The evolution of animal protection law will not map onto the binary logic of the welfare/rights-dualism, in which AR (Animal Rights) figures as a temporal successor and replacement of AWL (Animal Welfare Law). Rather, the more likely and practicable trajectory will be one that echoes the development of IHL (International Humanitarian Law) and HR (Human Rights) – one in which AWL and AR co-exist and co-evolve side by side, since both continue to address different realities and serve different functions. For example, the analogy with the law of war may prompt the adaptability and utility war-related concepts, such as the state of 'belligerent occupation' (e.g. in cases of human encroachment on wildlife habitat), or the possibility of 'humanitarian intervention' (e.g. in cases of systematic violations of animal rights) or 'liberation wars.'
SASKIA STUCKI: The legal protection of animals has so far been monopolized, and governed virtually exclusively, by AWL (Animal Welfare Laws). This has proved to be problematic, for it leaves a significant animal protective gap. As the analogy with the law of war has illustrated, AWL functions as a kind of warfare law that regulates and humanizes the ubiquitous war on animals, but fails to provide a normative mandate for protecting animals from and beyond the presupposed war. In order to fill this legal lacuna, this article advocates restructuring and complementing the corpus of animal-protective law in the image of the human-protective triad jus in bello – jus contra bellum – human rights. It proposed and outlined the shape of an expanded, tripartite animal protection law, consisting of three distinct yet complementary legal regimes: (1) AWL, as a pragmatic wartime regime governing only exploitative human-animal relations; (2) a jus contra bellum, working to prevent the war on animals and simultaneously creating the peacetime conditions under which AR (Animal Rights) can flourish; and (3) AR, as an aspirational peacetime regime governing, primarily, harmonious human-animal relations and co-applicable, to a lesser degree, in exploitative situations.
Jointly, the interplay of these three complementary regimes is able to create a comprehensive corpus of law relating to the protection of animals in war and peace. Indeed, considering that AR (originally conceived for justice-based, harmonious relations) is as conceptually ill-suited to manage the ugly reality of war as AWL (originally conceived for violence-based, exploitative situations) is incapable of transcending it, such a complementarity-based approach compellingly suggests itself as the best way of operationalizing a more concerted legal protection of animals in, from, and beyond war.
The tripartite framework developed here offers a more nuanced, both ambitious and realistic model for legal animal protection. By pushing the boundaries of the simplistic welfare/rights-framework, it opens new horizons for both animal law scholarship and reform. For one thing, the novel outlook on the nature and limits of AWL as a wartime regime, and its relationship of complementarity to AR as a peacetime regime, gives much-needed impulses to overcome the rigidity of the traditional welfare/rights-dualism. The relationship of IHL (International Humanitarian Law) and HR (Human Rights) serves as a powerful reminder that complementarity can become the new orthodoxy as formerly dichotomized legal regimes converge, and thus presents a convincing model for shaping the evolving relationship of AWL and AR. Furthermore, the complementarity approach is able to defuse two persistent concerns voiced on both sides of the welfare/rights debate.
First, this article dismantled the frequently held view that AWL is a mere tool in the service of exploiting animals. While this article has certainly stripped AWL of its humane luster, it has shown that AWL is neither completely useless nor illegitimate. As a wartime regime, AWL is ugly but necessary – but also insufficient as the only (or principal) animal protective body of law. On the other side, the idea of AR has so far been unable to shake off its stigma of quixotic idealism. By framing AR primarily as a peacetime regime, this rights idealism (as is also inherent in HR) can be positively reclaimed and asserted as a necessary component of an aspirational animal law of peace. Moreover, understanding AR as complementary, rather than as an outright alternative, to AWL makes their legal institutionalization more palatable in the foreseeable future. The complementarity approach may therefore convince both AWL proponents of the added value of instituting idealistic AR, and AR proponents of the factual necessity of retaining pragmatic AWL regulation, by facilitating a mutually enriching co-existence of these two legal regimes.
In terms of legal reform, this article projects that the evolution of animal protection law will not map onto the binary logic of the welfare/rights-dualism, in which AR figures as a temporal successor and replacement of AWL. Rather, the more likely and practicable trajectory will be one that echoes the development of IHL and HR – one in which AWL and AR co-exist and co-evolve side by side, since both continue to address different realities and serve different functions. Indeed, in view of the incipient emergence of judicially recognized AR, the envisioned scenario in which the legal protection of animals is dually governed by AWL and AR may be imminent. The complementarity approach thus offers a plausible account for explaining and guiding the (rudimentary) parallelism of AWL and AR as it is already unfolding in legal practice. Complementarity precisely means that despite the existence of AWL, and the persistence of institutionalized animal exploitation, AR can develop in parallel as an additional, more ambitious layer of animal-protective law. At the same time, the analogy with the law of war emphatically suggests that animal law reform should prioritize establishing and expanding on prohibitive elements, which create and safeguard the very conditions under which AR can be (more fully) realized. The formation of a proper jus contra bellum and of an animal law of peace will thus be pivotal, whereas (only) to the extent that these war-preventative efforts fail or prove to be futile, there continues to be a simultaneous need for further improving and “humanizing” the second-best AWL.
Lastly, this article advocates a paradigm shift in animal law – a departure from the old (and deadlocked) ways of thinking about animal protection, welfare, and rights, and an invitation for scholars to embark on new avenues and explore a multitude of animal protective instruments, in order to furnish a more complex and diversified toolbox for legal animal protection. This article marks but a first step in rethinking animal law through a cross-comparative lens, and opens up many new vistas for future research. For example, the analogy with the law of war may prompt further reflection on the adaptability and utility of other war-related concepts, such as “peace-building,” “transitional justice” or “jus post bellum,” the state of “belligerent occupation” (e.g. in cases of human encroachment on wildlife habitat), or the possibility of “humanitarian intervention” (e.g. in cases of systematic violations of animal rights) or “liberation wars.” Moreover, other, somewhat related analogies deserve closer attention and further exploration. Notably, comparative analyses with slave law (the legal regulation of slavery prior to its abolition) and death penalty law (requiring that capital punishment be executed in a humane manner not causing unnecessary pain and suffering) promise to yield fruitful insights for animal law.
The common theme linking these diverse areas of law is the legal regulation and humanization of institutionalized violence. While this article started out by noting the common intuition that the mass slaughter of humans in exceptional times of war and of animals in ordinary times of (ostensible) peace must not be compared, this view now appears thoroughly misplaced. Rather, it may very well be the case that human wars and the war on animals are not only comparable in terms of their legal framing, but, on a deeper level, connected through interlocking mechanisms of violence.206 Cultivating a cross-comparative mindset toward the legal regulation of collective violence might, then, have a cross-fertilizing and mutually reinforcing effect on the progressing humanization of both animal-protective and human-protective laws. Until such time when slaughterhouses and battlefields may be a thing of the past, and humanizing the inhumane will no longer be necessary. SOURCE…
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