“Highbury Poultry Farm Produce Ltd (“HPFPL”) operates a poultry slaughterhouse in Shropshire under the approval of the Food Standards Agency. The average throughput is 75,000 chickens per day, equating to 19.5m or so chickens per annum. The birds have their legs shackled to a moving line and are then submitted to a number of sequential processes, including stunning, bleeding and scalding. On each of 31 August, 12 September and 5 October 2016 a chicken went into the scalding tank (where its feathers would be removed) while still alive because, after stunning, its neck had not been properly cut by a certificated operative.”

R (Highbury Poultry Farm Produce) v Crown Prosecution Service [2020] UKSC 39, [2020] 1 WLR 4309 per Lord Burrows at [1]

“This Court agrees that Happy is more than just a legal thing, or property. She is an intelligent, autonomous being who should be treated with respect and dignity, and who may be entitled to liberty. Nonetheless, we are constrained by the caselaw to find that Happy is not a ‘person’ and is not being illegally imprisoned. As stated by the First Department in Lavery, 54 N.Y.S.3d at 397, ‘the according of any fundamental legal rights to animals, including entitlement to habeas relief, is an issue better suited to the legislative process’. The arguments advanced by the NhRP are extremely persuasive for transferring Happy from her solitary, lonely one-acre exhibit at the Bronx Zoo, to an elephant sanctuary in a 2300 acre lot. Nevertheless, in order to do so, this Court would have to find that Happy is a ‘person’ and, as already stated, we are bound by this State’s legal precedent.”

The Nonhuman Rights Project, Inc. (on behalf of Happy) v James J. Breheny (in his official capacity as Executive Vice President and General Director of Zoos and Aquariums of the Wildlife Conservation Society and Director of the Bronx Zoo) and the Wildlife Conservation Society, Bronx County Index No. 260441/2019 per the Hon. Alison Y. Tuitt at p. 16

“Every species has a right to life and security, subject to the law of the land, which includes depriving its life, out of human necessity. Article 21 of the Constitution, while safeguarding the rights of humans, protects life and the word ‘life’ has been given an expanded definition and any disturbance from the basic environment which includes all forms of life, including animal life, which are necessary for human life, fall within the meaning of Article 21 of the Constitution. So far as animals are concerned, in our view, ‘life’ means something more than mere survival or existence or instrumental value for human-beings, but to lead a life with some intrinsic worth, honour and dignity.”

Animal Welfare Board of India v A. Nagaraja and others [2014] 7 SCC 547 per K. S. Panicker Radhakrishnan J at [62]

Welcome to Green and Pleasant Blog! Please join our exploration of how to make the United Kingdom a better place for everyone and all things.

My first post is an introduction to animal law. Many of the subjects touched upon below beg to be discussed in detail. Please forgive a cursory survey for the time being. I hope that today’s post will contextualise more specialist entries in the future.

What is animal law?

There is no single settled definition. Taken at its broadest, animal law is very broad indeed. The law has (it seems) always dealt with animals, because the societies that humans have sought to organise using laws have (it seems) always included animals in one way or another. For example, around 2100 BCE, Yu the Great of China decreed that nets should not be cast into rivers to catch fish or turtles during the summer months (Deborah Cao, ‘Visibility and Invisibility of Animals in Traditional Chinese Philosophy and Law’ (2011) International Journal for the Semiotics of Law 24(3) 351 (359)). In the third century BCE, the Indian Emperor Asoka forbade the slaughter of certain animals, and of all animals in a certain place (Thomas G. Kelch, ‘A Short History of (Mostly) Western Animal Law: Part I’ (2012) Animal Law 19(1) 23 (36–39)). And Justinian’s Institutes explain at II.I.12–19 how property rights vested in different kinds of animals in Roman law.

Today, in the United Kingdom as in many countries, laws govern the civil liability of the owners of animals that cause harm (Animals Act 1971); it is a criminal offence to cause certain animals unnecessary suffering (Animal Welfare Act 2006), although scientific procedures that cause unnecessary suffering can be lawful if a licence is granted (Animals (Scientific Procedures) Act 1986); and the common law continues the Roman tradition in dictating how property rights vest in animals (Borwick Development Solutions Ltd v Clear Water Fisheries Ltd [2020] EWCA Civ 578, [2020] 3 WLR 755). As well as these criminal law and tort law topics, in various jurisdictions, particular rules and principles govern animals in housing law, family law, trusts law, and further areas.

