Tag Archives: Animal law

Animals in constitutions around the world

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Animal lives are shaped by human laws, though they do not elect or lobby or stand as lawmakers. And animals may benefit from those laws, though they do not draft pleadings or instruct counsel or make choices about the use of litigation in broader social change strategies. In terms of prevailing constitutional theory and practice, they are subjects, but not citizens; beneficiaries, but not enforcers, of law. They think, and feel, and communicate, but not in ways that allow them to speak for themselves in the languages of formal law.

Jessica Eisen, ‘Animals in the Constitutional State’, I•CON (International Journal of Constitutional Law) (2017), Vol. 15 No. 4, 909, p. 941

Animals occupy an interesting position within legal systems. Animals have traditionally been considered property or things in law, but there have always been laws designed to deal with animals’ unique character within that class. For one thing, animals have minds of their own, autonomous physical mobility, and the ability to reproduce. The same laws that govern chairs could not completely suit such creatures, so special laws for animals are required. For another thing, humans are sometimes sufficiently morally concerned about the treatment of animals or their well-being to seek to rebut the usual presumption that one may do whatever one wishes with one’s property. Animals are not unique in this respect – ask anyone who owns a listed building – but the nature of the legal protection that animals receive, when they do receive it, is different from the nature of protection granted to inanimate property because of the different kinds of harms that animals suffer. (I discussed this phenomenon in my first post on this blog.)

Above, Eisen identifies a third way in which animals might need to be treated as a special category. This is by constitutional law. If you are not a lawyer: roughly, constitutional law is the body of law setting out how the state is constituted: its component parts, their relations with one another, and their powers and duties towards individuals, often expressed in the form of a bill of rights. Constitutional law is usually some combination of a written constitutional document (a Constitution with a big C) and unwritten constitutional principles or values, which are developed and applied in judicial decisions. A written constitutional document is usually adopted by a process that at least claims to be democratic and derives its legitimacy from that fact. If animals are part of the community of beings whose lives are governed by law, how can a constitution validated only by humans legitimately apply to animals? How could a constitution be legitimate with respect to animals? And how could, or should, a constitution recognise the status of animals as worthy of protection if the law treats them as property?

These questions assume that animals are part of the community of beings whose lives are governed by law and that animals are worthy of protection. The first assumption is a not-widely-held answer to a difficult question of legal theory. However, the second assumption is a widely-held view. It is not universal, and the nature and scope of the legal protection that animals deserve are controversial. But, without entering heavily-contested territory or getting into legal-theoretical weeds, we can quite safely ask: How can animals be protected by constitutions?

I hope to write a number of blog posts addressing this question. This post is a short survey of the countries that have explicitly mentioned the protection of animals in their constitutional documents. There are nine such countries: Austria, Brazil, Egypt, Germany, India, Italy, Luxembourg, Slovenia and Switzerland. Without dwelling on every example, we can see the range of approaches that have been adopted so far and their effects.

Constitutional provisions protecting animals have been classified in a number of ways, but no one ever got rich using someone else’s analytical framework. I think that a helpful way to divide up these provisions is between subject-matter duties, vague substantive duties and specific substantive duties. A subject-matter duty arises when a state is obliged to make laws concerning a particular subject, but the constitution does not guide or limit the state as to the content of those laws. A vague substantive duty arises when a state is obliged to undertake a particular activity or respect a particular value but is not obliged to achieve a particular result. A specific substantive duty arises when a state is obliged to achieve a particular result. We can classify our provisions along these lines by taking their text at face-value, but the interpretation of a provision will depend on legal doctrines and culture in the country.

We can start with the subject-matter duties. Article 72 of the Constitution of the Republic of Slovenia provides as follows (I have emphasised the crucial words for our purposes):

Zdravo življenjsko okolje
Vsakdo ima v skladu z zakonom pravico do zdravega življenjskega okolja. Država skrbi za zdravo življenjsko okolje. V ta namen zakon določa pogoje in načine za opravljanje gospodarskih in drugih dejavnosti.
Zakon določa, ob katerih pogojih in v kakšnem obsegu je povzročitelj škode v življenjskem okolju dolžan poravnati škodo.
Varstvo živali pred mučenjem ureja zakon.

Healthy living environment
Everyone has the right in accordance with the law to a healthy living environment. The state shall promote a healthy living environment. To this end, the conditions and manner in which economic and other activities are pursued shall be established by law.
The law shall establish under which conditions and to what extent a person who has damaged the living environment is obliged to provide compensation.
The protection of animals from cruelty shall be regulated by law.

The reason that this is only a subject-matter duty is that the fact that animal protection “regulated by law” does not guarantee any substantive level of animal protection. While it is arguable whether this provision would be satisfied if a law stated animals shall not be protected from cruelty (is this the regulation of the protection of animals from cruelty?), it is hard to interpret the provision as requiring the state to prohibit any specific acts.

Very recently, the Italian Chamber of Deputies approved a constitutional amendment that will, among other things, brings animals into the Constitution of the Italian Republic. Article 9 will now say as follows:

La Repubblica promuove lo sviluppo della cultura e la ricerca scientifica e tecnica. Tutela il paesaggio e il patrimonio storico e artistico della Nazione. Tutela l’ambiente, la biodiversità e gli ecosistemi, anche nell’interesse delle future generazioni. La legge dello stato disciplina i modi e le forme di tutela degli animali.

The Republic promotes the development of culture and scientific and technical research. It protects the landscape and the historical and artistic heritage of the nation. It protects the environment, biodiversity and ecosystems, also in the interest of future generations. The law of the state regulates the ways and forms of animal protection.

We can call this a subject-matter duty for the same reasons as apply to Slovenia.

Do these provisions have any value with respect to protecting animals? Even if they do not set a minimum standard of animal protection, they require the state to pass some kind of law relating to animal protection. Unless the legislature (or the executive, depending on the national system) can devise and pass a law unnoticed, there will have to be a national conversation of some sort about appropriate standards of protection for animals. Constitutional provisions imposing subject-matter duties are therefore of political value with respect to protecting animals.

Next we have vague substantive duties. Article 11 bis of the Constitution of the Grand Duchy of Luxembourg provides as follows:

L’Etat garantit la protection de l’environnement humain et naturel, en œuvrant à l’établissement d’un équilibre durable entre la conservation de la nature, en particulier sa capacité de renouvellement, et la satisfaction des besoins des générations présentes et futures. Il promeut la protection et le bien-être des animaux.

The State guarantees the protection of the human and cultural environment, and works for the establishment of a durable equilibrium between the conservation of nature, in particular its capacity for renewal, and the satisfaction of the needs of present and future generations. It promotes the protection and well-being of animals.

Similarly, Austrian constitutional law no. 111/2013 on sustainability, animal welfare etc, provides at paragraph 2, as follows:

Die Republik Österreich (Bund, Länder und Gemeinden) bekennt sich zum Tierschutz.

The Republic of Austria (at the federal, state and local levels) commits itself to the protection of animals.

These provisions commit the state to a substantive position on the issue of animal welfare. It cannot neglect or choose to attach no importance to the protection and well-being of animals. It must promote them. But this is such a high-level duty that it is difficult to see how it would be enforced by a court or applied to a particular context.

A further example can enlighten us. Article 20a of the Basic Law (Grundgesetz) for the Federal Republic of Germany, which is the German constitution, provides as follows:

Der Staat schützt auch in Verantwortung für die künftigen Generationen die natürlichen Lebensgrundlagen und die Tiere im Rahmen der verfassungsmäßigen Ordnung durch die Gesetzgebung und nach Maßgabe von Gesetz und Recht durch die vollziehende Gewalt und die Rechtsprechung.

