Comparative analysis of the status of non-human animals– Animal Law and Earth Jurisprudence

Australia is home to a wide variety of animals including native and introduced species. Kangaroo is the face of Australia, although there are other animals that inhibit land and waters of Australia including buffalo, Koal and fishes, domestic animals that are kept include cow, cats, camels, and a dog among others. Most domesticated animals are kept to provide food for man. Laws in Australia are made at the federal, state and local levels, this means that animal laws are legislated across these levels. However, when there is the inconsistency of states laws, S.109 of the Constitution of the Commonwealth of Australia provides that the Commonwealth will prevail to the extent of this consistency. In analyzing animal laws, this paper would be guided by the provisions of s.109 of the Constitution. This paper critically analyzes the legal and philosophical and philosophical framework of animal law. The main issues for consideration are philosophical and historical justification for human dominion over animals and animals as property and their legal status as an object. The research question for this paper is to what extent are the animal laws entrenched in the Australian legal system, are they effective or they need reform?

Context rationale

The increased advocacy of the change of the animal laws to broaden the range of rights that are afforded to animals, especially the right against the animal cruelty has necessitated conduction of this research. There is a conflict between human being and the animals, with some animals like pets receiving more legal protection than other animals kept for food or for generating profit to the proprietor. Commercialization has been another major reason for the increased mistreatment of animals. The rationale of this study is that an animal rights activist would not support the commercial exploitation of animals in inhumane and degrading circumstances. Accessing the legal provisions that cater to animal rights and the laws is the driving force for this research paper.

Philosophical and Historical justification

Dominion of a human being over animals has been an issue that has caused a major debate on the Animal Rights. The traditional Christian view is that animals are preys that should be eaten by others, they are inferior to a human being and therefore should not enjoy equal protection of the law with human beings. Animals were created to be used by a human being the way they want and for their benefits. Animals are inferior to a human being and are worthless. Speciesism is the view that only humans are morally considered, human beings have developed a prejudicial attitude towards other animals. According to Wright (8), the evolutionary biologist Richard Dawkin asserted that the breathtaking speciesism of the Christian attitude can provoke ethical attitude and righteous resentment than that of chimpanzees. He acknowledges that there are similarities between chimpanzees and human, but they are not equal, in the same lengthy, human beings are not equal with other creatures.

Human exceptionalism provides that human beings have moral status and other animals do not, thus making them superior. According to Kant (239) asserts that the biblical representation of raising human being above all other beings in earth place man at a higher level than animals. As such, people and animals cannot have the same rights. This view is shared by Ak (459) who asserts that if a man shot his dog because it was no longer capable of offering services to man, it does not mean that the man failed in his duty to the dog. He, however, provides that this mistreatment of the dog shows disrespect and inhumane way that a person has towards other species.

Animal as Property

In Australia, animals are categorized as properties. The legal term personality suggests a human subject, the formalist view this provision as a breach to encompass and accommodate animals and non-human objects like companies provisions of s.124 of the Corporation Act 2001 (Cth) asserts that a company has legal capacity and powers of a person. Bearing this provision in mind, it is thus reasonable to conclude that animals can be classified as a legal person. The social attitude about animals is confused, due to the differences people have toward animals. There has been continuous exploitation of animals, and an attempt to legislate to change the status quo would be met with a lot of resistance. Wright (2018) asserts that the concept of animals as property is a concept that originated from the west. The presumption of animals as property that fuel profit for organization and individual and its usage as a vehicle for manipulation is communal to both animal law and earth jurisprudence.

 Placing animals in the category of property is misplaced from other categories like intellectual property and tangible assets that movable or immobile because animals are capable of making independent actions. They feel pain and to some extent engage in intelligence thinking, therefore categorizing animals as property is objectifying them. It is important to accept animals are sentient that have moral relevant interest hence should not be treated as objects. The animal laws in place do not protect animals as property, s 6 of the Prevention of Cruelty to Animals Act 1986 (Vic) for instance regulates infliction of pain on animals and not prohibit it.

