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EXECUTIVE SUMMARY

The sentience of animals has long been recognised and has continued to be demonstrated on ever firmer scientific grounds. From the Brambell report (1965), which emphasised the importance of sentience in the understanding of animal welfare to the Cambridge Declaration of Consciousness (2012), which suggested widespread scientific acceptance of the idea (Rowan et al. 2021). In recent years, this widespread and scientific belief has been explicitly recognised in legislation in a growing number of countries and jurisdictions. 

It is certainly crucial that animal sentience be recognised in this way, as it is the most widely accepted basis for the inclusion of animals as moral patients. However, there is another question as to the value of the kind of legislation recognising the sentience of animals that we see in many different countries. This legislation explicitly recognises their sentience, though many other pieces of legislation could be thought to already implicitly do so. 

In our research helping organisations prioritise among different potential asks, we have considered the value of animal sentience legislation in many contexts. This report analyses the value of this legislation in terms of its current and future impact on animals.

However, despite the apparently high-minded language recognising animal sentience in legislation, it is often accompanied by quite little direct and immediate change for animals. In some cases the legislation is accompanied by some specific statements about what the recognition of animal sentience is taken to directly imply, but there is typically little of this, leaving the legislation to largely be a symbolic statement of pledged values, leading to some concerns that it may be ineffectual legislation that leads to complacency. This type of humane washing remains our biggest concern with the legislation, but we think it is unlikely that it makes the ask net negative.

In the case of the EU and New Zealand legislation, the intention behind the legislation as purely symbolic has been publicly stated, though this intention does not foreclose the possibility that animal advocates are able to draw some future victories from the legislation. In other cases such as Oregon and Québec we have seen some court cases that have successfully leveraged the legislation to push against the treatment of animals as property, though any significant improvements to animal welfare have yet to be seen.

The most successful case so far has been that of the UK, because it promises to establish a committee to make sure that government decisions give due consideration to animal sentience. Further, it includes cephalopods and decapod crustaceans, and there is some chance this will lead to further protection for these animals. However, the head of the sentience committee does not seem like the appropriate choice to ensure its independence because of his conflict of interest as a farmer. 

Despite the absence of direct effects so far, sentience legislation so far has some plausibility as being instrumental in the long-term strategy of the movement. This makes assessing the value of this ask quite difficult, since this potential long-term importance is much more difficult to evaluate.

Overall, our best estimate is that this ask has modest strength. In other words, with significant uncertainty, we think that the impact is fairly small compared to our top asks. We do not think that there is a risk of this ask being net negative, though we strongly recommend that organisations try to push to get sentience legislation to have concrete protections, so that it is more than symbolic and this risk is minimised. The strength of the ask will of course also vary by country context, and we could imagine it being competitive in certain cases.

This report draws mainly from case studies and existing philosophical and legal research. Expert interviews were also conducted. A more in-depth report could spend more time analysing parallels of potentially symbolic legislation (like declarations of climate emergencies). 

THE THEORY OF CHANGE OF A POLICY (REVIEW OF EXISTING LITERATURE) 

Thicker lines indicate stronger effects 

Animal protection laws could be seen to at least implicitly recognise animal sentience, since there would be little reason to protect animals otherwise (Kotzmann and Stonebridge 2021). Whilst there are alternative definitions of welfare, such as welfare as biological productivity, many definitions of welfare refer to sentience, and so talk of animal welfare is premised on animal sentience according to these prominent uses of the terms.

Animal protection legislation that goes further than specific restrictions and demands more general duty to minimization of pain or suffering could also be seen to more directly assume the sentience of animals, since under many (but not all) definitions of these terms, an animal who can experience pain or suffering is thereby sentient. 

There has also been recognition of animal sentience in various official channels, such as court decisions and government reports, that perhaps fall short of a full explicit legislative acknowledgement of sentience (Rowan et al. 2021). One example of this is the UK – Australia Free Trade Agreement which acknowledges the sentience of animals, even though Australian legislation itself does not do so (UK Government 2021). The implication of these minor recognitions of animal sentience is not clear, but it is probably not greatly significant.

There is a recent trend to go further than this and explicitly recognise the sentience of animals in legislation (Kotzmann and Stonebridge 2021). Many countries have done this to some extent, but a precise list is difficult because definitions of what it means to recognise sentience vary, and so other writers may have somewhat different lists. 

