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Sherman, Brian --- "Animal Law: Peering Over the Gap or Daring to Close it?" [2006] AltLawJl 53; (2006) 31(4) Alternative Law Journal 226

  • ANIMAL LAW: Peering over the gap or daring to close it?
    Peering over the gap or daring to close it?

    BRIAN SHERMAN[*] confronts the obstacles to greater justice for non-human animals.

    When I first met Alice, she was 18 months old and had never been outdoors. She had never felt the sun on her face, never stood in grass or soil, nor played in the fresh air with her friends or family. Alice was separated from her mother and siblings shortly after birth. Her intellectual, physical and social needs were largely denied and she was forced to live her early days in prison-like surroundings.

    The life that Alice had endured is difficult for many of us to imagine: forcibly impregnated, sleeping and living in a world of concrete and steel. It was an existence of abject misery.

    By the time Alice was ready to give birth she was stressed and depressed.[1] However, that was not the reason her children were taken away. There were others in the same institution whose autonomy had also been impaired. Although some of them remained of saner mind, their offspring were also removed — destined for a life of pain, fear, frustration and intermittent hunger to be cut short only by premature death.

    You might be asking yourself where in the world young Alice lived. What state could demonstrate such blatant disregard for widespread violations of the right to bodily integrity and liberty? What civil society would expressly sanction the ongoing conduct of such morally repugnant activities towards females and, more specifically, mothers?

    The answer is — right here, in Australia. Alice experienced the life she did because Alice is a pig. Being a pig, or a non-human animal, reduces Alice’s status in law to a mere chattel or a piece of property.

    I was introduced to Alice when Voiceless, the organisation I co-established in 2004, decided to fund her new carers as part of its annual grants program, so that she could live out her life in a place where she could exercise her natural behaviour — outdoors, in a sanctuary.

    Voiceless, so-named because animals have no voice and no standing at law, aims to promote respect and compassion for animals, raise awareness of the conditions in which they live, and take action to protect them from suffering. One of our primary aims in establishing Voiceless has been to ‘lift the veil of secrecy’ about what goes on inside Australia’s factory farms. The life of Alice is a small insight into the treatment legally meted out each year to those of Australia’s 540 million ‘production’ animals who live (for want of a better word) in factory farms.[2]

    Alice and her kith and kin are intelligent beings. They have highly developed cognitive and problem-solving abilities. Pigs are also emotionally complex. They can feel fear, frustration, pain, hunger and thirst; however they are legally owned, bought, sold, treated and traded as if they are mere objects. Professor Gary Francione, who teaches an extensive animal law program at Rutgers University in the United States, says that ‘institutionalised animal exploitation is structurally similar to American slavery’.[3]

    Since being liberated from a factory farm, Alice has shot to fame as a film star in the soon-to-be released production of Charlotte’s Web. Sadly, however, for many non-human animals, the only escape is death. Steven Wise, who taught the first animal law course at Harvard, tells the story of a chimpanzee named Jerom who was imprisoned for life in a US primate research centre and repeatedly infected with HIV until the pain and suffering overcame him.[4] In a February 2000 speech in Boston, the highly distinguished constitutional law professor, Lawrence Tribe, commenting on the chimpanzee’s plight, pronounced that ‘clearly Jerom was enslaved’.[5]

    The fact is that millions, or more realistically billions, of enslaved animals are today suffering in ways that many of us find too horrible to imagine or confront. Children are generally aware; they have a kinship to animals but are socialised to believe as they grow older that it is acceptable to kill, eat, wear, exhibit and experiment on animals. Virtually everything we do to animals in society is regulated by law; however, for hundreds of years, lawyers have largely failed to advocate on their behalf. All lawyers were children once. Like everyone else they once knew intuitively that animals are sentient beings.

    Although I am a layperson, not a lawyer, I do have certain expectations of what the law could and should be used for. In thinking about the law, it is usually in terms of ideals such as justice, fairness and equality. Although there are undoubtedly many factors that drive law reform today, I hope that the role of lawmakers and lawyers is to be, inter alia, a voice for the voiceless — for the weak, the marginalised and the oppressed — and to fight for, or at least debate and engage in, intellectual discourse about the basic rights and freedoms to which all beings should be entitled.

    Ask yourself why you have always accepted that the recipients of these important rights should be limited to humans? A human being at death’s door in a coma has more rights than an intelligent, sentient being of another species.[6]

    The area of animal rights law is very new. In fact it is only just emerging.

    Why is animal rights law potentially taboo or left of centre?

    Is it the weight of history behind the classification of animals as property that makes their ongoing exploitation acceptable? Steven Wise points out that each of the following claims has been made:

    Slaves live for the sake of their masters. The human races were placed on separate continents so that they would not mix. Nature has marked Chinese as inferior to whites. Women are made for men. Blacks lie so far below whites on the scale of created beings that they have no rights that whites are bound to respect.[7]

    These claims are so politically incorrect that even hearing them is enough to make many of us uncomfortable. Yet they were all accepted and given effect in law at various times throughout history.

