Bloom, Geoffrey --- "Everyone is in Favour of Animal Welfare" [2007] ALRCRefJl 6; (2007) 91 Australian Law Reform Commission Reform Journal 19

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Everyone is in favour of animal welfare

By Geoffrey Bloom *

Everyone is in favour of motherhood...only, not everyone is in favour of motherhood in the same way. Conservative religious groups and feminists often favour different things about motherhood. Everyone is in favour of the environment...but those in favour of large scale development and those in the environmental movement express their favour in radically different ways.

So too with animals. You would be hard pressed to find anyone who is not in favour of animal welfare and protection from cruelty, who does not think that animals should be spared unnecessary pain. When it comes to animal welfare, or unnecessary pain, the modern animal protection movement claims that the proper realisation of these aims would entail modifying or abolishing most of the ways in which our society treats animals. Clearly, they define these aims differently from most people.

When I put together my Animal Law course at the University of New South Wales, the topics that seemed most important to cover were, on face value, fairly mundane in legal terms. The law is mainly statute, regulation and government policy. It stays fairly flat on the page, concerning itself with the procedural aspects of rearing, transporting and slaughtering animals for food, or accommodating them in zoos or circuses. There is little case law and even less that arouses conceptual interest.

An example: the centrepiece animal law, found in similar forms across the Western world, is anti-cruelty legislation. In New South Wales, it is the Prevention of Cruelty to Animals Act 1979. It contains the apparently unexceptionable basic offence in s 5(1) that 'A person shall not commit an act of cruelty upon an animal'. Obvious defences to this and similar offences include the one under s 24(1)(b)(ii) that a person is not guilty of an offence if an act or omission was in the course of, or for the purpose of, destroying the animal, or preparing the animal for destruction, for the purposes of producing food for human consumption, in a manner that inflicted no unnecessary pain upon the animal.

This basic formulation—of a prohibition on cruelty, together with a defence for socially sanctioned uses such as agriculture, if done without unnecessary pain—is the common approach to regulating human treatment of animals. My course looks at the various settings in which humans make use of animals, or otherwise impact on them. Those settings include use of animals in agriculture, for entertainment in zoos or hunting, companion animals, animals in research, and animals in the wild.

I also devote at least five of the 14 classes in my course to topics beyond the regulation of human treatment of animals in specific settings. Those five classes articulate the reasons why I went from having a casual lack of interest in animals, not extending much past our family pet, to developing a consuming passion against our society’s unjust and cruel treatment of animals. And the reason why, (beyond the apparent regulatory mundanity of laws relating to animals), I decided to create and teach Australia’s first ever animal law course.

The five classes look at the ethics of human treatment of animals, jurisprudential theories, and the history of the legal status of animals. They propose a new perspective from which to view our common practices. The perspective includes questioning our attitudes to and treatment of animals. Perhaps more than that, it entails realising that these topics are worthy of question in the first place. Viewed from this perspective, rather than the one most of us are raised with, I have found the way our society sanctions its treatment of animals through its laws deeply unsettling and in need of urgent reform.

Learning to look at our treatment of animals from a different perspective, for me, has entailed the same shift in gestalt experienced some years ago by one of the modern animal protection movement’s most successful activists, Henry Spira. On his first exposure to modern animal protection arguments, he wrote that, 'I soon began to wonder about the appropriateness of cuddling one animal while sticking my knife and fork into others.' All but the most unreflective people have surely remarked on a certain oddness in the juxtaposition of these two activities. Encouraging people to go beyond that, to a genuine questioning of the ethical strangeness of this juxtaposition—termed 'moral schizophrenia' by Francione—is one of the tasks of my course.

So how is most of our society in favour of animal protection? In a recent report on community attitudes to animal welfare, commissioned by the Australian Government, most people were found to be generally positive about Australia’s performance on the issues of animal welfare, with 42% rating it as good or very good, and a further 37% rating it moderately. Along with this was a finding of a complacency or apathy in relation to animal welfare by the wider community. It would appear that this position goes along with approval of the use of animals for farming, and acceptance or ignorance of factory farming to a sufficient degree to result in widespread consumption of its products.

Australian philosopher Peter Singer developed his utilitarian theory of ethics to challenge our society’s uncritical and untroubled acceptance of the modern treatment of animals. He is often seen as the founder of the modern animal protection movement.

Singer’s thesis is that 'despite obvious differences between humans and non-human animals, we share with them a capacity to suffer, and this means that they, like us, have interests. If we ignore or discount their interests, simply on the grounds that they are not members of our species, the logic of our position is similar to that of the most blatant racists or sexists who think that those who belong to their race or sex have superior moral status, simply in virtue of their race or sex, and irrespective of other characteristics or qualities.'

Singer used the term speciesism to describe this form of unjustified discrimination. While most humans have intellectual capacities superior to animals, there are many who do not. Infants and the severely mentally disabled are intellectually inferior to many mammals, and yet we (rightly) do not inflict painful deaths on them to test household products or eat them. The fact that humans do these things to animals is therefore arguably a form of speciesism.