The countries that we consider to have legislation recognising the sentience of animals are Chile, Colombia, Peru, Tanzania, New Zealand, the United Kingdom, and all EU countries (Rowan et al. 2021; Kotzmann and Stonebridge 2021). Indonesia, Norway, Switzerland and Turkey do not recognise animal sentience as such, but refer to animals having mental states as well as physical states (Rowan et al. 2021). It has also been recognised in territories including the Canadian province of Québec; the US districts of Oregon, Vermont, Maine, and Washington DC, as well as the Australian state of Victoria and the Australian Capital Territory (“Australian Capital Territory Enacts New Law Recognizing Animal Sentience” 2019; Kotzmann and Stonebridge 2021; VSD 2022).  

A number of these countries, such as the European countries and New Zealand, have among the highest animal welfare standards in the world. This suggests a correlation (though not necessarily causation) between the recognition of sentience and broadly high animal welfare standards.

If the sentience of animals is already implicit in much existing legislation, it naturally raises the question of what is the value of this explicit recognition? The most plausible answer to this is that it brings this rationale into the open where it can be explicitly evoked to claim that current protections do not go far enough and imply more expensive protections. 

Moreover, sentience legislation is often worded in such a way that explicitly treats animals in a way that, in some respects, deviates from the normal paradigm of animals as property. Judicial interpretations of the legislation in many jurisdictions (as seen in the “Case Studies” section) have cemented this interpretation.

Sentient beings, yet still property

Whether animals are considered property is hugely relevant according to some animal advocates, such as Gary Francione. According to them, it represents the root cause of their exploitation and suffering. He therefore thinks that the fundamental right that animals need is the right not to be treated as property (Francione 2004).

In contrast, Cass Sunstein (Sunstein and Nussbaum 2004) suggests that ‘property’ is just a label for possible legal statuses, without inherent significance in itself. He suggests that we do not always get to do as we please with all of our property, instead there may be substantial restrictions placed on use of our property (such as with objects of historical importance), without changing the status of property. Furthermore, children have dramatically reduced autonomy compared to adults, yet are still regarded as persons rather than property. This shows that it is possible for the rights of something and our duties towards it to vary substantially independently of whether that thing is ‘property’ or not.

One key example of how sentience legislation has been largely symbolic is how animals are typically still regarded as property in those countries or areas that recognise them as sentient (Sowery 2018; Kotzmann and Stonebridge 2021). The law may recognise some exceptions to their status as property, for example the exceptions that allow them to be rescued in violation of normal property norms when they need medical attention, but in most respects they are still treated as property. The legislation in some areas refers to them as being more than property, but in practice this is largely symbolic because (at least so far) there is little practical consequence to this lofty language (Ferrere 2022). Nevertheless, the traditional interpretations are plausibly pushing at the boundaries of the view of animals as property.

Is sentience legislation aspirational?

A further question concerning sentience legislation is how much it can allow us to continue to push these boundaries. Considering primarily the 2015 animal sentience legislation in New Zealand, Ferrere (2022) argues that because the legislation is just a statement of (widely recognised) scientific fact and does not include a statement of how they should be interpreted to guide our conduct, moving forward, it is not aspirational. He therefore will not be very helpful in securing future victories for animal advocacy. 

Note that he does still think that this curtails the legal benefits of the legislation; he believes that the legislation can have some impact as a signal. In other words, they can add strength for the cause by being seen as a significant commitment to animal welfare and rights and a sign that the government wants more work done on this issue.

This interpretation seems to be at least partially contradicted by cases where the legislation seems to be more somewhat broadly and ambitiously interpreted by judges and by government, such as the cases in Oregon that saw some property rights in animals suspended. However, we should note that none of these cases have yet secured large, concrete welfare gains for animals and significantly more ambitious interpretations of this legislation will need to happen if we are to begin to see significant impact for animals. Ultimately, it is a difficult matter of legal interpretation, and while most scholars on the subject seem to be more optimistic than Ferrere, his interpretation remains plausible.

A change in the advocacy landscape?

Though the legislation would be better if it protected animals more concretely, the symbolic nature of animal sentience legislation has one strength, which is that the lack of immediate consequences for animals may make it much easier for countries to accept it. The legislation may appear innocuous because it is just a public acknowledgement of implicit values and so might be accepted much earlier than could be possible for stronger legislation (Ferrere 2022). But once accepted, it may serve as the basis for challenges based on the full meaning of the terms and the inconsistency between those lofty terms and current practices. 

There may then be some benefit in the fact that the legislation does not spell out its exact implications. This allows for future work by advocates to argue for stronger interpretations of this legislation than might be accepted at current times. The full reach of the legislation, when realised by later activists, may be stronger than we might otherwise be able to pass through legislative means. 

