l Deborah Cao • Steven White More infonnution obout this series 01 hUp:/fwww.springer.comlseries/78S8 l Editors \ and Welfare - International Perspectives

1 I I

\ ~Springer •

Editors Contents O.:boroh Cao Stev.:n While Law Fulures Centre Gri!Tllll l..a1v School Griffilh Univcr:;iw GriffiO\ Universi1y Brisbane. Qt.D. Au•tr:ilia Brisbllne. Qt.D, Auslr.llia

1 Introduction: Animal Proledion In an lnlm:onn~led Wolfd ...... Steven White and Debor~h Cao

Part I General Issues In Animal Law and Welfare Sclcoce 2 Se<:ond Wave Animal Law and the Arrival of Animal Studies...... 1l Paul Waldau 3 International Persp~llves, Including Wballng and Jnhwnanc Seal Killing .u a W.T.O. Publlc Morality Issue...... 4.5 ISSN 15)4-6781 ISSN 2214-9902 {elecoonic) Donald M. Broom lus Genlium: Comparaiivc Pc,..P"ctives on l..QW and Jus1i~ 4 ScieMe, Anln1gl and the Law ...... 63 ISBN 978·3·3I9·26816·3 ISBN 978-J-~ 19-26818·7 (cBook) Joy M. Venind~r. Nicki McGr~th and Clive J.C. Phillips DOI 10.1007/978·3·319·26816-7 5 An International Treaty ror Animal Welrare...... 87 Libnity ofCongres& Cootrol Numbct: 201693040) David Favre SpringtT Chum Heidetberg Dordrc:cht London Part II Developments in Animal Protection in Different Jurisdictions 0 Sprin'->e' fruent.ationa.I Publis.lting Swi1u:rland 2016 This wort is subjccl to copyTI~tit All righ1S a.re n:s.t'f"VCd by 1hc Publis.mr. whc:lhec the: whole Of flAl1 of 6 Animal Protection Law in Australia: Bound by History...... 109 the:: malt:rieJ is t~ncerncd. s.pccifically tttc rights of lr.Mls~tioo, n:prinlin~ re11$eOf illusin1ions. recitation. broadc-zting. reproduction on mi.cn:>film!i or in any 01~r ph)•siatl way. o.nd •mnsmission or informalion Steven White Moruie and rcuiev.d. electtonic adap~1ioo. rompvtcr softwact, or by r.imilar or dissimilar methodology now k00\1.10 or f'lcrc:lOcr dcvc:lopc:d. 7 Animal lnteresls and South African Law: The u~of t;enc-re.I Jescripti\·e naines. regis1ercd no mes, mi:ckmarks, :service ITl.UJ'b, e1c. Int.hi& ftUbllcalJol'\ The Elephant in the Room? ...... 131 doc:; nol imply. C\

Springl!r fnt~ma1ional Publishing AO Switzerland is pan of Sprinter Sciencc+Bu9incss t-.1cdio (www. :springcr.cnm)

v vi Contents

10 Regulatory Capture and lbe Welfare of Fann Contributors Animals In Australia...... 195 Jed Goodfellow 11 Blackfls/1 and Public Outcry: A Unique Polllical and ugal Opportunity for Fundamental Change to lhe Leg81 Protection of Marine Mammals in. Che Unl!A!d States...... 237 Joan E.. Schaffner 12 Crime.! and Legal Proledion of Wiidiife in China...... 263 Deborah Cao

Index...... 279

David Bilcbiu Depanmcnl of Public Law, University of Johannesburg. Johannesburg, South Africa Donald M. Uroom Centre for Animal Welfare nnd . Dcparunent of Veterinary Medicine, University of Cambridge. Cambridge, UK Debomb Cao Low Futures Centre. Griffith University, Brisbane, QLD, Australiu David Favre Animal Legal & Historical Center, Michigan Sllltc Univctsity College of uw, East Lansing, Ml, USA Jed Goodfellow Dcpanment of Law, Mncqunric University, Sydney. NSW, lwsualia Nicki McGrath Centre for Animal Welfare and Ethics, School of Vetcrinnry Science, Uniwn:ity of Queenslund, Gamon. QLD, Australia Clive J.C. Phillips Centre for Animol Welfare and Elltics, School of Veterinary Science. Univcrsi1y of Queensland. Gatton, QLD, Australia Joan E. Schaftner George Washington University Law School, Washing1on. DC. USA Tugore Trajano de Almeida Silva lirJdcntes Univcrsily, Arocaju, Sergipe. Bra7.il Joy M. Verrlndcr Centre for Animal Welfare and Ethics, School of Veterinary Science, University ofQueensland. Gatton, QLD. Au.mafia Paul Waldau Canisius College, Buffalo, NY. USA Steven Whlle Grifith Law School. Griffith University, Brisbone, QLD, Australia Yossi Woltson Allorncy-at·Lnw, Jerusalem, Israel

vii Chapter2 Second Wave Animal Law and the Arrival of Animal Studies

Paul Waldau

Abstract Mony socie1ic..~ today rclle.:11hat animal protectionists nre going beyond efforts 10 establish fundamenllll protections or the kind signaled by ccnns like "ooi­ mol rights.'' "animol welfore:· and even "animal libermioo." This Chapter uses four interrelated questions 10 explore this new stage of animal law: ( l) how should ani­ mal law courses in low school proceed given the obvious interdisciplinary reach of the larger field of Animal S1udies1; (2) wha1 is the place in second wave animol lnw for onsw~rs 10 tl1e roo1 queslion "who, what ore 'animals'?": (3) why is !he field of "Animal Swdies" important 10 legal cducotion and. more broadly. education a.< a whole?; and. (4) Whol roles have personal conncc1ion wilh and meeting of nonhu­ man animals played in firs! wove animal law, and whot roles might they ploy in second wave animal low, the larg~r field of Animal Studies and i1s sub-disciplines. and 1hc educotionol mega·ftcld.~ we know os "the humanities" ond "the sciences'"!

