On Friday, I travelled from Oxford to Cambridge for the launch event of the newly established Cambridge Centre for Animal Rights Law. The Centre’s Director, Dr Sean Butler, and the Executive Director, Dr Raffael Fasel, organised a fantastic line-up of speakers to celebrate the launch.
The Centre is the first academic institute in the UK dedicated to working and teaching about legal rights for nonhuman animals.
Down to the business of the day…
Introduction – Dr Sean Butler & Dr Raffael Fasel
The day kicked off which an introductory talk from Dr Sean Butler and Dr Raffael Fasel introducing the Centre and discussing its aims for the future, which include, amongst other things: further lecture series, events for lay people, advanced (graduate) courses, trying to get an animal law course on the undergraduate academic agenda at Cambridge, and a text book.
Dr Gieri Bolliger
The real substance of the day started with a talk from Dr Gieri Bolliger, from Tier im Recht and the University of Zurich, who discussed the protection of ‘animal dignity’ in Swiss law. Dr Bolliger spoke about the updates to the Animal Welfare Act and the Animal Welfare Ordinance in Swiss law which occurred in 2008. These changes enacted statutory protections for animal dignity. Dr Bolliger said that animal dignity is protected by Article 3 of the Animal Welfare Act and that causing an animal stress can be a violation of this principle. Dr Bolliger was clear to point out though that not every violation of the principle will be considered a necessary ‘disregard’ of the principle which would have legal consequences. There are no legal consequences if the violation of an animal’s dignity can be justified. The justification test is a case of balancing the animal’s dignity against the user’s interest. Dr Bolliger said that the use of animals for food and pharmaceutical testing is not even questioned in Switzerland – the user’s interest wins out.
Dr Bolliger then went on to discuss the different elements of causing an animal stress under Swiss law. These include: i) ‘sentientist’ elements, e.g. causing pain, suffering, harm and anxiety; and ii) ‘non-sentientist’ elements, e.g. humiliation, substantial interference with an animal’s appearance or abilities, and excessive instrumentalistion of an animal. The inclusion of non-sentientist elements in the concept of animal dignity and violations of the same is a feature that makes Swiss animal welfare law one of the strictest in the world. (Of course, that is not to say that it is anywhere near to being sufficient or appropriate!).
Dr Bolliger closed by discussing some of the enforcement issues with the current law. Needless to say, because the law involves an element of balancing the interests of animals (often their interest in living) versus human interests (in using and often killing animals), more trivial human interests win out over animals’ interests in many scenarios. As Dr Bolliger pointed out, there is no question over the acceptability of animals being used for food, experiments etc. Dr Bolliger said that the law seems to suggest that a purely economic interest on the part of the human should not be enough to justify a violation of an animal’s dignity; however, he said that this is not necessarily reality.
My takeaways from Dr Bolliger’s talk:
- Whilst Swiss animal welfare law is stricter than other countries it is still a welfarist system which allows the use of animals provided there is a ‘justification’, which clearly is not a high hurdle given that there is no question that animals can be unnecessarily killed for food. Thus, whilst it is at least a positive that animals could theoretically receive enhanced protection over, say, those in the UK – this legislation does not go nearly favour enough in providing animals with the protection and, crucially, the absolute rights they deserve. I have mentioned before in previous posts that I do not support a welfarist view of animal rights and believe that an abolition of the use of animals by humans is absolutely necessary.
- The concept of dignity is interesting and seems to go further than animal welfare law in the UK by, for example, preventing activities which are humiliating or degrading for the animal but may not cause them actual physical harm. Dr Bolliger mentioned some examples of activities which are unlikely to be permissible under the new animal welfare laws, although noted that there have not necessarily been test cases on them, e.g. using animals in advertising, dyeing chicks at Easter, forcing animals to perform tricks in circuses etc.
Dr Saskia Stucki
The day then moved on with a talk on legal animal rights by Dr Saskia Stucki, MPIL Heidelberg & Harvard Law School. The theme of Dr Stucki’s talk revolved around dividing legal animal rights into two categories: i) simple; and ii) fundamental. Dr Stucki started her presentation by discussing the myriad of research that has been conducted around animal rights in the philosophical and ethics space which argue that animals have moral rights. Dr Stucki said that it is imperative that we move beyond the discussion of moral rights to the discussion of legal rights for animals and noted that work in this field is in its infancy but is burgeoning at present. Dr Stucki mentioned cases from Argentina (from 2014 and 2016) Colombia (from 2017), and India (from 2014) where legal rights for animals were asserted by the respective courts.
