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The Animal Within the Sphere of Human Needs

Animal law conference held at the Universit of Quebec in Montreal (UQAM) in Montreal

May 21-22, 2009

To order the conference proceedings, please contact Les Éditions Yvon Blais at the following address:

Organized by the International Research Group in Animal Law (GRIDA) under the honorary presidency of counsel Joan Clark, this bilingual event dealt with a wide range of issues related to the legal status and welfare of animals.

The main goal of the conference was to review the behaviors that human beings exhibit towards animal species. Although mainly a scientific and legal undertaking, the conference was open to researchers from other disciplines—biology, ecology, philosophy and veterinary medicine, for example—who were concerned with the use and exploitation of animals by human beings as well as sources of animal sufferings.

Conference Program

May 21 2009

Opening Speeches

Definition of Juridical Instruments for Animal Species Protection

Martine Lachance - Professor of Law, University of Quebec in Montreal (UQAM) - Director, International Research Group in Animal Law (GRIDA)
Me Joan Clark - Honorary president - Counsel, president of the Foundation for the protection of animals
Alain Stanké - Journalist, publisher and writer

Session 1 - The Animals, Sentient Beings

A Revolution Born from the Revolution
Éric Baratay - Professeur d'histoire contemporaine, Université Jean Moulin (Lyon 3)

The questions brought upon by this symposium about the animal's sensitivity, its respect and protection, the extension of its rights or its ethic use were for the first time, not only evoked, but publicly and politically debated at the time of the French Revolution. Under the influence of Rousseauism, advocating sensitivity over reason, and in the revolutionary context of upheaval of ideas, situations and conditions, the issue of animals was often times discussed in official reports, contests and speeches. The theses that were put forward are surprisingly modern and still relevant. Their revolutionary character can be explained by an unbridled desire to rethink every condition at a time where men became citizens and women and slaves were given freedom, because to think the animal is to think the other.

Considering the Animals' Perspective: Human Law, Seen Through the Lens of Animal Suffering
Elizabeth L. DeCoux - Professor, Florida Coastal School of Law

Whose voice will not be heard at this conference? The voice of those with the most at stake: the animals. No one is at fault for this omission. With very few exceptions, animals cannot communicate verbally with humans. So, the title of the conference reflects a human perspective: "Animals, Within the Sphere of Human Needs." A laboratory rat, a beef cow and a laying hen might have chosen a different title: "Human Law, Seen Through the Lens of Animal Suffering." Because we are human, it is natural that our thoughts, words and actions reflect a human perspective. If we do wish to consider the perspective of animals, we must consciously choose to do so at every juncture, because it is not natural to us. Elizabeth L. DeCoux's presentation is an effort to facilitate this broader perspective for those who wish to consider it, by considering the communications that might take place between a lawyer and his animal client. She proposes an imagined correspondence between a cow and the human lawyer whose advice and counsel she seeks. (It is possible that other animal clients will contact me before I submit my paper.) The use of the imagined correspondence device is a tribute to C.S. Lewis (The Screwtape Letters), and Mark Twain (Letters to the Earth).

Entre " objet " et " sujet ", le droit de la protection des animaux est-il véritablement porteur d'un nouveau paradigme?
Lyne Létourneau - Professeure, Département des sciences animales, Université Laval

The speech will develop the proposition that non-human animals can possess and exercise legal rights. This presentation is supported by the fact that the legal system already accommodates a number of animal interests within our criminal anti-cruelty laws and the civil trust laws. To make a more coherent package of all the animal related public policy issues, it is useful to acknowledge the existence of a fourth category of property, living property. This presentation will which animals should be focused upon, what some of the legal rights might be and how the traditional rules of property law will be modified to accommodate the presence of this new category of property.

