Should all animals be treated equally? Discrimination in Animal Rights Law

Table of Contents

A. WHAT IS AN ANIMAL?
I. The “scientific” animal
II. The “legal” animal
1. German legislation as an example
2. The legal scholarship on the topic

B. ANALYSIS OF THE DESCRIBED ANIMAL DEFINITIONS

C. PUBLICATION BIBLIOGRAPHY

“All animals are equal, but some animals are more equal than others.” (Orwell, Animal Farm, London 2008, p. 112)

This iconic quote is used to describe the dictatorial aspirations of the pig Napoleon in George Orwell ’ s classic novel Animal Farm. The book is usually interpreted as a critic for Great Britain’s alliance with the Soviet Union and its dictator at the time Josef Stalin (Finck, Deutschlandfunk 2015). In an ironic twist of fate, it fittingly describes discussions in the field of Animal Law. In the following paper reasons for the preference of certain animals will be described and discussed.

The first point of analysis will be the definitions of animals in legal scholarship and in actual laws regarding animals (A.). After these fundamental explanations the goal will be to analyse if these “differentiations” can be justified by using scientific methods, legal reasoning and if they are necessary to achieve the larger goals of the institution of animal rights (B.).

A. What is an animal?

The question on which everything relies on is what can be regarded as an animal. First, the focus will be on the scientific definition of an animal (I.), then we will dive into the legal adaptions of animals (II.).

I. The “scientific” animal

Animals are usually defined as multicellular, eukaryotic organisms that are in the biological kingdom Animalia. As common traits one can identify the consumption of organic material, the ability to move, the growth from a hollow sphere of cells during embryonic development and sexual reproduction,. (Westheide and Rieger, Spezielle Zoologie, München, p. 69; Munk, Zoologie, Stuttgart 2011, p. 9).

While there are numerous grey areas in the definition of animals and the classification among animals, this can be seen as the most commonly taught definition. The usual classification also divides animals in five animal kingdoms: Mammals, birds, fish, insects and reptiles.¹

II. The “legal” animal

While the scientific animal will be familiar to most people due to fond memories of Biology in school, how an animal is defined legal thoughts depends where you look. First, the analysis will focus on the legal animal in national law systems (1.), then a description of prominent scholars in the field of animal law will follow (2.).

1. German legislation as an example

In order to find a somewhat common standard, we will take a look at Germany as a country with a high standard of legal protection of animals.²

The Protection in Germany is enshrined not only in the German Civil Code (B ü rgerliches Gesetzbuch), but also in the German constitution (Grundgesetz) as a constitutional principle (Nattrass, Animal Law 2004, p. 283). Additonally, there is a different law regarding the protection of animals (Tierschutzgesetz).

The constitutional protection in Germany reads as following: “Mindful also of its responsibility towards future generations, the state shall protect the natural foundations of life and animals by legislation and, in accordance with law and justice, by executive and judicial action, all within the framework of the constitutional order.” (Art. 20a Grundgesetz)³

What falls under the protection of an animal, is quite unclear. In German legal terminology, it is usually referenced as a Staatsziel, the goal of a state (Scholz, in Maunz/Dürig 2013, Art. 20a GG, § 3)⁴. This means, that the state has to work towards the goal with its political abilities and it gives the legislative powers large discretion in what measures it can take to achieve this goal (Steinberg, NJW 1996, The Bürgerliches Gesetzbuch does not help with the definition of an animal either, as it reads⁵:

“Animals are not things. They are protected by special statutes. They are governed by the provisions that apply to things, with the necessary modifications, except insofar as otherwise provided.”

(Section 90a BGB)⁶

Again, there is no definition what falls under the term of an animal. In the travaux pr é paratoires, however, the reasoning for this differentiation between animals and things is reasoned by an animals’ capacity to feel pain (Schmerzempfindlichkeit; can be found under (BT-Drucks 11/5463, 1 und 5; 11/7369, 1). This could lead to the conclusion, that only animals who are capable to feel pain fall under the protection of German law. This claim is further substantiated by the Tierschutzgesetz, as Section 1 reads:

“The purpose of this law is out of the responsibility of man as a fellow creature to the animal to protect its life and well-being. Nobody is allowed to cause pain, suffering or harm to an animal for no justifiable reason.” (Sec. 1 Para. 1 Tierschutzgesetz)⁷

Again, the wording of this section focuses on pain which is caused to animals. Can the conclusion of this analysis be, that German law limits the application of the law to animals, which feel pain? This is an important question, as the capacity to feel pain has not discovered in every animal so far (Harrison, Philosophy 1991, p. 25).

