1.1 Introduction
Today, the notion that (at least some) animals should have (at least some kind of) legal protection is not up for serious debate. For this, we have generations of activists spanning back to the early nineteenth century to thank: those at the coalface of animal protection who have faced legal and social censure for their efforts to protect animals and reveal the horrors of their treatment under abusive owners and abusive industries. We also have the work of ‘first wave’ animal ethics scholars of the mid-twentieth century, who brought the issue of animals’ moral standing into the mainstream of academic scholarship – and who reinvigorated new generations of animal advocates (e.g. Harrison Reference Harrison2013; Regan Reference Regan2004; Singer Reference Singer2009). In addition to popularising the idea that animals are deserving moral consideration and legal protection – as underpinned, in particular, by the idea that they should not be made to suffer – the scholars and activists of the past two centuries have also provided the foundations for the more recent ‘political turn’ in animal ethics (Cochrane, Garner and O’Sullivan Reference Cochrane, Garner and O’Sullivan2018). This new generation of scholarship has pushed animal rights discourse into the realm of the political, with scholars arguing that certain animals should have rights to citizenship (Donaldson and Kymlicka Reference Donaldson and Kymlicka2011) and property (Bradshaw Reference Bradshaw2020) and against hate speech (Milburn and Cochrane Reference Milburn and Cochrane2021), and that our notion of human rights should be abandoned in favour of the less anthropocentric ‘sentient’ rights (Cochrane Reference Cochrane2013).
Yet while animal rights talk has proliferated, within both academic and public settings, there remains a fair degree of conceptual confusion over the nature of animals’ (actual or potential) rights. Of particular salience for the purposes of this book is the still unsettled debate amongst scholars and practitioners of animal law over whether animals have legal rights and, if not, what conditions would be required for this to be a possibility. Early pioneers in animal rights law, Gary Francione and Steven Wise, have been highly sceptical of claims that animals have legal rights given their current legal status. For Francione, the property status of domesticated animals renders their interests virtually defenceless against those of humans; animal welfare laws, for him, amount to little more than protections for property owners (Francione Reference Francione1995, 102). It is only when animals’ property status is abolished that they can obtain legal rights (Francione and Charlton Reference Francione and Charlton2015). Fellow legal scholar Steven Wise holds a similar concern. For Wise (Reference Wise2010), animals are precluded from being the bearers of legal rights based on their lack of legal personhood status. On his account, by definition, all and only legal persons have legal rights. In order to have legal rights, then, animals must be granted legal personhood status.
While the work of Francione and Wise is no longer necessarily at the forefront of animal rights scholarship, echoes of their scepticism of animal rights rhetoric are also to be found in the work of more recent animal scholars. Legal scholar Charlotte Blattner, for example, has questioned whether the protections and prohibitions outlined in animal welfare legislation, which are easily and often overridden for human purposes, in fact amount to legal rights for animals (Blattner Reference Blattner, Herrmann and Jayne2019b; see also Kotzmann and Pendergrast Reference Kotzmann and Pendergrast2019; Vink Reference Vink2020). Other scholars have disagreed, suggesting that animals can be recognised as already having certain legal rights – albeit not particularly strong ones – as afforded them by existing animal protection statutes (e.g. Kempers Reference Kempers and Eva2022; Leiva Ilabaca Reference Leiva Ilabaca2023; Liebman Reference Liebman2024). The divide over whether animals have rights or mere welfarist protections can also be seen when we consider the two leading animal legal advocacy organisations in the United States. The Nonhuman Rights Project holds that humans are the only animals with rights, while the Animal Legal Defense Fund asserts that animals do have certain rights under welfare legislation.
Now, is this merely a conceptual matter, with nothing much hinging on whether we use the term ‘right’ or ‘protection’? Why should we think it useful to weigh in on this particular debate? In addition to ensuring that we are on the same terminological page as we move forward through this book, it is important to be clear on conceptual questions such as these from the outset. After all, how we frame the problem is likely to impact on the solutions that we propose. If we think that animals do not already have rights under the current system, then the changes we might propose to address animals’ lack of legal inclusion may well be different from those we might propose were we to hold that animals already do have certain rights. To that end, it is the purpose of this chapter to clear up some of the conceptual confusion that pervades the animal rights literature regarding the nature of legal rights and what it takes to be a legal rights-bearer. Acknowledging that there is already some excellent work that provides conceptual accounts of animals’ legal rights (e.g. Leiva Ilabaca Reference Leiva Ilabaca2023; Stucki Reference Stucki2020), I seek to highlight and build upon these accounts by outlining two accounts of animal rights, drawing on the interest and will theories of rights, respectively, and to respond to key objections to the notion that animals have legal rights. Having done this, we will be on a sturdier foundation from which to explore the question of how we can address animals’ lack of legal inclusion.
1.2 The Structure and Function of Legal Rights
To address the question of whether animals have legal rights, we need a clear conception of legal rights. This brings us to a key debate: that between interest theorists and will theorists. Legal scholars have long disputed whether having a legally recognised advantage over another party that promotes one’s interests is sufficient to confer a right or whether it is also necessary for the advantage-holder to be able to control whether or not the advantage is enforced. These positions, corresponding to the interest and will theories of rights, respectively, will be outlined in order to make clear their relevance to the animal rights debate.
1.2.1 Hohfeldian Rights Incidents
When defining legal rights, the influential Black’s Law Dictionary emphasises different legal incidents: a right is ‘[t]he capacity of asserting a legally recognized claim against one with a correlative duty to act’ (Garner Reference Garner2019a; emphasis added). Yet there are other ways to define rights and their corresponding obligations, with claims and duties being but two of the eight legal incidents originally identified by legal theorist Wesley Hohfeld in his seminal Fundamental Legal Conceptions as Applied in Judicial Reasoning. Hohfeld suggested that a right is perhaps best conceived of as the correlative of a duty (Hohfeld Reference Hohfeld1978, 38). That is, Dolly Parton has a right over Miley Cyrus to be paid royalties if the latter covers Parton’s song “Jolene”, while Cyrus can be said to bear a duty to pay royalties. Hohfeld proposed that a right corresponding to a duty might be labelled a claim (ibid.), and so for purposes of greater clarity – and so that the word ‘right’ is not necessarily linked solely to a claim – I will follow this usage.
