II Current foundations of EU and UK animal laws

EU and UK animal laws are based on the fact that animals are sentient beings. These are beings that are “capable of feeling pleasure and pain”Footnote ⁶ or “capable of experiencing pain and suffering”.Footnote ⁷ The EU’s main basis of animal protection can be found in Art 13 of the Treaty on the Functioning of the European Union (TFEU). This article reads as follows:

The recognition of sentient beings, which is central to this provision, was not part of the original article, but was added by the Treaty of Lisbon.Footnote ⁸ This addition officially elevated animals’ legal status from mere “tradable products”Footnote ⁹ to sentient beings. To be sure, there was already some EU legislation relating to animal welfare before this. However, “welfare was largely seen as an intrinsic part of the agricultural production system; if an animal could grow in line with expected productivity levels, then its welfare was not in question”.Footnote ¹⁰ Thus, animal welfare was looked at from a commercial point of view. It should be noted, however, that it is disputed in the literature whether the official recognition of sentient beings has actually improved animal welfare substantially, beyond its symbolic value.Footnote ¹¹

Regarding the UK, the recognition of sentient beings mainly follows from its principal animal welfare legislation, the Animal Welfare Act 2006 (AWA). AWA applies only to “vertebrates other than man”,Footnote ¹² because, according to the Explanatory Notes to the Act, these are “currently the only demonstrably sentient animals”.Footnote ¹³ According to the Notes, AWA could be extended to cover invertebrates in the future if the appropriate national authority was “satisfied on the basis of scientific evidence that these too [were] capable of experiencing pain or suffering”.Footnote ¹⁴ There is, however, abundant evidence that some invertebrates are sentient.Footnote ¹⁵ Accordingly, AWA is misconceived. Indeed, for this reason the Animals Scientific Procedures Act 1986 also protects living cephalods.Footnote ¹⁶ AWA might, however, be corrected in this respect in the near future. On 12 December 2017, the Government published a Draft Bill that intends explicitly to recognise animal sentience in domestic law after Brexit.Footnote ¹⁷ In response to this, it has received “scientific evidence covering the status of organisms such as octopus and cephalopods”.Footnote ¹⁸ Nevertheless, the salient point for present purposes is that it is clear that the UK legislature lays the basis of animal protection in their sentience.

In terms of substantive protection, the law seems to protect the so-called “Five Freedoms”.Footnote ¹⁹ This concept originates from the Brambell ReportFootnote ²⁰ and has allegedly become a “worldwide standard”.Footnote ²¹ Although the jurisdictions examined in this contribution use different formulations of the Five Freedoms, their content is very similar. The EU aims to protect animals from hunger and thirst; discomfort; pain, injury and disease; fear and distress; and it wants animals to “express normal behaviour”. In order to express such behaviour, animals should have “adequate space and facilities” and “company of [their] own kind”.Footnote ²² The UK law uses a positive formulation. It aims to provide animals with a “suitable environment” and a “suitable diet”, and it wants animals to be “housed with, or apart from, other animals” and to “exhibit normal behaviour patterns”. Additionally, it aims to protect them from “pain, suffering, injury and disease”.Footnote ²³ The use of the adjective “suitable” is interesting, as it acknowledges that what might be suitable for one animal might not be suitable for another. Thus, the legislature seems to acknowledge that different animals have different needs. The Five Freedoms are visible throughout both legal frameworks.Footnote ²⁴

The Five Freedoms have been criticised for “neglect[ing] some of the key scientific elements [of animal welfare]. In particular, [they] neglect to cover the species-specific behavioural needs of animals in any comprehensive manner”.Footnote ²⁵ Arguably, providing animals with, among other things, “sufficient space and proper facilities” does not necessarily guarantee that the animal can express “normal behaviour”. It has therefore been proposed to expand the Five Freedoms, thereby focusing on “the state of the animal – how the animal might experience its life – rather than the mere nature and quality of its living conditions, which may be assessed through the provision of certain resources”.Footnote ²⁶ It should, however, be noted that, even if such proposals were to be implemented, the laws would still merely focus on animal suffering (and on pleasure, for that matter). They would not go beyond the animal’s own experience. Bart Driessen, for his part, suggests adding a sixth freedom: the “freedom from being killed for unnatural reasons”.Footnote ²⁷ Although I support this approach of looking beyond the animal’s subjective experience, I argue that there is still some more substantive ground to cover.Footnote ²⁸

