Beyond Rights and Welfare: Democracy, Dialogue, and the Animal Welfare Act
Authors: Eisen Jessica 
Published: March 2022

The primary frameworks through which scholars have conceptualized legal protections for animals—animal “rights” and animal “welfare”—do not account for socio-legal transformation or democratic dialogue as central dynamics of animal law. The animal “rights” approach focuses on the need for limits or boundaries preventing animal use, while the animal “welfare” approach advocates balancing harm to animals against human benefits from animal use. Both approaches rely on abstract accounts of the characteristics animals are thought to share with humans and the legal protections they are owed as a result of those traits. Neither offers sustained attention to the dynamics of legal change in democratic states, including the importance of public access to the facts of animal lives, opportunities for affective storytelling, and multi-faceted public deliberation.

This Article offers an alternative avenue for theorizing animal legal protections, drawing on Laurence Tribe’s articulation of law as governed by an “evolving ethic,” wherein successive shifts in legal and public consensus build upon one another in ways that are dynamic and not entirely unpredictable. Drawing on feminist, critical, and relational approaches to law and social change, this Article elaborates a vision of animal law as governed by an evolving ethic wherein legal transformation is deeply connected to the public availability of particular facts of animal use, emotional storytelling, and broader social relationships and power dynamics. The evolving ethic here proposed helps us to shift our focus from a precritical understanding of rights as hard boundaries to a view of rights as a product of dynamic social relationships; and to shift our focus from welfarist balancing calculations to more open-textured dialogue. By conceiving of animal law through the lens of the evolving ethic, we can break free of stale debates about the virtue of rights versus welfare and instead embrace both as tools in a dialogic toolbox deployed in a field of legal transformation that is better characterized by dynamism and dialogue than by teleological advancement toward a predefined goal.

The Animal Welfare Act (AWA)—the central legal regime governing the experimental use of animals in the United States, forms the central case study. The AWA regime in its current form works to foreclose public deliberation over concrete cases. The history of this same regime, however, demonstrates that affective storytelling grounded in the particular facts of animal use has been a major driver of democratic legal change protecting animals used in experiments. This Article explores the current structure and historical development of the AWA scheme, demonstrating that the evolving ethic offers insights, beyond those allowed by rights and welfare approaches, into the practical dynamics of animal law and the shortcomings of the current AWA scheme. Informed by the evolving ethic and the AWA’s history of sociolegal transformation, this Article offers AWA law reform proposals that aim to facilitate public deliberation grounded in the concrete facts of animal use—including the introduction of ethical merit review of proposed experiments, changes in the applicable rules of standing, and product labeling. While each proposed reform may yield incremental improvements in the treatment of laboratory animals in the immediate term, the core insight of the evolving ethic is that there is a distinct value in the potential of such proposals to nourish public conversations rooted in particular stories of animal use—conversations that are likely to spur new questions and new conversations, none of which can be fully determined in advance.