Animal Law: Introduction, Discourse and the Irish Approach

Liam O'Driscoll


Throughout history, humans have used animals for different purposes including as a source of food, a form of entertainment and a mode of transport. These practices were rarely questioned as they have their foundation in a belief that animals are fundamentally different to humans, and therefore, it is morally permissible for humans to use animals as they see fit.[1] However, since the early 19th century, and more recently since the early 1970’s, the legal protections afforded to animals and the cause of animal welfare has developed significantly. In Europe and across the developed world, legislation has been enacted to safeguard animals against a wide variety of practices such as cruelty, abandonment and improper living conditions.[2] Whilst the pace of this development has been criticised as too slow and misguided by Fetissenko,[3] the improvements in the manner in which humans treat animals has been hailed as significant by other commentators, including Garner.[4] In Ireland, the primary piece of legislation governing the welfare of animals is the Animal Health and Welfare Act 2013.[5] In this article, the primary legal theories of animal law will be examined, alongside an analysis of the 2013 Act and a further analysis of whether the provisions of the legislation comply with the principles of animal law.

Foundations, Ideology and Impact of Animal Law

Curnutt states that animal law concerns the ‘set of legal rules governing human practices that involve animals’,[6] whilst Tischler argues that animal law concerns itself with advancing the interests of animals and preventing their ‘abuse and exploitation’, as opposed to any specific legal rules regulating the relationship between humans and animals.[7] Overall, animal law has been broadly defined as a branch of law, an academic discipline and a social movement. In addition, it is necessary to understand that morality and moral considerations are a key element of the animal law discourse. Is it morally right that animals are killed by humans for food? Is it ethically wrong that animals are used by humans for entertainment? These are the fundamental questions that animal law seeks answers to.[8] With the foundations and moral considerations of animal law outlined, the form and mode that the answers to these questions have taken will be examined. It is argued that the specific answers to these questions can be found in the ideology of animal law. However, it is recognised that issues in regard to animality and animal ethics provide scope for the proper understanding of the biological and philosophical foundations underpinning animal law respectively.[9]

The first significant question that will be analysed is that of the relationship between animal welfare and animal rights. It is submitted that this relationship offers an insightful example in regard to the various different approaches of animal protection. As these two approaches are similar, they will be compared and contrasted throughout this examination. According to Aaltola and Birgitta, the animal welfare approach encompasses a belief that it is wrong for humans to inflict unnecessary suffering on animals.[10] The animal rights approach, on the other hand, argues that animals have an inherent value which is not dependent on their relationship with humans.[11] In other words, the animal welfare dictum focuses on regulating how humans use animals, whilst the animal rights dictum states that animals ought not to be exploited by humans at all. In regard to the latter, Ibrahim sharply criticises how welfarism is ‘ineffective’ because it does not ‘challenge the underlying exploitation of animals’; instead the concept permits the suffering of animals, and according to Ibrahim, a much more radical approach is needed.[12] In contrast to this criticism, it is interesting to note Garner’s defence of welfarism where he states that, despite its limitations, the welfare approach has ‘a great deal of political utility’, in that it offers a practical and realistic route to improving animal protection.[13]

It is submitted that this apparent division between animal welfare and animal rights is false and misleading. In this regard, Pietrzykowski observes that the division between animal welfare and animal rights is premised on the belief that to hold a legal right, one must possess legal personhood. Therefore, the argument is made that under the welfarist approach, animals do not possess any rights or interests.[14] In light of this criticism, it is argued that animals do possess some limited rights and interests under the welfarist approach. Whilst these rights and interests are granted to animals indirectly through the legislature’s desire to regulate issues such as animal health or farm safety,[15] they are rights and interests nonetheless and the arguments advanced by Ibrahim and others that a more radical approach is needed, whilst understandable from an animal rights perspective, is perhaps demanding more of the legal framework than is strictly necessary. In reality, animal welfare and animal rights both advance the interests of animals, but they do so at differing paces.[16]

Animal Law and Ireland

In this section, the provisions of the primary legislative framework in Ireland, the Animal Health and Welfare Act 2013, will be analysed. The 2013 Act replaced the outdated provisions of the Protection of Animals Acts, 1911-1965.[17] Heffernan argues that the 2013 Act was urgently needed in light of ineffective punishment regimes, poor enforcement mechanisms and a significant number of loopholes that resulted in many different types of animals not benefiting from the legislation.[18] Whilst the 2013 Act makes significant improvements, it is argued that the pace of development is too slow in Ireland. This can be seen both from the wording of the legislation and the particular method of protection employed by the legislature. In regard to the former, the 2013 Act suffers from a significant interpretative flaw in relation to the words ‘unnecessary suffering’ which is defined in section 2 as ‘pain, distress or suffering (whether physical or mental) that in its kind or degree, or in its object, or in the circumstances in which it occurs, is unreasonable or unnecessary’. Aaltola and Birgitta criticise this kind of legislative wording, which they state is ‘worded vaguely’ and merely ‘gives the impression that it protects animal welfare’.[19] Whilst the legislation prohibits unnecessary suffering in the context of a duty to protect animals,[20] a prohibition on animal cruelty,[21] the proper feeding of animals,[22] and a prohibition on animal fighting,[23] it is submitted that the definition of unnecessary suffering is too ambiguous to enforce in practice, as any animal welfare considerations could easily be overridden by other considerations such as economic, business or human health concerns.[24]

