Contemporary animal rights activists and legal scholars routinely charge that state animal protection statutes were enacted, not to serve the interests of animals, but rather to serve the interests of human beings in preventing immoral behavior. In this telling, laws preventing cruelty to animals are neither based on, nor do they establish, anything like rights for animals. Their raison d’etre, rather, is social control of human actions, and their function is to efficiently regulate the use of property in animals. The (critical) contemporary interpretation of the intent and function of animal cruelty laws is based on the accretion of actions – on court cases and current enforcement norms. This approach confuses the application and function of anticruelty laws with their intent and obscures the connections between the historical animal welfare movement and contemporary animal rights activism.
By returning to the context in which most state anticruelty statutes were enacted – in the nineteenth century – and by considering the discourse of those activists who promoted the original legislation, my research reveals a more complicated story. Far from being concerned only with controlling the behavior of deviants, the nineteenth century animal welfare activists who agitated for such laws situated them within a “lay discourse” of rights, borrowed from the successful abolitionist movement, that connected animal sentience, proved through portrayals of their suffering, to animal rights. Understood both as a zone of protection and a series of positive entitlements, rights flowed to animals because of their capacity to suffer emotional and physical pain. Further, because they understood animals’ rights as intrinsic to animal being, nineteenth-century activists wrote laws that protected all animals irrespective of their property status. These laws were thus bound up with rights for animals in two important ways: they were the product of a sentimental lay-rights discourse with its roots in the abolitionist movement; and, they were clearly meant to serve animals themselves rather than human property in animals.
“The Inalienable Rights of the Beasts”: Organized Animal Protection and the Language of Rights in America, 1865-1900,
Available at: https://scholarship.law.columbia.edu/law_culture/48