2.1 Introduction

How do we go about our ntlempl to sec the future of animal law'! We COil speak rather specifically. ofcourse, about the near-term projccls on which we will focus in lhc cominl! few yearr.. But what I'm ofter is our need 10 assess the possible direc­ tions and shape of animal low decades 0111 i11to the ftmtre, which takes an altogether different imagination than docs looking only DI possible projocL~ in the coming years. To meet this need. I examine tlie burgeoning academic field known as "Animal Srndies." but which is known variously under nlhcr names such as "Anlhrowclogy," and "Human-Animal Studies" (there arc at least o holf-dozen other options tho! I do not list here. For further discussions, see Woldou 2013). In order 10 see why the field of law and the subfield of animol law need perspectives from Animal Studies, I employ whal l will refer 10 as three lenses- these include a gencralil.alion, a warn­ ing aboul social movements. and an imaginative image to holp us see the terrain we W;tlk as ethical crealuro$. Tlte generali!ario11 is this pithy observntion by Robert

P. Wald•u (611 Canislus College. Buffalo. NY. USA •·mail: pwaldn•@gmoil.«>m

O Spring

Cover ( 1986): "Law is rile projection ofan imagined faturt 11pooi reality." The wam· ret.lion~hips to other living beings-lhci:c signs arc oil about us in media, an, busi· ing is embodied in this obserYlllion about social movcme.nts: "It's hard enough to neis opportunities, scholarship of mt1ny kinds. religious communities. local and start a rei'Oilllion, even hanlu still /Q mstain it. and hatdesl ofall to win ii Bill it is Slllle government, natianal policy debates. •nd on and on. only aftcrwordJ, 011ce >ff'w won, tl1a1 rhe real difficiilties b~in." ' The lhird lens is Thi~ rich. cxtrnordinary ferment in humans' relations wilb other li~ing beings a simple, lhreo-word phrase !hat I take to be an imaginu1ive image luring us into a hus three important backgrounds or con1exts. One is lhat tbe changes in the way we heahhy in1ersection wilh lives beyond our species-this image is "the animal invilll­ think and feel about "animals" arc taking place even •s much else is in ferment in lion ." This image suggests ~>at olher animals h~vc lives 1ha1, ir we nolicc and l!lke our culture. Another background or conli:J

2.3 First and Second \\lave Animal Law and activism are first wuve "stuff," if you wilt, ond 1hat the future or a robust onimol law field requires more and different approaches. 2.3.1 First Wave Animal Law

It seems lo me thot these initial stages of the animal law movemenl huve opened up 2.3.2 Seco11d Wave Animal Law so muny questions and is~ucs thot it is clear that fU'St wove onimul law reflecls a tru~ revolution. Caution is in order, for there are alwoys difficulties when one nuempl~ Consider how each of lhe achievements of first wave animnl low list~d ~hove might to ossess lh~ future of a young social movement. which contemporary animal pro· be enriched by nn imaginative, humble, ethics-sensitive und intcrdisciplinnry teclion i~ even though ii is sustained by roots in ancient cultures' visions thot we, os engagement with other living beings. The result can be n qualitatively differem humans, are copable or rich forms of animnl protection. But celebration is also in stage of animol law. nnlcc, as ii were, for this early ph~ of modem animal law has sunnounted the chnl· lenses of the first pan of Lart>i Ben M'Hidi's worning-/1's hard enough ro start a • Use ofrraditional law school meihod.r-While onimol low educators' use of lra· revo/u1ion. But no one who celebrates lhis will fail to recognize Larbi Ben M'Hidi's ditionnl low school methods (such as casebooks) will very likely always remain caveat thot revolutions are e~en ltarder still to sustain. So let me use this warning to essential. mucli more is neroed. 1lie 1ypicol fonn of animal law education, with raise some issues ahout what I have charocterized as first wave animal law. a few notable cxccp1ions, is o surveylinlroduclory course l>ll