Mindful also of its responsibility toward future generations, the state shall protect the natural foundations of life and animals by legislation and, in accordance with law and justice, by executive and judicial action, all within the framework of the constitutional order.

This is another vague substantive duty. The state is committed to protecting animals, but what does this mean? Elien Verniers argues that this provision has both political and legal effects. Legally speaking, it allows fundamental constitutional rights to be limited on the basis of the protection of animals, which is a constitutional value of equal status. This has resulted in little change in judicial decisions involving the rights to freedom of research and freedom of religion, but it has had an impact on the scope of the rights to freedom of artistic expression and freedom of teaching. While before the adoption of this constitutional provision, constitutional freedom of artistic expression or teaching could not be limited on the basis of animal protection, now that can happen, because animal protection is a constitutionally-protected value. This led the Cologne Administrative Court to forbid educational experiments on mice when they could instead learn by watching videos (Verwaltungsgericht Köln, 22.08.2018 – 21 K 11572/17). This example shows that vague substantive duties can have an effect in practice, which will depend on how the constitutional law works in a given country.1

Now we have specific substantive duties. Article 45 of the Constitution of the Arab Republic of Egypt provides as follows:

.تلتزم الدولة بحماية بحارها وشواطئها وبحيراتها وممراتها المائية ومحمياتها الطبيعية
ويحظر التعدى عليها، أوتلويثها، أواستخدامها فيما يتنافى مع طبيعتها، وحق كل مواطن فى التمتع بها مكفول، كما تكفل الدولة حماية وتنمية المساحة الخضراء في الحضر، والحفاظ على الثروة النباتية والحيوانية والسمكية، وحماية المعرض منها للانقراض أو الخطر، والرفق بالحيوان، وذلك كله على النحو الذى ينظمه القانون

The State shall protect its seas, shores, lakes, waterways and natural protectorates.
Trespassing, polluting or misusing any of them is prohibited. Every citizen is guaranteed the right of enjoying them. The State shall protect and develop the green space in the urban areas; preserve plant, animal and fish resources and protect those under the threat of extinction or danger; guarantee humane treatment of animals, all according to the law.

This provision requires the state to guarantee “al-rifq bil-hayawan” (the humane treatment of animals or animal welfare). This is a specific substantive duty because, if the state fails to guarantee animal welfare, for example by allowing cruel practices, the state can be said to be in breach of the duty. The state must make laws that guarantee the welfare of animals and enforce them effectively.

Another specific substantive duty is to be found in Brazil. Article 255 of the Constitution of Brazil provides, in relevant part, as follows:

Todos têm direito ao meio ambiente ecologicamente equilibrado, bem de uso comum do povo e essencial à sadia qualidade de vida, impondo-se ao Poder Público e à coletividade o dever de defendê-lo e preservá- lo para as presentes e futuras gerações.
§ 1º Para assegurar a efetividade desse direito, incumbe ao Poder Público:
[…]
VII – proteger a fauna e a flora, vedadas, na forma da lei, as práticas que coloquem em risco sua função ecológica, provoquem a extinção de espécies ou submetam os animais a crueldade.

All have the right to an ecologically balanced environment, which is an asset of common use and essential to a healthy quality of life, and both the Government and the community shall have the duty to defend and preserve it for present and future generations.
Paragraph 1 – In order to ensure the effectiveness of this right, it is incumbent upon the Government to:
[…]
VII. protect the fauna and the flora, with prohibition, in the manner prescribed by law, of all practices which represent a risk to their ecological function, cause the extinction of species or subject animals to cruelty.

The provision is quite clear that the government must prohibit “as práticas” (literally the practices, but translatable as all practices, as in the official translation) that subject animals to cruelty. The value of this provision is illustrated by judicial decisions striking down laws that permit such practices. One such case concerned the practice of vaquejada (STF, ADI No. 4983, Relator: Min. Marco Aurélio, 06.10.2016, Diário Da Justiça Eletrônico [D.J.E.], 10.10.2016, 215). This is a traditional sport in north-east Brazil, involving two horse-riders who between them try to direct a bull into a marked area before knocking the bull over. In 2016, the Supreme Federal Court of Brazil (Supremo Tribunal Federal), sitting en banc, ruled, by a majority of 6 to 5, that the law passed by the State of Ceará permitting vaquejada was unconstitutional and void because it permitted the infliction of unnecessary suffering on animals. This case shows the force of a specific substantive constitutional duty, but it also shows a danger inherent in overturning democratically-approved laws. The decision was very controversial, and resulted not only in the passing by other states in Brazil of similar laws in protest (which were presumably also unconstitutional), but also in the adoption of a constitutional amendment creating a specific exception from the constitutional prohibition of cruel practices for traditional cultural practices (meaning that the new laws now comply with the constitution). It is a topic for another time, but one step forwards can be followed by two steps back when legal developments are far removed from popular opinion.

Now we have seen three kinds of constitutional provision protecting animals: subject-matter duties, vague substantive duties and specific substantive duties. We have two more countries to visit, one that combines several kinds of duties and another that has an unusual constitutional provision.

Switzerland is regarded as a progressive country when it comes to laws protecting animals. Although the electorate of the canton of Basel recently voted not to extend fundamental rights to primates in a long-awaited referendum, Switzerland has a reputation for legally innovative animal welfare laws. This is reflected in its constitutional law. Four articles of the Federal Constitution of the Swiss Federation are of interest to us. They provide as follows:

Art. 78 Natur- und Heimatschutz
1 Für den Natur- und Heimatschutz sind die Kantone zuständig.
2 Der Bund nimmt bei der Erfüllung seiner Aufgaben Rücksicht auf die Anliegen des Natur- und Heimatschutzes. Er schont Landschaften, Ortsbilder, geschichtliche Stätten sowie Natur- und Kulturdenkmäler; er erhält sie ungeschmälert, wenn das öffentliche Interesse es gebietet.
3 Er kann Bestrebungen des Natur- und Heimatschutzes unterstützen und Objekte von gesamtschweizerischer Bedeutung vertraglich oder durch Enteignung erwerben oder sichern.
4 Er erlässt Vorschriften zum Schutz der Tier- und Pflanzenwelt und zur Erhaltung ihrer Lebensräume in der natürlichen Vielfalt. Er schützt bedrohte Arten vor Ausrottung.
5 Moore und Moorlandschaften von besonderer Schönheit und gesamtschweizerischer Bedeutung sind geschützt. Es dürfen darin weder Anlagen gebaut noch Bodenveränderungen vorgenommen werden. Ausgenommen sind Einrichtungen, die dem Schutz oder der bisherigen landwirtschaftlichen Nutzung der Moore und Moorlandschaften dienen.

Art. 78 Protection of natural and cultural heritage
1 The protection of natural and cultural heritage is the responsibility of the Cantons.
2 In the fulfilment of its duties, the Confederation shall take account of concerns for the protection of natural and cultural heritage. It shall protect the countryside and places of architectural, historical, natural or cultural interest; it shall preserve such places intact if required to do so in the public interest.
3 It may support efforts made for the protection of natural and cultural heritage and acquire or preserve properties of national importance by contract or through compulsory purchase.
4 It shall legislate on the protection of animal and plant life and on the preservation of their natural habitats and their diversity. It shall protect endangered species from extinction.
5 Moors and wetlands of special beauty and national importance shall be preserved. No buildings may be built on them and no changes may be made to the land, except for the construction of facilities that serve the protection of the moors or wetlands or their continued use for agricultural purposes.

