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