Animal Pride: WHAT LEGAL RIGHTS FOR ANIMALS?
An article by Christopher Fairfax LL.B., B.C.L.(Oxon)
Legal systems around the world have, often over centuries, evolved complex rules set out in codes, statutes and/or common law to establish a comprehensive system of rights that protect the interests of humans as against each other.
For practical purposes we all have a pretty good idea of what a legal right is, although a particularly useful analysis of such 'rights' for present purposes was provided by Professor Tom Regan in his work The Case for Animal Rights, in which he coined the term the 'respect principle'. According to this, the right holder has a right to 'respectful treatment' and so he cannot be treated merely as a means to an end. For someone to have legal rights, therefore, the system recognises that they have an inherent value - that they have 'a life' beyond just mere existence.
The scene is therefore set for putting animals in their legal place. Animals have historically been treated as nothing but the property of humans and they are still treated as such. Things that are merely property can have no legal rights. The best that 'property' can hope for is that those who own and use it will establish rules to give it some degree of protection. In the case of animals, we have lip-service paid to such protection in the various pieces of legislation which are supposed to limit abuse. As Professor Gary Francione has pointed out in his seminal work Animals Property and the Law such legislation is simply a feature of what he describes as 'welfarism' - it does not afford animals any rights per se. Therefore, anti-cruelty legislation is aimed at preventing 'unnecessary' or 'wilful' harm to animals. But whether these rules are infringed is always looked at by balancing the rights of humans against the welfare interests of animals who have no such similar rights. Inevitably, therefore, the balance will always be weighted in favour of the right holder - the human. So, if the system decides that what would otherwise be deemed an abuse of an animal may in fact be of benefit to humans, then it will allow such abuse to outweigh the animals welfare interest.
The treatment of animals as property by virtually every legal system as far as I am aware is the reason why the law can appear to produce perverse results when the interests of animals are dealt with by it.
For example, there has for a long time been a problem in this and other countries with malicious attacks on horses. They are always desperately upsetting to the owner who considers the horse as a member of his or her family. The law however regards the poor horse as a piece of property. If it is injured, the offence is considered as one of criminal damage to property, as it would be if someone maliciously scratched my car. This has two very undesirable consequences. The first is that the police can only direct such resources at detecting and prosecuting the crime as come within their budget for dealing with an offence of criminal damage to property. Secondly, if an offender came before the Court, his punishment would be that for criminal damage to property and might therefore amount to nothing more than a modest fine.
To change the notion of animals as mere property is therefore to change ideas that have been entrenched for centuries. But we must not be too pessimistic. Only last year, the Home Office produced a document in response to a report from the Parliamentary Animal Procedures Committee which recognised that great apes have a 'special moral status' which would preclude them from being used in experiments. In my view, once it is accepted that any species of non human animal has a status inconsistent with its treatment as property then it must surely be a small step to recognise that species should be afforded true 'rights' and the precedent is then set to extend the same treatment to other non human animal species.
What then for the future?
There is little doubt that the interests of animals are under continual threat by an increasing human, right holding population. As long as animals are legally classified as nothing but property then the best they can hope for is an improvement in the welfare handed down to them by humans. When that welfare is balanced against human rights, however, animals will always lose out and their true salvation can therefore only lie in an extension of the concept of rights to cover non human animals. These rights are only likely to be afforded to animals if they become more widely regarded as sentient beings whose lives have inherent value quite apart from any use they might be to humans.
It is therefore incumbent upon all of us to underline that value in support of our campaign to see that animals are afforded the rights they deserve as living beings.