Australia is a wealthy, modern, civilised, country. Many Australians would say that our country, on the whole, looks after its citizens fairly well. We might also think that Australia cares well for its animals. Perhaps we even believe that Australia is one of the world leaders in animal welfare; and that, as Gandhi said, the way we treat our animals is a measure of our moral maturity as a nation.
This rosy view was challenged when Swiss lawyer Antoine Goetschel visited Australia as the keynote speaker for the 2013 Voiceless Animal Law Lecture Series.
Goetschel is regarded as one of the world’s leaders in animal law. He was founder and Director of the Foundation for the Animal in the Law in Zurich. And he has held the unique position of animal welfare attorney for the Canton of Zürich. In this role, Goetschel has represented animals in hundreds of criminal cases in Switzerland. He has also been active in Swiss animal law referendums. The basic position he holds is that while we may use animals for food, research, and so on, we should accord them a serious level of respect.
A month or two back I wrote about the idea of vets being advocates for animals as well as for animal owners. An animal advocate does not necessarily believe that animal and human interests are of equal importance. Rather, an advocate is someone who speaks on behalf of another. Goetschel believes that animals need advocates for the same reason as Gandhi: animals cannot speak for, or defend, themselves; those that use them can.
For Goetschel, the law and institutions should speak on behalf of animals. He describes two ways this should be done. The first way is that a nation’s criminal laws, such as Australia’s Prevention of Cruelty to Animals Act, should be diligently applied. Criminal laws, says Goetschel, are not wishing lists; they are to be taken very seriously. It undermines a criminal law to have an Act that is not strongly enforced.
Yet a strong and consistent application of the law, he thinks, is not occurring in Australia. Puppy farmers and some intensive animal producers, for example, are allowed to get away with cruelty. Goetschel thinks that if Australia is to catch up with some European countries, it should have 8-10 times the number of prosecutions and punishments it currently has.
As the appointed animal attorney for the Canton of Zurich, Goetschel was able to greatly increase the number of prosecutions for criminal cruelty. Prosecutors and law enforcement agencies, he found, took the law far more seriously as a result of there being a special animal legal advocate. In the absence of an official role like this, he argues, the law will not be properly applied.
In Goetschel’s opinion, there is a second way that a nation should give animals a voice. So far, many countries have enacted legislation employing the language of animal pain and sentience. This emphasis stems back to Jeremy Bentham and other English jurists and philosophers. Famously, Bentham asserted that the centrally important thing about animals is that they can suffer. Goetschel feels that while this British approach has yielded benefits for animals, there is another, more beneficial way.
In Europe around the time of Bentham, at least one philosopher was speaking of the dignity of animals. To speak of animal dignity, Goetschel thinks, is to place the stress not just on suffering but on the inherent value of the animal. To speak this way is to say that animals deserve to be recognised and protected because of what they are. Goetschel’s next step is this. Although animals are in a legal sense property rather than persons, it is possible to recognise a third legal category which falls between mere objects and human persons. After all, if animals are not mere objects, then they deserve recognition as something more than this, even though they are not legal persons.
The appropriate step to take, Goetschel argues, is to recognise animals in a nation’s constitution. In particular, the constitution should recognise the dignity of animals. And as a matter of fact, Switzerland did just that in 1992. Since then, some other countries like Austria, Germany, and Slovenia have put animals in their constitutions. And France and Poland have granted animals a status above mere property.
This is another factor behind Antoine Goetschel’s juristic puncturing of Australia’s faith in its animal law and institutions. At the same time, this man of the law is optimistic. For he points out that there are increasing numbers of law students and lawyers in Australia who are studying and grappling with animal law. It therefore looks like the legal profession will show a more active and activist interest in the moral and legal standing of animals in years to come.