Going further than Singer in proposing a different status for animals are philosophers like Tom Regan, who argue that animals, like humans, have basic rights of liberty and bodily integrity. At the very least, mammals greater than a year old, who are sentient and self-conscious, have those rights. In classic rights theory, a right trumps an interest. The more so where the right is a basic right. So, the basic right of an animal to bodily integrity, otherwise known in the common law tradition as habeas corpus, trumps the mere interest of humans in eating animals. The reason why the eating of animals is a 'mere interest' is that a vegetarian or vegan diet is nutritionally sufficient, and indeed healthier than an omnivorous one. So too, the basic rights of animals trump the mere interests of humans in being entertained by animals in circuses, on race tracks or in hunting.

Utilitarians like Singer, and rights theorists like Regan, come to most of the same policy prescriptions, albeit by different paths. Where they separate is where there is an argument that the overall welfare of many may be increased by the sacrifice of the welfare of a few, or, in the familiar utilitarian calculation, the greatest good for the greatest number.

Singer may countenance experimentation on animals where that may lead to major benefits for many humans, for example, experiments on chimpanzees for an HIV vaccine. Regan says that the violation of a basic right of a chimpanzee, the right to bodily integrity, is not justified by the upholding of a less significant right, the right to experiment in the hope of finding a cure, even where the less significant right is held by many more beings.

The divisions of opinion among lawyers echo those among ethicists. Mike Radford, a British legal academic, advances an animal welfare position that 'legislative intervention has made a positive difference, continues to do so, and reform has the potential to improve the situation further'. Criticising views of the modern animal protection movement, Radford argues that 'to suggest that we should somehow isolate ourselves from [animals] is not only fanciful, it is also a denial of the human condition. We are part of the animal kingdom, not separate from it, and, like all other forms of life, each of us has to exploit our environment in order to survive.'

Lawyers working in animal law pose challenges to a legal system with traditional views about animals. American lawyer Steven Wise, sometimes working with renowned chimpanzee researcher Jane Goodall, has sought to establish that higher primates should be recognised as legal persons. They argue that higher primates should have all the rights, and standing to vindicate those rights, that the status of personhood implies.

American lawyer Gary Francione locates the fundamental problem with the legal classification of animals as property, rather than persons. 'As a general matter, whenever we seek to resolve a perceived human-animal conflict, we balance our assessments of the human benefits to be derived from the animal use against the interests of the animal(s) that will be ‘sacrificed’ in the process ... The problem is that the balancing process is nothing more than an illusion in which the outcome has been predetermined,' by comparing 'human interests, which are protected by claims of right in general and of a right to own property in particular, against the interests of property, which exists only as a means to the ends of a person'. Francione would like to see a 'change in the property status of non-humans [involving] the recognition that animals have at least some non-tradable interests'.

Animals in agriculture account for about 95 percent of all animal use by humans. Especially in the post-Second World War period, agricultural use of animals has become increasingly industrialised or 'intensive'. Australia, unlike many other industrialised countries, still cultivates many of its farm animals out in the open, or 'extensively'. This is generally recognised as providing better welfare for animals. Yet in Australia, well over 90 per cent of chickens raised for eggs and meat, and over 90 per cent of pigs, are raised intensively, or factory farmed.

Factory farming has institutionalised the systematic maltreatment of animals to satisfy the industrialised world’s desire for inexpensive animal protein. Factory farming includes practices like keeping sows pregnant for 10 months of every year of their adult lives in metal crates with concrete floors that allow one step forward at most and no side-to-side movement. They live their whole lives in sheds with little natural light, the air thick with ammonia from their faeces. Or keeping battery chickens in a space smaller than an A4 page, the sensitive nerve endings in their beaks burnt off to prevent hostile pecking, developing painful bone and organ disorders that come from living in impossibly cramped conditions during their unnaturally short lives. Or the export of live animals in cramped, frightening and generally awful conditions for weeks on end.

Think again about the typical anti-cruelty provision cited at the start of this article, which prohibits the unnecessary infliction of pain on an animal when slaughtering it. Francione would ask: how much of the cruelty that is inherent in the normal methods of production, including slaughter, could be called necessary, when the whole activity of rearing and slaughtering animals for food is itself not necessary?

While arguments for advancing the cause of animals will strike many as misconceived and the conclusions drawn as bizarre, the law has known other arguments which struck the majority so. Women in times past in the Western world have been chattels. The keeping of slaves, their status as property, and their inhumane treatment seemed perfectly justifiable in nineteenth-century United States. Closer to home, the clearing of Indigenous Australians from land desired by Westerners, their denial of citizenship, and the forced removal of infants from their parents was Australian law and policy well into the twentieth century. Advocates for animals cite these historical analogies in arguing that there may come a time when our society may change its mind on animals as well.

*Geoffrey Bloom is Principal of Geoffrey Bloom & Associates, a specialist practice providing legal and policy services to the health industry. He has taught Animal Law at the University of New South Wales and Southern Cross University. Thanks to David Favre, Tara Ward and Ben Zipser for their helpful comments in the development of this article.