This is a varied ecosystem of laws. How can they be taxonomised? (The relationship between law and taxonomy is an interesting story for another day.)

It appears that, worldwide and throughout history, the law has treated animals as property. This is certainly true of all the legal systems that are in any way inheritors of the Roman law tradition. But, unlike most property, animals can move freely and reproduce, so special rules help to fit animals into the property box. These could be seen as one kind of animal laws: those facilitating animals’ property status. Another kind of animal laws provides for the difference between animals and other property by not mitigating but positively reflecting their existence as living beings. These are the laws that protect animals from harm, but also those that facilitate their exploitation in ways different from normal property. These two categories – laws pushing animals towards the status of normal property, and laws pulling them away from it – could be one way to start taxonomising animal law.

The second category, which could be seen as the pro-animal one, can be further broken down into animal welfare law and animal rights law. This categorisation is used by some academics to describe two different ways in which the law can protect animals. The terms are often used interchangeably in legal practice and in the wider world. For example, a barrister specialising in cases involving animals might style themselves as an animal rights lawyer, even if their practice is in animal welfare law in the technical sense. No one can authoritatively decide what these terms mean, but the distinction between animal welfare law and animal rights law is useful for our purpose of trying to understand the scope of animal law.

Animal welfare law is the body of laws that specify the circumstances in which animals may be harmed or otherwise have their welfare compromised. All the laws the UK Parliament has passed to protect animals from harm fall under this banner. Here is an example from the stronger end of animal welfare laws.

Animal Welfare Act 2006
Section 4
Unnecessary suffering

(1) A person commits an offence if—
(a) an act of his, or a failure of his to act, causes an animal to suffer,
(b) he knew, or ought reasonably to have known, that the act, or failure to act, would have that effect or be likely to do so,
(c) the animal is a protected animal, and
(d) the suffering is unnecessary.

(2) A person commits an offence if—
(a) he is responsible for an animal,
(b) an act, or failure to act, of another person causes the animal to suffer,
(c) he permitted that to happen or failed to take such steps (whether by way of supervising the other person or otherwise) as were reasonable in all the circumstances to prevent that happening, and
(d) the suffering is unnecessary.

(3) The considerations to which it is relevant to have regard when determining for the purposes of this section whether suffering is unnecessary include—
(a) whether the suffering could reasonably have been avoided or reduced;
(b) whether the conduct which caused the suffering was in compliance with any relevant enactment or any relevant provisions of a licence or code of practice issued under an enactment;
(c) whether the conduct which caused the suffering was for a legitimate purpose, such as—
(i) the purpose of benefiting the animal, or
(ii) the purpose of protecting a person, property or another animal;
(d) whether the suffering was proportionate to the purpose of the conduct concerned;
(e) whether the conduct concerned was in all the circumstances that of a reasonably competent and humane person.

Animal welfare laws embody what in the animal advocacy movement is called a welfarist approach to animal protection. Welfarism, which has some of its roots in utilitarianism, aims to lessen animal suffering, but does not seek to absolutely prevent humans from exploiting animals. Some welfarists believe that it is morally acceptable for humans to keep and kill animals for food if they are not made to suffer. Others, who are sometimes called new welfarists, believe that animals should not be exploited by humans at all, but that, until the abolition of animal exploitation is a practical possibility, incremental improvements in animals’ lives should be pursued. Whatever the principle underlying the approach, animal welfare laws tend to facilitate the violent exploitation of animals while attempting to curb its worst excesses, such as deliberate cruelty. The protection of animals and the perpetuation of their mistreatment are often two sides of the same coin. Think of Yu the Great’s law, which saved animals from death during the summer while ensuring that they could be plentifully caught at other times of the year.

If you read in the news that a man has been sentenced for torturing and killing cats, or that the United Kingdom may require that cosmetics ingredients be tested on animals, or that trade deals with countries with poor farming standards may contribute to the suffering of animals abroad, these are issues of animal welfare law.

