Abstract
Animal Rights Law explores complex questions concerning whether animals should have rights, how such rights might be conceptualised and indeed, whether animals can already be said to have legal rights. Potentially these are polarising questions within the world of animal law and animal rights discourse where various absolutist perspectives are frequently in conflict providing a potential minefield for activists, scholars and students alike. Yet in this timely and accessible textbook, Fasel and Butler survey the complex theoretical and legal landscape providing an overview of anti-cruelty and animal welfare laws before discussing the nature of contemporary efforts to achieve basic legal rights for animals and assessing the case for legal personhood as a pre-requisite for granting animal rights.
Animal Rights Law is based on the authors’ own animal rights course, with content covering the legal status of animals, welfarism vs abolitionism, the legal theory of animal rights, animal rights and human rights, animal rights in litigation and specifically the Nonhuman Rights Project's US litigation concerning legal personhood for non-human animals. The scope of the book's legislative analysis is impressive and includes case law from Argentino, Austria, Columbia, the US and India as well as relevant decisions of the European Court of Human Rights (ECtHR) and some comparative analysis that considers how different jurisdictions have approached questions concerning animal rights. Accordingly, the book is international in scope and for an introductory text it packs in a huge amount, attempting to discuss the complexity of animal rights beyond binary welfare v abolition debates that arguably divides animal rights advocacy and scholarship between those who argue that animal protection can be achieved through effective welfare and those who consider that only through the granting of fundamental and potentially far reaching rights can animals be truly free.
The attempt to discuss the animal rights issue in depth is an admirable endeavour within an introductory textbook and within its eight chapters the authors provide a range of useful exercises and online resources to support students as they grapple with potentially conflicting perspectives. But this overview and explanatory approach is not at the expense of a detailed look at animal rights, and scholars with existing knowledge of the subject will find that key debates and issues are covered effectively although a greater depth in case and legislative discussion is arguably required in some places.
The book identifies the key difference between the welfare approach and the abolition approach, highlighting how advocates of ‘pure’ animal rights contend that this requires an end to all animal exploitation or use. Comparative analysis on the status of animals as property helps to identify that the notion of animals as being ‘mere’ property are not uniformly held and have arguably developed so that animals are not just property. The text identifies that broadly humans have legal duties to treat animals humanely but that such duties are contained within a legal framework that still allows ownership of animals. While this is correct, the concept of ownership does not by itself negate the fact that many legal systems consider animals as more than property and indeed in some respects extend the duty towards animals beyond humane treatment to incorporate a recognition and functional protection of limited rights that arguably provides for a limited level of self-determination. The UK's Animal Welfare Act 2006 for example, requires not just humane treatment and a prohibition on cruelty but also provides for a positive duty to provide animal welfare consistent with the needs of the individual animal and recognition of what those needs may be. Crucially, this obligation is not confined to owners but to those responsible for an animal, providing for a wide definition of what constitutes a ‘responsible person.’ By requiring owners and responsible persons to give active consideration to the needs of individual companion animals, the Animal Welfare Act provides animals with a level of protection that amounts to a form of legal rights. 1 The text acknowledges this in its later discussion of the types of rights that animals might be said to have, albeit the discussion of animals as more than property has potential to further clarify the limitations on the property conception.
The key philosophical foundations of animal rights are covered with the book effectively discussing the conflicts between different perspectives such as Nussbaum's capabilities approach and its contrast with and critique of Singer's utilitarianism, Kantianism and contractualism in the Kantian tradition. 2 From this discussion, the authors’ analysis identifies a distinction between absolute animal rights and relative or qualified animal rights.
