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The Renaissance of Animal Rights: Tracing moral footprints into legal imprints

Mandavi Banerjee, Student, KIIT School of Law, Bhubaneshwar

Introduction: Moving from Ego to Ecocentric

In the 21st Century, the paradigm shift of anthropocentrism to ecocentrism seems most possible. Now is the time when the focus can be lifted from egocentric approaches and rather put on ecocentric approaches. This late realisation of the environmental crisis has set off a new wave of environmental ethics. The rationale behind such a drastic step is the value-shift which has taken place from human to non-human lives. To put that into perspective, Naess stated that,

The well-being of non-human life on Earth has value in itself. This value is independent of any instrumental usefulness for limited human purposes.”[1]

However, taking into account the whole ecological spectrum would inordinately widen the scope, and in turn, miss the focal point. The main point is that since time immemorial, there has been an interconnection between animals and humans which has gone unnoticed by many if not all, under the legal perspective. Nevertheless, history would time and again prove that such a connection is imminent. Starting from the very roots of the evolution of the human race, Darwin in his book the “Descent of Man” states that the behaviour of the human race can be found emerging from that of other animals. The only question which crops up from such emergence is where does the moral sense lie between the two? Stemming from this question, one could say that we need to find a moral baseline to substantiate the relationship between humans and animals. Till date, such a possibility of drawing the line between the two on moral grounds has been refuted on several times, if not ethically, even sociologically.


Moral Baselines: Abolitionist to Duty Based Approach

The contradictory position of morality within the spectrum of animal rights was rather simplified and answered by Tom Regan in his book “Defending Animal Rights”. Looking at Regan’s, one can come to only two possibilities which are: morally curtailing human freedom with respect to its relations with animals, either or looking at the extent of such curtailment. Moreover, this, in turn, leads to two main views which are direct duty views and indirect views. This leads to an acknowledgement of a moral standing between them. This, in turn, faces a number of obstacles which comes from the approach one must take to acknowledge such a standing, that is the abolitionist, reformist and the status quo views of Regan. Looking at Regan’s point of views on animal rights, his approach was primarily an abolitionist one: any exploitation or ill-treatment of animals to satisfy human interests should be abolished although biological altruism has given place for Regan’s harm principles: worse-off principle and miniride principle. The miniride principle tells us that when each individual would suffer equal harm, then we should seek to prevent the greater number of individuals from suffering the harm. The worse-off principle tells us that when some individuals would suffer greater harm than others, then we should seek to prevent a greater harm, regardless of the number of individuals who will suffer each.[2] Since the seriousness of the harms is directly effectual to the benefits which the humans gain out of it, this was a stark contrast from Peter Singer in his book “Practical Ethics” whereby it was seen that he stressed on moving away from the philosophical connotations of morality, and edging towards a more hedonistic structure. Singer emphasised on the practicality of the structure, rather than just formulating theoretical concepts. Singer stresses on deontological approaches, such as rights approaches, as compared to the Ethical Theory and Animal Rights put forward by Regan. His concept is against the archaic meaning of consequentialism and provides for justifying the means rather than just the ends. One can even say that he has provided a foil over the consequentialism, and rather modified it. The relevancy of the consequences mattered with respect to animal rights. Looking to benefit both humans and animals, the desirability of the consequences will be taken into account. This utilitarian outlook of Singer gave rise to the welfare position of animal rights. To put it in words, Singer states his utilitarian theory as,

The classical utilitarian regards an action as right if it produces as much or more of an increase in the happiness of all affected by it than any alternative action, and wrong if it does not”.[3]

This was a way more realistic solution since absolute abolition was not possible due to the existing moral paradoxes and orthodox differences between humans and animals.

In recent times, new questions have cropped up. This is to categorise animals and humans in different groups based on their inevitable interactions with one another, and the newest concept being vulnerability. With the new era, came new concepts which were put forward by Sue Donaldson, Will Kymlicka in their book “Zoopolis: A Political Theory of Animal Rights”. Once that is established, we can move to the reality of the prevailing conditions of animals rights in the world today. Zoopolis states that since there has been no fundamental change following the welfarist or ecological approach, a new moral framework is needed. For this, the commonality between the two should be realised, and the differences should be appreciated. Zoopolis mentions of inviolable rights which would cater not only to human interests but also for the vitality of the ecosystem. This concept of inviolable rights is against the utilitarian notions of Singer.[4] Slowly we can see how there has been an ongoing evolution of animal rights. With such changes, what can be meant for us is that there has to be a connection made between the impulses to stop animal cruelty and consumerist pressures of the human race. The political marginality of these issues has to be questioned- the classical animal rights theory has stressed mostly on the list of negative rights, leaving behind the positive obligations we have towards the animals. Relational duties should be the need of the hour; this is because of the co-existence and the peace which is maintained between animals and humans on Mother Earth. This provides alternative answers to the unanswered question of whether animals can be given fundamental rights. The reason why it has been important to show the gradual change in the outlook of the animal rights movement is that to this day, it holds a bleak stance in the legal environment. It has not been able to make the dent in the environment, to such an extent to give rise to lasting legal regulations.