• Fa~grounding qu•sticms aba111 "legal rightr"-Becau'e foregrounding of a • P~occupotion with cogn;tion-people in the animal protection movement huvc "question eYCryLh.ing" mentality abouc che very coll~pl or "legal rights" opens Ion~ been aware that cognition is bul one or many faclors that draw humans' doors :111J minds, !his practice bas bad a bi8h profile in fim wa'lfc animal law end ottentioo to nonhuman animals, os Pccer Singer's historically importanl emphasis lhus has been bisloricany and psychol<>gicolly impona11L Extending rights bas on sentience four dcc:tdes ago underscored (Sioger 1975). Yet there is no doubt hwcvcr, something of a two·edged sword risk that lurks 2004. p. 11). On the nonhumun front, rights can surely work well in some con· nearby, for o.• noted above a too heavy preoccupation with cognitive complexi­ texts for, soy, and other extraordinarily complex nonhuman ani· lie• can amount to a sunepcitious affirmation that only those nonbumans that arc mals, although there 11te also other legal tools 1hat c:in work as well. But for many cognitively somewhat like us get protected. If the upshot is that those nonhuman nonhuman onimals that do not fit so well our foseination with cognitive abilities, animals lhat =not like us therefore count ltss, the price will he very high. Many the tool or individual legal righLS with puhlieremedies might not work well at all. elhicisL•, scientists and animal proccctionisls are deeply 11ncomfonable with this ln5teJld, other 100ls. such as legislatiYCly mandoced prohibitions on owmmhip. 'ort ofcognitive bierarcl!y as the leading edge or our ethical obligation and legal may work for beucr. protccllon-the insight that drives !his discomron is the insight at the bean of the • Pnqcc11pa1ion witlo compa11iun animals-first wave onimal law's preoccupation most famous ql!Ote in the western world's animal protl!<:tion movement, with those companion animals who ani our family memb....i; has been a brilliant Bentham's penetrating observation that "[T)hc question is not, Can they rtason? populist move, hut of course :111imal law as a field hu.~ mW1y tasks to accomplish nor Can they talk? but, Can they .ndftr'r' (Bentham 1970, p. 283, n. 2). beyond pn>lccting these import.ant lives and family members. There are obvioos Foc11s 011 activism fo cnurts, legislatures and administrative agencies-work political reolilies at play here, and it connot be overstated how imponant these within public policy circles promoted by first wave animal law has been crucial, arc for first wavo animal law. But the revolution wi11 surely prove eve11 harder particularly courLS. legislation ond admini~tr.U.ivc regulation. But these venues, as still to sustain if it stays at this level. Discussions ubout protecting other nonhu­ imponant os they are, are decidedly not the only circles of modern socicti~s that mans. such as those used as research tools. sllll demand much attenlion, and creme a11d su.yerS such concentrations gave first wave animal law a foothold in humans' imagina­ talking lo judges. lawyers and lnw srudenls. This important functinn, clearly to be cxjl legislators wilh dogs at home and those judges whose lap dogs join them on the bench, even if under lhc protective covering ofthe revolution. 20 P. Woldou 2 Second \Vu,·e Animal Law ond lhc Arrh•nl of Animal S1udies 2l judicial robe. Everyone in luw is also imp•cted by the gross roots ferment reffected such signs 1ha1 the fir.~t wave of animal law has staneu a revolution, no one fnmilinr in 1he use of legislo1ive 1ools like popular inilintivcs, for thllSC help us all to see the with today's law schools assens that tre long-prevailing tradition of human excep· great breadth of concern for "animol issues." tionalism in legal education is now weak. II remains very powerful, appearing in Why might it be hurd to sustain first wave animal law's achievemems in staning both overt and far more subtle fom1s. Second wave animal law has the lllsk of a revolution? Since the achievements of first wave animal Jaw have been so impor­ engaging even hardened skeptics who support the "humans only" lhesis that has tant. the risks of remnining at 1his stage might seem minor, especially given that the driven law for centuries and still toduy uomina!Cs in the vost majority of courses n:voluliun has b~en started. But the risks Dre real. lhouj!h less 1han obvious at first­ offered in the modem law school curriculum. thcy involvcfi

