Defining Animal Rights and Animal Welfare: A Lawyer's Guide.

• Author: DeMeo, Ralph A.
• Position: Animal Law

"The time will come when men, such as I, will look upon the murder of animals as they now look upon the murder of men."--Leonardo da Vinci (15th century, Italy)

How do we distinguish between animal rights and animal welfare within the scope of animal law? This is a question that has received much attention--and has been much misapprehended--in recent years. Traditionally, "animal rights" is the idea that some animals, particularly those of near-human intelligence, such as chimpanzees, have the right essentially equal to humans to live free from use in medical research, hunting, and other human use. Some would include in the definition of "animal rights" the freedom of all animals from being consumed as food. By close contrast, but not identical in definition, "animal welfare" is the idea that most if not all animals must be protected against abuse and ensured humane treatment, without necessarily giving them equal rights guaranteed to humans. This article addresses these concepts in an attempt to aid the lawyer challenged by the need to understand the issues associated with this distinction in practice, and to aid all lawyers and interested others with understanding these concepts in the marketplace of legal, political, and social ideas.

Discussion

Animal law is an expanding area of law that encompasses a number of more mainstream areas of law, such as criminal, tort, environmental, real estate, constitutional, and others. (1) It defines the interaction between animals and humans in a variety of contexts. While the focus of this article is on laws affecting domestic and farm animals and some wildlife, the principles discussed herein apply to all animals. By way of brief history, the 17th century French philosopher Rene Descartes ("I think, therefore I am") believed that animals are machines that cannot experience the pain or suffering of abuse because they are unaware of that pain. Fortunately, for most (but sadly not all) civilized persons, that way of thinking has long been discredited, as animals are generally understood to be sentient beings, capable of sensations, emotions, and feeling pain. (2) However, as relatively recently as over 100 years ago, and continuing in most venues to this day, animals have been considered personal property for humans to use as they see fit. (3) For example, an owner of a dog could--and in most venues today still may--destroy his or her dog, cat, or other domestic animal at any time he or she wishes, because the dog is considered the owner's personal property. Over time, animals have been granted more rights and protections under the law, although they are still deemed to be personal property. For example, many modern anti-cruelty laws exist that prohibit owners from abusing or neglecting their pets, even if the animal is legally the owner's property. (4)

Animal rights and animal welfare advocates generally agree that all animals have certain basic rights, such as protections against cruelty and maltreatment, access to proper food and housing, and humane euthanasia when necessary. (5) With this basic but somewhat limited understanding of animal "rights," there is general, but not universal, agreement that animals are entitled to these protections, and state and local laws recognize these rights for some (but not all) animals. (6) However, these protections are limited. (7) Animal rights and animal welfare advocates are divided as to how animals should be categorized under the law, which if any rights should be given to animals, which animals should receive these rights, and whether humans should be able to use animals for human benefit. (8)

The following is a discussion of the differences between these two schools of thought.

* Animal Rights--Animal "rights" advocates generally believe that animals have rights similar or the same as humans, and that humans should not be able to use animals for their own personal gain or benefit, as it denies the animals their rights and dignity. (9) Animal rights advocates fall predominately into two prominent schools of thought regarding how animals should be classified. The first school believes that animals should be granted the status of legal "persons." (10) Most commonly, animal rights advocates believe that certain animals deserve the rights of legal personhood because they exhibit extreme intelligence, self-awareness, social structures, wide emotional ranges, and advanced communication skills. Steven M. Wise, a prominent lawyer and founder of the Nonhuman Rights Project, has vigorously advocated that animals, such as great apes, whales, dolphins, and elephants living in captivity, are self-aware, autonomous beings that are inhumanely and even illegally deprived of "their freedom, the company of others of their kind, and natural habitats." (11) Because of the...