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Published by the students of Michigan State University College of Law

Journal of Animal Law Vol. VII (2011)

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ARTICLES:

The Legal Situation of Animals in Switzerland: Two Steps Forward, One Step Back – Many Steps to Go

Margot Michel and Eveline Schneider Kayasseh.............................1

In 1992, Switzerland became the first country in the world to introduce protection of the dignity of the Creature into its constitution. Prevailing legal opinion is that protection of the dignity of the Creature necessitates respect for the inherent value of animals. This inherent value is neither based upon nor exhausts itself in considerations as to what use animals can be put to by humans; rather, it respects animals in their own being and otherness. In 2003, a number of new rules were introduced into Swiss Private law, holding, inter alia, that animals are not objects. The effects of this change range from the recovery of non-economic damages if an animal is injured or killed to the placement of animals after a married couple divorces. We will conclude our overview over Switzerland’s Animal law by outlining a companion animal’s legal status in inheritance law.

Far from Fauvists: The Availability of Copyright Protection for Animal Art and Concomitant Issues of Ownership

Vania Gauthreaux...........................................................................43

Artwork created by animals is an important topic for discussion because of its popularity and value. This paper provides background information on several animal artists and describes the creative processes that each uses to create artworks. The article then discusses the legal requirements for copyright protection in the United States and explains why certain animal artworks satisfy these requirements and should be protected by copyright. Finally, the piece addresses the question of ownership of these copyrights and examines the various forms of copyright ownership, particularly works made for hire.

Strategic Litigation and Law Reform

Graeme McEwen.............................................................................91

With welfare thresholds so low for intensively produced and other animals, successful prosecution is difficult. Yet the concerned lawyer by being creative can take on an entire industry in respect of millions of animals rather than just prosecute one individual’s maltreatment of a few animals. Further, producer resistance to change can induce aggressive litigation intended to silence the welfare message eg the suit by Australian wool producers against PETA invoking the secondary boycott provisions of a federal statute to claim substantial damages arising from PETA’S threatened boycott of Australian wool products whilst Australia persisted with mulesing and live sheep exports. This type of case requires its own legal ingenuity and strategy to protect public advocates, including a close examination of constitutional protections of ‘free speech’. Or again, what is the legal position where CDs and documents are ‘leaked’ to an animal society which in turn publishes them to its website, so publicly pointing up arguably impermissible, heavily intrusive research procedures upon primates with grave consequences for their welfare? Is the animal society to be silenced on grounds of breach of confidence and copyright, or can the public interest confer a countervailing defence? This was explored in the UK’s Imutran case. Strategic public interest litigation is a central part of the legal armoury for the concerned lawyer. Combined with advocacy of law reform at a federal rather than state level, each stands to forge new headway in the struggle for legislative change.

The French Contribution to Animal Ethics: René Descartes and Victor Hugo

Andrew Linzey...............................................................................105

In its toleration of eating foie gras and bullfighting especially, France has a reputation for being notoriously un-friendly to animals. But France has also provided two of the foundational thinkers in animal ethics and theology: Victor Hugo and René Descartes. On one hand, Descartes regarded animals as automata, capable of some sensation, but without the consciousness that derives from the possession of an immortal, rational soul. Cartesianism gave a boost to pre-existing "instrumentalist" attitudes to animals drawing on the ambiguity of the biblical material. The total effect of Cartesianism was thus to degrade the status of animals still further. On the other hand, Hugo represents another possibility within the Christian tradition. In The Alps and Pyrenees, he writes of how humans ought to be civilised towards nature.

While Hugo does not entirely dispense with traditional teleology, he does offer a new reading of human superiority. Contra Descartes, human power ought to be used for the benefit of the weak. "Whatever is weak has a claim on the goodness and pity of whatever is strong". It is that perception that has helped galvanize another, altogether different, Christian vision, namely philanthropy or benevolence, which was the ideological cornerstone for the first legal attempts at the protection of animals. It is still unclear whether the Christian tradition, which has been the captive of Cartesian thought for so long, can yet fully articulate the second, alternative reading of our relations with animals.

NOTES & COMMENTS

A Shmuz About Schamalz

A Case Study: Jewish Law and Foie Gras

Randall Schapiro...........................................................................119

While Jewish law sheds light on many ritual and daily rules of conduct, the corpus of the traditional Jewish worldview also magnifies the fundamental relationship between man and the animal kingdom. Focusing on the appreciation man must have for the animal world around him as a manifestation of God’s creation, the author delves into such nuances as the utility of animals for such purposes as health, as well as models for proper human behavior and religion. After presenting an overview of the rabbinic medieval and modern sources for animal’s place in society and their treatment under Jewish law, the author turns to present a practical case study in the particular French delicacy called foie gras. The dish, while having a controversial and storied history, is relevant to both modern day cuisine and animal rights political thought in general.

2010-2011 Case Law Review

Catherine Tucker...........................................................................147