The concept of animal rights through the lens of critical analysis

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National University of Life and Environmental Sciences of Ukraine

The concept of animal rights through the lens of critical analysis

V.M. Yermolenko

Abstract

Keywords: animal protection, natural animal rights, the concept of animal welfare, natural laws of animal coexistence.

Анотація

Концепція прав тварин крізь призму критичного аналізу

В.М. Єрмоленко, кафедра аграрного, земельного та екологічного права ім. академіка В.З. Янчука Національний університет біоресурсів і природокористування України, Київ, Україна

У статті розглядається поширювана нині тенденція запровадження у понятійно-категорійний апарат сучасної юридичної науки лексичної конструкції «права тварин», що умовно названа автором статті концепцією прав тварин. Підкреслюється поглиблення світових рухів захисників прав тварин, які виливаються у створення відповідних громадських організацій, декларування прав тварин, а також проведення щорічних маніфестацій з приводу Міжнародного дня тварин тощо. Свого часу існувала навіть ідея запровадження в Україні посади Уповноваженого з прав тварин за аналогією з Уповноваженим Верховної ради з прав людини. Наведене в цілому підкреслює належний рівень актуальності розглядуваної проблеми. Проведене дослідження базується передусім на міждисциплінарному підході, адже концепція прав тварин виходить за межі сугубо юридичної науки. В роботі наведені позиції представників натуралістичних і філософських наукових напрямів обґрунтування доцільності запровадження прав тварин, зокрема нововиниклої науки екологічної етики, прихильники якої розробили навіть класифікацію прав тварин з пропозицією її поширення на всіх без виключення живих організмів, включаючи мікробів і вірусів, а також рослин. Критично аналізуються також здобутки філософської доктрини у частині виокремлення інтересів тварин як основи формування їх прав. Обґрунтовується, що всі соціо-натуралістичні та філософські напрями обґрунтування концепції прав тварин є хибними з погляду формальної логіки, бо базуються на логічній помилці, викликаної порушенням закону тотожності в процесі доказування, якою є підміна тези. З огляду на алогічні спроби науковців юридичного профілю втиснути існування тварин у рамки виключно людського абстрактного мислення, наслідком якого є суспільні відносини та безпосередньо право, як регулятор суспільних відносин наводиться критичне ставлення до цього. Вважається, що значно прийнятною є концепція «благополуччя тварин», у основі якої лежить необхідність визнання потреб тварин жити в природних умовах та гідного ставлення до них з боку людей. Зазначається, що саме ця концепція покладається в законодавство передових країн світу та в національне законодавство. Звертається увага, що стаття є цінною на лише для науковців юридичного профілю, а й для фахівців натуралістичних і філософських наукових напрямів для зосередження своїх досліджень на сугубо морально-етичних аспектах, що більше відповідає викликам сьогодення.

Ключові слова: захист тварин, природні права тварин, концепція благополуччя тварин, природні закони тваринного співіснування.

Introduction

Over the past half century, the global trend towards animal protection has significantly intensified, the main focus of which is to give the animals rights. On this occasion, at the initiative of the International League for Animal Rights, on September 23, 1977, the Universal Declaration of Animal Rights was adopted in London, which was announced on October 15 of the same year at the UNESCO headquarters in Paris¹. Admittedly, the expansion of the ranks of animal rights activists has certain positive aspects in terms of improving the morality of the humankind, rooting in the minds of people the idea of preserving biological diversity in order to ensure sustainable civilisation. At the same time, from the legal standpoint, this declaration necessitates a number of remarks. First of all, the declaration is an international document on the fundamental principles on certain issues [1], which combines declarative rules that do not contain specific rules of conduct, but define the goals, objectives, principles of certain branches of law, legal institutions, subject, form and means of legal regulation [2].

Thus, the legal nature of the declaration is devoid of universality as one of the essential features of normativeness, which is replaced by indicativeness in the implementation of national legislation. The only indirect confirmation of this is the announcement at the UNESCO meeting, i.e., the announcement without proper procedure of its identification. For comparison, the Universal Declaration of Human Rights was adopted and proclaimed by the UN General Assembly on December 10, 1948 World Declaration of Animal Rights. (1977, September). Universal Declaration of Human Rights. (1948, December)., the articles of which later became the basis for further international treaties and national laws of UN member states regarding human rights guarantees.

