Animal Welfare Law
Excerpt from my Animal Welfare Paper
Species-Specific Protection 
The most practical argument for animal welfare centers on species-specific or species-based protection. Traditionally, animal protection laws have categorized animals according to the manner in which humans use them. For example, laws have been fashioned to regulate the use of animals in medical testing and experimentation, companionship, wildlife, farming and slaughtering, and so on. However, these categorizations are riddled with legal loopholes and a general lack of enforcement, thereby resulting in a weak basis of protection for animals.
In the United States, animals are still treated as “property” under the law. Accordingly, animal protection laws only extend to how property owners seek to treat and use their animals. Consequently, any protection afforded to animals is inherently limited as the animal’s welfare is never or very rarely ever taken into consideration. As Gary Francione explains,
When we consider our moral obligations to animals without first addressing the status of animals as property, we tend to confine our discussion to ways in which we might exploit animals more ‘humanely’ rather than ask whether our exploitation – ‘however humane’ – is morally justifiable.
The species-based model provides a more effective alternative to the use-based model, as it allows the categorization of animals to shift its focus from the uses of animals to their needs and capacities. A pristine example of how well the species-based model works is embedded in the great apes rights movement. The Great Apes Project was an animal rights movement that relied upon “species” as the categorical basis for defining the beneficiaries and the protections it proposes. Advocacy of the project focused on the unique qualities of great ape, including their intelligence, emotional complexity and other “similarities” to humans.
Before the Great Ape Project was founded in 1993 to advocate for the creation of a United Nations Declaration of the Rights of Great Apes, great ape or “hominid” rights were submitted to the New Zealand Parliament for approval in the early 1980s. Both the Project and the New Zealand Bill sought three basic rights for great apes. These were the right to life, protection of individual liberty or the prohibition on the torture of great apes, and the right not to be subjected to experimentation where it is not in the best interests of the individual hominid. Even though only the last of these rights was approved, the New Zealand Parliament expanded the law of standing to allow any individual the opportunity to advance claims on behalf of an ape whose rights had been violated under the new provisions.
Thereafter, the Balearic Islands and the Spanish Parliament followed suit by granting legal rights to great apes through a resolution and a non-binding declaration respectively. Though these provisions were mostly symbolic, as neither Spain nor the Balearic Islands has native great apes, both governments committed themselves to the underlying principles of the Great Ape Project. As Time Magazine explained, the implications of the provisions, “ma[d]e the killing of an ape a crime and ban[ned] their use in medical experiments, circuses, films and television commercials" [emphasis added]. The proposed laws went further to forbid private ownership of apes, where 200 privately registered apes in Spain would be transferred to sanctuaries. Of the zoos who were allowed to retain 300 apes in their possession, 70% of them were required to improve the apes’ living conditions.
As noted before, the species-based model advocates for animal welfare protections on the basis of the animal’s distinct qualities rather than their uses to man. Even though the Great Ape Project has been successful by advocating for primate rights using a species-model, some critics argue the project only excelled because “[a]pes are special … they are so closely related to us… Chimpanzees and bonobos are out joint closest living relatives, differing by only one percent of DNA –so close we could accept a blood transfusion or a kidney.” Some critics also argue that the species-based model further reinforces discrimination amongst animals and speciesism. For example, William Saletan equates the ape rights movement to the finale of George Orwell’s Animal Farm. He argues that by “comparing intelligence and the human-like qualities of apes appeals to discrimination, not universal equality…[since] most animals don’t have a rich life…[or] can’t make tools” [emphasis added]. He further asserts that “all animals are equal. But some animals are more equal than others. That wasn’t how the egalitarian uprising in [Orwell’s] book was supposed to turn out. It wasn’t how the animal rights movement was supposed to turn out, either” [emphasis added]. However, the Great Apes Project is special because it was the first of its kind to garner success by advocating for animal welfare and animal rights based on the animals’ distinctive capacities, rather than their uses to human. Furthermore, it is more logical to advocate for a change in animal welfarism by advancing arguments for the animals most in need of immediate protection. For example, in responding to criticisms of the species-based model used for great ape protection, Lee Hall asserts that such changes do not come at the expense of other nonhuman animals. He further explains that
If most people already accept that other ape communities are similar in many ways to ours, then starting with an ape makes sense. It does not make sense to think that rights rules could be, for once, extended beyond humanity and then become a thicker wall than they are now. The reverse is true; they’ll become more flexible in a way humanity has never in legal history seen or allowed.
Regardless of whether species-based advocacy encourages speciesism, a species-based approach makes animal welfare protections possible in a way that generalized protections such as the ESA or AWA do not. Species-based advocacy invites inquiries into the uniqueness of an animal, what it needs, and what ought to be guaranteed for that animal’s survival so laws can be fashioned accordingly. In so doing, the species-based model attempts to ensure that each type of animal is accounted for, rather than generalized provisions that seek to capture overarching protections for a group of animals, but are often inadequate for animals left out of the equation.
Given the long history of the property status of animals, it is unlikely that animals will be granted rights similar to their owners. As such, protection-like laws continue to pave the way for animal welfare concerns. However, enforcement of laws like the AWA and the Humane Slaughter Act are highly lacking as they are riddled with loopholes and exceptions, and are heavily underfunded. Hence, advocating for more laws can hardly be the answer. Instead, a hybrid approach of the species-based advocacy model and David Favre’s animal-guardianship proposal is more practical. The intersection of these two models allows for the animal’s interests and capacities to be considered, as well as man’s obligation as a guardian of the animal’s well-being.
Some resources & further reading:
Abend, Lisa. Time, In Spain, Human Rights for Apes, http://www.time.com/time/world/article/0,8599,1824206,00.html?xid=feed-cnn-topics (July 18,2008) (accessed March 3, 2012).
Beckoff, Mark. Resisting Speciesism and Expanding the Community of Equals. 48 BioScience 638 (1998).
Cavalieri, Paola & Peter Singer. The Great Ape Project: Equality Beyond Humanity. St. Martin’s Press. New York (1994).
Coetzee, J.M. The Philosophers and the Animals, in The Lives of Animals. Princeton University Press. Princeton (2001).
Eisen, Jessica. Liberating Animal Law: Breaking Free From Human-Use Typologies. 17 Animal L. 59, 60 (2010).
Francione, Gary. Animals, Property, and Personhood, in People, Property, or Pets? Purdue U. Press 2006.
Hall, Lee. Great Ape Standing & Personhood (GRASP), Does Nonhuman Ape Personhood Contradict Egalitarian Animal-Rights Principles? The Top Ten Questions, http://personhood.org/hierarchical/ (Jan.2007) (accessed March 3, 2012).
Saletan, William. Animal-Rights Farms: Ape Rights and the Myth of Animal Equality, http://www.slate.com/id/2194568/ (July 1, 2008) (accessed March 3, 2012).
Taylor, Rowan. A Step at a Time: New Zealand’s Progress Toward Hominid Rights. 7 Animal L. 35 (2011).
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