Animal Welfare Law and Contemperary Chinese Legal System Song Wei Attorney and Professor Law Institute, University of Science and Technology of China

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University of Science and Technology of China

Animal Welfare Law and Contemperary Chinese

Legal System
Song Wei

Attorney and Professor

Law Institute, University of Science and Technology of China

The current legal system in China has started fairly late, about thirty years, and it is still in development. Although there is no lack of the idea of caring for animals during the long history of China, the clear proposal of the animal welfare concept is a big challenge toward Chinese social notion, as well as to the law ideas. I will temporarily use AWL to stand for the unformed Animal Welfare Laws in China, although there are several items about anti-cruelty to animals.

The broad frame of current legal system in China is composed of branch laws on three levels. The first topic is the Constitution law, and the second includes Administrative Laws, Civil and Commercial Laws, Economic Laws, Social Laws, Environmental Laws, Criminal Laws and Procedural Laws at the national level. The other animal laws belong to a different level, mainly refer to local authority laws.

AWL should be ascribed to Environmental Laws on the second level. Environmental Laws is also called Natural Resources and Environment Protection Laws. It is a general appellation of the legal rules on reasonable exploitation and regulation of natural resources, environmental protection, prevention and control to pollution and other public nuisance. Environmental laws are the result of the development of modern manufacturing and the progress of the society, science and technology. It is also a newly-developed branch in Chinese legal system. In recent years, China has considerably improved the legislation on environment. Although there is still no unified code in this part, a series of statutes, executive rules and regulations, and local regulations have been made. Environmental Protection Laws, Wildlife Protection Laws are the main body.

Although each branch code at second level has its own functions, the conflict between principles of Environmental Laws and Civil Laws is only of its kind.

Therefore, it is necessary to analyze the differences between them so that the principles that AWL passes on to the whole society would be more profoundly understood.

The view of nature in Environmental Laws is based upon the judgment on the attributes of nature that are not limited to economic property, but synthesized of economic, ecologic and spiritual nature. The theoretical root of Environmental Laws lies in the three attributions of nature---economic, ecologic and spiritual property. The acknowledgement and protection of the economic property is the characteristics of Civil Laws and even all the other branch laws. It is a logic result of the profound understanding on ecologic property to recognize and protect its legal status and value, and to change the faulty practice of attaching all the importance to economic property in traditional legal system. The idea of “ecolization” in the legal system is partly expressed in the Environmental Laws. The other branch laws, such as, Civil Laws and Criminal Laws and so on also have only begun to respond to the times spirits. But the nature of beauty, kindness, religion and knowledge can be rendered and publicized only in Environmental Laws, which is completely different to Civil Laws.

The basis of the philosophy and methodology of Civil Laws is the ethic view of human egoism. In Purpose theory, Civil Laws takes mankind as the only subject of ethics and laws, and emphasizes only the inner value and the profit to mankind brought by nature in the relation on value between human and nature, paying no attention to the mutual equality and harmony that nature ought to have, nor the inherent value of nature independent of mankind. Civil Laws basically abstracts the lively, vigorous and spirited nature of people to practical, functional and implemental substances. Because it will not be possible to carry out its common value calculation and exchange rules, unless all the particularity of nature is cast away. The sole purpose of Civil Laws is to protect the already existed rights and benefits of human beings, while environment and its benefits could only be an object in legal relations. On one hand, Civil Laws forbid the cruelty towards mankind; on the other hand, it indulges the brutality to other lives, which is the paradox in current laws and reflects the immature and narrow ethical notion of human beings.

AWL is no other than a complete subversion to such an idea. It expands the subject of laws to all the animals sufferings, and pay attention to how to improve the living condition of such a special group. The basic principles of AWL are the five freedoms. Animal is: 1. Free from hunger and thirst 2. Free for uncomfortable life 3. Free from pain, harm and disease 4. Free from fear and sadness 5. Free to express its nature. It can be seen that AWL is interested in the existing status of aminals and has reached so far as to their living conditions. AWL has scientific and specific rules about the five freedoms. A much more humanized manifestation is to ensure the welfare of animals in connection with different functions. Improved AWL will divide animals into farm animals, experimental animals, companion animals, working animals, entertaining animals, and wild animals. It will draft corresponding laws and regulations according to specific characteristics of animals for different type, especially varied potential problems and harm to animals for different use. Take experimental animals as an example, AWL does not prohibit experiments on animals totally, but advocates to treat them humanely, and reduce tests on them as much as possible. If any experiment is necessary, then clear rules and restrictions must be made to reduce the pain of experimental animals to the minimum extent. AWL has detailed operational regulations on the welfare of experimental animals. For example, the rules about the physical raising condition is so meticulously made as to the size of their houses, surrounding temperature, humidity, ventilation, illumination and so on. There are still enormous examples of humanized concern to other animals besides experimental ones.

Part of Environmental Laws is interested in resources. The view of nature is expressed through the economical exploitation and development of resources to realize continuable development, the absorbance of individual development into group advancement, and that of a certain century into a nation, the equal exploitation of resources in a two-dimensional time and space both vertical and horizontal, the back-to-simplicity idea of combination of man and nature, the idea to get in harmony with environment and exploit it in an non-destructive way, and the emphasis again on the inherent value of creatures and environment besides economic property. While AWL lays emphasis on the life, it shows intensively the respect, protection and charity towards life itself.

Either in ancient or modern times, domestic or overseas, life is one of the central values of culture. Life is the individual rights that the west laws respect most. Traditional laws limit the understanding of life to human life that was the only form of value recognized by laws. The most distinguished feature of the view of life in AWL is the consideration over the vitality and livelihood of all other creatures besides mankind. If the ethics recognizes only the principle of love to man, it cannot be standardized; if respecting is extended to all creatures, then the ethical scope is admitted to be infinite. AWL offers specific rules on the ethics of loving all creatures. It forces humans to show concerns about the life of surrounding animals, and offer humane helps to whoever needs humane treatment.

The definition of animal in AWL is any creature except man that is able to sense pain, including mammals, birds, reptiles, amphibians, fish or other particular invertebrates. The criterion of the suffering shows further humanistic concern towards animals. The most essential care to life has risen to the concern about their misery and grief. Many other definitions in AWL express the same idea. For example, maltreatment is defined as any unnecessary and painful punishment, whether intentional or not. Another example, the definition of welfare is the extent of satisfaction to the requirement for physical, behavioral and psychological needs. The attention to the vital, physical and living state is the most humanized and ethical aspect in AWL.

It can be concluded from the above that from the view of Chinese legal system, AWL belongs to the category of Chinese Environmental Laws, but the idea and the social orders it tends to establish is different from other branches in Environmental Laws. Because of the view of life and more extensive humanity that make it more advanced in mind, and the irrelevance and even negative relation between animal welfare and economy, the social orders it will set up is a challenge to the present society filled with utilitarianism and practicalism, and is also one of the strengths to remedy nowadays social orders full of such harmful factors. (END)

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