    Does the fact that a law exists make it right or place it in a realm beyond question? Martin Luther King Jr once cautioned us to, ‘never forget that everything Hitler did in Germany was legal … It was illegal to aid and comfort a Jew in Hitler’s Germany.’[8] Apartheid in South Africa was also enshrined in law and enforced for almost half a century by legal authorities. Once we stop questioning the law and its operation we may well have abandoned one of our own most hard-earned freedoms — the right to freedom of thought and expression.

    Do animals need rights? The efforts of those who advocate on behalf of animals are sometimes challenged by those who claim that animals have no need for rights. This seems like a remarkable assertion considering the current situation in Australia, reflected in the following statistics:

    • more than 215 000 female pigs like Alice are imprisoned inside sheds, pregnant and confined for part or most of their reproductive cycle[9]

    • 62 per cent of female pigs, at some stage during their pregnancy, live in ‘sow crates’ in which they can barely take a step forward or back[10]

    • the first time many pigs see the sunshine is on their way to the abattoir

    • around 10 million ‘battery’ hens are held in barren wire cages in Australia[11]

    • each ‘battery’ hen has less than an A4 size piece of paper in which to live[12]

    • ‘battery’ hens, which are seen as mere units of production, cannot flap their wings or dust bathe

    • these ‘battery’ hens never feel the earth under their feet as they spend their lives standing on steel bars

    • in the past five years, more than 260 000 sheep and 5800 cattle have died on board livestock vessels during their journey to the Middle East[13]

    • over the last decade, 30 million kangaroos have been shot, with a further 3 million young-at-foot orphaned, left to starve or exposed to attack by predators — and that does not take into account their joeys.[14]

    When one considers these statistics, it seems almost incomprehensible to suggest that animals should not have legal advocates.

    Professor Francione has pointed out that the quest for animal rights is not a quest for the same rights that humans might have.[15] Animal rights lawyers are not trying to enact rights for animals such as the right to vote. What is being sought in its most basic form is the right not to suffer.

    The concept of human rights was not born overnight. The Universal Declaration of Human Rights was many years in the making and the existence, validity and content of many human rights is the subject of continuing debate in legal, philosophical and political circles. The immediate task for lawyers who wish to protect animals from suffering is simply to get the animal rights debate started. Once lawyers are willing to act as a voice for animals by engaging their hearts and minds in this emerging debate, Alice and billions of animals like her will have the opportunity to find shelter in the protection of the law as opposed to having it wielded as a weapon against them.

    Future generations will look back at our current treatment of animals with disbelief and ask why it took us so long to speak up for animals; why their parents and grandparents who had a voice — who were highly articulate, educated and who were in positions of power and influence — did nothing.

    [*] BRIAN SHERMAN AM is a director and co-founder of the non-profit Australian organisation, Voiceless, the fund for animals.

    © 2006 Brian Sherman

    For further information visit <>.

    [1] European Commission Scientific Veterinary Committee, Animal Welfare Section, Report on the Welfare of Intensively Kept Pigs (1997) s 5.2.2 <> at 26 October 2006.

    [2] Australian Government, Department of Agriculture Fisheries and Forestry, Australian Agriculture and Food Sector Stocktake (2005).

    [3] Gary L Francione, Rain Without Thunder: The Ideology of the Animal Rights Movement (1996) 179.

    [4] Steven M Wise, Rattling the Cage: Towards Legal Rights for Animals (2000) 15.

    [5] Ibid.

    [6] Ibid 144–5.

    [7] Steven M Wise, Drawing the Line: Science and the Case for Animal Rights (2002) 9.

    [8] Letter from Martin Luther King, Jr from Birmingham Jail, 16 April 1963 <> at 26 October 2006.

    [9] Australian Pork Limited, Australian Pig Annual 2004 (2005) 10.

    [10] Animal Welfare Science Centre and Department of Primary Industries, Pigs: Welfare Audit for the Pork Industry, A Reference Document for Industry Quality Assurance Programs (2004).

    [11] Australian Egg Corporation, Australian Egg Industry Annual Statistical Publication 2003, (2004) 48.

    [12] Primary Industries Standing Committee, Model Code of Practice for the Welfare of Animals: Domestic Poultry, SCARM Report No 83 (2001) Appendix 1.4.

    [13] Australian Government, Department of Agriculture Fisheries and Forestry, Livestock Mortalities for Exports by Sea (2005) <> at 26 October 2006.

    [14] Maryland Wilson and David B Croft, Kangaroos: Myths and Realities (2005) 2.

    [15] Gary L Francione, Introduction to Animal Rights: Your Child or the Dog? (2000) xxxi.

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