Human Duties, Animal Suffering, and Animal Rights: A Legal Re-evaluation

From the inception of animal protection legislation in the early 19th century there has been a strongly held view that the philosophy underpinning these laws was that of a Bentham-esque utility calculus. Indeed Bentham himself drew attention to the plight of animals, citing the reason for their neglect as a result of their interests being ignored due to such abstract notions as their inability to talk and reason. For Bentham, of course, the only valid consideration was that animals had the capacity to suffer and, if so, this suffering should form a part of the utility calculus. Consequently, for the next 200 years this simple formula has, to a lesser or greater extent, been utilised in the delineation between suffering that is deemed “necessary” and that which is not. This paper will, however, challenge this notion and consider, instead, a duty based approach to animal protection. The paper offers an explanation of the duty-based approach and locates it within mainstream jurisprudence and legal theory, and will provide a discussion of the benefits of a duty-based approach in contemporary society. Furthermore it will be shown that rather than being a novel reinterpretation of the unnecessary suffering test in the 21st century, the duty-based approach underpinned the legislative intent two centuries ago when the first animal protection laws were promulgated.