When is Animal Suffering 'Necessary'?

2012 (27) Southern African Public Law 3-27

29 Pages Posted: 3 Sep 2013

See all articles by David Bilchitz

David Bilchitz

University of Johannesburg; University of Reading - School of Law

Date Written: 2 May, 2012


I seek in this paper to investigate the notion of ‘unnecessary suffering’ in the Animal Protection Act of South Africa (which is similar to the notion in animal welfare legislation elsewhere in the world.) I first consider the legal development of the concept, which has received only limited jurisprudential attention in South Africa. Criticisms of the concept made by Gary Francione and others were identified which argue that it does not provide any significant protection for the interests of animals and and enshrines a view of animals that does not see them as having intrinsic value.

I sought to counter both criticisms through investigating the conceptual possibilities that the notion of necessity holds within the law. I consider the meaning of necessity in both criminal and human rights law. Significant overlaps were identified with its use in relation to the protection of animals and I argued that its key virtue lies in requiring courts to go through a stringent process of reasoning where animal suffering has been (or may be) caused.

That process involves two components: first, it requires understanding and specifying the objectives for which the suffering may be caused. These objectives must be weighed against the harm to the animal concerned. I argued that this process requires recognition of the intrinsic interest of animals in avoiding suffering and that only objectives of a significant weight be allowed to justify causing suffering to animals.

The second component is the means-end test which involves considering whether there is an alternative means that realizes the objective in question in a real and substantial manner and would cause less suffering to the animals in question.

I have sought to argue that the necessity test is not necessarily one that should be rejected by people who believe in the intrinsic worth of animals. Indeed, some version of a necessity test will be something that those who support an animal rights philosophy will also require in a wide range of circumstances. I nevertheless acknowledged that courts are likely, at least in the foreseeable future, to accept that some socially sanctioned uses of animals are legitimate objectives which many animal advocates will not accept. Even if this is the case, I contended that the means-end component of the necessity inquiry can be useful in providing animals with significant protection if interpreted in a manner that seeks to give effect to the purpose of the welfare statutes and thus places strong value on the sentience of animals. The means-end component of necessity can be used, I suggested, to challenge many facets of the current treatment of animals including widespread institutional abuses. Though some contend that means-end reasoning is only consistent with a welfarist view focused on reducing animal suffering, I believe, in the non-ideal conditions of current society, that it is a stance that an animal rights perspective as well should adopt.

Keywords: unnecessary suffering, animal welfare, animal rights, South Africa, necessity, means-end reasoning

JEL Classification: Z00

Suggested Citation

Bilchitz, David, When is Animal Suffering 'Necessary'? (2 May, 2012). 2012 (27) Southern African Public Law 3-27, Available at SSRN: https://ssrn.com/abstract=2319419

David Bilchitz (Contact Author)

University of Johannesburg ( email )

PO Box 524
Auckland Park
Johannesburg, Gauteng 2006
South Africa
0113391194 (Phone)
0113391167 (Fax)

HOME PAGE: http://www.uj.ac.za/EN/Faculties/law/about/Staff/Professors/Pages/Prof-D-Bilchitz.aspx

University of Reading - School of Law ( email )

Reading, RG6 6AH
United Kingdom

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