Art. 79 Fischerei und Jagd
Der Bund legt Grundsätze fest über die Ausübung der Fischerei und der Jagd, insbesondere zur Erhaltung der Artenvielfalt der Fische, der wild lebenden Säugetiere und der Vögel.

Art. 79 Fishing and hunting
The Confederation shall lay down principles on fishing and hunting and in particular on the preservation of the diversity of fish species, wild mammals and birds.

Art. 80 Tierschutz
1 Der Bund erlässt Vorschriften über den Schutz der Tiere.
2 Er regelt insbesondere:
a. die Tierhaltung und die Tierpflege;
b. die Tierversuche und die Eingriffe am lebenden Tier;
c. die Verwendung von Tieren;
d. die Einfuhr von Tieren und tierischen Erzeugnissen;
e. den Tierhandel und die Tiertransporte;
f. das Töten von Tieren.
3 Für den Vollzug der Vorschriften sind die Kantone zuständig, soweit das Gesetz ihn nicht dem Bund vorbehält.

Art. 80 Protection of animals
1 The Confederation shall legislate on the protection of animals.
2 It shall in particular regulate:
a. the keeping and care of animals;
b. experiments on animals and procedures carried out on living animals;
c. the use of animals;
d. the import of animals and animal products;
e. the trade in animals and the transport of animals;
f. the killing of animals.
3 The enforcement of the regulations is the responsibility of the Cantons, except where the law reserves this to the Confederation.

Art. 120 Gentechnologie im Ausserhumanbereich
1 Der Mensch und seine Umwelt sind vor Missbräuchen der Gentechnologie geschützt.
2 Der Bund erlässt Vorschriften über den Umgang mit Keim- und Erbgut von Tieren, Pflanzen und anderen Organismen. Er trägt dabei der Würde der Kreatur sowie der Sicherheit von Mensch, Tier und Umwelt Rechnung und schützt die genetische Vielfalt der Tier- und Pflanzenarten.

Art. 120 Non-human gene technology
1 Human beings and their environment shall be protected against the misuse of gene technology.
2 The Confederation shall legislate on the use of reproductive and genetic material from animals, plants and other organisms. In doing so, it shall take account of the dignity of living beings as well as the safety of human beings, animals and the environment, and shall protect the genetic diversity of animal and plant species.

We can see our three kinds of provision concerning animals here. First, and mostly, we have subject-matter duties. The first sentence of Article 78(4) and all of Article 79 and Article 80 set out domains in which the state is obliged to pass laws without specifying what those laws should achieve. Second, the commitment in Article 120 to take account of the dignity of living beings is a vague substantive duty. It is an interesting provision because it recognises at a constitutional level the distinctively Swiss legal value of animal dignity, but it is not hard-edged and it is unclear whether it applies in any way outside the direct context of genetic technology. Third, the second sentence of Article 78(4) is a specific substantive duty. The state must pass laws that protect endangered species from extinction.

Our last country is India, and it is unique because the constitutional provision we are looking at imposes a duty not on the state but on the individual citizen. Article 51A of the Constitution of India provides, in relevant part, as follows:

Fundamental duties
It shall be the duty of every citizen of India
[…]
(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;
[…]

As written, this would not grant animals any real protection at all. Not only does not concern the law-making power of the state, but it only requires citizens to “have compassion”, not to act with compassion. However, it has been interpreted expansively. This is, in the first place, because the constitutional role of fundamental duties has been expanded beyond what is obvious in the text. This was established in AIIMS Students’ Union vs All India Institute of Medical Sciences & others (2002) 1 SCC 428, in which R. C. Lahoti J said as follows:

Fundamental duties, though not enforceable by a writ of the court, yet provide a valuable guide and aid to interpretation of constitutional and legal issues. […] Constitutional enactment of fundamental duties, if it has to have any meaning, must be used by courts as a tool to tab, even a taboo, on State action drifting away from constitutional values

In Indian constitutional law, the values underlying fundamental duties can serve as aids to statutory interpretation and can ground limitations on state power. This was seen in the context of Article 51A(g) of the Constitution in Animal Welfare Board of India v Nagaraja and others (2014) 7 SCC 547. In this case, the Supreme Court of India considered the compatibility of state legislation permitting jallikattu, a traditional form of entertainment involving bulls, with the federal Prevention of Cruelty to Animals Act 1960. The court (K. S. Panicker Radhakrishnan J) concluded that jallikattu violated the Act and that laws permitting it were invalid. It did so by using Article 51A(g) of the Constitution to read new content into the Act and to give the protections in the act the normative force of constitutional rights. The judgment takes some time to expose fully but these three paragraphs show how the

32. Sections 3 and 11, as already indicated, therefore, confer no right on the organisers of Jallikattu or bullock-cart race, but only duties, responsibilities and obligations, but confer corresponding rights on animals. Sections 3, 11(1)(a) & (o) and other related provisions have to be understood and read along with Article 51A(g) of the Constitution which cast fundamental duties on every citizen to have “compassion for living creatures”. Parliament, by incorporating Article 51A(g), has again reiterated and re-emphasised the fundamental duties on human beings towards every living creature, which evidently takes in bulls as well. All living creatures have inherent dignity and a right to live peacefully and right to protect their well-being which encompasses protection from beating, kicking, over-driving, over-loading, tortures, pain and suffering etc. Human life, we often say, is not like animal existence, a view having anthropocentric bias, forgetting the fact that animals have also got intrinsic worth and value. Section 3 of the PCA Act has acknowledged those rights and the said section along with Section 11 cast a duty on persons having charge or care of animals to take reasonable measures to ensure well-being of the animals and to prevent infliction of unnecessary pain and suffering.

54. […] These five freedoms, as already indicated, are considered to be the fundamental principles of animal welfare and we can say that these freedoms find a place in Sections 3 and 11 of PCA Act and they are for animals like the rights guaranteed to the citizens of this country under Part III of the Constitution of India.

56. Rights guaranteed to the animals Under Sections 3, 11, etc. are only statutory rights. The same have to be elevated to the status of fundamental rights, as has been done by few countries around the world, so as to secure their honour and dignity. Rights and freedoms guaranteed to the animals Under Sections 3 and 11 have to be read along with Article 51A(g)(h) of the Constitution, which is the magna carta of animal rights.

The point of producing these paragraphs is not to show you exactly how the Indian constitution protects animals. That would require several blog posts. The point is that textually vague and unpromising constitutional provisions can have a profound legal effect when the system of constitutional law enables an underlying value to be identified and applied independently. Does this mean that our analysis of subject-matter duties, vague substantive duties and specific substantive duties is worthless, because the effect of a constitutional provision depends more on the constitutional context than on the words of the provision?

I think not, for two reasons. First, words do matter. India’s muscular constitutional jurisprudence makes it an outlier, at least among the countries we have looked at, with respect to how far from the literal meaning of the text courts are willing to go. In most countries, the precise formulation of a constitutional provision determines its effect, so it is useful to understand the possible formulations. Second, a country that wishes to add a provision concerning animal protection to its constitution may have one of a wide range of intentions. Maybe the population and the legislators are overwhelmingly pro-animal-rights, or maybe a constitutional amendment is the controversial result of a coalition agreement. Democratic considerations require a variety of options to be available to constitutional drafters. And, relatedly, if law-makers understand that the possibilities are more nuanced than having fundamental rights for animals on the one hand or no protection for animals on the other, it is more likely that animals will end up appearing in constitutions at all.