Dr Stucki noted that there could be two ways to categorise legal rights for animals: i) extending human rights to animals; or ii) deriving animal rights from animal welfare legislation. These categorisations fit with Dr Stucki’s notion of rights as either ‘fundamental’ or ‘simple’, respectively.
Dr Stucki described ‘simple’ legal rights as being: derived from existing welfare laws; narrow in scope; relating to non-fundamental or secondary interests of the animals; and, that they may or may not be infringeable but the substance will always be non-fundamental. Dr Stucki suggested that ‘simple’ animal welfare rights could be, for example, the EU requirement for stunning an animal before slaughtering them for food.
Whereas, Dr Stucki described ‘fundamental’ legal rights as being: aspirational, along the lines of fundamental human rights; protecting the primary interests of an animal; and that the scope of these rights can be eroded by permissive infringeability. Dr Stucki gave a list of rights that could form the basis of fundamental animal rights, including the right to: legal personality; life; bodily and mental integrity; liberty and freedom of movement; freedom from torture and inhumane treatment; private and family life; dignity; equal treatment and non-discrimination; habeas corpus; and procedural rights.
I believe Dr Stucki’s classification of ‘simple’ and ‘fundamental’ rights is clear and easy to understand; however, I believe that it may not be necessary, or indeed the most appropriate course of action, to extend human rights to animals, as was intimated. Whatever method of extending rights to nonhuman animals is ultimately successful, it is clear that they should receive fundamental rights protecting their primary interests.
Dr Alasdair Cochrane
The last talk of the first half of the afternoon was given by Dr Alasdair Cochrane of the University of Sheffield. Dr Cochrane gave his talk a provocative title ‘The end of animal rights?’ but explained that the title was more provocative than the content. Dr Cochrane went on to explain that he used this title as he wanted to emphasise the point that human rights and animal rights are part of the same narrative or continuum. He said that there should be a concerted effort to try to bring together the work involving both human rights and animal rights. Dr Cochrane explained that he sees rights as protecting ‘interests’ and that both humans and other animals have interests that should be protected.
Dr Cochrane then went on to speak about the problems with the conventional reasons for separating human rights and animal rights. He said that the traditional argument that humans are distinctive as compared to other animals is difficult to maintain. He also argued that there is no unique political function of human rights as compared to animal rights; he said that both would serve to limit the rights of states. And, lastly, Dr Cochrane pointed out that not all human rights are the same. He gave the examples of differentiated rights for: women; first nations; children; and disabled people. He did note though that such differentiation does not undermine the universality of those rights as they are premised on the same core concepts. Thus, he argued that the existence of differentiated animal rights would not undermine the universality of human rights.
Finally, Dr Cochrane went on to discuss how such rights for animals might practically be brought about. He suggested there are three potential ways: i) extend human rights to animals; ii) extend animal rights to humans; or iii) create a new set of rights (Dr Cochrane advocated that these could be called ‘sentient rights’). Dr Cochrane’s preferred approach is to introduce ‘sentient rights’, which would seek to ensure minimally decent lives for all sentient creatures.
Whilst I tend to agree that a new approach to rights protection that covers both humans and other animals is probably the best method for ensuring rights protection for other animals, I have some reservations about Dr Cochrane’s views on the extent and coverage of these rights. Dr Cochrane has previously argued that nonhuman animals do not require or deserve a right to autonomy or freedom and thus, he argues, that using animals is not necessarily wrong or unjust, provided it does not cause them to suffer or die. I, personally, think this concept is wrong – this still promotes a speciesist agenda whereby animals are still seen as objects for human use. Continuing this objectivisation can have harmful effects in promoting a speciesist agenda which influences the prevailing social norms or attitudes towards animals. Furthermore, this distinction allows the subjective element of suffering to be at the centre of what rights protection animals deserve. Suffering is a relative standard which would need to be informed by incomplete human scientific knowledge. There are inherent biases within the scientific community, for example, gender inequality in the field, and these biases will necessarily inform the outcome of the research undertaken. Reliance on such knowledge can be dangerous. Also, allowing such a subjective concept to be at the heart of rights protection for animals will likely mean that this is exploited when it is convenient for humans to do so. (See my previous post on animal sentience for further discussion of this issue).
Professor Jeffrey Sebo
We returned from the coffee break with a talk from Professor Jeffrey Sebo of New York University. Professor Sebo spoke about the concept of species, personhood, and the distinction between ‘humans’ and ‘persons’.
Professor Sebo first spoke about the concept of species being a man-made construct. He pointed out that it is merely a taxonomic category used by biologists to be able to conveniently sort and make sense of the natural world. He noted that there is blurring of species boundaries and a certain amount of cross-over between different species.
