Seminar Summary

The new age of law relating to animals - A vision of our future treatment of other species
Summary of talk given by Simon Brooman
January 23rd 2007, Oxford

Introduction

Much has been said and written about the new primate laboratory in Oxford. The tensions and philosophical problems raised by this latest focal point illustrate the depth of feeling involved. The gulf that exists between those willing to support such a development and those who are vehemently against it seems as wide as ever.

The intention of this article is to illustrate how this lack of consensus merely replicates many of the arguments that have occupied philosophers, theologians, scientists and other ‘thinkers’ alike for two thousand years. It will illustrate how the law of the land that governs all our treatment and use of animals came to be as it is and where it might go from here.

This paper will also highlight how a new ‘language’, that of scientific discovery, is slowly re-writing our ‘animal law’. It is a language that we created for animals and it is leading a new age in the development of animal law – it is leading us to modify and re-think our attitudes to other species. It is now scientific discovery that, to a great extent, is responsible for changing the law. There is a certain irony in that, at a time when the ‘unstoppable’ progress of science creates fierce rivalries, it is the discoveries of science that are creating the greatest challenges to the underlying values of what we allow to be done to animals.

Philosophy, Science and Animals – what influenced the development of the law relating to animals?

There is no doubt about the overwhelming influence of the Bible and theology in the development of Judeo-Christian law. Even earlier, ‘difference’ had become the key with man being exalted as the ‘most excellent of beings’ by Aristotle (384-322 BC). The Bible appears to accord wide legal discretion by giving ‘…dominion over the fish of the sea, and over the birds of the air, and over the cattle, and over the earth, and over every creeping thing which creeps upon the earth’ (Genesis 1: 26-28). The status of our responsibilities and rights over animals given in the Bible is now itself hotly disputed. Sadly, there is little room for a full discussion of this here but theologians such as Andrew Linzey have given an alternative perspective. There is little doubt that the general thesis of human dominion in the Bible was used as the bedrock of attitudes to animals would govern our legal relationship to animals for centuries.

The Romans, infamous for the abuses of the amphitheatres of Europe, actually left more of a legal mark than merely visions of inter-species fights and bloodlust. They created a legal system of property rights concerning animals which is echoed in much of our law. Chief amongst these is the ability of humans to take property in animals, even in certain circumstances, wild animals. This treatment of animals as property has carried with it both the protection afforded by one who owns an animal, but also the potential for abuse of an unbalanced relationship. We all know that our dogs and cats are our property: if an animal is injured then we can claim for damage to property – money that slips into our pockets and none of which may benefit the welfare of the animal. Conversely, it is only recently in the UK that law has been passed to intervene more closely in the domestic relationship of human and animal – by the coming into force of new Animal Welfare Act in April 2007.

At other crucial times before the development of laws relating to animals, it is philosophical discussion and observation that has focussed the debate. In the 17th and 18th centuries, philosophy and science were constantly involved in evaluating the sentient capabilities and status of animals. René Descartes (1596-1679) is often viewed by the animal rights lobby as the `evil genius' behind vivisection. He pronounced that animals were 'thoughtless brutes' incapable of feeling pain the same sense as human beings, and it is alleged that he urged scientists to ignore the screaming of animals as they were vivisected in presentations without anaesthetic. Whether or not this allegation is true and whether or not his position was correctly understood by those who cited his authority to justify their treatment of animals, his words initiated a time of unspeakable animal cruelty in the labs. In not so brutal a manner, Thomas Hobbes (1588-1689) suggested that as animals have no language, no ‘motions of the mind’, that humans were superior.

On the other hand, John Locke (1832-1704) illustrated a more sympathetic view of animals: ‘…if they have ideas at all, and are not bare machines (as some would have them) we cannot deny them to have some reason’. And then there came Jeremy Bentham (1748-1832) – the ‘grandfather’ of the animal rights movement as some would have him, who famously declared ‘The question is not, Can they reason? Nor Can they talk? but Can they suffer?’ Bentham’s statement remains particularly pertinent to the situation today. As part of their quest, those working in the field of ‘animal welfare’ have increasingly looked to science to prove that animal suffering exists – to answer that crucial question ‘Can they suffer?’ There was, and it can be argued still is, a tendency not to change the law relating to animals unless actual suffering can be proved – mere observation and intuitive thought has never been enough to convince the law makers to overturn two thousand years of legal development. The absence of Homo sapiens-type language in animals has long been used the chief discriminator between other species and ourselves. In the absence of animals telling us what hurts and causes them distress, science has become the ‘language’ of animals: created by humans, understood only by humans, but a new ‘language’ that appears to speak where animals cannot.