1Verniers’ full analysis of the effect of the German constitutional provision can be read at: Elien Verniers, ‘The impact of including animals in the constitution – Lessons learned from the German animal welfare state objective’, Global Journal of Animal Law (2020) 8.

What I’ve been watching this week

I have returned to, and finished, North Square, the 2000 barrister drama series by Peter Moffat. It’s not as polished as Silk but it is fantastic entertainment, held together by Phil Davis as the terrifying senior clerk. And it’s available to watch for free on All 4.

For the birds? Judicial review challenges to protect hen harriers and other animals

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This week I learned that some 7% of the United Kingdom consists of moorland cultivated for the sport of grouse shooting. The area of land used for grouse shooting within national parks alone is more than twice the size of Greater London. The sport of grouse shooting involves trying to kill red grouse with a shotgun. It is practised in two forms. In a driven grouse shoot, the more common and more prestigious form, beaters sweep across the moor in a line, driving grouse towards a stationary parallel line of shooters, who aim at the oncoming birds. In a walked-up shoot, which provides more physical exercise for the shooters, a line of shooters and beaters walks across the moor, causing the disturbed grouse to fly away from them and be shot at from behind. In both cases, the speed and low flight of a grouse presents a challenge to those wealthy enough to participate. 

The shooting of grouse and other birds for sport does not attract the same scale of public condemnation as fox hunting. This could be because mammals earn our compassion more easily than other animals, because shooting a bird is perceived as delivering a quick death not comparable to the suffering of a hunted fox, or because shooters tend to wear less ostentatious costumes than hunters. Nevertheless, grouse shooting is controversial. On the one hand, it involves the annual burning of vegetation on carbon-storing peat bogs, the culling of animals thought to threaten the health of grouse, and, of course, the killing of birds for fun. The Royal Society for the Protection of Birds campaigns, not for the end of grouse shooting, but for more sustainable practices. On the other hand, the British Association for Shooting and Conservation, a membership organisation that lobbies for the “interests of shooting”, claims that grouse shooting delivers local economic benefits and preserves unique moorland habitats at a low cost to the taxpayer.

Gamekeepers are responsible for ensuring that there is sufficient wildlife (or game) on an estate to provide good sport. In the context of grouse shooting, this primarily involves the elimination of animals considered to threaten the population of grouse. One of these animals is the hen harrier. Hen harriers are birds of prey that can be found across Europe and Asia. In the United Kingdom, hen harriers nest in moorland heather and feed grouse chicks to their young. Nesting hen harriers are often killed and their nests destroyed. It is suspected that this is done by gamekeepers, because the presence of this predator is not conducive to the aim of a large population of shootable grouse. Although such treatment of hen harriers is criminal, the law is not well enforced, due in part to the inherent difficulty of monitoring activity on vast expanses of moorland, and also due, it could be thought, to the political power of those running and visiting the estates. But the persecution of hen harriers cannot be allowed to continue without accepting the disappearance of the species from this country, because their numbers are extremely low. Birds of Conservation Concern 4: the Red List for Birds, published in 2015 by the British Trust for Ornithology, lists hen harriers as a species of conservation concern. In 2017, it was reported that only four breeding pairs remained in England. For this reason, it has been considered necessary to find ways of protecting and promoting the propagation of hen harriers while preventing or disincentivising their deliberate destruction on grouse moors.

Natural England, the public body charged with protecting and promoting the natural environment in England, has grappled with this problem. One potential solution has been the licensing of diversionary feeding. Diversionary feeding involves providing hen harriers will food so that they do not need to eat grouse chicks. Although this practice has succeeded in Scotland, landowners in England have not embraced it because it is claimed to be costly, ineffective, and liable to interfere with the suppression of other predator species.

Another potential solution is known by its proponents as brood management and by its detractors as brood meddling. These euphemistic terms refer to the practice of removing hen harrier chicks from their nests, raising them in captivity and releasing them as adults into the wild. BM, as one can neutrally say, is controversial. It is generally supported by those associated with grouse shooting and opposed by conservationists. However, such is the nature of the hen harrier problem that some find it difficult to imagine any successful solution without the buy-in of the landowners and shooters.

We now have to interrupt this narrative for a brief but important exposition of some relevant law.

Section 1(1) of the Wildlife and Countryside Act 1981 makes it a criminal offence to intentionally kill, injure or take any wild bird; to intentionally take, damage or destroy the nest of a wild bird while that nest is in use or being built; or to intentionally take or destroy the egg of any wild bird. Further, in respect of those species of birds listed in schedule 1 of the Act, section 1(5) makes it an offence to disturb a bird while the bird is building a nest or is in, on or near a nest containing eggs or young, or to disturb the bird’s dependent young. Hen harriers are listed in schedule 1.

It can be seen that section 1 of the Wildlife and Countryside Act makes unlawful practices including BM. However, under section 16 of the Act, the Secretary of State (who delegates this power to Natural England) may grant licences to permit an activity that would otherwise fall foul of section 1. In order to be so permitted, an activity must be for one of a fixed list of purposes set out in section 16(1). These include (section 16(1)(a)) “scientific, research, or educational purposes”, and (section 16(1)(c)) “the purpose of conserving wild birds”. Section 16(1A)(a) provides that Natural England may only grant a licence for any of these purposes if “it is satisfied that, as regards that purpose, there is no other satisfactory solution”.

Further to this, hen harriers are listed as a threatened species in annex 1 of the EU Birds Directive (2009/147/EC). This means that EU member states are required to take special conservation measures to ensure the survival and reproduction of hen harriers and to designate “special protection areas” for them. There are two special protection areas in England relevant to hen harriers: the Bowland Fells and the North Pennines Moors. Most hen harrier nesting activity in England takes place in these areas.

Section 8(1)(d) of the Conservation of Habitats and Species Regulations 2017 provides that a special protection area under the Birds Directive is a “European site” for the purposes of those Regulations. Under regulation 63 of the Regulations, if Natural England is considering authorising a plan or project that is likely to have a significant effect on a European site (for example when it is considering an application for a licence under section 16 of the Wildlife and Countryside Act), it must make an assessment of the implications of the plan or project for the site in view of the site’s conservation objectives. Having made that assessment, Natural England can only agree to the plan or project (that is, grant the licence) if it is satisfied that it will not affect the integrity of the European site.

In practical terms, the legal provisions explained above have the following effect. If you want to undertake BM or another conservation practice in England that would involve committing an offence under section 1 of the Act and that is likely to have a significant effect on a special protection area, you must apply to Natural England for a licence. In order for a licence to be granted to you, (a) the practice you wish to undertake must be for a specified purpose, (b) there must be no other satisfactory solution to achieving that purpose, and (c) the practice must not affect the integrity of the special protection area.

Back to our regularly scheduled programming. In 2015, Natural England’s Science Advisory Committee advised the Board of Natural England to initiate a scientific trial of BM in England. The Board accepted the advice and passed it to the Secretary of State for the Environment, Food and Rural Affairs (then Liz Truss MP). published a document called the Joint Action Plan which proposed, among other things, diversionary feeding and a BM trial. Such a trial would, it was proposed, need to be licensed under section 16(1)(a) of the Wildlife and Countryside Act 1981. In 2017, an application was made to Natural England for a licence under that section to carry out activities to obtain evidence of the effectiveness or otherwise of BM. The trial would examine the effect of BM on the moorland community as well as whether released hen harriers would go on to become successful breeding adults in the wild. The licence would cover the first two years of a five-year trial.