Hohfeld outlined three other correlative pairs: liberty/no-claim; power/liability; and immunity/disability. One is at liberty to do X when one is not under a duty to refrain from doing X; equivalently, one’s liberty to do X entails a no-claim in another, such that no-one else holds a claim that you refrain from X-ing. Thus, we might recognise that Cyrus has a liberty to sing Jolene whilst in the privacy of her own home (assuming she does not financially profit by doing so!), since Parton holds no claim over her to do otherwise.
A power gives its holder the ability to modify some other Hohfeldian element; where one’s use of a power modifies another legal incident, the holder of this incident is said to have a liability. So, Parton has a power over Cyrus’ duty to pay her song royalties if she has the ability to legally demand or waive the duty. Cyrus thus bears a liability in relation to her duty that is contingent on Parton’s preferences: if Parton, feeling generous, decides to waive her claim to the royalties owed her, then Cyrus is no longer obliged to pay.
Finally, to say one has an immunity in relation to an incident means that this incident may not be modified, which entails a disability in those who are thereby unable to alter this incident. If, for example, prior to Cyrus’ decision to cover Jolene, she and Parton had entered into a contract, whereby Parton agreed in perpetuity to demand no song royalties from Cyrus, then Cyrus would henceforth bear an immunity in relation to paying song royalties to Parton.
To reiterate: rights can be classified in several ways according to their structure. Claim-rights arise when the legal system imposes a duty on one party to act in some way towards another party, while power-rights enable the right-holder to modify a ‘first-order’ legal incident, such as a duty, and so on. Yet is this all there is to it? Mightn’t this imply that if the law imposes a duty on us, say, to refrain from eating rocks, that rocks therefore have a claim-right over us not to be eaten? From this purely structural account of legal rights, this would indeed seem to be the case. However, for those who think that the concept of the ‘right’ has certain normative underpinnings that mean the ascription of rights should not be as expansive as this, the story need not end here. We have two prominent theories that seek to account for the function of rights that, in doing so, limit the range of potential rights-holders. It is therefore to the interest and will theories of rights that we now turn.
1.2.2 Interest and Will Theories of Rights
The purpose of the interest (or ‘benefit’) and will (or ‘choice’) theories of rights is to explain the function of rights. They allow us to account for what it is that rights are doing in a legal (or moral) context when they constrain and enable the actions of different parties. By extension, they provide us with answers as to who rights-holders are.
According to the interest theory, the purpose of a right (which may refer to a claim, a liberty, a power or an immunity) is to protect an interest of the right-holder. This means that the domain of possible rights-holders consists of all and only those who have the capacity for interests. A key feature of rights under the interest theory is that it is neither necessary nor sufficient that rights-holders themselves be able to enforce or waive the rights that they hold (Kramer Reference Kramer, Kramer, Simmonds and Steiner1998, 62). In other words, the rights-holder need not have the ability to enforce their own rights; this ability may be held by another acting on the rights-holder’s behalf.
It is the perceived importance of the capacity to enforce or waive one’s own rights that distinguishes the interest theory from the will theory. By contrast with the interest theory, the will theory regards interest-bearing as neither necessary nor sufficient for the grounding of a right (Kramer Reference Kramer, Kramer, Simmonds and Steiner1998, 62). Instead, of key concern is the will, or autonomy, of the rights-holder in the context of the legal sphere. The will theory is, as such, primarily concerned with ‘the notion of a legally respected individual choice’ (Hart Reference Hart1982, 189), where rights are ‘spheres of practical choice within which the choices made by designated individuals (and groups) must not be subjected to interference’ (Steiner Reference Steiner, Kramer, Simmonds and Steiner1998, 238). For the will theorist, more than merely protecting individual legal choices, rights serve a deeper role in promoting the autonomy of the individual by providing ‘a vehicle for some aspect of an individual’s self-determination or initiative’ (Kramer Reference Kramer, Kramer, Simmonds and Steiner1998, 62). In terms of Hohfeldian incidents, the will theory asserts that an individual who cannot modify a right by a power (i.e. who cannot choose whether to affirm or waive their right) is no right-holder.
While rights-holders under the interest theory are those entities that can hold legally recognisable interests, the requirements for rights-holder status under the will theory are a little less straightforward. As Kramer recognises in his definition of will theory rights, rights-holders must be both ‘competent’ and ‘authorised’ to assert their claims (Kramer Reference Kramer, Kramer, Simmonds and Steiner1998, 62–63). To be competent, in this context, is to be considered legally competent, which in turn is traditionally assumed to mean that one is competent in making rational, reflective decisions; to be authorised is to have the legally recognised capacity to exercise one’s powers.
Since animals are generally not thought to be competent or authorised in the ways outlined above, they have traditionally not been seen as bearers of rights under the will theory, as virtually all theorists engaged in the function-of-rights debate – proponents of will and interest theories alike – have asserted (e.g. Cowden Reference Cowden2012, 367; Cruft Reference Cruft2004, 369; Hart Reference Hart1982, 185; Kramer Reference Kramer, Kramer, Simmonds and Steiner1998, 78; Steiner Reference Steiner, Kramer, Simmonds and Steiner1998, 259; Wenar Reference Wenar and Zalta2015). The interest theory, by contrast, can straightforwardly ascribe rights to those who have not been thought to have the capacity (whether legal or otherwise) to make sufficiently autonomous decisions: infants, children, individuals with certain serious cognitive incapacities, the comatose and – importantly for our purposes here – animals. Since we of course want to include individuals belonging to these groups within the realm of rights-holders, this would seem to suggest a serious flaw in the will theory and thus a reason to prefer the interest theory (MacCormick Reference MacCormick1982). Nevertheless, as I will show in the following sections, both the interest theory and at least certain interpretations of the will theory can accommodate animals as rights-holders.
1.3 Animals as Legal Rights-Holders
1.3.1 An Interest Theory Account of Animals’ Legal Rights
We have increasing evidence that many animals, including both vertebrates and invertebrates, are sentient (i.e. can have subjective experiences of and about the world around them), and are therefore capable of experiencing both negative and positive emotional states (Browning and Birch Reference Browning and Birch2022; Learmonth Reference Learmonth2020; de Waal & Andrews Reference de Waal and Andrews2022). This is to say, their lives, as they experience them, can go better or worse for them as individuals (Cochrane Reference Cochrane2012). Thus, we can recognise animals as having interests: interests in having those things or experiences that tend to benefit them (e.g. food, water, shelter, sociality) and interests in avoiding those things or experiences that tend to harm them (e.g. hunger, thirst, pain, isolation, predation). And so, if the purpose of a right is to protect an interest – as is posited by the interest theory – then interest-bearers such as animals are, at least conceptually, capable of being rights-bearers.