The work of Charles Darwin (1809-82) changed everything. He opened up the possibility of similarity rather than difference as a basis for observing animals. The idea of a continuum revolutionised human thinking and provided the proof that continues to influence the development of our treatment of animals via new protective measures. If an animal possesses the same mechanism for feeling pain, and its biological responses appear to be the same, then should that animal be accorded similar legal protection from harm as humans? Now the question appears to be ‘If not, then why not?’ This basic question is illustrated at the core of opposition to the new laboratory in Oxford. The argument runs something like this: The law certainly permits the facility to be built. If lower primates appear to possess high reasoning powers, abilities to feel pain, sentient qualities similar to humans, relationships and family lives – then should they be locked up in captivity and be subject to invasive procedures? Can the laboratory environment ever adequately provide for their needs? Should the law allow it so freely? Darwin opened the door for such arguments and the door has been ajar ever since.

How has the law developed?

There are certain notable land mark periods in the development of law relating to animals. The ancient Greeks are noted for their ascription to animals of human culpability. Plato (427-347 BC) notes that ‘If a draught animal or any other beast kill a person,….the kinsmen of the slain shall prosecute the said homicide for murder and …send the offender beyond the boundaries of the country.’ On the other hand, Pythagoras (circa 582 BC – circa 507 BC), an ancient vegetarian, contended that killing an animal is murder, probably because of the belief in transmigration of souls. The Romans began by framing laws according to human advantage where property rights predominated. They began the entrenchment of ‘dominion’-based laws in legal systems throughout Europe.

After the Dark Ages where little of record in this area remains, the first notable incidents involving animals and the law arise in the strange tales of the prosecution of animals during the Middle Ages. The prosecution and torture of a pig dressed in human clothes in the town of Falaise, France, is particularly well known. Less well known is the successful defence of local rats accused of destroying crops in Autun, France, in 1522 by French juror Chasenée. His explanation of the rats’ failure to appear in court due to the presence of the cats and dogs of the land-owners remains as one of the masterstrokes of legal history. The rats were eventually ‘successful’ their case because of Chasenée’s tactics.

Sparrows were prosecuted for their ‘vexatious chattering’ and ‘scandalous acts of unchastity during the sermon’; the legal records of Europe are littered with some four hundred such cases of animal prosecutions. However, we cannot consign these episodes to ‘the continent of Europe’. There are strange historical tales that emerge on this side of The English Channel as well. The Hartlepool Football Club team and fans are often taunted as the ‘monkey hangers’. This harks back to an incident during the Napoleonic Wars when a shipwreck off the coast left only one survivor – a monkey. According to the tale, the locals, having never seen such an animal, assumed it to be a French spy and hanged the animal following a trial on the beach.

These incidents are merely interesting footnotes of history if compared to the impact and development of animal welfare law from the beginning of the 19th century. Concerns for the plight of animals, supported by the philosophical contributions of those such as John Locke and Jeremy Bentham, came to affect the law makers. One of these, an MP for Galway, was ‘Humanity Dick’ Richard Martin. He successfully pushed the introduction of the first legislation in Europe aimed at protecting animals from cruel practices through the UK Parliament. Here was an Act ‘to prevent the cruel and improper Treatment of Cattle’ (1822). It was aimed at protecting cattle used at fairs and wakes in England. The animals would traditionally be chased and tormented through towns and villages as a prelude to slaughter. Often attacked by dogs and beaten, this sickening process held the supposed advantage of softening up the meat before eating. It was a tradition going back some 600 years. But the practice would not lie down easily. The 1822 Act failed on an interpretation of ‘cattle’ which was held not to include bulls. An Amendment Act of 1835 also included laws prohibiting other dubious practices such as cock-fighting and the driving of animals.

The reaction to this new legislation in the town of Stamford, Lincolnshire led to conflicts with the authorities for the following four years. Following the 1836 bait, eight men were prosecuted at the Lincoln Assizes. Mr Hill for the defence was quoted in the Stamford Mercury: ‘You may lead men where you cannot drive them – and thank God an Englishman is not to be driven – neither is he to be hunted out of his pastimes’. Similar suggestions appealing to the historic right to hunt and accusations of state bullying have been made recently by the pro-hunting lobby following the Hunting Act 2004.

A new age for animals?

So how will the future view the current developments of law relating to animals? On the one hand we have a wealth of laws protecting animals -- laws to protect and regulate the use of animals in scientific experimentation, hunting, agriculture, for the protection of endangered species and the prevention of domestic cruelty, along with many more. No society in human history has created so much legislation and spent so much time in an effort to protect of animals from cruel practices. Surely the writers of tomorrow will view our age as the dawn of a real appreciation of the suffering of other species? We can then look back at incidents in human history, such as the medieval prosecution of animals and bull-baiting, with an air of moral superiority. Right?

Wrong. This ‘new age’ in the treatment of animals has a darker edge – an edge also un-matched in human history. Only this week (in April 2007) scientists are suggesting that the ‘old man of the forest’, the orang-utan, may be extinct in two years in a worst-case scenario. The destruction of habitat and scale of human incursion has become too much for the species to bear. Also in April 2007 came the news that certain species of hammer- head sharks, amongst others, have become depleted by as much as 99%, with unknown consequences for the food chain due to dubious fishing techniques. Since the war, we have farmed animals in conditions totally at variance with their basic physiological and psychological requirements. Science has highlighted the stresses these animals endure in the name of providing cheap food for the food shoppers of ‘Western culture’. And meat-eaters, as consumers, are willing to put animals through this in their millions, presumably because the taste for meat outweighs moral concerns. The traditional care and nurture philosophy of farmers who looked after animals under their own roofs has been replaced by the mass production of mega-producers. When we add the spectacle and cost of the slaughters of foot-and-mouth disease, BSE and bird-flu to the equation it is more difficult to hold a vision of a new age of animal protection and welfare.

