Standards and Standard-Setting in Companion Animal Protection

Abstract

Legal scholarship addressing the protection of animals, including companion animals, is a vibrant and growing field in Australia and beyond. However, limited scholarly attention has so far been directed to the regulatory studies literature and the insights it may provide about standards, standard-setting, compliance monitoring and enforcement for animal protection. I explore how the legal forms of the prevailing governing norm of humaneness function as regulatory standards in a companion animal context. Given the intrinsic moral worth of companion animals, values such as social justice and paternalism, derived from political versions of public interest theory, are most relevant to understanding why the State is justified in restricting the rights that may be exercised by companion animal owners over their ‘property’. The key legislative standards are a prohibition of cruelty and an obligation to meet the basic welfare needs of an animal. These provisions operate as principle-based standards, describing duties to be performed, but not specifying how they are to be achieved. I argue that the standards, as criminal provisions, perform an important censoring role. However, their content requires some elucidation, the most productive avenue being guidelines developed through an inclusive, pluralistic, delegated standard-setting process.