Introduction
It was in 1637 that the French philosopher and mathematician René Descartes declared nonhuman animals to be automatons. Although they reacted to stimuli, he said, they did not feel pain or experience pleasure. They were no different in his view from biological machines. What Descartes’ pronouncement ushered in was an era of intellectual and moral indifference if not hostility toward animal welfare that would inform legal thought for centuries. Yet in what amounts to a rejection of his stance today, countries around the world are enshrining into law what society largely deems apparent: that animals are sentient beings capable of not just feeling pain and pleasure but also of perceiving the world around them. While this phenomenon has generally been applauded by animal advocates, the existence of welfare laws already seems to acknowledge, implicitly if not explicitly, that animals can and do suffer, that they have biological needs, and that these interests should be protected by law. As such, the question of how this growing recognition of animals’ sentience will advance their protections nevertheless remains.
What Is Sentience?
But first, what are we really talking about when we talk about sentience? Put differently, when the law affirms the sentience of animals, what exactly is being recognized? As some scholars observe, the term is “poorly defined and understood by the scientific community, let alone by lay people.”[i] The Sentience Institute describes it as “the capacity to have positive and negative experiences, usually thought of as happiness and suffering.”[ii] Other, more involved definitions, frame it as a “multidimensional subjective phenomenon,” one that includes self-awareness, metacognition, and a theory of mind.[iii]
Laws Leaving Sentience Undefined
It is perhaps fitting that France was one of the first countries to turn the page on Descartes. In 1976, it paired the recognition of animal sentience with the requirement that animals be kept in conditions appropriate to the “biological . . . requirements of their species.”[iv] In 2015, France built upon this development by amending its civil code to transform the legal status of animals from “moveable property” to “living beings gifted [with] sentience.”[v] Several other jurisdictions have also taken this significant step. Yet many, like France, have curiously opted to leave this important yet poorly understood term undefined. For example, the meaning of sentience was not established when The Functioning of the European Union (TFEU) was amended by the Lisbon Treaty in 2009. Yet the significance of its recognition was stressed with the TFEU stating that “in formulating and implementing the Union’s agriculture, fisheries, transport, internal market, research and technological development and space policies, the Union and the Member States shall, since animals are sentient beings, pay full regard to the welfare requirements of animals[.]”[vi]
Ultimately, it is unclear why the French, EU, and other frameworks neglect to provide a definition for sentience. Perhaps the term proved too complex to pin down. Or perhaps the point was simply to recognize that nonhuman animals, like humans, also possess this quality that makes their interests matter. Touching upon this broader theme, Faunalytics observes that “[t]he simple insertion of sentience language in key texts can ensure legislators base their formulation of policy on preserving animal welfare, and that the public are certain as to the necessity for protection. It also serves as a reminder to enforcers of animal laws of the importance of their role . . . .”[vii] Notably, advocates in New Zealand seized upon the absence of a definition for animal sentience when it was recognized in 2015, describing it as “an opportunity . . . to demonstrate leadership by providing [their own] definition,” one that allows them to move beyond the symbolic and “set a new standard for society’s expectations of the ways animals are treated [by] focusing on positive welfare states and . . . enhancement.”[viii] Other jurisdictions that leave the term undefined have made reference to its legal implications. For example, in codifying into law that “[a]nimals are not things. They are sentient beings and have biological needs,” Quebec took the symbolic step of lifting animals out of the property paradigm, a classification that has historically provided for their exploitation as commodities.[ix] This affirmation has ushered in a similar shift in Brussels, whose Parliament unanimously enshrined animals’ sentient status. Whereas animals were once “object[s], included in the category of property and immobile goods,” the ordinance has transformed them into “living being[s] endowed with sensitivity, interests of [their] own and dignity, that benefits from special protection.”[x] To be certain, even if sentience is not defined by the very law that recognizes it, the absence of a definition and the context in which it appears can prove a powerful tool for advocates.
Laws Defining Sentience
To turn the coin, the language employed to recognize animal sentience can also limit the ethical considerations that the law might provide. For example, Oregon amended its animal cruelty laws in 2013 to establish that “animals are sentient beings capable of experiencing pain, stress and fear.”[xi] Although a positive development, the context in which sentience is recognized by the state arguably limits its application. Indeed, if a court were to construct this statutory language using the canon of noscitur a sociis, which holds that a word is known by the company it keeps, the implications of sentience could be limited to restricting negative affective states as opposed to promoting positive ones. Thus, whether a case before the court concerned cats, fishes, pigs, or horses, the context in which lawmakers recognize animal sentience could severely hamper what judges are willing or able to do to advance their interests. In this vein, the acknowledgement of animal sentience does not necessarily mean that animals will reap all the benefits this recognition could afford them. To return to the EU, the TFEU language requiring it and Member States to “pay full regard” to animal welfare is constrained by the requirement that they “respect[] the legislative or administrative provisions and customs of the EU countries relating in particular to religious rites, cultural traditions and regional heritage.”[xii] Indeed, what these exceptions to the rule reveal is that advocates should not consider the acknowledgement of animal sentience as a cure-all for the many ills that animals face. This is true even for the few jurisdictions that define sentience. For example, Tanzania’s Animal Welfare Act 2008 defines sentience as “the capacity of an animal to be aware of sensations, emotions, feeling pain, suffering and enjoying their species specific needs,”[xiii] affirms that “an animal is a sentient being,”[xiv] and classifies animals as “any vertebrate or invertebrate other than a human being[.]”[xv] Although the Act underscores the implications of this recognition, stating that “a human being has a moral obligation to care, respect and protect an animal,”[xvi] it also observes that “animal welfare enhances livestock productivity” and in doing so supports the use of animals for agricultural purposes.[xvii]
But if the ethical implications of recognizing animal sentience can readily be qualified, one might wonder why politicians would staunchly oppose enshrining it into law. This is one of the issues that have haunted Brexit leaders as they prepare to exit the European Union. Given that the TFEU provisions will no longer apply after Brexit unless they are incorporated into its Withdrawal Bill, the UK will technically no longer legally recognize that animals are sentient beings.[xviii] Notably, it was the UK that produced the monumental Brambell Report, a study of farmed animal welfare that led to the creation of Brambell’s Five Freedoms, a framework for considering animals’ physical needs and affective states, both positive and negative.[xix] The Five Freedoms are noteworthy for having shaped EU animal welfare laws. Yet although the UK will still maintain its domestic animal protections, which implicitly acknowledge that animals are sentient, Brexit leaders’ opposition to legally recognizing animal sentience illustrates how animal sentience, once a convenient un-truth, is now an inconvenient truth for some. Indeed, discussions concerning animal sentience get to the heart of what the law can and should require. The debate around its formal acknowledgement and how the term can and should be defined might appropriately be characterized as an inflection point in the animal rights movement, arguably ineffectual in and of itself but attesting to a sea change in society’s obligations to animals: that is, a shift, if only symbolic, from putting Descartes before the horse to putting the horse before Descartes.