Interview of Regis Bismuth, professor at the Sciences Po Law School and co-editor of Sensibilité animale. Perspectives juridiques (CNRS Editions)*, on advances in animal rights.
The need to end animal suffering has become a major topic of public debate. Scientific experiments, bullfighting and foie gras have all come under insistent criticism. Videos denouncing the conditions in which animals are made to live and die are widely circulated. Veganism, which still had an extremely limited following a few years ago, is gaining in popularity. So what is the law contributing to this environment?
In 2015, the French Civil Code was amended to recognise animals as a “living beings endowed with sensitivity” and no longer as a “movable property”. Is this an important step forward for animal rights?
Yes and no. What people have retained from the new article of the Civil Code (515-14) is the first part, namely that animals “are living beings endowed with sensibility”. Less attention is paid to the second part, which states that “conditional on compliance with the laws that protect them, (they) are subject to the property regime”. So in fact, animals’ legal protection depends mainly on other branches of law, which means that the part this provision plays is very marginal.
What is the origin of animals’ legal status?
Animal law, in Europe at least, has been defined with regard to our relationships with animals, and not in terms of the animal itself in its subjectivity. Animal rights can be traced back to the Cruel Treatment of Cattle Act, also known as Martin’s Act, adopted in 1822 in England to prohibit acts of cruelty against livestock. It was progress but remained limited to one category of animals. In France, the Grammont Act of 1850 was the first to deal with animal protection by penalising their mistreatment in public. But in this case, it was the public’s sensitivity that was targeted and not animals’ suffering.
It took more than a century for the law to be changed—in 1959—and for mistreatment in private to be punishable by law. Since then, laws to protect animals have been developing steadily, adding animal welfare to the prevention of cruelty. But it is clear that the legislation is still essentially determined by the use we make of animals.
What do you mean by “use” of animals?
To understand properly, you have to consider the animal categories established by law. Farm animals are those destined for “the production of food, wool, hides or other agricultural purposes”. The other categories are pets, recreational animals, and even pests. The economic stakes behind these categories are high, and not just for the agri-food industry. Think, for example, of animals used for scientific experiments or for sports activities.
Are there other issues that come into play?
Yes, many, and they’re often interconnected, but the economy is almost always in the background. Take the debate over bullfighting. Defenders of bullfighting talk first of all about culture and tradition. But they also talk about the revenue and jobs that bullfights generate through cattle rearing and tourism. Another example—which is interesting because it is the subject of legal battles between Canada and Europe—is seal products. In Europe, the sale of seal products is prohibited unless they come from traditional hunting. Canada challenged this ban through the World Trade Organisation, which, on the whole, sided with Europe. However, Canada’s arguments were not unreasonable. Among other things, they pointed to the fact that Europe authorises other, more questionable practices, such as raising pigs in conditions far worse than those of seals, which live in their natural habitat. It’s an important example because it shows that our relationship to animals is different from one place to another. It’s also interesting for the fact that it brings living conditions into play and not only conditions of slaughter.
And what about in EU law? Are animals’ living conditions a concern?
Yes, but on the sidelines. For example, the size of battery cages for chickens is going to be set by EU law to make them bigger. But even as EU law establishes the principle of animal welfare, it provides for exceptions concerning religious rites, cultural traditions and regional heritage. Of course, all this can change because lawmakers also listen to public opinion.
Yet public opinion tends to pick and choose its causes of indignation.
Public opinion is multi-faceted and is also evolving. Emotion plays an essential role. People are more easily appalled by the suffering inflicted on “cute” animals, or on those deemed noble, such as horses, or intelligent, such as whales. Another factor that counts is closeness to humans. Take laboratory animals, for instance. The suffering of rats that are experimented on to advance our well-being is tolerated better than when experiments are performed on apes. Moreover, EU law heavily limits testing on apes on the grounds that apes demonstrate social behaviour extremely similar to that of humans. But English philosopher Jeremy Bentham disputed the admissibility of intelligence as a criterion at the end of the eighteenth century. He wrote that to merit protection, the question was not whether a being is capable of reason or speech, but whether it can suffer. Otherwise, he argued, we could very well allow ourselves to inflict suffering on infants given that they do not talk or think.
The struggle for animal welfare keeps getting wider...
Absolutely. There’s the issue of circus animals, for example. In a number of European countries, wild animals are banned in circuses and some local councils in France are taking similar measures. Moreover, the circus world is catching on and one of its major figures, André-Joseph Bouglione, has decided to stop using animals in his shows. Dolphinariums are also concerned. A 2017 decree prohibited the reproduction, trade and import of orcas and dolphins. Though it was called into question by the Conseil d’Etat last January, we must not lose sight of the fact that this movement is inevitable. Some of the issues raised are more unexpected, such as glue mousetraps, which have been banned in Ireland. A new law has also been passed in Switzerland stipulating that certain crustaceans must be stunned before being placed in boiling water.
So some significant advances have been set down in law?
Yes, and we’ll see more progress through this sort of initiative than through the Civil Code. Incidentally, this is the observation that led students from the “Corporate Social Responsibility and Innovation” programme at the Sciences Po Law School clinic to conduct a project on animal welfare labelling. The idea is to more effectively regulate the information that appears on products. Progress also owes much to animal welfare associations. They sometimes use questionable methods but to their credit, they have brought certain practices into the public eye and, in the end, have moved the debate forward.