The Anticruelty Statute: A Study in Animal Welfare

Abstract

Animal welfare advocates claim that animal exploitation and humane treatment can coexist with respect to the use of animals for food, experimentation, hunting, and other human benefits. These advocates recognize that existing anticruelty statutes, which embody the idea that animals should not subjected to unnecessary suffering, have many deficiencies - most notably, as Professor Gary Francione has pointed out, they include wholesale exemptions for institutional uses of animals. However, these advocates nevertheless claim that anticruelty statutes can be reformed, either legislatively or judicially, to narrow these exemptions and ascribe more weight to an exploited animal's interest in not suffering.

This article reveals that, although legislatures could certainly require better treatment of exploited animals, a law that does not challenge the underlying exploitation itself can at best prevent suffering that is in excess of what is required to carry out the exploitation. As the very nature of animal exploitation requires the infliction of tremendous suffering, the amount of excess suffering that a reformed anticruelty statute could prevent is minimal. This article also reveals that courts do not have the discretion to interpret anticruelty statutes more broadly for a variety of reasons, including the constitutional requirement of fair warning. This article concludes that anticruelty statutes, while noble in theory, are ineffective in practice precisely because they do not challenge the underlying exploitation of animals, but instead focus on humane treatment.

This article provides greater support for the argument that animal advocates should adopt Professor Francione's rights-based strategy that eschews unworkable ideas of humane treatment and instead focuses on abolition.

Keywords: Animal, animal rights, animal welfare, cruelty, anticruelty, fair warning, void-for-vagueness

JEL Classification: K14, K19