Animal Rights in the Human Legal System

By Ken Strutin, Published on February 20, 2012

The struggle for human rights has gone on for ages,1 but the story of animal rights2 has only begun to be told.3 There are many facets to this emerging area of law, which mediates the tension between human needs and animal welfare.4 Its jurisprudence takes into account the various roles that society has assigned to animals, e.g., companion, servant or object, as well the implications of their participation or use in different sectors of modern life. Some of the key legal areas of confluence include: (1) animal rescue5; (2) protective legislation6; (3) law enforcement7 and forensics8; (4) elder care and end of life issues9; (5) abuse registries10; (6) environmental hazards11; (7) witness assistants12 and therapeutic and service roles13; and (8) development of advanced degrees and specialization in animal law.14

Our legal system must legislate and adjudicate for animals as well as human beings15 Thus, the evolution of animal rights might have a corollary impact on human rights.16 For example, a statute interdicting animal cruelty can rest on its own merits17 or on its implications for human behavior.18 Although animals have no vote in the human management of their affairs, their place in our laws is undeniable.

This article is a compilation of new and notable legal resources on animal rights and welfare.








1 See generally Steven M. Wise, Legal Personhood and the Nonhuman Rights Project, 717 Animal L. 1, 1-2 (2010)("The defining moment for the eighteenth century slave James Somerset was when he became legally visible. He was a legal thing when he landed in England in 1769, having been captured as a boy in Africa, then sold to a merchant in Virginia, Charles Steuart, for whom he slaved for two decades. As a legal thing, James Somerset existed in law for the sake of Charles Steuart, for legal things, living and inanimate, exist in law solely for the sakes of legal persons. They are invisible to civil judges in their own rights. Only legal persons count in courtrooms, or can be legally seen, for only they exist in law for their own benefits. Legal personhood is the capacity to possess at least one legal right; accordingly, one who possesses at least one legal right is a legal person. James Somerset's legal transubstantiation from thing to person at the hands of Lord Mansfield in 1772 marked the beginning of the end of human slavery. Persuading an American state high court to similarly transform a nonhuman animal is a primary objective of the Nonhuman Rights Project.").

2 The resources appearing in this article fall under the rubric of animal law

See Animal Law Program (ALDF)(Animal law is a combination of statutory and case law in which the nature – legal, social or biological – of nonhuman animals is an important factor. Animal law encompasses companion animals, wildlife, animals used in entertainment and animals raised for food and used in research. Animal law permeates and affects most traditional areas of the law – including tort, contract, criminal and constitutional law."). Michael Schau, Animal Law Research Guide, 2 Barry L. Rev. 147, 148 (2001)(describing difference between animal rights, concern the limits of using animals and their inherent rights as sentient beings, and animal welfare, focusing on the treatment and care of animals).

3 2 Barry L. Rev. at 147 ("The body of law governing our use of and relationship to animals is one of the fastest growing areas of legal studies. Despite the existence of federal statutes concerning animals, animal law did not gain significant notice in legal education programs until the 1980's. Today the subject is taught in several law schools, and leading animal law experts have published a casebook. Animals affect many areas of American life, from the food we eat to the clothes we wear. Animals participate in many aspects of human life, including our entertainment, gaming, hunting, fishing, medical research, farming and companionship. Law regulates much of this participation; for example, migratory bird statutes and local gaming laws probably cover the wild birds we see in our backyard. Animal law is a combination of statutory and decisional law in which the legal, social or biological issues concerning animals are an important factor.")

See generally Animal Law Issue, N.J. Law. Mag., Aug. 2005.

4 See Kathy Rudy, A Change of Heart, Chron. Higher Ed.., Nov. 27, 2011 (discussing the complex views of animal rights advocacy and the need for recognizing the affects of humanity in the interconnectedness between humans and animals).

5 See, e.g., Shapiro v. City of Glen Cove, 2005 U.S. Dist. LEXIS 43276 (E.D.N.Y. May 5, 2005)("Shapiro has suggested no 'reasonable legal alternative' to the de minimis trespass committed by Horvath, and the court finds none. She believed that an animal might be in need of immediate help, and looked in the building to see if that was the case. She did not exacerbate the trespass by entering the building, but immediately turned to the reasonable legal alternative of calling the Animal League and the police. Under these circumstances, the court finds that the trespass was justified as a matter of law.").

6 See, e.g., Bill Expands Animal Cruelty Offenses, LaCrosse Tribune, Oct. 30, 2011 ("A Republican legislator has introduced a bill that would allow prosecutors to charge anyone who causes great bodily harm to an animal with a felony. Under current Wisconsin law, anyone who mutilates, disfigures or kills an animal in a cruel manner is guilty of a Class I felony punishable by up to three-and-a-half years in prison and $10,000 in fines."); Calif Animal Welfare Laws Evolve, Face Challenge, Seattle Post-Intelligencer, Nov. 13, 2011 ("[T]he California legislature has passed or altered 30 laws to improve the lives of animals — from sharks to dairy cattle, even animals hunted for sport. And it has banned the butchering of downer livestock — animals too sick or too weak to walk — a measure the justices seem inclined to overturn.")