In this way it can help future advocacy efforts by placing advocates and governments closer together, causing the government to use the same vocabulary as the advocates and therefore bringing their conceptual and moral frameworks closer together. Advocates no longer have to argue for the importance of sentience since this is already acknowledged in legislation. It offers an easier framework and ground from which to advocate for concrete welfare changes (Rowan et al. 2021). 

The ability to point out these inconsistencies can bring a change in the advocacy landscape, along with any clauses about how this should be taken into account in decision-making, and the extreme neglect or disregard for that sentience that the government allows in practice.

Sentience legislation may also prevent backsliding. Though this may not be an uncommon argument, the existence of the legislation prevents someone from defending the acquisition of animals on the grounds that animals are not sentient. They may be able to find some other rationale to use instead, but it limits the options available to them.

Precedent-setting

One argument for sentience legislation is that it may set a precedent that other countries or territories may follow. With many countries and jurisdictions now recognising the sentience of animals, others that view themselves as having leading animal welfare policies may feel significant pressure to adopt sentience legislation of their own. We can begin to see this with the case of New Zealand, which may have adopted its sentience legislation because it wanted to be seen as a world leader in animal welfare, and so it felt it was necessary to adopt the legislation (Ferrere 2022). Of course, this may not save the policy if it was ineffectual and purely symbolic in the first place, since it might only inspire further ineffectual legislation (Ferrere 2022).

The precedent of many other countries passing legislation to recognise animal sentience may make this ask significantly more tractable. Countries may believe that in order to compete with these countries' animal welfare standards, they should implement this legislation. This may be what happened in the case of New Zealand.

Countries that are stronger on animal welfare, but have not already adopted animal sentience legislation, might be the best candidates for this legislation because they may be most likely to use the legislation to advance reforms. However, there are no countries that clearly meet this description that have not already adopted animal sentience legislation.

One potentially strong candidate for this legislation is Australia, since the state of Victoria and the Australian Capital Territory have both adopted the legislation. The case could therefore be made to unify these policies by making them federal. Australia is not particularly strong on animal welfare (WAP n.d.), which would make it more difficult to adopt this legislation, but it also might make the legislation more impactful once adopted, because there would be a larger difference between the lofty language of the legislation and current practice. 

Legislation recognising the sentience of disputed cases 

One important precedent that is beginning to be set is the recognition of the sentience of not only vertebrate animals, but also decapod crustaceans and cephalopods. It stands to reason that legislation recognising the value of relatively more disputed cases of animal sentience would be of higher value than legislation recognising the sentience of other animals. This is because the public is much less aware of the strong scientific case for the sentience of these animals, and so this legislation would be doing more than stating the obvious in recognising their sentience. It may therefore play the role of raising public acceptance of the sentience of these animals. 

As part of their submission of evidence for the Animal Welfare (Sentience) Bill (RP, n.d.) Rethink Priorities conducted a survey on public beliefs about the sentience of invertebrates and how this is affected by expert opinion. They found that a clear majority of the public believed that these animals are sentient, including crabs (78.09%) and octopuses (80.65%). Moreover they found that 91% of the public thought that if scientific experts believed that there is some evidence that a group of animals are sentient, we should exercise caution in our treatment of them. This suggests that, at least in the UK, the public support is there for including these animals. Insofar as legislation recognising animal sentience is regarded as the result of consultation with scientific experts, it also weakly suggests that it may lead people to believe that we should be more careful in our treatment of them. Though a study more directly trying to compare the influence of sentience legislation on public opinion after it has been passed, would be more valuable in assessing its impact.

More concretely, it may also serve as an impetus for some legislation protecting the welfare of these animals. Unlike the sentience of larger animals, the sentience of invertebrates has not even been implicitly recognised and there is no real legal rationale for legislation to protect them prior to this recognition. This may mean that it is substantially more likely that this legislation will cause real change because it represents a real change in political attitudes, rather than an overdue admission of a change in political attitudes. If the UK government implements some of the recommendations in the Review of the Evidence of Sentience in Cephalopod Molluscs and Decapod Crustaceans (2021), this will be a clear case of sentience legislation causing further, more concrete animal protection legislation.

If this is right that legislation recognising the sentience of invertebrates (or other more disputed cases) is indeed particularly valuable, that may provide an argument for sentience legislation in general, since the sentience of larger animals must presumably be recognised first and in doing so a conversation can be raised about which animals to include. This appears to be what happened in the UK case.