This legal discussion in Germany seems to be tending towards the direction that the necessity to feel pain is not necessary to fall under the protection of animal law. The main argument against it is rather of legal nature than of a moral one: When one differentiates between animals who can feel pain and animals who cannot feel pain, the clarity of the rule is infringed. This is underlined by the lack of consensus in the scientific community (Lummer, Süddeutsche Zeitung 2010). While the rule is by no means clear afterwards due to the difficult distinction between non-living materials, plants and animals, it helps on clarifying it (Stieper, in Staudinger 2019, § 90a BGB, § 5). Therefore, the scientific-biological term prevails in German law (Fritzsche, in Bamberger/Roth/Hau/Posack 2020, § 90a BGB, § 3).

One small, but influential point has to be mentioned: In the interpretation of how animals are to be treated the prevailing practice (Verkehrsanschauung) has to be taken into account. This in effect means, that whether or nor certain animals can be protected in certain cases depends on how the public treats these cases usually. For example, animal cruelty and the demand for prosecution will differ immensely between elephants and ants. This influential interpretation rule basically excludes insects completely from the scope of application of these protections (with the curious exception for Bees in Section 961 BGB), which leads to a certain differentiation from the scientific term (Fritzsche, in Bamberger/Roth/Hau/Posack 2020, § 90a BGB, § 3).⁸

The aforementioned Tierschutzgesetz also makes certain differentiations between types of animals, as some protections only apply to vertebrate animals, especially those which can be punished as criminal acts (Section 4, 17 Tierschutzgesetz). In many ways the Tierschutzgesetz is not only mainly used as a protection for vertebrate animals in practice, but also the law itself focuses on such animals.

In conclusion, at first glance the German Legal System looks promising in regard to the protection of all animals. The announcement made by the Grundgesetz does not differentiate between animals in an extended sense, neither does the wording of the main laws in the field. However, the interpretation methods of German Law, the practice while applying the law and sometimes the wording of the specific laws draws a different conclusion. Despite Germany’s high ranking in animal protection, only vertebrate animals are “really” taken into consideration as animals by the law.

2. The legal scholarship on the topic

In order to assess the legal scholarship on this particular topic on what kind of animals are protected, the main take of scholars in animal law will be analysed. While numerous papers have discussed the issues of essentialism and classification in animal law as a basis for the moral justification of animal rights law, the topic of which animals should be protected.

Often, this reluctance to decide on this topic is easily understandable: The Proposal on Fundamental Rights for Animals in Finland, for example, intentionally abstains from deciding on this topic. The commentary on the Proposal states that only sentient animals should be protected. As explained above in the discussion in German Law, the sentience of animals is not fully discussed. In order to allow a dynamic interpretation, the drafters of this proposal left it open. (Section 1 Fundamental Rights of Animals, can be found at https://www.elaintenvuoro.fi/english/). Despite this disclaimer written in the commentary on the proposal, the first sentence reads that “Animals are sentient”, which seems to imply that the drafters are of the opinion that all animals should be protected.

The most well-known distinction is made by Jeremy Bentham in his book The Principles of Morals and Legislation when he writes:

“The question is not, can they reason, nor, can they talk, but, can they suffer?” (Bentham, The Principles of Morals and Legislation, Oxford 1907, p. 310)

This rule is similar to what has been said by the travaux pr é paratoires in Germany as it assigns the question of suffering the utmost importance. This reasoning has been essential in the understanding of Animal Rights Law: As long as animals suffer, they deserve attention from the moral compass of men. This has been held up by Peter Singer in his work Animal Liberation (Singer, Animal Liberation, London 1976, p. 16). The question for these authors therefore largely depends on the scientific research in this field, which determine if animals can or cannot suffer.

This is not the only opinion in this field, however. In his attempt to get American Courts to recognize his chimpanzees as legal persons, the attorney and founder of the Non-Human Rights Organisation Steven Wise argues with different aspects. While the aspect of legal personhood is not the topic of this paper, the arguments the organisation makes are quite interesting. The memorandum of the organisation focuses on the fact, that the chimpanzee in question can act autonomously and have cognitive abilities similar to humans. (Memorandum in Tommy's Case, NHO, p. 54). Unlike the previous reasonings, they argue with the abilities of the chimpanzees instead of its sentience. While it has to be made clear, that the goal was to gain legal personhood in this case and not to argue for general protection, this standard of intelligence of animals is also one to consider. This standard could possibly limit the application of Animal Rights Law to only include the “nerds” of the animal kingdom, namely apes, whales and dolphins (cf. Objective 1 in https://www.nonhumanrights.org/who-we-are/).

