare does not adequately value the benefits of animal welfare to the [page 85] community’.28 To remedy this situation, they recommended that the standards should be developed by a new independent statutory agency (the Australian Commission for Animal Welfare).29 The new process ‘would include science and community ethics advisory committees to provide independent and rigorous evidence on animal welfare science and community values’.30 This recommendation provides support for a growing movement seeking the establishment of an independent office of animal welfare at the federal level.31 Currently, none of the State and Territory governments have a specific department solely dedicated to animal welfare. Introducing a national independent office of animal welfare could help to address conflicts of interest, as the office would have as its sole focus the development and maintenance of adequate animal welfare standards.

Confusing language and structure 3.13 Even where an MCOP or animal welfare standard has been incorporated into State or Territory legislation, in many cases there are inconsistencies in the relationship between the adopted

code or standard and other State or Territory animal welfare legislation. For example, in Chapter 8 ‘Animals and Cruelty’ we will discuss how each State and Territory has enacted animal welfare legislation that prohibits acts of cruelty toward animals. However, this same legislation also creates specific exemptions or defences for conduct toward animals that is permitted under an MCOP or standard. The effect of this is to place most of the animals in Australia beyond the reach of animal welfare legislation, despite that legislation’s specific intention. For example, the long title of the Animal Care and Protection Act 2001 (Qld) states that it is: … An Act to promote the responsible care and use of animals and to protect animals from cruelty, and for other purposes.

Section 15(1) of the Act provides that a regulation may require a person to comply with the whole or part of an MCOP. However, reg 3(3) of the Animal Care and Protection Regulation 2012 (Qld) provides that almost all of the codes of practice and standards are completely voluntary and not enforceable in Queensland. In addition, s 40 of the Animal Care and Protection Act 2001 (Qld) creates a specific offence exemption for conduct that was permitted by a code of practice (which is not enforceable anyway). We will be exploring these relationships between MCOPs and State and Territory legislation in more detail in Chapters 8 and 9 of the text. [page 86]

Enforcement 3.14 There is no single enforcement authority that is responsible for animals and animal welfare in Australia. In reality, this area of enforcement is fragmented across different government departments and private associations, such as the RSPCA. The

RSPCA is, in fact, a collection of eight different private charitable associations that are incorporated under State and Territory associations incorporation legislation. The RSPCAs in each State and Territory have limited enforcement powers and funding.32 The difficulty in detecting and prosecuting contraventions of Australia’s animal laws is exacerbated by State and Territory initiatives such as the Prevention of Cruelty to Animals Amendment (Prosecution) Act 2007 (NSW), which is intended to limit who can prosecute contraventions of animal welfare laws in New South Wales.

Philosophical evaluation 3.15 This text invites you to take an integrated approach to animal law in Australia. This means that it has been written in a way that demonstrates how the legal and regulatory regimes discussed in each chapter reflect certain underlying philosophical influences. The nature and content of the principal philosophical influences on animals and animal law are set out in Chapters 1 and 2. As you read through the subsequent chapters of this text, attempt to identify whether the law being explored reflects one or more of the philosophies, or even a conflict between the competing philosophies, that are discussed in Chapters 1 and 2. For example, in Chapter 8 we will see that State and Territory animal welfare legislation largely reflects Jeremy Bentham’s recognition of the capacity for animals to feel pain. However, in later chapters we will see that the law also permits humans to exploit animals for food, science and entertainment. Using animals simply as a means to an end echoes Immanuel Kant’s admonition against humans treating other humans as a means to their ends. However, animals are not humans but do, nevertheless, feel pain. The decision to subordinate an animal’s interest in not experiencing pain to the preference of humans to enjoy eating animal meat is clearly evidenced in the way that

codes of practice and animal welfare standards permit the exploitation of animals for human purposes.

Further reading M Caulfield, Handbook of Australian Animal Cruelty Law, Animals Australia, Melbourne, 2008, Ch 3. A Dale, ‘Animal Welfare Codes and Regulations — The Devil in Disguise?’ in Animal Law in Australasia, P Sankoff and S White (eds), The Federation Press, Sydney, 2009, p 174.

[page 87] Department of Agriculture and Water Resources, Australian Animal Welfare Strategy (AAWS) and National Implementation Plan 2010–2014, Australian Government, Canberra, August 2011, on (cited 10 August 2017). E Ellis, ‘Making Sausages and Law: The Failure of Australian Animal Welfare Laws to Protect both Animals and Fundamental Tenets of Australia’s Legal System’ [2010] 4 Australian Animal Protection Law Journal 4. K Plowman, A Pearson and J Topfer, ‘Animals and the Law in Australia: A Livestock Industry Perspective’ (2008) 91 Reform 25 (Australian Law Reform Commission). S White, ‘Regulation of Animal Welfare in Australia and the Emergent Commonwealth: Entrenching the Traditional Approach of the State and Territories or Laying the Ground for Reform?’ (2007) 35 Federal Law Review 347.

1.

2. 3. 4.

K Plowman, A Pearson and J Topfer, ‘Animals and the Law in Australia: A Livestock Industry Perspective’ (2008) 91 Reform 25 (Australian Law Reform Commission) at 29. P Jamieson, ‘Duty and the Beast: The Movement in Reform of Animal Welfare Law’ (1991) 16(2) University of Queensland Law Journal 238. ibid. Official record of the Debates of the Australasian Federal Convention, Sydney, 22 September 1897, pp 1059–64, on

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