Thursday, July 31, 2008

Animal Rights and the Law

Animal protection issues are a frequent topic on Dorf on Law, with my post last week discussing the transition to veganism (Meat, Dairy, Psychology, Law, Economics) being only the most recent of many examples. As an academic who does not practice or produce scholarship in the area of animal law, however, my impact on the welfare of animals is limited to my own choices and whatever effect my blogging on the issue might have. I started to wonder: Who are the people who are having a seriously positive impact on the well-being of animals, the people who have dedicated all or part of their professional activities toward addressing these important issues? It turns out that I did not need to look far, because two of my colleagues at GW Law are doing very important work in this area. Professor Joan Schaffner is the director of the Animal Law Program at GW, and she and Professor Mary Cheh have created the Animal Welfare Project. (Professor Cheh also serves on the City Council for Washington, D.C., where she has sponsored important animal welfare legislation.) Their work should be supported and expanded.

The concept of "animal law," of course, can be very broad and need not take into account the welfare of animals at all. Indeed, in my 1L Property class (as in most property law courses in U.S. law schools), a surprisingly large number of the early cases had to do with hunting, wandering livestock, etc. The only issue in the cases was how to compensate owners when their livestock or prey had been stolen or killed. At one point, I asked the professor if there was any legal remedy for the loss of an animal beyond its value as meat or breeding stock. The professor said: "Well, there are some people who think that sentiment should be an issue in these cases; but we're not going to talk about that." You had to hear him wrap his mouth around the word "sentiment" to truly appreciate just how unwelcome my question was. One could thus easily imagine a course in animal law being nothing more than an advanced seminar in very traditional property law, addressing issues of how to put a market value on animals that have been stolen, ownership issues, etc., but continuing to treat the animals as lacking sentience or moral significance.

Happily, GW's program is on the leading edge of a modern wave of animal rights law. The program teaches students the current state of animal law as it can be used to protect animals and improve their welfare, and it attempts to change attitudes about the relationship between human and non-human animals. The program is designed to train "young lawyers who will be among the first generation of lawyers, judges, and legislators to address the widespread problems of cruelty and neglect." In addition to two seminars and the Animal Welfare Project, the program includes an animal rights clinic (the Animal Law Litigation Project) and a student chapter of the Animal Legal Defense Fund. I do not know how widespread such programs are in U.S. law schools, though I suspect that GW's might be sui generis or, at least, currently the most comprehensive in the country. (I'd be happy to learn that I am wrong about that. This is a game of one-upmanship that we should all welcome.) There are also top-notch legal scholars who work in the area of animal rights law, notably my former Rutgers-Newark colleague Professor Gary Francione.

Animal rights issues have recently made a splash in the news, with the important legislation that was recently passed in Spain being a prime example. Even so, we have a long, long way to go. For one example of just how crazy people can be about animal welfare, consider today's column by Nicholas Kristof in the NYT, in which he movingly describes the horrors of killing farm animals, admits that meat-eating will likely someday be generally seen as revolting, and then talks about how good the meat tastes and acknowledges that he continues to eat it (with a modicum of guilt). The teaser sentence in the print version of the paper is especially grotesque: "What animal has the best family values? (Hint: Boy, it's yummy.)" Make that a long, long, LONG way to go.

Update: I said in my last blog post that it's unnecessarily difficult to be a vegan in this country. A week later, I can report that it is a lot easier than it looks. Better laws and better labeling are still necessary, but the psychological transition is surprisingly short and ultimately rather simple.

-- Posted by Neil H. Buchanan


Sobek said...

"...but continuing to treat the animals as lacking sentience or moral significance."

I apologize that I keep coming back to abortion laws whenever someone makes a reference to animal rights, but here I go again. I have seen it admitted here that a fetus has "moral significance" (not in so many words); i.e. that an abortion is morally wrong, but that doesn't mean the government should interfere.

Why is the moral significance of an animal such that the government should interfere?

A related question, since you mention labelling: would you support a law requiring meat processors and packers to write a full disclosure statement on the package, something to the effect of "this steak comes from a cow that was raised in deplorable conditions and killed in an inhumane manner"? How does the First Amendment related to mandatory packaging requirements? Does your answer change if, instead of relating to animals, the government forces an abortion doctor to make a statement that the procedure destroys a human life?

Tam Ho said...

How about 3:52pm comment by Prof. Colb here

Tracy H. said...