Though having a right under the interest theory entails that one has at least one interest, merely having an interest – even a particularly strong one – does not entail that one has, or even should have, a legal right protecting that interest. Since the focus of this book is legal, rather than moral, rights, we are interested in those interests that are formally protected in the law – say, through legislation or case law.Footnote 1 The question must be, then: Does the law provide rights for animals directly by establishing that they have claims, liberties, powers, or immunities (or indirectly by imposing any duties, no-claims, liabilities, or disabilities on other parties) in recognition of their interests?
Consider an example from Australia, where animal welfare largely falls within the remit of states and territories, with the Commonwealth government’s powers extending only to the oversight of welfare issues that arise in the course of international trade and regulation. The Australian Capital Territory’s Animal Welfare Act 1992 (‘AWA’) is one of the most progressive pieces of animal welfare legislation in Australia. After the passing of the Animal Welfare Legislation Amendment Act 2019, the AWA became the first (and, to date, onlyFootnote 2) piece of animal welfare legislation in Australia to recognise that animals as sentient beings ‘are able to subjectively feel and perceive the world around them’ and ‘deserve to be treated with compassion and have a quality of life that reflects their intrinsic value’.Footnote 3 In addition, the newly amended objects section of the AWA, which outlines the overarching purpose of the act, states that ‘people have a duty to care for the physical and mental welfare of animals’.Footnote 4 The section then goes on to outline how its objectives are to be achieved, including by the enforcement of laws that pertain to the promotion of animal welfare and the deterrence of animal abuse.
By acknowledging their sentience, and referring to what they ‘deserve’, this would suggest that the AWA recognises the interests of animals, and that – at least in part – the purpose of the legislation is to protect those interests. Furthermore, a Hohfeldian reading of the statement that people have a ‘duty’ to care for animals suggests that animals can be recognised as having a claim-right over certain humans to ensure their welfare. Finally, since none of the listed objects of the AWA suggest that promotion of the interests of humans is a goal of the legislation, this supports the notion – at least in theory – that promoting the interests of animals is the primary purpose of the legislation. Thus, it seems that under an interest theory analysis of the legislation, the AWA provides certain legal rights to animals under human care, namely rights to be provided with appropriate food and water and opportunities to display normal behaviour, for example.Footnote 5
1.3.2 A Will Theory Account of Animals’ Legal Rights
As noted, while the interest theory has commonly been used as a foundation for animal rights, animal rights scholars have been remarkably uniform in rejecting the will theory as an alternative such foundation (e.g. Francione Reference Francione1995, 98–99; Kotzmann Reference Kotzmann2023a, 13; Stucki Reference Stucki2020, 541). The thinking goes: while animals clearly have interests, they clearly do not have a will (at least not the kind of will that should be of concern in legal settings, anyway). Yet this conclusion arguably seems a little out of keeping with current views of animal agency. If, as many animal scholars now suggest, animals can be regarded as agential beings, and that we are beholden to respect and respond to this agency, then is it still viable to hold that animals are lacking a will? As I have argued elsewhere (Rutledge-Prior Reference Rutledge-Prior2024a), at least certain animals can be regarded as the kinds of beings with a will that should be of concern to all but the most demanding of will theorists (and it is not clear to me that the latter are doing their theory any favours in holding such a position!).
This needs some unpacking. As noted in the previous section, Kramer describes the rights-holder under the will theory as one who is both ‘authorised’ and ‘competent’ to assert their claims in the legal sphere (Kramer Reference Kramer, Kramer, Simmonds and Steiner1998, 62–63). In other words, they have the legal power to either wave or enforce their substantive legal rights. As we will see in the next chapter, while animals are often legally hobbled by their lack of actual legal authorisation, the real barriers in the way of their gaining the capacity to act in court (namely, with the assistance of a human representative) are political in nature, not legal. As certain judges have suggested, the legislature could explicitly name animals as the subjects of certain laws, with the procedural rights to see their substantive rights enforced.Footnote 6
While the authorisation requirement doesn’t provide too much of a challenge to animal rights in the context of the will theory, the competency requirement is a different story. Indeed, it is the belief that animals do not have the cognitive competency that would be required to express their preferences in relation to any rights they might have that has led scholars to reject the will theory as being able to account for animal rights. Now, without suggesting that this necessarily holds for all animals (though nor do I wish to dismiss that possibility out of hand, either), it seems that the ever-expanding knowledge that we have of animals’ cognitive capacities should make us less quick to dismiss their capacities for deliberation, goal-setting, and autonomous action. While nonhuman animals are unlikely to understand that they might have certain rights under human law, and that they have the right to make choices about those rights, the same could be said for many humans (including, it should be said, even the ‘intellectually average’ adult human). If will theorists maintain a ‘demanding’ conceptualisation of competency, whereby one must be able to understand one’s entitlements as legal rights per se and to deliberate over the legal options available to assert or waive those rights, then this leaves many of those groups that we typically think of as rights-holders – children, for example – out of the picture. This makes for a somewhat unconvincing theory!
What, however, of those will theorists who might take a more ‘moderate’ view of competency? What of those who maintain that rights function to protect the autonomous choices of the rights-holder but who do not maintain that the rights-holders must necessarily be able to conceptualise their choices in the context of the legal system? What if it is enough that the rights-holder can express preferences that are in line with their goals and values – even if these are as simple as ‘I choose to skip my dinner’ or ‘I would like to go for a walk in the park’? As everyone who lives with a companion dog can surely tell you, such preferences are commonly and clearly expressed by nonhumans – we just need to be open to recognising the different ways they might be expressed. Given the existence of animal welfare laws that impose duties on companion humans to provide their animals with food and exercise, we could say that such provisions amount to rights under the will theory, as they can be interpreted as functioning to protect the animals’ choices in relation to food and exercise.Footnote 7
In any case, whether our preferred foundation for animal rights is provided by the interest or the will theory, we come to much the same challenges. That is, while we can speak of animals as having legal rights, this does not mean that animals are provided with particularly strong or well-enforced rights. Indeed, the protections outlined in animal welfare laws around the world are undermined by various exemptions permitted within the legislation itself, and the restrictions placed on the ways the laws may be enforced. Such exemptions suggest that the protections outlined in welfare legislation either may be qualified to such an extent that they are of minimal practical use or may be denied entirely to whole groups of animals on the basis of their species or role in human society (those animals used in the agricultural and biomedical industries, for instance). For these reasons, we must recognise that where welfare laws do provide animals with legal rights, they tend to be lamentably weak ones, as we will now see.
