A.R.L.A.N. ON PERSONHOOD
Deidre Bourke is on the Executive Committee of the Animal Rights Legal Advocacy Network (ARLAN), a New Zealand-based group of legal professionals interested in improving New Zealandís law as it relates to animals, and working to protect and promote the legal welfare of animals and look at why the law is so remiss in seeking out animal rights issues to tackle. Established in 2001 ARLAN has over 100 members across New Zealand. Membership is open to all lawyers and law students.
Abolitionist: What can lawyers do to help activists, and why is it important that we work together?
ARLAN: I have been heavily involved in the animal rights movement in New Zealand for around 12 years. In 1999 I came to a kind of personal crisis or "burn out" point, I suppose, in terms of frustration. I was frustrated about not being taken seriously as an activist, frustrated about animal issues not being taken seriously, frustrated at not seeing changes made even when we had public opinion on our side.
Perhaps driven mainly by cynicism, I started to think strategically about what I thought the animal rights movement needed and concluded that we really needed more "powerful" sectors of the community and lobby groups on side. In short, I think what the animal rights movement needs in order to get more political power and influence is to have more animal rights veterinarians, doctors, politicians and lawyers amongst our troops. I donít just mean "pragmatic", welfare-orientated people, but people who are going to push the animal rights cause 100 per cent in what they do.
In particular, I think lawyers are important because if we are going to help animals then we need to know how the system works and how we can change it, so that when we have captured public opinion we can finish it off and get solid, lasting changes. This is central because as animal rights activists we are fighting to change society. And the system that regulates society Ė and tells us what we can and canít do Ė is the legal system. If we canít get legal changes made that help animals and give them rights, we canít get them any real or ongoing protection.
Similarly, in New Zealand activists have put a lot of time into campaigning against animal circuses and changing the public view on using exotic animals for entertainment. Only a couple of small circuses still use exotic animals, but without a ban in place it is extremely difficult, if not impossible to get rid of these industries 100 per cent, and there is always a chance that they will become popular and more common again in the future.
Abolitionist: What do you think of personhood rights for non-human animals?
ARLAN: I definitely feel that the time has come to change the legal status of animals as property. The law currently treats animals as "things" or "objects". The framework is ancient and traces its roots back to Roman times when animals, women, slaves, children and the insane were all classified as "things" on the basis that they were non-rational beings and that they only existed to serve others. Today all persons, from the time they are born, regardless of their intellectual capacities, self-awareness or any other factor, are legal persons. A non-human animal, no matter what his or her species, or what their capacity, intellect or level of self-awareness may be, continues to be classified as a "thing". Non-human animals remain the only group still deprived of any rights in the eyes of the law.
This has enormous implications for animals, because if animals are property, then they can be owned and once someone has a property "right" over you they may, with very few restrictions, deal with you as they wish. They may buy or sell you, separate you from your family, breed you, and Ė most fundamentally Ė they may kill you whenever they wish. Other groups, such as women (who were at one point seen as the property of their husbands or fathers) and slaves, did not gain true rights until their status as property was dismantled.
The second major problem with animals being property is that property has no legal standing. They have no means of obtaining legal representation or making claims if harm is done to them. No mechanisms were ever developed to give property standing in court, since objects, cars, houses, chairs, etc, donít usually have "interests". The problem arises from the fact that animals are placed in the same category as these objects!
I think that change of some sort is inevitable, simply because our current knowledge about animals and the way that the public perceives them is fundamentally different from how modern society views any other type of "object". Many are starting to resent the label of "owner", for example, when they see their companion animals as part of their family, and themselves in a role more like that of a guardian. Similarly, when a companion animal is intentionally or negligently harmed, people want more than the mere "market" value of that animal as compensation in legal suits; they want recognition of the loss of companionship and emotional relationship that existed between them.
In practice, court orders or provisions in wills that require animals to be impounded or destroyed are also seen as different to orders to destroy other types of property. The severity of such provisions and public outcry in such cases is often huge. Judges are often acutely aware of these issues, being at the code face of the problem, so to speak. In short, it is becoming increasingly apparent to many that for the system to "do justice" in cases involving animals, some kind of distinction is necessary, even from a purely anthropocentric perspective.