The book also discusses the political turns in animal rights and questions concerning the duty of society to govern humans and animals. A key point in the book's discussion of political issues concerns a comparative analysis with human rights. Given the complexity of the current human rights landscape, this aspect of the book risks being a little light in its consideration of how human rights work in practice and the implication of this for animal rights discourse and policy. The book discusses aspects of the proportionality test as it applies to human rights but from a constitutional perspective the tests of necessity and legitimacy are arguably separate from proportionality and further discussion of this issue might assist understanding. Human rights courts have, for example, arguably interpreted the issue of necessity in a liberal manner to allow state interferences in human rights based on action justifiable in the circumstances of an intervention, rather than on an absolute conception of necessity. The implications of this are important in respect of how legal animal rights might be developed and applied. For example, consistent with welfarism's conception on animal rights it could conceivably be argued that a suspension of the right to life is both necessary and proportionate to allow selected animals to be killed for food. This would clearly frustrate the principle of granting animal rights as a key tool in preventing animal suffering but would not be wholly inconsistent with contemporary human rights interferences which, for example, have not eliminated genocide, torture or the use of the death penalty, albeit being of a more foundational nature and on a larger scale. In a legal context, the book identifies human rights as providing basic protection for the interests of vulnerable beings and those who may suffer from undue interference with their rights, subject to the complexity of qualified rights.
Animal Rights Law also deals with the contested issue of whether animals already have rights. In this part of the discussion, the authors distinguish between what they call ‘thick’ and ‘thin’ rights. This is a compelling part of the book, which identifies legal rights as being legal protections from being harmed. 3 Thus, ‘thin’ rights already exist in the form of different legal positions that the term ‘rights’ signifies. For example, the Animal Welfare Act 2006's prohibition on causing unnecessary suffering and its positive conception on individual animal needs are legal protection that arguably equates to rights according to legal theory that contends that legal duties are always correlative with claim-rights. 4 The ‘thick’ conception by contrast contends that because animals have not yet been provided with anything more than narrow protection of basic needs they have not yet been granted any legal rights. This approach argues that animal rights requires protection of individuals fundamental interests with a high threshold for justifying limitations and the potential to be directly enforceable by the individual or their representatives. As the authors put it ‘thick rights are characterised by the fact that they do not merely consist of single-claim rights, privileges, powers, or immunities, but of a complex set of such legal positions’ (emphasis in the original). Thus, the thick conception advocates for rights that cannot be easily infringed whenever there is a competing interest, yet arguably this is the position with human rights where, for example, various rights are infringed in the name of law and order, national security etc. including rights to life, free speech, liberty, freedom of assembly and reproductive rights. It's debatable how ‘easily’ these interferences occur but they are relatively widespread as the legal challenges against such interferences and the jurisprudence of human rights and constitutional courts readily illustrate. But this debate between thick and thin rights is a crucial one and Fasel and Butler illustrate contested notions within animal rights discourse concerning what rights should look like and where battle lines appear to exist concerning what is acceptable and achievable. The thick conception is arguably the ideal, but strides have already been made towards achieving the thin conception and Animal Rights Law illustrates a potential failure to recognise this, in part because thin rights do not reflect the desired foundational rights.
Underlying many of the book's discussions are questions concerning what is needed to be effective in securing animal rights. In discussing animals in litigation, Fasel and Butler discuss the relative failure of litigation attempts to secure thick rights including the Nonhuman Rights Project's habeas corpus cases in the US. Here, the authors discuss the Traditional View that animals require legal personhood to achieve thick rights against the Unorthodox view that legal personhood is not necessary for rights-holdership. The Traditional View is perhaps encapsulated in the statement that ‘without legal personhood, one is invisible to civil law. One has no civil rights. One might as well be dead’. 5 Yet, as Animal Rights Law explains, animals can have rights despite being property and thus the abolitionist perspective can be contested on the basis that there are entities that have rights despite not being legal persons and in practice it is the nature of the rights (and limitations placed on these) that is in contention not the question of whether any rights exist. Thus, a question might be raised concerning whether the correct legal strategies are being deployed in respect of pursuing rights and it is here that Animal Rights Law's analysis is illuminating, concerning how different legal strategies and approaches have provided for varied conceptions on animal rights across jurisdictions.
The book's conclusion provides a summary of its key aspects rather than a direct conclusion setting out its conclusive view on animal rights. This may have been helpful to student readers, notwithstanding the challenges of doing so. But Animal Rights Law is a compelling book that surveys the broad landscape of animal rights theoretical and practical discourse in a manner that engages with the needs of beginners and those coming to the subject with a limited knowledge of animal rights, while also providing sufficient depth to interest those with more experience of animal rights discourse who will find the text a useful reference to key debates, case law and legislation and theoretical positions. In this respect, it is a timely book, and the authors are commended for having covered a challenging topic in such a compelling read.