1.4 Animals Have Legal Rights – But Only Rather Weak Ones
This section considers the Australian Capital Territory’s Animal Welfare Act 1992 (‘AWA’) in order to better understand the challenges that animals face in relation to the legal system. As mentioned, the AWA represents perhaps the strongest piece of animal welfare legislation in Australia, given its recognition of animal sentience and prohibition of exploitative animal-use activities such as rodeos, circuses, and greyhound racing. Nevertheless, the protections offered animals under this legislation remain limited, weak, and overly arbitrary. Furthermore, despite its unique status in recognising animal sentience, the AWA is largely representative of welfare and anti-cruelty legislation in other Australian jurisdictions and broadly reflects the legislation found elsewhere in the Western world (Kotzmann and Nip Reference Kotzmann and Nip2020). This makes the AWA a useful case study for considering the present state of the legal rights of animals.
In the next four subsections, we consider the various features of the AWA that exemplify the paucity of animals’ legal protection in even relatively progressive legislation. This includes provisions that provide valid excuses for individuals, organisations, and industries to participate in actions that would otherwise be captured by the legislation as instances of animal mistreatment. As we will see, these exemptions are – in direct opposition to the AWA’s stated purpose of imposing duties to ensure the protection of animals’ well-being – in place to protect human, and not animal, interests.
1.4.1 Species Exemptions
The first in the set of exemptions to consider is that related to the definition of ‘animal’, which only roughly corresponds to biological definitions. To start, the species Homo sapiens, is – unsurprisingly – not included within the legal definition of the animal. The definition also excludes most invertebrates, which account for an estimated 95 per cent of known animal species (Eisenhauer and Hines Reference Eisenhauer and Hines2021), and a much larger percentage of the animal population as a whole.
The AWA includes a comparatively large range of animals within its scope relative to the other jurisdictions in Australia, including vertebrates (amphibians, birds, fish, nonhuman mammals, reptiles), and invertebrates such as cephalopods (e.g. octopuses, squids), and crustaceans (though only those ‘intended for human consumption’). By comparison, only half of the jurisdictions in Australia include cephalopods in their animal protection laws, and Western Australia, with the most restrictive definition of ‘animal’, excludes fish entirely.Footnote 8 Thus, aside from the Northern Territory (which also regards as animals those crustaceans who are not intended for human consumption), the AWA provides the most inclusive definition of ‘animal’ in Australia.
It should also be noted that the definitions outlined in the AWA and other Australian welfare legislation are far more inclusive than their federal counterpart in the United States. The US Animal Welfare Act’s definition of ‘animal’ includes only ‘warm-blooded animal[s]’ used for research, in zoos, or as companion animals and excludes among other groups: birds, rats and mice bred for research, and ‘farm animals, such as, but not limited to live-stock or poultry, used or intended for use as food or fiber’.Footnote 9 Clearly, before we even consider the substantive sections of legislation which outline the specific protections accorded to animals, we must consider how the law conceives of what an animal is. As is most starkly shown in the case of the US legislation, which is evidently biased towards companion animals and certain animals used in research and for exhibition, definitions are a vitally important factor in determining the extent to which animals are provided with legal protection – if at all.
1.4.2 ‘Reasonable’ Exemptions
The AWA outlines several general animal welfare offences, as well as other offences relating to compliance with codes of practice, companion animal businesses, research and teaching, circuses, and animal trapping. Several of these are strict liability offences, which attract a penalty regardless of whether the offence was committed with the intent to cause harm. Others establish total prohibitions on certain forms of animal use, for example greyhound racing and rodeos. Yet several exemptions that protect ‘reasonable’ instances of actions that would otherwise fall within the scope of certain of the listed offences are outlined, undermining the extent to which harmful actions, can be prosecuted at all. Of course, subjecting animals to treatment that temporarily negatively affects them may be necessary for their long-term well-being, as in the case of medical treatment. However, the concern is that these reasonableness exemptions are generally not outlined for the purpose of securing the long-term well-being of animals. Instead, they are directed at the promotion of human interests – interests that are not, we should recall, outlined as a priority in the objects section of the AWA.
Consider one of the offences listed: ‘hitting or kicking an animal’, where ‘the action causes, or is likely to cause, the animal injury, pain, stress or death’.Footnote 10 An exemption is granted in the case of ‘a rider of a horse reasonably using a whip, or the rider’s foot, on the horse as part of an equestrian activity’.Footnote 11 Though the purpose of the AWA is ‘promoting and protecting the welfare of animals’, this exemption suggests that what is deemed ‘reasonable’ will be determined with reference to the interests of the rider rather than those of the horse who is being subject to the injurious, pain-inducing, stressful, and/or fatal hitting or kicking. Indeed, since the horse is – we can probably say with some degree of confidence – unconcerned with performing well or poorly in an equestrian activity, it is questionable whether an action that causes ‘injury, pain, stress or death’ could ever be considered reasonable from the perspective of the horse and her welfare.
Another example can be seen with the offence of ‘administering poison’, which applies to domesticated and native animals (but not ‘pest’ animals): the act of poisoning is not deemed to be an offence if ‘the person has a reasonable excuse’.Footnote 12 Note that this does not include instances where ‘the administration of the poison to the animal is permitted under a territory law’, since this is the other exemption listed.Footnote 13 It is difficult to think of an instance of poisoning – not already deemed important enough to be permitted in other legislation – that might be considered reasonable, from the perspective of the welfare of an individual animal, that would excuse the act of poisoning that animal.
These examples highlight how the duties that are imposed on humans by the AWA may often be excused in instances where there is a conflicting human interest. This is not necessarily a problem, per se; rights are often impacted at least to some degree by the significant competing interests of others. The concern here is that the significant interests of animals – interests that may have implications for animals’ lives and well-being – are being balanced, and found wanting, next to the substantially less weighty, competing interests of humans.