Professor Sebo then went on to discuss the difference between the terms ‘human’ and ‘persons’ and why it is important not to use the terms synonymously. He said when we refer to humans we mean the taxonomic category of homo sapiens; however, persons, in a legal sense is not this restrictive. For example, companies can be legal persons which have rights and, crucially, standing or the ability to bring causes of action in courts.
Professor Sebo spoke to the arguments concerning what capacities are necessary in order to considered legal persons. He spoke of the argument often made that it is the abstract capacity for language and reason which allows humans to be afforded legal rights. However, Professor Sebo noted the obvious flaw in this argument: that certain humans cannot meet this capacity or standard. He pointed out that we clearly already accept that it isn’t necessary for certain humans / all of humanity to meet this standard. And, thus, he argued, such a standard should not be used in relation to nonhumans.
Professor Sebo concluded that using species categorisation as the basis of securing personhood is arbitrary and inappropriate. Professor Sebo did acknowledge that allowing at least some animals to classified as legal persons raises many questions that we do not yet have answers to (for example, does personhood extend to all nonhuman animals, and, if so or if not, on what basis?), but that this should not stop the endeavour to expand personhood to animals. Professor Sebo mentioned the work of the Nonhuman Rights Project, led by the next speaker Steven Wise which has sought / is seeking to extend personhood to certain chimpanzees and elephants via the common law in the USA, and his involvement in preparing supportive materials for the litigation.
Mr Steven Wise
I was particularly excited to hear Mr Wise of the Nonhuman Rights Project speak and it was a fascinating talk about the work he is doing for animals at the coalface of the legal system. Mr Wise spoke about each of the pieces of litigation the Nonhuman Rights Project has initiated on behalf of: Tommy (chimpanzee), Kiko (chimpanzee), Hercules and Leo (chimpanzees), Beulah, Karen and Minnie (elephants), and Happy (elephant).
Mr Wise mentioned that he had conceived of bringing litigation on behalf of animals to help secure them legal personhood back in the 1980s and strategised from then on about how best to present the arguments / frame the causes of action. Mr Wise said that he frames the arguments on the basis of arguments that judges are familiar with so as not to disarm them entirely. Mr Wise settled on seeking writs of habeas corpus, which is a common law action which allows persons to contest that their detention or imprisonment is unlawful via another person on their behalf, for his clients. Mr Wise acknowledged that habeas corpus writs in general are very rare and therefore most judges will not have had to decide upon such a cause of action but they will be familiar with the concept.
Mr Wise acknowledged the importance of litigation tactics and strategy and emphasised that the Nonhuman Rights Project has sought to have a consistent strategy to try to get their foot in the door and actually before the judge without having their cases automatically rejected. Mr Wise then discussed the varying attitudes of the judges and appeal judges he had been before and spoke about how some were much more willing to hear the arguments put forth by the Nonhuman Rights Project than others. Although he noted that there was a reluctance from all judges, including those who expressed sympathy with the Nonhuman Rights Project’s aims, to be the first judge to extend the concept of personhood to nonhumans. None seem to want to put their head about the parapet.
Mr Wise then went on to discuss why it is not necessary to be able to carry out duties in order to be able to have rights. Mr Wise said that there is no recognised standard as to why there should be universal human rights (even for those who cannot carry out duties) and therefore there should not be a need to enunciate such a standard in respect of nonhuman animals.
Mr Wise echoed Professor Sebo’s point that it is problematic to use ‘humans’ and ‘persons’ as synonyms. Mr Wise then discussed whether it is necessary to have personhood to be able to hold rights and he referred to the litigation Professor Stucki mentioned in Argentina and Colombia, where personhood was not a precondition of asserting that the animals concerned have rights. Mr Wise then picked up on a point discussed by Dr Stucki, whether animals already have rights by virtue of the existing welfare legislation, and said that, in his view, the only statutes that presently offer animals rights are those that allow companion animals to be the true beneficiaries of trusts. He also acknowledged that this is a point he has made in litigation in states where such statutes exist.
The afternoon concluded with a panel discussion with the speakers taking questions from the audience. The questions ranged from topics such as: the implications of the extension of the concept of personhood to animals to foetuses and the right to choose an abortion; to whether intersectionality is necessary for the animal rights movement; to the best way of securing animal rights; and the limits of animal dignity in Switzerland.
Overall, this launch event was an excellent afternoon with some fantastic speakers. The relevance and the importance of the topics discussed at the event illustrate exactly why animal rights law should be on the academic agenda in the UK (and elsewhere). It is really pleasing to see that steps are being taken in this regard. I look forward to seeing the research that comes out of the Centre in future and I hope that it can be instructive for my own research and vice versa.