Nevertheless, every year on December 10, the world celebrates the International Day of Animal Rights [3], even in quarantine, mass actions are carried out to protect animals, both abroad [4] and in Ukraine [5; 6]. At one time, there was even the idea of introducing the position of the Animal Rights Commissioner in Ukraine by analogy with the Human Rights Commissioner of the Verkhovna Rada. This in general emphasises the appropriate level of relevance of the issue. In addition, the provisions on animal welfare were once the basis of the Model Law on Animal Treatment and the Law of Ukraine "On Protection of Animals from Cruelty" Law of Ukraine No 3447-IV “On Protection of Animals from Cruelty”. (2006, February).

1. Materials and methods

The study is based primarily on an interdisciplinary approach because the concept of animal rights goes beyond purely legal science. Animal rights issues are in the field of ecological ethics (complex science at the intersection of ecology and ethics as a philosophical science), philosophy, in particular the concept of speciesism, sociology and biology, i.e., a number of social and natural sciences. As a result, the basis of the study were the relevant scientific developments in the field of these natural and general humanities in their logical combination with the opinions of representatives of legal doctrine, which are predominantly polar in nature.

The regulatory framework included the provisions of current national legislation determining the legal status of animals, in particular the provisions of the Civil Code of Ukraine Civil Code of Ukraine. (2003, January)., which describe the object-material regime of animals, as well as the faunal nature of the Law of Ukraine "On Protection of Animals from Cruel Treatment"¹, which stipulated the legal principles of the concept of animal welfare. The methodological framework of the study was developed by an organic combination of philosophical (dialectical materialism), general scientific (logical methods of analysis, synthesis, and the law of identity), as well as special legal methods (dogmatic and comparative legal).

The philosophical method of dialectical materialism, despite not always justified critical attitude of modern researchers towards it for purely political reasons, made it possible to consider the rights of animals in retrospect, their origin and development, as well as in relation to the material basis of their emergence as a very acute social issue of the inappropriate treatment of wildlife.

The analytical direction of the study of the concept of animal rights is conditioned directly by the title of the article. Thus, the critical analysis makes provision for division of the specified concept into components, their studying, identification of unacceptable positions with the subsequent development of an original vision of the resolution of problematic aspects. This predominantly concerns the decomposition of the problem of animal rights into biological, moral, philosophical, and legal components. In turn, further analysis of the biological component focused on animals that really need protection from abuse and the introduction of a proper regime. Analysis of the moral and philosophical foundations of the concept of animal rights suggested that there are only moral and ethical grounds for the introduction of the legal matter of the construction of animal rights. In the legal sphere, using a logical method of analysis, the general statutory array of relevant legislation was differentiated into two subsystems: civil law provisions that establish the material regime of animals, and provisions of natural resource legislation aimed at ensuring proper attitude of society towards wildlife, with their subsequent fragmentation to the level of the provisions of certain legal norms, which allowed to clarify the features of the object-material and protective legal regimes of animals. Therewith, it was established that the provisions of natural resource legislation also perceive the material and legal regime of animals established by the provisions of civil legislation. This is evidenced by the provisions of the Law of Ukraine "On Protection of Animals from Cruelty" Law of Ukraine No 3447-IV “On Protection of Animals from Cruelty”. (2006, February). Ibidem, 2006., in particular in terms of spreading the regime of ownership and other property rights to animals (Article 4), highlighting the specifics of these property rights to animals (Article 12), as well as determining animals as the subject of transactions (Article 13), etc.

The principle of synthesis had a dual application. Firstly, animal rights were considered as a holistic phenomenon in isolation from its division into legal and naturalistic components. Secondly, based on the generalisation of the results of the analysis, a conceptual conclusion was made about the illogical application of a purely anthropocentric terminological construction of subjective rights to animals. In addition to logical methods of analysis and synthesis, the provisions of the law of identity were used as one of the fundamental laws of formal logic, which identified the logical error underlying the concept of animal rights, which shifts the authors' attention to legal aspects instead of focusing on morality.

The dogmatic (formal legal) method allowed to identify the content of the relevant legal provisions that define the legal regime of animals as things and objects of legal relations and led to the possibility of diverting attention from the naturalistic perception of animal rights to improve the latter. Ultimately, this led to the conclusion that the application of the anthropocentric category of "human rights" to animals is inadmissible.

The comparative legal method was implemented through a comparison of national, international, and foreign legislation in the field of animal protection, which further confirmed the prospects for deepening the concept of physical welfare of animals by creating appropriate conditions for their maintenance.