1.4.3 Code of Practice Exemptions
Exemptions are also provided in instances where the offence conforms to standards set out in codes of practice that are endorsed by the relevant authorities.Footnote 14 Areas of regulation include: the use of animals for ‘scientific purposes’; animal welfare in ‘rural industry’, ‘intensive farming’, and the ‘racing industry’; the ‘transport of livestock’; ‘livestock and poultry slaughtering establishments’; and ‘fishing’.Footnote 15
Codes of practice are often developed by, or in consultation with, animal use industries engaging in the areas under regulation (Bruce and Faunce Reference Bruce, Faunce, Steier and Patel2017). This should immediately suggest a conflict of interests, as well as a troubling lack of separation between the regulators and the regulated. As one Australian barrister puts it,
[Codes of practice] have as their foundation no greater philosophical support than the political strength of the intensive food production industry. In effect, this industry, to a very great extent, makes it [sic] own laws.
Further, codes of practice, as ‘quasi-delegated legislation’, are not subject to the same degree of oversight as are regular pieces of legislation: they are ‘not required to be scrutinised by parliamentary committees to ensure that they comply with standards designed to protect individual rights’ (Creyke et al. Reference Creyke, Hamer, O’Mara, Smith and Taylor2018, 331). A related concern is their lack of public accessibility, given they are listed in neither the AWA nor the Animal Welfare Regulation 2001 (‘AWR’). As Bruce and Faunce (Reference Bruce, Faunce, Steier and Patel2017) have noted, the layers of complexity of animal welfare legislation in Australia mean that the regulatory system is lacking in transparency. This, in turn, impacts the extent to which those whose actions should be regulated by this system can be held publicly accountable.
1.4.4 Ad Hoc Exemptions
In addition to provisions that exempt instances of apparent animal abuse on the basis of how ‘animal’ is defined, how animals’ (ab)uses are deemed to be ‘reasonable’, and how their (ab)uses are deemed to be permissible under codes of practice, the legislation also provides several ad hoc exemptions that fall outside these other three categories. These exemptions may be framed in terms of an animal’s species, or an animal’s use in a particular industry, and operate so as to protect particular human occupations and pastimes and to ensure convenience. Consider the following examples:
‘Trapping’ is listed as an offence,Footnote 16 except where a trap is set to catch ‘a fish or crustacean for non-commercial human consumption’.Footnote 17
‘Violent animal activities’, namely animal fighting and live baiting, are taken to be offences,Footnote 18 unless this involves, for example, the ‘mustering and working of stock’.Footnote 19
The use of electrical devices is prohibited where ‘the person administers an electric shock to an animal’ and ‘the person administers the shock using an electrical device that is not prescribed by regulation for use on that kind of animal’.Footnote 20
As with code of practice exemptions, a concern with these kinds of ad hoc exemptions is that they may be overseen or recommended by advisory bodies whose primary purpose is the promotion of industry interests rather than solely or even primarily the promotion of animal interests. The regulation that determines which and how animals may be electrocuted, for example, is the AWR; it allows electric prods to be used on cattle and pigs and electro-ejaculatorsFootnote 21 to be used on bulls and rams.Footnote 22 The regulations outlined in the AWR were agreed to by the then-operating National Consultative Committee on Animal Welfare (whose Chair was appointed by the Minister for Agriculture) and the Agricultural Resource Management Council of Australia and New Zealand (National Consultative Committee on Animal Welfare 2001).
The variety of exemptions listed above should suggest that the protections outlined in the ACT Act either may be qualified to such an extent that they are of minimal practical use or may be denied entirely to whole groups of animals – particularly those used in the agricultural industry. For these reasons – and the reasons that will be explored in the next chapter, where we look at problems of enforcement – we should recognise that to the extent that it does provide them with rights, the ACT Act provides merely weak legal rights to the animals living in the Australian Capital Territory. This now leads me to address some of the lingering concerns that might be had about my claim that animals have legal rights.
At this point, readers may fall into one of the following camps. There may be those who are convinced by the conceptual accounts provided earlier of animal legal rights under the interest and/or will theories, and who agree that existing welfare legislation instantiates rights (notwithstanding the fact that those rights may be relatively weak as written and enforced). Yet there may also be those who remain sceptical of this account. These are the readers to whom I now turn. Note that it is not my purpose to seek to convince entrenched, demanding will theorists who hold that animals, by virtue of their presumed lack of the required cognitive capacities, are incapable of bearing legal rights. Nor do I attempt to convince those who hold (perhaps due to moral beliefs or pragmatic concerns) that animals shouldn’t have legal rights. Instead, the purpose of the remainder of this chapter is to respond to those who are not conceptually or morally opposed to the notion of animals having legal rights but who remain unconvinced that existing legislation, such as the AWA, does indeed provide those rights. As such, I respond to the following three objections that feature in the animal rights literature: the Welfare-Is-Not-Rights Objection; the Enforcement Objection; and the Personhood Objection.
1.5 Responding to Objections
1.5.1 The Welfare-Is-Not-Rights Objection
[R]ights theory, properly understood, requires the abolition of animal use, and it is thereby distinguished from the welfarist position, which focuses on the regulation of animal exploitation.
As noted earlier, the belief that welfare protections do not amount to rights continues to hold sway in animal rights scholarship, with legal scholar Gary Francione the most prominent proponent of this position (see, for example, Francione Reference Francione1995; 2004; Francione and Charlton Reference Francione and Charlton2015). The ‘abolitionist’ position that Francione promotes holds that all human use of animals should be abolished because it fails to respect animals’ ‘fundamental right not to be used as property’ (Francione and Charlton Reference Francione and Charlton2015, 32). Animals, he claims, merit this right on account of their moral status, which precludes them from being treated as ‘things’ (Francione and Charlton Reference Francione and Charlton2015, 22). While Francione has admitted that legislated prohibitions on the ways that humans can use animals may ‘embody a rights-type concept’ (Francione Reference Francione1995, 92), his focus has been on critiquing legislation that provides scope for the balancing of animal and human interests. Such legislation, he argues, which ostensibly serves to prevent the ‘unnecessary’ suffering of animals, necessarily puts animals at a near-complete disadvantage relative to humans, as in the legal context, ‘the “suffering” of property owners who cannot use their property as they wish counts for more than animal suffering’ (Francione Reference Francione, Sunstein and Nussbaum2004, 117).