Judicial Precedents: Pathway to Legal Personhood

The merciless slaughtering for animals cannot be used as a benchmark for the protection of animals. Is the right to life the only need for an animal? This can be retorted by the landmark case of Animal Welfare Board of India vs A. Nagaraja and others whereby where the meaning of “life” was expanded.[5] The Brambell’s Five Freedoms for the first time was considered and given constitutionality with referring to S.3 and S.11 of the Prevention of Cruelty Act. More so, the Tamil Nadu Regulation of Jallikattu Act was deemed unconstitutional and hence became repugnant. It was anthropocentric legislation, which got override by ecocentric legislation. This was all done so as to elevate the status of statutory animal rights to a fundamental rights standing. This has been mentioned before in the case of N.R Nair vs Union of India[6]. In this case, it was stated that legal rights should be extended to the fundamental rights status. What needs to be noted here is that the right to life includes right to dignity and honour; such a view has been seen in the mentioned cases. However, to accord rights to animals, the concept of legal personhood comes to the forefront. Recent developments have proved how this concept is being more accepted in India. With the most recent case of Karnail Singh and others vs State of Haryana[7] in 2019 which considered the whole of the animal kingdom starting from amphibian to aquatic animals as legal entities. In the judgement, it has been stated that there is no limit logically which would prevent the interpolation of human relations with animals in such a way so as to give them a legal personality. With the help of Singer in his book “Animal Liberation” states that the inability of non-humans to adhere to rules of the road, choose intelligently among political rivals, or do calculus are all irrelevant to the basic notion of personhood.[8] Not just Singer, but the Lockean theory of person gives proof to Singers evidence of personhood. Even then, animals are deemed to have inferior rationality than effectively functioning human being; the doctrine should of parens patriae should be applied in that case. Starting from Regan’s direct duty views to relational duties in Zoopolis, animal rights has come a long way. What can be understood from all this is that the rights approach should be replaced by a positive duty-based approach under the shield of the constitutionality of Fundamental Duties under the Indian Constitution.

Not just on national grounds, but animal protection has found its place in the international environment. Long before, it has been recognised in the case of European Communities case under WTO.[9] This just shows how the World recognises the need for animal protection in transactional human activities. The landmark judgement in the case of Whaling in the Antarctic[10] where there was a paradigm shift into animal protection, instead of just focusing on the environmental risk assessment factor. This case showed the significance of scientific fact to justify animal protective norms. In this way, the prospect of giving binding legal rights to the animals seem plausible to an extent.


Conclusion: Mother earth is a Home for All Beings

In the 21st Century, the ground is set for widening international consciousness, a place for global animal law under the umbrella of customary international law. Giving a scientific basis instead of an ethical or philosophical one helps get a more pragmatic understanding in today’s day and age. Talking of which widespread research is being conducted to justify the claims against animals for COVID-19. Indeed, COVID-19 is striking fear in the hearts of millions, but that can prove to be no ground for targeting animals. COVID-19 originates from animal to human transmission of the virus, but this can only be possible under one condition-with human intervention. Zoonotic spillover is possible when there has been ecological mutation, which takes place when: animals are under duress, they adapt to those unhygienic conditions, and such can lead to the intermingling of the genetic code for the better or for the worst. With how this all started the Dwarnian notion, has taken a revolutionary change, where it is survival of the fittest-where adaptability to survive under those pressures can be seen in instances of COVID-19 origins. In the end, this Eternal Treblinka has to be stopped, and what has to emerge is a home for all. Patterson states that the Holocaust shows how, due to one’s superiority, the home of the inferiority was snatched away.[11]Animals should not be protected in human society, but rather they should be protected from it.

[1] Arne Naess, “A Defence of the Deep Ecology Movement”, Environmental Ethics (1984), p.266 [2] L W Sumner, “The Case for Animal Rights by Tom Regan”, Noûs Vol. 20, No. 3 (Sep., 1986), pp. 425-434, Available on: https://www.jstor.org/stable/2215309 (Accessed: 01-05-2020 18:29 UTC) [3] Peter Singer, “Practical Ethics”, Cambridge University Press, 2nd Edition (1993) pp. 3 [4] Sue Donaldson, Will Kymlicka, “Zoopolis: A Political Theory of Animal Rights”, Oxford University Press (2011) pp. 263-264 [5] Animal Welfare Board of India vs A. Nagaraja (2014)7SCC547 [6] N.R Nair vs Union of India (2000) (2000) SCC Ker 82 [7] Karnail Singh and others vs State of Haryana (2019) SCC Online P&H 704 [8] Gary L. Francione, “Animal Rights Theory and Utilitarianism: Relative Normative Guidance”, Michigan State University Animal Legal and Historical Centre (1977) Available on: https://www.animallaw.info/article/animal-rights-theory-and-utilitarianism-relative-normative-guidance (Accessed on: 10-05-20 15:35 UTC) [9] European Communities- Measures prohibiting the importation and marketing of Seal Products, Reports of the Panel WT/DS400/R (25th November 2013) [10] Whaling in the Antarctic (Australia vs Japan: New Zealand Intervening) (2014) Judgment, I.C.J. Reports, p. 226 [11] Charles Patterson, “Eternal Treblinka”, Latern Books (2002) pp. 29-31

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