A New Status for Animals: Living Property
David Favre - Editor-in-Chief, Animal Legal & Historical Web Center, Michigan State University College of Law

The existence of a strong correlation between violence to animals and violence to humans is well documented. One seminal study found that 70% of animal abusers had committed at least one other criminal offense and almost 40% had committed violent crimes against people. Additionally, when compared to their neighbours, those who intentionally abuse animals were five times more likely to commit crimes of violence against humans, four times more likely to commit property crimes, and three times more likely to have or develop drug or disorderly conduct records. What this demonstrates is a community safety issue impacting both humans and animals. Juveniles who are subjected to neglect and domestic violence are often themselves abusive to animals. Abusers often threaten and carry out acts of animal cruelty, taking advantage of a spouse and/or child's bond with an animal as a means of intimidation and control. Victims in abusive relationships often cite their concern over their animals' safety as a reason for not leaving their abuser. This presentation will survey the various studies that describe and highlight this correlation, as well as discuss novel legal and policy approaches being taken to address and help stem this widespread problem.

Session 2 - The Need to Protect Animals

Correlation Between Violence to Animals and Violence to Humans
Dana Campbell - Attorney, Criminal Justice Program, Animal Legal Defense Fund (ALDF)

The existence of a strong correlation between violence to animals and violence to humans is well documented. One seminal study found that 70% of animal abusers had committed at least one other criminal offense and almost 40% had committed violent crimes against people. Additionally, when compared to their neighbours, those who intentionally abuse animals were five times more likely to commit crimes of violence against humans, four times more likely to commit property crimes, and three times more likely to have or develop drug or disorderly conduct records. What this demonstrates is a community safety issue impacting both humans and animals. Juveniles who are subjected to neglect and domestic violence are often themselves abusive to animals. Abusers often threaten and carry out acts of animal cruelty, taking advantage of a spouse and/or child's bond with an animal as a means of intimidation and control. Victims in abusive relationships often cite their concern over their animals' safety as a reason for not leaving their abuser. This presentation will survey the various studies that describe and highlight this correlation, as well as discuss novel legal and policy approaches being taken to address and help stem this widespread problem.

The Law Protecting Animals: All About Enforcement
Ronald B. Sklar - Professor of Criminal Law, McGill University

Canada has a recently amended anti-animal cruelty act prohibiting the "wilfull" infliction of "unnecessary pain and suffering.". The provinces have animal welfare acts, as do the individual states in the United States, Canada's federal statute comes under the part of the Criminal Code dealing with "Wilful and Forbidden Acts in Respect of Certain Property." The notion that animals are property and the requirement of "wilful" infliction of "unnecessary" pain and suffering have inhibited prosecutions under the federal act. A previous attempted amendment of the federal act (which passed the House of Commons, but which died in the Senate) would have removed the act from it's current property crimes part of the Code to a section on crimes against public morality and would have added punishment for criminal negligence, a state of mind less onerous to prove than wilfullness, but would have retained the requirement that the pain and suffering inflicted be "unnecessary." As it stands, most enforcement proceeds in Canada under the provincial animal welfare acts. All enforcement, both federal and provincial, centers on the acts of individuals. No prosecutions under the act have been initiated against industrial, or factory, farms and the companies that ship animals across the country, and against animal research laboratories lacking humane animal conditions. The same holds true in the United States.

Legal Treatment of Animals in Times of Weather Disasters
Marsha L. Baum - Professor of Law, University of New Mexico

Farmed animals, companion animals, captive animals, and wild animals are all at risk during weather disasters. States in the U.S. have adopted various models and approaches to handling non-human animals in wildfires, floods, hurricanes, blizzards, and other weather events. This presentation will discuss the consequences of legal status as property and of legislation such as the PETS Act on non-human animals in times of disaster. Examples from the U.S. and Australia will be included.

Session 3 - The Extension of Fundamental Rights

A common ideal - An extension of rights - Emerging rights
Jean-Marie Coulon - Premier Président honoraire, Cour d'appel de Paris - administrateur, Fondation Ligue Française des Droits de l'Animal (LFDA)

I- From human rights to animal rights, a slow progress
A) Human rights in the 21st century: 1- A contrasted review - 2- A new issue
B) Animal rights, a new domain open to human rights: 1- A plural justification - 2- A global approach

II-The interaction of human rights and animal rights
A) The universal declaration of human rights: 1- A limpid doctrinal foundation - 2- An uncertain legal effectiveness
B) An effective legal personality: 1- A legal status for the animal - 2- A legal identity to define

Conclusion: An ethical codification

Animals and the Law: The Need for Reform
Tom Regan - Emeritus Professor of Philosophy, North Carolina State University

Originally presented in 1979, this presentation examines arguments, for and against, granting legal status and rights to nonhuman animals and asks, "In what ways, if any, have their legal status and rights changed during the last thirty years?"