Concerns along a similar line have been voiced by fellow animal law scholars Saskia Stucki (Reference Stucki2020) and Raffael Fasel and Sean Butler (Reference Fasel and Butler2023). While accepting that existing animal welfare legislation can be said to furnish animals with certain rights, they draw a distinction between, respectively, these ‘simple’ or ‘thin’ rights and the ‘fundamental’ or ‘thick’ rights that still elude animals (Fasel and Butler Reference Fasel and Butler2023, 2–3; Stucki Reference Stucki2020, 552;). In highlighting this categorical distinction between ‘imperfect and weak’ rights on the one hand and ‘ideal, proper, strong’ rights on the other (Stucki Reference Stucki2020, 551–552), there is the suggestion that it is the latter that should be of concern to those advocating for animals: that these are the ‘real’ rights.
From here, we can outline a Welfare-Is-Not-Rights Objection (or ‘Welfare Objection’) as the claim that merely protecting animals’ welfare via modest, piecemeal regulations – especially when those regulations consistently and egregiously tip the scales in favour of the interests of humans over those of animals – that does not challenge animals’ property status does not furnish animals with legal rights (or if it does, that such rights are so weak as to be hardly worth being regarded as such). As I now seek to show, while those concerned with the well-being of animals should be concerned when their legal protections are systemically weak (as highlighted in the above discussion of the AWA), this need not render us hesitant to use rights terminology to describe these protections. (Indeed, from a purely rhetorical standpoint, speaking in terms of rights may serve to emphasise the importance of these protections – and to highlight how the ways they have been watered down through legislative exemptions and poor enforcement are starkly out-of-keeping with community expectations about the purpose of rights.) From here, I offer three responses to the Welfare Objection.
Response 1: Rights Need Not Protect Fundamental Interests
The first way to respond to the Welfare Objection is to consider the claim that to be a right, a legal instrument that protects an animal’s interest in some way must also be compatible with the animal’s ‘fundamental interests’. Is this how we understand rights for humans? Consider certain jobs that some consider to be inherently exploitative. This might include sex work and gestational surrogacy. Assuming for the sake of argument that these occupations are inherently exploitative, does that mean that legal regulations put in place to protect the workers engaged in them should not be regarded as conferring real or meaningful legal rights? Holding to such a position seems to invite unhelpful moralising into what is primarily a conceptual, rather than a moral, question. We may regard sex work and gestational surrogacy as morally undesirable, and believe that individuals (should) have the moral right to be protected from working in these occupations. Our moral beliefs about these occupations are, however, a different issue to that of whether legal provisions that in some way benefit those working in these occupations can be regarded as legal rights.
Is the matter any different when we consider animals? We may want to make the case that animals have a fundamental moral right to, say, bodily liberty, and that this is a very good reason to grant them corresponding legal rights. However, the fact that we might believe that animals have a fundamental interest in bodily liberty does not entail that legal protections that do not protect this interest – or that may even be premised upon animals’ property status – cannot be regarded as valid legal rights. They may be weak rights. They may even be considered by some to be immoral, insofar as they fail to challenge the property status of animals. But we may nevertheless think that they are still legal rights in the sense that they are conferring the rights-holder with some (however small) ‘legal advantage’ (Hohfeld Reference Hohfeld1978, 71) over another party, which provides greater protection for the animals’ interests than they would otherwise have.
Response 2: Rights Need Not Protect Interests Absolutely (and Don’t Tend To, Anyway)
Next, we can question the emphasis placed by Francione on the capacity of ‘rights’ (and by scholars like Stucki and Vink on the notion of ‘fundamental rights’) to provide strong – even absolute – protections for interests. Indeed, we should recognise that legal rights need not – and rarely do – protect interests maximally or absolutely. Take, for instance, the human right against slavery that Francione claims is the ‘one exception’ to the notion that ‘there is no single interest we all agree should, as a matter of fundamental morality, be protected by right’ (Francione and Charlton Reference Francione and Charlton2015, 14). Francione notes that ‘[w]e regard this right not to be a slave to be so important that every nation in the world has outlawed slavery’ (Francione and Charlton Reference Francione and Charlton2015, 17). While it may be true that there are very strong legal prohibitions against slavery around the world, it is not, unfortunately, the case that the individual’s right not to be enslaved is completely unqualified. In the United States, for example, the Thirteenth Amendment establishes that ‘[n]either slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States’ (emphasis added). This clause has, arguably, allowed systems of slavery in the United States to continue well beyond the ratification of the Thirteenth Amendment in 1865 (Goodwin Reference Goodwin2019; Halladay Reference Halladay2019). It ensures that, though Americans can boast of a strong right against being held in slavery, this right is (worryingly) qualified under certain conditions.
What this example highlights is that even if an individual has a particularly strong interest that is nominally protected under the law, this does not ensure that this interest will be protected absolutely (indeed, this would arguably be to render the decision-making powers of the judiciary in relation to sentencing irrelevant). As such, though we might view laws that protect animals’ interest in bodily liberty by providing them with slightly larger cages as woefully insufficient, this need not therefore imply that there is no legal right provided at all – merely that it is a woefully insufficient one.
Response 3: The Purpose of Welfare Laws Is Not Merely the Protection of Human Interests
The final response to the Welfare Objection concerns the balancing of interests that inevitably occurs when weighing up different rights. Consider the Animal Care and Protection Act 2001 of the Australian state of Queensland, which states as one of its purposes to ‘achieve a reasonable balance between the welfare of animals and the interests of persons whose livelihood is dependent on animals’,Footnote 23 as one such example. This legislation further protects human interests at the expense of animals’ by affirming that the protections it outlines ‘[do] not affect or limit a civil right or remedy that exists apart from this Act, whether at common law or otherwise’,Footnote 24 and that ‘a breach of the duty of care imposed under this Act does not, of itself, give rise to an action for breach of statutory duty or another civil right or remedy’.Footnote 25 The emphasis on human rights here, and the severe curtailment of how the claim rights of animals may be enforced, may lead some to suggest that animals are not provided with rights by this legislation, despite the duty of care arguably afforded them. Why? As legal scholar Christopher Stone has emphasised, an entity’s having a legal right is for it ‘to have a legally recognized worth and dignity in its own right, and not merely to serve as a means to benefit “us” (whoever the contemporary group of rights-holders may be)’ (Stone Reference Stone2010, 4).