2.3.3 Entering tlze Tower ofBabel For obvious reasoos, Ibero i~ n111d1 1olk about low outside of legal circles. Public policy specialists, ccmmenta1ors on glo~lmulon . social mo...:ment :r.tivists. phi­ IOS<1sible or not. Let me 1um 10 tho1 "theologiu11" whose ideas drive today's world-wide move· Second wove animal law will gnin energy, insight and followers when and if it me11t known a.~ "religion and ecology:'' His name is Thomas Berry. and his work engages lhc.~c Jcrnues outside stondord low precincts. I refer to these os "eiura·iegal sounds the Iheme thal much of our western consumer culture, including today's debates," Md ii is imponam that those intcrc~ted in onimnl law comributc tu them version of "low" in indll.'ilrialized countries, is human-centered in 1he extreme. so thot 1hese debates can be sophislicotcd, infonned and nuanced in the best tradi· Clearly, he would nor qU11lify as on cxpen wi1l1css in the technical sense tltat term is 1ion offirst·rote legal scholarship. Equally, it is imponam thal legul scholars, educa­ used in litigation, just.she would not likely be called as an "cxpen" of lhe kind lhat tors, judges, and law-based policy makers listen a11d /eum from such extra·legal public policy debates feature. Bui his insights are dramatic and impressive. nonethe­ Jchatcs. Such connec1ions across disciplines ensure that the legal profession avoids less, ond they led him during his lifetime to write os follows: one or the pitfalls into which lhc veterinary profession has fallen, namely, the ..• (•Ill<: <1«pes1 couse or Ille pROselll dy =intimately linked 10 our civili2lltion and ways of rbinkini:" (David and John 1978, p. 18). lmpo11.1nlly, •-uch deep, persisting features of legal sy>lcm are major l TIJc leader in 1hls.e..::umcnic.-al mo\«:mi:nt 's Ylllc Uni\'ershy's Fot11mon ReHgion and Eco\oc,y­ factoo; in cs111blishing the all-imponant continuity soughl by legal systems. Al the lhe website is ht1p:J/lo1c.resea.rcb.y~1lc.eduf same lime, however, lhey foster the inherent conservatism of low. Those citizens 26 P. Woldnv 2 Scrond W11vc: Animal Lllw and 1heArriv11l of Anfm:1t S1udics 27 who are favored by special privileges under the ex isling order <>fthe legal syslem no obligation to prolecl the animal$ in our CMC." 4 Consider percen1age figures for farm doubt reel s1rongly 1b:tt privilege-threatening developments, Like anilltlll law, are not animals rrom a 2004 srudy of Ohio citizens by The Ohio Stale University-an in con1inui1y wilb the rest of the sµecies-ccntcrtd law 1bo1 anchors these elites' astonishingly large majority (92 $) or the citizens of this ccnservative. fonning· privil.,ges. This is nonnul, for just as Upton Sincl oit once observed, "lt is diffieu lt 10 iniensivc stnte agreed or strongly agre~d lhllt it is impononl that fDnn animals arc get a man 10 undersiand something when his salary depends upon his not undel" well cared for. An almost "'Jual number (85 $)had the opinion that lhc qualily of s1anding ii" (Sinclair, 1935), il is also dirficuh lo get many citizens •nd busincsSC$ life for flllill 11Rimals is important even when they arc used for meat. 81 % also 10 support new legal protections when continued enjoymenl of their own privileges agreed that "Lhe well-being offlllill an imalg is just u.• important as lhe well-being or depcnJ~ upon their blocking such new protections. pm:• and 7.5 % agreed. "fann animals should be protected from feeling physicul Said llJlother way, a certain selfishness, perha~ uvcn autism, prevails in law pain." when it comes to the marginalized, whelher they are human or nonhuman. To How is it, in the fai:e ofsuch numbers, that legislalion on 11nimal issues struggles change any foature of the syslem, one has to work within the sysltm, complying so? Second wave animal low must gr.ipple with this. The answer surely is in cultural with higal procedure and other legal niceties. This applies with special force lo those values, what Dnvid Md Brierley called "the ci1•iliz.a1ion of the country itself, the who would change our treatment of nonhuman animals. In the Uni1ed States. for sense ofjustice of its citizens, its economic structure, language und social mauers." example, prolcclion of morginalized hum1Uts can coll upon 1he ideals of' lhc found· The p11ll numbers just quoted sugges1, however, Iha! to.tay we may be edging ever ers anJ rundamenlJll proleclions in the human lower levels the existing legal sys1cm has myriad ways ofdefeat· so inlegrally lied to humans' intcresis, such as wlld, free-living nonhuman animals ing ch~llungc~stonding limits, how statulOry longuoge is read (as with the mean­ that have never been domes1ica1ed, remain elusive. Firsl wave anillllll law will tran· ing of "necessity" when it comes to justifying harms to nonhuman animals) silion to second wave animal law when nonhuman beings ore considered caitdiJntcs (Francione 1995, pp. 4-.5, 13. and 21),> which harms and measures ofdamages are for legal prolections by legislatures Md courts no marrer what their similarities to pennitlcd, and of course the age-old limilS imposed by lack of enforcement. huma11 abilities might be-in other words. an ethic of inquiry will not pursue firs1 So, while working mailers ou1 in couns hos some pnlcnlial (the ground-breaking ond only whether other animals are "like us" or fumiliar and favored by humans but, 2000 Rau/ins rhe Cage creatively calls on what the author secs os the legal syslem's instead. whether they have demonstrable cognitive, emotional, cultural and core values) (Wisc 2000). Ltiis risks playing out chollenges in ;i system so fully sentience-based capacities that our ethical imlljlinations recognize as ;n and of gcmd to humans Lhal legal fictions and other dishonesiics Cllll bar common sense. rhemsell:es importanr. There is no do1ibt thal our imaginotion, humility and etllics scienco-bnscd certainties, and open-hearted ethics. One ronn of balance 10 strike i.• can address a wide range ofnonhuman animal'- and that we can do so as fully a.~ 'Vll tltis-pluy out certain chnUenges in lhc coun.s but avoid the risk of crellling negative now •ddress our companion animals and the wonderful nonhuman great apes, ctta· precedents that will cemenl in place an oltogelher ghet1oi-z.cd version of animal lllw ccans, ond elephants who nre on 1be radar screcn8 ur Jirst wave animal law. where there will be wry little critique of the fund;uncnt.al fcalurcs of low as ii now Second wave animal lllw can also pre'~ some oddilional constiluencies, Ii ke ve1· centets on humans. crinary medicine, where most people lhink nonhu11U1n animals have naturol suppocl· What is ln1eres1ing is that legislation is no less subject to such games and limits. crs. Some animals get heated through lhe e!JOl'ls or this profession, for which onimal Some litlgo1ion·focuscd udvocates for nonhumnn nnimal5 hnve been known to com· protectionists are overwhelmingly grateful. But, stolisticolly, most of the nonhuman menl !hat thuy resort to litigation because prospect~ In legislatures ore worse due tu animals that are suhjc'Clcu to wlerinary oversight (•s happens in food production lhc power of special interest lobbying. This is significant because toJay some polls ond experimental situations) are either eaten or used a.; experimental subjects. This suggesc th.at nine out of ten Americans believe 0 strongly" ecauo;e veterinory medicine'• esrablishmenl (though not the msjoriiy of