Whilst the specific wording of the provisions is a considerable weakness, it is submitted that the particular method of protection employed by the legislature is a more important weakness to examine. The Irish legislature choose to adopt legislation akin to the Scottish animal welfare legislation entitled the Animal Health and Welfare (Scotland) Act 2006.[25] Heffernan notes the criticism towards this approach and argues that Ireland should have followed the more ‘radical’, ‘very well thought out and straight forward’ legislative approach of England and Wales,[26] in the Animal Welfare Act 2006.[27] According to the World Animal Protection Index, the significant developments brought about by the 2006 Act have resulted in England and Wales having the least room for improvement in terms of global animal welfare standards. These improvements include the fact that reference to sentience is made in section 1 in regard to the scope of application of the legislation. Furthermore, reference is made to scientific developments for the purposes of expanding this scope in the future.[28] It is argued that such references indicate a willingness on the part of England and Wales to prioritise an essential principle of animal law which is the proper application of scientific knowledge to the classification process.[29] According to Dupré, the classification process is the ‘practical activity of assigning the vast numbers of organisms in the world to particular kinds’.[30] It is submitted that applying the proper application of scientific knowledge to this process is essential because different animals are regulated differently depending on their classification. Thus, factors such as sentience are crucial in terms of the level of protection that is afforded to a particular animal.[31] It is telling that no such references are made in the 2013 Act and therefore, whilst the 2013 Act contains some beneficial reforms, such as consolidation of previous statutes and no ownership requirements in terms of who the legislation applies to, it is submitted that the 2013 Act falls short of the protection that can be practically enacted in light of economic, agricultural and other considerations as is evidenced by the measures enacted in England and Wales by the 2006 Act.[32]


In this article, some of the primary principles of animal law have been examined, namely in relation to animal welfare and animal rights. The discussion began with an examination of the origins and foundations of animal law, especially from the perspective of morality. The discussion then moved to an in-depth analysis of animal welfare and animal rights. Here, it was concluded that the apparent division between the animal welfare approach and the animal rights approach is false and in reality, the difference between the two is purely a matter of how quickly change ought to be brought about in terms of animal protection. Finally, the discussion then developed to exploring how these approaches, along with comparative approaches, are reflected in the Irish animal protection legislation. Overall, it was concluded that Ireland still has significant progress to make in terms of the better protection of animals.


[1]* BCL (International) IV Candidate, University College Cork. Member of the Editorial Board of the Cork Online Law Review.

Rene Descartes, Discourse on the Method of Rightly Conducting One's Reason and of Seeking Truth in the Sciences (Republished by the Floating Press 2009) Part V <> accessed 29 October 2019.

[2] Elisa Aaltola & Birgitta Wahlberg, ‘Nonhuman Animals: Legal Status and Moral Considerability’ (2015) 38 (151) Nordic Journal of Law and Justice 83, 83 - 84.

[3] Maxim Fetissenko, ‘Beyond Morality: Developing a New Rhetorical Strategy for the Animal Rights Movement’ (2011) 1(2) Journal of Animal Ethics 150, 152.

[4] Robert Garner, ‘Animal Welfare: A Political Defense’ (2006) 1 Journal of Animal Law and Ethics 161, 162.

[5] Animal Health and Welfare Act 2013 [hereinafter ‘the 2013 Act’].

[6] Jordan Curnutt, Animals and the Law: A Sourcebook (1st Edn, Contemporary Legal Issues, 2001) 10.

[7] Joyce Tischler, ’The History of Animal Law, Part 1 (1972 – 1987) (2008) 1 Stanford Journal of Animal Law and Policy 1, 3.

[8] Lori Gruen, ’The Moral Status of Animals’ in The Stanford Encyclopedia of Philosophy (Fall 2017 Edition)  <> accessed 29 October 2019.

[9] See John Dupré, ’In Defence of Classification’ (2001) 32(2) Studies in History and Philosophy of Science 203; Thomas H. Birch, ’Moral Considerability and Universal Consideration’ (1993) 15(4) Environmental Ethics 313.

[10] Aaltola & Birgitta (n 2) 84.

[11] Darian M Ibrahim, ‘The Anticruelty Statute: A Study in Animal Welfare’ (2006) 1 Journal of Animal Law and Ethics 175, 177.

[12] ibid 203.

[13] Garner (n 4) 173.

[14] Tomasz Pietrzykowski, ’The Idea of Non-personal Subjects of Law’ in Visa AJ Kurki and Tomasz Pietrzykowski, Legal Personhood - Animals, Artificialm Intelligence and the Unborn (Springer International Publishing, 2017) [4.5].

[15] See the next section for in-dept examples of how legislation governs these issues.

[16] Visa AJ Kurki, ’Why Things Can Hold Rights: Reconceptualizing the Legal Person’ in Visa AJ Kurki and Tomasz Pietrzykowski, Legal Personhood - Animals, Artificialm Intelligence and the Unborn (Springer International Publishing, 2017) [5.6].

[17] Protection of Animals Acts, 1911-1965.

[18] Sinead Heffernan, ‘Voiceless Victims: Suffering under Lenient Punitive Legislation In Ireland’ (2011) 29 Irish Law Times 103, 105.

[19] Aaltola and Birgitta (n 2) 89.

[20] The 2013 Act, section 11.

[21] ibid, section 12.

[22] ibid, section 13.

[23] ibid, section 15.

[24] ibid.

[25] Animal Health and Welfare (Scotland) Act 2006 (hereinafter ’the 2006 Scottish Act’).

[26] Heffernan (n 18) 106.

[27] Animal Welfare Act 2006 (hereinafter ’the 2006 Act’).

[28] World Animal Protection Index, United Kingdom of Great Britain and Northern Ireland: Animal Protection Index (2014) <> accessed 29 October 2019.

[29] See Dupré (n 9).

[30] ibid.

[31] See Charlotte E Blattner, ‘The Recognition of Animal Sentience by the Law’ (2019) 9(2) Journal of Animal Ethics 121, 122.

[32] World Animal Protection Index (n 28).

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