And then there is the legal system itself – a cumbersome ‘beast’ at the best of times and one which has at its core plenty of good intentions regarding animal welfare. But it moves very slowly and is not easily swayed by evidence that is not fully definitive and proven. One small example is the recent case of the humble cuttlefish. In 2001, the octopus was accorded protection under the Animals (Scientific Procedures) Act 1986 (ASPA) following advice from the Animal Procedures Committee (APC) which oversees development in this area. This was on the grounds of the problem-solving and sentient capabilities that had been shown by the octopus which led to the conclusion that they are attributed with high-order capabilities and worthy of the Act’s protection. In 2005 the Committee recommended that this protection be extended to all cephalopods as they appeared to show similar capabilities. However, the APC was not unanimous on this. The Secretary of State responsible for the ASPA 1986 decided against extending this protection until conclusive proof has been presented, citing differing opinions amongst APC members as his reason. The doubts of a minority led to the rejection of enhanced protection for the species. It sometimes appears that only evidence beyond reasonable doubt is required to change the law relating to animals – not just the balance of probabilities. This mirrors the development of law in all aspects of animal treatment. Often, the emphasis has been on proving suffering or sentient capabilities to a very high degree before enhanced legal protection is given.

Which brings us once again to the use of animals in experimentation, and in particular, the use of primates at the new Oxford laboratory. The law allows for the use of such animals in the UK. The ASPA 1986 is regarded as one of the most stringent pieces of legislation in the world. It allows for scientists to rate the likely harm that will be done to an animal from mild through moderate to severe suffering. Once a licence is issued then the scientist is protected from the law and the animals become one of up to three million or so animals, mostly rodents, used in experimentation. Primates are known to have high sentient capabilities, a significant and well-developed language and complex social structures. There is also emerging evidence of culture in some higher primates – the transmission of ideas from one generation to the next by learning and observation.

In 1995, the Act was criticised in the Ministry of Agriculture Fisheries and Food’s Report of the Committee to Consider the Ethical Implications of Emerging Technologies in Breeding of Farm Animals. In paragraph 4.98 it was stated that sometimes not even significant benefits could justify the use of animals: where ‘the experiment risks serious and profound harm to animal [this] is reason enough to warrant its prohibition.’ The knowledge of animal suffering, along with physiological evidence, has grown exponentially even in the 12 years since that statement. During his inquiry into hunting with hounds, for example, Lord Burns concluded that he was convinced that the welfare of foxes and other animals is severely compromised during the hunt. This had been denied for decades and more. In a similar inquiry in 1949, the Scott Henderson Committee stated that hunting should be curtailed only if it were shown that the amount of suffering involved was excessive or unreasonable. It took a further 55 years to prove this to the satisfaction of another hunting inquiry leading finally to the passing of the Hunting Act 2004 which banned such practices.

The question for our time is when the weight of evidence becomes enough to warrant the prohibition of practices that seriously compromise the welfare of animals. Is there a point beyond which we are not prepared to go or are we always able to use members of other species just because they are from other species? We created a ‘language’ in science that has brought knowledge that scientists might, in some cases, rather not have. Proof and empirical evidence have now supplemented the intuitive observational evidence of the voices of the past. In some cases this goes beyond reasonable doubt and yet, the law remains unchanged and the use of animals continues relatively unabated – the financial and cultural interests are very strong. However, our descendants might ask us why we chose largely to ignore the evidence before us. They might also question our need to prove any potential harm beyond reasonable doubt where a balance of probabilities argument might suffice.

For the moment, incremental change and slow progress appears to be as much as the animal welfare/rights lobby can expect. As well as living at a time when law created right and justifiable animal welfare protection, ours might also be remembered as the age when animals suffered at human hands more than ever before. From the extinction of species, the mass production of animals in agriculture and the world-wide use of animals in the laboratory, there is evidence that we are not the great protectors of animals that we imagine. There will be a new Oxford laboratory. There will be suffering and there will be emerging evidence of scientific progress. But just as we look back on the medieval prosecution of animals as evidence of either strange or brutal human legal history, the state sanctioning and protection of the practices of a modern laboratory await tomorrow’s judgement.

REFERENCES

Brooman, S. and D. Legge, Law Relating to Animals, 1997, London: Cavendish Publishing.
Evans, E.P., The Criminal Prosecution and Capital Punishment of Animals, 1987 edn, London: Faber and Faber.
Turner, E.S., All Heaven in a Rage, 1992, 2nd edn, Fontwell, Sussex: Centaur Press.

Thanks to Dr Lorie Charlesworth, Liverpool John Moores University and Dr Katherine Morris, Mansfield College, Oxford University for comments on earlier drafts.