Animals as Vulnerable Subjects: Beyond Interest-Convergence, Hierarchy, and Property
Ani B. Satz - Associate Professor, Emory University School of Law, Rollins School of Public Health

This presentation presents a new paradigm, premised on the equal protection principle, for the legal regulation of domestic animals: Equal Protection of Animals (EPA). EPA combines the insights of vulnerability theorists with the equal protection principle and capability theory, to create a mechanism for recognizing the equal claims of human and nonhuman animals to protections against suffering. Under such an approach, domestic animals, like humans, have claims to sufficient food, hydration, and shelter; bodily integrity (including avoiding pain); companionship; and the ability to exercise and to engage in natural behaviours. Existing animal welfare and anticruelty laws, despite their stated purposes, fail to adequately protect animals. This presentation identifies the ontology of the problem as interest-convergence, famously described by Derrick Bell in the desegregation context. The privileged (humans in this case) protect the disadvantaged (animals) only when their interests align. Because humans profit economically and socially from the exploitation of animals, interests often diverge. When this divergence occurs, all protections for animals are placed in jeopardy. Unlike protections for other disadvantaged groups, there is no constitutional or other legal floor guarding the basic liberties of animals. Interest converge results in what the speaker term "legal gerrymandering for human use," or the redrawing of the natural baseline of protections for animals, to further human use of animals. In addition to undermining fundamental protections for animals against abuse and suffering, legal gerrymandering creates inconsistencies that violate legal norms of precedent and procedure. Specifically, Ani B. Satz addresses differential treatment of animals of the same legal and species classes as well as different treatment of scientific evidence in the animal law as opposed to other legal contexts.

May 22 2009

Definition of Use and Exploitation Modes

Session 1 - Modes Which Integrate an Ethical Dimension

Les sciences vétérinaires au cœur du débat sur le bien-être animal
Éric Troncy - Professeur, Faculté de médecine vétérinaire, Université de Montréal

Veterinary medicine came to be, due to the need for Louis XV to promote the health of horses in his army (Bourgelat, 1762). In the Bourgelat pledge, any French veterinary diplomat pledges: "I promise and swear before the Council of the Order of Veterinarians to conform my professional conduct with the rules prescribed by the professional code of ethics and to observe in any circumstance the principles of correctness and of fairness". The professional code of ethics of the veterinary doctors of Quebec mentions, in its section V, the obligations towards animals. Yet the question is: is the veterinarian an expert of animal life and of animal welfare? The selection of candidates, the education of students and the role of veterinarians in our society tends to answer this question positively. However, the welfare of animals is a complex problem with important scientific, ethical, economical and political components. Through its stand, the veterinary community tries to bring answers based on scientific proof. Only, the factual proof of the welfare of wildlife, of domestic animals, of research or of animal production will bring credibility and recognition to these answers. Éric Troncy will elaborate a review of the current situation concerning the recognition and the alleviation of animal pain and of the human / animal relations in these different areas of practice. He will illustrate the necessity of actualizing the welfare of animal in each circumstance.

La recherche est nécessaire avant tout
Luc-Alain Giraldeau - Professeur, Département des sciences biologiques, Université du Québec à Montréal

The animals' quality of life is a preoccupation for society which is more and more present and which favours the implementation of more rigid norms, in order to increase the well-being of animals serving human activities. The use of animals for research and for education in Canadian universities is already regulated by the guidelines of the Canadian Council for the Protection of Animals. We agree that the animals used in the private industry, the food industry and the fishing industry must be the object of certain measures to improve their well-being. However, taking into account the diversity of these animals, how can we assure that the proposed measures will truly improve their well-being? Are the conditions of the well-being of a chicken similar to those of a bird or of a duck? What about those of a culture salmon? Before proposing expensive modifications do agricultural live-stock, we must answer these questions on well-being and begin scientific research. Luc-Alain Giraldeau briefly reviews the available research methods.