2. Results and discussion

One of the first (if not the first) Ukraine studies in legal science to address the animal rights was the thesis research by L.D. Nechyporuk, which covered the ecological and legal regulation of the rational use of wildlife, the author of which came to the conclusion about the direction of the Law of Ukraine "On the Protection of Animals from Cruelty"¹ towards the protection of the natural rights of animals and the legislative consolidation of the natural rights of animals in the said law [7]. Meanwhile, this conclusion contradicts the provisions of current legislation and legal doctrine, which form the basis of this legislation, according to which rights are granted only to legal entities, i.e., individuals and legal entities, in particular the holder of natural rights can only be a person as an individual. In addition, civil legislation applies to animals the legal regime of an inanimate object, and an inanimate object cannot have rights. Then the author of the thesis attempted to justify her position on the possibility of animals having not only natural rights, but also legal personality, which she called "conditional". But animal rights are mentioned only in the preamble of the Law of Ukraine "On Protection of Animals from Cruelty" Law of Ukraine No 3447-IV “On Protection of Animals from Cruelty”. (2006, February). Ibidem, 2006. without elaborating on the meaning of this concept. Despite declaring the concept of "natural rights of animals" in its preamble, the provisions of this Law indicate the spread of property rights and other real rights to animals (Article 4), highlighting the features of these real rights to animals (Article 12), as well as the definition of animals as subject of agreements (Article 13), etc. There is a recognition of animals as a thing, and therefore there can be no question of any natural rights of animals. Therewith, the author draws the main arguments from certain scientific approaches, forgetting that the opinions of scientists are not a reason to give animals rights. Based on modern realities, scientific ideas about animal rights lie in the plane of morality rather than law. legal environmental ethics law animal

A clear confirmation of this is the development of national science of "environmental ethics" as a doctrine of moral relations of human with nature, other living beings, where the role of moral agents is played by people, and animals and plants act as moral partners [8]. Therewith, it is proposed to give the rights to all living beings without exception (including microbes and viruses), as well as ecosystems, considering the rights of nature as natural laws of nature, living beings, embodied in the law and legal culture of people. The following rights of all living beings can be recognised: life; natural freedom; inheritance; protection from suffering through human fault (protection from cruelty); compensation for damage through human fault; the share of earthly goods necessary for life; genetic diversity (protection against genetic contamination); lack of responsibility to the person; care (for domestic and farm animals and plants), etc. The basis for the emergence of the rights of living beings is their interests that require protection [9-15].

These proposals raise a crucial question regarding the determination of the area of distribution of animal rights. The above suggests the need to cover all living organisms, including microbes and viruses, as well as plants. However, the fate of harmful living beings (pathogenic viruses, rodents, insects, fungi, weeds, etc.), which put humanity in a dilemma of choosing their life and health or the existence of harmful living organisms, remains unclear. Modern refined animal rights activists, living in comfortable conditions, ignore the fact that the history of human civilisation is a chronicle of the constant struggle for survival with hostile flora and fauna. For example, since biblical times, humankind has struggled with hordes of locusts, not bothering about the moral aspects of the latter's right to life. If one is to agree with the selectivity of animal species to which it is appropriate to apply the concept of rights, the concept of animal rights will automatically become its antipode - the concept of speciesism.

As for the substantive features of the above environmental ethics, it is an interdisciplinary fusion of two scientific fields, which are ecology and philosophy, because ethics is the philosophical science of the origin and essence of morality, moral consciousness of a human [16]. All the less understandable and explainable is the interference of apologists of this science in the scope of law through the use of the term "animal rights", which cannot be considered other than through the lens of the theory of subjective rights, developed in detail by legal theorists. There is another attempt to squeeze the natural laws of animal coexistence into direct human standards, in particular the sphere of rights and interests. It is known that some representatives of philosophical doctrine work in this subject area. Thus, V.A. Vorona believes that if for the modern legal doctrine, the interests of people constitute an argument valid enough to constantly improve legislation for the sake of security and protection of people, then the interests of those species of animals that are unable to express them, although undoubtedly have such interests, are ignored [17].

