The legal limits of necessity 67

So far in this chapter, I have looked into different theoretical approaches to strengthen the rights of animals before those of humans. The underlying discussion revolves around where the law currently draws the line of how far the interests of animals and humans are considered. We have fundamental interests of animals, such as the interests to live or to preserve their body integrity, being alienated for superfluous interests of humans, such as the desire to wear luxury clothing. While the law in the EU says that animals are subjects

299 Cochrane, 2020.

300 Recurso Extraordinário nº 153.531 - Diário da Justiça – 13/03/1998.

301 Recurso Extraordinário nº 153.531 - Diário da Justiça – 13/03/1998.

302 Bilchitz, 2018.

of protection of unnecessary suffering³⁰³, in practice, it otherwise shows that virtually every time customary human interests are at stake, suffering is deemed justifiable.

The concept of necessity is left undefined by the law, and consequently, what is considered humane or unnecessary might differ considerably from the interpretation of those terms³⁰⁴. As much as it is easy to reject the idea of sadistic unnecessary cruelty to animals, activities such as hunting, pigeon shoots, rodeos, and bullfights are lawful, regardless of how morally arguable they might be. Such practices inflict extraordinary suffering on animals whilst serving no other purpose to humans beyond mere entertainment³⁰⁵. In this regard, Wahlberg and Aaltola stated that ‘making use of the term unnecessary without due precision arguably offers a misguided perception concerning welfare criteria’³⁰⁶ In trying to delimitate the concept of necessity under the EU animal law, a widely adopted distinction between primary and secondary interests provide a logical argumentation. Primary interests encompass matters directly associated with life and wellbeing, such as the interest in nourishment, while secondary interests are only indirectly associated with our wellbeing, such as the interest to have a piece of chocolate³⁰⁷. This is a clear framework that indicates that the majority of our interests in using animals are not primary³⁰⁸.

4.4 A new welfare paradigm?

Francione described as legal welfarism the prevailing legal theory concerning animals, that draws from the assumption that animals are properties used for the human benefit³⁰⁹. The doctrine of legal welfarism tends to outlaw only those uses of animals that are not

‘efficient’. Therefore, if killing and inflicting suffering is nevertheless part of an

303Article 3, Annex(7), and Annex(14) of Council Directive 98/58/EC of 20 July 1998 concerning the protection of animals kept for farming purposes, OJ L 221, 8.8.1998.

304 Francione, - Kunstler, 1995.

305 Idem.

306 Wahlberg – Aaltola, 2015, p. 88.

307 Idem.

308 Idem.

309 Francione, - Kunstler, 1995.

institutionalized use of animals, then the activity is permitted. The main problem with this paradigm is that, as a general rule, it does not surpass that level of protection that enables the most cost-effective exploitation of the animal. The current animal welfare understanding, in a broad sense, accepts the killing and the suffering of animals as legally tolerable and morally acceptable, as long as ‘efficient’ and not purely sadistic in nature.

In other words, the present paradigm holds that there is no animal interest that cannot be countermanded if by doing so the results are sufficiently beneficial to humans³¹⁰.

A framework to be considered in order to redesign the legal welfare system and make it better for animals should take their interests more seriously. At a first stage, it seems logical to assess what are the interests of animals that are worthy of our consideration. In analysing the weight that law should pose on the interests of the animal, Favre proposed a few fundamental questions, such as whether animals have interests and, if so, whether we can be confident enough about understanding and articulating such interests in the law. The answer to the former question is not a matter of legal or philosophical debate, but a fact that comes from the very existence and nature of animals’ DNA. In addition, as said in section 3.1.1 on animal sentience, science has provided solid evidence about the most notorious of animals’ interests. As a baseline, Favre suggested the observation of behaviours that most animals engage in, which include, but are not limited to, fighting for continued life, consuming food adequately, socializing, sleeping, caring for their young, moving about their physical environment, and exercising their natural mental capacities.

He added that ‘it is not critical to know all the interests of all animals before we proceed to acknowledge the critical interests of some of the animals’³¹¹.

After assuming that animals have interests that we are capable of understanding sufficiently and that some of these interests can and have already been acknowledged by the law, the questions that remain are which other animals’ interests should and have not yet been protected by the legal system and how to do that. There are different ways of answering these questions. All the approaches analysed in the previous sections of this

310 Francione, - Kunstler, 1995.

311 Favre, 2010, p. 1049.

chapter offer insights into ways of protecting more animals’ interests and with greater legal security. Pondering on how to answer these questions in a feasible and attainable manner, I argue that Favre’s theory of living property status along with the idea of safeguarding animal interests in the Constitution seems to be a feasible approach to transcend the limitations of the current animal welfare paradigm towards a better one for animals. Although still a non-ideal political scenario, these steps would make it possible to expand the protected interests of animals with less political resistance, since while imposing deep structural changes in the way we produce and consume animal products, it would not eliminate animal exploitation. With regards to which further consequences the living property status would have in the law, Favre proposed it would limit the rights of owners to some degree to accommodate some of the enlarged interests of the animals.

These broader animal interests that could be accommodated within the law could take various forms in accordance with the known interests of species, such as the interests of socializing for primates, of caring for their young for bovines, and of moving about their physical environment and exercising their natural mental capacities for all intensively farmed animals.

There is also the issue about which branch of the government would be expected to enforce the new views, the legislature or the courts. In this case, as the UK follows a common law tradition, court opinions, rather than legislative enactments, would make a greater impact in acknowledging the hypothetical broadened interests for animals.

Finally, constitutional safeguard of the rights of animals has proved to be an efficient way of balancing their interests with the ones of humans, as portraited in the cases from the German and Brazilian Courts analysed above. Many developments could unfold from both hypotheses to better balance human and animals’ interests and create an enhanced animal welfare system.

5. RECOMMENDATIONS FOR POLICYMAKERS

Around 80 percent of the current animal protection regulation in the UK is based on the EU animal law³¹². The European Union (Withdrawal) Act 2018 has nationalised the great majority of this law³¹³, therefore, most of the strong points discussed in Chapter 3 are expected to indefinitely keep being part of the UK body of law despite Brexit. However, one of the most important aspects of EU animal law is the recognition of animal sentience in article 13 TFEU, which has not yet been formally incorporated into UK law, although some political steps have been recently made in this direction³¹⁴. This chapter formulates solutions to this and other of the most pressing problems in the EU animal law, as identified in chapter 3, which could be embodied in the UK law as a pathway towards a more robust protective legislative system for animals.