A Diagnostic and Intervention Tool for Dairy Farms Addressing Animal Comfort and Welfare to Encourage Producers to Meet Sustainable and Progressive Standards for Calf and Heifer Management
Elsa Vasseur

World-wide, there is growing concern about the welfare of farm animals. Besides, mortality and morbidity rates of dairy calves are high, which is costly for producers and an animal welfare concern. There is a need for interventions at the farm level to improve the welfare of calves, to improve animal well being, production sustainability and consumer assurance. The first step in our intervention strategy was to assess animal welfare risk factors in an epidemiological survey of Quebec dairy farms. From these results, we developed a diagnostic and intervention tool, which we tested in 28 Quebec dairy farms for feasibility, usefulness and repeatability. Voluntary improvements in animal welfare can be facilitated by educating producers and helping change their attitudes regarding animal welfare.

Session 2 - Modes Which Integrate an Environmental Dimension

New Paradigms in Animal Testing
Kathy Hessler - Professor, Director Animal Law Clinic (CALS), Center for Animal Law Studies, Lewis & Clark Law School

In the United States one of the premier scientific organizations is the National Academy of Sciences. This non-partisan scientific body recently published a report which calls into question the efficacy of non-mammalian animal testing. The report has been adopted by the Environmental Protection Agency and the National Institutes of Health, both government sponsored agencies tasked with protecting the environment and public health. Many advocates and scientists have questioned the validity of animals as appropriate models for testing solutions to, or prevention of, disease in humans. Additionally, scientists now question the narrow testing methodologies which do not take into account the complexity of the human organism. The NAS report discusses the weaknesses of certain animal testing and suggests it is time to change. Animal testing implicates more than scientific matters. There are also significant economic, international and environmental issues at stake in decisions about whether to continue, alter, or discontinue animal testing. This presentation will consider animal testing as it is conducted for food and product safety, or with regard to new toxic substances. It will address the recommendations of the NAS report and consider what legal changes are required to implement the findings of the report. And it will discuss the implications for animals themselves as animals, as well as members of the legal and social systems.

Owning What You Eat - Property, Animals and the Factory Farm
David N. Cassuto - Professor of Law and Director, Brazil-American Institute for Law and Environment (BAILE), Pace University School of Law

The internationalization and industrialization of food production has wrought environmental havoc while further marginalizing communities already struggling to be heard. Amid the social and environmental degradation, little has been said or about the most impacted community of all - the food itself. Discussions of animal treatment within the global food industry often devolve into discussions of animal "rights." Such detours needlessly distract from an ongoing social catastrophe that is predicated in and reliant on an unworkable property relationship with animals. This presentation attempts to reframe the global food debate in a manner that encompasses our obligations to and the needs of the billions of animals enslaved within an industrial food apparatus. Industrial agriculture has refashioned animal husbandry into a mechanized process that ignores historic methods of human/nonhuman animal interaction (methods that evolved over millennia) as well as ethical mores that countermand the shibboleth of efficiency. Those methods - cloaked in the mantle of efficiency - have become near intractable, despite clear evidence of their unsustainability and unworkability. This latter phenomenon of intractability results from a second underlying flaw with the role of efficiency in society. Not only is it an amoral concept devoid of any normative component, in the environmental arena, it also excludes externalities from its cost/benefit calculus. This makes any cost-based risk equation potentially unsound and misleading. The upshot of this double mistake is that the prevailing mode of governing human/animal interaction (among other environmental relationships) is inefficient and ethically bankrupt.