Encouraging a focus on the positive dimension of welfare

Another important aspect that could result from sentience legislation is support for a focus on the positive dimension of welfare. Standard definitions of sentience include the ability to experience positive welfare as well as negative welfare. This is significant because almost all existing animal welfare legislation concerns only reducing the amount of negative welfare experienced, rather than allowing animals to experience positive welfare. If this positive dimension of sentience began to be taken seriously, and inspire new legislation to cover for this dramatic oversight, this could greatly improve the value of this legislation (Ferrere 2022). Unfortunately, we have not yet seen significant precedents of this happening, so this outcome remains speculative.

CASE STUDIES 

In cases where more precise comparisons are difficult, case studies can be valuable in providing at least some points of comparison. For this reason, we focused on a number of case studies for this report to try and assess: 1) the tractability of implementing the legislation, 2) any direct effects associated with the legislation, and 3) the broader consequences of the legislation, including subsequent animal welfare legislation or court decisions that may be attributable to the sentience legislation.

Nevertheless, there is some difficulty in assessing 3), since the most progressive countries for animal welfare are likely to pass legislation recognising the sentience of animals, as well as a variety of other more comprehensive laws. It might therefore look like the legislation recognising the sentience of animals caused the comprehensive legislation, while in actual fact both were simply the result of the country being more progressive on animal welfare. To compensate for this, we have tried to focus on finding cases where the causality between the sentience legislation and the subsequent animal protection legislation or court cases seem relatively clear.

The EU

The EU represents the earliest case of sentience legislation that we are aware of. In 1991, Compassion in World Farming gathered over 1 million signatures to get animal sentience recognised in EU legislation, making it the largest petition to be presented to the EU at that time. In 1994, this petition was accepted by the European Parliament (Rowan et al. 2021). This led to the Treaty of Amsterdam (European Communities 1997) recognising animal sentience at the EU level for the first time. The entire section of this treaty concerning animal sentience and welfare reads:

“THE HIGH CONTRACTING PARTIES, DESIRING to ensure improved protection and respect for the welfare of animals as sentient beings, HAVE AGREED UPON the following provision which shall be annexed to the Treaty establishing the European Community, In formulating and implementing the Community's agriculture, transport, internal market and research policies, the Community and the Member States shall pay full regard to the welfare requirements of animals, while respecting the legislative or administrative provisions and customs of the Member States relating in particular to religious rites, cultural traditions and regional heritage.”

The clause that Member States “pay full regard to the welfare requirement of animals” is the most concrete and may be important in ensuring that the lives of animals are ultimately improved by this treaty. However, because the whole passage is still remarkably short and unspecific, it is again largely symbolic. This was followed by the Lisbon Treaty (European Council 2007), which finally enshrined this in legislation through Article 13.

The strength of this legislation was put to the test in 2001 when, in response to the hoof and mouth disease pandemic, the EU issued a directive banning the use of preventative vaccinations, and instead mandating the slaughter of these animals. When this decision was contested on the grounds that respect for the sentience of these animals should mean that they can only be slaughtered when it is absolutely necessary, the European Court of Justice ruled that the animal welfare protocol recognising sentience was not meant to institute any principles and EU law, it was just meant to codify existing principles. It is possible that the judge ruled irregularly and future judges will rule differently, but as it stands, this amounts to an admission that the EU animal sentience legislation is purely symbolic, and just a kind of window dressing on existing animal welfare policies (Pedersen 2009).

The Treaty of Amsterdam (1997) was only one part of a flurry of animal protection legislation passed in the 1990s. Most prominently, Council Directive 98/58/EC Concerning the Protection of Animals Kept for Farming Purposes passed in 1998 and introduced protections to all farm animals, including the five freedoms (Pedersen 2009).

Progress then slowed down significantly starting in the mid-2000s (Pedersen 2009). Overall, it looks like the animal sentience legislation has not resulted in further animal protection legislation in the EU, and could be thought to have caused the speed down, though other explanations seem more plausible in this case, such as new, more recalcitrant countries joining over this time (Pedersen 2009).

The UK 

The UK has a long history of animal welfare legislation, from the Cruel Treatment of Cattle Act (1822) to the Brambell report (1965) and the subsequent development of the five freedoms (Council 2009). During its membership of the EU, the UK received animal sentience legislation as a result of the Treaty of Amsterdam (1997). After leaving, since EU legislation would no longer be in force in the UK, the UK decided to adopt much of the existing EU legislation into UK legislation. However, the nature of the legislation in this case did not work well with the UK legal system, meaning that some adaptations would be necessary if the legislation were to be retained (Brooman 2018). 

