Animal Law and Environmental Law

Comparative Analysis of the Status of Non-Human Animals in two Emerging Critical Theories –Animal Law and Earth Jurisprudence

Introduction

The debate surrounding the protection and preservation of the environment is not a new one but rather one that has existed for several years. Man has always been considered as being at the center of concern for environmental protection but then environmentalists argue that animals have rights that ought to be protected too. For the above reason, the world has been engaged in the development of a system of laws that would then protect the rights of non- human animals. These laws are widely regarded as wild laws not because they govern the wild but because they are deemed to have been derived from nature. Earth Jurisprudence is thus an environmental law philosophy or legal thought that is inspired by nature or natural law. On the other hand, Animal law is the development of a system of laws aimed at addressing the deficiencies presented by our legal system as far as proper protection of animal rights is concerned. The paper presents a comparative analysis of the status of non-human animals under Animal Law and Earth Jurisprudence.

Salient Features of Animal Law Legal Theory

Animal law as a philosophy of law uses the statutory, constitutional and case law instruments in championing for non-human animals rights. By non-human animals, Animal law takes into consideration animals kept for food, wildlife, those kept for entertainment purposes, research and even those which are kept for reasons of companionship (Cox n.p). Animal law thus intersects with most of the traditional systems of law such as the law of Torts, environmental law, Contract Law and Constitutional Law. For example, animal advocacy is an aspect of animal law that intersects with constitutional law, climate change, factory faming and fishing in so far as they affect non-human animals coincide with environmental law. Further, matters such as animal cruelty relate to criminal law and criminal prosecution. Lastly, the injury to animals and veterinary malpractices are all concepts that relate to Tort law. In brief, Animal law is not a totally new field but rather one that is based on the traditional laws save that it addresses the inefficiencies posed by these traditional laws in the protection of Non- Human Animals rights (Cox n.p). The particular aspects that Animal law is concerned about include; addressing legal issues touching endangered species, affirming the legal status of Non-human animals, legal protection of farmed animals, the use of non-lethal techniques in the management of wild life resources and laws pertaining to cloning of animals and scientific experiments on animals (wright 4) . From the above, it can thus be concluded that the animal law legal theory provides for the legal confines within which animals can be exploited by human beings and be protected as well.

Salient Features of Earth Jurisprudence Legal Theory

 As opposed to Animal Law, Earth jurisprudence is based on the concept of sustainability. The champions of this school of thought believe that all beings on the earth whether of a human or non-human nature have rights accorded to them on earth just by virtue of their existence (Cox n.p). Particularly, some of the rights that these non-human animals are accorded include; the right to a habitat or a home, the right to take part in the development and evolution of the earth community. These rights are not absolute but are rather dependent on the necessary existence of other beings in creating a healthy environmental balance and environmental integrity (Cox n.p). Owing to the above rights and principles, the proponents of Earth jurisprudence argue that any human laws or activities that hinder the proper enjoyment of these rights by all the beings of the earth community are deemed unlawful and illegitimate. It thus follows that all the social, economic, political and legal systems must alight with the natural duties, rights and purpose for the existence of all the earth creatures or community (Wright 11). According to Janice Cox, the earth jurisprudence seeks to strengthen the relationship between human beings and their environment as opposed to undermining the latter. Secondly, earth jurisprudence is concerned about a proper balance of rights between human beings and nun human animals for a proper co-existence among the earth community. Earth jurisprudence champions for as more restorative approach in striking a balance of rights amongst the earth community as opposed to creating punitive laws or mechanisms or addressing the same.

Lastly, under the Earth jurisprudence legal theory, all creatures of the earth community are regarded as subjects before the law unlike just recognizing human beings alone (Cox n.p). The implication of such recognition is that all beings whether human or non-human have rights and responsibilities and are thus entitled to proper remedies in the event of the violation of their rights. To a large extent however, the application of earth jurisprudence has left a lot animal concerns unconsidered.

