Abstract
From the inception of animal protection legislation in the early 19th century there has been a strongly held view that the philosophy underpinning these laws was that of a Bentham-esque utility calculus. Indeed Bentham himself drew attention to the plight of animals, citing the reason for their neglect as a result of their interests being ignored due to such abstract notions as their inability to talk and reason. For Bentham, of course, the only valid consideration was that animals had the capacity to suffer and, if so, this suffering should form a part of the utility calculus. Consequently, for the next 200 years this simple formula has, to a lesser or greater extent, been utilised in the delineation between suffering that is deemed “necessary” and that which is not. This paper will, however, challenge this notion and consider, instead, a duty based approach to animal protection. The paper offers an explanation of the duty-based approach and locates it within mainstream jurisprudence and legal theory, and will provide a discussion of the benefits of a duty-based approach in contemporary society. Furthermore it will be shown that rather than being a novel reinterpretation of the unnecessary suffering test in the 21st century, the duty-based approach underpinned the legislative intent two centuries ago when the first animal protection laws were promulgated.
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Notes
- 1.
T. Regan, The Case for Animal Rights (Berkeley: California University Press, 2004).
- 2.
S. M. Wise, “Legal Rights for Non-Human Animals: The Case for Chimpanzees and Bonobos,” Animal Law 2 (1996): 179–86.
- 3.
G. L. Francione and R. Garner, The Animal Rights Debate: Abolition or Regulation? (New York: Columbia University Press, 2010).
- 4.
A. Cochrane, Animals Rights without Liberation: Applied Ethics and Human Obligations (New York: Columbia University Press, 2012); M. Kramer, “Getting Rights Right,” in Rights, Wrongs and Responsibilities, ed. M. Kramer (London: Palgrave, 2001), 22–95; J. Feinberg, “The Rights of Animals and Unborn Generations,” in Rights, Justice, and the Bounds of Liberty, ed. J. Feinberg (Princeton: Princeton University Press, 1980), 159–84.
- 5.
Kramer, “Getting Rights Right,” 29–31; Feinberg, “The Rights of Animals,” 161.
- 6.
Kramer, “Getting Rights Right,” 43.
- 7.
Ibid., 58.
- 8.
Feinberg, “The Rights of Animals,” 162.
- 9.
W. Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning (New Haven: Yale University Press, 1919), 35.
- 10.
Cochrane, Animal Rights without Liberation, 41.
- 11.
Hohfeld, Fundamental Legal Conceptions, 38.
- 12.
Osman v. United Kingdom, [1999] 1 F.L.R. 193.
- 13.
Van Colle v. Chief Constable of Hertfordshire Police, [2009] 1 A.C. 225.
- 14.
Osman v. United Kingdom, at 223.
- 15.
S. Deakin, A. Johnston, and B. Markesinis, Markesinis and Deakin’s Tort Law, 7th ed. (Oxford: Oxford University Press, 2013), 294.
- 16.
J. Feinberg, “Human Duties and Animal Rights,” in Rights, Justice and the Bounds of Liberty, ed. J. Feinberg (Princeton: Princeton University Press, 1980), 194.
- 17.
For example, the “pure” anthropocentric tradition is reflected in the work of both Aquinas and Kant: for Aquinas the reason for any prohibition on causing harm to animals was that “if any passages of Holy Scripture seem to forbid us to be cruel to brute animals . . . this is either to remove a man’s thoughts from being cruel to other men . . . or because injury to an animal leads to the temporal hurt of man.” St. T. Aquinas, “Animals Are Not Rational Creatures,” in Animal Rights: A Historical Anthology, ed. A. Linzey and P. B. Clarke (New York: Columbia University Press, 2004), 10. For Kant, the justification was largely the same: “If a man shoots his dog because the animal is no longer capable of service, he does not fail in his duty to the dog, for the dog cannot judge, but his act is inhuman and damages in himself that humanity which it is his duty to show towards mankind . . . he who is cruel to animals becomes hard also in his dealings with men.” Immanuel Kant, “Duties to Animals Are Indirect,” in Linzey and Clarke, Animal Rights, 127.
- 18.
W. Prest, “Blackstone, Sir William (1723–1780),” in Oxford Dictionary of National Biography (Oxford: Oxford University Press, 2004), accessed March 11, 2014, http://www.oxforddnb.com/view/article/2536.
- 19.
W. Blackstone, Commentaries on the Laws of England, Book II, The Rights of Things (Oxford: Clarendon Press, 1766), 3.
- 20.
Kant, “Duties to Animals,” in Linzey and Clarke, Animal Rights, 127.
- 21.
