How to recognise genuinely "modern' animal welfare law
'Modern' animal law would reflect modern animal welfare concepts and is identifiable by assessing the duty of care within the presentations, proposals and regulatory reforms. Reflecting the modern science of the Five Domains, modern animal law would apply responsibilities for both the negative and positive states of an animal by:
​
-
retaining legal responsibilities to protect animals from cruelty (‘negative states’), AND
-
extending law’s duty of care by requiring people to provide animals with opportunities to experience comfort, interest and enjoyment (‘positive states’, ‘positive animal welfare’).
​
For any country targeting genuinely ‘modern’ animal law, there are five key principles to understanding the critical importance of legislatively defining sentience in a manner that is clearly and unequivocally consistent with the modern science of the Five Domains.
​
Those five key principles are:​
1
Firstly, existing anti-cruelty law implicitly recognises animals as sentient. This principle derives from the logic that:
(a) by definition sentience means the ability to ‘feel and experience’, and
(b) anti-cruelty law prohibits actions that result in an animal ‘feeling or experiencing’ unnecessary suffering (‘negative states’).
So, ‘modern’ law is not achieved by asking if animals are sentient given that the answer to that question was decided in the affirmative by lawmakers 200 years ago.
2
Secondly, the modern science of the Five Domains validates that sentient animals feel and experience negative and positive states.
Recognition that an animal’s welfare involves more than simply the avoidance of pain and suffering (‘negative states’) has given rise to the concept of ‘positive animal welfare’.
3
Thirdly, the law functions on the principle of responsibility (‘duty of care’). Everything about legislation (e.g. offences, penalties and enforcement powers) revolves around the question ‘what people are responsible, accountable and liable for’? This principle may be summarised as ‘nothing changes in nationwide behaviours if you do not change the duty of care’.
Understanding of this principle reveals why explicit legislative recognition of animal sentience alone predictably fails to result in meaningful change. Explicit recognition that fails to provide a legislative definition that distinguishes negative and positive states:
(a) is simply a restatement of the 200-year old implicit recognition of sentience within anti-cruelty law, and
(b) fails to clearly and unequivocally extend the duty of care beyond protecting animals from cruelty (i.e. pain, distress or suffering assessed by law as unnecessary).
4
Fourth, positive animal welfare practices are already being implemented by the top 11% of industries, corporates and other animal-related providers.
In addition to validating that positive animal welfare is realistic and practicable, this fourth point highlights that engaging the well-established process of law reform to extend the current duty of care with ‘positive animal welfare law’ replicates the practices of today’s top performers. The outcome is that ‘today's standards of best practice, become tomorrow's norm’.
5
Fifth, the three-word reform that gives a jurisdiction genuinely ‘modern’ animal law that reflects today's standards of good practice and contemporary scientific knowledge involves legislatively defining sentience with a simple statement that “sentience means that animals experience negative and positive states”.
Remember, "less pain is NOT the same as more pleasure"
It's naturally important to keep anti-cruelty deterrence measures in place but limiting proposed initiatives to reducing an animal’s pain sadly miss the point about the critical difference between anti-cruelty and “positive animal welfare”.
​
You can recognise those that remain confused (or unwilling) about the differences. Their talks, speeches and presentations often focus almost exclusively on "increased penalties" and standing against "cruelty" because it's "intolerable" (or words to the same effect) that we should accept an animal's pain, distress and suffering. They're correct of course - but the point is that their talks, speeches and presentations notably continue to reflect a focus on negative states - reference to responsibility for the positive life experiences of animals is conspicuous by its absence.
​
Try it. The next time you listen to someone speaking about animal law and our responsibilities, count the number of times they reference cruelty in contrast to the number of times they refer to the animal's pleasure.