These statements about the interests of animals are devoid of any empirical basis. As for human interests, they are developed only by conscious needs, which determine a meaningful model of activities aimed at satisfying the relevant interest. Unconscious needs remain at the level of instinctive urges, aspirations, passions, etc. Deprived of rational thinking, animals are unable to consciously build behaviour aimed at meeting their needs, acting reflexively, and therefore any statement about the interests of animals claims at least the level of fantastic blockbusters. Again, there is an attempt to assess the behaviour of animals using human stereotypes, but by representatives of philosophical science. To complete the holistic picture of the interdisciplinary vision of assimilating subjective status to animals, a purely naturalistic approach should be provided. For example, there are attempts by scientists to endow individual animals with the ability for politics, that is, in fact, for collective communication and the conscious organisation of coexistence, although with the caveat of direct comparisons with human politics except for some random comparisons [18]. However, it is hardly possible to identify, considered by the author as a form of self-awareness, the ability of great apes to recognise themselves in the mirror with exclusively human ability to think abstractly, which gives a person the opportunity to consciously perceive and master abstractions, the system formation of which is law as a social regulator and one of the highest social values.

There is another illogical attempt to squeeze the existence of animals into the "bed of Procrustes" of human abstractions, which are primarily social relations. Relationships are an exclusively human property that describes only human relationships directly. As a result of conscious action, relationships constitute an outward manifestation of human interrelations. The spread of the immanent properties of human society to animals goes beyond any logical ideas about the nature of humans and animals. With regard to animals, only the rules of treatment of humans are subject to regulation, which follows from Part 2 of Article 180 of the Civil Code of Ukraine¹, but in no way relations of people with animals. There is a terminological manipulation (conscious or unconscious), when there is a supposedly probable substitution of concepts. Meanwhile, the substitution of the thesis is a logical error caused by the violation of the law of identity in the process of proof. Wanting to prove something unfair in the moral sense, one instead proves that it is unfair in the legal sense [19]. This provision completely emphasises the erroneous desire of animal rights activists to translate the solution of the problem from the moral to the legal plane.

Against this background, similar attempts to naturalise the concept of animal rights by legal scholars and representatives of various scientific fields seem rather incomprehensible and trivial. Thus, from the first pages of her thesis research, V.O. Turska declares the acquisition of a new status by animals [20], acknowledging that animal rights are a purely human artificial construction, and it exists only in relations either between humans or in human relations with animals. Animal rights are protected from violence by humans and the state, not from violence by other animals, such as predators. Moreover, animals are not responsible for their actions when they violate human laws [21]. There is only one thing to agree with the author - the rights of animals (as well as humans) are a purely human "invention", an artificial construction, an abstraction that exists only in the minds of people as a consequence of their perception of the laws of social coexistence. The granting of legal status to wild animals is discussed in separate works of V.V. Shekhovtsov [22]. However, a number of other publications do not agree with the status level of animals, where V.V. Shekhovtsov considers animals as an object of property rights [22-25], which leads to the question of the possibility of animals to be both a subject and an object of law. For a person, such a situation is probable only in a slave-owning system, while in modern realities this ratio acquires pronounced dichotomous features. Therewith, the current civil legislation makes it impossible to extend the subjective status to animals, providing in Article 2 of the Civil Code of Ukraine Civil Code of Ukraine. (2003, January). Ibidem, 2003. a clear list of participants in civil relations, while extending to animals the legal regime of inanimate objects (Part 1 of Article 180 of the Civil Code of Ukraine).

The conclusion that the use of the definition of "right" in relation to animals that are not subjects of law is based on the inadmissibility of the principles according to which "the object of law cannot be its subject" and "rights are correlated with obligations" [26]. For this position, its authors were even labelled "the dog hunters of science" [27], although one of the co-authors is indeed recognised as the main dog hunter of the country by animal rights activists on social networks [28]. However, given their content, these principles are a significant stumbling block for supporters of the concept of animal rights.

First of all, all rights and obligations by their legal nature are subjective, i.e., they must correlate with a particular entity. In the etymological sense, the word "subject" comprises the prefix sub (Latin - under, below, less) and the base of the verb jacio (Latin - throw, deliver) [29]. If the latter is considered as a kind of certain action, then the subject is that which produces certain actions. The bearer of conscious actions is exclusively a person whose physical actions in a certain form constitute the result of a corresponding mental process. Therefore, the real subject in the physical and social aspects can only be a person, and in the legal (as a bearer of rights and responsibilities) - an individual and a legal entity. In essence, these are the fundamentals of the theory of law, which for some reason are ignored by proponents of the concept of animal rights. In addition, each subjective right substantively, as a measure of possible behaviour, implies the need to assess the limits of the latter, which can be made and perceived only by a human as a carrier of rational thinking, but in no way an animal.