Origin of Animal Rights as a Step to the Recognition of the Status of Non-Human Animals under the Animal Law and the Earth Jurisprudence Legal Theory  

Animal law critical legal theory seeks to question the treatment of non-human animals as property and thus leading to improper protection of their rights. As such, under the Animal Law critical legal theory, animals should not be regarded as property but rather beings with rights. Two philosophies have thus arisen. These include the welfare and the right based approach to animal protection. The welfare approach advocates allow for exploitation of non-human animals while taking into consideration protection of their rights (Wright 5). The rights approach philosophers on the other hand are concerned about the respect of the rights of all the creatures on earth. They are referred to as absolutists.

Traditionally, animals were generally treated as mere biological machines that could not reason, talk or even suffer. Through the philosophies of people such as Jeremy Bentham however, the perspective of human beings towards animals has widely changed. Through his concept of utilitarianism, Bentham argued for the recognition of animal rights by taking into consideration that animals do suffer as well. The mere fact that animals do not talk in a language that human beings understand or reason the same way human beings do, does not mean that they should be treated as mere property without feelings. This doesn’t mean that Bentham never believed in the concept of animal law. He particularly held the view that human beings should be allowed to use non-human animals for their own benefit but that in so doing, they should not treat them with cruelty.

In the 1970’s, Animal law slowly started drifting towards a rights based approach. Peter Singer was the first champion of this approach. He believed that apart from just avoiding, eliminating or reducing the suffering of animals, these non-human animals are also entitled to happiness just like human beings (Wright 7). He thus argued that the happiness or these animals should be of paramount consideration. Singer however gave an exception to this where he argued that human beings are justified in taking away the happiness of the non-human animals where such an action is of greater benefit to human beings such as scientific experiment. Out of Singers philosophies therefore five rights accorded to non-human animals arose. These include; freedom from discomfort, freedom from distress and fear, freedom from disease, pain and injury, freedom to express normal behavior and lastly, the freedom from hunger (Wright 8). The rationale behind moving to a rights based approach was inspired by the fact that human beings ought not to be treated as being very special simply belonging to a species of human beings as that would be discriminatory to other species.

Regan takes a more radical approach to the protection of animal rights by criticizing the welfare theory proponents. He argues that the welfare theory gives room for exploitation of animals and uplifting human beings over non-human animals. He thus introduced the concepts of “subject-of –a-life” approach (Wright 10). In this approach, Reagan champions for the absolute recognition of animal rights just like human rights. It is then from his approach that the Animal Law critical theory is based today as a reform agenda towards protection of Animal rights. The common perspective of both the Earth Jurisprudence and the Animal Law Legal theories is the absolute protection of animal rights.

Status of the Non-Human Animals under the Animal Law

Philosophers such as Francione and Steven Wise are some of the proponents of animal Law using Regan’s ideas to eliminate animal exploitation and create a system for the respect and protection of the rights of the Non-Human animals. Two things are very common with the approach first, the philosophers champion for more preventive measures to animal exploitation as opposed to exceptions to non-human animal exploitation (Wright 10). Further, they believe that the start to recognizing the animal rights is by stopping recognizing the right of all animals not to be treated as property. It is the treatment of non-human animals as property that encourages human beings to exploit them. Secondly, non-human animals ought to be treated as “subjects of a life” which would then make them subjects before the law as opposed to being treated as mere objects (Wright 11). Under the animal law reforms therefore, non-human animals have two statuses. A status of non-treatment as objects and a status of being treated as subjects of the law. The conclusion is supported by Steven Wise analogy that human beings have a greater relation to the chimpanzee and thus should be treated in the same manner because they all feel pain and suffering (Wright 11). The Animal Law theory proponents thus lean towards the adoption of an abolitionist law reform strategy. This means abolishing all the laws that give human beings the power and authority to exploit animals for their own selfish gains.