Human beings are superior to other creatures on earth, everything they do is for their happiness and satisfaction. This, therefore, points out that interest of other nonhuman creatures come second, their rights are considered after giving human rights precedence. Peter Singer, according to Wrights, advocated for consideration of the interest of the animals and they should not be treated cruelly and they should be considered equally with the interest of humans. It is wrong to assume that persons are commendable of greater deliberation than other species, this in itself is undermining the interest of other animals. Singer argues that human interest and animal interests are the same, so there is no need to give human rights precedence over animal rights. The utilitarianism adopted by Singer points out that animals should be exploited so long as the pain instigated to the animal is surpasses by the benefit gained.

Legal Framework

The main legal framework in regard to the animal right in Australia is the Constitution of the Commonwealth of Australia (The Constitution). Pursuant to the provisions of S.51 (xxix) of the Constitution, various international instruments have been ratified or Australia has become a party to them. These Conventions include Biodiversity Convention and the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) S. 51(xx) provides the mechanisms and the jurisdiction of the commonwealth to make laws that relate to animal rights. A number of laws have been enacted to deal with different aspects of promoting human life by regulating the movement of animals. The Quarantine Act 1981 (Cth) was enacted to regulate the importation and exportation of live animals while the Australian Quarantine Inspection Services has been established to enhance import and export of animals.

At the state level, they have enacted laws to deal with animal cruelty in Queensland the Animal Care and Protection Act 2001 (QLD) has been enacted while in West Australia

the Animal Welfare Act 2002 (WA) has been enacted. Cox (2018) asserts that economic growth is the main reason for the exploitation of animals, were everything that human being does with the animal they expect to benefit. Cox further opine that the adoption of economic growth as the primary development paradigm has led human being into a destructive mindset where animals are treated as a commodity and productive asset to be exploited for profit. This exploitive advance of nature and animals has become an ingredient in values and policy where sustainable development is advanced with an intention of favoring consumption use. Cox quotes Glen Wright who provides that animals are not conferred any privileges in earth jurisprudence apart from those established to all other apparatuses of the earth system.

Presumptions Relating to Human and non-human frameworks

The policies and laws enacted are not per se established to enhance the welfare of animals but are intended to improve the welfare of human beings. The Animal Welfare Act

2002 of Western Australia is a framework that was established to prohibit all forms of animal cruelty and causing unnecessary pain that includes abandoning an animal. This means that the owner of an animal should not cause unnecessary harm to an animal or abandon it. It is upon the owner to ensure that when transporting animals, they have complied with the provisions of the Western Australian Animal Welfare (General) Regulations 2003 that are put in place to offer guidelines on transporting and slaughtering of specific species of animals. In Northern Territory, the legal instrument in place is the Northern Territory Livestock Act 2009 that was enacted to lay the foundation for regulation of welfare of animals transported to slaughter.

Adequacy of Law

There has been an improvement in the number of laws and policies intended to improve the welfare across Australia. Most of the legislation on animal welfare is at the state and territory level. The enactment of the Prevention of Cruelty to Animals Act

1979 in South Whales was intended to create a responsibility of care to those people using animals, this in effect has helped in reduction of cruel behavior towards the animals.  Wrights (3) asserts that the fight against the cruelty of animals traces its roots to Rene Descartes, a philosopher who argued that animals must not be more than machines. Jeremy Bentham took over the challenge and initiated a campaign against human cruelty that helped shape the legal reforms that were aimed at enhancing animal welfare despite the differences they had with a human. Bentham provided that when deciding whether to give considerations to animals, it is not prudent to be concerned with issues such that they cannot reason, talk or if they can suffer. His concluding remark was that cruelty should be eliminated. According to the provisions of the Animal Welfare Act of 1992, of the Australian Capital Territory, it is an offense for a person to knowingly cause pain or failure to act, this law ensures that vertebrates and cephalopods and crustacean species are not treated in a cruel manner. The Act extends its tentacles to farm animals where it provides that it is an offense to debeak and keep commercial pigs in a condition that is not appropriate.