Another important point of refutation of the idea of animal rights is the impossibility of imposing subjective responsibilities on the latter, which are an even category with subjective rights, together forming the content of any legal relationship. It is unlikely that there will be at least one animal that understands, accepts, undertakes, and performs a certain obligation. This raises doubts regarding the viability of individual proposals by legal scholars to designate a person as the subject of the relevant duty (similar to a trust property relationship), and the legal status of the animal owner will become similar to that of a guardian [30]. The result is an illogical pairwise correlation of "animal rights, human responsibilities", and the person must be the owner of the animal. First, the presence of the owner of the animal automatically translates the latter into the rank of a real object of law, which eliminates any substantive conversation about rights and responsibilities. Secondly, any analogy with guardianship (Article 55 of the Civil Code of Ukraine)¹, which cannot be established to a material object, is unacceptable. In addition, the emergence of subjective human rights is directly related to the legal structure of legal personality enshrined in Articles 25-26 and 30-42 of the Civil Code of Ukraine Civil Code of Ukraine. (2003, January). Ibidem, 2003.. Recognition of animals as holders of rights, and their owners - the corresponding responsibilities, will require amendments to these articles, which is nonsense on both substantive and formal grounds. In view of this argument, the concept of "animal welfare" is much more acceptable, the followers of which believe that the demands of animal rights activists are not only unfounded, but do not have any scientific basis [31]. The lack of a coherent concept of animal rights was emphasised above. But even its supporters mask the need to ensure their well-being under the term "animal rights". The latter follows from the content of modem publications of animal rights activists, outwardly aimed at declaring the importance of protecting animal rights, but meaningfully highlights the need to directly recognise the need for animals to live in the wild and be treated by humans, not some mythical animal rights. The need for proper care of people towards animals, which lies in the moral plane, is replaced by a purely legal construction of animal rights. The common argument of the supporters of the concept of animal rights is the allegedly dominant trend in the world, in particular in developed European countries, towards the recognition of such rights with their subsequent consolidation in legislation. Meanwhile, the analysis conducted by experts in international law indicates the exact opposite. In the EU, on the other hand, animal welfare standards have been enshrined, first in individual legislation (Germany - the Animal Welfare Act¹, Austria - the Federal Act on the Protection of Animals Animal Welfare Act. (1972, July). Federal Act on the Protection of Animals (Animal Protection Act - TSchG). (2004)., the United Kingdom - the Animal Welfare Act Animal Welfare Act, op. cit., Finland - the Animal Welfare Act Ibidem, 1972.), and then at the regional level (Council Of Europe - European Convention for the Protection of Animals in International Transport 1968 European Convention for the Protection of Animals during International Transport. (1968, December)., European Convention for the Protection of Animals Kept on Farms 1976 European Convention for the Protection of Animals kept for Farming Purposes. (1976, March)., European Convention for the Protection of Vertebrate Animals Used for Experimental or Other Scientific Purposes 1986 European Convention for the Protection of Vertebrate Animals used for Experimental and Other Scientific Purposes. (1986, March)., European Convention on the Protection of Domestic Animals in 1987 European Convention for the Protection of Pet Animals. (1987, November).). The next stage should be a universal level when the welfare of animals and their protection from cruelty will be a necessary requirement for a modern developed country [32].

For comparison, the very concept of animal welfare at the time of the CIS countries was the basis of the Model Law on Animal Treatment Model Law of Ukraine “On the Treatment of Animals”. (2007, October)., and even earlier - in the Law of Ukraine "On Protection of Animals from Cruelty" Law of Ukraine № 3447-IV “On Protection of Animals from Cruelty”. (2006, February).. This is a progressive direction of legislation, which lies at the intersection of a rational combination of moral and legal components.

Conclusions

The concept of animal rights is based on the substitution of the thesis, i.e., the logical error caused by the violation of the law of identity in the process of proof. Proponents of this concept, wanting to prove the unfair treatment of animals in the moral meaning, instead argue that it is unfair in the legal sense, translating the solution of the problem from the moral plane to the legal one. From a legal standpoint, the introduction of the lexical and legal construction of "animal rights" into the current legislation does not fit into any of the modern concepts of legal understanding. From a practical standpoint, this determines not only the denial of the logical basis of modern rulemaking by replacing the basic anthropological foundations of the legal system, but over time will require a de facto break with the existing model of law as a whole. Hence, the concept of ensuring animal welfare, enshrined in the legislation of advanced countries, is much more appropriate.

The materials of the study are valuable not only for legal scholars as a basis for the development and improvement of a certain evidence base to substantiate their position, but also for specialists in natural sciences and philosophical sciences to focus their research on purely moral and ethical aspects, which is more in line with modern challenges.

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