The concept of dignity does not currently play any substantive role in the justification of EU and UK animal laws.Footnote ²⁹ The word dignity does not appear in the text of these laws and they do not need this concept for their further explanation. Despite this, there is some lay use of the word “dignity” in the parliamentary debates. However, it seems that when legislators are talking about animal dignity, they merely mean to say that animals have worth as well as the humans whom it is assumed have dignity. That they too count as individuals. Furthermore, legislators acknowledge the impact of animal abuse on human dignity.Footnote ³⁰ However, they do not use the concept of dignity for animals themselves. Their goal is only to prevent unnecessary suffering in animals.

The UK has a more extensive legal framework regarding animal protection than the EU. For example, there is no EU legislation with respect to animals in circuses, pets or strays.Footnote ³¹ This difference can be readily explained by the nature of the respective legal systems. The UK Parliament is in principle able to legislate on any issue it desires. The EU, however, only has limited competence and is bound by the principles of conferral, subsidiarity and proportionality.Footnote ³² I argue that the principle of conferral is crucial, as the powers conferred on the EU in relation to animals are limited. First, Art 13 TFEU shows us that the EU’s powers are linked to animal sentience. Second, the EU can only take into account animal welfare requirements when developing policies in certain areas – ie those mentioned in the aforementioned article. It is thus not empowered to create any self-standing policies on this topic.Footnote ³³ Besides the principle of conferral, the subsidiarity principle is also very important. Individual countries (or even sub-national entities, such as regions) might be better able to make provisions for certain areas of animal protection. The European Commission has, for example, stated that the welfare of circus animals is a matter for the Member States.Footnote ³⁴ Generally, it seems that the EU prefers individual countries to take measures regarding animal welfare, or at least them taking the initiative to do so.Footnote ³⁵ This approach could also be explained by the EU’s main function. It is not primarily concerned with animal welfare, but rather with the establishment and functioning of the internal market.Footnote ³⁶ Yet another factor to which the limited amount of EU animal protection legislation can be ascribed is Art 13 TFEU’s requirement to take into account the “religious rites, cultural traditions and regional heritage” of the Member States. Katy Sowery notes that there are “obvious disparities in the views of the Northern, Southern, and Central and Eastern European countries on animal welfare”.Footnote ³⁷ This further complicates things when it comes to reaching an agreement on proposed legislation.

III Are these criteria sufficient to deal with technological developments?

We have seen that the EU and UK animal laws aim to prevent unnecessary suffering to animals. Animals are protected because they are, and to the extent that they are, sentient. The criteria used by the law are in line with this. The question arises whether these criteria are sufficient to deal with all undesirable situations of animal use and being that we are currently facing, or that we risk facing. In what follows, I will argue that they are not. There are situations in which suffering is not prevalent (or not necessarily the only problem), but which might still be ethically wrong and therefore undesirable. Technological innovations give rise to many such problems.

Animals have already been genetically modified in various ways. Examples abound in this respect. Researchers have engineered “swine that pollute less, fend off disease, and produce more meat”,Footnote ³⁸ hornless dairy calves,Footnote ³⁹ TB-resistant cows,Footnote ⁴⁰ and fast-growing salmon.Footnote ⁴¹ Other recent innovations include beagles that are more muscular, which “are expected to have stronger running ability, which is good for hunting, police (military) applications”,Footnote ⁴² and silkworms that create fluorescent silks for fashion purposes.Footnote ⁴³ Additionally, there are fluorescent animals,Footnote ⁴⁴ micro pigsFootnote ⁴⁵ and silk-spinning goats.Footnote ⁴⁶ Experiments relating to cloning and xenotransplantation have also been taking place. The genes of pigs are being adjusted in order to be able to provide organs for human bodies.Footnote ⁴⁷ These innovations are likely to be used in different contexts: for example in the context of farming, research, health care, fashion, pets and service animals. Relatedly, they serve a variety of purposes, such as commercial purposes, the preservation of endangered species, and the protection of human health, the environment, the public and individual animal welfare.Footnote ⁴⁸

