'The Historical Development of Animal Welfare Law in Nineteenth Century Scotland' by Daniel James Carr
examines
the development of animal welfare in Scotland. Whilst the law developed in tandem with developments across nineteenth century Britain, the paper draws attention to the distinctive Scottish situation. By examining the development from disparate common law protections to the statutory interventions of the nineteenth century the paper charts that development, and begins to place it within nascent 'humanist' movements emerging around this time. The piece examines how the Scottish doctrinal law took a distinctive direction in decisions, and in particular considers contemporary opinion. The paper is the first to take a look at the particular Scottish development and opens up new avenues of research into the nineteenth century, and also frames developments in the modern law which I will pursue in future research.
Carr argues
This paper is confined to laying some historical groundwork by starting to look at the
historical development of animal welfare law in Scotland.
This is not
a
comprehensive
treatment of the history of the legal development in Scotland:
much of
the paper is tentative, and, it also takes account of developments in England. It is
hoped that this contribution might stimulate further research. Hopefully, the chapter
will come
to
be
situated within a broader
possible
research
project on animal law
in
Scotland more generally, which would concentrate particularly on animal welfare law
but could also encompass other areas of law dealing with animals.
Therefore, this
paper
considers
some of
the early
history
of animal welfare law
in Scotland,
particularly in the early to
mid nineteenth century. The
paper
demonstrates, I hope,
how the law in Scotland has developed by
small
incremental
developments from the
common law,
or at least it was
retrospectively described as such a development,
which was then substantially altered by legislative intervention in the mid-nineteenth
century. It is possible to trace the changing background to the rules and discern some
normative movement
from
viewing animals as mere
property
to some form of
recognition of
the
interests
of the animals themselves. The
explanations given for the
creation of legislation to
increase the
protection
accorded to animals
qua
animals varied
from the ownership, divine duty, projections
of humanity
onto animals, before
moving towards
thinking about
the interests of the animal themselves
as some kind of
freestanding interest that was worthy of protection.
A secondary dimension of the
paper
is the interesting way
it
illustrates
how
different approaches have
been taken by
jurisdictions
of the British Isles, and
it
forms
a nice case study of
different approaches have been taken
from
the
early-19th
century
all the way through to the post-devolution era.
Furthermore, that
historical
development
also
shows
how these developing interests
might be described very
loosely as fitting in with other ‘humane’ movements
around this period which were
based on
ideas such as rolling back personal oppression, the infliction of pain, the
improvement
of
social conditions, and occupies a period where the increasing
permeation of state intervention
and legislation in
many areas of law
can be observed,
and animal protection law becomes
embedded within the emerging legislative web of
such
regulation which emerges within an emerging
modern bureaucratic
state. In turn,
the protection of animals’ welfare comes to be protected not only in specific ‘animal
cruelty’ statutes, but can also be seen across other forms of legislation dealing with
food production, transportation of livestock, and even mining legislation.
A
further
and related
dimension
which I
think is important, but which
can only
be lightly
touched upon here, within this context of the increasingly present state and
legislative interventions in relation to the management and regulation of that state,
is
the emergence of non-state actors
conducting public duties (not in general, but the
specific animal societies inspectors
etc.) who become, in effect,
quasi-state
functionaries. This includes the
societies against cruelty to children and animals
which emerge as organisations which the state entrusts with certain public powers,
and those functions remain considerably later than many other quasi-public entities
disappear or at least diminish