Considering the application, Natural England completed two assessments. One, the Technical Assessment, assessed the merits of the proposed trial generally. The other, the Habitats Regulations Assessment, assessed the implications of the proposed trial in view of the conservation objectives of the two relevant special protection areas (the Bowland Fells and the North Pennines Moors), as required by regulation 63 of the Conservation of Habitats and Species Regulations. In 2018, the Chief Operating Officer of Natural England accepted the application and approved the grant of a licence.

Natural England’s decision to grant this licence was met with disagreement by those who consider that brood management is an ineffective way to protect hen harriers that prioritises the concerns of the shooting lobby. Both the RSPB and Dr Mark Avery applied for permission to apply for judicial review the grant of the licence. Dr Avery is a scientist, a conservation activist and a former International Director of the RSPB. Permission was granted and the applications were heard together in the High Court by Mrs Justice Lang in December 2018 and January 2019. In March 2019, judgment was handed down dismissing the applications: R (RSPB) v Natural England; R (Mark Avery) v Natural England [2019] EWHC 585 (Admin). In October 2019, Lord Justice Newey granted both claimants permission to appeal to the Court of Appeal. The appeals began to be heard together in March 2020, but the hearings were interrupted by the illness of one of the judges. In May 2020, Natural England granted a second licence, in similar but not identical terms to those of the first licence, to enable the BM trial to continue until 30 September 2021. The appeals were re-listed and finally fully heard by Lords Justices Underhill (VP), Newey and Phillips in January 2021. Now, the parties made arguments about the second licence, and not the first licence, which had expired but which remained technically the subject of the legal challenge. Judgment was handed down dismissing the appeals on 9 November 2021: R (RSPB) v Natural England; R (Mark Avery) v Natural England [2021] EWCA Civ 1637.


There was no point in my creating suspense about the outcome of these proceedings. Judicial review challenges concerning animals tend to fail. It is more interesting to try to ask why this might be.

There were eight separate grounds of challenge before Lang J. They were clearly set out and dealt with at paragraphs [52] to [124] of the High Court judgment. The most interesting are the two in respect of which permission to appeal was granted. They are, first, that Natural England misapplied section 16(1) of the Wildlife and Countryside Act 1981, and, second, that it was unlawful to permit BM in the two special protection areas.

The claimants’ primary argument on the first issue was that it was a mistake to characterise the relevant purpose as that under section 16(1)(a), a “scientific, research, or educational” purpose. What had to be assessed was not the direct purpose of the proposed trial but the ultimate purpose of the activity, which was conservation (section 16(1)(c)). Once this was understood, it was clearly not the case that there was no other satisfactory solution to achieving the relevant purpose. Namely, either diversionary feeding or the effective enforcement of the offences under section 1 would be a satisfactory solution in respect of conservation. As such, if Natural England had identified the correct purpose, it should not have granted the licence. The Court of Appeal disagreed about the identification of the purpose. The appropriate purpose is the specific purpose for which the licence is sought. If it were necessary or possible to identify a higher-level purpose, which could often be conservation, the extended list in section 16(1) would be pointless. Natural England was right to consider that this trial had a research purpose, namely to gather evidence about the conservation and social science impacts of BM in England, and as such that there was no other satisfactory solution to achieving this purpose.

On the second issue, the claimants argued that the concept of BM was fundamentally incompatible with the integrity of the special protection areas. Even if the displacement of hen harriers took place within a single area, the birds were still removed from their habitat. The Court of Appeal considered that both the trial and BM more generally should be seen in the long term. On this view, any displacement was temporary, while the real purpose of the activity was the preservation and promotion of the hen harrier population in the area.

These issues, and those dispensed with in the High Court, are relatively pedestrian public-law issues. Can the fact that they were relied upon, and the fact that they failed, tell us anything about the use of the judicial review procedure to challenge decisions affecting the welfare of animals?

First, judicial review generally attacks procedural defects. Unless a decision is vitiated because it is ultra vires (outside the powers of) the public body altogether, or so unreasonable that no reasonable decision-maker could have made it, both of which are rare, an application for judicial review will usually have to identify a material consideration that was not taken into account, or a consultation requirement that was not met, or a principle of natural justice that was neglected (we have all heard enough about that recently). It is really only in the realms of fundamental rights that substantive review grows any teeth by way of proportionality analysis. And, as we all know, animals have no fundamental rights. If a public body makes a decision that is harmful to animals, the law is such that that in itself will usually provide no basis for a judicial review. If the decision is vulnerable, it will be by accident, because there happens to have been a legally significant error besides the contended moral wrongness of the decision. Until animals are granted or recognised as having meaningful rights in public law, or until more weighty duties are placed on the public bodies charged with making decisions affecting them, judicial review will be an unreliable technique for animal activists.

Second, judicial review is a powerful but blunt instrument. It can nullify a decision whatever the consequences if that decision is vitiated by a legal error. This is because the courts, in this field at least, are concerned with absolute rights and wrongs. A public body may never act contrary to procedural fairness or beyond its legal powers, regardless of any countervailing reasons for doing so in a particular case. In the same way, if a public body is within its rights to act in a certain way, a court will not weigh that against any reasons why it should not do so. The law’s dealing in such absolute terms is to be contrasted with politics and the balancing-acts and trade-offs between incommensurable interests that are conducted in that field. (These are the two moralities described by John Laws in The Constitutional Balance.) This situation puts animals at a disadvantage under the law because the law, like our society, generally takes the view described by Robert Nozick as utilitarianism for animals and Kantianism for people (by which he meant humans). This means that, while humans are recognised as possessing some absolute rights that can never be overridden, animal interests are only relative, always susceptible to submission to another goal. To succeed in a judicial review, you need a trump card, and animals have no trump cards.  

These two considerations do not mean that animal activists cannot usefully use the judicial review procedure. There will be times when an unpopular decision is vitiated by a procedural error unrelated to the merits of the decision, and a campaigning organisation could legitimately challenge that decision. The rule of law requires that unlawfully-made decisions be open to challenge regardless of litigants’ motivation. There will also be times when, even under the current law, a decision is unlawful for reasons genuinely related to the consideration of or impact on animal interests. The Humane League’s litigation about inherently unhealthy breeds of chicken could be one such case. Finally, the common law develops through litigation, and each application for judicial review presents the court with an opportunity, of varying significance, to do things differently.

These potential benefits have to be balanced against the significant financial cost of taking cases like this to court. Money is sometimes raised from individuals who have not been presented with a sober and objective assessments of the legal merits of the case. Might animal activists not do better to bring fewer speculative judicial review challenges, and spend the time and money building up their own voices on the political field, so that they do not have to complain after every decision that the shooting lobby, the farming lobby, or the development lobby has captured the public institutions? That way, they could set their sights higher than the dozens of UK-resident hen harriers, and aim to protect the thousands of red grouse that are killed for fun every year. If it could be done for foxes through political means, why not for birds?

This intersects with a further issue for animal activists. Should the guiding principle be conservation, that is the protection and promotion of species, or animal rights or welfare, where the focus is on individual living beings? My background, as can probably be seen by reading this post, is in the latter approach. I have not rehearsed the arguments here. It is fundamentally a moral question, not a legal or a tactical one. However, it is interesting to wonder whether one approach lends itself more readily than the other to legal enforceability against the state. If the aim is to lift certain debates outside the realm of politics and situate them in the courtroom, a campaigning organisation, or the movement in favour of animals generally, could cynically adopt the moral position that would most readily achieve this. Whether there is indeed a difference here, and if so in whose favour, is a question for another day.