I take this to be the strongest challenge to my claim that animals have legal rights under at least certain existing legislation. If animal welfare laws are not in place to protect the interests of animals for their own sake, then we must allow that this aspect of the Welfare Objection succeeds. That is, if animal welfare laws are, in fact, in place to protect the interests of humans – the interest in maintaining the value of their animal property, say – then it does seem that such laws do not provide animals with legal rights, even if they may sometimes incidentally provide them with protections. In this case, if humans were to waive their right to not having their animal property treated cruelly, then the animal victim would have no recourse to challenge that act of cruelty.
One response to this argument, however, is that welfare laws are in place to protect the interests of animals and may – though, arguably, far too infrequently – allow for a genuine balancing of human and animal interests, resulting in outcomes that acknowledge animals’ interests in not suffering as weightier than humans’ interests in using them indiscriminately. In such cases, human interests are not allowed to outweigh animal interests merely because they belong to humans. Certain offences under the AWA do not permit the balancing of human and animal interests at all, and thus represent the kinds of prohibitions Francione himself has regarded as potentially reflecting a ‘rights-type concept’. As previously mentioned, the AWA ensures that no matter how fervently an individual human wants to engage in greyhound racing in the Australian Capital Territory, this activity is not open to them. Such prohibitions also exist in Queensland, where even though the legislation explicitly seeks to balance the interests of animals and humans, it nevertheless forbids the organisation of such events as bull-, dog- and cockfights, without exception.Footnote 26
Furthermore, there are at least some instances in which the interests of animals appear to be recognised as worthy of protection by the courts, even where there is a competing human interest. In a case in Western Australia, Daniele v. Weissenberger, where the applicant was appealing a prior conviction for failing to provide sufficient food and water to two horses, the judge referred to the prior decision, in which the magistrate stated:
[U]nlike human beings who can to some extent fend for themselves and protect themselves, animals are confined and rely solely upon their well being [sic] and the basic necessities of life by their carers.Footnote 27
This is both an acknowledgement that animals do have a well-being and a suggestion that humans have certain responsibilities to the animals in their care. The court went on to ultimately dismiss the appeal, concluding that,
The applicant cruelly treated both animals by failing to supply them with proper and sufficient food, so that they ended up in an emaciated condition. The stallion was left without sufficient water. The water trough was found to be bone dry. The horse was dehydrated and very stressed. In my opinion, the sentence was in no respect excessive. Indeed, it is my opinion that the applicant was lucky to be treated so leniently.Footnote 28
This statement – which highlights both the physical and mental suffering of the horses – reveals that the welfare of the horses was a key consideration in the court’s decision. Nevertheless, it might be objected that this judgment and others like it are still – as has been the case historically – motivated primarily by concern for the interest of the community in repudiating cruel behaviour (e.g. Francione Reference Francione1995, 121–132) or to benefit animal-loving humans (e.g. Berg Reference Berg2007, 404), and not by the interests of individual animals who have been abused. Indeed, short of evidence of lawmakers’ intentions, welfare legislation explicitly stating, or case law establishing, the laws’ purpose as promoting the interests of animals rather than those of humans, it will be difficult to determine whose interests are of ultimate concern. We must be left to make inferences.
In the case of the AWA and other legislation that explicitly recognises the sentience and intrinsic value of animals, however, it seems reasonable to conclude that at least one of the purposes of the legislation is the protection of the interests of animals for their own sake.Footnote 29 Yet we might also want to make this assumption where the legislation merely implicitly recognises sentience by stating its object as preventing cruelty or pain, or by only including sentient animals within its scope (see Blattner Reference Blattner2019c). Especially where there is no stated goal of promoting human interests, it would seem reasonable to interpret the law as being oriented towards animal protection for the sake of the animals themselves.Footnote 30
To press the point, one might argue that, to the extent that legal decisions are made that do not reflect these laws’ fundamental orientation towards animal interests, these judgments are not in line with the purpose of the legislation. This may be one line of argument that could be used to challenge the validity of rulings that do not sufficiently account for the interests of animal victims of abuse and neglect – rulings that are, in other words, apparently at odds with the express or implied purpose of the legislation.
1.5.2 The Enforcement Objection
The Enforcement Objection rests on the notion that legal rights must be enforceable by the rights-holder: that ‘it makes no sense to say that someone has a legal right to something if that person does not possess standing to assert that right’ (Francione Reference Francione1995, 65). Similarly, within their rights categorisation, Fasel and Butler posit that by contrast with ‘thin’ rights, ‘as thick rights, animal rights would provide a complex set of protections for their holders’ fundamental interests, they could not easily be infringed, they could be privately enforced, and they could evolve dynamically’ (Reference Fasel and Butler2023, 3, emphasis added).
Note that this is not quite the same as the objection a demanding will theorist might make; instead, an adherent of the Enforcement Objection would allow that an entity individual could have a legal guardian or representative operating on their behalf where they are unable to press for the right to be upheld themselves. At the crux of the Enforcement Objection is a concern that only the state or its representatives can prosecute offences under welfare legislation, and animals (as represented by a human) and those motivated to sue on their behalf cannot, for example, take civil action seeking damages for harms suffered under these offences. It is this lack of legal capacity to take action that motivates the Enforcement Objection’s claim that animals’ legal protections cannot be thought of as true rights.
Admittedly, animals’ lack of capacity to enforce their legal rights (such as they are) is a key factor contributing to the weakness of their overall legal position and, indeed, is an issue this book seeks to grapple with. Yet despite the importance of the legal capacity to privately enforce one’s rights as an element of what it means to be a legal actor, it need not be taken as a necessary component of being a rights-holder (Garner Reference Garner2002, 83). This notion is supported in the work of legal scholar David Favre, who has noted that despite the fact that ‘one of the legal mantras often repeated is that property cannot be the holder of legal rights’, it is nevertheless the case that ‘at least some animals can and have gathered legal rights’ (Favre Reference Favre2010, 1032). He identifies three different kinds of rights that animals could (or already do) have: (1) those that are enforced on behalf of the rights-holder by the government in criminal cases, (2) those that can be enforced by humans or non-governmental organisations on behalf of animals, and (3) those that can be enforced in the name of animal plaintiffs themselves (i.e. with the assistance of a representative) (Favre Reference Favre2010, 1034). He notes that those rights that can be enforced by the animal right-holder directly are:
[T]raditionally considered the fullest realization of a legal right, but this is too narrow of a view. In the broader sense of the term, a legal right exists when a court is willing and able to consider a specific interest of a particular being.
