Wildlife Law: The Big Conversation – Get involved
In light of our decision to leave the European Union the Countryside Alliance is asking the question ‘Where next for nature?’. We have invited contributions from individuals and organisations from a range of backgrounds who have a wealth of experience and knowledge of the countryside and wildlife to help inform and stimulate this important debate. Read the full collection of essays here.
Professor Sir Roger Scruton
Parliament has passed many laws to protect wildlife populations from both natural depletion and human abuse. But these laws have not prevented the decline of native species or the rise of the colonizers and predators that are driving some of our wild species to extinction. The complex symbiosis of our countryside requires sensitive and targeted legislation if we are to offer help to the species that need it, while curbing or culling those that threaten the existing equilibrium.
Our leaving the European Union offers an opportunity to return to indigenous way of doing things. While the EU and the ECJ have been shaped by Roman-law (civilian) conceptions of legal order, we in the United Kingdom have been governed largely on common-law principles. The civilian approach to organized activities is to control them by a set of top-down regulations, and otherwise to forbid them. The Common Law is founded on the contrary principle, that everything is permitted unless explicitly forbidden, and if Parliament wishes to forbid some activity it must say why. The Common Law is therefore friendly to local customs and traditional ways of managing our many interests. Unlike the top-down jurisdiction of the European Court of Justice it will not assume that legislation should be centralised or uniform over the entire jurisdiction, and it will see no harm in delegating regulation to voluntary bodies like the Game Conservancy Association and the MFHA. The Common Law will accept the right of farmers and sportsmen to control predators and pests in whatever manner has the authority of established custom, and the idea of a single set of regulations, governing the culling of deer in the Scottish Highlands, the hunting of foxes in the Welsh hills and the control of rabbit populations in fenland farms is alien to common-law thinking.
There are many interests that converge in the management of wildlife. We should give priority to three of them: the general interest in encouraging biodiversity and protecting endangered species, the interest of farmers in controlling pests, and the interest of sportsmen and animal lovers in maintaining habitats. In all three cases we should be aware that sentimentality, favouritism and hostility towards some of the human interests involved, may colour our judgment, without conferring any benefits on the species that we wish to favour and indeed often penalizing those who have the greatest interest in protecting their habitats. What is needed is a clear, objective and comprehensive legal package, designed to secure the welfare of the animals and the renewal of their habitat, while outlawing human cruelty. Such a package should allow for flexible regulations, adaptable to local interests and knowledge, preferably administered by independent bodies directly answerable to the interests of the people involved.
We are a dominant species, but we depend, in both known and unknown ways, on a far-reaching equilibrium with the wildlife of our countryside. We rely on bees and other insects to pollinate our plants, without which we could never feed ourselves. We have a general need for biodiversity, so that the expected patterns of plant and animal life be reproduced from year to year. And we have a deep spiritual connection to a natural order in which birds and insects fill the air, mammals roam the copses and the rivers teem with fish.
But this equilibrium between humans and other species is no longer guaranteed. Species that exploit the human habitat – rats, corvids, foxes – have expanded well beyond their ecological niche, while invasive species that have been brought in by humans – grey squirrels, American crayfish, mink – have driven their native rivals to near extinction. Both human necessity and biodiversity now require an interventionist policy, though it must be one that is sensitive to local conditions and the perceived needs of all involved, both humans and animals. Legislation to protect the red squirrel makes sense in Britain, but not in Poland where most squirrels are red, and most of them a nuisance. And legislation to protect the Greater Crested Newt from invasive construction work makes sense in France where the Greater Crested Newt is endangered, but not in Britain where it is comparatively abundant. So on what principles should our interventions be founded?
Whether wild or domestic, whether mammals, insects, fish or birds, animals are not persons in the full sense of the word. They do not live in a network of personal relationships and obligations as we live; they have no moral duties, and obey the laws of species life, without heroism or tragedy, and with no sense of being judged. While we negotiate our conflicts through the language of rights and duties, no such negotiations are available to the animals. If we treat them as having rights nevertheless, we will be treating them in a way that they can neither understand nor meaningfully respond to. They can neither claim their rights nor be held to blame when they violate the rights of others. In short, they live in an a-moral universe, outside the bounds of moral judgement. Which does not mean that we can treat them as we will, for, even if they have no rights against us, we have duties towards them. Gratuitous cruelty towards an animal is condemned by morality as well as by law.
