Steven White’s Interview for the Abolitionist Online
Interviewer: C.Vaughan

Griffith law lecturer Steven White has said animal law is an area that affects all of us, and is growing in importance. "Animal law looks at how we govern our relationship with animals, including companion and farm animals, animals used in research or for entertainment, animals in the wild and so on,". "The discussion of animal law issues is rapidly becoming part of the mainstream, as seen with issues like battery hen cages and live sheep export. "As humans begin to exhibit greater concern for the treatment of animals, the law is responding, and issues surrounding their treatment are becoming more complex." Peter Sankoff and Steven White are in the process of writing the first ever Australasian Animal Law book. Here’s our interview with him.

Abolitionist: The debate on the legal status of animals is really taking off in Australia. What do you attribute this to Steven?

Steven White: It’s difficult to say. I think the potential has been there for some time, but it has taken the leadership provided by a few individuals and organisations to galvanise this dormant interest. In the last 10-15 years there has been an increase in the number of law schools (and therefore law students) and increasing diversity within the legal profession, perhaps providing the conditions for a wider range of views about a number of social issues, including issues related to non-human animals.

With new groups forming and working together, a community of lawyers concerned about animal issues is established and the momentum provided by communication between these groups leads to further growth. A group called Voiceless has sprung up in the last few years, and, remarkably, has employed a lawyer on a full time basis to pursue legal issues related to non-human animals. It has also established an online discussion forum for lawyers and run or sponsored animal law seminars. Other developments have occurred at the same time, including the emergence of specialist animal welfare panels at the Bar in NSW and Victoria, funding for a project officer to co-ordinate a lawyers’ group in Melbourne (Lawyers for Animals), a Pro Bono Animal Law Service based at Redfern Legal Centre, and so on. These sorts of initiatives, as well as the establishment of animal law courses and increasing awareness of animal issues within the legal community, will result in the legal profession paying increasing attention to the well-being of non-human animals.

Steven what are you views on personhood rights for animals please?

I think a very strong rational argument can be made for recognising animals as ‘persons’ within the legal system. Such a change would be no more radical - in fact arguably much less radical given the sentience of animals – than prevailing recognition of non-sentient entities, such as corporations and ships, as legal ‘persons’. Such a step would reflect, in a formal way, that the moral status of animals is taken seriously by society. An understanding of animals as ‘persons’ would be hard to reconcile with the idea that they are mere ‘objects’ to be exploited by humans.

The question of what ‘rights’ should attach to personhood is a much more difficult issue. The matter is complex, since I believe there can be no blanket set of rights applicable to all animals (other than those of the most generic kind).

I’m persuaded, though not yet convinced, by an approach suggested by Martha Nussbaum, a prominent US philosopher. She has suggested that the ‘rights’ enjoyed by animals should be determined by their attributes, and that as attributes may differ from species to species so should associated rights. Nussbaum develops a ‘capabilities approach’, in which the capability of a given species of animals can be used to judge whether ‘a given creature has decent opportunities for flourishing.’ Most importantly, this approach yields a coherent list of ‘animal entitlements’ (eg rights to life, bodily health, bodily integrity) which in turn suggests necessary changes in law and practice to properly address the interests of animals.

What is your considered opinion - that’s plausible in law - on what is the best benchmark to grant animals their rights in law?

A prominent line of argument in the animal rights/animal interests literature is that because certain animals are similar in significant ways to at least some categories of humans they are deserving of rights. This line of argument has led to legal change in some jurisdictions (eg legal recognition of, in effect, a right of bodily integrity for Great Apes in New Zealand (New Zealand, of course, has very few Great Apes so that the change is of largely symbolic, rather than practical, significance)). It is an appealing and rhetorically powerful argument in many ways, but it also has shortcomings. It risks some animals (especially less charismatic farmed animals) being overlooked. An additional/alternative approach might be to recognise the inherent value of all animals, and not just those meeting the ‘human similarity’ test.

Please talk about your Animal Law Course that you are teaching because it is one of the first such courses to be conducted in the country.

The major aim of the course is to provide students with an opportunity to explore and critique: (a) the ways in which animals are conceptualised in law, including the philosophical, scientific and economic assumptions underpinning the law relating to animals; and (b) the effects of the legal system on the interests of animals.

The course also aims to provide an opportunity for students to reflect on: (a) whether the law relating to animals should be reformed; (b) the nature of any such reform; and (c) the role lawyers can play in achieving reform.

Topics addressed in the course include the different ethical and philosophical accounts of the human/non-human animal relationship; the legal status of animals as property; the regulation of the welfare of companion animals, farmed animals, animals used in research, and animals used in entertainment; animal welfare in an international context (taught by my Griffith University colleague Associate Professor Deborah Cao); and the politics of animal law reform/the role of lawyers in advancing the interests of animals.

