What is the best way to use the law to protect animals? The current approach, at least in the United Kingdom, is not to give rights to animals, but to impose obligations on human beings dealing with animals. But should the approach be the other way round, with the law providing instead that animals have rights themselves? And would that make any difference?
One potential objection to a shift to a rights-based approach is that animals cannot have rights because they cannot themselves enforce these rights. A pig cannot be a plaintiff in person, and an ape cannot be an applicant in a court. But this response is misconceived. There are many situations where a person has legal rights that are enforced on their behalf. Think of minors and the incapacitated. Even abstract entities have rights that can be enforced. Corporations are treated at law as “legal persons,” with almost all the rights that a human being can have.
If it is possible at law for animals themselves to have rights, then the question becomes whether it would be a good thing for animal welfare: would the lot of animals be improved under a rights-based approach? To answer this requires us to look at the current regime, both the substance of the law and procedures for enforcement. Here things soon get complicated. The current law relating to animals is messier than any stable. It has developed haphazardly in the 200 years since the Knackers Act 1786 and the Cruel Treatment of Cattle Act 1822, often as legislative reactions to outbursts of public morality. Sentimentality rather than principle has been the usual driver, with the result that certain familiar and charismatic animals are more privileged than others.
Animals under human control are under one set of laws, some (but not all) wild animals are under another, and animals subjected to experiments are under a third. There are general laws dealing with how animals are to be killed. Specific species, such as dogs and deer, also have dedicated legislation. This means some lucky animals get the benefit of the law saying they should not suffer “unnecessarily.” The law prohibits someone who “mutilates, kicks, beats, nails or otherwise impales, stabs, burns, stones, crushes, drowns, drags or asphyxiates” a wild mammal, but other animals do not have such protection. Octopuses and other cephalopods are treated like mammals for some purposes and not others. Squirrels get immense or almost no protection depending on the colour of their fur.
Some compromises are scientific: for example, although the law says the government must not grant a licence for experiments on the great apes, it does not provide for a specific criminal offence if such an experiment takes place. Government guidance even makes a point of reassuring scientists that restrictive laws on animal experimentation can be easily amended, should it be necessary. Other compromises are religious. Animals to be slaughtered for meat are supposed to be stunned, but can be killed without prior stunning, if done in accordance with certain religious rites, “by the severance of both its carotid arteries and jugular veins by rapid, uninterrupted movements of a hand-held knife,” and if the animal is firmly prevented from showing any struggle.
Enforcement of these laws is irregular. Animal protection is not a priority for a hard-pressed Crown Prosecution Service, while the Royal Society for the Prevention of Cruelty to Animals has faced criticism for the way its prosecutions are handled. Various public agencies are responsible for different aspects of animal welfare, which all have their own priorities and resource constraints, and enjoy varying degrees of public support.
All this means the law in the UK for protecting animals is as complicated as the attitudes of society itself. The TB-infected alpaca Geronimo can get front-page attention and the benefit of court cases, while hundreds of thousands of animals are killed daily, out of sight and out of mind.
Parts of the system do work. Some animals benefit from the highest standards of welfare. The way our society values science and religion means various compromises will have to be made even with a rights-based approach. But there is value in a single overall approach that does not divide the suffering of domestic and wild animals, nor automatically elevate the distress of mammals above that of any other creature. In a welcome move, the government is legislating in England and Wales for there to be special regard in all policymaking to the welfare of animals as sentient beings, an approach already in place in Scotland. It is not a huge change, but it is more than a legislative gesture.
A single Animals Act—akin to the Children Act—regulating all human interactions with animals should replace the various sprawling statutory regimes, even if it would have to contain exceptional provisions for certain species. We would then have general legal standards across the animal kingdom, and not just for the fortunate creatures with good cultural PR.
And if there can be a uniform legal regime, the notion of animal rights will not be such a leap. Such rights will not all be absolute—even human rights are often qualified. But there would have to be regard taken of those rights by courts and by people. If corporations without bodies can have rights, there is no reason creatures with actual bodies—that can suffer at human hands—should not have their own.