' Tl>< auohor m.lk<" ll' in hi• we want 10 '°'ionoliz.c abuse of other ;:inimitls. 2010 77re Ariimal t.laniferto at p:.ge 3. 28 P. IV•klou 2 Second Wove Anilll.ll L>w nnd the Arrival of Animal Sludies 29 ve1erinari•ns, lhankfuJly) is •ddicaed 10 the money swoms ITom rcscruch end indus· them, let alone all of them and their diverse, compI icatcd implications. 111us, nor try. This has led Lo a very ingrown set of professional ethics by which veterinary only does it quickly become ob"ious thi>l many disciplines ate capable of exploring medicine's cstoblishment allows many people lo use science ood the welfare or the some aspect ofsuch inier-.tetions, but upon fu n!ltr reflection it becomes cty>1:tl clear human race as kind or fig leaf to cover ovccihe profession's complicity in banning that to plumb ad~uately these cxtmordinill')' phenomena, rob1isr inum.sciplinnry nonhum•ns. The result is a \"Cterinary establishment that is human-cen1ered in the rommltmtnts a,.. needed. This is why I nrguc in Animal St11dies !hat !he field is in exiremc, and one that is at best deeply impatient whh, Al worst extremely intolerant facto prospective super·6eld crucial to ili.'Veloping our own species' possil>ili ties for of, onimo.J low courses or the kind in found contempornry law schools. o more informed. ethically richer relationship wirh 01her animals. To explore, for exwnple, the limits or whar humans can know about other animal individual and i;ocial realilies, one needs multiple disciplines. Tn gather relevant evidence of how deeply and widely cuhures havt acros• time and place engaged olher animals, one 2.4 Animal Studies needs multiple disciplines. To discern whal Is happening around the wotld today, one mus! peer into not only niultiple academic disciplines but also actual praclices le is relevant to the future or animal law thar ourside ofl aw schools today. rhe num· and trends in medio, ans, religiO\ls institutions, numerous science-based fields, and ber or people who study harms (0 nonhumans is for g,..ater lhan the number or much more. J"'oplc who study animal law. In orber words, knowledge of what is happening ar The implications o( such thorough and inlerdisciplin•ry e»ploring are muny­ the inrersection of human and nonhuman lives is much great"r outside legal realms for example, it soon becomes clear rhor the conceptual re.~ourccs and theorericol rhon within them. In Animal Studies, I address just some or the fields lhat today ;m: frameworks fouod in ony one discipline cannot oontrol the discourse of all other fast developing their own version of an inleroisciplirwy approach to the mare-lhan­ disciplines. nor exhaustdescriplion of humans' multifaceted interections with non­ humon world. The list includes only 1be following: bumans. Why7 Because the socio! consuuctions. discourse tr.tdilions, und much more in each discipline are charoc1cristicolly narrow and agenda-driven. such tbat hh.rory, cuhural 3cudics. ahtcelion~ nlltural oncl social sclences of many ki111d$. poliU~al studies. haw, philo:sophy, critical studies. lj1.cr:nure and other ans. comparo 1i vc rclii;ion. ech· they miss or obscure keen insights from other diM:iplincs. lcs. sociolol!Y. public r<>llcy studies, socinl psycholoi;y. JOOll!Ophy.11J11hropology, ""'hllcics line. man animals' realities. (ii) an exploration of the diverst ways that various culturol An intcrdisciplinlll)' approach is also needed for another, altogether relevant rea· and wisdom truditions have to daie negotiated (and might in the future handle) son-the broad. St>rllQlimcs chaotic fcrmen1 on nonhumon animal issuci; founll humans' ioevit~b l c intersection wi1h nonhumun lives, ond (iii) recognition of !he roday in one academic field afrcr onolher (as well as in different groups' respcc1ive eminently personal nature of many such cncou n1crs. social clhics ond cultural auirudes. and in institutions' changing attitudes) hin1s at In rcrms or numberi; nod influence, animal law is rht ltoding edge ofcont empo· lbe vost array of very diverse "1111imal issues" that are in ploy roday. For this, reason rruy Animal Srudies. lntcresringly, thOUJ!h, mony other fields participating in Animal what is h11pJ"'ning in different academic fields is by no means that same subset of S1udies do nol huvc ony inkling of Ibis CllCt or whor animal law does. This is, at least issues-a distincr subset of issues is handled in history, another subset in lilerature. in part, due to the fact thot 5':'holars and srudents who work on nonhuman ooimal and similar realities exist in gcogmphy, ~ociol ogy, psychology, religious studies and issues in other-than·law liclds consider what they do as unrela1ed lo nnimal law. more. Such "ferment" is in one imponant sense similM to what has happcncod And, not surprisingly, there is whot nm0\lnl$ to a reciprocal ignoring, as it were- in through the dernonds or law studems for the establishment or unimal law courscs­ animol luw, there is ofien no owaroness wharsoev•r of ll!e kinds of work done in Sludcnl$ and .cholars alike in 011< Hcu•en a portion of are noticing thal humans over recent mlllenn ia have responded 10 lhe animal 30 P. Waldau 2 S«ond Wove Animal Low and the Arrivol or Anlmol S1ueon subordi­ th" lilcrnture of 011imlll law. Tiie wide array of disciplines lllld constituencies in!cr· nated 10 political powennJ privilege. It is poli 1ical realities that arc, by vinue of 1he csted in animal issues, then, suggeslS possibilities for the null! wave of animal law. demogr~phics of' companion animal ownership, lhe force behind the paradigmatic The widespreod ond uncoordinated fascination with animol issues also reveals why. role that companion animals have in 1ocfay's vcrsinn or animal law-these "'"tlndcr­ despite difficultic~. it has been possible UJ stan a revo/mion. sustain it, and perhaps ful onimals co.n, surely, open a door, but lhc opening can become a !rap door if it even win it. In onler to achieve the development$ nccdl!d in leg•I cduc111ion am! legal remains only owned companion animals. but not those in shdlefS or running free in systems tlm will sustain a mature "second wave of animul law", th.on, higher levels human communities or beyond, who are prote1:led by newly enacted lows. Wilhouc of cross-disciplinary work mus1 be promoted by legal educators and luw students, of help from other fields in Animal Studies, lh~ pt.:nomcnon of protecting only owned course, but also by all cducalot> and indeed lhu entire sdmi nislrution of instilution· companion animals can morph in10 yet another humnn·cenlered feature of the cur. olized educatior>-in this way, both legal and general 1d11cation can be ID.ken to a rem legal system, new level. Finally, what roles have personal connection with and muting of 11onh11marr animals played i11 first wave animal /a1v, OJld what roles might they play in second wave animal law, the larger field of Animal St11dies and its sub-di.