Another distinction was drawn by Tom Regan, who limited the scope of Animal Rights in a different way:

“Unless otherwise indicated, that is, the word humans will be used to refer to all those Homo sapiens aged one year or more, who are not very profoundly mentally retarded or otherwise quite markedly mentally impoverished (e.g., permanently comatose). And, unless indicated otherwise, the word animal will be used to refer to mentally normal mammals of a year or more.” (Regan, The Case for Animal Rights, Los Angeles 2004, p. 78)

In the book itself, he goes into great detail in explaining as what quantifies as a “mentally normal” animal, and these arguments seem quite similar to those made by the Non-Human Rights Organisation, namely “Perception, memory, desire, belief, self-consciousness, intention, a sense of future” (Regan, The Case for Animal Rights, Los Angeles 2004, p. 81).

This passage shows the different understandings of what constitutes a legal animal which deserves protection. It is especially interesting, because the leading advocates did not adopt the scientific definition, instead going for their own definition. The two strains of animal definitions which could be found through this work can roughly be named as the sentient strain, which focuses on the animals ability to feel emotions (especially pain) and the intelligence strain, which focuses on the cognitive ability of animals and prefers “nerds”.

B. Analysis of the described animal definitions

First, one has to look at the most common and most popular definition the ability to feel pain, the sensual strain. This reasoning might look attractive due to moral reasons: Can there be a better reason for legislation than to reduce pain? Isn’t that the main reason why humans aren’t allowed to hurt each other (without consent)?

While morally the sensual approach might sound reasonable, one should not underestimate the legal problems that such an approach causes. Despite all of our scientific development in the last few decades, we are still not able to tell if all animals can feel pain. Even Singer, who strongly supports this reasoning, underlines his point with the assumption that “there are no good reasons, scientific or philosophical, to deny that animals feel pain” (Singer, Animal Liberation, London 1976, p. 16). However, while this claim may be supported for mammals, it does not cover all animals. It is especially not clear with insects, while some scientific papers even doubt if fish can experience pain (Key, Biology and Philosophy 2015, p. 149). And an assumption would be too unclear in legal terms: For what animals does the assumption count? Should it end if the sentience cannot be proven? Can it even be proven, that animals can definitely not feel pain ?

In many ways, the criticism of the German scholarship on this sensual strain seems sensible: Too many grey areas would exist, so that a law like cannot be applied sensibly, which is why this idea might sound good in theory but is not functional in practice.

The second strain identified earlier relies on the intelligence of animals and its cognitive abilities. This strain is especially useful in political litigation, as shown by the memorandum by the Non-Human Rights Organisation. By arguing that we are not as far ahead from animals as we think, it questions the legitimacy of the legal boundaries between species. However, the criticism of this reasoning is similar to the first one: It relies heavily on scientific research. Additionally, while it may be useful for short-6 term goals, if the goal is to recognize the whole animal kingdom as worthy of protection, this reasoning will prove to be unhelpful. Most animals do not reach the standards of chimpanzees or dolphins. Therefore, even if it can be argued that an chimpanzee is as smart as a child, it does not help all the animals who are not. Morally, it would prefer the “smart” animals over the less smart ones – even though some of them might still feel pain.

So what should be the solution? The goal of a definition of animals worth protecting has to be flexible, scientifically sound and legally practicable. A solution which – similar to the German one – relies on the scientific term but limits it with the Verkehrsanschauung seems sensible. It ensures that the results will be kept in balance (an ant will not be treated like a dog). But, more importantly, it allows for flexibility in a simpler way, as the goal is not to push science to get a specific result but instead to get the public to achieve a specific result (where the moral reasonings which substantiate the first two reasonings can be used). Therefore, the focus of Animal Rights Activists can achieve policies by activism, which seems like the more practical way. While they are still grey areas with this method, it starts from the biggest protection standard and therefore does not require any form of discrimination due to scientific reasons within the animal kingdom.⁹

One criticism that can be voiced here is that this theory heavily relies on public perception and therefore on the empathy on men. In this regard, one can only hope that another George Orwell quate will prove to not be as prophetic as many of his other predictions were:

“Man serves the interest of no creature except himself.” (Orwell, Animal Farm, London 2008, p. 3)

C. Publication bibliography

Bentham, Jeremy (1907): The Principles of Morals and Legislation, Oxford: Oxford University Press.

Braun (1992): Symbolische Gesetzgebung und Folgelast - Erfahrungen im Umgang mit § 90a BGB in einer Examensklausur. In JuS, pp. 758–761.

BT-Drucks 11/5463, 1 und 5; 11/7369, 1.

Finck (2015): Schweine sind auch nur Menschen. George Orwells Animal Farm. In Deutschlandfunk. Available online at https://www.deutschlandfunk.de/george-orwells-animal-farm-schweine-sind-auch-nur-menschen.871.de.html?dram:article_id=328318.

