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Introduction to Animal Law By Paul Waldau These materials support Lecture One in the series of "Animal Law" lectures by Paul Waldau. Lecture One-Introduction to Animal Law This series of lectures on animal law engage how legal systems encounter the animals outside our own species. This first lecture in the series introduces the most basic topics that fall naturally under the general heading "animal law." Thus, in this first lecture we look generally at the extent to which legal systems, specific cases, legislation, and background cultural values impact ways in which judges, administrators, politicians, lawyers, law students, legal scholars, and lay people think about animals other than humans. We also focus on the most noteworthy changes now found in the substantive areas of tort law, wills and trusts, family law, and criminal law. We also look at the issue of standing, and at the end we briefly summarize the most general differences in the "animal law" now in place regarding companion animals (some will use the word "pets" for this area), research animals, food animals, and wildlife. The lecture is prefaced by the background of the lecturer and some observations regarding language about animals, controversy about "animal rights," and the versatility of law in dealing with the lives outside our own species. These written materials provide a general outline of the lecture, as well as various background materials and citations. Whenever a quote is used in the lecture, the entire quote is included in these written materials along with sufficient bibliographic information to locate the passage cited. Animal Law as a Field The term "animal law" today covers (1) the extent to which legal systems, specific cases, legislation, and background cultural values have affected (and will surely continue to affect) how judges, administrators, politicians, lawyers, law students, legal scholars, and lay people see and speak about animals other than humans; and (2) what is possible in legal systems. Staying Aware of How We Talk about "Animals" The standard vocabulary in law circles tracks the general society's preference for talking as if humans are not animals-hence the prevailing phrase is "humans and animals." Scientific terminology is different, of course, given that humans are primates, mammals, vertebrates, etc. In this lecture a variety of phrases drawn from many different disciplines discussing living beings are used-these include "nonhuman animals," "other animals," and "other-than-human animals." Basic Legal Division The lecture often refers to a basic dualism found in American law (and many other legal systems) that is very significant in current discussions about how law impacts the beings outside our species-the concept legal person includes humans and some human enterprises, such as corporations, while the concept legal things includes all other living beings and inanimate objects. Quote used in text from website of the Federation of American Societies for Experimental Biology (opa.faseb.org) regarding the recent launch of an animal law website by the prominent and very active pro-research consortium known as National Association of Biomedical Research, Animal activists and animal rights lawyers have stepped up the campaign to change existing laws as they relate to animals. This campaign involves legislative initiatives at the state and federal level and the establishment of new common law through the courts. These initiatives have the potential to profoundly affect animal research. NABR believes the biomedical research community should better understand existing laws affecting animals as well as the many new legal challenges and theories advocated by animal rights lawyers and activists. [This quote can be found at http://opa.faseb.org/pages/PolicyIssues/animalresearch_links.htm] Questions Asked Early in the lecture, a series of questions is identified as seminal for this first lecture and for the subsequent lectures as well. The following is that list of questions: ¨ What is now happening in the American legal system regarding animals? ¨ What is the meaning of "animal rights"? ¨ In what ways do case decisions and legislation reflect values from outside the law regarding other animals? In other words, what extra-legal sources are relevant to decisions in cases and the interpretation of legislation and administrative regulations? ¨ How well have decision-makers in law seen and/or understood other animals? ¨ What are the future prospects for using various parts of the legal system to address the status of other animals? ¨ How does the American legal system handle new scientific findings regarding the lives and complex realities of nonhuman animals? At strategic points in this first lecture, it is noted that two groups of animals receive particularly heavy attention in modern animal law discussions. The first is the more complex living beings outside the human species, such as elephants, the large-brained social animals we know as whales and dolphins, or our closest evolutionary cousins the other great