The course ran over late January to mid-February 2007, with 37 commencing students. The course will be offered in 2008 (again from late-January to mid-February).

In Joan Dunayer’s book “Speciesism” she said pg73 that “welfarist campaigns continually re-legitimize enslavement and murder rather than advance their abolition.” You have written on animal welfare, property and animal rights. What is your way of thinking on the matter Steven?

Dunayer’s argument is echoed, in a legal setting, in the work of Gray Francione. Francione suggests that anything short of overturning the status of non-human animals as property is illusory progress. In an abstract sense this might be so, but, focussing on the lived experience of non-human animals in the here and now, I don’t take quite as pessimistic a view. A great many positive changes can be made without overturning the status of non-human animals as property, even if this remains an overriding goal. Existing standards can be more effectively enforced, and the standards required can be progressively made more exacting. Other legal reforms, more easily achievable than overturning the status of non-human animals as property, can also lead to improvements in the quality of life enjoyed by non-human animals. For example, an important change would be to expand the pool of those who can take legal action to protect the interests of non-human animals, along with the necessary resources, so that a broad range of animal advocacy groups, as well as the RSPCA, state departments of primary industries and the police, would be empowered to act on behalf of non-human animals in a legal setting.

Can we look at a classic welfarist stance but look at it as strategy rather than methodology? In order to shift away from draconian command and control regulations that the flesh-eating food industry has in place in this country, would a new direction of disclosure work to dismantle the stranglehold that the monolithic food industry currently has on animal based food products?

Accountability and transparency are central to a well-functioning, accessible and democratic regulatory system. In a democratic system based on the rule of law the public should be well-informed about practices – whether carried out by state or private actors – which are carried out on its behalf. For example, I believe, although this can only be speculative, that a large proportion of the public would be shocked to learn of the way in which many farm animals are reared, transported and slaughtered in this country. The problem is that animal exploitation occurs behind ‘closed doors’, in a regulatory setting where legislative exemptions ensure that even a basic standard of ‘no cruelty’ is not applicable to nearly all animals.

How will today’s non-meat eating animal rights lawyers affect tomorrow’s judges, magistrates and other lawyers?

Practising and academic ‘animal lawyers’ can play an important role in raising awareness about how the law affects the interests of animals. Of course, today’s law students are tomorrow’s magistrates and judges. Lawyers exposed to animal law as a discipline are more likely to have thought in a critical way about the relationship between law and the interests of animals, and so be in a more informed position when matters affecting animals come before them.

Law graduates also work in a range of areas other than private legal practice, including the public service, the community sector and business, and can be influential agents of change within those settings. Lawyers are also over-represented in parliament (and especially cabinets), raising the possibility of well-educated graduates being agents for legislative change down the track.

Can we take the case of crocodiles? If crocodiles were given the full protection of the law where no human being could mistreat or kill them in any way, shape or form and this was aggressively pursued and enforced, how do you see that differing, in law, from granting crocodiles personhood rights?

I see very little difference in a practical sense. As suggested above, it is not strictly necessary that animals be granted ‘personhood’ in order to enjoy extensive legal protection. All of the protections included in your question are in fact just a statement of legal rights that could be included in legislation and applied to crocodiles in the absence of recognition of personhood (eg a ‘right’ not be mistreated, a ‘right’ not be killed without reasonable excuse (such as self-defence), and so on). Personhood would be symbolic/significant to the extent that it would reflect, in formal legal terms, a changed societal understanding of the moral status of animals.

You spoke recently at a recent Animal Law Conference on Companion Animals: Members of the Family or Legally Discarded Objects. Please speak at length here on what you said, what problems you identified, how to overcome them and most importantly how to get dogs off death row.

Drawing on the recent empirical and analytical work of sociologist Adrian Franklin, I explored the contemporary relationship between humans and companion animals. Franklin establishes that a high proportion of Australians value companion animals as ‘members of the family’.

Despite our expressed affection for companion animals, the work of RSPCA shelters and other similar organisations reveals the extent to which companion animals are discarded, often consigned to death. Ethicists Bernard and Michael Rollin argue that the work of animal shelters serves to make the problem of unwanted companion animals ‘invisible’, relieving us of responsibility for their fate.

The presentation explored the legal nature of this ‘invisibility’, drawing on Queensland animal welfare legislation and the status of animals as property. It also assessed suggestions for regulatory reform of our treatment of companion animals, in particular that a person should be properly ‘licensed’ before being permitted to acquire a companion animal. I questioned the effectiveness of such regulatory schemes. Community education is central. From a legal perspective, I argued that the property status of companion animals needs to be undermined. One way to do this, adopting the approach of US academic David Favre, would be to allow a guardianship model for the care of companion animals, so that guardians (ie humans) would be required at all times to act in the best interests of an animal. Accountability for the care of animals would be improved by allowing a broad range of persons (eg representatives of animal advocacy groups) to take legal action where those obligations were not being fulfilled.