There might sometimes be suffering involved in these situations, for example because of flawed technical procedures or side-effects.Footnote ⁴⁹ These issues could perhaps be solved by further perfecting the procedure in question or by further modifying the animal genetically. However, it could also be the case that pain is not present, or that the procedure in question even serves to reduce the amount of pain experienced by animals (for example, in the case of hornless calves). Those who focus only on reducing the amount of suffering might therefore support such innovations. Indeed, the technological developments mentioned above sometimes serve a noteworthy cause, and the immense suffering caused to animals is definitely one of the most prominent problems in some industries (such as the meat, leather, egg, or dairy industries). Being able to reduce their suffering would therefore seem like a great step forward. However, others might feel less ethically comfortable with such innovations. Even though suffering might not be present (or even reduced), many might still feel that we are doing something that is morally wrong. Not only because of the affront to human dignity (which could persuasively be argued for in such cases),Footnote ⁵⁰ but most of all because the animals are wronged in their own right as well. They are denied the opportunity to be the being that they actually are, and instead transformed into something that they are not, often in order to be used as an object by human beings.

This ethical element – that of transforming the animal into something that it is not – seems to be present in most cases of animal biotechnology, regardless of whether the animals concerned are suffering or not. However, from a legal standpoint the presence or absence of suffering is clearly relevant. In this connection, we can distinguish between three different situations. First, there are cases where the alteration to the animal causes it to suffer (for example because of flawed procedures or side-effects). Although it could be argued that the justifications underlying the laws are incomplete because they ignore the alteration of the animal as such, the criteria used in animal laws can generally address such situations, as they aim to prevent (unnecessary) suffering. Second, there are cases where the technological development concerned does not cause any extra suffering or even reduces the amount of suffering, but where the overall practice for which the animal is used is still detrimental to the animal’s welfare. This could, for example, be the case as far as hornless calves are concerned. Removing their horns spares them the pain of being dehorned, but the practice of farming might nevertheless contain many other elements that would cause the calf to suffer. It is noteworthy, however, that one could not use suffering arguments in such cases to combat the specific technological innovation, unless the innovation prevents the industry from improving any further or from being eliminated altogether (because the industry leaders decide, for example, to solve some of the more severe suffering problems through genetic engineering, as a result of which public concern and political priorities would shift away).Footnote ⁵¹ One could, however, still use suffering-based arguments to combat the practice as a whole. Indeed, one would then not be opposing the technological innovation as such, but the elimination of the overall practice would (in many cases) lead to the elimination of the specific type of genetically modified animals as well.

The third type of case seems to be the most problematic one from a legal point of view. This is the case where neither the innovation nor the overall practice causes any suffering (or even reduces it). A practice or industry may, for example, not cause any suffering due to its nature. This may be the case where pets are involved. Innovations one could think about in this context are micropigs and fluorescent animals.Footnote ⁵² A second reason why an overall practice might not cause any suffering can be found in the practice of genetically removing the animal’s ability to suffer altogether.Footnote ⁵³ This seems to be the most extreme situation and it is not just hypothetical. In 2004, scientists affiliated with University College London created mice which were “much less vulnerable to pain both from external stimuli and from inflammation-induced sensitivity”, even though “their ability to experience normal variations in heat and pressure was unchanged”.Footnote ⁵⁴ Researchers also managed to create mice with “bodies that were normally formed except for lacking heads”.Footnote ⁵⁵ This “vividly raise[s] the possibility that highly social and intelligent animals, such as pigs, which suffer greatly in current factory farming conditions, could be engineered or bred to have just enough brain stem to support biological growth, but not enough to support consciousness”.Footnote ⁵⁶ In such case there is virtually nothing left of the animal itself, apart from its (heavily modified) body. Mere suffering-based criteria cannot help addressing the arguable wrongness of the situation.Footnote ⁵⁷