What I’ve been listening to this week…

It is so nearly Advent. I have been sustaining myself with this incredible recording of César Franck’s Violin Sonata, performed live in Moscow by David Oistrakh and Sviatoslav Richter in 1968. I don’t think I am projecting an Advent feeling onto it: The first three movements have searching qualities, sometimes lost, sometimes frenzied and sometimes in deep despair. The final movement feels like Christmas.

Photo by Mark Hamblin.

The European Animal Rights Law Conference 2021

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On 17 and 18 September 2021, I attended the European Animal Rights Law Conference 2021 in Cambridge, United Kingdom. This was the second such conference to be hosted by the Cambridge Centre for Animal Rights Law. It brought together legal academics and practitioners from around Europe and beyond to discuss their latest research. For an explanation of what falls within the scope of animal rights law, as opposed to animal welfare law, please see my previous blog post.  

The programme for the conference can be found here and recordings of all the presentations will shortly be made available to watch online. This post does not provide an exhaustive account of the conference. It aims to whet the appetite, and to give an idea of the range of ideas circulating in the animal rights law community.

Raffael Fasel, executive director of the Cambridge Centre for Animal Rights Law, introduced the conference. As is impossible to resist, Dr Fasel drew a parallel between the work of the Centre and our common experiences in the last eighteen months, saying that animal rights are inseparable from human health, but that animal interests are generally only taken seriously when human interests are also at stake. The aim of work in this field is both to clarify such connections and make the case for the importance of animal rights for their own sake. 

Animals as agents, animals as knowers, animals as activists?

Angie Pepper and Richard Healey made the first substantive presentation. It was not legal, but philosophical. Drs Healey and Pepper developed the concepts of assent and dissent to address the problem of reconciling human-animal relationships with animals’ right to self-determination. The presentation was extremely clear and came in two parts. First, Dr Healey summarised the paper they had published together earlier this year, entitled ‘Interspecies justice: agency, self-determination, and assent’. Second, Dr Pepper explained their doubts about the conclusions in the paper.

The paper states that animals have a right to self-determination in a certain context, which is to say that their will is authoritative in that context, when two conditions are met. The conditions are, first, that the animal has sufficient interest in self-determination to ground duties in others, and, second, that the animal is a sufficiently competent decision-maker in the relevant context. Animals’ interest in self-determination itself derives from their agential capacities. When an animal (human or not) has a right to self-determination in a certain context, their will is structurally decisive in that context, which is to say that their will has normative authority in that context. To illustrate, a crow has a right not to have their body interfered with, and this right excludes all other reasons for interfering with the crow’s body. In other words, their right is absolute.

Humans use consent to navigate their self-determination. This means that they understand their right to self-determination and its correlative duties and are capable of intending to waive that right. For example, I understand that I have a right to non-interference with my body, but I waive that right when I consent to being hugged. But most animals cannot understand their right to self-determination on a normative level. This means that they cannot consent to waiving that right. As a result, it appears that it would be morally impermissible for humans to interfere with an animal’s right to self-determination by, for example, stroking, cuddling or bathing an animal.

To solve this problem, the paper develops the concepts of assent and dissent, which are, respectively, the wilful affirmation of, and the wilful refusal to engage in, an interaction. Assent and dissent may be active or passive but must be voluntary and based upon understanding of the interaction in question. In this way, the paper proposes that an animal can assent to an interaction with a human being without having the normative understanding to consent to it, making permissible certain human-animal interactions. A dog may not normatively consent to being cuddled, but they can assent to being cuddled by voluntarily affirming the cuddle in an active or passive way.

Dr Pepper explained that the inspiration for the paper was a stray cat who had adopted her and Dr Healey. The paper implicitly focussed on the question whether interactions within a companion animal relationship could be permissible. What it failed to tackle was the question whether the broader project or relationship within which such interactions took place could itself be permissible. On reflection, it appeared that the answer was no. Valid assent to specific interpersonal interactions cannot legitimise the relationships and institutions in which animals find themselves. This is because, in order to assent to something, an animal requires sufficient information about it and understanding of it, which as an empirical matter they cannot have in the cases of relationships and institutions. For example, an animal cannot consent to being a pet because they cannot, at the onset of the relationship or at any other stage, understand what is at stake, and their assent to specific interactions cannot be aggregated to form assent to a relationship or a status. Further, in the absence of any meaningful opportunity to leave the relationship, they cannot dissent from it. In order to be at all justifiable, a companion animal relationship would have to provide a pet with the opportunity to leave at any moment. The presentation concluded on this doubtful note.

Eva Meijer gave a wide-ranging presentation on the theme of animal agency and animals as knowers. Like the one before, it asked, rather than answered, questions. Dr Meijer’s starting-point was a new law passed by the Dutch legislature earlier this year that will significantly improve the welfare of farmed animals when it comes into force in 2023. Among other things, it may end factory farming in the Netherlands. Dr Meijer proposed that laws such as this move the conversation on from animal welfare to animal flourishing. And the question of animal flourishing is both species-specific and individual-specific. It cannot be easily measured from the outside. If we are going to take animal sentience seriously and go beyond anti-cruelty laws, we must grapple with the fact that animals are knowers, of the world and of their own lives; that animals are subject to epistemic injustice when we deny them this status; and that our knowledge of them is distorted by anthropocentrism, which is to say by our own interests in observing animals. Not only this, but the means of acquiring knowledge about animals generally violate their dignity in one way or another. So we are caught in a situation where we do not know enough about animals’ subjectivity to properly legislate for their flourishing, but we are both morally and epistemically constrained from understanding the circumstances under which they would flourish. 

Alasdair Cochrane gave the keynote address. He described it as more of a call to arms than a tight argument. The subject was interspecies solidarity, and there were two questions. Why should we think about solidarity in an interspecies context? And can solidarity cross a species barrier?

The context of the talk was Dr Cochrane’s work on the animal turn in political philosophy, or the political turn in animal ethics. The political-animal turn, from whatever perspective, is broadly based on the premise that benign human-animal relations require not only personal but also political and legal transformation. Changing hearts and minds is not enough, because political and legal institutional barriers prevent animals from leading good lives. Works such as Zoopolis by Sue Donaldson and Will Kymlicka, and Dr Cochrane’s own book Should animals have political rights?, set out visions of just worlds. Less effort has been expended asking how we achieve, and sustain, those visions. These, according to Dr Cochrane, are “very very very very very very very” tough questions. But he proposes that solidarity plays an important role. This is because it has played an important role in other social justice movements, in three ways: as a bond to create and maintain a political community; as a shared commitment to unite activists; and as an institutional framework to cement support of the vulnerable. In short, solidarity is a bridge between compassion and political or legal change.

Turning to the question whether solidarity with animals is possible, Dr Cochrane adopted the three forms of solidarity identified by Sally Scholz. These track the three purposes of solidarity. They are social, political, and civic solidarity. Humans can share social solidarity with animals: pets and police dogs are recognised as part of our communities. Even though not all animals are currently seen this way, it is in principle possible. Humans can share civic solidarity with animals: there exist institutional apparatuses for the protection of vulnerable animals, such as shelters, vaccinations for endangered animals, and police dog pensions. These examples may apply to a tiny proportion of animals, but they show that, in principle, civic solidarity can cross the species barrier. Can humans share political solidarity with animals? This is not clear, but it seems not. Political solidarity requires a unifying commitment to political action, which animals cannot share with humans because they cannot understand political action. Some might see animals’ deliberate resistance to oppression as commitment to the political fight against oppression. Dr Cochrane is doubtful. But even if we can only share social and civic solidarity with animals, we can have political solidarity with each other as humans on behalf of animals, which serves the same purpose. 