Because animals are not persons, we should consider them from the legal point of view not as individuals but as species. Of course, for its owner a dog, a cat or a horse is an honorary person. But when it comes to wild animals we have no other way of dealing with them except as instances of their kind. Hence our duties involve looking after habitat, specifying methods and times of cull, protecting mammals during the time of nursing their young. All this is familiar to sportsmen, who have from the beginning of recorded history established closed seasons for the protection of their quarry, while managing habitats and food supplies.
The advocates of animal rights turn a blind eye to the points I have been making, campaigning for legislation that amounts not only to treating animals as persons, but also to curtailing or even forbidding all attempts to intervene in the natural order, whether for a human purpose or to protect some threatened species. If animals have rights, then the right to life must surely be one of them. To respect that right we will have to refrain from killing not only the fox who steals the chickens but also the rats that bring diseases to the household, the magpies that destroy the song birds, and the rabbits that devastate the crops. Only if we move away from the concept of individual rights to that of general welfare will we develop a code of conduct that will respect both the animals and the legitimate human interests that are put at risk by them. If the advocates of animal rights had their way there would be no such sport as angling, even though it is thanks to the anglers that our rivers were saved from pollution and that fish still swim in them. The enemy of fish is not the angler but the one who seeks to forbid his sport.
Since selective culls are a necessity, we need a legally enforceable distinction between the cruel and the humane ways of carrying them out. Current legislation defines cruelty as ‘causing unnecessary suffering’, but leaves open the definition of ‘unnecessary’. From the moral point of view there is all the difference in the world between suffering that arises as the unwanted by-product of a legitimate activity, and suffering that is relished for its own sake, as in the more sadistic blood sports of the past, such as bear-baiting. And we regard as legitimate not only activities that form part of husbandry and profitable work, but also many established recreational pursuits such as horseracing and certain kinds of hunting. Rules for the minimising of suffering should be specified for such legitimate activities and made subject to some kind of regulative oversight, such as that maintained by the MFHA in the case of fox-hunting.
But this raises the question of how we are to understand animal suffering. Animals can suffer in many ways apart from bodily injury: depletion of habitat, disease, fear and anxiety. In assessing the suffering inflicted by a mode of cull we need to be circumspect and scientific and not led by uninformed emotion. Animals that are injured by gunshot wounds and then crawl away to die suffer intolerable pain; those shot in full flight like game birds, or overtaken by hounds as in traditional hunting may suffer more fear, but their pain is incomparably less, on account of the near instantaneous death, and also of the endorphins that flood the body during the flight response. The endorphin argument has never been taken into account by animal welfare legislation. Hence we have arrived at the absurd position that it is legitimate for an unskilled person to shoot a sitting fox with a shotgun, but a crime to hunt a running fox with hounds, even though this last practise leads to no injured survivors, presents an animal with the kind of threat that it is adapted to manage, and leads to a more or less instantaneous and endorphin-cushioned death.
All legislation creates new incentives, and we should recognize that animal welfare provisions, if not thought through properly, may incentivize behaviour that has the reverse of the result intended. To protect one species (the hen harrier, for instance) may be to jeopardize another (in this case the grouse, which is the principal cause of the labour spent on protecting the habitat of the hen harrier).
If there were to be a comprehensive law governing wildlife management, therefore, it should include the following:
- A definition of welfare, and when welfare is compromised, whether by fear or pain, taking into account injury, incapacity and the counter-effect of endorphins.
- A definition of cruelty, as the intentional causing of unnecessary suffering, where ‘unnecessary’ means unnecessary to a legitimate human goal.
- A definition of legitimate human goals: agriculture and general husbandry, culling of pests, management of habitats, recreational interests where suffering is not the goal but an unwanted and where possible minimised by-product, as in fishing with a line.
- A definition of protected species, that enables us to extend it rapidly to newly endangered species, like the water vole, and to withdraw it equally rapidly from protected species that have successfully multiplied to the point of threatening the biological equilibrium, such as Canada geese and kites.
- A definition of invasive species, pests and other potential targets, where culling is to be encouraged.
Professor Sir Roger Scruton
Sir Roger Scruton is a writer, philosopher, and public commentator. He currently leads the MA in Philosophy at the University of Buckingham and is a fellow at the Ethics and Public Policy Centre in Washington DC. His works specialise on aesthetics and political philosophy and he has written over 40 books. Among his most recent are Where We Are: The State of Britain Now (2017) and On Human Nature (2017). Professor Scruton was knighted in 2016 for “services to philosophy, teaching, and public education”, and is a fellow of the Royal Society of Literature, and a fellow of the British Academy.