J. Bentham, An Introduction to the Principles of Morals and Legislation (1789), reproduced in A Fragment on Government and an Introduction to the Principles of Morals and Legislation, ed. Wilfred Harrison (Oxford: Basil Blackwell and Mott, 1960), 411–12. Bentham’s primary assault on Blackstone’s theories came in his earlier work, A Fragment on Government, published in 1776 and subtitled An Examination of What Is Delivered, on the Subject of Government in General, in the Introduction to Sir William Blackstone’s “Commentaries.” This earlier work, however, though scathing on most of the views expressed by Blackstone on systems of governance, gives few precise clues as to whether Bentham directly engaged with Blackstone on the subject of animal values.
- 22.
W. Smellie, The Philosophy of Natural History (Edinburgh, 1790), vol. 1, 8.
- 23.
Bentham, An Introduction to the Principles of Morals and Legislation (1789), 411–12.
- 24.
Ibid., marginalia.
- 25.
Francione and Garner, The Animal Rights Debate, 7–10.
- 26.
See subsequent discussion of Erskine’s Bill of 1809. Even earlier, within thirty-five years of Blackstone’s Commentaries, the 1800–05 Pulteney Bills against bull baiting were presented to Parliament but were voted down and never became law.
- 27.
T. Erskine, Hansard Parliamentary Debates 14 (May 15, 1809): 555.
- 28.
Ibid., 554.
- 29.
Hohfeld, Fundamental Legal Conceptions, 35–36.
- 30.
Erskine, Hansard, 559.
- 31.
Ibid., 562.
- 32.
Ibid., 565.
- 33.
Regan, The Case for Animal Rights, 287.
- 34.
Erskine, Hansard, 559.
- 35.
Regan, The Case for Animal Rights, 324.
- 36.
Erskine, Hansard, 559.
- 37.
Cochrane, Animal Rights without Liberation, 49.
- 38.
See, for instance, Caparo Industries v. Dickman Plc, [1990] 2 A.C. 605, in which Lord Bridge cemented the principle of incremental development into English legal history by citing, with approval, the judgment of Brennan in Sutherland Shire Council v. Heyman, (1985) 157 C.L.R. 424.
- 39.
M. Radford, Animal Welfare Law in Great Britain: Regulation and Responsibility (Oxford: Oxford University Press, 2001), 34; see also R. Ryder, Animal Revolution: Changing Attitudes towards Speciesism (Oxford: Berg, 2000), 78.
- 40.
Ryder, Animal Revolution, 82.
- 41.
An Act to Prevent the Cruel and Improper Treatment of Cattle (3 Geo IV, c. 71).
- 42.
An Act to Consolidate and Amend Several Laws Relating to the Cruel and Improper Treatment of Animals, and Mischiefs Arising from the Driving of Cattle, and to Make Other Provisions in Regard Thereto (“Pease’s Act”) (5 & 6 William IV, c. 59).
- 43.
Pease’s Act, s. II.
- 44.
An Act for the More Effectual Administration of Justice of the Peace in Several Police Offices Established in the Metropolis, and for the More Effectual Prevention of Depredations on the River Thames and Its Vicinity for Three Years, s. XXIX.
- 45.
Pease’s Act, s. III. The position of animal protection in Scotland, as explained by Radford, was distinct until 1850 on the basis—perhaps—of Scotland’s separate legal traditions.
- 46.
Pease’s Act, s. VII.
- 47.
Erskine, Hansard, 562.
- 48.
Pease’s Act, ss. VII and VIII.
- 49.
Erskine, Hansard, 564.
- 50.
Ibid.
- 51.
Blackstone, Commentaries, 13.
- 52.
G. Williams, Liability for Animals: An Account of the Development and Present Law of Tortious Liability for Animals, Distress Damage Feasant and the Duty to Fence in Great Britain, Northern Ireland and the Common-Law Dominions (Cambridge: Cambridge University Press, 1939), 9–11.
- 53.
Similarly, a distrainer who had placed impounded cattle in overly close confinement, causing the death of these cattle, would not be guilty of trespass against the property of the cattle owner. Gates v. Bayley, (1766) 2 Wilson, K.B. 313.
- 54.
Pease’s Act, s. IV and VI. The costs of the food and nourishment could then be recovered against the owner of the animals, or—after sufficient notice—the impounder could sell the animals and recover the expenditures. The obligation to provide nourishment was, however, strictly limited to the person distraining, and in Dargan v. Davies, [1876] 2 Q.B.D. 118, the court was not prepared to extend this duty to the keeper of the pound in which the animals were kept.
- 55.
This would later become twelve hours under the 1849 act and then six hours under section 7 of the 1911 act.
- 56.
Dargan v. Davies, 122–23; Pease’s Act, s. V.
- 57.
R. Harrison, Animal Machines (London: Vincent Stuart, 1964), 8.
- 58.
G. L. Francione, Rain without Thunder: The Ideology of the Animal Rights Movement (Philadelphia: Temple University Press, 2007), 135.