I'm glad I found this blog. Congratulations on your transition to veganism! has a great Podcast about vegan issues. It's what made me decide to transition from vegetarian to vegan. It's also great that you have friends/colleagues who can support you and advise you.

Neil H. Buchanan said...

In response to sobek's two questions:

(1) I am not the person who said that an abortion is morally wrong, and I do not know who said that it was.

(2) I would not support such a labeling law, making the second part of the question moot.

Sobek said...

Tam Ho:

Prof. Colb's comments there don't answer my questions here, which concern the line between criminalization and moral condemnation, and First Amendment concerns.

Prof. Buchanan:

Never mind the second question, then.

As to the first, I don't mean to imply that you, specifically, said it was (nor did I mean toimply that my question was directed just at you). So let me start by asking, do you believe abortions are morally wrong?

On to the question of damages. our professor suggested the theoretical possibility for sentimental damages -- did you have anything else in mind? In the context of a lawsuit brought by a human, what other damages could a plaintiff possibly suffer?

And as to sentimental value in the context of veganism, do you think that meat producers have any sentimental attachment to the mass-produced cows and chickens they own?

Sobek said...

This is waaay off topic, but Tam Ho asked on a previous thread:

" you think your arguments against abortion that hinge on the 'knowing' mens rea apply equally to making guns available at large in society?"

Concerning the sale of guns, although it must be admitted that the sale of some guns will result in death, virtually every single abortion will, and intentionally so.

(I do support gun rights -- I'm amazed that some people prefer rights not spelled out in the Constitution over those that specifically are; I'm amazed that four out of nine Supreme Court Justices think their personal policy preferences should be enshrined in the Constitution; and I cannot understand why liberals won't trust government to regulate their speech, but will entirely surrender their personal protection to the police.)

Hamiltwan said...

Just out of curiosity, do you eat honey? I recently read an article describing the argument among vegans that because bees are exploited, honey is essentially the dairy of insects. Further, because domesticated bees are used to fertilize many crops, eating honey is equivalent to eating almonds. Also, they're bees, and they don't seem to mind that much.

In the same vein, does the anti-cruelty argument carry the same force against eating shell-fish or other low-end intelligence animals? Where is the break line (presumably above bacteria? yeast?)

Tam Ho said...

In any discussion involving animal rights, it seems, it's only a matter of time before the bacteria/virus hypo comes up. Again, the main criterion for cruelty against animals is the organism's ability to feel pain. Microbes feel nothing.


I was responding to your 11:35am comment from that post, in which you attributed a "knowing" level of intent to the causal relationship between sex and pregnancy. You are correct that not every gun sale leads to death, but neither does every instance of sexual intercourse lead to pregnancy.

Sherry F. Colb said...

I have a few thoughts in response to Sobek's questions. I would support labels on animal products that revealed the reality of what went into producing those products (although I have no expectation that such labeling laws will be passed anytime soon). I also have no problem with telling people who are having an abortion that terminating a pregnancy results in the death of a human embryo or fetus. I do not, however, share the view that consumption of animal products is the moral equivalent of abortion, even if one assumes arguendo that an embryo or fetus has the same moral status as a sentient nonhuman animal. As I explained in my discussion that Tam Ho referenced, a person who has an abortion is choosing not to be an incubator to another life (however characterized), which is an assertion of bodily integrity against invasion. A person who eats meat and other animal products is paying to have animals treated grotesquely and then slaughtered for an unnecessary (and, it must be said, not even especially healthy) indulgence. In short, one can believe that both embryos, fetuses, and nonhuman animals are all entitled to human rights and nonetheless support a right to abortion as a matter of self-defense against a physical invasion.

Sherry F. Colb said...

A thought on the honey/almonds issue. We do not know exactly what bees experience, because insects generally have very different nerve-like systems than fish, birds, and mammals do, yet they behave in ways that suggest that they do feel things. On the assumption that bees experience something akin to pain, one should avoid honey because taking the honey involves spraying an irritant (usually smoke) at the bees to disable them while the honey is removed. (They will otherwise attempt to prevent the taking of their honey by stinging the beekeeper). Once again, we are causing pain to bees as a means of using them (by taking the honey they have produced). Almonds are, in that respect, different, because taking the almonds that bees have helped to create by pollination does nothing harmful to the bees. Nonetheless, to the extent that the beekeeper charges the almond farmer for the pollination that the bees do, the purchase of almonds does help subsidize the beekeeper's honey-production process, so it is not entirely "clean." It is, however, sufficiently attenuated to allow for a distinction between consuming honey and consuming fruits that might or might not have been grown with the assistance of owned honeybees.

egarber said...
This comment has been removed by the author.
egarber said...