Animals in constitutions

We moved from the political to the legal. John Adenitire presented his forthcoming paper, which argues for a conception of the rule of law that takes seriously the sentience of animals other than humans. The paper forms part of an ongoing research project conducted by Drs Adenitire and Fasel on animal rights and constitutionalism. The top-line contention is that constitutional principles that focus only on humans at the expense of all other animals (and also at the expense of humans who lack certain privileged traits) lack justification. New, more justifiable principles must be forged. The rule of law is just one aspect of constitutional theory that must be reshaped to accommodate animals.

The (or a) dominant account of the rule of law is that it facilitates the guidance of human conduct by the law. On this account, the rule of law does not protect those who cannot fit their conduct to the guidance of the law. Such individuals are passive legal subjects, who are to be contrasted with active legal subjects, who are capable of understanding and adjusting their conduct to fit the law. Animals are passive legal subjects, as are some humans, such as infants and severely mentally disabled individuals. The rule of law as generally conceived only accounts for active legal subjects. If the rule of law is to protect not only animals but also the humans who are passive legal subjects, it requires a different rationale. Dr Adenitire proposes that a more inclusive account of the rule of law is that it restrains arbitrary power. Anyone, whether capable of understanding the law or not, can be protected by the restraint of arbitrary power. This conception of the rule of law is preferable and should be promoted.

Dr Adenitire substantiated this central argument with reference to three representative theories of the rule of law: Lon Fuller’s formal theory, Jeremy Waldron’s procedural theory, and T. R. S. Allan’s substantive theory. Each of these theories of the rule of law has a different thickness, but each is addressed exclusively to active legal subjects. Dr Adenitire does not commit to a thicker or a thinner conception of the rule of law, although he notes that a thicker conception would provide animals with greater protection. What he shows is that each of the formal, procedural and substantive theories can be adjusted to embrace passive as well as active legal subjects. So wherever a theorist sits on the question of the thickness of the rule of law, they should accept that the rule of law protects passive legal subjects, including animals, by restraining arbitrary power.

Are animals legal subjects at all? Dr Adenitire answers this question with an emphatic yes, because animals can and sometimes do hold legal rights. His justification for this position, which is familiar to animal rights lawyers, is set out clearly in the paper.

David Bilchitz’s presentation made legal theory concrete. He asked the question: Through which institutional structures should animal interests be addressed in democracies?

Professor Bilchitz’s starting-point was a 2016 decision of the Constitutional Court of South Africa, National Society for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional Development and another [2016] ZACC 46; 2017 (1) SACR 284 (CC). The case concerned a constitutional challenge by the National Council of Societies for the Prevention of Cruelty to Animals (as is its correct name) to section 7(1)(a) of the Criminal Procedure Act (CPA). In summary, section 7(1)(a) of the CPA means that, in South Africa, only natural persons, not legal persons, may institute a private prosecution. This excluded the NSPCA, which is a legal person. In effect, the NSPCA could not privately prosecute animal welfare offences. In the context of the poor enforcement of animal welfare law by public bodies, the inability of a specialist body to enforce the law was a significant problem. The NSPCA argued that the exclusion of legal persons from the power of private prosecution deprived them of the equal protection and benefit of the law for no legitimate government purpose. As such, section 7(1)(a) of the CPA was contrary to the rule of law and unconstitutional.

The High Court and Supreme Court of Appeal dismissed the NSPCA’s claim, but the Constitutional Court allowed the NSPCA’s appeal and declared that the NSPCA has the power of private prosecution, but not because the NSPCA’s main argument succeeded. Section 7(1)(a) of the CPA was not declared to be unconstitutional. However, the Court decided that the power of private prosecution was “expressly conferred by law” on the NSPCA under section 8(1) of the CPA. Section 6(2)(e) of the Societies for the Prevention of Cruelty to Animals Act, which gives the NSPCA the power to “institute legal proceedings connected with its functions”, should be read broadly to include the power of private prosecution. This broad reading is justified by “the unique legislative context of the animal protection regime” [52], “changes in legislation which have made the NSPCA structurally capable of private prosecutions” [53], and the “constitutional values” of animal welfare and conservation that the NSPCA is charged with upholding [61].

Professor Bilchitz pointed out that, in this fascinating judgment, the court did not properly tackle the issue of the NSPCA’s fitness as a prosecutor, in terms of resources and conflicts with its other functions. How, in principle, should a public body be set up in order to defend sentient beings with inherent value who cannot participate in democratic process? And can the NSPCA function in such a way in practice? The presentation answered these questions in such detail that the answers are best left to the recording. But they showed Professor Bilchitz’s expertise in both normative animal rights issues as they apply to institutions and the granular detail of the animal rights institutions that we have inherited.

Animals as persons and/or rights-holders?

Saturday’s first presentation was by Małgorzata Lubelska-Sazanów, who, refreshingly, took a civil-law approach to the issue of animal personhood. The civil codes of many European countries contain both dereification clauses, which affirm that animals are not property, and respective applicability clauses, which state that the provisions that govern property govern animals too. The result is that animals are property in all but name. However, judicial decisions tell another story. Since not all civil-law ownership rights (ius possidendi; ius utendi, fruendi, and abutendi; and ius disponendi) straightforwardly apply to animals, judges sometimes treat animals as special cases.

We were given two examples. First, in the German case AZ. VIII ZR 210/06, 9.1.2008, a horse that was sold suffered from a defective castration operation. The judge took into account the horse’s health when deciding whether damages could be recovered for breach of the contract of sale. (With my rusty German, I cannot locate the relevant passage in the judgment, but we can be confident that Dr Lubelska-Sazanów knows what she is talking about.) Second, in the Polish case I ACa 528/14, SA Krakow, 17.6.2014, the Court of Appeals in Kraków (First Civil Division) dealt with the issue of ownership rights over animals designated as homeless by the Polish Animal Protection Act. The Court summed up the trouble that judges face when confronted by the paradoxical legal status of animals:

Należy jednak podkreślić, że ustawa nakazuje stosować przepisy dotyczące rzeczy „odpowiednio”. Zastrzeżenie to wiąże się z postawą humanizmu wobec zwierząt. Z tego względu określa się wyraźnie, że zwierzę nie jest rzeczą (art. 1 ust. 1 ustawy). Taka interpretacja ustawy powoduje, iż odpowiednikiem prawa własności (rzeczy) jest prawo własności zwierzęcia, które jednak – ze względu na przedmiot niebędący rzeczą, nie jest własnością w rozumieniu art. 140 kc. Przepisy kodeksu cywilnego mają tutaj tylko odpowiednie zastosowanie.

It should be emphasized, however, that the Act requires that the provisions concerning things be applied “appropriately”. This reservation is related to the attitude of humanism towards animals. For this reason, it is clearly stated that the animal is not a thing (Article 1(1) of the Act). Such an interpretation of the Act means that the equivalent of the ownership right (thing) is the animal ownership right, which, however – due to the object not being a thing, is not property within the meaning of Art. 140 of the Civil Code. The provisions of the Civil Code only apply appropriately.

(Apologies for the Google-Translate-based translation!)

Dr Lubelska-Sazanów concluded that the simplest way out of this absurd situation was the creation of a third category of legal entities apart from persons and property, which would be the category of animals. This would avoid the troubles associated with applying a pre-existing package of rights or vulnerabilities to a sui generis group of beings. Civil legal codes would be capable of introducing such structural change with the addition of only a few articles.