Fritzsche (2020): § 90a BGB. In Heinz Georg Bamberger, Herbert Roth, Wolfgang Hau, Roman Posack (Eds.): Beck'scher Online Kommentar zum Bürgerlichen Gesetzbuch. 53rd ed. München: C.H. Beck.

Harrison (1991): Do animals feel pain? In Philosophy 66 (255), pp. 25–40.

Key (2015): Fish do not feel pain and its implications for understanding phenomenal consciousness. In Biology and Philosophy 30, pp. 149–165.

Lummer (2010): Wie geht's dem Wurm am Haken? Empfinden auch niedere Tiere wie Schnecken, Insekten und Würmer Schmerzen? In S ü ddeutsche Zeitung. Available online at https://www.sueddeutsche.de/wissen/schmerz-lass-nach-wie-geht-s-dem-wurm-am-haken-1.912296.

Memorandum in Tommy's Case, NHO. Available online at http://www.nonhumanrights.org/content/uploads/2013/12/Memorandum-of-Law-Tommy-Case.pdf.

Munk, Katharina (2011): Zoologie. Taschenlehrbuch, Stuttgart: Thieme.

Nattrass (2004): "…und die Tiere" Constitutional Protection for Germany's Animals. In Animal Law 10, p. 283.

Orwell, George (2008): Animal Farm. A Fairy Story, London: Penguin Books Ltd.

Regan, Tom (2004): The Case for Animal Rights, Los Angeles: University of California Press Berkeley.

Scholz (2013): Art. 20a GG. In Theodor Maunz, Günter Dürig (Eds.): Grundgesetz. Kommentar. 69th ed. München: C.H. Beck.

Singer, Peter (1976): Animal Liberation, London: Cape.

Steinberg (1996): Verfassungsrechtlicher Umweltschutz durch Grundrechte und Staatazielbestimmung. In NJW, pp. 1985–1994.

Stieper (2019): § 90a BGB. In Julius von Staudinger (Ed.): Kommentar zum Bürgerlichen Gesetzbuch mit Einführungsgesetz und Nebengesetzen. Baden Baden: De Gruyter.

Westheide, Wilfried; Rieger, Reinhard: Spezielle Zoologie. Teil 1: Einzeller und Wirbellose Tiere. 2nd ed., München: Spektrum Akademischer Verlag.

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¹ This division is rather unprecise, but sufficient for the purposes of this paper. For a deeper dive into the different subspecies look into Munk 2011, p. 12.

² The choice was made in line with the analysis by the website https://www.globalanimallaw.org/database/national/index.html, which also has a listing of all relevant provisions in the field. The analysis by https://api.worldanimalprotection.org/ was also taken into consideration.

³ Translation was found at https://www.gesetze-im-internet.de/englisch_gg/englisch_gg.html#p0116). German original: “Der Staat schützt auch in Verantwortung für die künftigen Generationen die natürlichen Lebensgrundlagen und die Tiere im Rahmen der verfassungsmäßigen Ordnung durch die Gesetzgebung und nach Maßgabe von Gesetz und Recht durch die vollziehende Gewalt und die Rechtsprechung.“ p. 1992).4 However, there is no explanation what falls under the term “animal”, which usually means the ordinary meaning of the term applies, this means the meaning described above.

⁴ In practical terms, this is largely a political achievement: Only under high constitutional standards and if the state actively works against the development of animal laws, one could imagine a successful claim under Art. 20a GG.

⁵ The rules was heavily criticised in German legal scholarship, as can be read in Braun 1992 An overview of the criticism of the rules can be found in Stieper 2019.

⁶ Translation was found at https://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p0272. German original: “ Tiere sind keine Sachen. Sie werden durch besondere Gesetze geschützt. Auf sie sind die für Sachen geltenden Vorschriften entsprechend anzuwenden, soweit nicht etwas anderes bestimmt ist.“

⁷ Translation made by the author. German original: „Zweck dieses Gesetzes ist es, aus der Verantwortung des Menschen für das Tier als Mitgeschöpf dessen Leben und Wohlbefinden zu schützen. Niemand darf einem Tier ohne vernünftigen Grund Schmerzen, Leiden oder Schäden zufügen.“

⁸ In some cases, there are specific laws for specific animals, i.e. the Bundesnaturschutzgesetz (Law on the Protection of Nature) and the Pflanzenschutzgesetz (Law on the Protection of Plants).

⁹ This does not mean that the material animal law of Germany is a prime goal for Animal Rights Law. Only the definition of an animal seems plausible.