The problems that occur in the situations adumbrated above are not just hypothetical or only present in the (distant) future. Nor are they strictly limited to cases of genetic manipulation and cloning. There are already various areas of animal use or practices that may reveal problems that go beyond suffering (or where suffering might not be the most prominent problem), such as circuses, zoos, bestiality, and animal pornography: chimpanzees having tea parties; elephants standing on their heads or rolling on a barrel; dancing and hula hooping bears; tigers running in hamster wheels; and elephants positioned on stools in a sort of polonaise position, many of the times even dressed up in human clothes. In the case of bestiality and animal pornography animals are (at least in some circumstances) used as mere sexual objects. And what to think about the countless YouTube videos of performing animals?Footnote ⁵⁸ Or about the various animal parades that are held all over the world, such as the Manchester Spooky Pooch Parade, where dogs parade in the most extravagant costumes? A similar example concerns the introduction of penguins on a London ice rink for entertainment purposes.Footnote ⁵⁹ Furthermore, one could think about dead animals that are displayed in peoples’ homes for decoration purposes and about rabbits that are skinned on Facebook via livestream.Footnote ⁶⁰ The areas mentioned are currently either regulated based on animal sufferingFootnote ⁶¹ or on the basis of non-animal related arguments (such as human dignity),Footnote ⁶² or not regulated at all. To be sure, some of these practices are more controversial than others. Admittedly, it is hard to draw the line between those practices that are ethically acceptable and those that are not – not least because of “the importance of context” and the great variety of animal species (and their differing nature, needs, and capacities).Footnote ⁶³ The salient point for present purposes is that EU and UK animal laws do not yet have the tools to (adequately) address such practices.Footnote ⁶⁴

Thus, ethical problems that go beyond mere suffering (and that were not caused by technological innovations) already exist. The effects of the innovations are therefore twofold. Not only do they create situations that were previously not imaginable, such as changing the very nature of an animal, thereby physically turning it into something that it is not. They also serve to further expose the problems that are already present in existing areas of animal use. If we are able to take away animal suffering in areas such as circuses and zoos, we are forced to look deeper into them, facing some seemingly unethical practices. The criteria used by the law, then, turn out to fall awkwardly short. Thus, in order to address those situations that many might feel ethically uncomfortable with, but in which no animal suffering is prevalent and the affront to human dignity is not the only problem, another concept seems to be needed, perhaps more than ever before: dignity.

IV A good candidate: dignity

Dignity already plays a prominent role in the field of human rights.Footnote ⁶⁵ This is especially true for the EU. Article 2 TEU states that human dignity is one of the founding values of the EU. Furthermore, it is mentioned in the preamble to the EU Charter of Fundamental Rights and enshrined in Title I of the Charter. The European Court of Human Rights, too, has stated on various occasions that the “very essence” of the European Convention on Human Rights (ECHR), of which the Human Rights Act 1998 is a direct implementation, is “respect for human dignity and human freedom”.Footnote ⁶⁶ Using dignity to justify EU and UK animal laws might therefore make the law more internally consistent.Footnote ⁶⁷

But what account of dignity would be most suitable? For reasons I cannot fully set out here due to space constraints,Footnote ⁶⁸ I prefer the one developed by Charles Foster.Footnote ⁶⁹ He says that dignity is objective flourishing.Footnote ⁷⁰ It is about being the type of being that you are. Foster admits that he does not know what objective thriving precisely consists of. Controversially, he argues that it is an empirical question and therefore best answered by, say, anthropologists, rather than lawyers. He does, however, help us a bit further by bringing forward two elements that are important in relation to human thriving and, so I argue, also for the thriving of many animal species. First, human beings are “not human [“animal”] in a vacuum”. They are embodied animals who “exist in a social, political and physical environment”. “What happens to the bodies of humans affects all elements of them”.Footnote ⁷¹ Second, “humans don’t do well by themselves. At bottom they are social animals. Not only do they smile more, but they do more and do better when they are part of a community. That means that the most accurate description of an individual will be in terms of the nexus of relationships in which she exists”.Footnote ⁷²

Thus, dignity is about being the type of being that you are. A being consists of at least two elements: it is a member of its species, but beyond this, also a unique individual.Footnote ⁷³ Other elements that might perhaps be considered constitutive of a being are family and group or community membership.Footnote ⁷⁴ For the purposes of this article, I will mostly focus on the first element: that of species membership. The importance of it has been recognised by various other authors.Footnote ⁷⁵ But how could the appropriate treatment flowing from it be explained in more concrete terms? An example of how this could be done is given by Swiss law. Interestingly, Swiss law incorporated the concept of animal dignity precisely because of the threat posed by technological developments.

