Are we barking the wrong tree on animal rights?

Legal Cheek’s Will Holmes explains how animal rights are misunderstood

“This bill is therefore deeply anti-human,” concluded His Tory counterpart Lord Moylan during the debate on the Animal Welfare (Sentience) Bill in April.

In an earlier debate on the same bill, Lord Herbert stressed the importance of the distinction between animal rights and animal welfare. While acknowledging that “we must treat animals humanely, compassionately and properly”, he finally concluded that “animal rights doctrine does not help guide us on how we should treat animals”. So what is this legislation all about?

The bill in question, which has since received royal assent, was initially mooted as a post-Brexit replacement for Section 13 of the Treaty on the Functioning of the European Union. Article 13 states that “animals are sentient beings” and that Member States must therefore “take full account of the welfare requirements of animals, while respecting the legislative or administrative provisions and customs of the Member States”.

In its final form, the Animal Welfare (Sensitivity) Act 2022 reaffirms in law that animals are sentient and sets up an animal sentience committee to monitor how government policies affect animal welfare. Ministers will have to respond to his reports to Parliament within three months. But in the end, the minister in question has the last word. The law also significantly expands the legal definition of animal to include cephalopod molluscs and decapod crustaceans (such as lobsters and octopuses) alongside vertebrates.

It’s clear. But what this legislation has to do with animal rights is not so clear. So what are Lords Moylan and Herbert so worried about?

Describing exactly what rights are is a delicate task that is the subject of much academic debate. But more broadly and fundamentally, they could be described as “any kind of legal advantage” in the words by American jurist Wesley Hohfeld. Rights consist of claims to something (such as the right to life) and freedoms (i.e. the freedom to engage in or refrain from certain actions such as the right to freedom of expression). So far it looks like the legislation can satisfy Hohfeld’s very broad definition of a right, but it doesn’t look like the animals defined in this law have gained any freedoms or have many rights to anything. that is.

To understand what triggered such opposition, we need to explore two theories of rights: the theory of will and the theory of interest. Both of these theories provide criteria for determining who can hold rights. Like Saskia Stucki Explainthe theory holds that the purpose of rights is to promote and protect some aspect of an individual’s autonomy and self-realization, while interest theory has a lower threshold requiring only rights to protect or advance certain aspects of an individual’s well-being and interests.

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Accordingly, possession of agency and legal competence are the criteria of the will theory. The interest theory, however, only requires that the subject be entitled to have an interest that should be protected because the subject has intrinsic moral worth (it can be improved or damaged in some way). other).

It is the theory of interest which is at the origin of the concerns of Lords Moylan and Herbert. Indeed, animal welfare (sentience) law satisfies the criteria of interest theory mentioned above. He aims to protect the interests of certain animals (although he does so quite weakly) and clearly recognizes the moral value of these animals by labeling them sentient. So are Lords Moylan and Herbert’s concerns that this law is the beginning of animal rights which “is a complete reversal of our established view of moral conduct and ‘a completely new anthropology’? Does the law really generate rights for animals?

Well, it does if you are convinced of the interest theory explanation of rights and can identify the freedom or claim the animals have obtained. For me, that is not enough to constitute a right. Interestingly, Stucki would disagree. She argues for a further distinction between simple and fundamental rights, explaining that even where they are weak (in this case ministers simply have to consider and respond to assessments of how animals might be affected by policy decisions, but can always set them aside after having recognized them), such social legislation is equivalent to a simple right. But in the grand scheme of things, it’s just nitpicking.

What’s interesting about all of this is how political opposition to animal welfare legislation has turned to animal rights as its new angle of attack. In this case, Lord Herbert and others sought to dress animal welfare legislation as animal rights. As we have seen, there is some overlap between the two, but the distinction is quite clear.

Indeed, it is reminiscent of the first attempts to pass the first animal cruelty laws more than 200 years ago. William Windham MP, who spearheaded opposition to such legislation at the time, decrying the Cruelty to Animals Bill 1809 for allowing Parliament to legislate on matters of private morality . He argued that the legislation was dangerously excessive. Today, opponents of welfare legislation argue that the entitlements such legislation may or may not entail are dangerously excessive.

Proponents of such animal legislation have therefore always had to question the foundations of our legal systems. Then the famous lawyer Sir Thomas Erskine did so by reinterpreting the Christian dogma underlying the jurisprudential framework as a moral trust. Humanity, as trustee, therefore owed animals legal protections. Today, the problem is the growing blurring of the lines between animal welfare legislation and animal rights.

We have always struggled with the problem of how best to balance the interests of animals and our own. But it’s important that there are those who recognize how easy it is to bark at the wrong animal rights tree and call out those who use it to whistle and launch scaremongering slanders.

Will Holmes is a journalist at Legal Cheek and a future trainee lawyer at a Magic Circle law firm.

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