Animal Lovers and Tree Huggers Are the New Cold-Blooded Criminals: Examining the Flaws of Ecoterrorism Bills
Dara Lovitz - Esquire, Adjunct Professor of Animal Law, Temple University Beasley School of Law

Under eco-terror laws, the industries that profit from the exploitation of animals, and specifically engage in such acts as branding, tail docking, teeth cutting, debeaking, castration, confinement, scalding, mutilating, chemical poisoning, skinning, and dismembering, are considered the 'victims' while the animal advocacy organizations, who seek to rescue the suffering animals or even educate the public about the horrors that take place behind the opaque walls of these industries, are considered the 'terrorists.' In theory and in application, then, these flawed laws deflate the constitutional rights and silence the voices of those who speak out on behalf of the otherwise 'voiceless' animals.

Development of New Approaches Stemming From Recognition and Respect of the Animal Condition

Feminism, Intersectionality and the Capabilities Approach for Animals
Maneesha Deckha - Associate Professor of Law, University of Victoria

Animal law scholars have recently grappled with how to rework, engage or dismantle the current property paradigm for nonhuman animals. Some insist that a property status is incompatible with a legal respect for animals. Other scholars, mindful of the current reverence for property, argue that some improvements, though not complete equality or dignity, are possible in a property paradigm. Some contend that legal terminology and categories is not important to the debate while others have identified Rawlsian liberalism and its attendant rights focus as problematic and a greater impediment to animals than their legal status as property. While this recent debate among prominent legal theorists has been illuminating and important, it has not reflected intersectional feminist dimensions to any great measure. Feminist critique in posthumanism has emerged primarily through ecofeminist philosophy that has highlighted the structural discursive similarities and interconnections among racism, sexism, and speciesism. These feminist dimensions are important to engender posthumanist legal analysis that includes the claims of marginalized human groups, which entwine with those of animals, and develop a posthuman framework that is non-imperial and sensitive to multiple forms of oppression. One partial exception to this intersectional feminist absence in the recent "property" debate may be its circumvention by the prominent feminist philosopher and legal theorist Martha Nussbaum. She has championed a seemingly "property-neutral" capabilities approach, drawn from human development theory, to guide our interactions with animals. Rather than a rights-based model, or one that focuses on the property status or personhood of animals, the capabilities approach aims to promote animal flourishing through the fostering of certain capacities. The presentation provides an intersectional feminist analysis of this approach, revealing its drawbacks as a juridical instrument to fully advance animals' ethical status, by working with Nussbaum's ownexamples of the capabilities approach in action. The presentation offers recommendations to recuperate the capabilities approach explaining, in the process, why a non-property legal paradigm is essential for the "animal flourishing" Nussbaum seeks. The presentation thus contributes intersectional feminist insight to the conceptualization of a new legal category for animals.

Progress of the Nonhuman Rights Project
Steven Wise - Professor of Law, Harvard Law School

For twenty five years, Steven M. Wise has used books and law review articles to construct procedural and substantive arguments intended to lead to common law fundamental rights for at least some nonhuman animals. In 2007, the Center for the Expansion of Fundamental Rights Inc., of which Wise is president, began its "Nonhuman Rights Project", calculated to implement these arguments in an American state court. With the help of numerous law students and lawyers, it has begun performing traditional "legal methods" (law library) research on the substantive law of every American jurisdiction in two-dozen relevant areas, ranging from the common law of habeas corpus to how receptive a state's high court has traditionally been to changing the common law, in order to ranking each American jurisdiction in terms of its favorability as a forum for bringing appropriate test cases. It has also begun performing social science research, using statistical tools to help predict the voting behavior of the judges who sit on the high courts of the most promising forums identified by legal methods analysis, and to create algorithms appropriate to sophisticated computer analyses of judicial voting, and other behaviors, that may influence case outcomes. When the best jurisdiction is chosen, the "Nonhuman Rights Project" will begin working with knowledgeable local trial and appellate lawyers to draft the proposed lawsuit, file and litigate the suit, and win the appeal.