Humans, he notes, have both rights that are enforced by the government, as in criminal law proceedings, and those that they can enforce themselves, as in the case of civil lawsuits. By contrast, animals are largely limited to those rights that can only be enforced by the government;Footnote 31 these, Favre notes, should be considered as ‘weak legal rights’, but rights nonetheless (Favre Reference Favre2010, 1034).
1.5.3 The Personhood Objection
Finally, there is the Personhood Objection. That is, since animals are not regarded as legal persons, then simply by definition, they cannot be the bearers of legal rights – legal protections, yes, but not legal rights (Francione Reference Francione1995, 110; Wise Reference Wise2000, 53–54; Wise Reference Wise, Sunstein and Nussbaum2004, 25). As Wise contends,
Legal rights, at least as Hohfeld defined them, pertain only to the legal relationship between two legal persons. Legal things, whether they are the slaves James Somerset (before Lord Mansfield set him free) and Dred Scott, Kama the dolphin, Jerom the chimpanzee, a rock in New Mexico, or Alpha Centuri, have no legal rights.
In response, we may first point out that the Hohfeldian definition of legal rights is not conceptually bound to legal personhood in any way. Admittedly, in his Fundamental Legal Conceptions, Hohfeld contrasts different classes of rights (e.g. rights in personam and rights in rem) and defines them with the use of the term ‘legal person’ (Hohfeld Reference Hohfeld1978, 72). From this it would be reasonable to assume that Hohfeld held legal rights to be solely within the domain of legal persons. However, even if Hohfeld himself was of the opinion that only legal persons are or could be rights-holders, this does not therefore entail that his framework of rights-incidents can only be applied to those recognised as legal persons. When outlining his eight legal elements, Hohfeld does not explicitly refer to legal persons – and indeed, there is no conceptual need to do so. For example, consider the statement that ‘if X has a right against Y that he shall stay off the former’s land, the correlative (and equivalent) is that Y is under a duty towards X to stay off the place’ (Hohfeld Reference Hohfeld1978, 38). By Hohfeld’s own definition, bearing a claim, strictly speaking, only requires that another entity has been imposed with a correlative duty. We need not conclude, then, that the claim-holder necessarily be a recognised legal person;Footnote 32 any entity who could be the direct beneficiary of another’s legal duty could be a claim-holder. It then becomes an empirical question as to whether any such duties exist which, in turn, establish the claim-holder.
Does this mean that any entity, whether or not they are regarded as a legal person, could be a rights-holder, just so long as that entity exists in a claim-duty relationship with some other entity? Could an environmental landmark – like the Great Barrier Reef or the Grand Canyon – be regarded as a rights-holder if other entities bear legal duties in relation to them? The interest theory says one need only be the bearer of an interest to be capable of bearing a right. So, the argument then rests on how one conceives of interests. One might argue that environmental entities can be the bearers of rights, since they have interests related to their healthy functioning and survival (e.g. Stone Reference Stone2010, 11), while others might disagree on the basis of these entities’ (assumed) lack of sentience (e.g. Cochrane Reference Cochrane2013; Vink Reference Vink2020; this is a point that will be addressed in more detail in Chapter 5). In either case, however, the question of rights does not rest on facts about legal personhood; whether one is an interest-holder does not hinge on whether one is a legal person. All that is needed for our purposes here is what has already been shown: that animals’ lack of recognised legal personhood status places no conceptual barriers in the way of them being recognised as actual or potential rights-holders.
1.6 Conclusion
This chapter has sought to make some clarifications around the concept of animal rights, given how contested rights-language remains in the context of animal law. I made the case that there is no conceptual barrier in the way of animals being regarded as actual or potential legal rights-holders. If we accept a theory of rights that emphasises the role of rights as protecting interests, then since animals clearly have interests, they can therefore be recognised as capable of bearing rights. Alternatively, we might draw on the will theory, which focuses on how rights protect the choices of the rights-holder, in order to ground a theory of animal rights. I then made the further claim that animals can be recognised as already having certain legal rights, as established under those pieces of animal welfare and anti-cruelty legislation that are directed at protecting their interests (rather than merely those of human animal owners or the human community at large). As such, those who only recognise those legal protections that fully respect the ‘fundamental’ interests of animals as true rights are muddying the conceptual waters; they are confusing the substance of legal rights with their existence.
Nevertheless, serious problems remain. Animals may have legal rights, but those rights are universally weak. Even the strongest welfare laws frequently exclude entire species or groups of animals (even those recognised as sentient, and therefore as capable of suffering) from protection because doing so protects the interests of animal-use industries and community interest groups. Humans who engage in acts that would otherwise constitute offences under these laws are often exempted from prosecution where their conduct falls within the scope of industry-developed codes of practice, or simply because their conduct is deemed ‘reasonable’, ‘necessary’, or ‘justifiable’ under the circumstances. While accepting that individuals’ and groups’ legal rights must always, to some extent, be balanced against those of others with competing interests, these exemptions nevertheless appear to be at direct odds with the goals of protecting the welfare and respecting the intrinsic value of animals, as is explicitly set out in laws like the ACT’s Animal Welfare Act 1992.
The time has certainly come to move beyond conceptual debates over whether animals can have, or already do have, legal rights. It should be clear that they can and they do – and that public recognition of animals as legal rights-holders is important. First, acknowledging that animals are already potential or actual legal rights-holders allows us to move away from conceptual questions and move to more pressing questions of which rights animals need in order to ensure that their interests (and their choices!) are protected, as befitting the kinds of beings that they are, and the kinds of roles that they have within our multispecies communities. Second, we might think that where legal protections offered to humans and animals are conceptually and structurally equivalent, and where we would recognise the protection as a right in the human case, we should also recognise the right in the animal case. To do otherwise, to treat two groups differently where there is no significant and relevant difference between them, is inconsistent at best and discriminatory at worst. However, acknowledging that animals can and do have legal rights, and being willing to introduce this terminology into our discourse, serves another important function. We tend to think rights are important because we think rights-holders are important. Therefore, viewing animals as rights-holders encourages us to think of them as important – as rightful members within the political community, who are worthy of legal justice.
In the next chapter, we will move beyond the debate over animal rights-holding to consider one of the most significant institutional barriers in the way of animals’ greater legal inclusion: the doctrine surrounding legal standing.