The Conservative party (which was in power at the time) decided that existing legislation already adequately protected animals, and so formal recognition of animal sentience was unnecessary. The party was therefore whipped to vote against adopting Article 13 of the Treaty of Lisbon into UK national legislation, with the rationale that the UK’s legislation already adequately protected animals. There was a public backlash in response to this which prompted the Conservative party to reconsider this, and in 2019, a group of 50 animal advocacy organisations formed a coalition called Better Deal For Animals to push for UK legislation to match the EU legislation recognising animal sentience (Rowan et al. 2021). In response to this pressure, they later decided to adopt national animal welfare legislation (Brooman 2018). 

This legislation went beyond the EU legislation on animal sentience in one respect: the recognition of decapod crustaceans and cephalopods as sentient. This was done in response to a review of the evidence of their sentience (Birch et al. 2021) that the government commissioned, which concluded that there is very strong evidence to believe that cephalopods are sentient, and somewhat weaker, though still strong, evidence that decapod crustaceans are sentient.

This recognition may be particularly valuable since the sentience of these animals is not as widely recognised as the sentience of other animals (see the section “Legislation recognising the sentience of disputed cases”).

Though the sentience of decapod crustaceans and cephalopods has now been recognised, they are still not included in even the basic protections of the Animal Welfare Act, and they are certainly not protected by more detailed secondary legislation, such as a Code of Practice. This makes the recognition of their sentience relatively symbolic so far, but since this is a recent development, it will be important to see if they are later included in the Animal Welfare Act (2006) or other legislation, as the government-commissioned report recommends. If they are later included in the Animal Welfare Act this could be a case of sentience legislation leading to more clear benefits for animals, since the Animal Welfare Act includes more specific and concrete protections for animals.

The government-commissioned report does recommend certain protections be implemented. These are bans on: declawing, ‘nicking,’ the sale of live animals by untrained workers, storage in cool temperatures, banning eyestalk ablation, and octopus farming, as well as the importation of farmed octopus products. They also recommend more research into stunning methods for decapods and research into potential humane slaughter methods for octopuses (Birch et al. 2021). If any of these recommendations become legislation, this will be the strongest example of concrete animal welfare outcomes being the result of animal sentience legislation.

Also remarkably, as part of the UK recognition of animal sentience, an independent committee of animal sentience is to be established with the task of ensuring that other government departments pay due respect to animal sentience in their decision-making (DEFRA 2021). The independent nature of this committee could be an asset, since it will make it less likely that it will be captured by industry interests. The government has said that sentience will not take priority over other considerations when formulating legislation, but this is still very significant (Ares n.d.). If properly implemented, this would make the UK’s recognition of sentience more concrete and less purely symbolic than any of the other cases we have discussed in this report.

In response to the bill, the UK Centre For Animal Law (A-Law) raised the concern that it does not include details about how the independence of the committee and their expertise regarding animal sentience are to be insured (Ares n.d.). 

Unfortunately, this concern has been borne out, as Michael Seals has now been chosen as the head of the animal sentience committee (DEFRA 2022). Instead of an expert on sentience or an expert on animal welfare, Michael Seals is a farmer. This defeats the purpose of having an independent animal welfare committee if the person in charge themselves has industry interests.

New Zealand

Another country that recognises the sentience of some invertebrates in legislation is New Zealand. In 2015, the Animal Welfare Act of New Zealand (1999) was revised to recognise the sentience of vertebrate animals, as well as the sentience of octopuses, squids, crabs, lobsters, and crayfish (WAP n.d.). This amendment was implemented following submissions by World Society for the Protection of Animals and the National Animal Welfare Advisory Committee for the Animal Welfare Amendment Bill consultation (James 2016). These organisations argued that the sentience of animals should be recognised in this legislation as a rationale for the rest of the Animal Welfare Act because sentience is widely considered to be the basis of the need to focus on welfare.

Unfortunately, in a clarificatory note, the New Zealand government writes that the recognition of sentience "would not impact the detail of any of the rights, duties and obligations" (Ferrere 2022). As with the statement by the European Court of Justice, this is a frank admission of the purely symbolic intentions behind the legislation. 

Concerning New Zealand’s recognition of animal sentience, World Animal Protection concludes: 

“However, the inclusion of sentience has been of no practical value in improving the treatment of animals. The basic purposes and principles of the Act are positive, but millions of farm animals are denied these protections by some very broad exceptions. Therefore, New Zealand should use the recognition of animal sentience to implement stronger animal protection provisions” (WAP n.d.).

Vanessa James (2016) argues that the legislation recognising the sentience of animals in New Zealand is currently largely symbolic, but that it implies much stronger protections, especially surrounding freedom to perform natural activities. She concludes with recommendations about how legislation might be changed to be consistent with the recognition of animal sentience.