But see Denise Lavoie, Animal Rights Activists Challenge 2006 Federal Law, Salon, Dec. 15, 2011 ("Five activists represented by the Center for Constitutional Rights filed the lawsuit in federal court in Boston, asking that the Animal Enterprise Terrorism Act be struck down as unconstitutional because it has a chilling effect on lawful protest activities.").

7 See, e.g., John Caher, Novel Settlement Expected to Benefit County, SPCA , N.Y.L.J., Oct. 31, 2011 ("An upstate SPCA has apparently worked out a unique settlement in which an animal-loving attorney who showed up on the doorstep of the county jail with 25 cats becomes a ticket-writing special deputy sheriff, and the SPCA collects half the ticket revenue."); Debra Cassens Weiss, Yes, the Government Is Forcibly Implanting Microchips; 6th Circuit Allows 'Dog-gonest' Suit, ABA Journal Law News Now, Nov. 8, 2011.

8 See Animal CSI (ASPCA Animal Lessons)(includes list of resources); Kristen Gelineau, Use of Animal Forensics on the Rise, USA Today, May 28, 2007.

9 See John Kass, Boomers Plan on Long-Term Care -- for Pets, Chi. Trib., Dec. 19, 2002 ("New York veterinarian Robert Reisman is involved in animal abuse cases, and works closely with the American Society for the Prevention of Cruelty to Animals. When does keeping an aging pet alive become cruelty to animals? 'If you're saying it's abusive for an animal to live in that state, to some extent you have to think it's abusive for a person to have to live in that state,' he said. 'I mean, there's a national debate about that.' It was stunning because he wasn't being flip. The vet sincerely, calmly expressed his belief, equating the life of an animal to the life of a human being. I'm sure he's not alone."); Debra Cassens Weiss, NY Animal Lovers Can Once Again Be Buried with Pets, Thanks to Lawyer's Effort, ABAJ Law News Now, Dec. 20, 2011.

10 See Steve Yoder, Tracking Animal Abuse (and Abusers) on the Web, Crime Rep., Jan. 16, 2011 ("The growth of on-line public registries and tracking sites of animal abusers could reduce the number of crime victims—both human and animal—say activists. But researchers who examine sex-offender and other similar criminal registries aren't so sure. Shon Rahrig once left a cat with a broken jaw and several broken bones. But thanks to a website called Pet-Abuse.com, he will find it hard to get away with abusing an animal elsewhere in the U.S. ever again.")

See, e.g., Samantha Brix, Suffolk Approves Animal Abuse Registry Bill, Riverhead News-Review, Oct. 12, 2010 ("The Suffolk County Legislature unanimously approved a bill Tuesday to create a law establishing a county registry for animal abuse offenders, the first of its kind in the nation. The new law allows the county to create a public registry of convicted animal abusers, in which the names, aliases, addresses and photographs of animal abusers would compiled in a searchable database, much like the state's sex offender registry. The convicted abusers would pay a $50 annual fee for upkeep of the registry, and those who fail to register would be charged $1,000 or face jail time.").

11 See, e.g., Nuclear Accidents and the Impact on Animals (IFAW 2011); Jenny Marder, What's the Fallout for Dogs Near Fukushima?, PBS Newshour, Nov. 10, 2011.

12 See Courthouse Dogs; Marianne Dellinger, Using Dogs for Emotional Support of Testifying Victims of Crime, 15 Animal L. 171 (2009).

13 See Animal-Assisted Therapy (Wikipedia).

14 See, e.g., World's First Advanced Degree in Animal Law (Lewis & Clark Law School).

15 See, e.g., DOJ Challenges Ruling That Restricted FDA Enforcement Authority, Blog of Legal Times, Nov. 11, 2011("The U.S. Justice Department's consumer protection branch will ask a federal appeals court to overturn a judge's ruling in Florida that restricted the enforcement power of food and drug regulators to punish pharmacies that compound animal medication. The department's legal team filed a notice of appeal Thursday in U.S. District Court for the Middle District of Florida, where a judge in September rejected the government's effort to shut down Franck's Lab, Inc. over allegations the pharmacy was skirting food and drug laws in manufacturing new animal drugs.").

16 See Stephen A. Plass, Exploring Animal Rights as an Imperative for Human Welfare, 112 W. Va. L. Rev. 403 (2010).

17 See Bueckner v. Hamel, 886 S.W.2d 368, 377-378 (Tex. App. Houston 1st Dist. 1994) (Andell, J., concurring) ("Scientific research has provided a wealth of understanding to us that we cannot rightly ignore. We now know that mammals share with us a great many emotive and cognitive characteristics, and that the higher primates are very similar to humans neurologically and genetically. It is not simplistic, ill-informed sentiment that has led our society to observe with compassion the occasionally televised plights of stranded whales and dolphins. It is, on the contrary, a recognition of a kinship that reaches across species boundaries. The law must be informed by evolving knowledge and attitudes. Otherwise, it risks becoming irrelevant as a means of resolving conflicts. Society has long since moved beyond the untenable Cartesian view that animals are unfeeling automatons and, hence, mere property. The law should reflect society's recognition that animals are sentient and emotive beings that are capable of providing companionship to the humans with whom they live." (footnotes omitted)).

18 See, e.g., Frank R. Ascione, Animal Abuse and Youth Violence (2001); The Animal Abuse-Human Violence Connection (PAWS).