Bibliography
Aquinas, T. “Animals Are Not Rational Creatures.” In Animal Rights: A Historical Anthology, edited by A. Linzey and P. B. Clarke, 7–12. New York: Columbia University Press, 2004.
Bentham, J. An Introduction to the Principles of Morals and Legislation (1789), reproduced in A Fragment on Government and an Introduction to the Principles of Morals and Legislation, edited by W. Harrison, 41–435. Oxford: Basil Blackwell, 1960.
Blackstone, W. Commentaries on the Laws of England. Book II, The Rights of Things. Oxford: Clarendon Press, 1766.
Cochrane, A. Animals Rights without Liberation: Applied Ethics and Human Obligations. New York: Columbia University Press, 2012.
Deakin, S., A. Johnston, and B. Markesinis. Markesinis and Deakin’s Tort Law. 7th ed. Oxford: Oxford University Press, 2013.
Erskine, T.. Hansard Parliamentary Debates 14 (May 15, 1809): 553–571.
Feinberg, J. “Human Duties and Animal Rights.” In Rights, Justice and the Bounds of Liberty, edited by J. Feinberg, 185–206. Princeton: Princeton University Press, 1980.
———. “The Rights of Animals and Unborn Generations.” In Rights, Justice, and the Bounds of Liberty, edited by J. Feinberg, 159–84. Princeton: Princeton University Press, 1980.
Francione, G. L. Rain without Thunder: The Ideology of the Animal Rights Movement. Philadelphia: Temple University Press, 2007.
Francione, G. L., and R. Garner. The Animal Rights Debate: Abolition or Regulation? New York: Columbia University Press, 2010.
Harrison, R. Animal Machines. London: Vincent Stuart, 1964.
Hohfeld, W. Fundamental Legal Conceptions as Applied in Judicial Reasoning. New Haven: Yale University Press, 1919.
Kant, I. “Duties to Animals Are Indirect.” In Animal Rights: A Historical Anthology, edited by A. Linzey and P. B. Clarke, 126–127. New York: Columbia University Press, 2004.
Kramer, M. “Getting Rights Right.” In Rights, Wrongs and Responsibilities, edited by M. Kramer, 22–95. London: Palgrave, 2001.
Linzey, A., and P. B. Clarke. Animal Rights: A Historical Anthology. New York: Columbia University Press, 2004.
Prest, W. “Blackstone, Sir William (1723–1780).” In Oxford Dictionary of National Biography. Oxford: Oxford University Press, 2004. Accessed March 11, 2014. http://www.oxforddnb.com/view/article/2536.
Radford, M. Animal Welfare Law in Great Britain: Regulation and Responsibility. Oxford: Oxford University Press, 2001.
Regan, T. The Case for Animal Rights. Berkeley: California University Press, 2004.
Ryder, R. Animal Revolution: Changing Attitudes towards Speciesism. Oxford: Berg, 2000.
Smellie, W. The Philosophy of Natural History. Vol. 1. Edinburgh, 1790.
Williams, G. Liability for Animals: An Account of the Development and Present Law of Tortious Liability for Animals, Distress Damage Feasant and the Duty to Fence in Great Britain, Northern Ireland and the Common-Law Dominions. Cambridge: Cambridge University Press, 1939.
Wise, S. M. “Legal Rights for Non-Human Animals: The Case for Chimpanzees and Bonobos.” Animal Law 2 (1996): 179–186.
Cases
Caparo Industries v. Dickman Plc, [1990] 2 A.C. 605.
Dargan v. Davies, [1876] 2 Q.B.D. 118.
Gates v. Bayley, (1766) 2 Wilson, K.B. 313.
Sutherland Shire Council v. Heyman, (1985) 157 C.L.R. 424.
Osman v. United Kingdom, [1999] 1 F.L.R. 193.
Van Colle v. Chief Constable of Hertfordshire Police, [2009] 1 A.C. 225.
Statutes
An Act for the More Effectual Administration of Justice of the Peace in Several Police Offices Established in the Metropolis, and for the More Effectual Prevention of Depredations on the River Thames and Its Vicinity for Three Years (3 & 4 William IV, c. 18, 19).
An Act to Consolidate and Amend Several Laws Relating to the Cruel and Improper Treatment of Animals, and Mischiefs Arising from the Driving of Cattle, and to Make Other Provisions in Regard Thereto (5 & 6 William IV, c. 59).
An Act to Prevent the Cruel and Improper Treatment of Cattle (3 Geo IV, c. 71).
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Calley, D.S. (2018). Human Duties, Animal Suffering, and Animal Rights: A Legal Reevaluation. In: Linzey, A., Linzey, C. (eds) The Palgrave Handbook of Practical Animal Ethics. The Palgrave Macmillan Animal Ethics Series. Palgrave Macmillan, London. https://doi.org/10.1057/978-1-137-36671-9_24
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