Despite this admission of a purely symbolic intention behind the legislation, and the James paper, some new animal welfare legislation has been put forward including new regulations in 2016, 2018, and 2020 (Ministry for Primary Industries n.d.). Though this is hard to assess from our brief evaluation, it does not seem that this new legislation is particularly strong or that the previous legislation recognising the sentience of animals is the clear inspiration for it. 

One notable case is that a new welfare code has been drafted for pigs which includes a phaseout of farrowing crates (SPCA 2022). Instead, sows would be provided with a farrowing area with nesting material and a support structure for lying down in an area that piglets could retreat to away from the sow. We could not find any clear indication that sentience legislation helped with this ban. 

In the case of Haenga v Porirua City Council in New Zealand (NZ 2021), a dog owned by Mr.  Haenga attacked another person causing disfiguring injuries. The decision of the court was that the dog was to be “destroyed”, the standard decision in cases such as this. However, in a clarificatory note, the judge notes the tension between the language of “destroyed” (suggesting that the dog is an object) and the legislation recognising dogs to be sentient beings. The judge further suggests that: “One might think that the question of public safety and what is to be done with a dangerous dog ought to be unshackled from the criminal responsibility of its owner”. Though the decision resulted in the death of the dog, we can see the beginnings of an evolution of the judges' thinking surrounding the proper interpretation of this legislation, and how that interpretation pushes against the view of animals as objects and property.

In addition to recognising their sentience, the New Zealand Animal Welfare Act (MPI 1999) brings octopuses, squids, lobsters, crabs, and crayfish under its broad protections, though with very little specific regulations on their treatment.

US districts

Oregon, Vermont, Illinois, Colorado, Connecticut, Montana, Massachusetts, California. Maine, and Washington DC have recognised animal sentience (Kotzmann and Stonebridge 2021). Of these, the state of Oregon, which recognised animal sentience in 2013, is the most progressive and has been most active in adjudicating the full significance of this legislation. In several cases, the Oregon state Supreme Court has ruled that, since animals are individual sentient beings, cases where multiple animals are harmed are treated as multiple infractions of the law, rather than a single case (Kotzmann and Stonebridge 2021). This seems to be mainly relevant for the size of punishment received, which is not very relevant for the bottom-line goal of helping animals, but it does show a case where animal sentience legislation is at least not ineffectual.

In several other cases in Oregon, individuals were able to rescue animals that seem to be neglected or at risk of harm and successfully defend their right to violate normal private property norms since animals are sentient beings (Kotzmann and Stonebridge 2021). 

One such case is the case of the Oregon dog, Juno, as described in Dunn and Rosengard (2016). In this case, Juno was noticed in the backyard by a neighbour emaciated and visibly starving. The police were called and the dog was seized as a case of animal neglect, but the judge ruled that it will be necessary to test to rule out the possibility that there was some condition that was preventing the dog from receiving proper nutrition. Blood was drawn in order to make this test and it was determined that there was no special condition that could explain the emaciation, indicating that neglect was the source of Juno’s misery. 

The owner objected to this on the grounds that drawing blood from a dog in order to perform the test was an unlawful use of their private property, and should therefore not be admissible as evidence in the case, but the judge ruled that this property right did not apply in this case because the dog was a neglected sentient being. These rulings could support activists' direct action rescue efforts in Oregon that could help challenge the animal property paradigm.

Concerning the Oregon sentience legislation, Ferrere (2022) concludes that “It is clear that Oregon courts have noted the progressive nature of its animal welfare legislation, reflected in its recognition of sentience, but it remains unclear whether that recognition itself has had a direct impact in improving the interests of animals.”

Similar decisions were reached in the Vermont Supreme Court. In one such case part of the verdict included the line “a defendant’s property rights over animals are limited when animal welfare is at risk, and we must take the animal’s welfare into consideration when determining the legality of a search or seizure” (Kotzmann and Stonebridge 2021).

Unusually, the Oregon animal sentience legislation offers some definition of its terms, with animals defined as “sentient beings capable of experiencing pain, stress and fear" (Ferrere 2022). In this case, the legislation does not appear to be very bold, with no reference to positive welfare, only reference to a limited number of negative states that are already widely legislatively acknowledged to happen to animals.

Whilst the direct effects of these cases are still limited, one can imagine extensions of these cases being relevant. For example, at some point, after further legal work and animal advocacy, we could imagine it being possible to legally challenge a factory farm to give up its animals for medical care, on the grounds that they are neglected, and so normal private property norms should be suspended.