Status of Non-Human Animals under the Earth Jurisprudence

The Status granted to non-human animals under the Earth jurisprudence is the treatment of all creatures as existing in an environment of co-existence with each other. The creatures forming the earth community all exist to make life on earth sustaining and enjoyable. Non-human animals are thus treated not as secondary creatures but rather on the equal basis as human beings. The conclusion is derived from the premise that the proponents of earth jurisprudence argue that the failure of the governance systems by man is as a result of the treatment of man as being at the Centre of the world and thus a priority to other creatures (Wright 11). The fallacy elevates human beings to a position of existence without other creatures which is absurd. All creatures on earth exist because of each other and they all co-exist to create a beautiful world. As such Earth jurisprudence proponents hold the view that all the members of the earth community are entitled to the protection of their rights in equal measure.

The above conclusion is also derived from the great jurisprudence which is composed of three elements. These elements include; differentiation, autopoiesis, and communition (Wright 12). In more elaborate terms, these terms stand for uniformity of nature, self-making and interconnectedness. It means that all the members of the earth community exists in a uniform world that does not discriminate, existing as unique entities and survival based on mutual relationship of interconnectedness. As such no creature can survive in isolation. The elements of the Great Jurisprudence were first highlighted by Barry and Swimmie (Wright 12).

From the above discussion, we can summarize the status of non-human animals in the following words. First, the rights accorded to non-human animals flow from nature and not through the discriminative laws made by man to suit his own interest. Second, that no creature on earth is special than the other as all play part in the better the ecosystem. Third, in order to non-human animals to effectively realize the enjoyment of their rights, some human actions must be prevented if not abolished (Wright, 13). Lastly, human beings must always consider the position held by all creatures in the initiation of their governance policies so that they are certain that the governance structures so introduced aim at the betterment of all the members of the earth community.

Similarities and Differences in the Status of Non-Human Animals under the Animal Law and the Earth Jurisprudence Legal Theories

The similarities between the two legal theory systems are that they both believe in the equality of rights of all the members of the earth community. The only difference is that while under the Earth Jurisprudence philosophy, these rights are accorded from nature as part of the existence of a creature in the earth system; the Animal Law advocates believe that non-human animals should be treated in the same manner as human beings (Wright 18). Secondly, both philosophies do not refute the fact that non-human animals may be exploited but rather advocate that the exploitation of such animals must only be done as part of the sustainable relationship of the earth’s natural ecological system (Wright 19). Third, in both systems of laws, the proponents believe that all the non-human animals must be accorded the right not to be treated as property but rather freely existing beings that deserve preservation and protection. Fourth, both the two legal theories advocate for the reframing of rights from a human being based perspective to a natural earth based system. Fifth, both theories recognize that the fight towards the recognition of rights of non-human animals is a complex and a tedious one (Wright 19). The complexity arises from the fact that the current legal system is human based and thus likely to create bias. Sixth, both the Animal Law and Earth Jurisprudence protect animal rights in equality but then the latter makes a difference in the scope of protection between the domestic and wild animals and not the former.

Conclusion

From the above discussion, it is plausible to conclude that the Animal Law legal theory and the Earth Jurisprudence are just but two vehicles aimed at attaining equality of rights for all the members of the earth community. The two theories affirm that all earthly creatures whether human or non-human have a mutual role to play in the earth ecological system. As such, rights flow naturally from nature as opposed to being accorded by man. Such recognition of rights however means that the privileges enjoyed by human beings today will be less because man is living on the exploitation of other animals today. The enjoyment of such rights on an equal measure demands that some abolitionist laws and policies be introduced.  There is therefore need for the reconciliation of the two theories based on their common intention of protection of Animal rights. Such reconciliation is proper for the advancement of the animal rights in court and more particularly taking into consideration that the two theories both translate into practical actions for abolition of the existing discriminative laws against other species. The two theories are thus mutually inclusive as opposed to being mutually exclusive only that they are inspired by different philosophical and historical backgrounds.

Works Cited

Wright, Glen. “Animal Law and Earth Jurisprudence: A Comparative Analysis of the Status of Animals in Two Emerging Critical Legal Theories.” ResearchGate, 2012, pp. 1-23.

Cox, Janice. “Earth Jurisprudence and its Consideration of Animals.” Earth Law Center, 21 Mar. 2018, www.earthlawcenter.org/blog-entries/2018/3/earth-jurisprudence-and-its-consideration-of-animals. Accessed 03 Jan. 2019.