Suppose a state passed a law barring the sale of all meat products on moral grounds, making it much more difficult -- albeit not impossible -- for people to find ready sources of protein, etc.
Is there a point somewhere where self nourishment is a basic freedom, part of the inherent right to privacy and survival? I guess I'm asking if there's a point where the government can't decide for us what we can eat, where substantive rights block it. Of course, people can make whatever moral decision they see fit -- and work to convince others. But where does the state's power halt?

Tam Ho said...

Given that many people do in fact live perfectly healthy lives as vegetarians and vegans, I do not see how a statutory prohibition against meat can be challenged on grounds of practicality or the denial of some fundamental right. Indeed, I think it would be pretty obvious to liberals and conservatives alike that the very enactment of such a prohibition would itself make it much easier to lead vegetarian and vegan lives simply because the market would respond to meet the newly created demand.

egarber said...

Given that many people do in fact live perfectly healthy lives as vegetarians and vegans, I do not see how a statutory prohibition against meat can be challenged on grounds of practicality or the denial of some fundamental right.

Suppose for a moment that choosing one's nourishment is on its own a fundamental right within the general zone of privacy and freedom. Is it possible to argue that preventing animal death represents a compelling state need?

Or are all food issues simply rational scrutiny matters?

heathu said...

The assumption that Prof. Colb makes that "Almonds are, in that respect, different, because taking the almonds that bees have helped to create by pollination does nothing harmful to the bees" does not appear to be true. According to the article that Hamilton may have been referring to from "Life for these rental bees may be far worse than it is for the ones producing honey. The industrial pollinators face all the same hardships, plus a few more: They spend much of their lives sealed in the back of 18-wheelers, subsisting on a diet of high-fructose corn syrup as they're shipped back and forth across the country. Husbandry and breeding practices have reduced their genetic diversity and left them particularly susceptible to large-scale die-offs." And "commercial bees are used in the production of about 100 foods, including almonds, avocados, broccoli, canola, cherries, cucumbers, lettuce, peaches, pears, plums, sunflowers, and tomatoes." Bee use, it seems, is unavoidable.
Which brings the question, is honey production so objectionable that vegans should avoid it? Smoke is used to confuse the bees, but it isn't entirely clear to me the smoke hurts them. We take their honey, but they make more, because, well, they're bees. As Prof. Colb notes, it's hard to get into a bee's brain (brains?) but it's not at all clear to me we are even really exploiting bees, much less torturing them the way we do other animals.
Anyway, the bee/almond article can be found at

Paul Scott said...

It seems to me as well, that the honey/almond connection is not that dissimilar to the veal/milk connection. I should say, to be clear, for me it is very different because at the moment I have no objection to honey (always holding out the possibility that learning new facts could change this). It is, in fact, not at all clear to me that the negative impact on insects is less severe in honey production than it is in sugar production.

However, that aside, assuming one does object on moral grounds to honey, the analogy to veal/milk seems very close.

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Doug said...

First, I'm generally for abortion rights though mostly for practical reasons.

Assuming the only objection to abortion is that it is an involuntary invasion (when in some cases at least it is voluntary and intended) I still don't think it follows. If a hiker finds a dead parent and her three year old in the woods and the one year old follows the hiker (against her wishes) but the hiker refuses to provide any food or lead the child to safety would she be charged with failure to provide the essentials of life to a minor? I would hope so. A parent can't simply escape their parental duties in law (nor can an inkeeper or landlord) without a formal legal process - abortion does not require a legal process.

Further, abortions past the point of viability involve the extra unnecessary step of killing the foetus. A law that said that abortion doctors would need to take steps to keep the foetus alive if it didn't place the mother at any greater risk (i.e. allow for pre-mature births but not for abortions when the foetus can survive) would seem to be a moral imperative under your argument. The system now where killing a living being is OK as long as the doctor does it while the foetus is still in the birth canal but not once it has emerged as a practical matter gives a nice bright line but as a moral matter is not a sensible distinction.

Doug said...

'to train "young lawyers who will be among the first generation...'

So will they discriminate against older students who want to join the program?

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