The Application of an Animal Theodicy to Animal Law
Barbara Gislason - Attorney at Law

The purpose of this presentation is to look at animal law through selective lens, beginning with a discussion about theodicy and in particular, an animal theodicy. Barbara J. Gislason would conclude with an exploration concerning the transformation of belief systems. Barbara J. Gislason will describe the pilot study I conducted involving 38 judges and referees, utilizing students from three law schools. In particular, she will speculate about the responses received where judicial officers, unprompted, volunteered that they had or would apply what they considered to be the application of Judea/Christian laws to animal cases. Next, Barbara J. Gislason will briefly introduce theodicy as it pertains to humans, including how people with varying religious beliefs have tried to reconcile ideas about how a good and omnipotent god could permit innocent human suffering, then briefly address how the subjects like original sin and free will pertain to this analysis. This presentation will only highlight a few of the arguments well known in theodicy discussions, because our focus is on the application of theodicy to nonhuman animals, some of which we now understand have extraordinary capabilities, like the theory of mind. She will give examples.

Student Seminar

Carol Morgan - Veterinarians and the Necessity of Pain and Suffering
Canadian legislative and regulatory language guiding the oversight of animal care, use, and treatment uses terms such as unnecessary pain and suffering. The notion of unnecessary pain and suffering implies that some types of pain and suffering are necessary. The negotiation of the necessity of pain and suffering combines both scientific and ethical components. Veterinarians are seen as experts in the field of animal welfare and they are frequently asked to provide advice about the appropriateness of instances of animal care, use, and treatment. However, veterinarians differ significantly in their views about what constitutes pain and suffering. They also sometimes conflate ethical aspects about the necessity of pain and suffering with scientific ones, potentially overstepping their area of expertise. This paper presents sociological data that will explore veterinarians' views about pain and suffering and the impact these views can have on animals.

Maria Golarz - A Comparative Analysis Behind the Interpretations of "Normal Farm Practices"
Farm operations must adhere to 'normal' or 'generally accepted' industry standards, although the appropriate guidelines are non-binding and the definitions contained within them are apt to change with enough lobbying. Most statutes set out a vague definition without further prescription. 'Acceptable customs and standards' are generally understood to be the manner in which other similarly situated operations perform. It does not have to be the best or most sound practice available. And as more and more farms convert into intensive operations, it is these intensive practices that will become the norm. In a recent U.S. decision, agricultural regulations were challenged as creating vague and broad category of exemptions by referring to 'routine husbandry practices' as generally acceptable. It is interesting to note how the definition is undergoing challenge and reform in other jurisdictions. It is unclear how the Supreme Court of Canada would approach such a challenge; nevertheless, the courts may serve as a favourable avenue for resolving such disputes. This presentation will explore comparative legislation and interpretation with regards to 'normal farm practices', specifically as it relates to farm animal cruelty.

Cara Hunt - Vegan Values, Religious Rights: A Cultural Critique of Entrenched Ethics
Ethical Veganism extends beyond simply a dietary preference. It is a set of beliefs and practices derived from ethical principles whose underlying value is faith in an interconnectedness of all living beings-human and nonhuman. Ethical Veganism is an emerging, principled philosophy presenting social dilemmas much like the predicaments found in freedom of religion jurisprudence. The parallel between Ethical Veganism and freedom of religion is found in the value informing both: a respect for faith as a part of well-being. Both religious adherents and Ethical Vegans hold beliefs that are rooted in faith consciously lived through reason. Both groups face potential discrimination while exercising their faith. Dominant discourse often silences vegans and veganism generally as demonstrated overtly in degrading pejorative language used in the public domain and subtly through the creation of a universal social taboo. Freedom of religion is a fundamental freedom entrenched in both the Canadian Charter of Rights and Freedoms and the United States Constitution. Yet, no such protection is extended to Ethical Veganism. Allowing Ethical Veganism to fall within the ambit of religious freedom would be a positive step towards remedying discrimination.

Closing Speeches

Joël Bergeron - Président, Ordre des médecins vétérinaires du Québec (OMVQ)
Martine Lachance - Professor of Law, University of Quebec in Montreal (UQAM) - Director, International Research Group in Animal Law (GRIDA)

GRIDA’s goal is to define a modern, legal approach to issues of animal security and welfare that combines its purpose and the appropriate juridical instruments

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