Marina Lostal, presenting a published article, continued the trend of asking bold questions. Could animals qualify as victims before the International Criminal Court? She always knew, she said, that the answer to this question would be no. Under Rule 85 of the ICC’s Rules of Procedure and Evidence, there are three requirements to be satisfied in order to qualify as a potential victim. One must be a natural person; one must be capable of suffering harm; and such harm must be as a result of crimes under the jurisdiction of the court. Animals satisfy the second and third requirements, but not the first. As a matter of ICC precedent, a natural person is simply a human being.

Dr Lostal did not discuss whether this precedent was justified or capable of being overturned, because, in her opinion, it would also be wrong for animals to be treated as victims. It would open up the Court to accusations of triviality and of failure to use its limited resources efficiently, and it would mean using legal tools to address crimes that they are fundamentally ill-suited to address. But the question should be asked because it exposes the non-existence of animals in the Court’s legal framework. Animals feature in every reparations case that the ICC has ever dealt with, as an important practical and cultural part of the daily lives of victims of international crimes. The silence of international criminal law on the legal status of animals sits awkwardly alongside developing bodies of domestic law that consider animals to be legal subjects capable of bearing rights. Like Dr Lubelska-Sazanów, Dr Lostal considers that the codification of more nuance in this area would be reflective of legal practice and animals’ moral status.

Josh Jowitt spoke about what is probably the most famous animal-rights case in the English-speaking legal world: the Nonhuman Rights Project’s habeas corpus petition and subsequent appeals on behalf of Happy, a fifty-year-old Asian elephant kept alone in the Bronx Zoo in New York City. That litigation, like many topics mentioned here, deserves its own blog post. For now, it suffices to say that the New York Court of Appeals, the highest court in the state of New York in the United States of America, will shortly hear arguments about whether Happy is a legal person entitled to bodily liberty.

Dr Jowitt began by drawing a parallel between Happy’s case and the film Miracle on 34th Street. In both cases, a court must choose whether to follow a rule that would lead to injustice, or to disregard the rule and apply a broader principle in favour of justice. To support this analogy, Dr Jowitt drew on the work of the legal theorist Gustav Radbruch. In his 1946 paper, ‘Statutory Lawlessness and Supra-Statutory Law’, Radbruch proposed that judges consider a hierarchy of interconnected virtues when deciding cases. They are, in descending order, legal certainty, justice, and public benefit. Although, ordinarily, the primacy of legal certainly requires the application of unjust laws, some laws are so unjust that they undermine legal certainty, losing the very quality of law. In these situations, judges are obliged to do justice rather than apply the unjust rule. Dr Jowitt likened this situation to H. L. A. Hart’s penumbral cases, in which judges have discretion to go beyond the positive law. He argued that the fact that the Court of Appeals has agreed to hear Happy’s case, as part of a tiny minority of cases, shows that it is a penumbral case.

Dr Jowitt went on to make the point that the common law has always addressed injustice by being flexible. He referred to R v R [1991] UKHL 12; [1992] 1 AC 599, in which the House of Lords upheld Lord Lane CJ in the Court of Appeal in abolishing, or ceasing to recognise, a marital defence to rape. The Lord Chief Justice said: “This is not the creation of a new offence, it is the removal of a common law fiction which has become anachronistic and offensive and we consider that it is our duty having reached that conclusion to act upon it.” He also referred to a case beloved of animal rights lawyers, Somerset v Stewart (1772) 98 ER 499, in which Lord Mansfield held that the common law could not support a practice as immoral as human slavery. In conclusion, the presentation sought to provide a soft natural-law reason why the Court of Appeals should allow the Nonhuman Rights Project’s appeal in Happy’s case.

Darren Calley gave a presentation focussed on the question whether animals have any right to life. This issue is not generally given much space in animal law discussions, with the focus being on welfare and quality of life. Dr Calley puts this down to the utilitarian moral origins of animal welfare laws. Jeremy Bentham, the utilitarian philosopher, famously said that whether a being could suffer was what decided whether that being mattered morally. He wrote of animals in Morals and Legislation in 1789: “The death they suffer in our hands commonly is, and always may be, a speedier, and by that means a less painful one, than that which would await them in the inevitable course of nature. If the being killed were all, there is very good reason why we should be suffered to kill such as molest us: we should be the worse for their living, and they are never the worse for being dead.”

The two hundred subsequent years of animal welfare legislation in the United Kingdom prioritised the prevention of cruelty and, eventually, the positive promotion of welfare. Richard Martin’s Act in 1822 was broadened by John Pease’s Act in 1835; the 1849 Cruelty to Animals Act replaced that, and was in turn replaced by the 1911 Protection of Animals Act. The modern Animal Welfare Act 2006 was the first new piece of animal cruelty legislation in almost 100 years. Each new law was an incremental improvement, with no step-changes.

Dr Calley proposed that, in the late 1700s and early 1800s, animals lived such painful lives that the prevention of suffering was the overriding moral priority. The intervening years have seen the lives of animals significantly improve, or at least the lives of those that live visibly among us, as pets or in zoos. If animals’ lives are now more worth living in some sense, is it more meaningful to speak of a right to life than when Bentham wrote? One small statutory provision might hint at this. Section 17A of the Animals (Scientific Procedures) Act 1986, added by amendment in 2013, provides for the release and re-homing of animals that have been subjected to experiments. If animals’ lives have no inherent value, there could be said to be nothing wrong with painlessly killing animals once their use as test subjects has ended. This is contemplated in section 9(4) of the Animal Welfare Act 2006: “the destruction of an animal in an appropriate and humane manner” is not an offence. The 2013 amendment is a slight indication that it is not just pain and pleasure that matter for animals, and that Bentham’s comments in 1789 are no longer, as it were, good law.

Joe Wills and Saskia Stucki gave talks about animals and warfare, which I was unfortunate enough to miss. Knowing their work, I am sure that the recordings of their presentations will be worth watching.

At the risk of sounding obsequious, I struggle to reflect on the conference without feeling proud that this community is producing such original, rigorous and compassionate work. I was aware on several occasions during the talks that, to many in the wider legal world or outside the law altogether, the ideas discussed would seem far-fetched. To speak of a pet’s right not to be a pet is far removed from the concerns that most people have about animal welfare. To be an animal rights lawyer is often to be acutely aware of the distance between one’s own views and the views of most of society. But this is what it is to be at the vanguard of a movement for justice. Some ideas that now seem radical will gain acceptance as society hosts new conversations; some will be discarded. When Lord Pannick QC was before the Divisional Court in the second Miller case, about the prorogation of Parliament, he opened with a joke. “That got a good laugh, but unfortunately so did the rest of my submissions.” At first, the view among lawyers was that the case was the Prime Minister’s to lose. Lord Pannick went on to successfully convince the full bench of eleven Supreme Court justices of the correctness of his case. We will see which of the ideas aired at this conference will stand the test of time.

What I’ve been doing this week…

As part of my attempt to keep up with the debate on common-good constitutionalism in the United States, I read three great pieces by three great young scholars. Conor Casey sums up the debate so far (from the point of view of a proponent) (for Westlaw subscribers only, but the author can be contacted for a copy). Michael Foran valiantly makes the case for judicial review and fundamental rights under common-good constitutionalism. And Jamie McGowan makes the case against rights. I am far from ready to wade into this one, but I do feel prepared to say that the debate could do with more diversity of views about what constitutes the common good (and, indeed, more diversity of participants).

And train journeys prompted me to start my second viewing of Netflix’s Call My Agent! / Dix pour cent. Joyful, melodramatic escapism.

What is animal law?

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“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’.