Animal rights law is an approach that considers animals to be legitimate subjects of fundamental legal rights. The term fundamental right means different things to different people in different jurisdictions. For present purposes, we can say that, in the United Kingdom, common-law constitutional rights and the rights protected by the European Convention on Human Rights are fundamental rights. But animal rights law is not an established body of laws like animal welfare law. Rather, it is an emerging framework within which proposals are made that challenge the current welfarist approach to animals in the law. At most, animal rights law is a field of scholarship and a small number of decided cases. The questions that animal rights lawyers ask include: Are animals capable of having fundamental legal rights? As a matter of morality or of consistency within current legal systems, should animals have fundamental legal rights? If so, what rights should they have? Do animals in fact already have fundamental legal rights? By what means could animals acquire, or be recognised as having, fundamental legal rights? And if animals had fundamental legal rights, what would that mean for human society?

These questions are generally explored in theory. Animal rights law is at present predominantly an academic field, because the world is at present largely an animal-welfare-law world. However, the last ten years have seen lawyers in many countries bring cases to court to claim that an animal has, or should be granted, fundamental legal rights. There has been notable litigation in Argentina, Austria, Colombia, India, Pakistan, Switzerland and the United States of America. Most of these cases have not succeeded, but some have. For example, in 2014, the Supreme Court of India decided that animals were the subjects of rights deriving from the Constitution of India (Animal Welfare Board of India v A. Nagaraja and others [2014] 7 SCC 547); and, in 2016, a chimpanzee called Cecilia was the subject of a successful habeas corpus petition in Argentina (Cecilia [2016] Tercer Juzgado de Garantías Mendoza P-72.254/15). Whether the successful cases are eccentric outliers or whether they will have important consequences for the development of the law is not yet clear. But all the cases, whether successful or not, provide fascinating insights into the interaction between animal rights law theory, the attitudes of judges, and the legal systems and cultures in different countries.

Two concluding thoughts.

First, there is another sense hidden in the term animal law. As well as law about animals, what about animalised law? The animal turn that has begun to creep through the law not only demands increased attention to how the law treats animals, but also invites reassessment of the nature of law in the light of modern scientific knowledge and ethical attitudes towards animals. This work is nascent, but the animal law movement would be disappointing if its analysis of animals and the law remained surface-level, failing to problematise a concept of law as a human construct that claims dominion over non-human life.

Second, scholarship and public discussion in the field of animal law is almost always normatively inflected. Most animal rights law scholars, for example, not only describe the legal mechanics of granting animals fundamental rights, but propose, explicitly or implicitly, that animals should have fundamental legal rights of one sort or another. This is understandable and reflects a trend across the legal profession. Of course people choose to work in an area that they care about. Animal rights sceptics rarely choose to dedicate their time to writing about animal rights law. But when exploring such a new field, where controversial claims are made, it is important to be aware of the distinction between, as Jeremy Bentham put it, expository (analytical) and censorial (normative) jurisprudence. This is all the more challenging when some expository writing has inherently normative elements, such as in the natural law tradition.

What ties these two thoughts together is that, in the view of many, the treatment of animals in most modern human societies constitutes a moral catastrophe. For example, some 70 billion land animals are killed to be eaten every year, and more fish than that. Almost none of them live good lives. The scale of suffering inflicted is beyond imagination. To people who think this matters, the law’s facilitation of it provides the opportunity to question the nature and legitimacy of the law.

I hope you can forgive the lack of detail in this overview of animal law. I need to leave myself something to write about in future weeks. For example, I hope to cover the second European Animal Rights Law Conference, hosted by the Cambridge Centre for Animal Rights Law, which will take place on 17 and 18 September 2021.

This week, I have been listening to Víkingur Ólafsson’s new album, Mozart and Contemporaries. I don’t have anything original to say about it. Once again, it is magical. He has made familiar music feel fresh, and exposed brilliantly some pieces that I had never heard. Good studying music but also a joy to listen to intently.

And, prompted by watching some tennis, I re-read David Foster Wallace’s famous article, ‘Roger Federer as Religious Experience’.