Under the Animal Welfare (Sentience) Act 2022, U.K. law now recognises something moral philosophy, religion and science have grappled with for centuries – animals are sentient. This raises a question: should the law continue to treat animals primarily as objects capable of human control and ownership, albeit to which duties of welfare are attached, or should animals be recognised as subjects of the law, with directly enforceable rights?
By Paul Fuller, Barrister, 42BR
Legal recognition of animals as sentient beings is not a new concept. As far back as 1789, Jeremy Bentham asked:
“…the question is not, can they reason? nor, can they talk? but, can they suffer? Why should the law refuse its protection to any sensitive being?”
If suffering is morally relevant, then concern cannot coherently be limited to the protection of human property interests in animals. The suffering animal is not merely damaged property. It is the subject of the suffering itself.
Scientific developments have sharpened that point. The Cambridge Declaration on Consciousness recorded that humans are not unique in possessing the neurological substrates that generate consciousness, and that non-human animals, including mammals, birds and many other creatures such as octopuses, possess those substrates too. Donald Broom’s definition of sentience extends to more than mere responsiveness to stimuli – it involves capacity, awareness and cognitive ability necessary to have feelings.
Sentience is not simply a kindly projection of human emotion onto animals. It is a scientifically and philosophically grounded recognition that many animals have their own subjective welfare, their own experience of the world, and their own interests in avoiding pain, distress and fear. They have agency.
More recently the law has begun to reflect that recognition. At European level, the Treaty of Amsterdam recognised the need to ensure improved protection and respect for animal welfare as sentient beings. The Treaty of Lisbon later provided that the Union and Member States should, since animals are sentient beings, pay full regard to their welfare requirements.
Following Brexit, English law moved to preserve and restate those principles. The Animal Welfare (Sentience) Act 2022 established the Animal Sentience Committee (“ASC”), whose role is to consider whether government policy has had, or might have, an adverse effect on the welfare of animals, as sentient beings. The ASC is tasked with reporting to Parliament on whether government policy makers have had “all due regard” to animal welfare when drafting policy, and making recommendations in that connection. The Secretary of State is required to lay a response before Parliament within three months of ASC reports.
Whilst this is a real advance, it is also a limited one. The sentience legislation does not make animals rights holders in any full sense. It does not confer on an animal a cause of action for mistreatment. It does not allow an animal, by guardian or representative, to sue for cruelty, confinement, habitat destruction or deprivation of species-appropriate life. Nor does it displace the deeper fact that animals remain, in the eyes of the law, property. At most, it introduces a public law mechanism by which government policy may be scrutinised through the lens of sentience. That matters, but it is practically modest.
Some animal lawyers, academics and activists argue that animals must become “subjects” rather than “objects” of the law. The law is familiar with non-human legal persons. Companies, for example, can own property, sue and be sued. In her book Wildlife as Property Owners: A New Conception of Animal Rights, Prof. Karen Bradshaw argues that “the law lost the argument that property is inherently human when it afforded property to inanimate forms such as corporations”. If these artificial or inanimate entities can be accommodated with legal personhood, then why not sentient beings?
The analogy only goes so far. A company may have legal personality, but it does not have a right not to suffer; it does not possess interests in bodily integrity, the right to privacy and to enjoy family relations, or of freedom from cruelty. Giving animals some form of juridical personality would not, without more, answer the fundamental question: what rights should attach to sentient life? The risk is that academics, activists and animal lawyers become preoccupied with legal “personhood” while the deeper questions are missed.
A more practical approach may be to ask how existing legal tools can be adapted to give effect to animal interests, as sentient beings. One example is the animal property rights theory – a modern approach to territorial rights in which wild animals are conceived of as owners of the natural spaces they inhabit and use. Philosophical and theoretical proponents include Australian philosopher John Hadley, English philosopher Josh Milburn (2017) and political theorist Steve Cooke (2017). Bradshaw observes:
“…the property rights approach to welfare is an easier path than the human rights approach; we are dealing with a line that has already been redrawn to be more expansive. Extending it a bit further to formally include animals is not much of a leap legally. Yet animal property rights hold tremendous promise for reintegrating natural interests into human institutions”
Bradshaw’s model proposes stakeholder collaboration using trust law to manage land, with trustees operating under fiduciary duties, private governance and judicial oversight. On that model, an area of land could be owned by a trust, managed day to day by trustees, governed by policies and procedures, and subject to intervention by courts where trustees or animal welfare advocates seek guidance or relief. The beneficiaries could be identified by species, or by ecosystem.
This approach does not require the law to give animals legal personhood. Nor does it depend on proving moral or intellectual equivalence between human and non-human animals. It asks instead whether law can recognise that animals have interests in place, habitat, movement, shelter, territory and ecological continuity and protect those interests through legal frameworks that already exist. On that account, the law may already contain the seeds of animal proprietary protection, where animals are effectively treated as owners of land and subjects of the law, without the seismic shift that is necessary if animals are ever to be afforded legal personhood.
The attraction of these types of models is that they avoid a false opposition between human and animal rights. That is important politically and legally. These are routes by which animals may be given directly enforceable and meaningful rights and protections, without precipitating lawmakers into fraught debate over distinctions between human and non-human status in the eyes of the law.
The immediate challenge is not (only) to give animals legal personality. Whilst that may be philosophically desirable to those who labour in the field of animal welfare, it runs the risk of being largely tokenistic, if any change in how the law views animals is not accompanied by attendant laws advancing the “rights” of animals as “subjects” of the law.
Another approach is to ask, first, what protection is owed to a being capable of suffering, fear, pleasure, frustration, anxiety and joy, and then ask how existing legal structures and mechanisms can be utilised to advance those protections. U.K. law now recognises animal suffering; it acknowledges sentience in public policy. Mechanisms such as trust law and representative litigation already exist. The task now is to bring these concepts and tools together in a framework which treats animals not merely as protected things, but as sentient beings with legally cognisable interests of their own.
The future of animal law may not lie in choosing between “welfare” and “rights”, or between “personhood” and “property”. It may lie in using the law’s existing machinery to achieve a deeper transformation: moving animals from the margins of legal concern to the centre of legal consideration, where sentience is not a secondary check on human dominion, but the first premise from which legal protection begins.
Paul Fuller, Barrister, 42BR