We can now see that a second wove is not only possibl~. b111 is beg!m'.i11g to 2.5 Five Specific Challenges In Second Wave Animal Law arrive. As suggest£d obove, many people and a great v~e\y of ?Jodern dtsc1phnes now reftect that when humans notic~ and take other ammals se~ously. huntons are Fi!'lll, holV do we ere.ale more enlironmenls where discussions can lhrive? responding 10 the deep ethical instincts that define our h.uman hves-:-lhe upshot of Those who hnve pioneered first wave animal law know that the educational estab­ such auentivcness to our ~iroilarities and differences wuh other ~mmols has been lishment has been nnd is now, with only a few notable exceptions. a hostile world. held by a wide variety of human cultures to be central to human ~x1stence. such thut Importantly, though, the emergence of first wave animal law ha.< revealed some of Berry referred to tlie citizens of the more·lhan-human world as the larger commu- the remarkable strengths and Hexibility of the contemporary legal education. In par­ ni1y [that) constitutes our greater seir· (Berry 2006, p. 5). . . ticular, m1111y law schools around the world today consistently exhibit a profound To nurture development of such awareness. we must recogni:re that ghettom:d rommitment to the imponancc of critical thinking, Socratic method, and each stu· versions <>f low. !hot is, law framed unly on Ille traditional legal values and te~h­ den1's and faculty member's free expression of ideas. How con this deeply impor­ niques that now dominate contemporary lcgnl systems. will never be 1he lca~tng tant tradition be honored, strengthened and uporttd, so to speak, to oilier re· education generally so that the educational establishment is no longer a pan of !he rh:s repeat•'n1enon, by which I mean only thal law 1s meont to embody soc1· well as the political risk of going against reactionary forces in "the establishment," cly's deep, morally laden insights. not overri~e.~hcm. L.a'~_can be.used to promote threaten some animal protection odvocales-an exampl~ is the wuy Harvard Law any society's underlying values, surely. but 11 cn1bod1es them in the secondary School's Coss Sunstein was raken to task during his confinnation hearings in Moy sense of reflect ins them-a legal system's primary function is no! to crea~e. such 2009 after being nominated to be administrator of the American federal govern· values oul of whole cloth and then dictate these back to i~~ host soctety-lh1s 1s the mcnt's Office or Infom1otion and Regulatory Affairs. The mere fact that Sunstcin thrust of what I mean by wlaw is a sc.:ondary phenomenon:'. . . . . had previously written abou1 animal law issues triggered efforL< to characterize him Given that the second wave or animal law will need to be intensely tnterd1sc1plm· as radical unsuited for such a key position. When animal low becomes even more ary and multifuccted. no doubt it too will have some "Tuwcr ~f Babel" foatu~. for successful in the educational establishment (o sign thot the second wave has arrived), the human intersection with the more-lhan-human world and tl< nonh~man ani~als the revolution will get "harder still'' for it will then appcut on the radar screens of will alwoys be so rich th•t it will uikc work for those educated in d1~ercnt d1sc1- those humans who challeniie expansions of modem legal systems to be generous to plines to learn how to speak carefully and productively to 7w:h other.. nus challe~gc all ltumans. con be met in legal circles. for law is by io; nature a do!™'tn where d.ivcrse consu~u­ Third, how can a heavy focus on the sweet beings we know as "companion encies mus\ meet and negotiate u common longuage. II we as a species are to notice Q.tlimals" be maintained without creating challenges ror other animals? other animals and toke them smious\y, law will necessarily be in.the front ranks ~d Companion animals need fundamental protections, and because they are so near and 0 mm1y .flunked 11 a/I sides by other disciplin~s. Scco~ wa~e ~1i_nnl law, then, will deor they have understandably been a preoccupation. But allocating resources so be prominent as our society goes forword w11h the animal invuauon. hco•ily to creating protections for !his group risks selling up companion animal$ a.• the paradigm of what nonhuman animals are, can be, and thus should be. In one sense, companion llllimals are not particularly good represenmtives of the iiroup P. W.ldou 2 Stt0<1d Wave Aniioof law •nd the Arri"lll cf Ani11111l Scudi

