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A Proposal for a New Taxonomy of Animal Law

By Steven Wise

In November I traveled to Stockholm and Helsinki to lecture about the work of the Nonhuman Rights Project, to engage in Q&A sessions with audiences following showings of Unlocking the Cage, and to meet the Swedish and Finnish lawyers, legal scholars, and law students who have so diligently been working to lay the foundation for obtaining legal personhood and fundamental rights for nonhuman animals in their countries.

The chair of the joint Swedish/Finnish Legal Working Group is Birgitta Wahlberg, who is soon returning to her native Finland from Stockholm where she will assume the leadership of the new Finnish Group. Birgitta, a legal scholar and fierce advocate for the legal personhood of nonhuman animals, and I spent hours talking about our mutual interest in attaining legal rights for nonhuman animals and our belief that the age of animal welfare and animal protection, which began almost two hundred years ago, is on the wane, while the age of civil rights for nonhuman animals is on the rise.

This led to discussions about the differences in the diverse legal systems in which we operate, visit, and teach and how crucial it is for animal advocates in every jurisdiction to get important definitions straight.

The term “animal law” long ago came to mean “animal welfare” or “animal protection,” occasionally leavened with some philosophical thought about rights, while sometimes extending to anything that helps nonhuman animals in almost any way. But with the emergence of the Nonhuman Rights Project, which calls itself a civil rights organization that focuses on the legal rights of nonhuman animals, a distinction between the legal meanings of “animal rights” and “animal welfare” or “animal protection” has moved into courtrooms and is heading to legislatures and administrative agencies around the world.

Members of the Sweden NhRP Legal Working Group. L-R: Charlotte Bille Edholm, Annika Norée, Birgitta Wahlberg, Steven M. Wise, Erica Ström and Clara Ekström. Photo: Petrus Iggström

But the Nonhuman Rights Project frequently encounters people who see only a single field of “animal law.” Some judges, for example, look blankly at us when we insist that we are not in court to protect our nonhuman client’s welfare, but her rights. Others, even in the animal rights movement, insist they are fighting for the “rights” of nonhuman animals but are merely trying to improve their welfare. And so the vagueness with which key animal advocacy terms are deployed has become a important and recurring problem. Journalists want to know precisely what they are writing about. Students are curious to know what the subject of their classes are. Donors insist upon knowing what their donations will be used to promote. Judges and legislators need to know what they should support and what their constituents support and why.

Birgitta has long asked the question “What is ‘Animal Law’?” The leading casebook, Animal Law, says its subject “is, in its simplest and (broadest) sense, statutory and decisional law in which the nature – legal, social or biological – of nonhuman animals is an important factor.” Courses that contain the phrase “Animal Law” are often taught in law schools around the world. However I have never taught a course by that name; I have always taught “Animal Rights Law” or “Animal Rights Jurisprudence” whether I am teaching at Harvard, Stanford, Lewis and Clark, Vermont, or other law schools. We believe these courses are teaching different subjects.

What, we asked each other, were the true relationships amongst “Animal Law,“ “Animal Rights Jurisprudence,” “Animal Rights Law,” “animal rights,” “animal protection,” and “animal welfare”?

We drew diagrams and Venn diagrams in an attempt to puzzle out what these terms stood for and what their relationships were to each other in the hope we might begin to standardize them so that everyone will better understand what the terms being used actually mean, at least in the legal realm.

Here is what we propose.

It seemed to us that the overarching discipline should be called ”Animal Law” or “Animal Jurisprudence” and that there exist three distinct branches, each with a different focus and purpose, though statutes may address more than one branch at the same time.

Animal Welfare/Animal Protection

The first branch concerns the traditional focus on duties imposed upon human beings with respect to how they should treat nonhuman animals in their capacity as rightless “things” or “objects of protection” and more recently, “sentient beings,” that lack the capacity for legal rights. This we propose is be called “Animal Welfare” or “Animal Protection,” which we see as the same thing. While near-toothless when standing alone, as the law concerning humans demonstrates, this branch of “Animal Law” becomes vital when combined with rights.

Animal Rights

The second branch concerns the rising new focus on those nonhuman animals who are designated as “persons” with the capacity for one or an infinite number of legal rights. This branch we propose to be called “Animal Rights.” This is the work of the Nonhuman Rights Project.

Animal Regulation

The third branch is law that regulates human actions that have an indirect impact upon the lives of nonhuman animals without imposing either indirect and enforceable duties upon humans to treat them in a certain way or granting rights to them. Examples include the purchase and sale of nonhuman animals or the relationship between tenants who own nonhuman animals and their landlords. This branch we propose to call “Animal Regulation.”

We hope this blog post is a first step towards clarifying what legal professionals mean when they address that law that affects nonhuman animals.

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