The relationship between animal protection and human rights should not be confused, as commented by

[Author].Gao Li redHe is the director, professor and doctoral supervisor of the Institute of Environmental Resources Law of Zhongnan University of Economics and Law, and the vice president of the Environmental Resources Law Research Association of the China Law Society.

In recent years, animal cruelty has repeatedly become a hot topic in the news, but there has been little progress in promoting animal protection legislation in the legal profession. In the discussion of hot events involving cats and dogs, such as the pet dog injury incident and the Kunming Zoo incident, there are not a few views on the opposition between animal rights and human rights, which also pushes the discussion of such issues to the height of legal theory.

To clarify the relationship between animal rights and human rights in legal theory, it is first necessary to distinguish three theoretical levels. First, the theory of animal rights. This theory is the highest level of animal protection, advocating the protection of animals from the status of legal subjects, and believes that animals should enjoy certain rights. In countries around the world, the mainstream is limited animal rights, that is, the right to protect certain animals as living beings, such as not allowing abuse, or the right of the owner to file for moral damages when the companion animal is harmed, and some civil rights such as the animal should be regarded as the object of guardianship in the event of divorce. Second, animal welfare. This theory is a secondary order of animal protection, based on the norms of modern civilization that treats life kindly, and cannot get rid of the use of animals, and gives humans the moral and legal requirements to treat them well. Third, anti-animal cruelty theory. This is the basic level of animal protection, which belongs to the downgraded protection of animal welfare, which is actually the bottom line recognition that "animals also have the ability to perceive pain", and is a minimum legal prohibition based on human empathy.

The most typical expression of the opposition between human rights and animal protection is: "How can we talk about animal welfare if human rights are not guaranteed?" "The protection of human rights and animal welfare presupposes a confrontational position. However, in practice, protecting human rights does not conflict with animal welfare, because the core of animal welfare protection is to reduce the "unnecessary suffering" of animals, rather than giving them "additional enjoyment", and improving animal welfare can indirectly protect human rights. For example, by improving animal welfare standards on farms, zoonotic diseases can be effectively reduced, public health risks can be reduced, and the quality of animal products ingested by humans can be improved.

Human rights and animal protection are not antagonistic, but mutually reinforcing. The legal protection of animals is a response to the law based on the perception of animals, respect for life, and public morality. Looking at the three levels of animal rights, animal welfare, and anti-animal cruelty, it can be found that anti-animal cruelty does not involve animal rights and does not have a realistic relationship with human rights. Even if it is forcibly linked, the development of animal protection based on the practical operation of the law will not detract from human rights. For example, if the spouses keep an animal together, the spouse who does not have custody after the divorce has the right to request access to the animal. The recognition of such a right of visitation does not detract from the rights of both parties, but can provide more spiritual comfort to the visiting party.

In real life, the animals to be treated are mainly companion animals, and the recognition of animal rights in countries around the world basically revolves around companion animals. Companion animals bring special benefits to humans, such as spiritual comfort, and even if they are treated as "civil law objects", the protection of them from abuse does not adversely affect anyone's rights. Cruel abuse should also be prevented by centralized management and manual epidemic prevention for the sake of public health and other public health reasons, or humane culling of already invasive animals. If we insist on equating "anti-animal cruelty" with "animal rights above human rights", the priority of protecting human rights should be to allow animal cruelty, which is obviously completely contrary to social civilization and legal development. In addition, the protection of farm animals is not only an ethical issue, but also a matter of food safety. The protection of working animals, including performance animals and laboratory animals, is also closely related to work effectiveness, emotional ability and even national image. The protection of wildlife is the protection of biodiversity, which is the basis for human existence.

According to statistics, among the 91 countries and regions in the world that have promulgated the Civil Code, 26 countries and regions have carried out the re-establishment of the status of animal civil law. It is foreseeable that this will also become the trend of future legislative development.

In China's traditional culture, whether it is the Buddhist concept of "equality of all beings", the Confucian concept of "virtue and beasts", or the Taoist concept of harmonious coexistence between man and nature, it is reflected that humans and animals are not opposites in the first place. The concepts of "harmony between man and nature", "integration of things and self" and "harmony between people and things" in traditional philosophy have formed the basic cultural heritage of caring for animals in China, and also shaped the legal protection system of animals in the Middle Ages in China. A typical example is the "Tang Law Discussion" for the legislative protection of animals, and there is also a ban on animal slaughter, which prohibits cattle, horses, sheep and other livestock animals for about 100 days a year. Successive emperors have had many "forbidden edicts" for the killing of wild animals to pay tribute. There is no need to talk about anti-animal cruelty as a "foreign product" of Western thought.

It should be pointed out that the legal regulation of wild animals has been fully systematized, filling some of the earlier gaps, especially the establishment of the wild animal ban system, which is a great progress in China's animal protection legislation. Unfortunately, wildlife displays have not yet been outlawed. In the future, China should enact the "Anti-Animal Cruelty Law" to prohibit deliberately using cruel means or methods to bring unnecessary pain or injury to animals such as hunger, thirst, torture, disease, etc., and prohibit killing animals by cruel means or methods. Full protection of companion animals, farm animals, working animals, laboratory animals, wild animals, etc. from abuse. This is also the best animal protection legislative model in China's current legal system and development stage, clarifying the definition of "abuse" in the form of legislation, and pointing out to the public that anti-cruelty is only regulated by malicious and cruel "unnecessary" harmful behaviors, so as to build consensus with good laws.

This article was originally published in the B3 edition of "Scholar Review" of Shanghai Legal News on February 28, 2024, with Zhu Fei as the executive editor and Xu Hui as the editor in charge).