"nonhuman anim•ls"- 1hcy are. by definition, subonlina1e 10 humans; further. or all Thus, boch our science traditions and our mornl rroditions make ii clear 1hm a1 leas1 animuls, Ibey fit mos1 easily and often hnnnlessly (tllough hardly always) into tlle some nonhuman animals deserve allcntion as imporrnnr members of1he lar~cr com­ iroJi1icolly entrenched notion of personal property. Bur many odier animals do nor. mun iry to which we and those other animals be lo~. Tiie emergence of a paradigm or change bused on our fascination wi1h cut lhe slovenliness of our language makes ii easier for us to h11vc foolish 1hougn1S" some and olw~ys brainy animals we know as chimpanzees, gorillAS, orangutan5, (Orwell 1946).' Orwell's morive in rruiking W•!SC observations was simple-"the bonubos. clephsnlS, oreas, humpback whales ond 01her cetaceans. These animals point is llln1 lhe process is rcven;iblc" (Orwell 1946). We si.ck 1hc deck against arc humuns' competitors in very significant ways-in this, chey are very unlike fw1damenral cha11gc and in favor of cominued lz111nan·c111lalt'd11e3.< by using the companion anim1ds. They cannm ellSily be made sut>ordinale lo us and lhus do nol common phrase "humans and animals." This verbal hahit reinforces powerfully the reinforce our sclf-imogc as rulers of 1bc world. Oft'ering lhcse ~d 01her no11· legal sys1cm's dismissive legal per.mos/legal things dualism because ii makes the companion animals fundnmen!al legal protections is R major challenge raised by division seem nalural. 1lie division is not a namm/ division, but a cultural habit first wnve animal luw, and second wave anim11\ law can meet this ch~llengc only if mas.cd in second wave ii is nul burdened by a sy~lem chul iakes 1he paradigm or •ll animals to be our ca1s animal law that this verbnl habll is anti-scientific. In !his regard alone il undermines and dogs. our ability 10 lalk abou1 nonhuman animals as important cousins or. as Henry B~lon Fourth, how do we meet tilt: clialknge or mov

2.6 The Real Difficulties Begin-Can \Ve See What toolbox by which we organize ourselves and in which one finds an astonishing vori· cty of protection methods. the Future Will Bring? Rights for Individuals is often thought ofas the paradigm loo] because it carries such imponant possibilities and in our current erJ has psychological raniifico· Primates' dominant sensory ability is sight, and thus we ralher naturlllly respond "I tions-thc affirmation of rights means the rocipicnt has ~rurived" in o political see what you are saying" whenever we grasp a claim that a conversation pat1ner is :sense. So the creation of specific legnl rights today receives great attention in those making. Sometimes we use colloquialisms like "I hear you" or perhaps "w?at she cultures and the modem industrialized nations that have historicully used 1his legal said touched me" to convey comprehension. We do not ol\cn use o!fuctoty images tool to liberate ond protect This is one rca), legislative protections of law be at the end of this century? mony kinds that do not invoke rights, and equitable measures thot call upon deep I make some suggestions here in order to stimulate your lhinking. Granted, you traditions and insights within our !ego! heritage resarding the importance of fair­ may not "hear" whQt I'm saying because you "see through" these sugge~tions or ness, justice and "doing the right thing." conclude that "you smell a rat." Such reactions will ~c my pu~s, for tf we are Below I 8pcculate on two distinctly different topics that will no doubt be patl of to think out our educationQI priorities, we must try to sense what wtll happcn---41nd animol law a< grows into the year 2030 and finally toward this century's closing what can hQprcn-in this century. As the dynamics in Qny uniniol low doss so well years. 1lie first topic is possible changes in various substantive areas of lhe law. The aucst, when we discuss in o gioup either our in1pressions of seneral prospects or o second topic is increasing awareness ofVetyone rc.:ogniz.es that other animals have 1hc1r reo!111es !hot ne~d century statutes. This tradition has recently seen conflicting trends-the vast major· to be described fairly and, when appropriate, pro1ected. The protectton can ~om~ tn ity of American states, for example. now offer felony·lcvcl convictions for some a variety of fonns, some of which are within the legal toolbox, ot!'ers of which ~e~I forms or cruel behavior toward conain nonhuman animals, but at the same time the upon our senses of ethics, humility. comnrnnity. mystery, o~sthcucs ond even spin· vast majority of lhc nonhumM animals that American society impocls (form ani· wllli1y. What i~ paramount os we use ?RY .and all o~ our abilities.lo pro~ect oilier mals) are now exempted from nnticruehy provisions. There is some irony here, living beings Gust os these ore approprtotc tn prote~l\ng human antmals) ts thal w~ given that the original targels of anti-cruelty lcgisla1ion were form and work nni· go forward in a frame of mind that allows us to nottce and take senously the rea/1· mals. Low here rcflcc1s Will Rogers' insigh1 quoted above, and thus reflects that tie.< of the living beings we ore addressing. low-making mechanisms con be dominated by interests that do not reflect pnpulur The relevance of fonnal legal systems to this necessarily multifaoc1ed process of will; they can also compromise the more compa,sionate strnnlcms of measures ofdamages 1hn1 now draw so much auention. These for pcrsoaal propeny in ODe woy or anolhcr. Bui reirying t!lc propeny concept in the problems are really human-on-bum;in problems (who pays dlllllllges of bow much way Americ;in politi~ law and history have is destructive of not only nonhumilll to tht human wbo owns the bamied animal). There is 1he enticing possibility of lives but also human lhriving. awarding damages to cen•in injured nonhumans (M: an: clearly capable of crealing With propeny law more realistically and cumpassionately conceived. 1he law's 1rus1-likc :urungements and fiduciary du1ic.s 10 handle such awards in fuir w11ys), and lrue polcnlial to be a parmer in our society going forward on animal protection can 1his will, I guess. be in place by the cllcl of 1he century. be seen far better. I doubt lhis process is panicularly far olong by 2030, but hope­ Bui 10 Ille extent tl1at tort low must deal with dangerous wild animals, by lhe end fu lly lhis process will be well under way by the end of this cenrury. of the century 1ha1 problem will likely have subsided becall~C we will have foamed Contract la" is not one of the areas of subsiantive l•w in ferment, ~llhough lhe 1hat danJ!')teus wild animals can no more thrive in our midst thllll we can survive in area gets much ottention because tile commerciol realities governed by controcl law 1hcir midst We will likely have learned 10 respect other animal• by the end of the reflect fully lhe maladies visi1cd upon life If a one·dimensional idea of propeny ccn!Ury In w~y• tltnl prompt us to protect their communities so that they can lead rlghcs dominates a society, M has clearly hunMncd jn lhc United Slate•. The result lives undisturbed by human dominance. In other words, ton law by the ycu 2100 is has been the slilrk commercial realities of factory farming, which have led In law· likely 10 be less imponanl only because today's dcbares nre premised on (I) human yers making sad comments such as 1he followlng wl1hout any pangs or conscience. domino1ion of wild animals, and (2) the radical inDdequocy of using market-based This s1ory, which appeus in the 2002 book ontilled Dominion: T11e Power ofMan, measures of damll8e for the comp;inion animals th•l lllll our f11111ily members. By the Suffering of Animals. a11d rhe Call to Mercy by Mat.thew Scully, fonnerly 1be 1he end or the century we will have found D modus \'ivendi with domesticated ani· senior speoohwrhct lo Prcside111 George W. Bush, suggescs the crucial role that legal mols and free-living animol5 such tltM many of 1odoy's dehatcs wiD hove bcccm.: sysiems, lbrough coruroct and ptepl!l'ty l•w. play in subordinating oonbumans ond moot also placini; humans in 1he posi1ion of ignoring th<: animal inviLatioo: Constitutional law in plnces like lhc United S1a1cs hos such iconic srntus !hat lull how borell of humon feeling Iha! en1iro todu11ry hos ba:omc: w°' ck:u •• o municipol many people n:fusc 10 even consider it possible that nonhuman animals could be