apes. The second group is composed of cats and dogs-traditionally called "pets," a common name for this group in animal law circles is "companion animals." Polls consistently show that in the early 21st century an enormous majority of Americans-well over 90%-contend that their own dogs and cats are "family members." The latter is one of the principal forces putting into place what is referred to in these lectures as the "companion animal paradigm," which, it is argued, is one of the major driving forces in current changes in animal law. Each of these two groups (the group of 100 or so species comprising whales and dolphins, the nonhuman great apes, and elephants, on the one hand, and companion animals, on the other) reflects important changes that are crucial in understanding "animal law." The first category (the most complex of nonhuman animals) is the subject of much change and development in modern scientific findings about many of these animals. The second category (cats and dogs) have become important because of important shifts in our own habits in treating as integral members of our families those animals we call "pets" or "companion animals". New Findings If you are interested in the new scientific findings referred to, but not specified in any detail, in the lecture, here are some sources that will get you started. The work on our cousin great apes is for many reasons much deeper, but the books listed below on elephants and dolphins will provide many entry points to research on, respectively, elephants and cetaceans. Nonhuman Great Apes · Parker, Sue Taylor, Mitchell, Robert W., and Boccia, Maria, eds, 1994. Self-Awareness in Animals and Humans: Developmental Perspectives (Cambridge: Cambridge University Press) · Savage-Rumbaugh, E. Sue, and Roger Lewin. 1994. Kanzi: the ape at the brink of the human mind. New York: Wiley. · Waal, F. B. M. de. 1996. Good natured: the origins of right and wrong in humans and other animals. Cambridge, Mass: Harvard University Press. · Both books by Steven Wise (2000. Rattling the cage: toward legal rights for animals. Cambridge, Mass: Perseus Pub.; and 2002. Drawing the line: science and the case for animal rights. Cambridge, Mass: Perseus Books) cite many scientific studies on various great apes and other animals. Elephants · Forthman, Debra, et al., editors, An Elephant in the Room: The Science and Well-being of Elephants in Captivity. North Grafton: Center for Animals and Public Policy, 2009. Free versions of each chapter of this book in .pdf format are available at http://home.elephantsincaptivity.org/tabe. · Payne, Katharine. 1998. Silent thunder: in the presence of elephants. New York: Simon & Schuster. · Sukumar, R. 1994. Elephant days and nights: ten years with the Indian elephant. Delhi: Oxford University Press. Cetaceans · White, Thomas. 2007. In defense of dolphins: the new moral frontier. Malden MA: Blackwell Pub. · Payne, Roger. 1995. Among whales. New York: Scribner. Primary Objectives of Lecture What follows is the list of primary goals or objectives mentioned early in the lecture: ¨ Engage the spirit, substance and principles of existing law as it addresses nonhuman animals. ¨ Develop a sense of the many different traditions that contribute to legal and other understandings of nonhuman animals, especially as these traditions affect how we conceptualize and frame legal protections with which court systems and lawyers must work. ¨ Grasp the complex debates about "animal law" and "animal rights" now common in 21st century policy discussions. ¨ Assess future possibilities of using various legal concepts and tools, such as rights, legal personhood and "standing, to address the relationship of humans to living beings outside the human species. The Issue of Influential Changes or "Ferment" Society-wide change regarding views of nonhuman animals that is a factor in the development of the field of animal law is described in various ways in this lecture. A 2001 article which describes this "ferment" in much greater detail is Waldau, Paul 2001. "Will the Heavens Fall? De-Radicalizing the Precedent-Breaking Decision." Animal Law 7:75-118. Conceptual Possibilities At different points, I make the point that the American legal system is capable of offering protections to other-than-human animals if the public supports such a development. Here's one passage from early in the lecture that bears further study: As we go through various substantive areas, one thing which will become clear is that legal protections of nonhuman animals are conceptually possible-by this I mean that our legal system can rather naturally extend its protections to other-than-human animals because there is nothing, such as a logical contradiction or practical impossibility, that absolutely prevents us from using the legal system in this way if we want to. The Legal System as a Tool Box Featuring Multiple Tools The following examples are given in the lecture regarding non-rights tools in the "legal tool box" that can offer effective, fundamental legal protections to some animals.
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