Part I: Introduction, Methodology and Theoretical Underpinnings
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Part I: Introduction, Methodology and Theoretical Underpinnings Chapter I: Introduction This work is a contribution to the modern study of animal protection theory and practice. It borrows from the disciplines of political studies, philosophy, legal studies, and history to make three distinct yet interrelated contributions to its field. Two of those contributions are theoretical in nature and they are outlined in Parts I and IV. The other contribution, by contrast, is largely an empirical analysis and it is contained in the middle two sections of this thesis – Parts II and III. The substance of these three contributions will be considered in turn. The first element of this dissertation is an analysis of current thinking in the area of animal protection theory. That discussion, contained in Part I, Chapter III, begins with a review of the moral theory that informs modern animal protection arguments. Consideration is also given to the way legal and political theorists have addressed animal issues. The purpose of opening the thesis with a revision of contemporary ethical and legal thought in relation to animal protection is twofold. The analysis contained in Chapter III serves as a literature review and therefore contextualises the thesis within an overarching school of thought. However, more importantly, the discussion in Chapter III helps establish the theoretical parameters that inform the argument put forward in the final part of this dissertation. In that sense, Parts I and IV are interrelated, even though 1 they are disrupted by the presence of empirical evidence in Parts II and III. Part I sets the tone for the final discussion by outlining how liberal-based animal protection theorists currently conceptualise the ethical, legal, and political principles of animal protection. Part IV responds to that analysis by proposing a new conceptual animal protection framework. Chapter III is more than a literature review or even a precursor to the final discussion. It demonstrates that although ethicists have developed different models to assert that animals are deserving of an enhanced moral status, the core theoretical structures informing those models are in fact very similar. Specifically, in Chapter III it is argued that modern animal protection theorists have focused their attention on what is termed the external inconsistency. The external inconsistency is an inconsistency in the way the interests of animals are protected when viewed in relation to the mechanisms of human interest protection. It is argued that the most influential philosophies of animal protection – Peter Singer’s use of utilitarianism, Tom Regan’s use of deontology, and Mark Rowlands’ use of contractarianism – all use different philosophical pathways to make the same point: that it is arbitrary to protect humans according to one set of standards, and animals according to another. All three theorists argue that if the liberal circle of moral concern can capture all humans, it should also be able to incorporate at least some nonhuman animals. In Chapter III, it is further shown that, like their philosophical counterparts, both pro- animal legal theorists and political studies scholars have sought to deploy arguments in favour of repudiating the external inconsistency. They have done so by asserting that 2 humans and animals have a range of comparable capacities that logically suggest that interest protection should be applied to both groups consistently. To give practical expression to that philosophical position, animal advocates have sought legislative reforms that effectively draw those animals with the closest evolutionary proximity to humans into the human moral circle. Animal advocates have experienced some limited success in that pursuit. For example, it is common for animal research laws to protect great apes more stringently than mice. In Chapter III, it is argued that despite some modest success, especially in relation to securing an enhanced moral status for some nonhuman primates, attempts to break down the external inconsistency have not received widespread support. The assertion persists that there is something special about the human species that sets humans apart from other animals. It is the failure of contemporary moral and legal animal protection theorists to sway the mainstream with their arguments challenging the external inconsistency that has led to the new approach to animal protection described in the final part of this dissertation. The detail of that argument will be considered in a moment. The second contribution this thesis makes to the field of animal protection is contained in Parts II and III. In those sections, original data is presented that demonstrates a link between an animal’s level of visibility and the structure of animal welfare legislation. This is done to progress thinking in relation to the prevalence of inconsistencies in statutory animal welfare instruments. Parts II and III move the dissertation away from abstract concepts and into the area of empirical analysis, although Part II does contain theoretical analysis. In order to investigate whether there is a link between high visibility 3 and favourable statutory welfare protection, a number of steps are taken. In Part II a mix of abstract and practical arguments are engaged to establish that animal welfare legislation is inconsistent and how scholars and animal advocates understand that inconsistency. Part II also builds on the work undertaken in Part I, by helping to establish the theoretical basis for the final argument presented at the end of this thesis. This is done by arguing that animal welfare laws are inconsistent in and of themselves, independent of how human interests are protected. Part III is the most empirical section of the thesis. It demonstrates that animals have varying levels of visibility, and analyses animal welfare statutes in light of those visibility levels. The content of each of the chapters that make up Parts II and III are considered below. In Part II, Chapter IV, it is argued that the persistence of the external inconsistency is, at least in a theoretical sense, due to the unwillingness of orthodox liberal theorists to pay adequate attention to the place nonhuman animals occupy within political society. It is demonstrated that conventional liberal scholarship contends that the world is made up of two types of beings: humans and nonhumans. Accordingly, humans occupy political society and are the subject of political regulation in order to protect their interests via measurable, agreed-upon standards that have the backing of the state’s authority. Animals, by contrast, are cast as natural entities living beyond the reach of political institutions. As such, it is thought that animals are not due strong forms of interest protection, but rather their interests are appropriately protected according to the principle of voluntary benevolence. In Chapter IV, it is argued that the human/nonhuman divide of orthodox liberal thought is a flawed theoretical framework because in practice some animals have been drawn into the human-constructed political system by virtue of their 4 economic instrumentality. Such animals are the subject of extensive legislative regulation that means their life chances fluctuate in response to political decisions. They are not natural beings living according to the law of nature. The argument that some animals have been ‘contracted in’ to political society resurfaces in Part IV where it is argued that the explicitly political nature of some animals means that the principles commonly applied in other areas of public policy, within liberal democracies, should also be applied to the management of human/nonhuman relations. Based on the argument that some animals are part of political society, Figure I depicts how animals are categorised for political purposes. Figure I: The Categorisation of Animals for Political Purposes The Categorisation of Animals for Political Purposes Free-Living Animals Captive Animals Introduced Species Non-Economically Productive Animals Economically Productive Animals Native Species Companion Animals Agricultural Animals Research and Education Animals Exhibited, Sports and Gaming Animals Law Enforcement and Assistance Animals 5 Figure I is discussed in more detail in Chapter IV. However, in short, Figure I divides animals between two groups – free-living and captive animals. Captive animals are animals that have been politicised by human agents. They are the subject of this study. The captive animal group is further divided into two subgroups: non-economically productive animals and economically productive animals. The economically productive group is then further separated between animals used for agricultural purposes, those used for entertainment, those used for education and research, and those engaged in law enforcement and other regulatory functions. The groups depicted in Figure I are those analysed in Part III to establish whether a correlation exists between high visibility and strong statutory interest protection. The reason for dividing the captive group between economically and non-economically productive animals is that current thought in relation to inconsistencies in animal protection arrangements assumes a primary role for economic interests. By focusing on the correlation between visibility and statutory interest protection, rather than the relationship between economic use and statutory interest protection, this thesis considers the phenomenon of animal protection bias from