"11d how dJlcb:n~ ore discon!I manog<'er 1he anti· nonhuman animals. Jr that occurs, the contract notion could turn out to be quite inltlllc>ctualism Lhol prevnils in some comers or fust wave animal law. This licld will valuable. rttvtr be copiured by mere theory, for !he motivations for altcndinll to animal Jaw Others areas or substantive law, socl1 as the low ofwills and lrusu. have alrc.cdy are ":•ply personu! for most people. But some tht.'Ol'izing has a place as this com­ incorpod much practical business to ancnd to as it tries pr.ore ssio ~al ethics within law can handle fundamental, substan1ive questions. or to blunt the worst of harms that contemporary law pTom Regan). here would sound Lo new low students. ordinflt')I citizens, ond c\>cn our gmndpan:nts. By 2030. though, unimal lnw will nave become an important force in ureas such Slln:ly the system hos ronm for lhe judge's response of disbelief 1ha1 live chickens as philosophy or law For a number of rcasoni. The inclusion of nonl1uman animals discarded into trash cans might be fairly compared to manure. Second wave animal in legal protections offo~ unrivaled opportunities for seeing bow legol systems were l~w will, by the end of this century, offer inquiries and concepl~ that help pnircs­ formed, now operate, and can opuate in the future. If thinking about the larger stonal ct?ics. engug~ ~ounda.tional quustions llbnut the Jistribution of justice, the issues in animal law cun avoid the pitfalls of mere lheory, and instead be helpful mnrg!nal1i.iion of hvtng beings, the place or substantive ethics in the delivery of with tbe es.~cntlal practical work that animal lsw has nnempted in it> first stage, lhen legal services, and much more. thinking about the larger i»'Ues will ccnainly lako its place in both education gener· ally ond fogal educntion in particular. P. Woldnu 2 S\:cond \'hwe: Animal Law ~nd the Arrival of Aniiml Studi~~ 43 42 Singer. P~tcr. 197~. Ani1nnl libeMtiou: A new e1hit.:s ft1r our trr1.J1mcnt of ro1imats. New York· 2.7 Conclusion New )'ork Review Book/Random House. ' Wogman •• Bruce. A.• Sonio S. \lroisman, und Pamela. O. Fr~ch. 2010. Animnl law· Cases d mtl/trtala. 4th ed. Durham: c~rolina Academic Press. . M 10 Low, lhen. has a vilJll role play in animal prot(l(;tion going forward. Given the Woldou, Paul. 2011. Animal righ~<. New York: 0..tohkn' Blac:kw~I well, then winning (undomcnllll change such that the revolution is won. But lhen, as JSMC. s,tt'\'Cn w. 2000. Rattling tht toge: Tc>W(1rd legal ri11l1ts '"' nnilnn!J. Cambriduc-. f\1A. Lrubi Ben M'Hidi's WQrning sUgj!C-Sl~. it is only aftenvards. once we've wo1~ tlrat

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