What is 'Animal Law'?*
Using the law to help animals
Presently, animal societies rely on public education campaigns to disseminate the animal rights/welfare message. Older societies conferred by statute with powers of investigation and prosecution usually only exercise them in respect of cases of companion animal cruelty. This is usually due to two things: first, a traditional way of addressing or viewing the animal law agenda, and second, statutory exemptions and limitations upon liability in respect of offences concerning in particular farm animals.
This latter difficulty usually exists because government departments of agriculture have a stranglehold on welfare statutes, and ensure producer interest prevails over even rudimentary welfare. These departments, not surprisingly, view themselves as 'the friend of industry'. They recognise no self-evident conflict of interest. Would a department of resources, for example, also be responsible for the environment?
Then there is the further challenge that in many countries there are neither laws to protect animals nor a culture of concern about their plight or suffering.
So, law reform is at the heart of the animal rights/welfare battle. But increasingly an agenda exists to impart the message about the widespread maltreatment of animals by, first, public interest cases affecting animals in a whole industry and, second, by possible prosecutions in key areas such as intensive livestock production.
Such a legal agenda moves the cause beyond the revolving door of largely companion animal cruelty prosecutions. Whilse necessary, an agenda of only such prosecutions fails to move forward an agenda for widespread change. Indeed, in some countries such has been the agenda for more than 100 years. Further, it leaves the modern agenda reliant upon only public education campaigns. Publicity of a wrongful practice or cruel trade may be secured in say the electronic media. But such is the stranglehold of industry upon the political levers of power that the next day nothing changes. And so it remains. This is not to criticise public education campaigns. They are vital and must be maintained with all vigour.
But what if the concerned lawyer or animal activist wants to see proactive steps taken to rescue animals or bring producers to account? Where possible is it not better to take strategic steps to protect particular animals or those in an industry by recourse to the courts rather than by way of simply a legal 'post-mortem' vindicating the death or suffering of a few animals due to ill-treatment at the hands of a defendant?
With welfare thresholds so low for intensively produced and other animals, successful prosecution can be difficult. Yet the concerned lawyer by being creative can take on an entire industry in respect of many millions of animals rather than just prosecute one individual's maltreatment of a few animals. By way of example, major intensive producers of animal products in a particular industry may be sued under the misleading and deceptive conduct provisions of a trade practices statute for marketing their products with claims that the animals were raised in enriched or even ideal conditions, when plainly they were not. In this way, customer allegiance built by such marketing stands to be impeached by successful suit. In turn, by the exertion of market power, the informed consumer or supermarket chain may bring about a more humane set of practices on the part of that industry.
Finally, the eventual cumulative effect of successive court decisions may engender a change in public or producer attitudes, and in the attitudes and willingness to act on the part of legislators, so that law reform ensues.
So, why take the animal cause into the courtroom (beyond existing cases of modest enforcement)? First unlike politicians, judges will dispassionately hear and determine a case brought before them, provided that there is a justiciable issue. And they cannot be lobbied by industry groups. Second, successful litigation confers the public imprimatur of a court. Sometimes the case will be followed in the media and the eventual decision reported and thus confer a wider insight into the welfare principle sanctioned by the litigation. Third, as stated above, it moves the cause beyond reliance upon public education campaigns.
However producer resistance to change can induce aggressive litigation intended to silence the welfare message eg the suit by Australian wool producers against PETA invoking the secondary boycott provisions of an Australian federal statute to claim substantial damages arising from PETA's threatened boycott of Australian wool products whilst Australia persisted with mulesing and live sheep exports. This type of case requires its own legal ingenuity and strategy to protect public advocates, including a close examination of constitutional protections of 'free speech'.
Or again, what is the legal position where CDs and documents are 'leaked' to an animal society which in turn publishes them to its website so publicly pointing out arguably impermissible, heavily intrusive research procedures on primates with grave consequences for their welfare? Is the animal society to be silenced upon grounds of breach of confidence and copyright? Or can the public interest (as in the United Kingdom) confer a countervailing defence? This was explored in the Imutran case in England.
Strategic public interest litigation is a central part of the legal armour to be enlisted in support of the animal cause. Combined with advocacy of law reform at preferably a national level, each stands to forge new headway in the struggle for legislative change.
What is animal law?
‘What is Animal Law?’ asks the interested lawyer or activist. It is a fair enquiry in view of the comparative recency of Animal Law’s origin as a discipline. It is the synthesis of different principles and learning of the law in a manner which exposes how, in a given case or question, they may affect, challenge or arm the advancement of the welfare and treatment of animals. Second, they go to questions arising in the defence of protesters or public advocates of the animal cause. For example, what are the constitutional protections of 'free speech' where a boycott for example has been threatened or undertaken? Third, they go to the question of law reform in circumstances where, if it exists, an animal protection legal regime fails to protect the overwhelming mass of animals. This is all but universal.
*By Graeme McEwen in reliance, in part, on writings in his ebook Animal Law: Principles and Frontiers and different papers