Before proceeding to examine the Swiss animal laws in some more detail, it is worth noting that they have been influenced in their interpretation by the inherent value theory designed by Balzer, Rippe, and Schaber.Footnote ⁷⁶ The authors claim that non-human animals have dignity mostly because they have “a good of their own”.Footnote ⁷⁷ This means that “[t]hings can happen and be done to them which are good or bad for them”.Footnote ⁷⁸ It can be understood in a subjectivist and an objectivist way.Footnote ⁷⁹ The first view links dignity to sentient beings, whereas the second one links it to all living beings. I agree with Schaber that only the objective view could help us further, as it is only this view that goes beyond subjective experiences.Footnote ⁸⁰ How should those with dignity be treated then? They should be taken into account “for their own sake”.Footnote ⁸¹ The Swiss law may also have been influenced by other reports.Footnote ⁸²

As regards the content of those provisions, Art 120(2) of the Federal ConstitutionFootnote ⁸³ and Art 1 of the general federal animal-protection law, the TSchG,Footnote ⁸⁴ protect the dignity of animals. The latter is defined as the inherent worth or value of the animal that must be respected.Footnote ⁸⁵ The relevant state authority, the Federal Food Safety and Veterinary Office (FSVO), has stated that inherent good means that “it is appropriate for an individual living being to be able to lead a life typical of its species”.Footnote ⁸⁶

The Swiss law elaborates on the meaning of this sentence in Art 3 TSchG. It states that animal dignity is violated when a strain imposed on the animal cannot be justified by overriding interests. Strains are, in particular: pain; suffering; harm; anxiety; humiliation; major interference with an animal’s appearance; major interference with an animal’s abilities; and excessive instrumentalisation.Footnote ⁸⁷ Some of these strains merit further explanation. Harm is understood as an “[i]mpairment of species-specific properties, functions and habits”,Footnote ⁸⁸ especially “impairment of growth, reproductive capacity, adaptive capacity, mobility, and species-specific social behaviours”. This includes the criterion of “major interference with the abilities”. A major interference with the appearance is caused if: (a) “the change leads to a loss of function”; and (b) it is “permanent or irreversible”, such as tail or ear docking. Coat trimming in a poodle does not fall in this category. An animal is humiliated if it is “perceived and treated in a way that completely disregards its moral status as a living being that should be respected for its own sake”. Consciousness of the animal is not required. Humiliation is caused by: (a) “mechanisation of the animal”; (b) “making fun of the animal”; (c) “portrayal of the animal as inanimate, objectification”; (d) “measures associated with a complete loss of control (cyborg)”. Excessive instrumentalisation occurs when an animal’s inherent good is “completely disregarded”.Footnote ⁸⁹

The definition adopted by Swiss law covers a very broad range of elements that are visible in other dignity theories. It covers elements such as pain and suffering, which is reminiscent of the utilitarian “dignity” theory,Footnote ⁹⁰ but also excessive instrumentalisation, which hints at Kant’s theory. It further adds some unique elements to the main dignity theories: the major interference with an animal’s appearance; the major interference with an animal’s abilities; and humiliation defined in an objective way (and not just in a subjective manner, therefore consciousness is not required). It is exactly these three criteria (together with the excessive instrumentalisation criterion) that appear to be both accurate and helpful whenever acts (negatively) affect animals (or human beings) without them being conscious. It is also exactly these criteria that could deal with the technological developments mentioned above, most notably with the third category of cases which cannot be addressed through suffering arguments. The criteria used are thus capable of covering a broader range of situations than those currently used in EU and UK animal laws.

To be sure, the implementation of dignity in Swiss animal law may still suffer from some flaws. Swiss authors criticise it for, among other things, not including the right to life,Footnote ⁹¹ as well as for its sentience threshold. The latter is claimed to be arbitrary and results, according to the argument, in the law suffering from an inner contradiction.Footnote ⁹² Additionally, there are three further issues that are, in my opinion, relevant to dignity, but that do not seem to be readily available in the list of criteria in Swiss law that was set out above. These are the element of relationality;Footnote ⁹³ protection of animals after death;Footnote ⁹⁴ and protection of elements of a being other than only species membership, such as unique individuality (which may for example be relevant in the context of cloningFootnote ⁹⁵ ). A fuller investigation of these issues goes beyond the scope of this contribution. Suffice it to say for present purposes that, were the EU and UK legislators to implement animal dignity, such elements must not be overlooked. This is not to say that Swiss animal law provides us with a template that could be readily transplanted to another jurisdiction. It is submitted here that, although the proposed account of dignity seems to be in need of some further refinement, it very well illustrates how (at least some versions of) the notion of dignity could do a better job in dealing with the wave of technological developments discussed in this paper, compared to the notion of welfare that is currently used. Dignity seems to be a promising alternative.