Québec

Another subnational district that recognises the sentience of animals is Québec. As Canada is a federalised country, animal protection legislation differs significantly by province and territory. In 2015 Québec became the only Canadian province or territory to adopt legislation recognising the sentience of animals. The Animal Welfare and Safety Act was created to enforce this status as sentient beings (Lessard 2021). Amendments to the Civil Code around the same time also recognised animals as “beings”, not “things” and recognised that they have “biological needs” (Ferrere 2022). 

Lessard (2021) argues that his recognition of biological needs may help cover for the lack of “right to life” that sentience legislation provides. This can be seen in one case attempting to argue that euthanising stray dogs was inconsistent with the recognition of animals as sentient beings. The court ruled that just because they are sentient beings, this does not mean that they cannot be a nuisance or a danger and that methods to counteract this may still be appropriate (Ferrere 2022).

Concluding his article, Lessard writes: 

“In sum, judges transformed what could have been a simple declaratory recognition of animal sentience and biological needs into a provision with normative force. Within a few years, sentience recognition evolved into sentience protection. To be sure, this normative force does not prevent humans from exploiting and killing animals on a daily basis. However, it does ensure that harm is done with some respect for animal sentience and biological needs. In other words, Québec law frankly acknowledges that humans may legally use other sentient beings, but it compels them to use a certain amount of respect while recognizing the special bonds humans develop with animals” (Lessard 2021).

The court of appeal of Québec has confirmed that animal sentience legislation in the province is more than just symbolic. They say that the legislation dictates that people should not cause pain to animals and that regulations must also be designed to protect animals from pain (Lessard 2021). However, it is not clear from this statement if this goes beyond other animal protection legislation in other areas, which also typically requires the minimization of pain.

Overall lessons from the case studies

Despite these victories and the promising wording of the animal sentience legislation, not a great deal has changed for animals so far (Ferrere 2022). These victories are notable as exceptions – the situation for animals has otherwise remained the same. Kotzmann (2022) characterises the time following the passage of this legislation as a crossroads, with potential for either great change on behalf of animals in the future or with the continuation of the status quo of very little protection in practice. 

Sometimes legislation recognising animal sentience is less symbolic and more explicit details or partner legislation are included spelling out direct intended implications. This is most true in the case of the UK, which will have an animal sentience committee tasked with making sure that the government pays due regard to the sentience of animals (Kotzmann 2020).

The recognition of animals as sentient beings certainly seems to be a step away from their treatment by the law as objects. However, in many cases animal sentience legislation in a country or area coexists with legislation that continues to regard them as objects. In practice, they have a kind of uneasy ‘dual status’ (Kotzmann 2020).

One thing to keep in mind is that this kind of judicial pushing at the edges is more difficult in countries with civil codes of law (because it relies on judges taking more initiative in interpreting the law), meaning that the solution may not be able to be effectively implemented everywhere (Kempers 2022).

CRUCIAL CONSIDERATIONS  

Does sentience legislation do enough to protect animals from killing and exploitation?

Lessard (2021) brings up a concern with animal sentience legislation, which is that it may not do enough to prevent the killing and exploitation of animals, so long as it is done “painlessly”. It may allow killing because sentience legislation primarily points to a hedonic conception of well-being, which could in principle allow painless killing. Views that assign extra moral significance to killing or death (such as preference satisfaction views) or views that exploitation is intrinsically morally problematic would object to this.

The strongest validation of this concern is the Québec case of defending a decision to euthanise a stray dog for being a “nuisance”. As discussed earlier, this decision was defended on the grounds that the recognition of sentience does not preclude an animal being euthanised when other interests are at stake. This represents the Québec judicial system in practice giving very little moral consideration to the sentience of animals by weighting its importance lower than minor interests of humans.

However, there is at least a theoretical justification for respect for sentience translating into some protection for their lives and protection from exploitation. As long as an animal’s life is worth living, hedonic views would prohibit killing them because their life is expected to contain more happiness than suffering. Since a hedonic view would also require people to give animals a life worth living in the first place, after that is done, it would then prohibit them from painlessly killing those animals (Višak 2013).

It is also difficult to imagine economically feasible use of animals that truly minimises suffering and gives them a life worth living that is still exploitative towards them. If this is not possible, then a duty to respect their sentience would also protect them from exploitation.

The problem may therefore be less with the implication of this policy, and more with convenient interpretations of it. That is to say, the problem may be that a simple reading of policy could be seen to support “painless” killing and continued exploitation. In the worst case, such a policy could be used to provide cover for these continued practices on the grounds that animals are being respected by the sentience legislation. It remains to be seen if other jurisdictions will rule similarly to the Québec case or if they will see sentience as implying broader protections than this.

