“We are on the cusp of changing the legal relationship between nonhuman animals and humans. The time is now to push even harder, as hard as we can. And keep pushing until we win.”
Public concern for animals has dramatically increased in recent years, particularly in the United States and other Western nations. There has been a rise in the uptake of vegan diets and animal advocacy in general. At the same time, human cruelty toward animals has escalated. A burgeoning global population has led to increased food requirements, while growing wealth in many countries has increased the demand for animal food products. Animals used for food are subject to cruel treatment daily. While the public interest in animal welfare is yet to be fully embraced by the law, it does suggest that a significant proportion of the public wishes to see an increase in the legal protections granted to animals.
In terms of how to better protect animals, direction can be taken from the animal advocacy movement (AAM). Following the publication of Peter Singer’s seminal text Animal Liberation in 1975, the AAM developed and flourished. Yet, there are significant differences in the ideologies and types of activism that are accepted and practiced by the wide range of individuals and organizations that make up the AAM. Their views on human and animal relations are markedly divergent, as are their views about the best methods to achieve their goals. However, there is still enough commonality amongst the various participants and ideologies to identify one broad movement.
The chief ideological divide is between animal welfare and animal rights. Put simply, animal welfare allows humans to continue using and killing animals while ensuring some protection for animals. Animal welfare is associated with “humane” animal products, such as free-range eggs and organic milk. Animal rights theory provides a more fundamental challenge to our current relationship with animals. The ideology of animal rights contests the concept of animals existing for humans to use and slaughter, regardless of how “humanely” or otherwise this is done. It holds that humans should confer fundamental rights to animals. Animal rights are closely tied to veganism, which involves an individual commitment not to eat or otherwise consume animal products as well as to avoid other instances of animal exploitation, such as the use of animals for entertainment. Broadly, animal activist ideologies often sit somewhere on the spectrum between these two positions.
The animal welfare paradigm remains the dominant legal approach to animal protection in most countries. In this respect, numerous countries have enacted animal welfare legislation, which seeks to regulate the ways in which humans interact with animals such that animal suffering is reduced. For example, in the United States, the Animal Welfare Act provides minimum acceptable standards for the care and treatment of particular kinds of animals. The Act came into operation in 1966 and is the primary piece of federal legislation in the United States that regulates the ways humans treat animals. Similarly, Australia and New Zealand have animal welfare laws that cover a wide range of animals used for different purposes.
In recent times, however, animal rights language has emerged in some jurisdictions. In December 2013, the Nonhuman Rights Project lodged its first lawsuits on behalf of four chimpanzees held in captivity in New York State, seeking recognition of the chimpanzees’ rights to bodily liberty. While this case was ultimately unsuccessful, it did inspire reflection by New York Court of Appeals Judge, Eugene M. Fahey, that “the issue [of] whether a nonhuman animal has a fundamental right to liberty protected by the writ of habeas corpus is profound and far-reaching” and will need to be addressed. In India, the High Court in Uttarakhand has recognized animals as rights holders. Some countries, including Bolivia and Ecuador, have introduced protections for animals using the language of animal rights in their constitutions.
This article contends that the case has been persuasively made for the attribution of rights to animals. Rights have the potential to lead to significant gains for animals, whereas any advances within the welfare framework will always be extremely limited. Yet, for some people, the concept of rights for animals seems absurd. Accordingly, this article argues that the focus of academic discussion should be on what rights animals are entitled to, rather than whether animals require welfare protections or rights. While there has been some academic commentary on what rights might be attributed to animals, developing a coherent and comprehensive framework for the attribution of rights will demystify what constitutes a rights-based approach to animals. This framework could also potentially remove some of the fear associated with granting rights to the “other.”
This article will begin with an overview of the contemporary AAM, as well as the ways in which animal welfare and rights ideologies are represented in law. The article will then summarize the case for granting legal rights to animals, with reference to human rights literature. After this, attention will turn to the obstacles to granting rights to animals and the merits of developing an animal rights framework.
There are related issues that lie beyond the scope of this article. First, it is important to note that animal welfare and rights are not the only theories that provide a framework in which to understand our obligations to animals. Other perspectives include the feminist ethics of care framework. While the focus of this article is animal rights and welfare, the significance of other perspectives is acknowledged due to their legal applicability and the particular importance of these theories to the AAM. Further, entities other than animals are also excluded in the discussion of legal rights; for example, insects and the environment. The merits of different legal approaches to other excluded entities are also beyond the scope of this article.