Abolitionist: How feasible are changes regarding personhood?
ARLAN: From a legal perspective I actually believe this is a very feasible idea. Conceptually, the legal definition of "person" actually has more to do with access to justice and rights than it does with being "human". For example, even corporations are classified as "persons" in order to give them property rights and the ability to go to and be taken to court.
The main issue comes in relation to how the rights of animals would then be enforced, since if their rights cannot be upheld they will have little practical effect. This might sound like a big problem, but a lot of the groundwork has already been laid down due to developments in the protection of the rights of children.
Because children are often unable to speak for themselves or articulate their needs, the law has developed specific mechanisms for ensuring their rights can be upheld. In cases involving children, judges are specifically asked to consider what is in the "best interests" of the child, and to ensure this is done, the child is usually given their own court-appointed legal representative. Both of these mechanisms are already starting to be used and adapted in relation to animals.
For example, in the past any dispute as to the ownership of a companion animal was decided solely on the basis of who the legal owner was Ė who bought the animal. This has started to change, especially in the United States where judges deciding pet custody disputes are more and more frequently utilising "best interest" tests to decide the most appropriate place for the animal. Several cases on standing have also been fought in the United States. It is no surprise that such developments are taking place first in the United States where animal rights legal groups are the most firmly established.
In New Zealand the best interests test has already been formally introduced Ė in relation to great apes. Under New Zealandís Animal Welfare Act 1999, great apes may not be used for research, testing or teaching purposes unless it is in the best interests of the animal. This is not a true piece of animal rights legislation since there is a catch attached to this: great apes may be used for research if it is in the interests of their species, as long as the benefits to the species outweigh the likely harm to the ape. It is a move forward since it at least prevents great apes from being used to benefit humans, though they may still be used instrumentally, as a means to an end, for the benefit of the relevant species of great apes. But it is a start on the right track.
It will not be the legal, but rather the practical barriers that will delay animals acquiring personhood, as the societal changes necessary will be huge. This means that changes, the introduction of standing rights, best interests tests and guardianship regimes are most likely to be seen first in relation to companion animals, great apes and other animals humans feel very emotive about, such as whales, dolphins, horses and elephants.
Abolitionist: What are your plans for the future?
ARLAN: I am currently in the process of enrolling for my masters in law. I am going to be examining the system for regulating animal experiments in New Zealand. Having been involved in campaigning against animal experiments for several years, this is an issue I feel really passionately about and an area where I would like to focus on getting core changes made. Itís great because when I started my law degree I felt like the lone "animal rights" person on campus, but since founding ARLAN I have found many others within the legal community with a passion for animals. This time around when I do my thesis, both my supervisors from the law faculty will be vegetarian!
Looking at the bigger picture, I would like to work on building even stronger connections between the legal community and animal rights organisations. Iím proud to say that of all the professional groups, lawyers have been the most active on the animal rights front. To my knowledge there are relatively few groups of veterinarians and doctors campaigning on animal rights issues, but legally-orientated groups appear to be springing up everywhere at the moment. The law is driven by logical argument; it works on the basis of precedent, the idea that similar cases should be treated similarly. Given the vast advances in our knowledge about animals it should come as no surprise that the inconsistencies are starting to be debated in legal circles.
Abolitionist: Future goals?
ARLAN: Within ARLAN I chair the Legislative Review Committee. I definitely see myself continuing with the law reform work we are doing, making continued submissions on legislation, for example, but I hope to move on to more proactive initiatives in terms of drafting model policy and setting form goals for test cases on various issues.
I would also like to see animal law courses developed and introduced at New Zealand law schools. Animal law as a field is an area lacking attention and recognition here, and I think this fact is reflected in the way that cases dealing with animals are treated, and the types of sentences that are given out in cruelty cases, which are often appallingly low.
It is also important to get the next generation of lawyers thinking about these issues and taking them seriously. I know in terms of membership ARLANís keenest new members are often ones we have "grown" ourselves through our presence at Auckland Universityís law school.
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