However, the fact that a single piece of legislation does not cover all morally relevant cases of harm is not a good argument against it. As with civil rights victories, it is most likely that animal protection legislation will come step-by-step and future legislation can cover for weaknesses in previous legislation (Kempers 2022). 

Vagueness

Ferrere (2022) argues that the fact that sentience is typically not defined in the legislation recognising it poses a significant problem to the value of this legislation. He claims that a judge would be unlikely to proceed with provocative interpretation of the legislation, an interpretation that would affect lives or livelihoods, if the term is not clearly defined. 

Not being anchored to a current definition of the term means that the effect of this legislation may change over time with new interpretations of these terms. This may be beneficial if we expect progress on attitudes towards animals, as a more favourable definition may be used, but it could also open a window to backsliding to a more aggressive definition of sentience. Overall, we think progress is more likely and so we view this aspect of the vagueness concern as being potentially positive.

Humane washing

Trøite and Myskja (2018) examines the case of the Norwegian Animal Protection Act (2009), which recognises the intrinsic value of animals in what they suggest is a purely symbolic way. They argue that there is a risk that using words in a way contrary to their normal meaning undermines that meaning, which could have long-term political significance. The same argument would apply to animal sanctions legislation, suggesting that their symbolic use could undermine the strength and political significance of these terms.

This could be viewed as a form of “humane washing”, where current exploitative practices are shrouded in a veneer of being high welfare, potentially leading to complacency with the current status quo (Scott-Reid 2021). In this case, people may take psychological refuge in the fact that the legislation respects animals, without any real benefit for animals. If people can receive all the moral acclaim associated with recognising the sentience of animals, without having to change their actions, they will not have any additional reason to change their actions to improve the situation of animals. It is therefore at least important to make sure that people who only say the right words do not receive the same moral acclaim as people who actively help animals. 

Of course, this case may only be a reflection or symptom of the dramatically inconsistent attitudes towards animals in our society. We cherish some animals as beloved companions, whilst raising others in horrific conditions (Francione 2004). Because this is already common, symbolic sentience legislation may not be entrenching an attitude that is not already present. It may therefore represent less of a risk than would otherwise be expected.

Trøite and Myskja (2018) note that this concern must be balanced against the potential for the legislation to lead to change. People can recognise the inconsistency between the lofty language of the legislation and current practice, and this can bolster campaigns or legal challenges to current practices by allowing them to point out this hypocrisy.

Ultimately, we do not think this consideration is decisive against the value of sentience legislation. Moral progress appears to mostly come step-by-step, and we cannot always expect significant actions to follow words from the onset. Nevertheless, we should push as much as possible so that the legislation is not purely symbolic. Fortunately, sentience legislation itself provides an important tool for doing so, since it allows us to point out the inconsistency and hold people accountable for their commitments in legislation.

CONCLUSION AND REMAINING UNCERTAINTIES

An assessment of the value of animal sentience legislation is difficult because any significant benefits for animals from the legislation lie well into the future. We see some potential in the legislation in enabling future activism and judicial challenges, as well as potentially prompting future legislative change. We can envisage how this might play into a theory of victory ultimately leading to fundamental rights, though it also seems like it is not strictly necessary in this pathway. We view the legislation as generally shifting the conversation with government in a more promising direction, though since sentience is already implicitly recognised in many jurisdictions, this may not be a large shift.

We remain most impressed by the results seen in the UK, where an animal sentience committee was established (though this has now been compromised by the choice of committee chair) and the sentience of decapod crustaceans and cephalopods was recognised with potential for further legislation to protect them. The best case scenario for an organisation may be replicating this result in another country, but with stronger sentience committee appointments.

On the other hand, if organisations are only able to establish the relatively toothless legislation seen in the EU and New Zealand, we are not convinced that this is among the strongest possible campaigns for that organisation.  The argument that this legislation represents humane washing is a significant concern, but we are not convinced that this makes the campaign overall negative, as long as organisations pressure the government on this point to make it more than just symbolic.

Our most significant remaining uncertainty is just our overall assessment of the impact of legislation that has not yet seen significant direct impact on the lives of animals. Since this legislation is relatively new in many jurisdictions, it will be important to monitor the situation and note whether it leads to significant further improvements for animals. It will be especially important to monitor the case of the UK, as that represents what is so far the strongest version of this ask.

One interesting avenue that we did not explore is examining potential historical parallels to sentience legislation – legislation that appears only symbolic – and see if it ultimately contributed to any concrete outcomes.

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