Despite having legislation and policies in place that intends to ensure that animals are not treated in a cruel manner, there are weaknesses in the system that is enhancing the cruelty. The animals upraised for food have been omitted from cruelty rules that shield cats and dogs. just like dogs and cats, animals raised for food experience the same suffering and pain, but there has been a deliberate move by the legal system in Australia to exclude farm animals and those raised in industries for food, from protection against cruel treatment because they are taken to be asserts kept for profit. The main reason why these animals are suffering is that codes of practice of factory farms allow pain and suffering of the animals, there is cutting of tails of piglets and their teeth removed without administration of a painkiller. Layers are constrained in a small area where they cannot walk freely just like the broilers raised for meat. The code of practice extends to animals hunted for a sport that is subjected to selective legal system merely because they rake profits to the proprietors and are produced for consumption.

Law Reform

The fact that most of the animals are kept to provide food for a human being or assist them in their needs like transport is not in dispute, other animals like dogs and cats are kept as a pet. However, these animals are not treated equally or seen by the laws in Australia to be equal. Cat and dogs are given more protection against cruelty by the law because they are not consumed, this inequality should be eliminated. All animals experience the same pain and suffering, therefore leaving farm animals and those raised in industries to suffer because they are raised for food is not justifiable.

There is also a need to have a uniform law set of law that addresses all issues of animal rights and their protection against all forms of cruelty. Having a uniform law in the whole of Australia would ensure uniformity in application and enforcing. It has been an assertion of Glen Wright that both animal law and earth jurisprudence are aiming for similar legal restructuring, there is a need of ensuring that the advancement of Animal Law or earth jurisprudence leads to the improvement of each other. In essence, it means that when enacting laws on earth jurisprudence, it is important to align them with the animal laws. The regulations should aim at enhancing the five fundamental principles laid down by the Model Animal Welfares Act “MAWA”, these are free; from hunger, thirst and malnutrition; physical and thermal discomfort; pain, injury, and disease. The others are freedom from distress and fear as well as the freedom to express normal patterns and behaviors. It has further been proposed by Wright that Earth Jurisprudence takes into its scope the full and ethical protection of animals. Ethics requires the proprietor or a person to subject the animal into a minimal pain where there is no alternative that can be used to prevent the pain.

To achieve equality in the treatment of all animals, it is essential for the parliament to enact single legislation that covers all aspects and issues in regard to the protection of animals from cruelty. The code of practice should be amended to ensure that animals raised for food are not subjected into harsh conditions such as de-beaking and cutting of tails without administration of painkillers, this way, the livestock or game animals would be treated equally. The slaughtering of the animals should be done in a humane manner, despite the need for the enterprises to make profits. The environment that the animal is raised should support their welfare and wellbeing such as allow easy movement. Incremental improvement or change is inevitable, it is important to persuade people to change the mentality that animals have no right or interests that must be respected.

Conclusion

The human being is considered superior to animal and other creatures. In Australia, there has been increased advocacy for enhancing animal laws so that they can be treated in a fair manner. Various laws have been enacted by the states and territories banning cruelty and inhumane treatment of animals at the industrial facility, transportation and during slaughter. In Australia, animals have been placed in the category of property, meaning that they have been reduced into objects despite their distinct characteristics from other properties. Animal rights activists have advocated for the reform of laws to ensure that there is uniform law in Australia that deal with issues affecting animals.

Works Cited

Animal Care and Protection Act

2001 (QLD)

Animal Welfare Act 2002 (WA)

Constitution of the Commonwealth of Australia

Conventions include Biodiversity Convention and the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)

Corporation Act 2001 (Cth)

Cox, Janice. “Earth Jurisprudence and its Consideration of Animals” EarthLawCenter, March 2018 https://www.earthlawcenter.org/blog-entries/2018/3/earth-jurisprudence-and-its-consideration-of-animals. Accessed 29 Dec. 2018. 

Kant, Immanuel. "Anthropology from a Pragmatic Point of View (1798), trans."Frederick P. Van De Pitte (Carbondale/Edwardsville: Southern Illinois University Press, 1978)

(2010).

Prevention of Cruelty to Animals Act 1979

Prevention of Cruelty to Animals Act 1986 (Vic)

Quarantine Act 1981 (Cth)

Wright, Glenn. "Animal Law and Earth Jurisprudence: A Comparative Analysis of the Status of Animals in Two Emerging Discourses."Austl. Animal Protection LJ 9 (2013): 5.